COMMONWEALTH OF MASSACHUSETTS
BUREAU OF SPECIAL EDUCATION APPEALS
BSEA# 03-3237
IN RE: FALL RIVER PUBLIC SCHOOLS v DARRYL1
DECISION
This decision is issued pursuant to M.G.L. c.71B and 30A, 20 U.S.C.§1401 et seq ., 29 U.S.C. §794, and the corresponding regulations. A hearing occurred on May 22, 2003 at the Bureau of Special Education Appeals (BSEA) in Malden, MA.
Those present for all or part of the hearing were:
Robert Mercer Supervisor, Fall River School Department
Jamie Sunderland School Psychologist, Fall River Public School
Jo-Ann Vickers Special Education Teacher, Fall River Public School
Robert DeCoste Special Education Teacher, ACESE program Fall River
Rod Gragg2 Clinical Director/Senior Staff Psychologist, Bradley Hospital, E. Providence, RI
Mother3 Student’s Mother
Diane Parent Attorney; Fall River Public Schools
Joan Beron Hearing Officer, BSEA
Rita Steinke Court Stenographer, Catougno Court Reporting
A hearing was conducted on May 22, 2003.4 The official record of the hearing consists of School Exhibits marked S1-S13 and Parents’ Exhibits marked P1-35 and approximately four hours of recorded oral testimony. The record closed on July 18, 2003 when the Hearing Officer received supplemental resumes and materials6 .
ISSUES
I. Does Fall River’s Alternative Center for Elementary Special Education program (hereafter ACESES) provide Student with a free appropriate public education (FAPE) in the least restrictive environment (LRE)?
II. If not, does Student’s continuation at the Bradley Hospital day school program provide Student a FAPE in the LRE?
III. If the ACESES program or Bradley Hospital does not provide a FAPE to Student does Student require a program at a collaborative or other alternative location?
SCHOOL’S POSITION
Student began attending the ACESES program in April 2000 and did well there. He has been enrolled at Bradley Hospital’s day program (Bradley) since June 2000 as part of a diagnostic evaluation. Both Fall River and Bradley have, since September 2000, felt that Student can be educated in a less restrictive program and that the ACESSES program can provide the small, self contained classroom and reinforcement based behavioral management plan that Student requires. Fall River acknowledges that Student had been eligible for special education services since January 2000 and did not receive services until April 2000. It contends however that services were offered and not accepted by Mother. As such it is not liable for compensatory education.
PARENT’S POSITION
Student attended the Fall River Public Schools in a regular education kindergarten and while there was very aggressive. He was hospitalized for a number of weeks in November 1999. Fall River did not evaluate Student until after the Christmas break and an IEP was not developed until January 2000. Student received no services until April 2000 and was only in the ACESES program while awaiting a program at Bradley. Student is doing well at Bradley and should remain there. There is no program in Fall River that can meet Student’s needs and he would regress if he were taken out of Bradley’s program and put back in a less restrictive setting. If that happened Student would not be able to return to Bradley because of its waiting list. If Bradley feels that Student is no longer appropriate for its program Student should be placed in the collaborative program which Parent viewed in Swansea, Massachusetts.
FINDINGS OF FACT
1. Student (d.o.b. January 19, 1994) is currently a nine-year-old 4 th grade student who lives with his Mother in Fall River, Massachusetts (S1). During Kindergarten, Student was placed at the Bradley day school on January 26, 2000 for a diagnostic evaluation through an agreement between Mother and Fall River and a subsequent IEP for the period of June 2000-June 2001 for continuation at the Bradley Hospital School Day program; (S1, S8, Mother). Student has remained at the Bradley Hospital day program due to Mother’s rejection of subsequent IEP’s for a program at the Fall River’s ACESES program (S5, S6, S7).
2. Student began attending the Fall River Public Schools in a regular education kindergarten in September 1999. Prior to kindergarten Student attended four different daycare/preschool programs (S4). He began seeing a psychiatrist (Dr. Kurland). While in kindergarten Student displayed impulsive, oppositional and aggressive behavior at home and at school (S4, Mother, Sunderland). Student was hospitalized at Pembroke Hospital on or about October 29, 1999 for these behaviors. He remained there until November 16, 1999 (S4). Although Mother believes that Pembroke Hospital diagnosed him as “psychotic”, Pembroke’s records diagnosed Student with ADHD and major depression and discharged him with 0.1 mg per day of Clonodine and 50 mg bid of Seroquil (P4).
3. Student did not return to school (Mother). Fall River had a difficult time locating where Mother was living. (Sunderland). The TEAM conducted an initial evaluation7 of Student in December 1999 (Sunderland). Testing could not be completed due to behavior problems during testing that negatively impacted his performance (S4). Fall River convened the TEAM in January 2000 (Sunderland). Mother was present and represented by Counsel (Sunderland). The TEAM discussed a program entailing a school-based special needs class for children with emotional involvement and the ACESES program (Sunderland). Mother did not want Student to attend a program in Fall River. Mother requested that Student would be evaluated at the Bradley Hospital and that a placement would be determined after evaluation (Sunderland, Mother). Fall River did not agree but entered into an agreement that Student would be evaluated at Bradley Hospital and would receive home tutoring pending an opening at Bradley. Tutoring only occurred on one occasion because of Student’s behavior (Mother). No further interim services were offered by Fall River nor was any IEP developed to indicate Student’s interim or diagnostic program; Id.
4. Bradley Hospital did not have an opening and had a long waiting list (Mother). Mother viewed a program for elementary aged emotionally disturbed children and the ACESES program with Ms. Sunderland (Sunderland). Mother agreed to put Student in the ACESES program until an opening at Bradley occurred (Mother, Vickers).
5. The ACESES Program consists of four classrooms located at the Fall River Boy’s Club that services students with emotional problems including but not limited to students with ADHD, bipolar disorder, post traumatic disorder and PDD (Mercer, Vickers). Each classroom is serviced by a certified special education teacher and two assistants and has a maximum of six students (Mercer). The program also has a summer component with many of the same teaching staff and the same school psychologist, school adjustment counselors and speech/language therapist; Id. The program uses a reinforcement base behavior management plan in the classroom that emphasizes safety, respect for self and property and acceptance of limits. Each student is given an individualized behavior chart with an opportunity to earn points, usually after each academic subject period. Students can cash in their points frequently during the day for things such as snacks or extra recess. Students can also save their points for bigger items such as toys. Points are also taken away for negative behavior such as hitting, inappropriate language or work that isn’t brought back from home (Vickers). Most if not all of the academic work was (and would continue to be) one-to-one because the students range from a Kindergarten to fourth grade level. Afternoons are reserved primarily for art, physical education, music, and in the summer, swimming. ACESES staff meet with parents and therapists biweekly or monthly to assess how the student is doing, tweak the program if needed and if ready, to transition the student into a less restrictive environment (Mercer). The school psychologist is at the program for about an hour daily and is available upon phone notice to handle crisis situations (Sunderland, Mercer). The school psychologist also often consults with a student’s individual counselors and is very familiar with Student’s thearapist Dr. Kisch (Sunderland).
6. Student began the ACESES program in April 2000. There he received special education services from Jo-Ann Vickers, a certified special needs teacher who has taught in the Fall River Public School system since 1979 (Vickers, P11). A paraprofessional also assisted Ms. Vickers (Vickers). Student also received (and would continue to receive) thirty minutes of speech therapy per week and consultation. Student made progress in his behavioral goals and objectives while at ACESES and made academic gains (Vickers).
7. In June 2000 Student began attending the Bradley Hospital day program pursuant to the agreement for a six-week diagnostic evaluation (Mother, Sunderland, S4). Although Fall River staff believed that Student should remain at the ACESES program it agreed to abide by the agreement to place Student in Bradley for a six-week diagnostic period (Sunderland). The IEP however, designated a year long program at Bradley Hospital with a meeting to take place in August to determine if a placement in Fall River Schools was warranted; see (S8). Student was placed in a self-contained classroom with seven other children aged seven to nine years, that was taught by a certified special education teacher and a classroom behavior specialist. Much of the academics were (and are) done on an individual basis due to the varying academic skills of the students (Gragg). Student also followed a reinforcement-based behavior management system that rewarded him with stars for completing targeted behaviors (i.e. following directions) and opportunities to “cash-in” twice daily for rewards and privileges (S4, Vickers, Gragg). The behavior plan also employed negative consequences (time-outs) for inappropriate behaviors such as noncompliance. If students were aggressive towards themselves or others, seclusion and/or restraint was used to prevent injury or maintain safety (S4). Student was also supposed to attend family therapy with his Mother but did not do so because Mother did not attend therapy sessions despite multiple attempts to reach her (S4). Student did well with the behavior plan, usually requiring only redirection to comply with directions. He showed no physical or verbal aggression toward peers or teachers and received only one warning and one time-out during that diagnostic period. During that time Student displayed few independent skills and required much 1:1 attention and monitoring to complete tasks with an attention span of five to ten minutes, even with 1:1 attention from the teacher (S4).
Bradley’s academic testing showed Student at the end of kindergarten to be functioning between a prekindergarten to kindergarten level with weaknesses in letter-word identification, math calculation, dictation and science. Bradley also diagnosed Student with Oppositional Defiant Disorder (ODD) and a Parent-Child Relational Problem, with a rule out diagnosis of ADHD due to inattentiveness but lack of impulsive or overactive behavior in the classroom. Bradley however did not find that Student had a mood disorder or psychosis because his changes in affect were related to noncompliance. Speech and language testing however noted a moderate receptive and expressive language disorder characterized by significant deficits in language processing and problem solving skills. Results from an audiological screening suggested possible hearing difficulty warranting further examination. Bradley recommended a small self-contained language-based classroom with sufficient teacher attention and instruction that utilized a reinforcement-based behavioral management plan so that Student could continue to learn appropriate classroom behaviors as well as speech and language therapy once per week to improve receptive, expressive and critical thinking skills. It also recommended that Mother participate consistently in therapy and follow through with treatment recommendations (S4).
8. A TEAM meeting occurred on September 21, 2000 (S7). Fall River and Bradley staff recommended that Student return to the ACESES program (Vickers, Mercer, Sunderland, Gragg). Mother did not agree and did not sign the IEP (S7). Therefore Student remained at the Bradley Hospital day program (Sunderland, Mercer, Mother).
9. In November 2000 Bradley transferred Student to a new class with six other students in order for Student to be placed with other students closer to his age and late kindergarten to early first grade functional level ( see Gragg, S3). Student continued to make progress in the classroom and used the behavioral management system well, typically requiring only redirection within the classroom (Gragg). Unlike most of the other students, Student has never required physical intervention. Id. .
9. The TEAM reconvened on October 24, 2001 for a reevaluation meeting (S6). The IEP however does not reference any reevaluations; see (S6).8 Bradley continued to feel that Student required a less restrictive setting. It recommended, based upon information obtained at a TEAM meeting, talking to ACESES staff and an observation of the program by Student’s psychiatrist (Dr. Radka) that the ACESES program would meet Student’s needs (Gragg). Fall River developed an IEP for the ACESES program (S6). On December 5, 2001 Mother rejected the change in placement and requested a full CORE evaluation including neuropsychological testing (S6). Student remained at the Bradley Hospital day program (Mother, Sunderland).
10. On November 13, 2002 Bradley’s program director/consulting psychiatrist (Dr. Radka) and the treatment team leader (Dr. Gragg) wrote to Robert Mercer to update Fall River about Student’s progress and provide recommendations regarding his future educational needs (S3). They reported that although Student can become easily frustrated when given challenging academic tasks or during social situations he perceives as unfair, he has since January 2002, only received an average seven time-outs per month. Of those seven, Student had only needed to leave the room to complete time-outs three times in the last year (S3). During school Student demonstrated remarkable improvement in his social interactions with peers and adults, initiating conversations with others and joking with peers and staff. He has also demonstrated sensitivity to others, was able to share work materials and was usually willing to offer help to peers and staff (S3). Mother however reported that Student displayed significant behavioral problems at home (S3). Mother would not participate in therapy with Student (S3, Gragg).
Academically Student was able to complete 4-5 academic tasks per day. He demonstrated an adequate attention span and was able to gain staff attention by raising his hand and asking for staff assistance; Id. Testing9 done in November 2002 showed Student, at 3 rd grade, to be functioning at a second grade level in written and oral language and a first grade level in math and reading, requiring repetition and overlearning to apply newly learned phonics skills to decode new words. Id. During his sixty minutes of weekly group speech/language therapy Student was able to improve his social use of language (problem solving, turn taking and requesting assistance using proper vocal tone), and improve his receptive and expressive language skills. Bradley noted that although Student could “overload” when given long or complex spoken directions, he responded well when these directions were broken down, repeated or modeled for him (S3).
Bradley recommended placement in a highly structured classroom with clear, consistent and predictable limits and expectations with frequent opportunities for positive reinforcement and 1:1 assistance if needed as well as continuation of speech/language therapy. Dr. Gragg and Dr. Radka noted that “Given [Student’s] presentation since his admission, it is believed that his needs could be met in a less restrictive educational placement than at the Bradley School” (S3).
11. On November 15, 2002 the Parties entered into mediation regarding Student’s program but were not able to reach agreement (S1, Mother, Sunderland).
12. The TEAM reconvened on December 6, 2002 (S5). Fall River and Bradley continued to recommend the ACESES program (Sunderland, Vickers). Mother did not want Student to return to Fall River feeling that he would not be successful in a less restrictive environment (Mother). Fall River proposed an IEP for an extended year program at the ACESES program with speech/language therapy for thirty minutes per week and ½ hour of weekly consultation from the school psychologist. The IEP does not incorporate Bradley’s suggestions for pragmatics instruction or the modifications for breaking down complex verbal instructions nor does it provide for speech and language consultation; see (S5).10 Mother rejected the placement decision on January 29, 2003 (Mother, S5). Fall River filed this request for hearing on February 3, 2003 (S1).
13. On March 17, 2003 Dr. Radka and Dr. Gragg sent Mr. Mercer an updated progress report regarding Student (S2). They reported that Student had received an average of sixteen warnings and fewer than five time-outs per month. These warnings and time outs have been for not following directions, instigating peers, displaying a negative attitude or behaving in a rude or argumentative manner (S2). Of these five time outs Student only had to leave the room on one occasion for talking back and being disruptive during his time out in the classroom. Id. They reported that Student continues to display a low frustration tolerance with challenging academic and social assignments and demonstrates poor sportsmanship when things are not going his way during group games by pouting, crying or talking under his breath. Student however was able to calm down and participate appropriately in the activity with reminders of the potential positive and negative consequences for behavior, and was able, with support to complete new and challenging assignments (S2). During speech/language therapy, Student continued to make good progress working on social communication skills, recall/processing of oral and written information, critical thinking skills and receptive and expressive language skills. Id. Mother continued not to participate in therapy. Id. Both reiterated that Student’s needs could be met in a less restrictive environment than Bradley School (S2, Gragg).
14. Mother would like Student to remain in the Bradley School. Student’s hospitalization at Pembroke was traumatic for him and she does not want him to be rehospitalized. Student waited from January to June for his original slot at Bradley. If Student’s transition to another program is not successful Student may not be able to return to Bradley because he will lose his slot and have to wait on a long waiting list (Mother).
In addition, Student completed a psychiatric evaluation at Massachusetts General Hospital on January 3, 2003 and was diagnosed with juvenile bipolar disorder, ADHD and Pervasive Development Disorder/NOS (Mother, P1). In late January or mid February 200211 Student was enrolled in a clinical research trial for the treatment of bipolar disorder (P1.Mother). He has been invited for a follow-up (P3). In early January 2003 Student’s dosage of Risperidal was lowered from two to one milligrams per day and his Clonodine was eliminated and replaced with another drug. Mother believes this drug was Amantadine (Mother). Mother feels that Student should not be removed from Bradley because he will be unstable (Mother, see P1). Dr. LeDoux recommends that Student would be stabilized with new medication within eight to ten weeks (P1).
15. Mother does not feel that Student is ready to leave Bradley without a step down program (Mother). If however Bradley does not feel that Student should remain there Student should be placed at the BICO Collaborative program in Swansea that Mother observed two years ago (Mother). Student returned to Dr. Kisch for a medication reevaluation on April 15, 2003. Student has remained on the same medication (Mother). During the April 15, 2003 session, Mother talked to Dr. Kisch about Fall River’s recommendation to remove Student from Bradley and return him to the Fall River Public Schools (Mother). Dr. Kisch felt that Student was not suitable for a regular education school (Mother, see P2). Mother asked Dr. Kisch to put his recommendation in writing (Mother). Dr. Kisch wrote: “Please consider colloborative program placement (e.g. BICO) as less restrictive placement. Dx Bipolar, PDD (No suitable regular school spec. ed” (P2). Dr. Kisch has not observed or talked to anyone from the ACESES program or the Bradley day program (Vickers, see S2). Fall River does not feel that Dr. Kisch has observed the BICO Collaborative because the BICO Collaborative is not located in Swansea (Mercer).12
16. If Student were to enter the ACESES program he would remain in Ms. Vickers class with three other students and a paraprofessional (Vickers). The program would be similar to the one he was in when he was in kindergarten; however the academics would be geared to Student’s current cognitive level (Vickers). Student would be given a transition plan consistent with the recommendations of Bradley (Vickers, Sunderland). Dr. Gragg believes that Student should have a short (two week) adjustment period so that he is not confused between the two different programs (Gragg). Dr. Gragg and other Bradley Hospital staff would be available to provide consultation to try to work out any problems. If problems do occur Bradley would work with Mother and the ACESES program to see if there would be ways to make the program work rather than have him move to another program. If however the TEAM decided that a transition was not going to work despite everyone’s best efforts, then Dr. Gragg would work with the TEAM to find an alternative program (Gragg). Dr. Gragg however, anticipates minimal problems since he knows Ms. Vickers and other staff (Gragg). Fall River also does not anticipate problems because they have transitioned many children to and from their program successfully and are familiar with and have worked with children with Student’s diagnoses (Vickers).
FINDINGS AND CONCLUSIONS
After careful consideration of the documents and testimony in this matter I find that a hospital day program is too restrictive to meet Student’s needs and that the ACESES program with modifications will provide Student with a free appropriate public education in the least restrictive environment. There is no dispute that the Student is a student with special learning needs as defined by M.G.L. ch. 71B and 20 U.S.C. 1401 et seq. , and is thus entitled to receive a free, appropriate public education within the least restrictive environment. The Parties agree that Student requires a highly structured classroom with clear, consistent and predictable limits and expectations with frequent opportunities for positive reinforcement and 1:1 assistance if needed. The Parties also agree that Student should continue speech/language therapy services. Dr. Gragg, who has worked with Student for almost three years, is credible that a hospital day program is too restrictive for Student. The ACESES program has the highly structured classroom and the 1:1 assistance and behavior plan that Student requires. It can also provide the speech therapy that Student needs.
The IEP however needs to include the speech/language consultation that the Parties agree Student needs for carryover into Ms. Vickers class as well as for his afternoon nonacademic program. In addition, the IEP must include the goals and objectives for social language skills that Student requires and include the modifications for breaking down complex directions. Student was receiving sixty minutes of speech/language therapy in a group while at Bradley. Fall River has offered no evidence why this therapy time should be reduced. As such, the speech/language therapy will remain at sixty minutes per week.
In addition, Student is due for a reevaluation. Bradley has kept behavioral data and performed a limited educational evaluation in November 2002; however, no other evaluations have been conducted since Student was in kindergarten. Ms. Vickers will need to know current academic levels so that she can appropriately individualize Student’s work. A full speech/language evaluation with a hearing screening also needs to be conducted. The TEAM will reconvene to implement any recommendations.
Mother’s concerns about a transition back to Fall River are noted and are understandable. Fall River did commit some procedural errors. Fall River should have placed Student in a different interim program or convened a TEAM to develop a different program when it learned that Bradley Hospital had a long waiting list. It should have also not developed an IEP for a full year program at Bradley if it did not think that Bradley was appropriate for Student. The evidence is undisputed however that Fall River did try to offer another program and that Mother would not have accepted anything other than Bradley Hospital. As such, Fall River is not liable for compensatory education.
Mother’s concerns regarding Student’s medication change and Dr. Kisch’s recommendation have also been considered. Student however has been on his medication regime since January 2003. Bradley has not reported any erratic or unstable behavior. Dr. Kisch’s recommendation is based upon the assumption that the Student would return to a regular education environment. The evidence is credible that the ACESES program can provide the special education and related services that Student requires. The IEP will be amended to include the consultation time from Bradley and Dr. Kisch that the TEAM believes Student requires to successfully transition Student. Fall River will also draft the written transition plan discussed at the latest TEAM meeting. Fall River and Bradley are committed to working to ensure that Student’s transition into the ACESES program is successful. Mother is encouraged to participate in this transition.
ORDER
The IEP designating the ACESES program, with the modifications, described within this decision, is appropriate for Student. Fall River will conduct a reevaluation forthwith and transition Student to the ACESES program.
By the Hearing Officer,
Joan D. Beron
Date: July 21, 2003
1
Darryl is a psuedonym used for confidentiality and classification purposes.
2
Dr. Gragg testified by telephone.
3
Mother did not appear at hearing despite receipt of BSEA notice (Exhibit A), School District documents and witness lists (Exhibit B), and confirmation by the BSEA scheduling clerk. Mother was contacted on the day of hearing and did agree to participate by phone both testifying and conducting examination of School District witnesses.
4
The School District filed this hearing request on February 5, 2003 with a hearing date set for February 26, 2003. On February 21, 2003 Parent filed a request for postponement so that she could replace Counsel who had withdrawn on February 11, 2003. The request was granted and a conference call was set on March 3, 2003 by mutual agreement of the parties. On February 28, 2003 Parent filed a second request for postponement. A conference call between School Counsel and Parent’s Advocate occurred on March 13, 2003. A prehearing date was set for, and did occur, on for March 27, 2003. On March 20, 2003 the Advocate withdrew her appearance. Hearing dates were set for April 7, 2003 and postponed at the request of the School with assent of Mother. A hearing date was set and did occur on May 22, 2003.
5
Parent did not submit any exhibits or a witness list. These exhibits were admitted without objection.
6
The Hearing Officer, on her own motion, sent Parent a copy of the transcript, along with notice specifying a closing argument date of June 23, 2003. Fall River submitted a closing argument on June 23, 2003. Parent did not submit a closing argument. The date was extended to July 18, 2003 with no objection from School Counsel. Parent did not submit a closing argument but did submit an extra document. Fall River was sent the extra document and did not object to its submission.
7
Bradley hospital reports indicate that Student was born addicted to heroin and spent a month in the hospital and ten months in foster care prior to returning to Mother. It is unclear if Fall River was given any information from Student’s preschool to warrant earlier evaluation.
8
No reevaluations were submitted into evidence.
9
Bradley tested Student using the Woodcock-Johnson III.
10
Ms. Vickers indicated that when Student was in the ACESES program, the speech/language pathologist did come into the room for consultation and would continue to do so (Vickers).
11
Compare (Mother, P1).
12
The BICO Collaborative is located in the Wrentham, MA area. The South Coast Collaborative has programs in Swansea (Mercer).