COMMONWEALTH OF MASSACHUSETTS
SPECIAL EDUCATION APPEALS
In Re: Marlborough Public Schools and Dearborn Academy
BSEA No. 09-2610
DECISION
This decision is issued pursuant to the Individuals with Disabilities Education Act (“IDEA”, 20 USC Sec. 1400 et seq.); Section 504 of the Rehabilitation Act of 1973 (29 USC Sec. 794); the Massachusetts special education statute or “Chapter 766,” (MGL c. 71B) and the Massachusetts Administrative Procedures Act (MGL c. 30A), as well as the regulations promulgated under these statutes.
The major issues in this case are whether the Marlborough Public Schools should have terminated Student’s eligibility for special education on the grounds that Student had met all requirements for high school graduation. If not, the parties dispute whether Marlborough must reimburse Parent for the cost of an unapproved private residential placement in Connecticut where Parent unilaterally enrolled Student.
Procedural History
On October 16, 2008, Parent filed a request for a hearing at the Bureau of Special Education Appeals (BSEA). Among other things, Parent seeks an order finding that Marlborough incorrectly terminated Student’s special education eligibility in June 2008, and directing the Marlborough Public Schools to reimburse her for the costs of Student’s unilateral placement at Chapel Haven, a private residential program in Connecticut, as well as to fund Student’s placement there prospectively.
On December 5, 2008, Parent filed an amended hearing request, adding allegations that Student did not meet criteria for graduation because he received improper accommodations and/or assistance from Dearborn Academy when he took the MCAS retest in March 2007.
On December 31, 2008, Marlborough filed a Motion to Join Dearborn Academy as a necessary party in this matter. Neither Parent nor Dearborn Academy opposed this Motion, and Dearborn was joined as a party on January 6, 2009.
On March 23, 2009, a Ruling and Order was issued relative to Parent’s earlier Motion for Enforcement of Stay Put . That Ruling, and the factual findings and legal conclusions contained therein, are incorporated by reference into this Decision.
A hearing on the merits took place on January 6, January 15, and February 13, 2009. With the consent of all parties, the hearing was held at the administrative offices of the Marlborough Public Schools in Marlborough, MA. Parent, Marlborough, and Dearborn Academy all were represented by counsel.
Those present for all or part of the proceeding were:
Student’s Mother
Student
Ned Pratt Director of Pupil Personnel Services, Marlborough P.S.
Kirsten Esposito Balboni Former Director of Pupil Personnel Services, Marlborough
Larry Borin Out of District Coordinator, Marlborough P.S.
Richard Figueira Assistant Special Education Director, Marlborough P.S.
Peter Yaffe, Ph.D. Student’s treating psychologist*
Matthew Tietjen Residential Supervisor, Chapel Haven
Kristen Humber Mentor Teacher/Counselor, Dearborn Academy
Lauryn Blevins Former Teacher, Dearborn Academy
Daniel Falvey Career Services Counselor, Dearborn Academy*
Thomas V Sannicandro Attorney for Parent and Student
Regina W. Tate Attorney for Marlborough Public Schools
Henry W. Clark Attorney for Dearborn Academy
Maureen Pires Court Reporter
*Testified by speaker phone
The official record of the hearing consists of Parents’ Exhibits P-1 through P-25, School’s Exhibits S-1 through S-37, tape recorded testimony and argument, and the written verbatim transcript created by the court reporters. The parties requested and were granted a postponement to file written closing arguments. Dearborn Academy, Parent, and Marlborough filed their arguments, respectively, on February 25, 26, and 27, 2009 and the record closed on February 27, 2009.
ISSUES PRESENTED
The issues presented for hearing are:
1. Whether Student qualified for high school graduation such that his eligibility for special education terminated as of June 2008;
A. Whether Marlborough Public Schools provided sufficient transitional planning and services to meet the requirements of federal and state law regarding transition planning,
B. Whether Student received improper accommodations when he took the MCAS examination, and, if so, whether these accommodations enabled Student to pass when he would not have done so without the inappropriate accommodations.
2. Whether Marlborough committed procedural violations such that termination of special education eligibility was invalid and its failure to offer services after June 2008 was unlawful.
3. If Marlborough’s termination of special education eligibility was incorrect, whether Chapel Haven was an appropriate placement by Parent, and whether it is appropriate prospectively.
4. Whether Marlborough continues to owe Student speech/language services to compensate for services lost when Dearborn Academy was without a speech/language therapist.
POSITION OF PARENT
Student was not qualified to graduate from high school. He had not met IEP goals and objectives, and did not have the requisite degree of independence. Moreover, Student did not legitimately pass MCAS because he received improper accommodations. Student did not receive adequate transition planning services. Finally, Marlborough failed to provide Student and Parent with legally sufficient notice of graduation, of its effects on Student’s eligibility for special education, and of Student’s and Parent’s rights to contest Student’s graduation. In light of all the circumstances, Parent was justified in unilaterally placing Student at Chapel Haven. Chapel Haven is an appropriate placement for Student. Experts who know Student and Chapel Haven staff feel that the placement is a good fit, and a logical next step in Student’s education. At Chapel Haven, Student is learning necessary skills to move towards independent living and employment.
POSITION OF MARLBOROUGH PUBLIC SCHOOLS
Student qualified for graduation with a regular high school diploma from Marlborough in June 2008 and Parent and Student have not met their burden of proving otherwise. Pursuant to DESE policy, because Student fulfilled all graduation requirements for Dearborn Academy, Student must be deemed to have earned sufficient credits towards graduation from Marlborough High School. Parent’s and Student’s belated claim that Student received improper accommodations for his most recent MCAS retesting, is without factual support. Moreover, even if Parent and Student had demonstrated incidents of improper accommodation, they failed to show that Student would have failed MCAS but for such improprieties. Student is not entitled to compensatory services because Parent fully accepted the IEPs proffered within the two year statute of limitations, these IEPs were implemented, and there were no procedural violations justifying a hearing officer’s overriding such acceptance (such as failure to provide transitional services and sufficient notice about the right to such services) such that a hearing officer can override the accepted IEPs. Parent and Student were provided adequate notice of impending graduation, and a well-developed plan of transitional services. While there is no dispute that Student missed some speech/language services, Marlborough has taken all necessary steps to make up for the missed sessions.
Even if Parent and Student were entitled to continuing services from Marlborough, Chapel Haven is overly restrictive and inappropriate for Student. Student is much higher functioning than most of the population at Chapel Haven. He arrived at the program having already mastered many or most of the skills in the curriculum, and the vocational exploration that would be offered during the second year of the program would be below Student’s skill and ability level, and would not meet his needs for genuine job training. Finally, even if Parent or Student is owed compensatory services, reimbursement for Chapel Haven cannot be offered Student as a compensatory service.
POSITION OF DEARBORN ACADEMY
Dearborn Academy staff administered MCAS correctly, with no improper accommodations of assistance to Student. Student passed MCAS legitimately and was unable to prove otherwise at hearing.
FINDINGS OF FACT
1. Student is a nineteen-year-old young man who lives in Marlborough with his family. He is his own guardian, and he and his mother share educational decision-making authority; therefore, the terms “Mother” and “Student “ will be used interchangeably in this decision, as appropriate for the context.
2. Student has many strengths. He is described as generally pleasant, generous, polite, hard-working and eager to please. He is a reliable employee who functions fairly independently at the various jobs he has held in the community. Student has demonstrated leadership qualities. He is eager to learn and make progress towards independence. (Mother, Tietjen)
3. Student has received special education services since early elementary school because of significant language-based learning disabilities, ADHD, as well as difficulties with executive functioning, auditory processing, social/emotional functioning, and behavior. Cognitively, Student functions in the borderline to low average range, depending on the skill area. In January 2007, Student was diagnosed with a chromosomal disorder that is associated with his learning disabilities as well as with his emotional and behavioral problems. This diagnosis has had a significant emotional and medical impact on Student. He has needed to undergo surgery and receive ongoing medical treatment, and has experienced some emotional upheaval. On the other hand, the diagnosis has helped explain some of Student’s issues, and treatment has been helpful. (Parent, Yaffe, )
4. As a result of his disabilities, Student is impulsive and immature. He has trouble reading social situations, and, because he is very concrete in his thinking, he is prone to misinterpret them. For example, Student might react with hostility to joking by a peer because he assumes that the peer is trying to provoke him. Additionally, Student has had depression and anxiety which are related to his diagnosis of ADHD, as well as to his genetic disorder. (Yaffe, Mother)
5. Student began his educational career in the Cambridge Public Schools. Student started receiving special education services in first grade to address reading, math, fine motor issues and attentional issues. In second grade, Student received an ADHD diagnosis and was placed on medication. From grades three through six, Cambridge placed Student in substantially separate classrooms. By sixth grade, Parent felt that Student still was not learning to read, and also had problems with anxiety, frustration, and speech. In September 2001, At Parent’s request, Cambridge placed Student at Learning Prep. School (LPS) for sixth grade. (S-4, Mother)
6. Student, who by this time had been diagnosed with ADHD, anxiety disorder, and a language-based learning disability, continued to struggle at LPS with academics, organizational skills, homework, self-esteem and coping skills, despite LPS’ comprehensive program of language-based classrooms, speech-language and occupational therapy services in school, as well as medication and counseling from outside providers. (S-4, Mother)
7. In approximately January or February 2003, Student’s behavior at LPS deteriorated. He had frequent meltdowns, with rapid escalations in anger, crying outbursts, disrespectful and argumentative behavior, and some self-injurious behavior, as well as a suicidal statement that led to an emergency room assessment. Ultimately, LPS discharged Student. (Parent, S-4)
8. On April 28, 2003, Cambridge placed Student at Dearborn Academy, a private, Chapter 766-approved special education day school in Arlington. Dearborn is a structured, therapeutic program that serves students who have both language-based learning disabilities and emotional and behavioral issues. Student attended Dearborn during the remainder of the 2003-2004 school year, the summer of 2003, and the 2004-2005 school year, funded first by Cambridge, and then by Chelsea, when Student’s family moved there. (Mother, S-8, S-11).
9. In the summer of 2005, Parent and Student moved to Marlborough from Chelsea. Student continued to attend Dearborn Academy for 2005 -2006 with Chelsea funding the placement through June of 2006. (S-11, Mother)
10. Between February and May 2006, Marlborough conducted a three-year evaluation of Student, who, by that time was a sophomore in the Dearborn High School Pre-Vocational Program. In June 2006, Marlborough issued an IEP for continued placement at Dearborn. This IEP covered the period from March 2006 to March 2007. (S-11)
11. This 2006-2007 IEP noted various reading skills ranging from the late second grade to fifth grade level, and math and spelling skills at the late second grade level. Student’s scores on speech-language tests had improved significantly. Teachers reported improvement during the sophomore year in Student’s communication, self-advocacy, and self-management skills. (S-11)
12. Included in Grid C were counseling, behavioral services, academic strategies, speech-language services, reading instruction, written language and math. Also included were “Career Education/Transition Planning” services consisting of 45 minutes per week with a Career Services Counselor and 4 x 45 minutes per week addressing this topic with teachers. (S-11)
13. Under “Additional Information,” this IEP stated that Student was “working towards meeting the graduation requirements of the class of 2008, given his ability to meet MCAS graduation requirements and continued positive credit acquisition…[Student’s] Career Services Counselor will make a direct referral to [the Massachusetts Rehabilitation Commission]…to gain additional support in transition planning. It is suggested that this occur as soon as Mass Rehab will accept the referral to ensure early access to a vocational assessment. A 688 referral will be made on [Student’s] behalf by the Marlborough Public Schools.” (S-11)
14. Attached to the IEP was a “Transition Planning Chart,” dated June 20, 2006, which recorded Student’s “desired outcomes,” and “action plans,” in the fields of post-secondary education, employment, and community experiences and which linked these categories to those goals in the IEP that were designed to help the Student achieve the desired outcome. At the time the chart was completed, Student had expressed a desire to attend college and to develop age-appropriate friendships in the community. No employment preferences were recorded, but the chart noted Student’s then-current employment in an assisted living facility. The action plan included the Mass. Rehab. referral noted above, along with a vocational assessment. (S-11)
15. Parent accepted the Dearborn placement on June 20, 2006. While she signed the signature page on September 20, 2006 in the response section, she did not check off any of the boxes; however, there is no evidence on the record that Mother intended to do anything other than accept the IEP in its entirety. (S-11)
16. Student attended eleventh grade at Dearborn pursuant to the IEP referred to above. Progress reports for the fourth quarter of 2006-2007, issued in June 2007, indicated that Student had made progress towards all IEP goals. In the social-emotional (counseling) domain, Student’s episodes of anger and frustration were reduced, and his ability to accept feedback and calm himself were improving. Behaviorally, Student made substantial progress in avoiding trouble by taking voluntary time-outs, staying away from peers’ negative behavior, beginning to accept critical feedback, and apologizing for rude comments. In the area of communication, Student had made consistent progress with anger management and self-advocacy, but had not made sufficient progress in other benchmarks. Academically, Student made steady progress, with improved attendance and in-class behavior and more ability to ask for help when needed. In reading, Student was making progress with decoding and fluency. In written expression, Student was making some progress but needed much teacher prompting and support for tasks such as using a writing map, constructing a sentence, or writing three paragraphs. In math, with much staff support, Student was doing basic operations, converting decimals to fractions and vice versa, and the like. His moods still affected his ability to complete work. (S-30). In March 2007, Student took the English and Math MCAS exams for the third time. This time, he passed both exams. (S-17, Student, Mother)
17. In the area of transition planning, Student met with his career counselor once per week and attended Career Education classes four times per week. He completed a “Junior Education Curricula,” which was a yearlong exploration of vocationally-related abilities, skills, and interests. (S-17)
18. Also, Student was employed during most or all of his junior and senior years at Dearborn. (Mother, Falvey) Beginning in when he was fifteen years old, he began part time work at an assisted living facility in Marlborough. Mother helped Student complete the application and prepare for the interview. Student was terminated from that job for taking a day off that he had not correctly requested. He immediately began looking for other work, completing many applications with Mother’s help. He eventually was hired by a local supermarket, and, except for periods away from home (as when he was attending Chapel Haven in Connecticut), Student has worked there part-time from his junior year to the present. Student works independently at the supermarket and generally performs well, but has ongoing difficulties with organization and time management (e.g., keeping track of his schedule, returning late from breaks). The supermarket staff are aware of his disabilities, and work collaboratively with Mother to support Student, e.g., by informing Mother of scheduling changes, simplifying instructions to Student, and the like. (Mother, Student, Falvey, P-10)
19. Student also has held on-campus jobs at Dearborn during his senior year, both in the school store and in the kitchen, while still maintaining his outside employment at the supermarket. When Student completed Dearborn, he was the student with the longest employment record. (Falvey)
20. In early February 2007, the Marlborough Public Schools referred Student to the Massachusetts Rehabilitation Commission (MRC or Mass. Rehab.) for transitional services, based on the assumption that MRC would provide Student’s adult services after Student was no longer eligible for special education. Mother and Student met with a case manager from MRC in March 2007. (S-17, Parent) MRC found Student eligible for services in its Priority I category in August 2007.1 (S-18)
21. On June 18, 2007, at the end of Student’s eleventh grade year, the TEAM convened for an annual review. The resulting IEP (S-17) called for continued placement at Dearborn and noted significant progress for Student academically, socially, and behaviorally during his junior year. Student reported that he had made many new friends, had enjoyed his pragmatic language group, ELA class and geography class, and had improved his ability to cope with frustration and anger. Student had been on the Dearborn basketball team, had attended the prom, got his learner’s permit, and had maintained employment. (S-17)
22. Parent also reported being pleased with Student’s progress, noting that while his new diagnosis of a chromosomal disorder (which he had received during eleventh grade) was challenging, Student had responded well to treatment, and Parent now had better insight into Student’s issues. (S-17)
23. During this TEAM meeting, the participants discussed that Student was working towards graduation in June 2008. Mother expressed that Student would require further services after finishing Dearborn, and informed the TEAM that she wanted Student to attend Chapel Haven, a private residential program described more fully below. (Mother) The School’s then-Director of Pupil Personnel Services, Dr. Kristen Esposito Balboni, recommended additional psychological, vocational and central auditory processing evaluations for Student, to assure the TEAM that Student would, indeed, be ready to graduate in June 2008. (Mother, Esposito Balboni)
24. Student’s IEP goals for twelfth grade included behavior, speech/language-communication, academic strategies, remedial reading, written expression, math, and career education/transition planning. (S-17)
25. With respect to this last goal (Career Education/Transition Planning), the IEP continued the services Student had received in eleventh grade, namely, a weekly individual meeting with the career counselor and a class in career education and transition planning that met four periods per week. (S-17). The benchmarks attached to this goal included Student’s attendance at all transition-related meetings, visiting programs of interest that would meet his academic and social needs, completing the “Senior Education Curricula,” maintaining his competitive employment, and maintaining on-campus employment. (S-17)
26. According to Mr. Daniel Falvey, Student’s career counselor at Dearborn during his junior and senior years, the senior transition program included counseling on career preferences as well as an intensive, comprehensive curriculum called “having a life.” (Falvey)
27. This course was a budget-based curriculum that focused on meeting basic needs with a salary that a student could reasonably expect to earn after graduation. Students were taught how to find an apartment, obtain utilities and health insurance, balance a checkbook, and budget for social activities. Additionally, Dearborn provided much discussion about “the importance of family and inclusion in the community…and what that means,” in recognition that transition from Dearborn would be “extremely scary” for many students. (Falvey)
28. Dearborn also helped students implement their transition to their post-secondary agency (usually MRC) by meeting with the MRC caseworker four or five times during junior and senior years, arranging for formal vocational assessments through MRC, and assessing students’ likely ability to function independently after school.
29. Mr. Falvey noted that in Student’s case, however, Mother took over most of Student’s transition planning during senior year, including meetings with MRC and applications to Chapel Haven. Mr. Falvey’s main involvement with Student’s transition during senior year (although he saw Student nearly every day) was to write a letter of recommendation to Chapel Haven and help him with social skills and issues that were coming up at Student’s job. (Falvey)
30. Under “Additional Information,” the IEP states that Student “has met the MCAS graduation requirements and is working towards meeting the graduation requirements of the class of 2008 for both Dearborn Academy and Marlborough High School.” This section of the IEP also indicates that MRC had recommended a functional vocational assessment, and Marlborough agreed to provide such assessment. (S-17)
31. Student attended his senior year at Dearborn pursuant to the IEP formulated in June 2007. In August 2007, Marlborough referred Student for the vocational assessment, as discussed in the prior IEP meeting and recommended by MRC. This evaluation took place at the start of the school year, in October 2007.
32. The vocational evaluation, conducted by Easter Seals of Massachusetts, consisted of various assessments of occupational interest and preference, along with tests of various skills, including reading, spelling, arithmetic, typing, office skills, mail sorting, clerical perception, dexterity. Additionally, the evaluator observed work behaviors including effort, concentration, response to directions, and cooperation. (S-20)
33. The evaluation revealed that Student had a high level of interest in the areas of “Protecting,” “Leading/Influencing,” “Physical Performing” and “Animal Care.” Areas of strength included “fair” manual skills. Possible occupational choices might be performing basic, supervised automotive tasks (changing oil, etc.), working as a parking lot attendant, entry-level animal care jobs (e.g., in a kennel).
34. Weaknesses requiring additional supports included Student’s reading and learning disabilities, and attentional disorder. The report recommended workplaces featuring a structured routine, clear expectations, easy access to a supervisor, as well as simplification of written instructions, use of checklists, and a job coach.
35. The report also noted that “[m]uch of [Student’s] vocational success will depend upon his growth in certain social-emotional areas such as interpersonal skills, self-esteem, and effectively dealing with stressors…” (S-20). The report recommended continuation of counseling services after Student left Dearborn. (Id.)
36. Finally, the report commended Dearborn for including vocationally-related training, and suggested that Student be provided with additional vocational experiences to expose him to a wider variety of job functions. In particular, Student could be given experiences related to animal care and outdoor activities (which was another area of high interest). The purpose of these experiences would be to impart some skills as well as further gauge Student’s interests. (S-2)
37. Student did have behavioral incidents leading to suspensions while attending Dearborn, as follows:
· Summer 2003 – brought Swiss Army knife to summer program; assured staff he would not hurt anyone, used for protection in neighborhood. Suspended and placed on safety contract, including cooperation with searches.
· January 6, 2004 – in-class argument with peer followed by overturning a desk, swearing, punching a window, attempting to assault the peer, throwing cup of tea across room, calmed down by staff. Three day suspension.
· January 20, 2004 – Angry yelling, swearing, and running from room when confronted by staff about suspicious behavior; charged into staff. One day suspension.
· January 27, 2004 – Swearing, punching window, slamming desk, etc. after argument with classmate. Three day suspension.
· February 24, 2004 – Screaming and charging at peer who was laughing, kicking staff attempting to stop him from hitting peer. Calm in a few minutes. Three day suspension.
· April 25, 2006 – While being suspended for possession of knife, swore and punched walls, then smoked outside.
· November 3, 2006 – Yelling and banging things when told to turn in cell phone, yelling at teacher. Two day suspension
· January 12, 2007 – Yelling, aggressive posturing, threats to staff when confronted about smoking while waiting for van. Calmed by other students and arrival of van. One day suspension.
· October 16, 2007 – Loud, agitated, swearing, kicking chair and radiator after angry exchange with peer. Two day suspension.
· October 28, 2007 – When director spoke to Student regarding cigarette in class, Student became agitated, swore, left office, swore in front of group of students, walked away, lit cigarette.
· January 3, 2008 – Agitation, slamming door, breaking phone when frustrated with it, ripping posters off wall. Calmed down. 1.5 day suspension.
· April 4, 2008 – Refusal to go to time out, swearing at staff, escalating anger when given dismissal, etc.
· April 14, 2008 – Upon being sent to “D-room,” got angry, threw chairs, left building. Three days suspension.
38. Early in his Dearborn career, Student struggled with posturing, threatening and rapid escalation from a calm presentation to a physically and verbally aggressive presentation, sometimes leading to suspension and physical restraint. These incidents were triggered by actual or perceived insults by peers. (P-7) Student also had trouble with using positive and critical feedback from staff to monitor his behavior, or responding to redirection without becoming rude, perhaps slamming a door or punching a wall, and then leaving the area. He also could get into negative interactions with peers, including teasing and instigating conflict. (S-31, 33)
39. Dearborn provided Student with behavioral plans and counseling to address these issues. During his eleventh grade year, Student made behavioral and social progress, but continued to have emotional outbursts. Student was able to use voluntary time-outs and contact with his counselor or other staff to calm himself down, and he was recovering more quickly from outbursts. (S-33).
40. Despite overall progress at Dearborn, during the fourth quarter of the 2007-2008 school year, Student had significant behavioral problems. According to the progress report dated June 11, 2008, behaviorally, Student continued “his pattern of explosive behavior and his suspensions continued. In April 2008 he had a very violent episode at school that led to a termination hearing [on April 17, 2008.] He was able to return and his behavior greatly improved over the last several weeks. However, he still required a great deal of support. With this support [Student] was able to complete graduation requirements…However, although he has made some progress, [Student] still has problems dealing with social situations, his own limitations and frustrations, and his inability to function independently in life. [Student is motivated to do better and succeed, but often needs a lot of support and space when dealing with stressful or upsetting situations. Although he met all the requirements to graduate Dearborn, he will need to continue to work on the skills he needs to be independent and successful in adult life.” (S-24)
41. Within Dearborn’s behavioral point system, Student was on Level 1 (which appears to be the lowest level) much of the time, although he reached Level 2 “quite a few times” during the same quarter. Student continued to have difficulty modifying negative behaviors in response to redirection, often responded to staff redirection by slamming doors, kicking chairs, or punching walls, and had trouble taking steps to contact staff for support. On the other hand, Student was able to take space when frustrated. The report concludes that Student “made little progress on the [behavioral] goals of his IEP this quarter and it will be difficult for [him] to reach his annual goal.” (S-24)
42. With respect to Student’s Academic Strategies goal, the June 11 progress report stated that Student’s “academic success was greatly limited by the frequency and duration of his time spent in the behavior management system.” (S-24) Student had problems with accepting feedback or redirection without emotional outbursts, as described above. In class, Student did not ask for help. He continued to be easily distracted by classmates or events in the hallway. He was easily frustrated with class work, classroom noise, and staff attention that he perceived as negative.
43. The June 11 report also addressed academic performance. In remedial reading, Student had benefited from the WKRP reading program, and informal assessments indicated that his comprehension was instructional at the fifth grade level, and would need support to meet his annual goal. For writing, Student still needed much assistance in using templates, and although making progress, was not able to independently complete the writing process. (S-24) In Math, Student appeared to be covering a number of topics, but needed much support. (S-24) Student’s sporadic attendance negatively affected progress in his academic subjects, as did his difficulty in remaining focused and in tolerating frustration. (S-24)
44. In general, by the time Student reached the end of his senior year, Student had made good progress, as discussed above. (Mother, Falvey, Yaffe, S-24). He was, however, one of the more significantly disabled students at Dearborn, and still had areas of need, in addition to the behavioral concerns referred to above. Specifically, Student continued to struggle with understanding, processing and properly interpreting what was said to him as a result of his language and auditory processing disabilities. He was prone to inaccurate recollection of events and conversations, to misinterpretation of things said to him, to being left behind in conversations because of slow processing, and to inaccurate and perhaps distorted retelling of even basic stories. (P-2, Falvey) He needed information to be broken down into smaller chunks in order to assimilate it. (Falvey) Student had greater cognitive limitations than most of his peers at Dearborn. Coupled with his eagerness to please others, these limitations made him vulnerable to manipulation by peers. Additionally, he continued to have problems with time management. (Falvey)
45. Meanwhile, during Student’s eleventh grade year, Mother identified Chapel Haven, a private residential program in New Haven, Connecticut designed for young adults with cognitive and developmental disabilities, as a suitable next step for Student after he completed Dearborn. Mother was concerned that Student would need to live away from home and receive additional services at that time in order to become independent. (Mother)
46. As reflected in the “Vision Statement” of the IEP for 2007-2008, referred to above, Mother discussed Chapel Haven at the June 18, 2007 TEAM meeting, stating that “she has identified a residential school in Connecticut that would provide the training and supervision she believes to be critical to his ability to care for himself…” At the same TEAM meeting, Student reported that he wanted to complete his senior year at Dearborn, and then “attend ‘college’ at the residential school identified by his mother in Connecticut.” Student reported that this program would help him learn additional independent living and self-care skills such as managing his own medication, getting up on time, and managing money. (S-17)
47. During the summer or early fall of 2007, Mother and Student applied for Student’s admission to Chapel Haven for the summer of 2008 and for the 2008-2009 school year. As part of the application process, they obtained recommendation letters from various individuals who worked with Student.
48. In one such letter dated September 20, 2007, Dr. Peter Yaffe, Ph.D., who had provided counseling services for Student on and off since the latter was in elementary school, stated that while Student had matured and made progress over the years, he “now needs help in developing independent living skills…[as] he is still quite dependent on his mother….” At the time he wrote the letter, it appears as though Dr. Yaffe had last seen Student in April 2007. (P-10). In testimony, Dr. Yaffe made similar statements, primarily based on his contact with Student and Mother. Dr. Yaffe opined that Student had made progress at Dearborn but was still significantly behind his peers in social and living skills, was still very dependent on his mother’s prompting even for basic hygiene and grooming, as well as for other life skills. In Dr. Yaffe’s opinion, Student would be unable to learn to live independently without a program with the intensity of Chapel Haven because he did not seem to learn from experience and needed much repetition and review to absorb information and skills. Dr. Yaffe had had no conversations with Dearborn staff since the 2007-2008 school year, had had no contact with Chapel Haven, and had read no progress reports from either Dearborn or Chapel Haven. (Yaffe)
49. In undated recommendation forms issued by Chapel Haven, Student’s pediatrician recommended Chapel Haven “to help [Student] to become a productive and independent adult.” Student’s supervisor at the supermarket recommended that Student attend Chapel Haven to learn time management skills. Student’s counselor from Dearborn, Mr. Frederick Allen, described Student as being affected by developmental and intellectual delays and problems with language pragmatics which negatively affected his interpersonal skills and caused him to misinterpret what others were saying. Mr. Allen also cited Student’s problems with impulsivity, poor decision-making, and poor executive functioning skills. (P-10)
50. Finally, in a letter dated June 11, 2008, Mark Dix, Director of Dearborn Academy High School stated that “[w]hile [Student] has completed his graduation requirements, his physical and cognitive growth are certainly incomplete, and he could clearly benefit from further learning and emotional support services…” The letter further stated that Chapel Haven seemed to be a good fit for Student, based on the information that Dearborn staff had received. (P-10)
51. Between October 24 and 29, 2007, Student spent six days at Chapel Haven for an assessment of his skills, strengths and weaknesses. During this time, he lived in an apartment operated by the program, and participated in vocational interviews, evaluations, site visits, group and individual instruction, and social/recreational activities. (P-11)
52. In a report written on November 7, 2007, Chapel Haven staff offered Student admission into its two-year residential program, based on its assessment of his skills, attitude and behavior as demonstrated during his visit. In that report, Chapel Haven identified Student as having relative strengths in basic math, menu planning, organizational skills, personal care skills, community/safety skills, apartment maintenance skills, leisure time management, and social/communication skills. He showed “relative limitations” in the areas of laundry skills, grocery shopping, meal preparation, mobility (travel) skills, time management, reading and writing skills, job seeking and placement skills, money management and budgeting, interpersonal relations, and “boundaries with following rules.” (P-11)
53. More specifically, Student was somewhat shy, but able to establish rapport with others. He had some time management problems, but tried to follow his schedule. He cooperated with assessment tasks. He had excellent personal hygiene/self care skills, and was fully independent in this area. He had fairly good apartment cleaning skills, and kept his room extremely organized. He had good laundry skills, and needed minimal assistance. He was able to select foods for menu planning and had good grocery shopping skills. He could prepare meals for his apartment group with some staff assistance. Student had fair money management skills. He could independently identify and count cash. He had banking experience. Student’s social communication skills were good; he was friendly and appropriate in conversation. In academic classes, Student prepared and behaved appropriately. He needed staff assistance with reading and writing, and “managing social skills” in class. (P-11)
54. Student completed written vocational assessments and visited work sites; his behavior was serious, polite and appropriate, and he demonstrated good understanding of the “do’s and don’ts” of the workplace. His hygiene and dress were appropriate. He was able to independently complete a job application. He appeared eager to learn and understood the importance of employment. (P-11)
55. Student could independently cross streets safely and otherwise be safe in the community. He had not used public buses, taxis, planes, or trains independently in the past, and would need assistance in learning how to do this. Student had a learner’s permit for driving. (P-11)
56. On or about February 18, 2008, about three months after Student was accepted by Chapel Haven, Mother had a meeting with two special education officials from Marlborough, Mr. Ned Pratt, Assistant Director of Pupil Personnel Services, and Mr. Larry Borin, who, at all relevant times, was the Out of District Coordinator. (Pratt, Borin) At that meeting, Mother informed Mr. Pratt and Mr. Borin that she felt Student should attend Chapel Haven upon leaving Dearborn, in order to live away from home and become independent. She also informed them that she would be refusing Student’s diploma. (Mother, Borin, Pratt) Mr. Pratt responded that in Marlborough’s view, Student would be graduating in June 2008, at which time Marlborough’s responsibility for his education would end, and that in any event, Marlborough would not fund a non-approved, out-of-state private placement for Student. (Pratt)
57. In a letter dated April 16, 2008, Mother informed Marlborough that Student would not be accepting a diploma in June 2008:
My son [Student] will not be accepting his diploma. Due to the fact that he has not made any of his goals on his ED Plan. You have also been aware that you are not in compliance regarding his speech therapy services on his ED Plan since 10/07. It is now April and my son has been without speech therapy services for several months. You have yet to offer anything that is equal to what I have already found for him at Chapel Haven School in Conn. He is and will be starting there on July 7 th 2008. I will be expecting to be [reimbursed] for all [monies] I have to pay out of pocket. (P-8)
58. Marlborough does not contest receipt of this notification.
59. Student completed Dearborn Academy in June 2008. He did not receive a diploma from either Dearborn or Marlborough but, rather, received a Certificate of Completion from Dearborn. Marlborough did not contact Mother or take any further action after Student completed Dearborn, or in response to Mother’s notification that Student would be refusing his diploma. (Mother)
60. In July 2008, Student began attending Chapel Haven. There, he shared an apartment with four fellow students and an overnight staff person. (Student, Tietjen) Student’s daily routine consisted of morning apartment chores (cleanup, breakfast, etc.), followed by “Good Morning Chapel Haven” (a group meeting for planning the day), classes or work, lunch, afternoon classes or work, and apartment life skills (preparing dinner, etc.) During the summer of 2008 and fall semester of the 2008 – 2009 school year, Student was enrolled in a variety of “core classes,” including General Etiquette, Basic Social Skills, Mobility I, Diversity, Nutrition, Community Safety, and Budgeting. He also participated in electives, including computer courses (web page design, MS Word, typing, email), Fitness, Internet Exploration, Consumer Math, Current Events and Kickball. During the second year of the program, students are involved in more vocational exploration in addition to classes and life-skills experience. (Student, Tietjen, S-35 – S-37)
61. Student arrived at Chapel Haven with strong life skills. From the outset, Student was independent with personal hygiene and grooming and with keeping his room clean and organized.2 (Tietjen) He also excelled at cooking and apartment maintenance. (Tietjen, S-35) He had basic meal planning and grocery shopping skills, and, while at Chapel Haven, worked on improving those skills. Very shortly after arrival, Student was able to use a bank independently for depositing and withdrawing funds. When Student left Chapel Haven, he was in the process of learning how to use public transportation in New Haven, including how to read schedules, budget for fare, and figure out which buses to take. (Tietjen)
62. Other areas of strength that Student demonstrated at Chapel Haven included being hard-working, generous, able to make friends, and generally respectful. (Tietjen) Areas of weakness included a tendency to be defensive or cocky with staff instead of asking for help, or to get involved with conflicts involving other people. Student also needed help with budgeting, both in terms of planning and actually adding figures, as well as other tasks that involved reading and/or writing. (Tietjen)
63. In August 2008, approximately one month after enrolling at Chapel Haven, Student asked for a job because he felt that he had too much down time. Although Chapel Haven students usually do not get jobs until after their 45-day review, Student was viewed as mature enough to do so. He first was placed on a work crew in a hospital, and then was transferred to another Chapel Haven work crew that was doing cleaning at a local military base. Once he had learned his job duties, Student was able to work fairly independently. (Student, Tietjen)
64. Student enjoyed Chapel Haven, and felt that he learned a great deal, especially in the areas of budgeting and money management. When Student came home on breaks, Mother felt that he had become more mature, organized and self-starting at home. (Mother)
65. Student attended Chapel Haven until the holiday break in December 2008. He did not return because Mother was no longer able to pay tuition. (Mother) Since leaving Chapel Haven, Student has been working part-time at the supermarket. (Student)
Speech/Language Therapy
66. At all relevant times, Student’s IEPs have called for speech and language services from a speech-language therapist, generally for one 45-minute session per week in a small group (one other student). (S-11) In approximately October or November 2007, Student’s speech-language therapist left Dearborn, and was not replaced. Marlborough became aware of the absence of a speech therapist at the TEAM meeting of February 25, 2008. (Mother, Borin)
67. Marlborough made attempts during March and April 2008 to locate a speech therapist to provide services for Student. Eventually, in early May 2008, a Marlborough Public Schools speech therapist was located who was willing and able to provide individual speech services to Student after school. The therapist met with Student for three sessions, for a total of 3.5 hours in May 2008. Student did not appear for two additional sessions in May. Email correspondence from the therapist indicates that she offered to reschedule, but that Student and Mother did not respond. Marlborough has provided no further speech-language services. (Borin, S-28)
MCAS
68. Dearborn School routinely administers the MCAS exams to students who are enrolled there. It also provides intensive test preparation services for students, including instruction in test-taking strategies and practice exams. Many or most Dearborn students take the exam more than once before passing – often two to three times– and virtually all have accommodations for their various disabilities. (Humber, Blevins)
69. At all relevant times, Dearborn’s administration of the MCAS was supervised by Ms. Kristen Humber, who is employed by Dearborn as a mentor teacher and counselor. Among other things, Ms. Humber is responsible for recruiting MCAS proctors from the Dearborn staff, training proctors according to the test administrator’s manual, including review of security requirements, reviewing pertinent student accommodations from their respective IEPs, and designating test spaces. Proctors are located in different areas of the building, and are assigned one or more students on the basis of the accommodations required. Students have no ability to choose their proctors. (Humber) Proctors are specifically instructed in the types of accommodations that each student is entitled to, as well as in the appropriate and inappropriate use of accommodations. (Blevins)
70. On the morning of each MCAS, Ms. Humber distributes test booklets to the proctors, who then proceed to their designated test areas. Ms. Humber then circulates to the different areas, throughout the day, so that she checks in with each student and proctor approximately once or twice per day. (Humber)
71. Because of his disabilities, Student received numerous accommodations for the MCAS. These included one-to-one testing, having the evaluator scribe responses for Student, breaks as needed, having the test questions read aloud, having a calculator, math fact charts, and pre-drawn graphic organizers available for use as needed. (S-11, Humber)
72. Student failed the MCAS examinations in English Language Arts (ELA) and Mathematics on his first two attempts. (The record does not indicate the dates of the first two exam sessions.) In at least one such attempt, Student’s ELA and Math scores were 218 and 214, respectively; Student needed to earn 220 points in each category to pass. After each failed attempt, Student continued to receive MCAS preparation instruction, which included practice tests. (Humber, P-5)
73. During his first two failed MCAS attempts, Student was assigned to a particular individual as his proctor. This person went on leave, and for the third attempt, in March 2007, Student’s proctor (as well as question-reader and scribe) was Ms. Lauryn Blevins. Ms. Blevins was a classroom teacher and small-group learning center instructor at Dearborn from August 2002 through June 2008. Ms. Blevins knew Student very well. She had provided one-on-one instruction to Student in the learning center, approximately twice per week during tenth, eleventh and twelfth grade. She also had accompanied Student to his larger math class once per week. In addition to her teaching role, Ms. Blevins was an assistant basketball coach and worked with Student in that capacity approximately two to three times per week during his junior and senior years. (Blevins)
74. Student passed the MCAS on the third attempt. His ELA score was 228 (a ten point increase) and his Mathematics score was 224 (also a ten point increase).
75. Student testified that during the ELA writing portion of the MCAS, Ms. Blevins did not do an exact scribing of Student’s responses to questions. Instead, he testified that she would erase his response and say “how about we just say this and this and this…make the story better.” (Student) Student further testified that Ms. Blevins did this “a couple of times,” and that he did not feel she was doing anything wrong, but that she was “doing her job.” On the math section, Student testified that “I’ll read the question, and she would write it down in the column, like a straight column. And if I got the answer – if I solve the problem, she’ll write down the answer, and I’ll circle in the note—scribble in the notebook the right answer…..” (Student) Student did not report these alleged events to anyone until approximately December 2008, when he reported them to his attorney. (Student)
76. Student’s mother testified that in approximately November 2008, at a meeting with Student’s attorney, Student had said that “when he was…read something [from the MCAS test] and he needed to respond to it verbally, his scribe didn’t write it exactly how he said it.” Further, in the math portion, Student reported that a problem was presented horizontally, and his scribe re-wrote the problem in a column. (Mother) Mother suspected that Dearborn had exceeded the bounds of allowable accommodations based on these reports, the ten-point increase in Student’s scores, and a statement that Student had made to the effect that if Students wanted to pass MCAS, they needed to “go see this lady because everybody who goes to this lady passes. So that’s what they did.” (Mother)
77. Mother was generally aware that Student had received MCAS instruction, and was entitled to accommodations, but did not recall precisely what those accommodations were at the time of hearing. (Mother)
78. Ms. Blevins denied providing any inappropriate assistance or accommodations to Student. She testified that she had scribed his dictated responses to the ELA questions exactly as stated by Student. She also testified that Student’s accommodations included graphic organizers for the written portion of the exam. With respect to Student’s increased scores over the previous exam, she stated that Student had had intensive instruction in both the subject matter covered by MCAS and in test-taking strategies and techniques, and had taken practice tests. Ms. Blevins further stated that each re-test was somewhat easier than the previous one. (Blevins)
79. Ms. Blevins, Ms. Humber and Daniel Falvey all testified that Student’s language-based disabilities would prevent him from accurately recalling and reporting events that allegedly took place during an MCAS exam given nearly two years earlier, in March 2007. (Humber, Blevins, Falvey) These conclusions are supported by testimony of other witnesses (e.g., Mother, Dr. Yaffe) as well as documentary evidence regarding Student’s difficulties with processing, comprehending, and remembering information. (Mother, Yaffe)
FINDINGS AND CONCLUSIONS
The parties agree that Student is a person with significant disabilities. The parties further agree that prior to June 2008, Student was entitled to a free appropriate public education (FAPE) as defined in federal and state law.3 At issue here is whether Marlborough incorrectly determined that Student was qualified to graduate from high school and, therefore, incorrectly terminated his special education eligibility in June 2008.
With respect to the first issue, a special education student may qualify for a regular high school diploma if he or she meets the coursework requirements of his or her school district and passes the MCAS examination. (According to DESE policy, a special education student who completes the graduation requirements of a private special education school in which he or she has been placed by the school district shall be deemed to have met the district’s coursework requirements for graduation. See Mass.DESE Administrative Advisory SPED-2002-4-Revised. According to at least some judicial and BSEA decisions, however, a district may not graduate a special education student unless that student also has made progress on or completed IEP goals and objectives and, where appropriate, has received adequate transition services. See Kevin T. v. Elmhurst Community School District No. 205 , 36 IDELR 153 (N.D. Ill. 2002); In Re: Quabbin Regional School District, BSEA No. 05-3115 (Crane, 2005 ); In Re: Carver Public Schools , BSEA No. 00-2574 (2001); In Re: Dracut Public Schools , BSEA No. 08-5330 (Crane, 2009)
Here, there is a threshold dispute as to whether Student even met the technical requirements for a high school diploma. While the parties agree that Student fulfilled Dearborn Academy’s – and thereby Marlborough’s—course requirements for high school graduation, Parent and Student allege that Student did not pass MCAS on his own merit. They contend that the teacher who served as Student’s proctor, reader and scribe during the exam improperly substituted her own words for those of Student during the writing portion of the exam, and improperly wrote a column of figures on the math portion. Based on a review of the evidence at hearing, I find that the Parent and Student have not proven this allegation. The sole evidence on the record in support of the Parent and Student’s claim is Student’s testimony that a couple of times, Ms. Blevins wrote responses to unspecified questions that were not his exact words, and rearranged the numbers in a math problem from horizontal to vertical. Student’s testimony is not corroborated by documents or witness testimony. Instead, it is undermined by the statements by other witnesses (including Ms. Kimber, Ms. Blevins, Mr. Falvey) and documents to the effect that Student’s disabilities contribute to his being an unreliable reporter of events, especially those that happened nearly two years earlier. The testimony is further countered by Ms. Blevins’ statement under oath that she did not inaccurately scribe Student’s responses in the ELA exam, and, further that she did not scribe at all in the math portion. Ms. Blevins’ testimony regarding the extensive test preparation and instruction, including practice tests, as well as the considerable number and scope of accommodations to which Student was entitled provides a basis to conclude that Student was confusing events during test preparation instruction with those during the examination itself.
A second question is whether Marlborough provided Student with adequate transition services as required by federal and state law, and, if not, whether Student’s graduation deprived him of FAPE. Answering this question requires an examination of the statutory and regulatory provisions governing transition services.
A major purpose of the IDEA is to “ensure that all children with disabilities have available to them a free and appropriate public education …designed to meet their unique needs and prepare them for further education, employment and independent living. 20 USC Sec. 1400(d)(1(A). Towards this end, school districts are required to provide transition planning and services to all students who are approaching adulthood, beginning at age 14 in Massachusetts. According to the IDEA:
The term “transition services” means a coordinated set of activities for a child with a disability that—
1. 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…continuing and adult education, adult services, independent living, or community participation;
2. is based on the individual child’s needs, taking into account the child’s strengths, preferences, and interests; and
3. 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.
20 USC Sec. 1401(34). ]
The corresponding federal regulations essentially track the words of the statute, and further state that “[t]ransition services…may be special education…or a related service…” These regulations go on to provide that “beginning not later than the first IEP to be in effect when the child is 16 (14, in Massachusetts), and updated annually thereafter, the IEP TEAM must include the following within each IEP: (aa ) appropriate measurable postsecondary goals based upon age appropriate transition assessments relating to training, education, employment, and, where appropriate, independent living skills.” 34 CFR Sec. 300.43 (a) – (bb). Appropriate transition services are a component of FAPE. As such, they should be evaluated “in the aggregate and in light of the child’s overall needs.” Lessard v. Wilton Lyndeborough Cooperative School District , 518 F.3d 18, 30 (1 st cir. 2008).4
Here, Mother fully accepted the IEPs for Student’s junior and senior years, and thus is precluded from now claiming that the transition services incorporated into those IEPs were inadequate. Nonetheless, the transition services provided or offered to Student do meet the FAPE standard. Marlborough, through Dearborn Academy, began providing Student with transitional planning and services during the 2006 – 2007 school year (junior year), and continued these services through 2007-2008 (senior year). These services included individualized counseling, a sequential program of practical group instruction in both employment-related and independent living skills, referral to MRC, a formal vocational assessment, and provision of on-campus employment. From the record, it appears that these services addressed or attempted to address both Student’s vocational needs and the interpersonal and academic weaknesses that impacted Student’s ability to live independently after high school. Moreover, as Mr. Falvey testified, Dearborn was prepared to work intensively with Student and MRC during Student’s senior year to help ensure a smooth transition to that agency. This work did not take place, however, because Mother and Student had decided that Student would be attending Chapel Haven.
Aside from the vocational evaluation referred to above, neither Dearborn nor Marlborough appears to have formally assessed, in the context of transition, each of the skills that Student would need to live and work independently. It is clear from both the testimony and documentary record (e.g., progress reports) however, that Dearborn staff knew Student extremely well, had an excellent grasp of his strengths and needs, and were invested in his success. Staff members also had a longstanding relationship with MRC along with valuable experience with transitioning students to the auspices of that agency. In sum, Student received timely, comprehensive group and individual transitional services during his last two years at Dearborn and had the opportunity to receive even more assistance during his senior year.
The final issue is whether Student has made sufficient progress on meeting his IEP goals and objectives such that he should be graduated from high school. Failure to meet such goals does not necessarily invalidate a diploma. See Carver , supra, and cases cited therein. However, at least one court has found that a school’s failure to consider whether a student had made progress on IEP goals and objectives rendered its decision to graduate a student inappropriate, even though the student had earned sufficient course credits to graduate. Kevin T. v. Elmhurst , supra .
In the instant case, the record reveals that while Student had made much progress at Dearborn, as of June 11, 2008 he seemed unlikely to achieve his behavioral goal, and was struggling to make progress with academic strategies. In particular, Student’s continued struggles with emotional control and related sporadic attendance in the Learning Center, interfered with his ability to meet his behavioral and some of his academic goals by the end of his senior year. See Findings of Fact Nos. 43 – 45, above. There is no question but that when Student left Dearborn, although he had acquired skills, he still required a significant amount of specialized services and support in many areas, including executive functioning and time management, emotional control, communication, navigating social situations, and functional academics, all of which impact Student’s eventual ability to live independently and function in the workplace. Student had been one of the most intellectually and linguistically challenged of the students at Dearborn, and although he had made significant progress, he had much to learn.
While it is true, as Marlborough argues, that most young adults, with or without disabilities, normally struggle with many of the same issues faced by Student, the record indicates that Student continues to need a significant amount of explicit, concrete, instruction and support.
Again, failure to achieve IEP goals is not, per se , grounds for invalidating a diploma, and neither is a student’s lack of preparation to live fully independently. Here, however, the degree of Student’s continued unmet deficits in the areas referred to above, and the need for a significant amount of specialized instruction and support in addressing these areas, tip the balance in favor of a determination that he should not have graduated, and was entitled to continued eligibility for special education services to address his areas of weakness, after June 2008.5 As the School has pointed out in its brief, Student’s disabilities will present him with challenges throughout his life, and these challenges will not be eliminated by additional services from Marlborough. On the other hand, this is a case where looking beyond a mechanistic application of graduation standards promotes the purpose of the IDEA, i.e., to “prepare [Student] for further education, employment and independent living.” 20 USC Sec. 1400(d)(1)(A).
Having determined that Student’s special education eligibility should have continued past June 2008, I reach the question of appropriate relief. Mother and Student seek reimbursement for the costs of Chapel Haven, together with prospective funding for that placement. I decline to order Marlborough to provide such funding, however. A parent’s claim for reimbursement for the costs of a private placement is in the nature of an equitable remedy. Diaz-Fonseca v. Commonwealth of Puerto Rico , 451 F.3d. 13 (1 st Cir. 2006). It is appropriate, therefore, when considering reimbursement for past expenses, to address the balance of the equities. In the usual case, parents may be reimbursed for a unilateral placement when the school district has failed to offer or provide FAPE, and the placement selected by the parent is responsive to the child’s special needs. Here, however, all the School needed to offer Student in June 2008 in order to afford him FAPE was continued eligibility, which would have entailed a TEAM determination of Student’s post-Dearborn educational and needs and appropriate services. Meanwhile, Parent had determined, prior to Student’s graduation, that Chapel Haven was the appropriate “next step” for Student after completion of Dearborn, and that she would not have accepted any other program offered by Marlborough unless it was comparable. While Mother and Student may have had good reasons for selecting Chapel Haven, I find that it would be fundamentally inequitable to award reimbursement for that placement, which far exceeds the continuing eligibility and TEAM determination of services that would have met the School’s FAPE obligation in June 2008.
Further, Mother and Student have not presented sufficient evidence to warrant Marlborough’s prospective funding of Chapel Haven. Chapel Haven provided Student with an out-of-home living situation, which Student enjoyed, and may have found helpful. However, the evidence on the record does not support a finding that Student needs a residential placement to receive FAPE. Student made effective progress in Dearborn, a day program, even though he did not make enough progress to warrant graduation. The record simply does not indicate that he now needs a residential setting to continue such progress. Moreover, the record indicates that Student arrived at Chapel Haven already in possession of many or most of the self-care, community, and daily living skills that the program teaches. Further, even in the second year of the program Student would receive vocational exploration (which he already has experienced) but none of the actual vocational training that he needs.
Based on the foregoing, Student should not have graduated from the Marlborough Public schools in June 2008, and should be deemed eligible for special education, retroactive to the date of termination. Pursuant to Federal law, Marlborough should conduct any assessments needed for an updated picture of Student’s current skills and needs, and then convene a TEAM meeting to develop an IEP that responds to Student’s current needs.
Speech/Language Therapy :
The record shows that Student missed numerous speech/language therapy sessions during the 2007-2008 school year. Some, but not all of these have been made up. Parent and Student missed some sessions and did not follow up on inquiries regarding rescheduling in May 2008. Once Student began Chapel Haven, he was unavailable for speech therapy. Considerable time elapsed between Dearborn’s loss of its speech therapist in approximately November 2007, or even the TEAM meeting in February 2008 at which Marlborough was first informed of the vacancy, and the first “make up” sessions of therapy provided in May 2008. Marlborough must make up the remainder of the sessions owed, at mutually convenient times and locations to the extent feasible.
ORDER
Within thirty days from receipt of this Decision the Marlborough Public Schools shall do the following:
1. Conduct any assessments that may be necessary to determine Student’s current functioning in all areas of need and to formulate special educational services;
2. Convene a TEAM meeting to develop an IEP reflecting the updated assessments.
3. Calculate the number of speech-language sessions still owed to Student and develop and prepare to implement a schedule of “make up” sessions as referred to above.
By the Hearing Officer:
____________________ _____________________________
Sara Berman
1
MRC’s Priority Category I applies to an “individual with a most significant/severe disability.” (S-18)
2
According to Mother, however, Student needed frequent prompts from her in these areas.
3
The IDEA defines FAPE as special education and related services that (A) are provided at public expense and under public control; (B) meet the standards of the state educational agency; (C) include an appropriate preschool, elementary, or secondary school education; and (D) are provided in conformity with a properly developed IEP. 20 USC Sec. 1401. The Massachusetts special education statute, G.L. c. 71B, Sec. 1 (“Chapter 766”) defines FAPE as special education and related services that conform to the IDEA and its regulations and also “meet the education standards established by statute or…by regulations promulgated by the Board of Education.” G.L. c. 71B, Sec.1. Relevant case law defines FAPE as, among other things, educational services that enable the eligible child to derive educational benefit, and make meaningful progress in the areas identified as special needs, in light of the child’s potential. See generally, Hendrick Hudson Bd. of Education v. Rowley , 458 U.S. 176, 188-9, 203 (1992); Burlington v. Mass. Dept. of Education , 736 F.2d 773, 788 (1 st Cir. 1984); Lenn v. Portland School Committee , 998 F.2d 1083 (1 st Cir. 1993).
4
A recent BSEA decision contains an exhaustive listing of pertinent cases; see, In Re Dracut Public Schools, supra, BSEA No. 08-5330 (Crane, 2009)
5
The evidence does not support a finding that Marlborough failed to give Mother or Student adequate notice of impending graduation or of its implications for Student’s special education rights. Mother and Student were aware that Student was expected to graduate in June 2008, and Mother was aware of her rights, as evidenced by her written advance rejection of the diploma in April 2008.