COMMONWEALTH OF MASSACHUSETTS
Bureau of Special Education Appeals
In Re: Galen1 and Wachusett Regional School District
BSEA#03-3728
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 regulations promulgated under these statutes. A hearing was held on June 12 and 13, 2003, at the Worcester office of Catuogno Reporting Service. Present for all or part of the proceeding were:
Mother
Father
Alison Vara Speech Pathologist-Pathways Academy
Helen Murgida Head of School-Pathways Academy
Naomi Chedd Educational Consultant
Dana Kennedy LICSW-Children’s Friend, Inc.
Gary MacCallum Principal-Caldwell School
Jane Helstosky-Cremins Therapist-Caldwell School
Philip Campbell Director-Student Services-Wachusett Regional School District
Lincoln Waterhouse Special Education Program Facilitator –Wachusett Regional School District
Annette Markel Special Education Teacher-Wachusett Regional School District
Charles Vander Linden Attorney for Parents
Regina Williams Tate Attorney for School
Lindsay Byrne Hearing Officer-Bureau of Special Education Appeals
The official record of the hearing consists of documents submitted by the Parents
marked P-1 through 41 and P-48 through 61; documents submitted by the
School marked S-1 through S-34; and approximately 12 hours of recorded oral
testimony. Both parties submitted written closing arguments by July 14, 2003, and the record closed on that date.
Issues
1. Whether the Student’s placement at the Caldwell School through an Individualized Education Plan developed by the Wachusett Regional School District was reasonably calculated to provide a free, appropriate public education to the Student in the least restrictive setting?
2. If not, are the Parents entitled to retroactive reimbursement of expenses incurred as a result of their unilateral placement of Galen at Pathways Academy in March 2003?
Summary of the Evidence
1. Galen is a twelve year old student with diagnoses of Attention Deficit Hyperactivity Disorder and Asperger’s Syndrome. He has very superior cognitive functioning, as measured by standardized intelligence tests, and performs, academically, consistent with his potential. Galen also has significant impairments in social, adaptive and organizational skills. Although he has good receptive language skills, his pragmatic language skills are poor. He tends to interrupt, monopolize discussions, and minimize the contributions of other people. He is easily overwhelmed by sensory stimulation. He has difficulty tolerating challenge. He tends to be grandiose, impulsive, and insensitive to the views of other people. He is naïve, concrete, and lacks self-protective skills. When confused, redirected or required to produce work, Galen engages in task avoidance, verbal abuse, and at times, physical aggression. He does not understand the effect of his behavior on others. (Parents; Vara; Kennedy; P-9; P-10; P-8; S-26; P-7; P-6; P-4; S-33; S-22; P-2, S-14; P-3, S-10)
Galen needs a small, highly structured, therapeutic educational program that can address his significant social and adaptive deficits, manage his anxiety, and teach him appropriate social behavior, behavioral self-regulation, and community skills while maintaining his academic progress. As a consequence of Asperger’s Syndrome, Galen requires direct instruction and opportunities for structured peer practice in social language, language pragmatics, and social behavior. He also needs direct instruction in anxiety management, so that he can learn to cope more appropriately with transitions, sensory challenges, and environmental demands. The educational environment should offer Galen the opportunity for frequent breaks, be non-threatening and non-punitive, and be free from peers who tease, bully or have behaviorally-based disorders. He should also receive one-to-one counseling. A behavioral plan focused on proactive interventions, rather than consequences, should be developed by a trained and experienced clinician familiar with Asperger’s Syndrome. Data collection and regular progress monitoring are essential. (Chedd, Kennedy, Parents, Cremins, Vara, Murgida; P-13, S-31; P-10; P-9; P-8, S-26)
2. After Galen received a diagnosis of Attention Deficit Hyperactivity Disorder (“ADHD”) and Depression in 2000, Wachusett Regional School District (“Wachusett”) developed a 504 Plan for his 5 th grade year. (P-14; S-34) In December 2001, Galen was found eligible for special education. The Team developed an IEP calling for an aide in class twenty minutes per day to address Galen’s attentional and behavioral needs, as well as counseling fifteen minutes per week. The Parents accepted the plan but requested direct social skills training as well. This was not provided. (P-4, S-33; Parent) In March 2002, Galen was formally diagnosed with Asperger’s Syndrome.(P-13, S-31) The Parents again requested social skills instruction. Wachusett developed a behavior plan for the remainder of his sixth grade year but did not respond to the Parents’ request for a direct social skills instruction. (P-17) Ms. Markell, the special education teacher responsible for implementing Galen’s IEP and behavioral plan, reported that his progress under the plan was inconsistent. (Markell; P-20; S-27; S-8; S-29)
3. Dr. Jannette Rey of the May Center conducted a social skills assessment in June 2002. Based on clinical interviews with both family and school staff, observations of the student in a variety of settings, and a record review, Dr. Rey recommended:
1. Adjusting the behavioral intervention plan to increase the use of
antecedent intervention to decrease behaviors that interfere with completion of classwork and cooperation with adult requests;
2. Direct, structured social skills training using a validated social skills
curriculum in both individual and student group settings with additional opportunities for practice and incidental learning;
3. Consultation and program design services with an expert clinician
experienced with applied behavioral analysis, Asperger’s Disorder and social skills development;
4. Inclusion of social skills in the IEP, with associated data collection and
monitoring;
5. Transition planning to assist information sharing among responsible
adults. (P-8, S-26)
4. Ms. Markell testified that Galen entered the 7 th grade in September 2002, with the same IEP and behavioral plan that had been in place during the spring of his 6 th grade year. His functioning, however, was poor. The Team reconvened on October 4, 2002, to review Dr. Rey’s evaluation and to reconsider the then current behavioral plan. Ms. Markell testified that the Team discussed Dr. Rey’s recommendation for an antecedent intervention system for Galen, but instead prepared a behavioral intervention plan that used a behavioral score system that collected observational data but did not restructure anticipatory supports. (See also: P-21, 22, 23) Ms. Markell also testified that the Team discussed Dr. Rey’s recommendation that Galen receive direct instruction in social skills, but rejected it because the Team wanted to focus only on behaviors that directly affected academic functioning in the classroom, such as turn taking. Finally, Ms. Markell recalled that the Parents requested consultation from a trained behaviorist specializing in Asperger’s Disorder, consistent with Dr. Rey’s recommendation. The Team rejected the request believing Wachusett staff could develop an appropriate behavior plan. (Markell)
5. Galen’s in school functioning deteriorated markedly through the fall, 2002. After several absconding and explosive episodes in October and November 2002, the Team reconvened on November 2, 2002 and agreed that Galen required a small, structured therapeutic educational environment. The Parents specifically requested that the IEP include social skills training. (Parent; P-24) Lincoln Waterhouse, the special education facilitator for Wachusett, testified that by November 2002, Galen needed an educational placement with a targeted, clinical component with staff having an advanced level of understanding, experience and training in Asperger’s Syndrome, better counseling, and an emphasis on social/language pragmatics. He looked at Broccolli Hall, Willow Hill, Caldwell and Lighthouse as possible placements for Galen. Eventually he selected the Caldwell School because it had behavioral supports similar to those that were in place in Wachusett for Galen and with which, according to Mr. Waterhouse, he had been having success. (Waterhouse) Neither the Parents nor anyone from Wachusett visited the Caldwell School prior to Galen’s placement there.
6. The Team met again on December 19, 2002, and on December 31, 2002, the School proposed an IEP calling for Galen’s placement at the Caldwell School. The IEP noted that social skills instruction was a necessary component of the program in order for Galen to make effective progress. The IEP provided for two sessions weekly of individual or group therapy in addition to the program in place at Caldwell. (P-2, S-14)
7. The Caldwell Alternative School, located in Fitchburg, is operated by the FLLAC Collaborative. It provides a small, structured, behaviorally oriented setting for students whose special needs have not been met in regular education settings. The school serves 39 students in grades 7 through 12, who are placed in one of 5 academic groups depending on chronological age and/or grade. All students are subject to the school-wide “Level System of Responsibility” which operates as a token-reinforced behavior management system implemented throughout the school day. (P-41) The students all have emotional and/or behavioral disabilities, including: ADHD, depression, mood disorder, conduct disorder. No current students other than Galen have been diagnosed with Asperger’s Syndrome. While all students present issues with peer relations and acceptance of adult authority, none requires direct instruction in social or language pragmatics. All are more verbally astute than Galen. (S-3; Cremins)
8. Galen began attending the Caldwell School on January 6, 2003. It was by all accounts, a difficult experience for him. On the second day he tried to run away. He returned home from school each day uncommunicative and miserable. He often spent evenings wrapped in a blanket, crying. (Parent) His individual, out-of-school therapist, Dana Kennedy, testified that she observed a marked regression in Galen’s mood over the course of his attendance at Caldwell. (Kennedy; P-50, P-11) Naomi Chedd, who observed both the Caldwell School and Pathways Academy on behalf of the parents testified that Caldwell lacked appropriate peers for Galen. Ms. Chedd stated that the classroom to which Galen had been assigned was chaotic. The other students teased, used foul and aggressive language, and were rude and disrespectful to each other and to the teacher. At times the students pushed and shoved each other. The teacher ignored or refereed the behavior, but no real academic instruction was accomplished. Ms. Chedd testified that Galen takes language too literally to be able to function in that type of environment. (Chedd; P-7; P-48)
9. Jane Cremins, LICSW, who worked half-time as a therapist at the Caldwell School, testified about Galen’s experience there. She acknowledged that Caldwell had been “an extremely difficult” experience for Galen, and that he had been placed in a “very difficult” peer group. She stated that he had two good days when he first started at Caldwell. After that he complained that he did not want to be in the classroom and refused to go. When he entered the Caldwell School it was expected that the level system would be useful and appropriate for him, however it quickly became apparent that it did not work for him as he was not moving up the system as expected. Indeed the level of his anxiety and his behavior became more troubling, precipitating three suspensions for physical aggression. (P-28, 29, 30, 31, 33, 34, 38; Cremins)
Ms. Cremins explained that Caldwell staff attempted to modify Galen’s schedule. He started school with the expectation that he would attend classes full time. When it became apparent that he could not tolerate that level of stimulation his schedule was modified to provide for up to three periods per day out of the classroom by himself for one-to-one with an adult.2 By March 2003, Galen spent more than three periods per day, scheduled and unscheduled, out of the classroom. He complained about the aggressive language and provocative behavior of the other students. Ms. Cremins acknowledged that other students frequently used obscene language toward peers and teachers and that this caused significant anxiety for Galen. (Cremins; P-27; P-38) During her once weekly individual therapy sessions with Galen Ms. Cremins worked to develop his social skills through the use of social stories. She did not use a validated social skills curriculum. There was no opportunity to practice with peers.
Galen made no academic progress while attending the Caldwell School, failing three of his four major academic subjects. (P-35; P-32; S-4) Instructional and scheduling modifications did not improve his academic performance (P-37) He did make some limited progress in understanding the daily schedule, using time out, and being comfortable with adults. (Cremins)
10. Gary MacCallum, the principal of Caldwell School, testified that initially he had no concerns about the capacity of the school to meet Galen’s needs. To determine whether Caldwell is an appropriate program for a student one looks to: the student’s success with the level system; her/his academic performance; and her/his commitment to the program. In Galen’s case, Mr. MacCallum stated, participation in the level system is not an appropriate measurement since his disability prevents him form conforming to such a system. Instead, one would look at his class attendance. Galen was not able to attend to or in the classroom most of the time. He was also not performing consistent with his academic potential throughout his two months at Caldwell. Although he had developed some good relationships with adults, Galen had not been able to initiate or maintain any relationships with peers. Mr. MacCallum stated that he was not ready “to give up” and that adding some instruction in language pragmatics might make the Caldwell placement workable for Galen. (MacCallum) Wachusett did not at any time observe Galen at the Caldwell School.
11. The Parents contacted Wachusett at the end of January 2003, to discuss their concerns about Galen’s experience at the Caldwell School. The Team reconvened on February 5, 2003. The Parents voiced their concerns for Galen’s emotional and physical safety, the lack of an individualized behavior plan; the lack of an appropriate peer group; the lack of social skills training; and the academic failure. The Parents told the Team they had begun to look for an alternate placement. Caldwell asked for additional time to do further staff training; to add an aide in the classroom; and to make other program modifications. (Parents; Waterhouse; P-55, S-12)
12. On March 9, 2003, the Parents wrote to Mr. Waterhouse detailing their concerns about their son and the Caldwell School, and their efforts to locate an appropriate educational program for Galen. They advised Wachusett that they believed CNS Pathways Academy had an existing appropriate and available program for Galen and indicated their intent to enroll him in the Pathways program. (P-56)
13. The Team reconvened on March 11, 2003. There had been no significant change in the Caldwell program or in Galen’s performance there since the prior team meeting. (Parents)
14. On March 14, 2003, the Parents formally notified Wachusett that they rejected the then current IEP drafted in December 2002, as well as the Caldwell School placement. They wrote that they intended to place Galen at the Pathways program and to seek public funding of the placement. (P-57, S-8) The Parents also requested a hearing on the rejected IEP and unilateral placement on March 13, 2003. (Administrative Record.) Wachusett acknowledged receipt of the IEP revocation and the request for public funding of the Parents unilateral placement on March 18, 2003. (P-56, S-5; see also P-54) On April 7, 2003, Wachusett proposed an IEP adding two hours weekly of social pragmatics instruction by a speech-language pathologist to Galen’s Caldwell program. No other modifications to the Caldwell placement were proposed. (P-3, S-10)
15. Pathways Academy is a Massachusetts-approved special education day program located at McLean Hospital in Belmont, Ma. It serves a small group of students with PDD/NOS, high-functioning autism and Asperger’s Syndrome. Helen Murgida, Head of the Pathways Academy, explained that the program is designed to meet the unique needs of individuals with neurocognitive disabilities. It does not accept students with identified emotional or behavioral difficulties. The program is not behaviorally based. It does not use level, point and/or token systems to train or consequence behavior. Instead the program focuses on direct teaching in those deficit areas known to be hallmarks of Asperger’s Disorder: language pragmatics, social skills, stress reduction and anxiety management. The program also accommodates the sensory and physical needs that are characteristic of individuals with Asperger’s Disorder by scheduling frequent breaks, providing rooms for individual work, and using appropriate technology. (P-58, 59, 60; Murgida)
The Pathways Academy Middle School serves eight students, ages 12 and 13. There are two classes of four students. Each is staffed by a masters level special needs teacher and a full time aide. For each classroom there is a “break out” room for individual work or one-to-one teaching, as well as separate rooms for occupational therapy, speech therapy, sensory integration and physical education. After each academic class there is a fifteen minute sensory integration period designed to improve the students’ ability to transition and to manage anxiety. Lunch is a pragmatics based activity period directed by the teachers. While staff does keep data and logs about student behavior, these are used for adjusting teaching not for “retraining” students. The only behavioral reports that are sent home and have student consequences are those that involve physical threats, touching a teacher, or dangerous behavior resulting in noncompliance. Galen has never received such a report. (Murgida; P-58, P-59)
16. Galen was admitted to Pathways on March 19, 2003, and began attending on March 26, 2003. His parents reported that Galen’s mood improved dramatically and immediately after he began the Pathways program. Galen told his parents that it was “like heaven” and that the staff understood him. His father testified that after about six weeks at Pathways, Galen demonstrated spontaneous empathy for the first time. (Parents; P-11, 12; Kennedy) Alison Vara, the speech-language pathologist at Pathways, works with Galen three times a week on direct language pragmatics instruction and during sensory integration breaks to increase social interaction and manage anxiety. She testified that, typical of students with Asperger’s Syndrome, Galen was very anxious at the beginning of their relationship, and has difficulty with endurance, interpretation of non-verbal communication, and gauging the appropriateness of his own responses. He has made progress in forming relationships with adults, choosing the better solution in social situations, recognizing his monopolization of conversation and attending class. He still has significant difficulty in social interactions with peers, as well as generalizing and expanding upon learned skills. Ms. Vara testified that the typical student starts to display improvement on a semi-consistent basis after 9 months to a year of direct instruction. Galen appears interested and motivated in language pragmatics class and has practiced some of the reciprocal skills with lower school students. (Vara)
Ms. Murgida noted that Galen entered Pathways choosing one-to-one academic instruction most of the time. After allowing him to integrate himself at his own pace, he is up to half an hour in each forty-five minute class and always attends language pragmatics. (Murgida; P-61) Ms. Murgida testified that she believes Galen is appropriately placed at Pathways Academy. (See also: P-6)
Findings and Conclusions
There is no dispute that Galen is a student with special learning needs as defined by 20 U.S.C. § 1401 and M.G.L. c. 71B and is thus entitled to a free, appropriate public education. Indeed the parties agree on the nature and severity of Galen’s special needs and on the general features of an educational program appropriate to address them. The issue here is essentially one of placement: is the Caldwell School capable of addressing Galen’s identified special needs? If not, was the Parents’ unilateral placement at Pathways Academy justified and appropriate? After careful consideration of all the evidence adduced at the hearing, and the arguments of counsel for both parties, it is my determination that both the IEP proposed by Wachusett in December 2002, and the placement at the Caldwell School were inappropriate for Galen. I further find that the Parents were justified in revoking their acceptance of the December 2002, IEP; in withdrawing Galen from the Caldwell School; and in enrolling Galen in Pathways Academy. My reasoning follows:
First, I find that the December 2002, IEP fails to include services addressing the most critical areas of need as identified by Galen’s parents, teachers and evaluators: social and language pragmatics. Despite the parents’ repeated requests for such services over the course of at least two years, despite recommendations for direct instruction in these areas of disability by Wachusett’s own personnel as well as independent evaluators, despite the observable decline in Galen’s ability to manage these deficit areas in the mainstream, resulting ultimately in a determination that he could not be served in a regular education setting, and despite the professional awareness that Asperger’s Syndrome is, fundamentally, a disorder of pragmatics, no specific services tailored to this area of need were proposed in the December 2002, IEP. (P-2, S-14; Parents; P-4, S-33) There was no evidence that Wachusett made any inquiry concerning the availability of these types of services at the Caldwell School. Without services tailored specifically to address Galen’s area of critical education need, the IEP developed by Wachusett must be found to be inadequate, and not reasonably calculated to ensure his progress.
Turning to the program actually available to Galen at Caldwell I find that it was both ineffective and inappropriate. As noted above it did not offer instructional services targeted to Galen’s area of need: social and language pragmatics. Equally important the milieu and the educational focus were both inappropriate for Galen. The parties acknowledged that the peer group did not have appropriate language, social or behavioral models for Galen. Ms. Cremins acknowledged that the behavioral system used at Caldwell was not effective at engaging Galen. (Cremins) Mr. MaCallum acknowledged that over the course of two months none of the markers of a successful placement had been achieved by Galen. (MacCallum) Galen’s parents and therapist noted a significant decline in Galen’s overall functioning during his attendance at Caldwell. (Parents, Kennedy, Cremins) Not one witness at the hearing cited any instance of Galen’s progress, improvement or engagement in the Caldwell program. No one at the hearing credibly testified that Caldwell was an appropriate educational program for Galen or recommended his continued placement there.
I note, with incredulity, that although Wachusett was aware through meetings in February and March 2003, of the concerns of both Parents and Caldwell School staff, no one from Wachusett visited Caldwell, observed Galen, or sought an alternative program for him. See 603 CMR 28.06 (3). Both meetings resulted in Wachusett proposals for Galen’s continued placement at Caldwell, with minimal additional services.
Based on these facts the Parents had ample justification for revoking their acceptance of Wachusett’s inappropriate IEP and withdrawing Galen from the inappropriate program at Caldwell School.3
The Pathways Academy located by the Parents provides the type of educational services recommended for Galen by multiple evaluators: direct, targeted instruction in pragmatic social and language skills, opportunities for practice with age peers, modifications for anxiety and sensory related behaviors, and academic instruction at his cognitive level, with teachers and clinicians familiar with Asperger’s Disorder. (P-8, S-26; P-9, 10; See also P-6) The uncontroverted evidence demonstrates that Galen is happy and engaged in the Pathways program, and has made slow, but continual progress in acquisition of new skills. I therefore find that Pathways Academy is an appropriate educational placement for Galen at this time. I further find that the Parents attempted continuously and appropriately to engage Wachusett in exploring alternatives to the Caldwell School and followed all necessary procedures for securing public funding for their unilateral placement at Pathways Academy. (P-55; P-56, S-5; P-57, S-8; P-54; Parents)
Order
The IEPs developed by Wachusett Public Schools in December 2002, and April 2003, are not reasonably calculated to provide a free, appropriate public education to Galen. In particular, the Caldwell School does not offer Galen educational services recommended by educational experts or tailored to his unique learning needs. The Parents were justified in revoking their acceptance of the December 2002, IEP, and in withdrawing the Student from the Caldwell School. The Pathways Academy offers Galen appropriately tailored special education services in the least restrictive setting in which he can function at this time. Therefore the Parents are entitled to reimbursement for all out-of-pocket expenses associated with the Student’s unilateral placement there in March 2003. Wachusett shall prepare an IEP consistent with this Order within thirty days.
Lindsay Byrne, Hearing Officer
1
“Galen” is a pseudonym chosen by the Hearing Officer to protect the privacy of the Student in publicly available documents.
2
First period excused from community meeting; support group with a therapist or nurse, 2 nd period-reading in classroom; 3 rd period-math out of classroom; 4 th period-excused from woodworking, substitute career education; 5 th period-lunch by self; 6 th period-social studies-science sometimes in, sometimes out in office; 7 th -art refused to go.
3
While the Caldwell program does not meet Galen’s needs, the Parents testified and I find that the staff at Caldwell was uniformly caring, sympathetic, knowledgeable and competent, and provides necessary services for other students.