Kay v Amherst Public Schools – BSEA # 05-5930



<br /> Kay v Amherst Public Schools – BSEA # 05-5930<br />

COMMONWEALTH OF MASSACHUSETTS

BUREAU OF SPECIAL EDUCATION APPEALS

In re: Kay & Amherst Public Schools

BSEA #05-5930

DECISION

This decision is rendered 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 ch. 71B), the state Administrative Procedure Act (MGL ch. 30A) and the regulations promulgated under these statutes. A hearing on the above-named case was held on March 24, 29, and 31, and April 3, 2006 at Catuogno’s Reporting Service in Worcester, Massachusetts before Hearing Officer Sandra Sherwood.1 At the request of the parties, the record remained open until April 19, 2006 for receipt of written closing arguments.

Those present (in person or by telephone) for all or part of the proceedings were:

Parents Parents of Kay

Derek Beaulieu Attorney for Parents

Sara Robinson Director, Robin Crest Center for Children

Laurie Cecchi Occupational Therapist, Director of Children’s Therapy Center of the Pioneer Valley and The Center for Sensory Training and Research

Regina Tate Attorney for Amherst Public Schools

Maria Geryk PPS Director, Amherst Public Schools

JoAnn Smith Special Education Administrator, Amherst’s Elementary Schools

Jeanne White Special Education Administrator, Amherst Public Middle Schools

Judith Souweine Consulting Psychologist

Steven Bengis Executive Director and Founder, New England Adolescent Research Institute

Brent Nielsen Program Coordinator, Building Blocks Program, Amherst Public Schools

Heather Bish Special Education Teacher, Building Blocks Program, Amherst Public Schools

Fran Kelly Clinical Director, Poet Seat School; Consultant to Building Blocks

Elizabeth Blumgarten Program Director, Poet Seat School

ISSUES

1. Whether Kay’s primary disability affecting her behavior is autism (including a sensory integration deficit) or an emotional disturbance?

2. Whether the Poet Seat School (Poet Seat), a special education day school for children with emotional and behavioral disabilities, located within the Greenfield Public School, and Amherst Public School’s (Amherst) proposed March 24, 2004 – January 6, 2005 IEP calling for Kay’s placement at Poet Seat, were reasonably calculated to provide Kay with a free and appropriate public education (FAPE)? If not,

3. Whether the New England Adolescent Research Institute, (NEARI), a Massachusetts licensed special education private school for students with emotional disabilities, and Amherst’s proposed February 27, 2006 – February 26, 2007 IEP calling for an educational placement at NEARI, are reasonably calculated to provide Kay with FAPE? If not,

4. Whether the Robin Crest Center for Children (Robin Crest), a private day school for children with special needs, not Chapter 766 approved, located in Leverett, Massachusetts, has provided Kay with FAPE, and if so, whether Amherst should provide for Kay’s current education at Robin Crest, and reimburse Kay’s parents (Parents) for their out of pocket tuition and transportation expenses since Kay’s enrollment in May of 2005?

POSITION OF THE PARTIES

Parents assert that Kay’s primary disability is autism and sensory integration deficits, and that she requires a quiet setting with a flexible, positive reinforcing environment. They assert that while in Amherst’s Building Blocks Program located at Amherst’s Crocker Farm Elementary School, Kay could not handle the large number of children and the strict behavioral approaches, and that she responded by exhibiting violent and out-of-control behavior. Parents assert that Amherst wrongly interpreted this behavior to be an indication of an emotional disturbance requiring an educational placement for emotionally disturbed children. They assert that Poet Seat and NEARI are inappropriate for Kay, for they are designed for emotionally disturbed children, offer sterile environments, and rely on negative behavioral programs. In contrast, Kay is flourishing at Robin Crest. With few exceptions, she has exhibited no violent behaviors, she is calm and well-balanced, and has made academic gains. Parents should be reimbursed for their out-of-pocket expenses for Kay’s Robin Crest placement, and further, should continue her education at Robin Crest for the duration of Kay’s current IEP.

Amherst asserts that Kay’s primary disability is her emotional disability, not her diagnosis of mild autism. Amherst asserts that Poet Seat as well as NEARI can address Kay’s multiple disabilities, and that they therefore offer her FAPE. Amherst asserts that Robin Crest fails to address Kay’s social and emotional needs, and is therefore not providing Kay with FAPE. Parents should not be reimbursed for expenses, and the NEARI program should be deemed the current FAPE.

STATEMENT OF THE FACTS

1. Kay is a 14 year-old young girl carrying a long-standing diagnosis of Chronic Post Traumatic Stress Disorder (PTSD), Reactive Attachment Disorder (RAD), and as of 2002, a diagnosis of Mild Autism. (S34, P18). Her cognitive skills were reported at the low-average to borderline range in 2001, and at the low-average range in 2003. Her language skills are approximately in her age range in most areas, however, she lacks the higher-level language skills, such as categorizing, and identifying related items. She can make inferences, given multiple choices, but organizing a spontaneous verbal response can be challenging. Her pragmatic language skills are significantly below age level, but with scaffolding and structure, she is able to interact with peers. Her social skills are significantly below grade level; she relies on adult support throughout her school day. Her academic skills appear to be several grades below level. (S54, 55, 56, P2, 16, 17).

2. Kay was born in Russia and at 12 months of age, Parents adopted her and brought her to the United States. Within three months of this move, and through her toddler years, Kay underwent four surgeries to repair abnormalities on her hand and foot. Her PTSD resulted from this. (S55, P16). She has a long history of violent behaviors and fantasies. She has seen several psychiatrists and in her earlier years was treated with medication trials of Paxil, Tenex, and Risperdal, and has received homeopathic as well as neuro-feedback treatments. A neurological evaluation ruled out seizures as the basis for her explosive behaviors. (S55, P16, S56, P17).

3. Kay attended Amherst’s Wildwood Elementary School as a special needs student through her third grade. (S55, P16). At the end of her second grade, Dr. Whelan conducted a neuropsychological evaluation of Kay. He reported that her cognitive functions were in the low average – borderline range, though the subtests were highly variable. He reported that she had diffuse bilateral cerebral dysfunction delays in fine motor output, in language, in nonverbal processing, and in recall. He recommended mental health interventions as well as speech/language, occupational therapy, social skills, and academics interventions. (S56, P17).

4. Due to her physical aggression towards peers and teachers in her third grade, she attended her fourth grade (2002 – 2003) at Amherst’s Building Blocks, (a substantially separate therapeutic special education program), where she made excellent gains in her behavioral control. (S55, P16).

5. Because Kay’s Building Blocks experience was so successful, the TEAM decided that her fifth grade placement should be in an autism program that afforded her more inclusion opportunities. Thus, for the first semester of Kay’s fifth grade (September – December of 2003), she attended Amherst’s Wildwood School (Wildwood). (S1, Smith).

In part, because Kay continued her violent fantasies, on September 27, 2003 Dr. Schumm conducted a neuropsychological evaluation to assess Kay’s thought processes. Dr. Schumm’s evaluation report included a Rorschach Projective Test. Though Kay’s responses were limited, in the evaluator’s opinion, her responses still lent useful information. Dr. Schumm stated:

Several of Kay’s responses contained violence. She actually stopped herself the first time. When asked to continue, she replied, “No, I can’t, because it’s violent, and that’s not appropriate for school.” When encouraged to continue, that this was a different situation, she readily re-engaged in describing her thoughts. She did not seem at all disturbed by the content but, rather, told what she saw in a matter-of-fact manner.

While Kay shows flexibility to shift her mind set, she has little ability to plan her behavior. She is able to monitor her behavior, and interrupt responses according to social context, but she is not always able to inhibit them ahead of time. Violent impulses, then, may be acted upon unchecked until it is too late. Though she may have learned not to hit people or her pets, she may not generalize this rule to animals in nature. She needs external organization, as she is not effectively initiating strategies to organize her tasks. The fact that Kay is doing as well as she is, is a tribute to her home and school environment, where she is nurtured, structured, and cued to make wise choices. The care that she is given is reflected in her likeability and charm.

There was no sign of a thought disorder … Her thinking was logical and organized. …The issue of violent fantasies and behavior is likely related to her complex history. In addition to Reactive Attachment Disorder, she has a history of trauma associated with multiple hospitalizations and surgery as a toddler. She experienced insult to her sense of control over her body, at a time when mastery and a developing cohesiveness to her sense of self was so important. Further, it was without the comfort of a strong primary attachment relationship, of which other children are capable. Even without Reactive Attachment Disorder, she had been in her adoptive family less than six months when she had her first surgery. Unfortunately, her autism contributes to continued preoccupation with a narrow interest, and hers is violence. However, she can be deterred, with much redirection. She will continue to need a very structured environment, with close supervision, for her safety as well as for others.

Dr. Schumm recommended a continued structured small classroom with high staff to student ratio. Further, among other things, she recommended that Kay be provided opportunity to expand her writing to include nonviolent subjects, social skills training, support for making friends, redirection as preoccupation with violence occurs, supervision at all times with animals and with other children, and DMH support such as respite for the family. (S55, P16).

During this first semester of her fifth grade, Kay frequently expressed a desire to be in the therapeutic class rather than the more integrated resource room. Her Wildwood experience was successful for the first month or so, however, things deteriorated, and it ultimately was not successful. She drew illustrations depicting her trying to kill her resource room teacher. (Smith).

6. In December of this fifth grade year (2003), the TEAM convened and determined that she should return to the more self-contained setting at Building Blocks. (S54, P2).2 Again, this program has self-contained therapeutic classrooms for students with emotional and behavioral needs, grades kindergarten through six. It offers a high level of structure, low student to teacher ratio, therapeutic supports and a contingency-based behavior management system where students earn points each day to achieve higher levels with more privileges. The school psychologist (Dr. Carlos Turriago), provides individual and group counseling, social skills groups, crisis intervention, and case management with outside providers. The staff is trained to address therapeutic needs. The paraprofessionals provide therapeutic services, helping the students process their troubling behaviors. Thus, the program is structured, but allows flexibility to address emotional needs. In addition to the academic and therapeutic services, Kay was also provided sensory work with the OT/Sped staff, and speech/social language services with the LSH staff. She was provided sensory diet activities and provided frequent sensory breaks between academic expectations. Students are integrated with the regular education students for music, art and PE classes as well as community activities. The setting offers a natural, well-lit, quiet environment; the floors are rugged and there are lots of windows. (Nielsen, P10).

7. Kay remained at Building Blocks for the first semester of her sixth grade, however she had a different teacher. Her class consisted of two girls and four boys – all with diagnoses of emotional disabilities, and some with secondary autism spectrum disorders.

Kay started off this school year with difficulty, for she was presented with a new teacher, Heather Bish, without any forewarning or transitioning. This immediately angered her. (S53). Further, according to Mother, Kay does not bond with young female teachers. (S53). In addition, Dr. Turriago and Parents started the year off with difficulty, for Parents felt their input was not welcome. (Mother). At first, Kay was able to handle recess, cafeteria, etc., and she did well in an integrated music class and a separate physical education class. However, this did not last. (Nielsen, Bish). Despite daily opportunities, Kay rarely achieved sufficient points to achieve the levels necessary for more independence. (Nielsen). By the end of September, she had threatened to kill herself. (P7). She continued to write and verbalize violent fantasies, and when angry, this impeded her learning. (Nielsen). On October 27, 2004, Kay pulled a fire alarm, and made general threats about killing a student. She also became teary and was immediately apologetic. She told Dr. Turriago that she did this because she was feeling upset, for she felt excluded by two of her classmates, and so she ran back to the building and pulled the fire alarm. She stated that she would never do it again, that she would try other responses to feelings of upset and anger. (S28, 29, 31, 32, 33). Despite Amherst’s adding the services of an autism consultant, on October 30, 2004 Parents rejected the Building Blocks placement as well as the added services. (S36). Kay continued, however, to attend the program. On November 9, 2004, she stood on a table and threatened to throw the chair at the teacher. (S27).

8. Because of these escalating behaviors and threats of killing herself and others, Kay underwent several evaluations.

· On October 15, 20054, Dr. Carlos Turriago conducted a Functional Behavioral Assessment and thereafter reported his findings and recommendation for a specific Behavioral Management Plan. He targeted behaviors regarding refusal to do school work, verbal profanities/screaming and physical threats, and statements about self-injury. He stated that it was difficult to understand the antecedents to her behavior, however, he described the behaviors as occurring in the classroom, while engaged in academic work, during transitions, and when upset and angry. In so doing, he described the extensive and intensive nature of Kay’s behavioral outbursts, using verbal profanities and screaming (“holy shit”, “holy fuck”, “god damnit”, “bitch”, “bastard”), making physical threats, making statements about self-injury with a plan, and refusing to do school work. (S57, P9).

· On October 21, 2004, Dr. Justine McCarthy-Lenz conducted a psychiatric evaluation of Kay. (She had previously evaluated her on April 20, 1999.) During that evaluation session, Kay stated that she thinks about violent things on a regular basis, and that she thinks about shooting someone, identifying a specific movie actress who she would shoot if she could. Dr. McCarthy-Lenz stated that Kay’s “cognitive functions are grossly intact, there is no evidence of psychosis, intelligence appears to be grossly intact; insight into the impact of her behavior on others seems to exist, but her ability to comprehend on an emotional level, and therefore care, does not.” She agreed with Mother’s interpretation that violent fantasies and violent activity increase as a result of emotional regression in the context of stressful situation where she feels out of control. She acknowledged that Kay’s escalated behaviors would be in part due to her having a new teacher and two new paras this year. Also, puberty may be a factor. She recommended a retrial of medication such a Risperidone. (This prescription was not filled.) (S34, P18).

9. In November, Amherst curtailed Kay’s mainstreaming experiences, due to the fire alarm incident. She in fact performed better in this more restricted, quieter setting, though when incidences occurred, they were more intense. (Nielsen). In fact, on December 7, 2004, Kay brought a knife to school in her knapsack, and when her teacher, Ms. Bish, discovered it and asked Kay why she had it, Kay told her that she wanted to kill Ms. Bish with it. Later in the day, after Ms. Bish told her that she was not upset with her but that she was worried about her, and Ms. Bish said that she didn’t think Kay was really going to hurt her, Kay responded “I was going to stab you. I wanted to kill you today. I hate school.” When Mr. Nielsen discussed this incident with Kay, she told him that she had waited until her father went out to warm up the car and her brother was in the other room to slip the knife into her bag. She had been thinking about killing someone for a long time and today she finally felt ready to kill someone. Later, while in time out, she stated that the next day she was going to sneak some matches to set somebody on fire and burn down the school. (S25, 26, Bish, Nielsen). As of December 8, 2004, in response to the knife incident, Amherst suspended Kay for five days.

10. On December 9, 2004, after Kay threatened her teacher with a knife, Dr. McCarthy-Lenz updated her evaluation of Kay. She concluded that Kay’s escalation toward acting on her threats of violence by bringing a knife to school had created an untenable situation at school at that time. She again recommended medication (Risperidone), stating “Kay’s ongoing morbid preoccupation which is ego syntonic has not yet been aggressively addressed through medication.” She recommended that Kay not return to school at that time, but attend the partial hospital program at Baystate Medical Center for further psychiatric, family and educational evaluation and treatment recommendations. (S21).

11. The TEAM met on December 13, 2004 to discuss Dr. McCarthy-Lenz’ evaluation and recommendation for a partial hospitalization. (S17). Parents disagreed with her recommendation for partial hospitalization, given Kay’s reaction to institutional settings. They also chose not to give the recommended medication. (S20, P21). Parents decided to home school Kay until the parties could locate an appropriate educational placement. (S18). On January 6, 2005, the TEAM reconvened and developed an IEP calling for a day school placement. The parties agreed that Kay required this day school placement, for she required a small group with heavier therapeutic support, a high degree of structure, increased access to immediate therapeutic intervention (such as DBT, corrective training, self soothing strategies), and a less stimulating environment, away from the general education population. In Dr. Fran Kelly’s opinion, her current (Building Blocks) environment was too stimulating, and she was scared and experiencing increased difficulty engaging in the setting. In determining these needs, the TEAM noted her relative academic strengths, her at-or-near grade level receptive language skills in one:one situations, her strengths in executive functioning skills, persevering in testing situations, her desire to be a part of “the group”, her interest in establishing peer relationships in a small group, her enjoyment of drawing, computer time, dodgeball, board games, and family pets. The TEAM described her learning as being negatively impacted by her lack of social/emotional readiness, and noted that she learned best when in an isolated workstation working independently with some teacher support. It noted her deterioration as evidenced by an increase in statements of physical threats and self-injury. It noted that she responds to choices and verbal limit setting. She has difficulty with transitions and requires slow, supportive transitions. She requires clear and consistent routines, limits and consequences, with immediate consequences for inappropriate behavior. It states that she gets anxious when asked to perform in large group activities such as physical education; she is reluctant to participate in art class, though she enjoys drawing. She becomes overwhelmed in crowded areas. Such frustration and anxiety results in her using verbally offensive language or being verbally and physically threatening to herself and/or others. Parent consented to the day school placement, but rejected the IEP services on February 10, 2005. (S15, 16, Kelly).

Between January and March of 2005, Amherst sent applications to several day schools meeting the criteria set out by the TEAM. (Smith). Parents observed several of the day schools, and on March 14, 2005, Parent wrote Amherst, stating that they were not accepting any of the schools proposed by Amherst. They noted that Kay had been without an educational placement since December 7, 2004, and that none of the proposed programs (Center, Cutchins, HEC, and NEARI) had staff specially trained for mild-moderate autism, sensory integration disorder, orthopedic disabilities, PTSD and RAD. Valley West had no openings. Poet Seat had not yet received an application. They requested an immediate TEAM meeting to discuss services for Kay. (P24, Smith). On March 30, 2005, the Cutchins Program accepted her. (S9). On April 11, 2005, the Center for School Crisis Intervention and Assessment (Center School) accepted her. (S7). On that same day, Poet Seat accepted her in to their middle school class. (S8). On April 15, 2005, NEARI accepted her as being appropriate. (S5).

12. Amherst convened its TEAM on March 24, 2005, and on April 11, 2005, issued its proposed IEP calling for Poet School as the appropriate setting for Kay. In addition to the academic services, the IEP called for daily therapeutic interventions for social/emotional and behavioral skill development, sensory processing with the occupational therapist and speech/language services, each 2 x 30 minutes weekly, and consultations from the psychologist, speech/language pathologist, occupational therapist, physical therapist, and autism specialist, each fifteen minutes per week. Parent rejected this IEP. (S10, P5, Parent).

Poet Seat is a public special education day school located on the grounds of Greenfield Public School’s Middle School, in a modular well-lit, airy building with large classrooms and a lot of window light. (Blumgarten). It serves approximately fifteen children with emotional disabilities, excluding conduct disorders. Some of the students also have diagnoses on the autism spectrum, though their social skills are significantly higher than Kay’s. (Blumgarten, Souweine). In March of 2005, the students may have been all boys; now, there are two girls as well as the boys. There is at least one DYS student who recently left, for he was not appropriately placed. Many of the children have difficulties getting on with peers and adults, and some are school phobic. There is one high school classroom, one middle school classroom (approximately six students), and one community room between the two classrooms. The program includes a behavioral system using points and levels. With the points, the children earn more independence, free time, trips, etc. Social pragmatics are integrated throughout the curriculum. Although not generally integrated with the regular education students, they use Greenfield’s Middle School gym and high school cafeteria. In contrast to Building Blocks, Poet Seat’s Program Director (Dr. Blumgarten) and Clinical Director (Dr. Kelly) have a clinical background, thus providing for a more intensive therapeutic setting. Likewise, the teaching staff has extensive experience in therapeutic environments, and their counselor aides have developed some expertise in clinical interventions. These counselor aides implement dialectic behavioral therapy, i.e., they conduct “lifespace interviews” with the children when their behaviors call for this. The school also incorporates peer feedback; that is, when seeking a higher level, students must seek the approval of the peers in community meetings. Dr. Kelly offers group therapy sessions twice per week, and he communicates with any outside therapists. Finally, Poet Seat has access to several autism consultants. (Blumgarten, Kelly).

13. In May of 2005, Parents unilaterally placed Kay at Robin Crest. She completed her sixth grade there and is now a seventh grader there. (Mother, Robinson).

Robin Crest, located in a rural setting in Leverett, Massachusetts, is a private school not Chapter 766 licensed, that serves a small group of children ages nine through fifteen. The director and founder, Dr. Robinson, has a Doctorate in Education from the University of Massachusetts and has extensive experience as a teacher in self-contained classrooms as well as a Head of the Belmont School’s lower school campus. (P11, 12, Robinson). Robin Crest is designed with natural light on four acres of natural environment, and is designed for a quiet, relaxing space. It provides a small, caring setting with individualized attention. It operates four days per week 8:30 am to 4:00 pm; the fourth day includes a learning trip off campus, and students may have other services such as therapies, not provided by Robin Crest, on the fifth day. Computer use (with various educational software) enhances the learning and communication. – it is used to learn, practice, investigate, and create at the students’ individual levels and interests. (Students work individually as well as together on the computer.) It provides an interdisciplinary approach in studying various themes, emphasizing project oriented activities, and fostering self-motivation. Each child is expected to read daily and to gain knowledge, fluency and comprehension and keep current in world affairs. Physical activities take place daily – hiking, biking, sledding, interactive games, playground play, etc. Students are expected to perform daily jobs contributing to the upkeep of the physical plant. Finally, the curriculum includes the fine arts, such as drama, art, and music. The program focuses on values of honesty, trust, respect for others and for oneself; “repair work” is required when a student has failed in such areas. (P11, Robinson). Kay’s peers are three boys, ages eleven – thirteen, with diagnoses of ADHD, pervasive developmental, and bipolar disabilities. In Dr. Robinson’s opinion, Kay is working with predominantly fifth grade materials and is following the Massachusetts Curriculum Frameworks. (Robinson).

According to Dr. Robinson’s, Kay has made excellent progress academically and emotionally. She does her schoolwork and her homework. Behaviorally, she is cooperative and responsible. The staff evaluates her work daily; she is given many top grades. In Dr. Robinson’s opinion, Kay has done well because of the staff’s care for her, and she trusts them. Her interest in violent stories, etc., continues, however, she is receptive to expanding her work and thoughts in to other areas such as journaling. Also, in the fall, she did verbalize about killing, however, she did that just a few times, and since mid-November, has not done that at all. When she would be disrespectful, she would be told to make apologies, thus helping her understand her impact on others. She is a quiet participant; she’ll join in if asked, she is a good listener, she “tolerates” the boys. She has a “no touch” zone where she works, thus providing her a safe area. She is compliant with staff, loves to converse, talks a lot about her brother, gymnastics, outside activities, etc. She has been very expressive during various school trips such as the circus, museums, etc. She can exhibit problems when she has her periods; she knows that if this occurs, it is a time when the staff places no demands on her – she does what she wants or she can stay home. It happens rarely – maybe twice. (Robinson).

Robin Crest issued an end of school report in June of 2005, providing many positive statements about Kay’s performance. It noted her enjoyment of the computer, her interest in school projects, her being an avid writer, sitting at the word processor and “going a mile a minute” on a story. It noted her enjoyment of certain books, her abilities in the study of money, investments, etc., her excellent concentration and effort in computer games (she is known as the pro), and her enjoyment of off-campus trips such as biking, mini-golfing, bowling, kayaking, and Six Flags. During those trips, “she interacted with pleasure and gained self-reassurance from the experiences.” Finally, it characterized her as having steady gains in her investment there. (P13). In June of 2005, Kay had an unsuccessful attempt at taking Risperdal; in August, she had an unsuccessful attempt taking Prozac. In February of 2006, she had a successful experience taking Celexa and she remains on that. (Stipulation of the parties).

14. Since her enrollment at Robin Crest, Kay underwent several more evaluations.

· On December 12, 2005, an occupational therapist evaluated Kay. Ms. Cecchi recommended a predictable routine, small group setting, positive reinforcement behavior plan with scheduled sensory access, visually supported instruction, individual computer, use of natural light whenever possible, elimination of background noise whenever possible, advanced notice and preparation for transitions, spend time in natural environments, read aloud or listen to books on tape, use a quiet area when needed to focus, and an individual work space not shared with others. (P27).

· On January 18, 2006, Dr. Judith Souweine, a PhD level psychologist and special educator (S77), articulated her assessment of Kay’s educational needs when she reported her findings regarding her observation of Poet Seat and Robin Crest as they relate to Kay’s educational needs. Dr. Souweine based her findings not only on her observation of Kay at Robin Crest, but on her review of Kay’s school records, previous evaluations and IEPs, logs from Building Blocks, Team meeting notes, and conversations with Robin Crest’s Director, Parents, Dr. Turriago, and David Mastriani at Building Blocks. She stated that Kay requires a program with

· staff experienced with students on the Autism spectrum and successful clinical strategies;

· IEP with highly salient curriculum,

· clinical staff for individual therapy and family therapy,

· on-going psychiatric consultation for strategizing around violent obsessions as well as psycho-pharmacological intervention,

· clear behavioral plan that emphasizes self awareness, social growth, and problem solving,

· female peers,

· social skills training,

· occupational therapy to address sensory issues, and

· pragmatic language class to improve social language skills.
(S68).

15. Drs. Souweine and Kelly each observed Poet Seat and/or Robin Crest, in assessing their appropriateness for Kay.

· On December 12, 2005, Dr. Souweine observed Poet Seat (for middle school students), and in so doing, listed its strengths and weaknesses as a placement for Kay, as follows:

· Experienced staff trained in DBT (dialectical behavior therapy) social skills, psychopathology – Dr. Souweine felt the DBT was particularly important for Kay, for it is a technique used for older students, and given her complex behavioral past, such is particularly important;

· Behavioral system with positive incentives and clear plans for rule violations that aim to teach de-escalation skills and new strategies for solving problems;

· Social skills groups – given Kay’s deficits, such didactic social skills training is extremely important, and is used for children with autism;

· Individualized curriculum with hands-on approach;

· Academics at her skill level;

· Access to an autism consultant.

The weaknesses were:

· No peers on the autism spectrum – Kay can be educated with other students, however, the chances of her developing social relationships is higher with similarly autistic children;

· Peers are higher functioning socially – this is the same concern as above;

· No psychiatric liaison – this is particularly important in clarifying Kay’s diagnosis, for this will help the staff address her primary diagnosis. Further, important to incorporate pharmacological issues;

· No family therapy.
(Souweine, S68).

In her written report, Dr. Souweine did not state whether one program was more appropriate than another for Kay. Rather, she reported that both programs lack important components. (S68). However, in her testimony, Dr. Souweine spoke with great certainty that between the two, Poet Seat offered a more appropriate program, for it was capable of addressing her social and emotional skill development, whereas Robin Crest lacked that capacity. She stated that Robin Crest did not meet her needs, and though Poet School was not the perfect setting, it offered her an appropriate special education program. (Souweine).

· On May 12, 2005, at the request of Amherst, Dr. Fran Kelly observed Robin Crest for one hour and spoke with the lead teacher and her assistant. He wrote a report of this visit, stating that the teachers were very seasoned, experienced and appropriately credentialed; the setting is bucolic, with open, spacious, modern and well equipped with books, computers and curriculum materials. He stated that the staff had experience with students similar to Kay. He described it as comfortable, open and very conducive to learning, with a stimulating yet relaxed setting. He expressed concern that there was no onsite clinician, though he felt that the teachers were thus far able to handle her problematic behavior, and they welcomed any consultation with outside providers. He described the milieu as therapeutic, given the low stimulation, low teacher to student ratio, the opportunity to work with a peer group of similar profiles. (S2). In his testimony, Dr. Kelly qualified his opinions. That is, despite its small, beautiful setting with lots of natural light, it lacks an active clinical component so necessary for Kay. (Kelly). When asked whether a child could make progress if not directly working on skills, his answer was “That’s difficult to answer. Progress takes place sometimes because of the circumstances. However, I think her development and her maturation would be facilitated by her involvement in a therapeutic program.”

· On January 6, 2006, Dr. Souweine observed Robin Crest and spoke with the director. Her major concern was that Kay spent significant time by herself, that she was not addressing her social skills nor her behavioral skills in this setting. Further, she found that it lacked an appropriate behavioral intervention program. That is, according to her, Robin Crest “punishes” negative behavior by assigning chores as its response to misbehavior. What is needed is negative reinforcers that a) are related to the offense, and b) occurring close in time to the misbehavior. Robin Crest does not offer this. Further, the chores (which the student selects) are not necessarily perceived as a negative consequence and can, in fact, be perceived as a positive consequence. (P68, Souweine).

16. On February 27, 2006, Amherst convened its TEAM to develop Kay’s IEP for the February 27, 2006 – February 26, 2007 period. It developed a similar IEP, again calling for a therapeutic program, however, in order to address Parents’ concerns regarding Poet Seat, Amherst proposed NEARI – a private Chapter 766-approved school – as the placement. (S76). This program is headed by Dr. Bengis who has a PhD in education and significant experience in the clinical social work field, and by Dr. Cuninggim, who also has a PhD in education and a Master’s degree in social work. The program provides a therapeutic setting with a psychiatrist who consults monthly and a psychiatric nurse. Its therapeutic techniques stress the importance of relationships between the student and a staff person (particularly important for students with attachment problems); the staff are trained to focus on descriptive rather than interpretive language; a system with natural and logical consequences is used, with consequences and rewards being individualized to each student; – the behavioral point and level system is not used, unless appropriate for a specific student. The program provides a positive, success oriented setting until the student is ready for more demands and more stress, with the goal of reaching a delicate balance between positive experience and moving forward with some stress. Social skills training is integrated throughout the day, (with some differences for this autism classroom), and social skills groups are also provided. The students (forty-five total) are diagnosed with emotional, behavioral, and learning disabilities. Some are also diagnosed on the autism spectrum. Prior to September of 2005, the students on the autism spectrum were integrated with the school population; there was no separate class for them. Rather, students were placed after considering such factors as cognitive abilities and interactive levels. Thus, prior to September, the students moved as a group from class to class for the various subjects. In September of 2005, because some of the students on the spectrum had difficulty with these class transitions, had difficulty interacting with other students in the hallways, and generally had difficulty handling frustrations and stress, NEARI created a class for some of its students on the autism spectrum (PDD). Three of the students in this class had already been with NEARI; one new child joined this class. The students range from age fourteen to seventeen. In addition to Drs. Bengis and Cuninggim, the staff includes subject matter teachers who are certified in their subject and may or may not be certified in special education, and a behavioral interventionist who has a bachelor’s degree and is planning to enroll in a master’s degree program in the special education for PDD children. The children remain in this class with the behavioral interventionist, and the subject matter teachers rotate in and out of the class. The program also provides sensory diets to some children, has some expertise in sensory integration issues, and is open to further consultation. To the extent appropriate, the students are integrated with the other students in the program. If Kay were unable to handle this integration, additional staffing may be required, but this can be done. (Bengis).

FINDINGS AND CONCLUSIONS

Kay presents Amherst with a true challenge in determining, and providing her with, the appropriate educational setting and services, for she carries an unusually complex profile with various diagnoses and varied strengths and weaknesses. As a result, the parties have disputed not so much her cognitive and academic skill levels, but the driving force behind her behaviors, and the appropriate placement and services addressing those forces and behaviors. Amherst asserts that she has a social emotional disturbance and requires a therapeutic setting with clinical services as well as a strong behavioral program. As the moving party in this case, Parents bear the burden of persuasion that a) it is her autism and sensory integration deficits, not any emotional disturbance, driving her behaviors, and b) the appropriate educational services are behavioral, not clinical interventions.3 After careful consideration of the evidence, I find that Parents failed to meet their burden showing that Amherst incorrectly claimed Kay’s behaviors to be a result of a social emotional disturbance, and that Amherst incorrectly claimed clinical interventions as appropriate for Kay. I find that Amherst is persuasive as to the appropriate educational setting for Kay, and that its proposed Poet Seat and NEARI IEPs are reasonably calculated to provide Kay with a free and appropriate public education. Accordingly, Amherst is not responsible for Robin Crest tuition and transportation costs, either retroactively or prospectively. My reasoning follows.

I. Kay is a 14 year-old young girl carrying a long-standing diagnosis of Chronic Post Traumatic Stress Disorder (PTSD), Reactive Attachment Disorder (RAD), and as of 2002, a diagnosis of Mild Autism. (S34, P18). There is nothing in the record that reflects a change in her diagnoses, and thus, until a qualified diagnostician changes her diagnoses, her previous record stands. This, however, is not a sufficient analysis to address Parents’ claim. That is, without denying Kay’s diagnoses, Parents assert that her behaviors are driven by her autism, not by any emotional disabilities, as claimed by Amherst. Further, they assert that the educational placement/services would differ depending on this distinction, and Amherst should design her education assuming that her misbehaviors result from her autism and her sensory integration deficits. These two assertions regarding her profile and the appropriate educational placement/services are addressed separately.

Amherst reasonably asserts that Kay’s behaviors are driven by emotional disturbances. That is, acknowledging Kay’s profile includes autism, Amherst reasonably names emotional disturbances as an important factor driving her behaviors, based in part on staff conversations with and observations of her, in part on her diagnoses of PTSD and RAD, in part on her history of animal abuse, and in part on Dr. Fran Kelly’s opinion that her behavior is not typical of a child with autism. Thus, it is incumbent upon Parents to persuade otherwise, and they have not done so. Parents are unpersuasive that Kay’s behaviors regarding the fire alarm incident and the knife incident evidence the consequences of her autism and not of any emotional disturbance. That is, they say, Kay did not intend to cause major distress when she pulled the fire alarm, for she did not understand the major consequence of doing that – she was only responding to stress. Further, Kay brought the knife to school not to hurt her teacher, but to threaten her, so as to be removed from the school. It is possible that Parents are correct that Kay’s behaviors are not a result of an emotional disturbance. However, given Kay’s significant psychiatric history, her statements of wanting to kill specific people with a plan, her history of animal abuse, and the potential danger of acting on her violent threats, Parents’ assertions, without significant and credible expert evidence supporting their views, is not sufficiently persuasive to successfully challenge Amherst’s position on this matter. Parents assert that Dr. Fran Kelly lacked sufficient information about their daughter to render a reliable opinion. If this were to be challenged, it could have been legitimately challenged by Dr. McCarthy-Lenz, for she has excellent credentials and has significant knowledge of Kay, and has touched on this issue in several of her writings4 . Her writings alone, however, are insufficient to support Parents’ position that Kay’s behaviors are driven not by any emotional disturbance, but by her autism. First, Dr. McCarthy-Lenz’ writings were not subject to direct and cross-examination. Given Kay’s long-standing psychiatric diagnoses, and the potential of dangerous behaviors, without clarification of her position through direct and cross-examination, Dr. McCarthy-Lenz’s written opinions can not be given sufficient weight. Further, her writings, taken together, do not clearly rule out an emotional disturbance as driving Kay’s behaviors. Finally, Dr. McCarthy-Lenz’s call for further psychiatric evaluation and treatment recommendations through partial hospitalization would support a finding that she herself was uncertain.5 Accordingly, until Amherst’s position is persuasively challenged, Amherst’s view holds that Kay’s behaviors are driven in part by emotional disturbances.

Despite the lack of certainty regarding the origin of Kay’s behaviors, Amherst is persuasive that Kay is able to benefit from the clinical services and a behavioral point and level system offered in many programs for emotionally disturbed children. For instance, Kay is able to benefit from the clinical life interviews – talking about her misbehaviors, understanding her motives and mistakes, and agreeing to alternative behaviors in the future. Her several discussions (including discussion with her parents) about the fire alarm incident and the knife incident support this conclusion. It may be that she doesn’t always understand her motives. But other times, she states that she does know why – ie., she wants to threaten teacher because she doesn’t like school; she pulls fire alarm because she felt excluded by her peers. She processed both of these events with several people, including Parents, who stated that she understood what she did and would handle her stress differently the next time. Thus, Amherst is persuasive that within her abilities, she is capable of such clinical intervention. (Souweine, Kelly, Nielsen). Further, contrary to Mother’s assertions, Amherst is persuasive that Kay is capable of benefiting from highly structured behavioral programs such as the point and level systems. That is, she is able to control her behavior, understand consequences, and be manipulated towards appropriate behaviors. She is capable of controlling her behavior – as she did each time she stated that she shouldn’t talk about violence, and as she did when she waited for the right time to pack a knife in to her back pack. She is capable of understanding consequences, and being manipulated towards appropriate behaviors. Parents’ own belief regarding the knife incident supports this – ie., she is capable of taking certain steps (pack a knife when no one could see her, so as to threaten her teacher) to accomplish certain results (to be removed from school). (Nielsen, Bish, Robinson, Souweine, Parents).

Parents raise concerns about Kay’s abilities to handle the life interviews and the behavioral systems, and point to specific examples. Their concerns are legitimate, for her sixth grade Building Block experiences with such services were significantly negative, only reinforcing her failures. However, specific examples do not support a general finding of her inability, in light of the fact that there are other situations where she evidenced her capability. Parents also point to the impact that her sensory integration deficits have on her behavior. Although the record fails to support their view that Kay cannot benefit from these programs, the record does certainly support a finding that any program must take many factors in to account in designing therapeutic and behavior interventions for Kay. In fact, given the critical need for such interventions in addressing her social skill development, it is even more important that Amherst provide Kay with the proposed therapeutic and behavioral interventions, and that they be designed in a way that she is able to be successful. (Kelly, Souweine). For instance, clearly, Kay’s sensory integration deficits may cause her stress (Cecchi), and any educational program should do its best to reduce such stress and to be aware of this factor in its clinical interventions as well in determining antecedents to misbehaviors, for instance. Further, Kay’s language and reasoning deficits, though not indicative of an inability to benefit from behavior plans and life interviews, do indicate the need to work with her within her capacities. Accordingly, if her profile differs from her peers, she may require a more individualized program than provided to her peers.

II. I find that Amherst was persuasive that Poet Seat and Amherst’s proposed March of 2005 – March of 2006 IEP offered Kay an appropriate educational placement and program. Poet Seat certainly has much to offer Kay. In contrast to Building Blocks, it is led by two doctoral level clinically-trained and experienced professionals, Drs. Blumgarten and Kelly. Its program is overseen by, and its social skills groups are led with, this level of clinical intervention. Further, the program is in a small modular building separate from the mainstreamed public school, and therefore offers a quieter setting. The students may use the mainstreamed schools’ gym and cafeteria, however the regular education students are not there at the same time. Further, to the extent that this would be difficult for Kay, the staff would need to address this difficulty. It does not present the same challenge, however, that she experienced at Building Blocks where she was frequently among or around the regular education population; Poet Seat offers a significantly quiet setting. This level of clinical intervention and this quieter setting are critical for providing Kay with an appropriate education.

Dr. Souweine was clear in her testimony, that Kay would benefit from the Poet Seat program, and her opinion is given significant weight. Her opinion is founded on a full review of Kay’s evaluations, school records, conversations with the clinical director from Building Blocks, several previous teachers, and Amherst administrators. She has extensive expertise with children with psychological diagnoses as well as autism diagnoses. Given her knowledge about Kay, and given her expertise and experience with both psychological and autism issues, her testimony that Kay would benefit from Poet Seat’s program is credited. She discussed in detail why the program would be appropriate. For instance, she stated that the didactic social skills training is particularly important, for it is one of the few methods that work on children on the autism spectrum. She stated that Kay is on the high end of the autism spectrum, and shows severe difficulties with social skills, with sustained involvement with other people, initiation of social contacts, and sustaining relationships. She also has typically narrow interest and circumscribed interest. Thus, she surmised that the didactic social skills training is particularly important. Given her opinion, given the fact that Poet Seat offers significant expertise in clinical work as well as teaching expertise, given that Poet Seat is in a separate, quiet facility, I find Poet Seat offered Kay an appropriate educational program.

Though Poet Seat does not offer a perfect program for Kay, the shortcomings can be addressed adequately. It offers the expertise of autism consultants, but it would be preferable if Poet Seat offered peers similar to Kay on the autism spectrum. It does not, and the proposed peers’ social skills are significantly higher, making it more difficult for Kay to create friendships. (Souweine). Given the small setting, the high teacher/student ratio, and the level of clinical intervention, Dr. Souweine is persuasive that despite this fact that these peers were not a perfect match for Kay, Poet Seat offered her a setting wherein she could address her social skills – a central part of the program, and a critical need for Kay. Poet Seat also offers no psychiatrist on staff; it would be ideal if a psychiatrist were on staff, not only for medication and treatment issues, but also to have his/her expertise as part of the TEAM, especially where Kay’s diagnosis is at issue. Though this would be ideal, Dr. Souweine was persuasive that the provision of a psychiatric consult could offer the necessary expertise to ensure adequate input around medication and treatment issues, necessary to provide Kay with an appropriate educational program.

Parents assert that Poet Seat’s clinical intervention is no different than that offered at Building Blocks; Amherst is persuasive that it indeed, it is different. The doctoral level clinical expertise as well as the significantly more experienced teacher, supports Amherst’s claim. It may be that Dr. Kelly stated that the programs were similar, – and that may be true in the systems used. However, the more experienced and trained intervention promises for a more successful experience.

Parents raised legitimate concerns regarding Kay’s ability to benefit from Poet Seat’s point and level system. Clearly, in her sixth grade, the Building Blocks’ point and level system was not successful, for Kay rarely achieved levels. (Nielsen). As Mother expressed, the program became more of a negative than a positive reinforcer, and Parents were legitimate in their attempt to ensure that Kay’s sixth grade experience was not repeated. (Mother). However, Parents’ generalization that a point and level system can never be appropriate, is not supported by the evidence. First, she benefited from Building Blocks’ approach during her fourth grade but not sixth grade. Second, the Poet Seat teacher is significantly more experienced than Kay’s sixth grade teacher, Ms. Bish, and the clinical staff is likewise more experienced and trained than Building Block’s staff. (Nielsen, Bish). Third, despite Parents’ opinion, Poet Seat offers a quieter setting, for most of the day is in a building separate from the mainstreamed population, and even when at the high school, the students are not with the mainstreamed population. (Blumgarten). Thus, in a quiet setting, the behavioral system would be implemented by very experienced and clinically trained staff. It may be that a more individualized point and level system would be required for Kay, however Parents provided insufficient evidence to support a claim that Poet Seat could not successfully individualize the point and level system so that Kay could achieve success.

Finally, Parents assert that Poet Seat’s setting is sterile, evoking Kay’s negative reactions. Dr. Blumgarten was persuasive that the setting is not sterile, and given the clinical nature of the program, Poet Seat appears far from sterile. (Blumgarten).

III. I find that Amherst’s proposed February 17, 2006 – February 16, 2007 IEP calling for NEARI offers Kay an appropriate educational placement, in that it addresses her educational needs from the psychological/psychiatric as well as from the autism spectrum perspective6 . That is, it offers:

· A day school separate from the mainstreamed public school;

· A therapeutic setting directed by clinically trained and experienced directors;

· A focus on developing individual relationships between a child and a staff person; (clearly Kay has benefited from this while at Robin Crest (Robinson));

· A focus on social skills development throughout the day as well as in small group, and individual therapy;

· A highly structured setting with a behavioral structure of consequences and rewards individualized to the needs of the child;

· Staff – academic and non-academic – throughout the school dedicated to the therapeutic needs of the students, given that the entire school is devoted to children with social/emotional needs;

· Peers with similar diagnoses on the autism spectrum – including a few female peers – so necessary for her social development;

· Consultation by autism expert.

Parents raise no concerns of sufficient magnitude regarding NEARI that would undermine a finding that it can appropriately address Kay’s needs. They question the teacher certification. This is a concern, for clearly Kay requires the expertise of special educators, yet some of the subject matter teachers are not special education certified. Further, the behavior interventionist has no certification and has only a bachelors’ degree. However, this must be considered in the context that the entire school is devoted to the needs of students with emotional and behavioral disabilities, and the staff is overseen by doctoral level educators and clinicians. Given this very small setting, high teacher/student ratio, and therefore, close supervision, Parents’ concerns are insufficient to render the program inappropriate for Kay. Secondly, Parents raise concerns regarding the autistic children’s afternoon integration with the students from other classes within the school. It should be noted that this is not integration with a mainstreamed population. Rather, it is integration with other special education students all requiring a therapeutic, highly structured setting. Dr. Bengis was clear that they have always been successful in supporting a child’s integration with other students. However, if this did not work, NEARI is sufficiently flexible so as to accommodate Kay’s difficulties by not integrating her. Finally, Parents assert that the building is institutional, and that this would undermine Kay’s ability to be comfortable in that setting; they are unpersuasive, particularly because NEARI is a clinical setting offering support around issues of anxiety, etc.. (Bengis).

IV. In some circumstances, parents who unilaterally place their child in a private school may be reimbursed for the private placement.7 This may be true even where the private school has not been approved by the state, so long as two requirements are met. First, the IEP proposed by the school district must be inappropriate; and, second, the parents’ unilateral placement must be appropriate.8 In this case, Parents cannot be reimbursed for the Robin Crest tuition and transportation, for Amherst’s proposed placements at Poet Seat and NEARI offered Kay FAPE.9 However, even if Amherst’s programs were not appropriate, Parents would not be entitled to reimbursement. That is, Robin Crest may be providing her a nurturing setting in which to stabilize her emotional and behavioral condition, and may be providing her with a stimulating academic experience. That is significant, given her previous school experience. However, her most pressing educational needs are not being addressed – that is, its lack of clinical intervention around her violent fantasies, and its lack of a highly structured behavioral program teaching her social skills, renders Robin Crest inappropriate for providing Kay with an appropriate education, where Kay can make educational gains in the most critical areas – social/behavioral/emotional skills10 . At Robin Crest, this has not and is not happening, despite its strengths.

As soon as Parents state their intent to place Kay at NEARI, Amherst shall take immediate steps to implement its February 2006 – February 2007 IEP, and shall develop a transition plan to allow for Kay’s smooth transition into NEARI. Further, Amherst shall ensure that Kay’s educational plan includes a diagnostic component with NEARI’s psychiatric consultant and NEARI staff, addressing the question as to whether Kay’s current condition requires a change in Kay’s psychiatric diagnoses, and whether autism is now the primary diagnosis11 . Amherst has requested that I order a psychiatric evaluation for Kay. Given her pending placement at NEARI, the need for such may be unnecessary. Therefore, after working with Kay, if NEARI’s psychiatrist deems a psychiatric evaluation necessary, and Parents object to such, Amherst may file a hearing request on that issue. Given NEARI’s ability to address emotional and behavioral needs, regardless whether those needs result from psychiatric or autism disabilities, the change in her diagnoses should not necessitate a change in school placement, but may lead to a change in the appropriate techniques in working with her.

By the Hearing Officer,

______________________________

Date: May 8, 2006


1

The evidentiary record consists of Amherst Public Schools’ Exhibits S1 – 23, the Parents’ Exhibits P1 – 16 and 18, and approximately twelve hours of recorded testimony.


2

Parents accepted this IEP placement on January 2, 2004.


3

Schaffer v Weast 126 S. Ct. 528, 537 (2005).


4

(See Dr. McCarthy-Lenz’ written evaluations and statements in October of 2004 (S34, P18), December 9, 2004 (S21), July of 2005 (S1), and August 2, 2005 (P19)). In October, she reports her current diagnoses as being more than autism, for she includes the reactive attachment disorder of infancy and post-traumatic stress disorder. She further describes Kay’s wanting to shoot a specific person. Without specifically addressing the diagnostic source of her behaviors/fantasies, Dr. McCarthy-Lenz states “I agree with Mother that these behaviors increase as a result of emotional regression in the context of stressful situations where she feels out of control”. After the knife incident, she makes no further diagnosis, but notes her concerns and recommends partial hospitalization for further evaluation. In July, she states that Kay’s autism diagnosis is correct “and may be sufficient for considering educational options for Kay”. In August, she objects to Poet Seat, not because the school addresses emotional disturbances, but because the teacher has no experience with autism, and she believes that Kay’s diagnosis is autism, based on my clinical evaluations, and prior psychological reports. (S1, 21, 34, P18, 19).


5

Parents assertion is unpersuasive that Dr. McCarthy-Lenz recommended this partial hospitalization in order to give Parents time to locate a school placement, for she specifically stated it would be for further diagnosis.


6

Although not necessary for this decision, I further find that in the winter/spring of 2005 and through that school year, NEARI could not have appropriately addressed Kay’s needs. That is, despite the many services that NEARI offers, the record does not support a finding that she could have succeeded as it was set up at that time, for the students moved from class to class and encountered larger groups of students in the hallways. The program was not designed for students to stay in one location. The evidentiary record is replete with evidence that she had difficulty when mainstreamed into larger groups, with staff opinions that when she left Building Blocks, she required a quieter setting, a less stressful setting, and with evidence that she prospered in such a setting while at Robin Crest. (Kelly, Robinson, S15, 16). Dr. Bengis’ testimony was noteworthy in that the September of 2005 basis for assigning students to the separate class for PDD students was the children’s inability to handle transitions, hallway populations, stress, etc.. Clearly, Kay falls in to this category; to move her from Building Blocks where she could not handle such situation, to a not dissimilar situation, despite NEARI’s dedication to all special needs students, – would have been wrong, and certainly not appropriate for Kay. It may be that once she settles in to the PDD class at NEARI, she may develop the ability to handle more stress, transitions, larger groups of students, etc. and thereby broaden her experiences there. That consideration, however, is for a later date.


7

Florence County Sch. Dist. v. Carter , 510 U.S. 7, 9-10 (1993).


8

Florence at 15; Matthew J. v. Mass. Dept. of Educ ., 989 F. Supp. 380, 382 (Mass. Dist. Ct. 1998); Doe v. West Boylston , 28 IDELR 1182 (Mass. Dist. Ct. 1998)..


9

From January 7, 2006 – February 26, 2006, Amherst had no proposed IEP for Kay. This, however, is insufficient to change the outcome of this decision, for it is clear that even if NEARI had been offered in January, Parents would not have accepted it. Further, Poet Seat continued to be available, yet Parents were not accessing that program.


10

Amherst raised other concerns regarding Robin Crest’s shorter week and shorter year, regarding its removed location, its emphasis of independent rather than teacher directed learning. None of these reasons were of sufficient significance to render Robin Crest inappropriate for Robin.


11

If Parents request, and Amherst agrees, the parties may choose to include Dr. McCarthy-Lenz in this diagnostic plan, so as to avoid the potential for a disagreement leading to an independent assessment.


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