Jack Doe vs. ABCD Public Schools – BSEA # 09-4100



<br /> Jack Doe vs. ABCD Public Schools – BSEA # 09-4100<br />

COMMONWEALTH OF MASSACHUSETTS

BUREAU OF SPECIAL EDUCATION APPEALS

In Re: Jack Doe vs. ABCD Public Schools1

BSEA # 09-4100

DECISION

This decision is issued pursuant to the Individuals with Disabilities Education Act (20 USC 1400 et seq .), Section 504 of the Rehabilitation Act of 1973 (29 USC 794), the state special education law (MGL c. 71B), the state Administrative Procedure Act (MGL c. 30A), and the regulations promulgated under these statutes.

A hearing was held on March 2 and 3, 2010 in Malden, MA before William Crane, Hearing Officer. Those present for all or part of the proceedings were:

Student’s Mother

Student’s Father

Jill McGrale Maher Private Educational Consultant

Katia Fredriksen Private Neuropsychologist

Jennifer Cabral Therapist/Clinician, CCBC2

Math Teacher, ABCD Public Schools

English Teacher, ABCD Public Schools

Science Teacher, ABCD Public Schools

School Adjustment Counselor, ABCD Public Schools

Special Education Teacher, ABCD Public Schools

Autism Consultant to ABCD Public Schools

Special Education Director, ABCD Public Schools

Craig Martin Attorney for Parents and Student

Mary Ellen Sowyrda Attorney for ABCD Public Schools

The official record of the hearing consists of documents submitted by the Parents and marked as exhibits P-1 through P-134; documents submitted by the ABCD Public Schools (ABCD) and marked as exhibits S-1 through S-45; and approximately two days of recorded oral testimony and argument. As agreed by the parties, written closing arguments were due and received on March 15, 2010, and the record closed on that date.

I. INTRODUCTION

This is a transition services dispute regarding an 11 th grade student who has consistently attained superior grades in regular education classes at ABCD High School. The dispute hinges on different visions of who Student is, what are his educational needs, and how those needs should be met pursuant to state and federal special education law. Although not directly relevant to this inquiry, there is also an underlying dispute as to what is in his educational best interests. There is an honest difference of opinion between the parties regarding these different perspectives, and there is credible evidentiary support, including expert opinion, for each party’s point of view. I do not doubt that each party is advocating for what they believe to be best for Student.

Parents take the position that their son, who carries a principal diagnosis of Asperger’s Disorder, is immature, dependent, and generally unable to function in the community without continual monitoring and cuing. Parents understand that their son has achieved good grades at school, but view these as principally the result of excellent memorization abilities, rather than an ability to think for himself. Student has no friends outside of school. Parents are concerned that they are getting older and cannot take care of their son indefinitely.

Because Parents believe that their son has made little, if any, progress regarding his social skills, pragmatic language, and independent living skills deficits and because they believe that substantial progress in these areas is critical to their son’s welfare after high school, Parents urge that ABCD be required to place their son in a substantially-separate program for students on the autism spectrum where he can receive intensive, year-round services designed to remediate these deficits. Their principal desire is that Student, eventually, be able to live, go to school and work independently. Parents’ experts—a neuropsychologist, who has evaluated Student, monitored his progress, and met with ABCD staff, and another expert, who has substantial knowledge and experience in educating students with Asperger’s—both support Parents’ requested relief as necessary for Student to make sufficient progress to address effectively his transition deficits.

ABCD takes the position that Student is best served by his continuing to attend public high school, with additional, specialized services outside of the classroom that are designed to help him gain skills necessary to live, attend post-secondary school and work independently. ABCD emphasizes that Student’s strength is that he is an exceptionally good student and is motivated to learn, with the result that it is important that he continue to have access to academic instruction at his grade level at ABCD High School. ABCD also notes that Student has, over the course of his high school career, made progress regarding his social and pragmatic skills, and that Student can make significant further progress with the additional services proposed in the current IEP. This position is supported by ABCD’s autism expert, teachers, and school adjustment counselor.

For reasons explained below, I am in general agreement with ABCD’s position, although additional transition services must be added in order for Student to receive an appropriate education.

II. ISSUES

The issues to be decided in this case are the following:

1. Is the individualized education program (IEP) most recently proposed by ABCD reasonably calculated to provide Student with a free appropriate public education in the least restrictive environment?

2. If not, can additions or other modifications be made to the IEP in order to satisfy this standard?

3. If not, would an out-of-district placement (that would include low student-teacher ratios, small class size, qualified staff, a community of peers, and year-round services) satisfy this standard?3

III. FACTS

Student Profile

Student is a 17-year-old, 11 th grader, who lives with his Parents in ABCD, MA. He participates fully in the regular education high school program offered by ABCD Public Schools. He does so without any modifications to the curriculum, and without accommodations or special education services within the classroom. Testimony of Father; exhibits S-1, P-127.

Standardized test scores indicate that Student’s intelligence may be in the average to high average range. He has consistently achieved exceptionally high grades, with a current weighted class rank of six out of 114 students. Student has a strong interest in listening to National Public Radio (NPR), for pleasure he reads Shakespeare’s plays as well as Curious George books and the Hardy Boys series, and he has independently attained an extensive knowledge of and fascination with primates. Testimony of Father, Student, McGrale Maher, Fredriksen, ABCD chemistry, math and English teachers; exhibits P-117, P-118, S-8, S-21.

Student has been diagnosed with Asperger’s Disorder, and he has occasional difficulties with emotional regulation, particularly within the home. Student has deficits regarding social skills, activities of daily living, language pragmatics, and social maturity. Student has no friends outside of school, does not appear to value friendships with peers, and is comforted by stuffed monkeys that he sometimes carries with him. He typically requires cuing and supervision to participate in new activities (for example, miniature golfing) in the community. He has difficulty with unstructured conversation, he is not able to use public transportation independently. He has weaknesses regarding personal hygiene. He has limited willingness to take risks. And he remains highly dependent upon his Parents when outside the high school environment. Student has also been the victim of a number of incidents of teasing and bullying at the high school. Testimony of Father, McGrale Maher, Fredriksen, ABCD school adjustment counselor; exhibit P-117, P-118.

Vision Statements

Student’s vision statement, which is included within the current IEP, is as follows:

In 5 years, I want to be living independently and have a job. I want to be able to support myself so that I don’t have to relie [sic] on my parents to support me. Hopefully one day I can find a job with monkeys or apes involved and haven’t yet decided on a career choice. I don’t plan on attending college just to spend $30,000, if I go it will be because I plan to get a job that requires it.

Exhibit S-1.

Parents’ vision statement within the current IEP made clear that their first priority is for their son to obtain the “daily living skills, social skills, and vocational skills necessary” for him to be a “happy, productive and successful member of society.” Parents believe that once their son has obtained these skills and if he wishes to further his education by attending college, he would then be ready to do so. Parents also emphasized the importance of their son’s having friends, and his finding meaningful and enjoyable ways to spend his free time. Exhibit S-1.

Current IEP

ABCD’s currently proposed IEP (for the period 2/11/10 to 2/11/11) provides Student with the following direct special education and related services:

· Counseling for a half hour, once each week, by the school adjustment counselor;

· Life skills taught at home, two hours per week, by a CCBC mentor;4

· Generalization of skills taught at home, two hours per week, by the CCBC therapist; and

· Social skills and pragmatic language development, three eight-week sessions for one hour each week, taught by a special education teacher and assistant.

In addition, the IEP calls for the following consultation services:

· Consultation regarding social skills and pragmatics, one hour per month, by the autism specialist/special education teacher; and

· Consultation to home and school, one hour per month, by the CCBC therapist.

The IEP provides an extended day to Student, reflecting the above-referenced after-school social skills group and home-based services. The IEP also provides transition planning and services that include attending a community college course, with support, during the summer of 2010. Exhibits P-127, S-1.

Parents have not accepted the home components of this IEP, and therefore the home-based services have not been implemented. Testimony of Cabral, exhibits P-127, S-1.

Recent Educational Evaluations and Reports

A report of a May 28, 2008 pediatric developmental/behavioral follow-up visit by Jeannine Audet, MD, concluded that Student should have a program that can help him to develop his vocational, self-help, community, and social skills. A letter from Dr. Audet, dated June 20, 2008, To Whom It May Concern, noted Student’s cognitive, self-help, social, and emotional deficits, and concluded that if Student does not make substantial progress in these areas, it would be unlikely that he would be able to live and work independently. Exhibits P-112, P-113.

On September 18, 2008, Student underwent an independent speech-language evaluation by Rachel Bert, MS, CF-SLP, which concluded that although Student demonstrates “superb language skills,” he is “unable to successfully use language to handle difficult situations, make friends, or socialize with peers.” Speech-language services of one hour, three times per week “as tolerated” were recommended. Exhibits P-49, P-121.

On October 14, 2008 and November 25, 2008 (the beginning of Student’s 10 th grade year), Student underwent an adaptive behavior assessment by Nina Pinnock, PhD, BCBA, who is a school psychologist and behavior analyst with The Fernandes Center for Children and Families. Dr. Pinnock administered the Vineland Adaptive Behavior Scale-II, including the Survey Interview Form and Teacher Rating Form. The report stated that Parents and teachers see a very different picture of Student’s adaptive functioning. Within the structured environment of school, his teachers report that he excels, with his English teacher, in particular, considering Student to be gifted. The report noted: “Many universities now support students on the autism spectrum and could support [Student]. Higher level learning would be essential in meeting [Student’s] potential, increase his self esteem, and prevent boredom.” Exhibits P-116, S-30.

Dr. Pinnock’s report further explained that on the other hand, while at home, Student needs help with his daily living needs, and he has deficits in the area of socialization skills. In her report, Dr. Pinnock recommended regular meetings with peers in order to increase socialization skills at home—for example, participation in youth group activities (such as a chess club) and structured play dates at home. Exhibits P-116, S-30.5

An undated vocational rehabilitation assessment of Student was conducted at ABCD’s request by Charles Murphy, MA, CRC, LRC, of MOLIFE, Inc. (Living Independently for Future Endeavors). The assessment found that Student has the skills necessary for a “vocational outcome” and for continued education, but also noted that for obtaining and maintaining employment, the following would be “essential”: “a welcoming communicative environment, minimum job coaching, with the development of natural supports, and written or pictorial task listing.” Exhibit S-22.

On December 11 and 14, 2009 and January 5 and 11, 2010, Jennifer Cabral, MA, of CCBC evaluated Student at the request of ABCD. The evaluation was to determine appropriate services and placement for Student, as well as services for Student’s family, to address his social, emotional, and academic needs. The report found Student to be “exceptionally bright” with the potential to be successful after high school, but in need of counseling and home-based services to develop his social and pragmatic skills, as well as his skills of daily living. The report opined that Student is not in need of an alternate placement outside of ABCD High School. A separate document outlined possible skills that could be learned and activities that could be included within home-based services. Exhibits S-3, S-44.

On January 13, 2009, Jill McGrale Maher, MS, BCBA, who has been retained by Parents, observed Student. She also interviewed Parents and reviewed educational and clinical records. She provided a written consultation report. Her report concluded that although ABCD has provided Student with a “solid foundation in past years,” he currently requires “specialized and comprehensive programming” that is specifically designed for students with Asperger’s Disorder. She made clear in her report and testimony that Student should receive all of his instruction in a substantially-separate program that can provide support and skill development throughout the day and where Student can learn with a peer group that is similar to Student both cognitively and socially. The program should provide explicit instruction regarding social skills, anxiety management, and skill development in the area of executive functioning. Testimony of McGrale Maher; exhibit P-117.

On March 3, 10, and 23, 2009, Student underwent an independent neuropsychological evaluation by Katia Fredriksen, PhD. This evaluation found that Student has average to high average intelligence and “intact skill development across cognitive and academic domains” as reflected in standardized test results. The report also found “reduced social functioning and maturity, fixations, anxiety, diminished behavioral regulation, and challenges related to daily living skills, adaptive functioning, and safety awareness” as reflected in standardized testing, Parents’ and teachers’ reports, and Dr. Fredriksen’s observation of Student during the evaluation. Dr. Fredriksen also wrote that many of Student’s vulnerabilities may not be easily observable within the school setting. Exhibit P-118.

In her report, Dr. Fredriksen concluded, in part, as follows:

[Student] is almost 17 years old, yet he is clearly not on a trajectory to develop the skills necessary to be able to live independently after he graduates from high school. Unless he is provided with programming that places a much greater emphasis on social and adaptive skills development, I must emphasize that [Student] will be at very high risk for failing to develop the capacity to live independently, to form satisfying relationships, or to support himself financially, all of which would significantly reduce his quality of life going forward.

In her report and testimony, Dr. Fredriksen recommended that Student be placed within a substantially-separate, special education program with a low student-teacher ratio and small class size (e.g., 6-8 peers) where the focus and expertise of staff is working with students with autism spectrum diagnoses. Dr. Fredriksen also emphasized the importance of Student’s attending a year-round school placement with a “peer community commensurate to his level of function” so that he will have access to “peers who are similar to himself, as these are the people with whom he is likely to develop lasting friendships.” She also recommended that additional support be provided Student regarding social pragmatics, functional skill building, and pre-vocational training; and behavioral consultation should be provided to Student’s family. Testimony of Fredriksen; exhibit P-118.

A letter from Dr. Fredriksen, dated June 29, 2009, To Parents, reflects her visit to ABCD High School and the League School on behalf of Student. Through her visit to the High School, Dr. Fredriksen observed Student and learned from ABCD staff how they proposed to address his social and functional skills weaknesses. Dr. Fredriksen wrote that she found ABCD’s proposed services to be insufficient. In contrast, she concluded that Student’s “socioemotional and functional/vocational needs would be appropriately met in an alternative setting such as the League School, without sacrificing his academic development, which is important to maintain.” Exhibit P-119.

A letter from Dr. Fredriksen, dated January 29, 2010, To Whom It May Concern, reflects Parents’ and Student’s visit on January 25, 2010 to see Dr. Fredriksen, and her concerns and recommendations as a result. She noted that, consistent with what Parents reported as part of her neuropsychological evaluation (discussed above), Parents indicated that Student “had not developed any friendships and continued to exhibit immature and narrow interests and reduced social communications skills, awareness, and motivation.” Dr. Fredriksen concluded in her letter: “In the absence of significant changes in his service delivery (as detailed in my prior report), [Student] remains at high risk for social isolation, emotional deterioration, and ongoing dependence on his parents as he nears the completion of high school and enters adulthood.” Exhibit P-123.

IV. LEGAL STANDARDS

A. FAPE

It is not disputed that Student is an individual with a disability, falling within the purview of the federal Individuals with Disabilities Education Act (IDEA)6 and the Massachusetts special education statute.7 The IDEA was enacted “to ensure that all children with disabilities have available to them a free appropriate public education [FAPE] that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living.”8 FAPE must be provided in the least restrictive environment.9

The instant dispute focuses on transition services. However, transition services are part of, and not separate from, a school district’s responsibility to provide FAPE and must be considered within the context of a student’s individualized education program (IEP) as a whole.10 I therefore outline below general FAPE standards prior to considering transition services principles in particular.

FAPE is defined by the IDEA to include state educational standards, which may exceed the federal floor .11 The Massachusetts educational standards are found within state statute and state education regulations and include a FAPE requirement.12

FAPE does not require ABCD Public Schools to provide special education and related services that will maximize Student’s educational potential.13 Similarly, the educational services need not be “the only appropriate choice, or the choice of certain selected experts, or the child’s parents’ first choice, or even the best choice.”14

The Supreme Court has explained that for purposes of providing FAPE under the IDEA, “Congress sought primarily to make public education available to handicapped children and to make such access meaningful.”15 As explained in more detail below, this overarching principle of “meaningful” access to public education may be understood, more specifically, as requiring a school district to develop an individualized education program or IEP that allows the student the opportunity to make meaningful and effective progress commensurate with his educational potential.

Student’s right to FAPE, including compliance with both state and federal standards, is assured through the development and implementation of the IEP.16 Each IEP must be “custom tailored to address the handicapped child’s unique needs in a way reasonably calculated to enable the child to receive educational benefits.”17

An IEP must be developed which is “reasonably calculated to enable the child to receive educational benefits.”18 And, “meaningful progress … is the hallmark of educational benefit under the [federal] statute.”19 The IDEA further requires that special education and related services be designed to result in progress that is “effective”.20

Massachusetts special education regulations similarly provide that specially designed instruction and related services described within the IEP must be sufficient “to enable the student to progress effectively in the content areas of the general curriculum.”21 And, ABCD’s proposed IEPs for Student are framed in terms of his receiving specially designed instruction and accommodations “necessary for the student to make effective progress.” Exhibits S-1, P-127. Massachusetts also requires that the special education services be designed to develop a student’s educational potential.22

The Supreme Court has further clarified that the “determination of when handicapped children are receiving sufficient educational benefits to satisfy the requirements of the [IDEA] presents a more difficult problem” than a simple recitation of the applicable legal standards.23 This is because “[ i]t is clear that the benefits obtainable by children at one end of the spectrum will differ dramatically from those obtainable by children at the other end, with infinite variations in between .”24 Thus, “levels of progress must be judged with respect to the potential of the particular child.”25

Thus, I conclude that in the instant dispute, Student is entitled to receive special education and related services that are reasonably calculated to allow him to make meaningful and effective progress commensurate with his individual educational potential.

B. Transition Services

For a significant period of time, the IDEA has emphasized the need to provide special education and related services to help students transition successfully from school. In 1984, the Supreme Court noted that in enacting the IDEA, Congress endeavored to enable disabled students to “achieve a reasonable degree of self-sufficiency” and “become productive citizens, contributing to society instead of being forced to remain burdens.”26 And, a principal purpose of the IDEA has been “to ensure that all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to … prepare them for further education, employment, and independent living.”27

In 1990, as part of the process of amending the IDEA, Congress considered whether the IDEA should go further by explicitly addressing a student’s transition needs. In House Report 101–544 , Congress observed that
individuals will move from school into adult life with varying degrees of success. Some will go to college, some will enter vocational training programs, while others will enter the workforce and some will qualify for vocational rehabilitation services. Unfortunately, others will exit our nation’s schools into nothing . Years of special education will be wasted while these individuals languish at home, their ability to become independent and self-sufficient (therefore making a positive contribution to society) placed at significant risk . The Committee sees such an outcome as highly undesirable. Although not fully responsible for ensuring an appropriate entrance into the adult world, school systems must do more to address the transition of special education students into adulthood.28

In response to these concerns, Congress added a requirement to the IDEA that local school districts provide so-called “transition services” and “transition planning”. Later, in its 2004 amendments to the IDEA, Congress amended the “transition services” definition by including a requirement that a school district focus on improving a student’s “academic and functional achievement” for purposes of facilitating the student’s transition. Massachusetts has expanded the federal protections by lowering the age from 16 to 14 years old for beginning transition planning and services.29

The current IDEA makes clear that transition services are to “improv[e] the academic and functional achievement of the [student] to facilitate [his or her] movement from school to post-school activities, including post-secondary education, vocational education, integrated employment (including supported employment), continuing and adult education, adult services, independent living, or community participation.”30

The process for the development of transition services begins with “age appropriate transitional assessments related to training, education, employment, and, where appropriate, independent living skills.”31 These assessments are essential to appropriate transition planning because the school district must develop “appropriate measurable postsecondary goals based upon age appropriate transition assessments.”32 The school district must then provide “transition services (including courses of study) needed to assist the child in reaching those goals.”33

Transition services include “instruction, related services, community experiences, the development of employment and other post-school adult living objectives, and, when appropriate, acquisition of daily living skills and functional vocational evaluation.”34

Transition services must be “based on the individual child’s needs, taking into account the child’s strengths, preferences, and interests” and must be developed through a “results-oriented process.”35

When considering whether a school district’s proposed transition services are sufficient, FAPE principles apply.36 Thus, transition services must be considered “in the aggregate and in light of the child’s overall needs.”37 “The test is whether the IEP, taken in its entirety, is reasonably calculated to enable the particular child to garner educational benefits.”38

When applying these standards in Lessard , the First Circuit considered transition services of “scheduled field trips” and a “wide array of other transition services,” including “six hours of pre-vocational training each week and regular instruction in specific transition-related skills (such as using a telephone, identifying workers in community settings, maintaining proper self-hygiene, and preparing food).” Central to the Court’s determination that the transition services were appropriate was its finding that, as a result of receiving these transition services, “[student’s] transition skills were improving.” Earlier in the Lessard decision, when considering the question of how much progress is necessary to satisfy FAPE requirements, the Court made clear that “ levels of progress must be judged with respect to the potential of the particular child” which, in this case, included the student’s “manifold disabilities and low IQ. ”39

In addition, Congress has noted the importance of providing “effective” services to allow for a student’s “successful” transition to postsecondary activities.40 A number of federal courts as well as the BSEA have considered and affirmed the importance of transition services in allowing a student to be prepared for post-high school education, employment, and independent community living.41

A related Massachusetts regulation requires a school district to make services available to older special education students, as follows:

Programs for older students. The school district shall ensure that options are available for older students, particularly those eligible students of ages 18 through 21 years. Such options shall include continuing education; developing skills to access community services; developing independent living skills; developing skills for self-management of medical needs; and developing skills necessary for seeking, obtaining, and maintaining jobs. . . .42

With the understanding that transition planning and services are considered part of a school district’s FAPE responsibilities (see part IV A, above, for a discussion of FAPE standards), I summarize ABCD’s transition services obligations as follows:

1. ABCD must provide Student with transition services that are necessary to facilitate his successful movement from school to post-school activities, including post-secondary education, vocational education, integrated employment (including supported employment), continuing and adult education, adult services, independent living, or community participation. Transition services include instruction, related services, community experiences, the development of employment and other post-school adult living objectives, and, when appropriate, acquisition of daily living skills and functional vocational evaluation. Transition services must be developed through a results-oriented planning process that takes into account Student’s strengths, preferences, and interests.

2. ABCD must develop appropriate, measurable postsecondary goals for Student. For purposes of developing these goals, ABCD must have conducted age appropriate transitional assessments of Student related to his training, education, employment, and, where appropriate, independent living skills. Transition services must be provided to assist Student to reach these goals.

3. With respect to Student’s progress in learning transition-related skills and reaching his postsecondary goals, ABCD’s transition services must be reasonably calculated to allow Student to make meaningful and effective progress commensurate with his individual educational potential. At the same time, transition services need not maximize Student’s potential; and they need not necessarily be the choice of certain selected experts, Parents’ first choice, or even the best choice.

4. Pursuant to Massachusetts special education regulations, ABCD must ensure that options are available to Student for continuing education, developing skills to access community services, developing independent living skills, developing skills for self-management of medical needs, and developing skills necessary for seeking, obtaining, and maintaining jobs.

I now turn to a discussion of the facts of the instant dispute within the context of these standards.

V. DISCUSSION

Resolution of this dispute requires clarity regarding the extent of Student’s learning and pragmatic deficits, as well as an understanding of his educational strengths. Student’s strengths and weaknesses appear to vary dramatically within different contexts, in part because of the expectations and structures within those contexts. I first consider Student’s strengths and weaknesses within the high school, and then turn to a consideration of Student within the home and community settings.

Three of Student’s teachers from last semester courses (chemistry, math and English) provided detailed, credible testimony regarding Student’s abilities and limitations within their regular education classrooms. And, the school adjustment counselor (whom Student has seen on a regular basis since 9 th grade) and the special education teacher (who co-leads a social pragmatics group that includes Student) added useful information regarding Student’s social and pragmatic skills and his social life at school. Testimony of ABCD chemistry, math and English teachers, ABCD school adjustment counselor, ABCD special education teacher.

The chemistry teacher described Student as within the top 1% of all the students she has taught over her career of teaching for 30 years (and she opined that chemistry is the second-hardest course at ABCD High School). The math teacher described Student as the brightest student he has taught over the course of teaching for five years. The English teacher (who taught Student an honors course) described Student’s motivation as within the top 1% of students she has taught and his overall academic performance within the top 10% during her 15 years of teaching. Testimony of ABCD chemistry, math and English teachers.

Student’s weighted class rank is six out of 114 students. His lowest grade last semester was a 95 (which he received in his honors English course) but this was also the highest grade given in that particular class. His two lowest grades for the period of his freshman year through the present are a 93 and a 94; all other grades are 95 or above. Student receives no accommodation, assistance or modification with respect to his academic work, and there are approximately 20 to 25 students in his classes at the High School. Testimony of Student, ABCD English teacher; exhibits S-8, S-15, S-21, S-23, S-29.

Father testified that Student’s academic success at school is based on his skill of memorizing, and Student himself reported to Jennifer Cabral that he is able to recite back to the teacher what the teacher previously said, but is not able to perform any independent analysis. Father also testified that Student had limited ability even to organize papers alphabetically when he helped out in Father’s business in 9 th grade. Testimony of Father; exhibit S-3.

However, the three teachers’ consistent and credible testimony persuasively rebutted any implication that Student currently has only limited intellectual ability—for example, simply memorizing or reciting what others have said. The teachers made clear through detailed testimony that Student has a strength in synthesizing information into a coherent opinion or presentation and has demonstrated the ability to do independent conceptual analysis and problem solving at a high level of competence. Testimony of ABCD chemistry, math and English teachers; exhibit S-3.

Student testified that he was not motivated to take on additional school work or enroll in more challenging courses. But, there was also ample testimony demonstrating Student’s motivation and enjoyment of learning, his leadership role within the classroom, and the learning that he has done independent of school. Student is consistently prepared for class, he always completes his homework, he is rarely absent from school, he frequently asks questions during class, and he frequently contributes in a positive and appropriate way to class discussion. Testimony of Student, ABCD chemistry, math and English teachers.

In the classroom, Student is confident, mature, and appropriate. This has included, for example, a class presentation that was characterized by poise, in-depth material presented, and appropriate use of humor. He understands and respects class rules and expectations, he socializes appropriately with his peers within the classroom, and he understands humor in the classroom. He has easily and appropriately participated in peer learning—for example, asking questions of his peers when he does not understand something, helping his peers understand a lesson, and collaborating with others within the classroom. He appears to enjoy an informal teaching role. In sum, he has demonstrated no significant deficits with social or language pragmatics in the classroom. Testimony of ABCD chemistry, math and English teachers.

Student’s relative weaknesses within the classroom are that he appears socially awkward at times and sometimes lacks confidence in his social abilities—for example, he will not ask to join others for purposes of working in a small group and instead, always waits to be asked by others, which does occur. Student’s English teacher also testified that sometimes Student shares too much information during her class although when this occurred, she was able to re-direct him. Student’s English teacher further stated that Student has a relative weakness in writing, particularly in creative writing, and he has a relative weakness in spelling which is usually resolved through spell-check on the computer. Testimony of ABCD chemistry, math and English teachers.

Student’s independent learning outside of the classroom is also impressive. This includes many hours of listening to National Public Radio, and reading Shakespeare’s Othello , King Lear , and Macbeth and Melville’s Moby Dick for pleasure. Student also has a fascination with and an in-depth knowledge of primates—for example, at the hearing when asked about this interest, he discussed primates’ comprehension of human language, their aggressiveness in captivity, their assimilation into the wild after captivity, and their endangered status. Testimony of Student, ABCD chemistry, math and English teachers.

As noted above, within the classroom, Student has a relative weakness regarding his social skills. This weakness is usually imperceptible within the classroom but becomes more pronounced at school when Student is outside of the structure and expectations of the classroom. For example, Student has little ability to make “small talk” or other social conversation without the support of a structure (such as a classroom). Related to this weakness is his limited ability to understand non-verbal communication, including difficulty reading social cues. Student also has a relative weakness in listening to and considering the views of others. Testimony of Father, ABCD school adjustment counselor, ABCD autism consultant, ABCD special education teacher; exhibits S-11, S-12.

Notwithstanding these social and pragmatic weaknesses, Student is generally able to function well socially within the 11 th grade at ABCD High School. For example, other students seek him out—for example, to ask him to be part of a small group within the classroom. Other students also initiate discussions or ask Student to join them at other times during the school day—for example, during lunch and other less structured times. Currently, there are approximately six other students with whom Student has a friendly relationship at school. It is also noteworthy that over the course of his high school career, Student has made marked progress regarding his comfort level, ability and willingness to spend time with his peers outside of the classroom, with the result that he spends little time alone at the High School. He has improved his reciprocal conversation skills and become more confident. Testimony of ABCD chemistry, math and English teachers, ABCD school adjustment counselor, ABCD autism consultant , ABCD special education teacher; exhibits S-10, S-11, S-12.

Student has little interest in many things that many of his peers and family members would likely enjoy. This is most apparent within the home and community. For example, his Father has season tickets to Patriot football games, but when Student attends a game, he spends his time reading the football program. As mentioned above, Student has an absorbing infatuation with primates. At home, he obtains information principally from the radio (NPR, in particular) rather than a newspaper or the computer. Testimony of Father, Student

Related to Student’s social skills deficits, immature appearance, atypical interests and difficulty reading body language is a history of being bullied and teased at school. Over the past year or so, there have been approximately six or seven substantial incidents (and more numerous less substantial incidents) that have included other students poking Student, making loud noises in his ear, filling up his water bottle with a foam object, and marking his notebook with pornography. Student also likely has difficulty understanding whether some incidents are actually malicious or are students simply “fooling around” with him. These incidents have been upsetting to Student and his Parents. ABCD has consistently followed up and sought to address and remediate the problem when brought to its attention, but Parents have been dissatisfied regarding the resolution of these issues. Similarly, when he testified, Student was asked what he would like to change about his life, and he mentioned the teasing and bullying. There is no doubt that these unfortunate incidents make the high school experience more onerous for Student and understandably are of substantial concern to Parents. It is equally clear that ABCD has followed through on all reported incidents and made reasonable efforts to address them. Testimony of Father, ABCD school adjustment counselor; exhibits P-67, P-69, P-70, P-71, P-72, P-73, P-74, P-75, P-76, P-77, P-78, S-5, S-6, S-7, S-14, S-20

Since 9 th grade, Student has received weekly counseling from a school adjustment counselor, in part, in order to work on these kinds of issues and concerns and, in general, to address Student’s anxiety, depression, social skills and organization. This school year, the school adjustment counselor has focused on life skills, peer incidents, and social skills. It is unclear how helpful this counseling has been to Student regarding bullying and teasing. Relatively recently, Student has stopped bringing the bullying/teasing matters to the school adjustment counselor’s attention, instead telling his Parents who have then raised the concerns with ABCD staff. By the time that the school adjustment counselor brings up this issue with Student, he has appeared ready to forget about the incident and move on. Testimony of ABCD school adjustment counselor.

Another general weakness across environments is that Student is risk-averse. He has limited interest in or willingness to voluntarily take on new challenges. When asked about the possibility of taking more honors or advanced placement classes, he testified that he preferred not to do so because he did not want to do any more homework. Student also has a weakness in self-determination skills, and is very comfortable relying upon his Parents. He also can, at times, become frustrated or anxious when he is unable to understand something or obtain the correct answer. Father testified (and Parents reported to Dr. Fredriksen) as to Student’s having tantrums when he would throw a toy against the wall at home on these occasions, and scream and swear. Also, Student’s math teacher from last semester testified as to one instance of Student’s demonstrating frustration and anxiety when he made a mistake. At the same time, Student’s teachers testified persuasively that Student has excellent abilities to find out information when he is confused or uncertain, and to make corrections or adjustments as the need arises. Teachers reported little or no stress regarding academics. Testimony of Father, ABCD school adjustment counselor; exhibit P-123.

Within the home and community, Student’s deficits appear more pronounced, and, as noted in Dr. Fredriksen’s neuropsychological report, some of Student’s social, pragmatic and daily living skills deficits may not be easily observable within the school setting. Student’s social relationships at school have not carried over outside of school. As a result, while at home, Student never contacts another student, nor do other students contact him, with the result that outside of the school environment, he is essentially isolated with his family. Student does not participate in any extracurricular activities at school or in the community. Student has demonstrated no interest in developing friendships or going out on a date; and within the home and community environments, there is no one who would be considered a friend. Testimony of Father; exhibit P-118.

Father testified that Student has substantial personal hygiene deficits. These include needing to be on a toilet schedule in the morning before going to school in order to avoid having an accident, needing help cleaning himself after having a loose bowel movement, inability to get all of his teeth clean through brushing, leaving his fly open, and generally not cleaning himself sufficiently. Student has had one toileting accident at school, which occurred in the fall of 2009. With respect to this incident, Student had been able to clean himself and act appropriately to obtain necessary assistance. He calmly reported the incident to the school adjustment counselor and sought her assistance. Mother was called, Student suggested that he remain at school for the rest of the day (another hour or so), and Mother picked up Student at school at the end of the school day. Student’s three teachers who testified, as well as his school adjustment counselor who has worked with him since 9 th grade, testified persuasively that Student’s appearance and hygiene have been normal throughout their time with him at school. Testimony of Father, ABCD school adjustment counselor, ABCD chemistry, math and English teachers.

Student has limited practical or functional skills outside of the school environment. He is not able to use the public transportation system independently and often needs assistance with relatively simple activities. For example, Father testified that on a relatively recent trip with his family, there were many activities that Student could participate in (such as miniature golf) but was either unwilling or unable to do so without cuing from his Parents. Father also testified (or Parents reported to Dr. Fredriksen) that Student is not able to safely cross a street without assistance because he is not always aware of traffic; he has limited awareness of his wardrobe; he has difficulty completing household chores thoroughly; he does not use any kitchen appliances or do any cooking; and he has poor money management skills (for example, he hoards money in different locations in his room and refuses to spend it). Testimony of Father; exhibit P-123.

Parents’ experts characterized Student as having substantial weaknesses in executive planning and organizational abilities. And, Father’s testimony similarly indicated weaknesses in this area—for example, if asked to complete three tasks, only two of them will be done, and during 9 th grade, Student was not able to organize information alphabetically at Father’s workplace. However, Student’s teachers uniformly testified that Student has consistently demonstrated a high level of organization and planning with respect to his school work, and has good time-management skills. They made clear that Student has no weaknesses in these areas with respect to academic work. The ABCD school adjustment counselor, who has been working on these areas with Student, testified that he has improved his organizational skills at school, and the only remaining area to be addressed in this domain is cleaning out his backpack. Testimony of McGrale Maher, Fredriksen, ABCD chemistry, math and English teachers, ABCD school adjustment counselor.

Some of the above-described intellectual and classroom strengths, as well as some of his social immaturity, were demonstrated during Student’s testimony during the evidentiary hearing in the instant dispute. In his testimony, he easily answered questions that might have been a challenge for many regular education 11 th graders. For example, during his testimony, I asked his view of the United States policy regarding Afghanistan, and he quickly provided a detailed and informed opinion. He demonstrated no difficulty moving from one topic to another during his testimony when asked a series of questions by Parents’ attorney and then by ABCD’s attorney, he was always responsive and appropriate to the question asked, he used humor appropriately in his responses, he did all of this with little indication of stress or discomfort, and he appeared to enjoy his role of “teaching” not only the person asking the question, but also the approximately 15 people in the hearing room—in short, he appeared mature, poised, relaxed, and competent. Testimony of Student.43

At the same time, when he testified at the hearing, Student gave the physical appearance of someone younger and less mature than a typical 11 th grader. He prominently placed (and often touched or held) two stuffed monkeys on the table in front of him during his testimony. When, during his testimony, I asked about the monkeys, he responded that it made him feel better to have his stuffed monkeys with him, but that he would never put them on a desk or table at school because he knows that he would be vulnerable to other students if he did so. ABCD teachers and staff confirmed that at school, Student does not dwell on his interest in primates although this interest occasionally is included as part of Student’s conversations. Testimony of Student.

I find the evidence to be persuasive that Student has exceptional intellectual and academic abilities and that he is highly motivated to learn. These abilities and interests are not limited to simply memorizing information or reciting others’ views, as Student has an excellent ability to synthesizes information easily, engage in a high level of conceptual analysis and problem-solving, and understand and communicate complex issues. He not only enjoys the learning process, but he also is quite good at (and appears to enjoy) explaining or presenting information to adults and peers. Student has no substantial social or pragmatic deficits within the classroom environment, and easily and appropriately engages in collaborative learning. Testimony of ABCD chemistry teacher, ABCD math teacher, ABCD English teacher.

At the same time, I find that Student has substantial social skills deficits in such basic areas as social conversations in unstructured settings and reading body language, he has substantial daily living skills deficits in such basic areas as personal hygiene, money, household skills, personal appearance, personal safety, and public transportation, and he has limited ability or willingness to take on risks or new challenges independently. He needs assistance to learn to make decisions for himself. Student also appears to have anxiety and frustration at certain times—for example, at home when he is unable to understand something or complete his homework successfully. All of this substantially limits Student’s ability to be successful and independent after high school, including post-secondary education, employment and living apart from his family. Testimony of Father, ABCD school adjustment counselor, ABCD autism consultant.

It is not disputed that at the present time, Student would be unable to attend a course at a community college, for example, without assistance from someone who would take him to the class and pick him up at the end of the class; but he would likely need no assistance within the classroom or in completing homework. He currently would not be able to live independently. His limited social skills would also likely make it difficult, if not impossible, for Student to be successful in the workplace, given the high correlation between adequate social skills and success at work. When he testified, Student expressed no interest in working. He also indicated he would like to attend college only if it served a specific purpose, such as being necessary to obtain a job that he would like. Testimony of Student, Father, McGrale Maher, ABCD school adjustment counselor; exhibit P-117

I also find, based on uncontroverted testimony of the school adjustment counselor, that within the school environment, Student has become more comfortable, confident and generally more mature socially since first attending high school. For example, as noted above, Student has been spending more time with his peers, has a number of students with whom he is friendly, and easily engages in reciprocal social interactions, as compared to 9 th and 10 th grades. He has also improved his organizational skills. He currently appears to have few, if any, deficits at the High School regarding personal appearance and hygiene. Student’s progress in these areas has occurred with only a limited amount of instruction and counseling. Similarly, I find, based on the uncontroverted testimony of Father, that within the home and community settings, Student has made little progress regarding his social and pragmatic skills, and skills of daily living. The recent evaluations and reports summarized earlier in this Decision fully support Student’s need for effective transition services in these areas. Testimony of Father, ABCD school adjustment counselor; exhibits P-49, P-110, P-112, P-113, P-116, P-117, P-118, P-121, S-10, S-11, S-22, S-30, S-37.

The parties do not appear to dispute that Student needs to participate in a rigorous academic program. There is also no dispute that Student has social, pragmatic and life skills deficits. The parties agree that to address these transition deficits, Student needs explicit instruction and practice developing his social and pragmatic skills, as well as his skills of daily living.

The dispute centers around whether Student can make sufficient progress in these areas through services added to the regular education high school academic program at ABCD High School, or whether, instead, Student must be placed at a substantially-separate school that is focused exclusively on the needs of students on the autism spectrum, for purposes of receiving intensive instruction regarding social and pragmatic skills and skills of daily living. Parents and their experts rejected as insufficient any solution other than a substantially-separate program dedicated to working only with students on the autism spectrum, and ABCD viewed such a placement as unnecessary and, ultimately, counterproductive to Student’s educational and personal development.

As referenced earlier in this Decision, ABCD has recently amended is currently-proposed IEP (for the period 2/10 through 2/11) to provide the following proposed services to address Student’s needs in these areas:

· The school adjustment counselor has provided in the past, and would continue to provide under this IEP, counseling for a half hour, once each week to address social and emotional issues and any other concerns that may come up for Student.

· Beginning in the fall and continuing under this IEP, ABCD is providing a social skills and pragmatic language development group for three eight-week sessions for one hour each week. The group is co-lead by a special education teacher and an assistant, and is overseen and supervised by ABCD’s autism consultant. The consultant also co-led the first 8-week session in the fall.

· ABCD has proposed but Parents have not accepted (and therefore this service has not begun) teaching of life skills at home and in the community for two hours per week by the CCBC mentor. The specifics of these services would be developed through initial meetings between the mentor, Parents and Student so that issues would be addressed that are of most concern to Parents and Student. Possible issues to be addressed, which include learning to use public transportation, other daily living skills, and recreation opportunities in the community, are outlined within a written plan developed by CCBC and provided to Parents.

· ABCD has also proposed but Parents have not accepted family therapy by a masters-level CCBC therapist. This is intended to help Student generalize the skills that he would be learning with the CCBC mentor.

· ABCD has proposed that Student attend a community college course, with support, during the summer of 2010 in order to begin to understand and try out the experience of attending college.

Exhibits P-127, S-1.

After careful consideration of the evidence and arguments of the parties and for the reasons explained below, I am persuaded that these proposed services are not entirely sufficient in order for Student to receive FAPE. However, with certain revisions and additions (nearly all of which were suggested or agreed to by ABCD witnesses during their testimony), I find, for reasons explained below, that Student can receive appropriate transition services while continuing to attend ABCD High School and therefore need not attend a substantially-separate program in order to receive FAPE. I will consider each of ABCD’s proposed services and whether modification is needed.

As noted above, Student has been receiving for several years a half-hour per week of counseling from ABCD’s school adjustment counselor to address life skills, and social and emotional issues. Undoubtedly, this is a useful resource for Student. The school adjustment counselor is an experienced and dedicated professional who seems to have a good relationship with Student. I find that this service should continue as an on-going support to Student, but there should be no expectation that this service, alone, is sufficient for Student to make effective progress in the areas of social and pragmatic skills weakness that need to be addressed through the IEP.

In the fall of 2009, Student began participating in a weekly, one-hour social pragmatics group with two 9 th graders who are on the autism spectrum and three other students who do not have a diagnosis on the autism spectrum but have weaknesses in the social skills area. Although Student testified that he has found this group boring and not useful, the staff leaders testified persuasively regarding the appropriateness of this group in beginning to further remediate Student’s social skills deficits, as well as providing a group of peers with whom he appears to enjoy spending time. Within this group process, Student has made gains in listening more carefully to others and in social reciprocity, and he has become more open, reflective and comfortable with his peers within this group. Testimony of ABCD autism consultant, ABCD special education teacher; exhibit S-17

The group will continue to work on issues that are central to Student’s social and pragmatic weaknesses, including reading body language and understanding motivation or intent—currently, Student has difficulty understanding whether others are bullying him or simply fooling around. This group is well-staffed, particularly with the support and assistance of ABCD’s autism consultant, who provides essential expertise and guidance to the leaders and who now knows the group well, having co-lead the group herself during the first eight-week session. Also, this group appears to have an appropriate peer group for Student, which is essential, since Student needs to be able to learn and practice social/pragmatic skills within an environment where others have similar needs, thereby limiting the risk of embarrassment or criticism from typical peers. I find that this group provides and is likely to continue to provide essential services for addressing Student’s social and pragmatic deficits. Testimony of ABCD autism consultant, ABCD special education teacher.

However, I do not believe that this group alone (or in combination with the individual counseling discussed above) is sufficient for Student for purposes of learning these skills. When asked during her testimony, ABCD’s autism consultant agreed that more time in a social and pragmatic skills group should be included in Student’s schedule. She suggested that Student join a currently on-going group that is led by the ABCD school adjustment counselor. I agree with this suggestion, and add that ABCD’s autism consultant may need to spend additional time with the school adjustment counselor (and possibly with this group itself) to ensure that the group is appropriate and useful for Student regarding the development of his social and pragmatic skills. Testimony of ABCD autism consultant.

In addition, Student requires social skills work to continue during the summer in order to avoid regression. This was suggested in the testimony of the ABCD special education teacher who co-leads Student’s social and pragmatic skills group. She opined that it may be useful for her group to meet during the summer. During testimony, the ABCD Director of Special Education Services agreed that summer services are appropriate for Student to address this area of deficit and suggested that services be provided as part of or consistent with ABCD’s existing summer services of three hours per week for five weeks during the summer. I agree with this suggestion. Testimony of ABCD special education teacher, ABCD director of special education.

ABCD has engaged CCBC for the purpose of providing home-based and community services to Student. (The CCBC services are described within ABCD’s proposed IEP. But, Parents have not accepted these services, and therefore they have not begun.) CCBC has the advantage of being well-equipped to provide any number of a wide-range of individual services to Student in the home and community. These services can be tailored to the particular interests and needs of Student through a process that would take place in the home with Student and his Parents, and could be further modified as necessary over time. Importantly, these services can focus on Student’s daily living skills deficits, including his ability to go into the community, as well as his social skills. These services could also be used to support Student’s attending community college (for example, during this summer or during the next school year), as well as supporting an employment internship in the community. These services are an important part of ABCD’s proposed services for Student, but I find that they require adjustment in two respects. Testimony of Cabral, ABCD school adjustment counselor; exhibits S-3, S-44.

First, those providing the direct services and supervision at CCBC do not appear to have a high level of expertise in providing direct instruction to students diagnosed with Asperger’s Disorder. ABCD’s autism consultant testified that it would be important to add autism expertise to this component, and she is available to do so. She suggested beginning with an hour per week of her time, with this amount decreasing over time. In her testimony, the ABCD Special Education Director agreed that the autism consultant should spend time doing this. I agree with this proposal. Testimony of Cabral, ABCD autism consultant, ABCD director of special education.

Second, the amount of time (two hours per week) is insufficient. For example, ABCD’s proposed transition services include Student’s enrolling in a community college course. But, Student requires someone to take Student to the class, wait for Student, and then return with him to his home. The CCBC mentor would likely be used to assist Student in this regard. But, even this one activity will likely take two hours or more per week. Based upon the issues that will need to be addressed through this service, I find that the service must be increased to four hours per week, and may need further adjustment over time. Testimony of ABCD autism consultant, Cabral.

The other CCBC service proposed within the IEP is family therapy for two hours per week. However, as Jennifer Cabral from CCBC testified, this service is dependent upon Parents’ being interested and willing to engage in this therapy, and they have made clear that they have no such interest. There is no reason to believe that Parents will change their opinion, at least in the short term. Accordingly, I find that this service may be deleted from the IEP, at least until such time as Parents become interested in participating in family therapy. The result is that, essentially, the two hours of CCBC time allocated for this purpose is transferred to the CCBC mentor’s time, so that there are four hours per week of services from the CCBC mentor. Ms. Cabral testified that CCBC could make this switch. Testimony of Cabral

As is apparent from the above discussion, in considering the appropriateness of ABCD’s proposed services and in making modifications to those services as discussed above, I have relied upon the testimony of ABCD’s autism consultant. ABCD’s autism consultant has substantial experience and expertise in understanding the educational needs of students with a diagnosis on the autism spectrum (including working with more than 100 students with Asperger’s Disorder), and in the design and implementation of educational services for these students. The expertise and experience of this consultant, her participation in ABCD’s development and implementation of Student’s transition services, her on-going consultation to ABCD staff and providers, and her willingness and ability to re-consider and adjust services in light of new information are essential ingredients to ABCD’s providing appropriate services to address Student’s social, pragmatic and daily living skill deficits. I found her testimony to be candid, credible, and ultimately persuasive that with the above-described adjustments, ABCD’s proposed transition services are appropriate because, through these services, Student is likely to make effective and meaningful progress in developing skills necessary for him to transition successfully to post-school activities, including further education and, eventually, to independent living and employment.

I now turn more specifically to the question of whether Student should be enrolled in an out-of-district placement at a substantially-separate school. Parents’ only requested relief (and the only relief considered appropriate by their two experts) was that I order ABCD to place Student at a substantially-separate school specifically for students on the autism spectrum so that Student could receive intensive, comprehensive instruction and practice in the areas of social and pragmatic skills and activities of daily living. Parents requested (and their experts supported their request) that such a placement provide all of Student’s education through low student-teacher ratios, small class size, qualified staff, a community of peers, and year-round services.44

I find that Parents did not meet their burden of persuasion that Student requires such a placement in order to receive FAPE for two reasons. First, for reasons explained above, Student’s transition services needs can be met within the public school setting and within the home and community, which are less restrictive settings than a substantially-separate school for students on the autism spectrum. Second, for reasons explained below, I find that there is insufficient evidence supporting the need for or appropriateness of the placement proposed by Parents.

Understandably, Parents are deeply concerned that some day they will not be able to have their son live with them or be there to watch out for him and support him. Father’s recent medical issues have only heightened this concern. Parents are appropriately committed to doing what they can so that Student gains the skills necessary to be successful and independent after high school. They also, for good reason, believe that Student has made limited gains in these areas in the home and community, and that little time is left before the completion of Student’s 12 th grade year.

Parents have engaged two knowledgeable experts to guide their decision-making. Dr. Fredriksen has conducted a neuropsychological evaluation, has followed Student’s progress, has spoken with ABCD staff, and, at Parents’ request, has visited two potential private placements for Student. In addition, Ms. McGrale Maher has extensive knowledge and experience working with students on the autism spectrum, including Asperger’s Disorder, and she has spent several hours interviewing Student and his Parents, and additional time reviewing records, for purposes of advising Parents. Both experts testified and completed written reports that are in evidence. They strongly supported Parents’ position that a substantially-separate placement at this time is essential for Student to gain the necessary skills to be live, work and go to school independently, and for this reason, took the position that ABCD’s proposed IEP neither was appropriate as written nor could be made appropriate through modification or adjustment of services. Testimony of Fredriksen, McGrale Maher; exhibits P-117, P-118.

However, I did not find these experts to be persuasive. I discount the expert opinions of both Dr. Fredriksen and Ms. McGrale Maher principally because I believe that they have underestimated Student’s strengths and overestimated his deficits.

For example, both experts concluded that in order for Student to learn effectively, he should receive all of his instruction within small classes (for example, no more than eight students) that have a high teacher-student ratio. Following the advice of their experts, Parents amended their hearing request to specifically include these requirements as part of a substantially-separate placement for Student. Additionally, Ms. McGrale Maher wrote that the traditional lecture format of instruction in high school may not be appropriate for Student because of processing speed and working memory deficits. Testimony of Fredriksen, McGrale Maher; exhibits P-117, P-118.

Yet, as discussed above, the overwhelming and unrebutted evidence from those who have taught Student on a daily basis is that he has excelled in all of his regular education academic courses throughout his high school career, and none of these courses would meet the standards proposed by Parents’ experts as necessary for Student to learn effectively. Testimony of ABCD chemistry, math teacher and English teachers; exhibits S-8.

Similarly, Parents’ experts viewed it important that Student attend only small classes taught by persons knowledge about autism spectrum disorders so that Student could be taught social and pragmatic skills throughout the curriculum. But, again as discussed above, the overwhelming and unrebutted evidence was that Student has only minimal weaknesses regarding social and pragmatic skills within the classroom, and these weaknesses do not interfere with his fully participating and making educational progress. Testimony of Fredriksen, McGrale Maher, ABCD chemistry, math teacher and English teachers.

It is also noteworthy that of the two experts, it is Ms. McGrale Maher who has substantial expertise regarding education of students with Asperger’s Disorder. More than Dr. Fredriksen, it would be Ms. McGrale Maher who would be expected to provide authoritative recommendations regarding what is minimally necessary in order to instruct Student successfully regarding his social and pragmatic skills and daily living skills. Yet, Ms. McGrale Maher’s credibility is substantially undercut by her misunderstanding of Student and his strengths and deficits. Testimony of McGrale Maher; exhibits P-117, P-124 (resume).

This misunderstanding is most clearly seen by comparing parts of her written report with the testimony and reports of ABCD teachers and staff. In her written report, Ms. Mahler McGrale made the following statements regarding Student:

1. Student is not able to independently complete daily routines and he cannot independently maneuver his way through a day.

2. The lack of support and skill development throughout the school day has resulted in a complete lack of interaction with peers.

3. Student’s asking questions or voicing concerns in class has historically not yielded positive results from teaching staff. It has most often resulted in social rejection and over shunning from his peers.

4. Student has not acquired advanced academic skills, but just demonstrated his advanced skills with rote memorization.

5. Student will not initiate interaction with peers, and when he does, he is not successful. Staff have reported increased concern with [his] increased isolation, lack of social progress, not being liked, becoming increasingly anxious, and withdrawn.

6. Student has continued to fail socially.

Exhibit P-117.

ABCD requested that nine of Student’s teachers and the school adjustment counselor respond to these views. They uniformly, emphatically and persuasively disagreed, based upon what they have observed of Student on a daily basis at school. Exhibit S-9. Perhaps the most complete response (but typical of the responses generally) was from Student’s chemistry teacher from last semester, who wrote, in part, as follows:

1. “I have seen not evidence to support the claim that [Student] is not able to independently complete daily routines. He has always appeared composed and in control of his activities. He never arrived late to class and was always prepared to leave on time. He was always organized and demonstrated excellent time management and was always aware of where he should be going next.”

2. “I have never observed [Student] having issues interacting with his peers. He worked seamlessly with several lab partners throughout the semester in chemistry class. He was always cooperative and polite with others and was able to bring many fine qualities to the partnerships. For example, sometimes he assumed a leadership role and made suggestions about what steps should be followed next when his partner was a bit unsure of the procedure. At other times he invited suggestions and asked others to contribute to the formation of a plan of actions. When his usual lab partner was absent, several other students would always invite him, unprovoked by me, to join them, showing that he was accepted well by others. On all occasions, he interacted will with others and did not appear to have any social difficulties. He was not ostracized or teased in any way by his fellow students. Rather, they seemed to be friendly toward him—and he toward them.”

3. “[Student] never displayed a reluctance to ask question in class. He would raise his hand, as others did, in order to ask any question for clarification. He would feel comfortable enough with the process to ask follow-up questions as needed and to offer comments. None of the students made any comments to me or him about his asking questions or doing well on assignments. If anything, I think they admired his accomplishments.”

4. “[Student] has demonstrated to me on several occasions that he has advanced academic skills that far surpass rote memorization.” For example, Student independently taught himself material from the textbook during the teacher’s extended absence, he frequently was the only class member able to answer extra credit questions that required analysis beyond what was covered in class, and during class discussions he, at times, has volunteered a solution strategy not discussed in class.”

5. “[Student] did not appear withdrawn, anxious or uncomfortable with his peers in my class. He smiled, talked with and interacted with his classmates, just as everyone else did. He was not isolated. In fact, I think his peers routinely included him in their conversations and class activities—and [Student] seemed to initiate these conversations appropriately as well. They certainly did not ignore or isolate him. In lab, he frequently demonstrated real leadership skills when that was necessary—and genuine social group skills when the situation called for that.”

6. “Again, I saw no evidence that [Student] was isolated or without companionship. Students talked with him and worked with him and everything appeared to be typical. Further, his peers seemed to respect and value his opinions and actions. His interactions with others seemed to mirror what I see in most other students.”

The chemistry teacher testified at hearing regarding many of these same points, and I found her to be a highly experienced teacher, and a credible, candid, and reliable witness. Testimony of ABCD chemistry teacher; exhibit S-9.

Ms. McGrale Maher’s lack of understanding of Student at school is perhaps best explained by considering her sources of information, which were an observation of Student at home, interview of Parents, and review of reports and records. There is no doubt that in certain situations—for example, where there are low expectations of Student and where there is little, if any, structure—Student may appear less mature, less capable, and more socially isolated. There is also no dispute that Student has substantial social and pragmatic skill deficits that must be addressed, as discussed above. However, recommending an appropriate education solution for addressing these deficits first requires an accurate understanding of Student’s range of strengths and weaknesses, which Ms. McGrale Maher failed to attain. For these reasons, I did not find her recommendations persuasive.

Dr. Fredriksen achieved a more complete and accurate understanding of Student through her neuropsychological evaluation, visit to ABCD High School where she observed Student and talked with staff, and her follow-up visits to the home and discussions with Parents and Student. Nevertheless, her opinion of Student is formed predominantly from standardized testing and information from Parents and Student, and this view is an incomplete picture of Student’s intellectual, social and organizational skills. For example, Student reported to Dr. Fredriksen that his honors English class involves “a lot of writing and analysis that I don’t understand” yet he attained the highest grade in the class and is considered by his teacher to be within the top 10% of all students she has taught over the past 15 years. Similarly, Dr. Fredriksen reported that Student’s choice of reading is immature, which is true in part, but she apparently did not learn that Student reads Shakespeare for pleasure. She stated that Student’s “fixation with monkeys remains prevalent” and yet there are teachers and staff at the high school who have worked with Student on a daily basis and were not aware of his interest in monkeys. Dr. Fredriksen did not appear to have a full appreciation for Student’s pragmatic and social skills within the classroom and at school generally. Dr. Fredriksen noted Parents’ report that Student struggles with time management and is unable to reliably and independently calculate how much time he needs to get ready prior to an outing, and yet Dr. Fredriksen was apparently unaware that Student’s teachers have found Student to be organized and to manage time appropriately at school. Testimony of Fredriksen, ABCD chemistry, math teacher and English teachers; exhibit P-118.

It is fair to conclude that at school, Student has not only learned a great deal academically, but he has also acquired many functional and adaptive skills, as well as the ability to interact effectively and appropriately with both peers and adults, all with the benefit of limited instruction in these areas. It also seems likely that Parents do not fully recognize (and Student does not acknowledge) what he has been able to learn and accomplish in school both socially and academically. This has led Dr. Fredriksen to have an incomplete understanding of Student, which likely influenced her conclusion that sufficient social skills learning could only occur within a comprehensive program with only students on the autism spectrum.

In addition, I note that Dr. Fredriksen has limited experience and expertise regarding the design and implementation of effective instruction for students with Asperger’s Disorder. Testimony of Fredriksen; exhibit P-124 (resume). As compared, for example, to ABCD’s autism consultant, Ms. Fredriksen has limited ability to make expert educational recommendations in this area.

Finally, I note that neither Ms. McGrale Maher nor Dr. Fredriksen appeared to consider sufficiently the marked disadvantages to Student’s enrolling in a substantially-separate program that would confine Student to interacting with students on the autism spectrum and that would not include the course work of a regular education high school. Student’s strength is his academic motivation and exceptional intelligence, and his ability to flourish within a rigorous intellectual environment such as an honors English class and a chemistry class that may be the second-most-difficult course at the High School. Student has risen to the challenge of the course work in every subject that he has taken, and he has demonstrated the ability not only to learn from his teachers but, importantly, from his peers. One can easily imagine that successful and rewarding employment for Student would necessarily include a relatively high level of intellectual challenge. This lends importance to Student’s continuing to be placed with intelligent peers in an academic environment where he can continue to be challenged. Testimony of ABCD autism consultant.

There is no doubt that Student’s actions and presentation depend significantly upon his environment. Student conscientiously tries to live up to the expectations of the academic and social environment in which he is placed. A substantially-separate program, such as the League School, would likely provide only limited academic challenge for Student, and that challenge would likely be restricted to individual instruction where the materials could be tailored to his intellectual level. This may result in Student receiving much of his most meaningful instruction in a 1:1 setting. It is simply impossible for this structure to re-create the intellectual stimulation, challenge and opportunity for learning with bright students that exists in a regular education high school program. Testimony of ABCD chemistry, math teacher and English teachers, ABCD autism consultant, ABCD special education teacher, Fredriksen.

For all of these reasons, I was not persuaded by Dr. Fredriksen’s and Ms. McGrale Maher’s recommendation that Student should be placed in (and can only be successful in learning social and pragmatic skills and daily living skills within) a substantially-separate program for students on the autism spectrum.

Also, I note that in their closing argument, Parents cite to and rely upon a previous BSEA transition services appeal involving the town of Dracut. In their closing argument, Parents have sought relief comparable to what was ordered in that case.45 The cases are similar in that each involved a high school student (or recent high school graduate) with a primary diagnosis of Asperger’s Disorder. In each case, the student sought appropriate transition services to address deficits in pragmatic language, social skills and daily living skills. However, the cases are readily distinguished on several levels.

First, unlike Dracut, ABCD conducted a series of appropriate evaluations upon which transition objectives and services could be based. Second, unlike Dracut, ABCD engaged a knowledgeable and experienced autism consultant who was able to assist ABCD to understand Student’s needs, develop appropriate services to respond to those needs, and consult to and assist with the implementation of those services. Third, ABCD engaged an outside provider (CCBC) to provide appropriate home-based and community-based services to develop Student’s daily living skills and social skills within those contexts, and which can support education and employment opportunities in the community. Dracut did not propose home- or community-based services. Fourth, unlike Dracut, ABCD recognized Student’s deficits regarding social and pragmatic language and developed an appropriate skills group to provide specialized instruction in those areas. Finally, in the instant dispute, Student’s transition needs are less extensive than the transition needs of the student in the Dracut appeal.

Finally, I will offer several recommendations or observations but do not include them in the required relief as they are unnecessary for the IEP to be reasonably calculated to provide FAPE.

First, it is strongly recommended that ABCD closely monitor the effectiveness of the above-described services and make adjustments as necessary. Assuming that Student graduates at the end of the next school year, he has a relatively brief period of time to receive transition services, and he needs sufficiently intensive assistance in order to make substantial progress during this time period. This leaves little room for error if his long-standing deficits are to be addressed appropriately prior to his entering the next phase of his life.

Second, as noted by a number of witnesses, Student may benefit from participating in extracurricular activities, particularly if the activities cater to Student’s intellectual strengths and, at the same time, provide new challenges and social opportunities. With sufficient support and encouragement, Student might, for example, join the math club or the chess club. There may be other clubs or activities that provide similar opportunities that Student could choose from—perhaps even a club or activity that would relate his interest in primates or what he learns from NPR. Also, Student loves to play basketball—apparently not competitively but rather for the enjoyment of the physical activity. It may be that other physical activities, particularly with compatible peers, might provide new challenges and opportunities. ABCD staff have already encouraged Student in this regard (for example, Student’s math teacher suggested to Student that he join the math club), and I strongly support their continuing to do so. Student’s CCBC mentor may also be helpful in this regard. For this to be successful, it will likely be essential that Parents also support Student’s participation in these kinds of activities.

I further suggest to Parents and ABCD staff that Student be encouraged to enroll in honors or advanced placement courses at the high school, so long as the ABCD teachers and staff believe that the course would be appropriate for Student. (It is likely that ABCD teachers would enthusiastically support placement in honors or advanced placement classes for 12 th grade. See testimony of ABCD English teacher; exhibit S-9.) Understandably, Student indicated a reluctance to do so, believing that it would require more homework. But, as Student’s honors English teacher testified, an honors or advanced placement course does not necessarily mean more homework, but it does mean that the students go deeper into the subject and learn more. She also noted, importantly, that the students who take these courses tend to be more like Student (as compared to courses at the college prep level) with respect to intelligence, motivation, and love of learning. It seems likely that Student would benefit from having more opportunities to spend time with peers who share these qualities and who may be more understanding and respectful of Student’s social idiosyncrasies.

In sum, it will be important for all of the adults in Student’s life to encourage his participation in new opportunities and challenges, particularly those that coincide with his exceptional intellect, love of learning, and personal interests.

In conclusion, I find that ABCD’s proposed transition services for Student, when modified as specified above, satisfy the legal standards (relative to transition planning and services) that are outlined above in part IVB of this Decision. Through these services, Student is likely to make meaningful and effective progress (commensurate with his learning potential) in developing skills that will facilitate a successful transition to post-school activities, including further education, independent living, and employment. I further find that ABCD’s proposed IEP, with modifications specified above, is reasonably calculated to provide Student with a free appropriate public education in the least restrictive environment, and that ABCD’s modified IEP and transition services comply with the related state education regulations pertaining to older students referenced in part IVB above.

VI. ORDER

ABCD’s currently-proposed IEP is not reasonably calculated to provide Student with a free appropriate public education (FAPE) in the least restrictive environment. ABCD shall immediately amend its IEP as follows, and with these amendments, I find the IEP to provide FAPE:

1. An additional social skills group shall be added to the IEP. This may be the group currently being led by the ABCD school adjustment counselor. The ABCD autism consultant may need to spend time consulting to the school adjustment counselor or social skills group to ensure its appropriateness for Student.

2. Additional time of the ABCD’s autism consultant shall be added to the IEP for the purpose of consulting with the CCBC home-based services. The consultant’s time should be front-loaded, so that initially she will be spending approximately one hour per week consulting to CCBC, with this amount decreasing over time.

3. The two hours of home-based services from the CCBC therapist may be deleted from the IEP. The two hours of home-based services from the CCBC mentor shall be increased to four hours per week.

4. Extended school year services shall be added to the IEP, consistent with the testimony of the ABCD Director of Special Education (as described in part V, above).

ABCD need not provide Student with placement in a substantially-separate program in order for Student to receive FAPE.

By the Hearing Officer,

William Crane

Dated: March 26, 2010

COMMONWEALTH OF MASSACHUSETTS

BUREAU OF SPECIAL EDUCATION APPEALS

THE BUREAU’S DECISION, INCLUDING RIGHTS OF APPEAL

Effect of the Decision

20 U.S.C. s. 1415(i)(1)(B) requires that a decision of the Bureau of Special Education Appeals be final and subject to no further agency review. Accordingly, the Bureau cannot permit motions to reconsider or to re-open a Bureau decision once it is issued. Bureau decisions are final decisions subject only to judicial review.

Except as set forth below, the final decision of the Bureau must be implemented immediately. Pursuant to M.G.L. c. 30A, s. 14(3), appeal of the decision does not operate as a stay. Rather, a party seeking to stay the decision of the Bureau must obtain such stay from the court having jurisdiction over the party’s appeal.

Under the provisions of 20 U.S.C. s. 1415(j), “unless the State or local education agency and the parents otherwise agree, the child shall remain in the then-current educational placement,” during the pendency of any judicial appeal of the Bureau decision, unless the child is seeking initial admission to a public school, in which case “with the consent of the parents, the child shall be placed in the public school program”. Therefore, where the Bureau has ordered the public school to place the child in a new placement, and the parents or guardian agree with that order, the public school shall immediately implement the placement ordered by the Bureau. School Committee of Burlington, v. Massachusetts Department of Education , 471 U.S. 359 (1985). Otherwise, a party seeking to change the child’s placement during the pendency of judicial proceedings must seek a preliminary injunction ordering such a change in placement from the court having jurisdiction over the appeal. Honig v. Doe , 484 U.S. 305 (1988); Doe v. Brookline , 722 F.2d 910 (1st Cir. 1983).

Compliance

A party contending that a Bureau of Special Education Appeals decision is not being implemented may file a motion with the Bureau contending that the decision is not being implemented and setting out the areas of non-compliance. The Hearing Officer may convene a hearing at which the scope of the inquiry shall be limited to the facts on the issue of compliance, facts of such a nature as to excuse performance, and facts bearing on a remedy. Upon a finding of non-compliance, the Hearing Officer may fashion appropriate relief, including referral of the matter to the Legal Office of the Department of Education or other office for appropriate enforcement action. 603 CMR 28.08(6)(b).

Rights of Appeal

Any party aggrieved by a decision of the Bureau of Special Education Appeals may file a complaint in the state court of competent jurisdiction or in the District Court of the United States for Massachusetts, for review of the Bureau decision. 20 U.S.C. s. 1415(i)(2).

An appeal of a Bureau decision to state superior court or to federal district court must be filed within ninety (90) days from the date of the decision. 20 U.S.C. s. 1415(i)(2)(B).

Confidentiality

In order to preserve the confidentiality of the student involved in these proceedings, when an appeal is taken to superior court or to federal district court, the parties are strongly urged to file the complaint without identifying the true name of the parents or the child, and to move that all exhibits, including the transcript of the hearing before the Bureau of Special Education Appeals, be impounded by the court. See Webster Grove School District v. Pulitzer Publishing Company , 898 F.2d 1371 (8th Cir. 1990). If the appealing party does not seek to impound the documents, the Bureau of Special Education Appeals, through the Attorney General’s Office, may move to impound the documents.

Record of the Hearing

The Bureau of Special Education Appeals will provide an electronic verbatim record of the hearing to any party, free of charge, upon receipt of a written request. Pursuant to federal law, upon receipt of a written request from any party, the Bureau of Special Education Appeals will arrange for and provide a certified written transcription of the entire proceedings by a certified court reporter, free of charge.


1

“Jack Doe” and “ABCD Public Schools” are pseudonyms chosen by the Hearing Officer to protect Student’s privacy. Teachers, staff and consultants of the ABCD Public Schools have not been identified by name, again to protect Student’s privacy.


2

CCBC is a private organization that provides an array of counseling, therapy and community support services. ABCD Public Schools has contracted with CCBC to provide home- and community-based services to Student. Testimony of Cabral; exhibit S-3.


3

In their written closing argument, Parents took the position that ABCD has not provided appropriate transition services and that Student’s eligibility therefore should be extended two years beyond high school, presumably for purposes of compensating Student. Parents’ hearing request does not include a claim for compensatory services or for compensatory relief. Until the written closing argument, Parents’ attorney was clear that this case focused exclusively upon a claim for prospective services. Accordingly, I find that any compensatory claims (and any compensatory relief, such as continuing eligibility) are beyond the scope of the hearing. See 20 USC § 1415 (f)(3)(B) (“The party requesting the due process hearing shall not be allowed to raise issues at the due process hearing that were not raised in the notice filed under subsection (b)(7), unless the other party agrees otherwise.”)


4

For a description of CCBC, see footnote 2, above.


5

In November 2007 (the beginning of Student’s 9 th grade year), Dr. Pinnock and a psychology intern (Travis Cos, MS) previously conducted a vocational interest educational evaluation of Student, finding that Student would benefit from further development of Student’s coping, adaptive, and social skills, as well as finding ways to reduce emotional distress and perfectionist tendencies. Exhibits P-110, S-37.


6

20 USC 1400 et seq .


7

MGL c. 71B.


8

20 USC 1400(d)(1)(A). See also 20 USC 1412(a)(1)(A).


9

The phrase “least restrictive environment” means that, to the maximum extent appropriate for the particular student, the educational services are to be provided with other students who do not have a disability. 20 USC 1400(d)(1)(A); 20 USC 1412(a)(1)(A); 20 USC 1412(a)(5)(A); MGL c. 71B, ss. 2, 3; 34 CFR 300.114(a)(2(i) ; 603 CMR 28.06(2)(c).


10

Lessard v. Wilton Lyndeborough Cooperative School Dist . , 518 F.3d 18, 28-30 (1 st Cir. 2008) (applying FAPE standards to determine whether transition services were appropriate).


11

20 USC 1401(9)(b); Winkelman v. Parma City School Dist., 127 S.Ct. 1994, 2000-2001 (2007) (“education must … meet the standards of the State educational agency); Mr. I. v. Maine School Administrative District No. 55, 480 F.3d 1 , 11 (1 st Cir. 2007) (state may “ calibrate its own educational standards, provided it does not set them below the minimum level prescribed by the [IDEA]”); Town of Burlington v. Department of Education , 736 F.2d 773, 792 (1 st Cir. 1984) (states are “free to exceed, both substantively and procedurally, the protection and services to be provided to its disabled children”).


12

MGL c. 71B, ss. 1, 2, 3.


13

Bd. of Educ. of the Hendrick Hudson Central Sch. Dist. v. Rowley, 458 U.S. 176, 197, n.21 (1982) (“ Whatever Congress meant by an “appropriate” education, it is clear that it did not mean a potential-maximizing education.”).


14

G.D. v. Westmoreland Sch. Dist., 930 F.2d 942, 948 (1 st Cir. 1991). See also Lt. T.B. ex rel. N.B. v. Warwick Sch. Com., 361 F.3d 80, 83 (1 st Cir. 2004) (“IDEA does not require a public school to provide what is best for a special needs child, only that it provide an IEP that is ‘reasonably calculated’ to provide an ‘appropriate’ education as defined in federal and state law.”).


15

Irving Independent School District v. Tatro , 468 U.S. 883, 891 (1984) (internal quotations omitted), quoting Rowley, 458 U.S. at 192.


16

20 USC 1414(d)(1)(A)(i)(I)-(III); Honig v. Doe, 484 U.S. 305, 311-12 (1988) ; Bd. of Educ. of the Hendrick Hudson Central Sch. Dist. v. Rowley, 458 U.S. 176, 182 (1982).


17

Lenn v. Portland Sch. Comm., 998 F.2d 1083, 1086 (1 st Cir.1993) (internal quotations and citations omitted). See also 20 USC 1400(d)(1)(A) (IDEA enacted “to ensure that all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living”); 20 USC 1401(9), (29) ( “free appropriate public education” encompasses “special education and related services,” including “specially designed instruction, at no cost to Parents, to meet the unique needs of a child with a disability”); Honig v. DOE , 484 U.S. 305, 311 (1988) (FAPE must be tailored “to each child’s unique needs”); Lessard v. Wilton Lyndeborough Cooperative School Dist. , 518 F.3d 18, 23 (1 st Cir. 2008) (noting the school district’s “ obligation to devise a custom-tailored IEP”).


18

Rowley , 458 U.S. at 207, quoted in Lessard v. Wilton-Lyndeborough Coop. School Dist . , 518 F.3d 18, 27 (1 st Cir. 2008) (1 st Cir. 2010) .


19

DB v. Sutton, 07-cv-40191-FDS (D.Mass. 2009). See also Lenn v. Portland Sch. Comm., 998 F.2d 1083, 1090 (1 st Cir.1993) (requiring that at a minimum the school district must provide student with “a meaningful, beneficial educational opportunity”), quoting Town of Burlington v. Dep’t of Educ ., 736 F.2d 773, 789 (1st Cir. 1984), aff’d 471 U.S. 359 (1985).


20

20 USC 1400(d)(4) (purposes of this title are . . . to assess, and ensure the effectiveness of , efforts to educate children with disabilities” (emphasis added); North Reading School Committee v. Bureau of Special Education Appeals, 480 F.Supp.2d 479, 489 (D.Mass. 2007 ) (educational program “must be reasonably calculated to provide effective results and demonstrable improvement in the various educational and personal skills identified as special needs”), quoting Lenn v. Portland Sch. Comm., 998 F.2d 1083, 1090 (1 st Cir. 1993) and Town of Burlington v. Dep’t of Educ., 736 F.2d 773, 788 (1 st Cir. 1984), aff’d 471 U.S. 359, 105 S.Ct. 1996, 85 L.Ed.2d 385 (1985).


21

602 CMR 28.05(4)(b) (“The Team shall carefully consider the general curriculum, the learning standards of the Massachusetts Curriculum Frameworks, the curriculum of the district, and shall include specially designed instruction or related services in the IEP designed to enable the student to progress effectively in the content areas of the general curriculum.”). See also 603 CMR 28.02(9) ( “ An eligible student shall have the right to receive special education and any related services that are necessary for the student to benefit from special education or that are necessary for the student to access the general curriculum.”).


22

MGL c. 71B, s. 1 ( term “special education” defined to mean “educational programs and assignments including, special classes and programs or services designed to develop the educational potential of children with disabilities.”); 603 CMR 28.01(3) ( purpose of regulations as “to ensure that eligible Massachusetts students receive special education services designed to develop the student’s individual educational potential.”).


23

Rowley , 458 U.S. at 202.


24

Id .


25

Lessard v. Wilton Lyndeborough Cooperative School Dist. , 518 F.3d 18, 29 (1 st Cir. 2008) (“levels of progress must be judged with respect to the potential of the particular child. So here: while the reported progress is modest by most standards, it is reasonable in the context of Stephanie’s manifold disabilities and low IQ [citation omitted]”). See also Hunt v. Bureau of Special Education Appeals , 109 LRP 55771, CA No. 08-10790-RGS (D.Mass. 2009) (“School districts provide a FAPE by designing and implementing an IEP ‘reasonably calculated’ to insure that the child receives meaningful ‘educational benefits’ consistent with the child’s learning potential” citing Rowley ); 603 CMR 28.02(17) (“ Progress effectively in the general education program shall mean to make documented growth in the acquisition of knowledge and skills, including social/emotional development, within the general education program, with or without accommodations, according to chronological age and developmental expectations, the individual educational potential of the student, and the learning standards set forth in the Massachusetts Curriculum Frameworks and the curriculum of the district.”)


26

Rowley , 458 U.S. at 201, n.23. See also Deal v. Hamilton County Bd. of Educ ., 392 F.3d 840, 864 (6th Cir. 2004) (“At the very least, the intent of Congress appears to have been to require a program providing a meaningful educational benefit towards the goal of self-sufficiency, especially where self-sufficiency is a realistic goal for a particular child.”).


27

20 U.S.C. § 1400(d)(1)(A) (the 2004 amendments to the IDEA added the phrase “further education”). See also 20 USC 1412(a)(1)(A).


28

H.R.Rep. No. 101-544, 101st Cong., 2d Sess. 9, reprinted in 1990 U.S.Code Cong. & Admin. News 1723, 1731-33 (emphasis supplied), quoted in part in Todd D. by Robert D. v. Andrews , 933 F.2d 1576, n.2 (11 th Cir. 1991).


29

Section 2 of chapter 71B of the Massachusetts General Laws was amended by Chapter 285 of the Acts of 2008 to require that beginning at age 14, or sooner if determined appropriate by the IEP Team, school age children with disabilities are entitled to transition services and measurable postsecondary goals, as provided under the IDEA.


30

See 20 U.S.C. § 1401(34), which provides the following definition of transition services:

The term “transition services” means a coordinated set of activities for a child with a disability that—
(A) is designed to be within a results-oriented process, that is focused on improving the academic and functional achievement of the child with a disability to facilitate the child’s movement from school to post-school activities, including post-secondary education, vocational education, integrated employment (including supported employment), continuing and adult education, adult services, independent living, or community participation;

(B) is based on the individual child’s needs, taking into account the child’s strengths, preferences, and interests; and

(C) includes instruction, related services, community experiences, the development of employment and other post-school adult living objectives, and, when appropriate, acquisition of daily living skills and functional vocational evaluation.

See also 24 C.F.R. § 300.43 (providing a similar definition of transition services).


31

See 20 USC § 1414 (d)(1)(A)(i), which provides, in relevant part, as follows:

The term “individualized education program” or “IEP” means a written statement for each child with a disability that is developed, reviewed, and revised in accordance with this section and that includes …
(VIII) beginning not later than the first IEP to be in effect when the child is 16, and updated annually thereafter–                (aa) appropriate measurable postsecondary goals based upon age appropriate transition assessments related to training, education, employment, and, where appropriate, independent living skills;                (bb) the transition services (including courses of study) needed to assist the child in reaching those goals ….

See also 34 CFR §300.320(b) (providing similar requirements).


32

20 USC § 1414 (d)(1)(A)(i)(VIII)(aa). See also 34 CFR §300.320(b).


33

20 USC § 1414 (d)(1)(A)(i)(VIII)(bb). See also 34 CFR §300.320(b).


34

20 U.S.C. § 1401(34). See also 24 C.F.R. § 300.43.


35

20 U.S.C. § 1401(34). See also 24 C.F.R. § 300.43


36

Lessard v. Wilton Lyndeborough Cooperative School Dist . , 518 F.3d 18, 28-30 (1 st Cir. 2008) (applying FAPE standards to determine whether transition services are appropriate).


37

Id . at 30.


38

Id .


39

Id . at 29-30.


40

20 USC § 1400(c)(14) (“providing effective transition services to promote successful post-school employment or education is an important measure of accountability for children with disabilities”).


41

See Yankton School Dist. v. Schramm , 93 F.3d 1369, n.6 (8 th Cir. 1996) (“ A very bright, disciplined, and determined student, Tracy appears to be headed for college. Preparing disabled students for postsecondary education is one of the reasons for transition services under the IDEA. Under the statute, her success in high school, due in part to the special education she receives, should not prevent her from receiving whatever transition services she may need to be equally successful in college.”); Elizabeth M. v. William S. Hart Union High School Dist . , 2003 WL 25514791, *4 ( C.D. Cal. 2003 (“adequate high school education is inextricably linked to a successful transition to post-secondary education”) ; Kevin T. v. Elmhurst Community School Dist. No. 205 , 2002 WL 433061, *12 ( N.D.Ill. 2002) (transition services are “[t]o ensure that disabled students can adequately function in society after graduation”); J.B. v. Killingly Board of Education, 990 F.Supp. 57 (D.CT 1997) (student “could receive instruction in community living and social skills, including daily living skills, appropriate behavior, socialization, and working skills, as part of his transition services”); Yankton School District v. Schramm , 900 F.Supp. 1182 (D.S.D. 1995) (“Transition services are ‘aimed at preparing students (soon to leave school) for employment, postsecondary education, vocational training, continuing and adult education, adult services, independent living, or community participation.’”) (emphasis in original), aff’d 93 F.3d 1369 (8 th Cir. 1996); In Re: Natick Public Schools , BSEA No. 09-7499, 110 LRP 9730 (SEA MA 2010) (requiring school district to reimburse parents for one year of residential transition services); In Re: Marlborough Public Schools a nd Dearborn Academy , BSEA No. 09-2610, 15 MSER 113, 109 LRP 22393 (SEA MA 2009) (finding that student received timely, comprehensive group and individual transitional services); In Re: Dracut Public Schools , BSEA # 08-5330, 15 MSER 78, 52 IDELR 85, 109 LRP 19689 (SEA MA 2009) (requiring two years of compensatory transition services) (collecting cases at n. 30 and accompanying text).


42

603 CMR 28.06(4).


43

The three ABCD teachers testified that Student’s testimony was marked by substantially greater immaturity and less confidence and poise than they consistently observe in the classroom. Testimony of ABCD chemistry, math and English teachers.


44

Within their requested relief in their amended hearing request, Parents did not seek placement at an identified private school, although Student has been accepted at the League School and placement there is supported by Dr. Fredriksen and Parents. During the hearing, Parents’ attorney agreed that I need not determine the appropriateness of a placement at the League School. Testimony of Fredriksen; exhibits P-126, P-130.


45

In Re: Dracut Public Schools , BSEA # 08-5330, 15 MSER 78, 52 IDELR 85, 109 LRP 19689 (SEA MA 2009).


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