COMMONWEALTH OF MASSACHUSETTS
BUREAU OF SPECIAL EDUCATION APPEALS
BSEA# 06-4721
IN RE: MARSHALL1 v HARWICH PUBLIC SCHOOLS
DECISION
This decision is issued pursuant to M.G.L. c.71B and 30A, 20 U.S.C.§1401 et seq ., 29 U.S.C. §794, and the corresponding regulations. A hearing was held at the Bureau of Special Education Appeals (BSEA) in Malden, MA on February 27, 2007 and February 28, 2007. The matter was continued at the request of the Parties on February 28, 2007 in order to receive and review the written transcription from the hearing.2 The record closed on April 30, 2007 when written closing arguments were received from both Parties.
Those present for all or part of the hearing were:
Mother (pro se)
Father (pro se)3
Marsha Stevens Educational Consultant for Family
Shannon Scarry Psychiatrist for Student
Steven Wilson School Psychologist, Harwich Middle School
Nancy Barnett Psychologist/Former Guidance Counselor, Harwich Elementary School
Cheryl Grady Education Specialist, Harwich Elementary Schools
Peter Norton School Psychologist, Harwich Elementary Schools
Deborah Darson School Adjustment Counselor, Harwich Middle School
Mary Childress Principal, Harwich Middle School
Linda Dillon Occupational Therapist (OT) Cape Cod Collaborative
Pam Reuss Sixth Grade Teacher, Harwich Pubic Schools
Peter Bertucci Former Director of Pupil Personnel, Harwich Public Schools
Vida Gavin Interim Director of Pupil Personnel, Harwich Public Schools
Anthony Teso Current Director of Pupil Personnel, Harwich Public Schools
Kathleen Yaeger Attorney for School District
Mary Ellen Sowyrda Attorney for School District
Joan Beron Hearing Officer, BSEA
Laurie Jordan Court Stenographer, Catougno Court Reporting
The official record of the hearing consists of Parents’ Exhibits marked P1-P50 and School Exhibits marked S1-S104 and approximately two days of stenographic recorded oral testimony.
ISSUES
I. Should Marshall have been found eligible for special education on April 5, 20044 and at the TEAM meetings thereafter?5
II. If so, is Marshall entitled to compensatory education and/or did Harwich commit procedural violations that denied Marshall a FAPE thus entitling Marshall to compensatory education?6
III. Does Harwich’s proposed partial IEP at Devereux or like facility and an extended evaluation provide Marshall with a free appropriate public education (FAPE) in the least restrictive environment (LRE)?
IV. If not, will accommodations or modifications to this IEP provide an appropriate program for Marshall?
V. If not, does Marshall require an out of district residential program in order to receive a FAPE in the LRE?
VI. If so, does the Hillside School provide Marshall with a FAPE in the LRE entitling Parents to reimbursement for educational expenses at Hillside?
VII. If so, is Hillside an appropriate prospective placement for Marshall?
FINDINGS OF FACT
1. Marshall is a thirteen-year-old Harwich resident who lives with his Parents and a younger brother and sister (Mother, P11). Marshall currently attends the Hillside School as a residential student where his Parents unilaterally placed him in 2006; ( see Mother).
2. Marshall was first evaluated when he was four years nine months old by Occupational Therapy Associates (OTA). At that time Marshall was in a private preschool (1A). The OT found that Marshall had moderate to significant difficulties modulating touch, sounds and possibly visual stimulation along with some difficulty gauging how much force to use with his hands and writing tools (1A). The OT recommended refinement of Marshall’s fine-motor skills through short-term OT and consultation to Marshall’s preschool teachers and monitoring of visual motor and visual perceptual motor skills (1A).7
3. Marshall entered kindergarten in September 1999 (SY 99-00). Mother had told Harwich, in Marshall’s kindergarten screening, that Marshall resisted rules, had unclear speech, had difficulty expressing his wants, needed instructions often repeated, and had difficulty following routines (1B). She also told Harwich that Marshall had motor difficulties including difficulty with pencils and other school materials, difficulty buttoning and zipping, and poor control of body movements; Id . Although Marshall was able to grasp the academics Marshall was often impulsive and overstimulated in the classroom and was in motion during group time (2B, see also 2A, 2D). Harwich, through regular education, instituted modifications and a three step behavior plan8 ; work on gross motor and fine motor skills in a small group setting twice a week, a motor group with the OT once per week, sensory accommodations (i.e., breaks, a weighted vest) and help with transitions including holding of a teacher’s hand when walking in the hall, and assigned seating and monitoring at lunch (2A).
4. Marshall’s kindergarten teacher conducted an ADD behavior rating scale on January 26, 2000. The special education teacher conducted an educational evaluation on February 10, 2000. The school psychologist conducted a WISC-III on March 12, 2000 and a classroom assessment was conducted on April 15, 2000; ( see 2A-2D). Cognitive assessment showed that Marshall was in the superior range of intellectual functioning.9 Marshall’s fine and gross motor skills had improved since September and testing showed that Marshall had average visual perceptual skills and average phonemic awareness (2B). The kindergarten teacher recommended that the accommodations continue and that the TEAM consider a 504 plan to formalize the accommodations and behavioral plan (2B). However the TEAM did not recommend formal services; see (P4).10 Marshall’s kindergarten progress report showed that he needed improvement in following directions and in social skills but that he had made improvement in both areas by the end of the year; ( see 5B).
5. Marshall continued in 1 st grade at the Harwich Elementary School (SY 00-01) (P7A-C). He received one disciplinary incident report in September for unsafe behavior on the playground and one in October 2000 for disrespectful behavior in the classroom that resulted in a self improvement plan; four reports in November 2000 and one incident report in December 2000 for disrupting class or disrespectful behavior in class or the cafeteria that resulted in a self improvement plan and loss of recess privileges; one incident in January 2001 for disrespectful behavior, one incident in February 2001 for a bus incident resulting in a bus plan, and three incidents in March 2001, one for noncompliance on the playground and two incidents for disrespectful behavior on the bus which resulted in loss of bus privileges (P7A). However Marshall showed good progress in his reading, writing and math skills and improvement in his work habits; ( see P7B). At the end of the year Marshall’s 1 st grade teacher commented that Marshall was having a great second term, that he was working hard on his checklist which was an important part of success in the classroom, and that his handwriting was improving. His 1 st grade teacher noted that Marshall did need to work on having all his work done with responsible work habits (P7B).
6. Marshall continued 2 nd grade at the Harwich Elementary School (SY 01-02). He had a difficult first week, not finishing his work on time, not keeping his hands and feet to himself, walking into the girls’ bathroom pretending to stab a girl with a pencil and noncompliance; ( see P8A, B, C). On September 22, 2001 Father wrote to the Principal asking that his second grade teacher be reassigned because Parents felt that the teacher could not manage Marshall and that they did not believe that the home school log where the teacher documented Marshall’s behavior was productive because the list was used to reflect only failure and did not provide positive feedback; see (P8)11 . Harwich did change Marshall’s second grade teacher; see (P9). In October 2001 Marshall remained at risk on the ADD rating scale. In November 2001 he scored below the 10 th percentile for adaptive functioning and in the 9th percentile for aggressive behavior on the Achenbach scale (P10). Marshall was evaluated by a pediatric neurologist on or about November 5, 2001 to address concerns of a poor attention span, disruptive behavior in the classroom and aggressiveness toward other children (P11). The neurologist recommended that Marshall receive preferential seating in the classroom, extra time and extra help on assignments, breakdown of instructions, continuation of speech therapy for articulation, and a behavior modification program that emphasizes positive reinforcement (P11). The neurologist did not recommend further OT as Marshall’s hand-eye coordination was age appropriate and had improved (P11). Marshall finished second grade with good marks for all his academic and special classes with his conduct and class participation improving in health, music, and P.E.;( see P13A). Marshall however continued to have trouble in his social emotional skills such as observing school rules, courtesy, and demonstrating self-control; ( see P13A). He received one bus incident report on January 11, 2002 for hitting students as they departed from the bus and another on April 25, 2002 for making fun of a kindergarten student (P13B). Harwich reported nine other disciplinary incidents that year for disrespectful behavior; see (P13C). Parents feel that this disciplinary record is incomplete and inaccurate; ( see P13C).12
7. Marshall’s third grade (SY 02-03) report card shows very good to commendable performance in reading, language arts, social studies and science and mostly good performance in work habits. He scored in the proficient range in his MCAS reading test; ( see P14A, S73). However Marshall’s interaction with his peers, his ability to behave appropriately, to listen attentively and follow directions had slower progress and Harwich reported nine disciplinary reports that year; see (S14A, S14B). Parents also feel that these disciplinary records are incomplete and inaccurate.13
8. Marshall received a private educational evaluation during September of 4 th grade (2003) by John Beach of Bridges Associates due to Mother’s concerns that Marshall was disruptive in school and demonstrated aggressive behavior at home14 , particularly with his younger sister (P15). Mr. Beach also interviewed Parents and had them complete an attention control inventory. Mr. Beach also spoke to Marshall’s third grade teacher (P15). Responses on the Attention Control inventory were inconclusive for a diagnosis of a primary attention problem. Marshall’s third grade teacher noted that Marshall had difficulty staying still, and had diminished writing output due to motor problems that were frustrating for him. She also told Mr. Beach that Marshall had poor social skills, did not readily recognize body clues or when he was antagonizing peers. His teacher also reported that Marshall had at times been physically aggressive and that she was not sure how much empathy he had when he hurt someone. Marshall obtained a full-scale score of 117 on the WISC IV placing him in the high average range of intellectual ability. However while all scores were in the average range, Marshall’s verbal comprehension scores were 17 scaled points higher than his perceptual reasoning index with his lowest scores in tasks that require visual perceptual and visual motor skills, thus suggesting that Marshall would be more efficient on higher level stimulating activities than on rote activities (P15). Results on the Woodcock Johnson Tests of Achievement show academic achievement in the average to superior range with the exception of math fluency that was at the high end of the low average range (P15). He worked slowly when writing with difficulty in motor sequencing, eye/hand coordination, and at times posture; however, letter formation was legible. Mr. Beach concluded that Marshall had many characteristics consistent with Asperger’s syndrome, a primary attention disorder and also showed many symptoms seen in a child with a mood disorder and a disorder of written expression; however, Mr. Beach but did not diagnose Marshall with any of these disabilities.15 Mr. Beach did however recommend that Marshall have preferential seating and opportunity for frequent movement throughout the school day. Mr. Beach also recommended that Marshall’s listening environment be carefully structured.16 He also recommended accommodations to decrease off task behavior including a more controlled sensory environment such as structuring recess and that the family seek out professional attention to address social and emotional issues.
9. Parents received Mr. Beach’s evaluation in November and sent it to Harwich (Mother). On December 4, 2003 Harwich sent notice of a meeting invitation for December 19, 2003 (P16). On January 6, 2004 Harwich requested that it be allowed to evaluate Marshall (P17, S25). Mother17 consented to these evaluations on January 12, 2004 (P17, S25, see also S24). Harwich reviewed Marshall’s educational history and also administered speech and language and OT evaluations in February 2004, administered the Test of Written Language (TOWL) in March and an educational assessment in early April ( see P18A-E, S79-83). It did not conduct a psychological evaluation because Mr. Beach’s evaluation had recently been conducted (Darson). All of the specialists referenced Mr. Beach’s report; ( see P18A-C). On the TOWL, Marshall scored in the above average range (84th percentile) in vocabulary, and in the average range in all other categories (the 75 th percentile in the spelling and contextual conventions subtests, the 63 rd percentile in writing style and sentence combining, the 50 th percentile in contextual language and logical sentences and the 37 th percentile in story construction) (P18A). He also scored in the average range on three normed pragmatic tests18 administered by the speech/language pathologist (SLP). Marshall also scored in the average to above average range in his visual perceptual and visual motor skills and his fine motor skills were age appropriate showing no difficulty completing subtests within the allotted time; (P18C). The OT also noted normal sensory and processing skills. Marshall’s 4 th grade teacher believed that Marshall was making effective progress but did also note that behavior issues were impacting Marshall’s learning and that Marshall’s interpersonal skills, while evolving, were not age appropriate needing work in large group settings; ( see P18D, P18E).
10. The TEAM reconvened on April 5, 2004 (P19, S22, see also S23). Harwich found that Marshall had a specific learning disability but that he was making effective progress in school and was deemed not eligible for special education; ( see P19, S22, Norton). Parents did not ask, nor did Harwich make a determination regarding whether Marshall was eligible for a 504 plan (Norton, Mother). However the TEAM did determine that Marshall would receive regular education accommodations in class such as reminders to proofread, graphic organizers, peer editing, informal instruction on computer software and participation in a social skills group with guidance support staff (P19, S22)19 Parents did not feel that the TEAM adequately reviewed Mr. Beach’s evaluation or that Part A of the IEP adequately discussed Mr. Beach’s report or previous evaluations or that the information contained in Part A of the IEP explained how Marshall’s behavior impacted his learning and class participation despite his academic potential or his below grade level social skills or disciplinary incidents or his handwriting and attention deficits (Mother). Parents were given a parents’ rights brochure (P19, S22). Parents did not appeal the finding of no special needs (Mother, Norton).
11. Marshall completed 4 th grade (SY 2003-2004) with satisfactory marks in all areas for all three marking periods except for his conduct in health during the 1 st and third quarters and his musical performance during the 3 rd quarter; ( see P21A). He also received a proficient score on the MCAS English/Language Arts test and scored in the advanced range in Mathematics (S84). Marshall may have received disciplinary action in 4 th grade because Parents received a disciplinary report for the 2003-2004 school year; however there are no disciplinary incidents recorded for that school year (P21B). The report is dated November 30, 2005 and only contains an incident that took place during September, an incident that took place in October 2000, and two incidents that occurred in November 2000. However, in 4 th grade Mother was called into school on one occasion for continuing incidents on the bus; ( see P21B). Marshall was also often sent out in the hall by his teacher for acting up in class (Mother).
12. Marshall entered the Harwich Middle School in 5 th grade (SY 04-05) (Mother, Darson). During that year Marshall had a series of disciplinary incidents; ( see P23B). The first incident occurred on September 23, 2004 for standing on top of a cafeteria table and failing to write an apology to the teacher (P23B). Marshall wrote the apology in the school adjustment counselor’s office (Deborah Darson) and added a note to his planner to discuss the incident with Parents.
The second incident occurred on October 8, 2004 after Marshall made a remark about gas coming out of the gas jets, turning into a fireball, and burning down the school. Harwich phoned Parents and told them about the incident (P23B). Marshall was also told of the possible consequences of making such a remark in the future and required to make an apology to the teacher and student about the inappropriateness of his remarks.
On October 12, 2004 Marshall received a warning for passing notes to a peer telling him that his mother was a “f***ing bitch”. Harwich phoned Mother and sent Marshall to see Ms. Darson. Marshall was required to write 10 strategies to help cope with his feelings when he was bored, upset, sad or disappointed and to return the list to Harwich the following day (P23B).
13. Marshall received no other disciplinary reports until March 30, 2005; ( see P23B). However, this disciplinary incident resulted in a two-day suspension because Marshall had created a flipbook made out of Post-it pads that had on the first page contained the statement “you want to give [student’s] Grandma a hickey and you drink from her dushbag [sic] and you…”[sic]20 . The following page contained the words “KILLER STICK FIGURES” followed by a series of pictures that showed, when flipped, one stick figure with a weapon approaching the other stick figure, the two stick figures fighting, the figures being killed, and a plane falling from the sky and crashing into either a tree or a building; ( see P23C). The Assistant Principal informed the school resource officer (Kevin Consodine) about the note and asked Mr. Consodine to speak to Marshall and his Mother about the incident because the note was written about another student who had been bullied in school (P23C). The Assistant Principal also sent home a letter to Parents that day indicating that Marshall was suspended for March 31, 2005 and April 1, 2005 and could return to school on Monday, April 4, 2005 after a meeting with Marshall, at least one of his parents, the school counselor Deborah Darson and Mr. Consodine; ( see Mother, P23A, P23C). The Assistant Principal added that she hoped that between the combined efforts of school and home, that they could help Marshall develop a more realistic view of his actions, attitudes and resulting consequences (P23A). At the meeting, the Parties determined that the drawings did not depict violence toward the school and Harwich and Mother were comfortable that Marshall would not act out his drawings (P23C).21
14. On March 31, 2005 Officer Consodine issued an incident report. The report indicated that Marshall was a juvenile and under status wrote, “No crime involved”.22 Under events was written “SUSP. INCIDENT REGARDING STUDENT DRAWINGS/WORDS”. At some point in late April or early May 2004 Mother learned of the incident report and asked to talk to the school officer (Mother, see P23C). The meeting occurred on May 4, 2005; ( see P23C). Mother expressed her concerns that a case was generated at the police department concerning the incident and that this incident would be attached to Marshall in the police computer department (Mother, see also (P23C). The student resource officer told Mother at he was required to document what he did on a daily basis especially when there were parent or parent/student meetings.23
15. On June 27, 2005 Parents again met with the school adjustment counselor Ms. Darson because Marshall had made four references to harming himself (P23C). Mother told Harwich that Marshall would be seeing someone at the end of July 2005 (P23C). Ms. Darson asked Mother to sign a release to speak to the counselor (P23C). Mother did not sign the release (Mother, Darson).
16. On June 28, 2005 Marshall drew a picture of a middle finger sticking up in a student’s yearbook. Mother paid for a new yearbook for this student. Ms. Darson reiterated the need for Marshall to see a counselor. Mother agreed to meet with Harwich before July 11, 2005 to discuss giving consent for Harwich to talk with the counselor; see (P23B, Darson).
17. Marshall completed 5 th grade with 5 A’s, 8 B’s and 1 C; see (S68).
18. Marshall was privately evaluated by David Presnall on August 15, 2005 and August 30, 2005 (P30G/S78). Dr. Presnall interviewed Mother and looked at the records24 she provided him and administered the Wechsler Intelligence Scale for Children-4 th Edition (WISC-IV), the Wechsler Individual Achievement Test-2 nd Edition (WIAT-II), the Developmental Test of Visual-Motor Integration (VMI), the Attention Deficit Disorder Scale, the Burks Behavior Rating Scale and the Gilliam’s Asperger Disorder Scale (P30G/S78). Dr. Presnall did not speak to anyone from Harwich nor did he observe Marshall in school; see (P30G/S78).
On the WISC-IV, Marshall scored in the 99 th percentile in verbal comprehension, in the 96 th percentile in perceptual reasoning, in the 76 th percentile in working memory and the 34 th percentile in his processing speed (P30G). Dr. Presnall felt that the 40 standard score points between Marshall’s highest and lowest standard scores on the WISC IV along with scores in the 14 th percentile on the VMI was reflective of a learning disability or difficulty in processing speed; ( see P30G). While Marshall’s scores on the WIAT-II ranged from the 90 th to 99 th percentile in reading, spelling and math, he scored in the 4 th percentile in written expression due to weaknesses in organization and production; ( see P30G).
Marshall’s behavior was assessed through parental report on the Burks Behavior Rating Scales (Burks), the Attention Deficit Disorder (ADD) evaluation scale and the Gillian Asperger Disorder Scale (P30G). Parents reported that Marshall was prone to guarding his feelings except when upset, that he lacked confidence in his abilities and was satisfied with less than his best effort and was often unhappy, tended to withdraw from social contact, and was difficult to get to know. Parents also reported that Marshall was easily angered and frustrated and tended to explode when under stress. Marshall was also often resistant to the ideas of others, often wanting to do things his own way (P30G). They also reported that Marshall showed little respect for authority but was not overly hostile or aggressive and not regularly threatening toward others; Id. Marshall was reported to be highly impulsive and at times restless, nervous or fidgety. However, Parents reported scores on the ADD evaluation scale and on the Burks did not show marked patterns of inattention or distractibility despite his low frustration tolerance; Id. Marshall did often interrupt others and was prone to rocking even at meals; Id. Parents’ scores on the Gillian’s Asperger Scale fell within the range of scores “likely” to indicate Asperger’s Syndrome. Dr. Presnall found that although Marshall did not present any early signs of disturbance in his behavior patterns, reports on the rating scales showed that Marshall had weak social interaction, restricted pattern of inactivity and difficulties with certain pragmatic skills such as fantasy activity, difficulty at times, reading social cues and displaying recognition of other’s feelings, sensitivity to sounds and other stimuli, difficulty in working in groups, and difficulty projecting likely consequences from his choices.
Dr. Presnall recommended that Marshall receive special education support in written language with accommodations such as reduction in his written output or through keyboarding. He also recommended that Marshall receive behavioral programming and social skills training in school and that he continue with his outpatient psychotherapy (P30G).
19. In August 2005 Parents wrote to the Middle School Principal, Mary Childress, to request a meeting. Parents asked Harwich to work with them regarding a plan for addressing any further disciplinary incidents involving Marshall (P25). Parents told Ms. Childress that they believed that Marshall’s misconduct at school was a manifestation of his disability and that he was, pursuant to the IDEA entitled to a manifestation determination in the event of a disciplinary incident.25 Parents told Ms. Childress that they believed that Marshall was entitled to and denied a manifestation determination prior to his two-day suspension in March 2005; ( see P25). Parents also requested that Marshall be evaluated for a writing disability that was identified by Harwich in 4 th grade and referred Ms. Childress to IQ testing that placed Marshall at the 98 th percentile for verbal comprehension but only at the 21 st percentile for processing speed which was indicative of his poor performance in doing paper/pencil tasks; see (P25). Parents told Ms. Childress that they believed that Marshall would be best served by an evaluation that results in an actual diagnosis as opposed to a description of the problem and a formal remedial or accommodation plan. Parents believed that if Marshall’s learning disability was accurately diagnosed and treated it would result in decreased frustration and would have a positive impact on Marshall’s general conduct in school (P25).26
20. The meeting took place on August 31, 2005. Harwich gave Parents a consent form for achievement and cognitive testing, an educational assessment, and a student observation (P26B, P26C, S20). An additional meeting occurred on September 30, 2005. On that day Mother amended the consent to specify that the educational achievement test should be the academic and cognitive assessment by Dr. Presnall, a TOWL, an occupational therapy assessment to address handwriting, and a psychological assessment (P26B). On October 18, 2006 Parents further amended their consent to evaluate requesting additional assessments to diagnose Marshall’s disability in writing and his autistic spectrum disorder (P26C). Parents further specified that a developmental pediatrician experienced in autistic spectrum disorders conduct this assessment (P23C/S60, Mother). They also requested that Harwich obtain a neuropsychological evaluation to diagnose the specific deficits underlying Marshall’s conceptual and organizational difficulties relating to his writing disorder and asked that Harwich include the written assessment from Marshall’s 5 th grade teacher that she gave as part of a Children’s Hospital evaluation (P26C, see P24).27 Finally, Parents requested that Harwich provide them with a copy of these assessments seven days prior to the TEAM meeting so that they would have time to review the results and fully participate at the TEAM meeting; ( see P26C/S60).
21. On October 19, 2005 Parents sent Marshall’s 6 th grade teachers and the school psychologist a letter informing them that Marshall had been diagnosed with Asperger’s Syndrome and a learning disability in written language, based on his WISC-II scores showing reading and math in the 99 th and 98 th percentile respectively and a writing composite score in the 37 th percentile; ( see P26D, Mother). In this letter Parents shared information taken from the Online Asperger Syndrome Information and Support (OASIS) website for their consideration regarding Marshall’s upcoming IEP meeting. In that letter Parents informed the teachers that students with Asperger’s have impaired social understanding and interactions with impaired ability to another’s perspective as well as associated characteristics that Marshall had, such as poor articulation, poor handwriting, weak motor skills, abnormal sensory processing and poor executive functioning and organizational skills; ( see P26D). Parents also told the teachers that Marshall often engaged in inappropriate behavior because he missed social cues and reactions of others, did not recognize the ramifications of his provocative behavior and was most seriously challenged by social interactions with peers, loosely structured activities and activities requiring group cooperation. Parents suggested that Marshall would benefit from teachers verbally stating clear expectations and an IEP to address his pervasive developmental disability and learning disability in writing; ( see P26D).
22. On October 21, 2005 the school psychologist (Steven Wilson) wrote to Parents requesting that a TEAM meeting be scheduled during the first or second week of November 2005 to review Dr. Presnall’s report, teacher assessments and observations, Marshall’s educational history, the OT evaluation, the written language evaluation and Parents’ request for additional health and neuropsychological evaluations (P26E). Mr. Wilson also requested clarification from Dr. Presnall regarding a formal Asperger’s Syndrome determination; (P26D).
23. On October 25, 2005 Parents reiterated their request for a health or medical assessment from a pediatrician qualified to assess autism spectrum disorders “ as a prerequisite to the initial eligibility determination meeting”. (P26F/S58). Parents also reiterated their request for a neuropsychological evaluation to address Marshall’s disorder of written language and requested that these evaluations be done by the school in advance of the first TEAM meeting as the TOWL and OT assessments alone did not provide adequate assessment in this suspected area of disability; Id. Parents finally stated that because they felt that these additional evaluations were necessary they would not at that time request a DSM diagnosis for Asperger’s syndrome from Dr. Presnall or Marshall’s pediatrician (P26F).
24. On October 25, 2005 Harwich sent Parents notice of a TEAM meeting for November 9, 2005 to determine eligibility (P26G/S19). On October 27, 2005, Mr. Wilson sent Parents correspondence that Harwich would not be postponing the TEAM meeting to review the evaluations that it already had28 and see if there was information from these evaluations, reports or participants that could be used to determine issues or understandings that would be helpful to Marshall without further delays; ( see P26H, see also Bertucci). The TEAM meeting did not occur on November 9, 2005; however the Parents and Harwich did meet and developed a curriculum accommodation plan addressing writing and writing organization; ( see P27).
25. On November 2, 2005 Harwich sent Parents a consent form asking to conduct additional evaluations (S17). This included a neuropsychological evaluation from Geraldine Cassens, a private clinical neuropsychologist; ( see S54, S55). Dr. Cassens evaluated Marshall on December 16, 2005 (P30D).29 Harwich also conducted an updated speech/language evaluation on November 21, 2005 (P30E).30 Dr. Cassens was asked to help define Marshall’s cognitive strengths and weaknesses, to determine whether Marshall’s DSM-IV diagnosis was Asperger’s Syndrome and to make academic recommendations concerning Marshall’s writing disability (P30D). Dr. Cassens interviewed Parents and Marshall, reviewed records, administered twenty-two assessments, and with consent from Parents, contacted Marshall’s teachers, therapists and outside evaluators; ( see P30D).
Parents informed Dr. Cassens that Marshall had difficulty planning ahead, understanding explanations and sequencing; displayed left-right confusion and that Marshall would sometimes begin a sentence and could not find the words to complete it without pausing or repeating himself, and that his speech was occasionally unclear.31 They also told Dr. Cassens that Marshall had difficulty understanding instructions or directions, had difficulty writing letters or words (but could frequently stop to correct himself verbally), and could be distracted by sights, sounds or physical sensations, was fidgety, and often fiddled with objects, but when interested in a subject (i.e., history, war stories, weapons or technology) displayed an intense ability to concentrate. Although Marshall could perform daily routines independently, he needed maximum supervision if his routine changed; Id.
Parents also informed Dr. Cassens, and Marshall confirmed, that Marshall had friends and was invited to birthday parties and had participated in Boy Scouts, the school drama club and a choral group. They also informed Dr. Cassens that Marshall would sometimes talk too much without regard to whether the recipient was interested, had significant difficulty recognizing facial or bodily expressions of disapproval or emotions, that he could be aggressive, immature, rude or interrupt others, or start fights. Parents also informed Dr. Cassens, in response to questions from the Atwood’s Australian Asperger’s Scale32 , the above information but also told Dr. Cassens that Marshall was very creative in his play, although sometimes to the exclusion of other children, did not avoid social contact with other children, was not indifferent to peer pressure, had appropriate eye contact and appropriate vocal tone, and although he remained sensitive to sound and insensitive to low levels of pain, no longer showed unusual fears or distress that he displayed when he was younger.
Marshall’s scores on the Wechsler of an estimated verbal IQ of 126 (96 th percentile) and an estimated performance IQ of 129 (97 th percentile) were consistent with Dr. Presnall’s findings; (P30D). Marshall’s superior performance on verbal tasks was also consistent with Dr. Presnall’s findings. Marshall showed mild attention deficits for short bits of visual information and some impulsivity and although he could with practice, improve his sequencing, his scores in the 25 th percentile were significantly below expectancy given his intellectual abilities, and these scores, along with scores on the Rey Auditory Verbal Learning List, led Dr. Cassen’s to conclude that there were weaknesses in Marshall’s executive functioning. Similarly, Marshall displayed difficulties organizing his expressive language both in conversational speech and when required to repeat sentences of increased length. Marshall displayed very strong visuospatial skills; however he displayed significant delays in graphomotor planning and while writing displayed tremors, mild motor overshoots and frequent self-corrections, leading Dr. Cassens to conclude that Marshall had motor dysgraphia (P30D). Dr. Cassens noted that Marshall showed disinterest or oppositionality when he was asked to perform skills that were harder for him and self-report inventories of Marshall’s behavior for “Fears of Humiliation, Rejection and Performance” were at the clinically At-Risk range, consistent with the presence of social anxiety. Self-report inventories also showed that Marshall was clinically At-Risk for negative self-esteem. Dr. Cassens concluded that Marshall met the DSM-IV diagnosis of ADHD-Combined type and motor dysgraphia superimposed on a sensory integration disorder and had some symptoms consistent with Asperger’s Syndrome but did not meet the DSM-IV diagnosis.33 However, Dr. Cassens found that Marshall would qualify for special education services due to his disorder of written expression. She also also noted that treatment must be uniquely designed to fit Marshall’s current cognitive, social and emotional needs and to allow for the possibility that Marshall’s diagnosis is still evolving, would need to be monitored over time and that his behaviors should not be misinterpreted as delinquent (P30D).
Dr. Cassens specifically recommended the following:
· Pharmacological evaluation to determine the appropriate medication to reduce impulsivity, improve fine motor speed and reduce obsessive preoccupations;
· Private counseling to address self-esteem and behavior;
· Social pragmatic (social skills) group instruction at school;
· Occupational therapy at school and use of a computer at school and at home to address written work and handwriting issues
· Study aids, outlining techniques and use of spell and grammar check or other computer assistance to address organizational/sequencing deficits in writing
· Implementation of a behavior modification plan in the school and in the home if impulsive or inappropriate behaviors occur
· Speech therapy to address articulation and pressured speech34 ;
· Encouragement to engage in physical activities (P30D).
26. A TEAM meeting was set for January 30, 2006 (S51). Dr. Cassens faxed her evaluation to Deborah Darson on January 25, 2006 at 3:32 p.m. ( see S72). On January 26, 2006 Marshall received an incident report for leaving class for ten minutes without obtaining a pass. Harwich staff talked to Marshall and told him that this behavior was not appropriate and had Marshall write a letter to his Parents about the incident to have them sign and return to the office (P28). He had no prior incidents that year (Childress).
27. On January 30, 2006 Harwich’s Middle School Principal (Mary Childress) sent Parents correspondence informing them that Marshall would, pursuant to MGL Chapter 37H ½, be suspended from February 6, 2006 through February 27, 2006 based on the issuance of a criminal complaint for a felony (Marshall had shot a BB gun and damaged the window of a school bus) (Mother, Darson, P28, P36). Harwich informed Parents that since there was a pending special education eligibility determination the district would provide tutoring during the suspension period if Parents so chose (P28).
28. The TEAM meeting also occurred on January 30, 2006 (P29). Parents were given a written agenda that informed them that the meeting was to review an initial evaluation and to determine eligibility and that the TEAM would review evaluations and reports to determine eligibility by using the eligibility flow chart and the specific learning evaluation form ( see P29).35 Parents were also informed in that written agenda that if Marshall were not eligible for special education that the TEAM would determine Marshall’s eligibility for a 504 plan as well as what accommodations and/or services would be needed on that plan; Id. If the TEAM did not find Marshall eligible for a 504 plan, it would then determine what teaching strategies should be employed and/or develop an action plan; Id. The TEAM did not discuss the BB gun incident that had occurred the Friday before because Harwich was not sure if Parents would appeal the suspension (Darson, Wilson). Parents also did not bring up any information regarding the BB gun incident. Harwich did not ask, nor did Parents request, that the TEAM meeting be rescheduled until after the suspension period (Mother, Wilson).
The TEAM reviewed Ms. Darson’s October 25, 2005 educational assessment. (P30A). This assessment included a review and a referencing of Marshall’s educational records from preschool through 6 th grade ( see P30A).36 The TEAM also reviewed Mr. Wilson’s November 1, 2005 school observation, and educational assessments from Marshall’s advisors and all his teachers conducted in October 2000; see (P30A, P30B). The TEAM also reviewed educational testing from Harwich, including testing from Mr. Wilson conducted on October 11, 2005, an OT evaluation conducted on October 24, 2005 and speech/language testing conducted on November 21, 2005; see (P30C, P30E, P30F). The TEAM also reviewed Dr. Cassens’ neuropsychological testing conducted on December 16, 2005 and Dr. Presnall’s report; see (P30D, P30G). Harwich also reviewed Dr. Cassens’ evaluation and Parent’s report and an addendum (P26D, P30H).
Mr. Wilson’s evaluation showed that Marshall’s results on the TOWL-3 dramatically varied depending on Marshall’s motivation and his perception and interest in the task seemed to dramatically affect his performance. However, with success, Marshall was more persistent on tasks and engaged with the examiner (P30C). While all of Marshall’s scores were at least in the average range, Marshall was more productive and efficient during structured tasks than on open-ended essay or spontaneous writing tasks; see (P30C).37 Therefore Mr. Wilson recommended strategies to help Marshall organized his writing, including brainstorming and outlining along with a reduction in adjustment in time and/or length and word processing for longer writing tasks; ( see P30C).38
Teacher evaluations showed that in school Marshall was able to follow teacher direction and redirection, take and use notes appropriately, and his mastery of both academic and elective subjects was above average; ( see P30B, see also Reuss). Marshall’s teachers reported that he made inappropriate spontaneous remarks in class (such as “will that make you one step away from the devil?”), talked when others were speaking, and had trouble complying with rules often mumbling under his breath when disciplined, tossing objects in the air or making negative judgments (P30B). Many of Marshall’s teachers noted that Marshall had friends and seemed to get along with people (P30B, see also Childress). Marshall’s teachers also noted that there were times when Marshall had difficulty in his social interactions because other students did not understand his sophisticated or dry sense of humor or intellectual responses to questions; ( see P30B). However, his humor was always appropriate and he often had good pragmatic skills appropriately interacting with friends at lunch and in class (Reuss). Marshall’s advisor also noted that Marshall had a hard time being empathetic. The advisor and the art teacher also noted that Marshall did not pick up on cues from his peers regarding their emotional tolerance (P30B). Marshall’s art teacher also noted that Marshall had a greater than normal interest in weapons and war violence, and often perseverated on these topics even when redirected to other topics or told he could not talk about or draw violent subjects (P30B). Harwich’s speech/language pathologist (SLP), after observation and testing, found that Marshall displayed some weaknesses in pragmatic skills primarily in adapting or changing his language according to the needs and expectations of the listener or situation. However, based on other testing, the SLP could not conclude that Marshall exhibited a language disability because Marshall was, on the Test of Language Competence-Expanded (TLC-E),39 able to skillfully respond and formulate language in a timed situation while considering the perspective and abstract meaning of others and the communication environment (P30E). On other testing (the Oral Expression Scale or the Oral and Written Language Scales or OWLS)40 demonstrated a well developed ability to understand a wide range of expressive tasks including word meanings, language structures, understanding of contextual influences and processing of nonliteral language, double meanings, synthesizing and evaluating verbal information and appeared to know when a response was inappropriate. For example, he told the SLP “Don’t Count that” after responding to a picture of a boy asking his father for permission to go to a party with “May I please go to a party, adding “There is an air gun in my pocket” and “Hail Hitler” in response to another picture of a teacher and student misbehaving; ( see P30E). The SLP questioned whether Marshall willingly and knowingly made these comments or whether he did not understand what he was doing (P30E).
29. Harwich found that Marshall had health disabilities including ADHD, and a specific learning disability in written expression and dysgraphia41 but that he was making effective progress within his general education program based on his age, developmental expectations, educational potential and the Middle school curriculum and curriculum frameworks (S13, Childress). Parents disagreed with Dr. Cassens’ diagnosis of ADHD and lack of confirmation of Asperger’s Syndrome (Mother, see (S13). The TEAM also discussed whether Marshall was eligible for a 504 accommodation plan. Harwich TEAM members found that Marshall’s disabilities did not substantially limit his learning and as such he was not eligible for a 504 plan; ( see Bertucci, Darson S13, P31C). Harwich did develop an action plan and recommendations to support his progress in school; ( see S13). The action plan indicated eight points. They were:
· Continuation of the Middle School curriculum accommodation plan developed in November 2005;
· OT sessions to address dysgraphia with review after four to ten sessions;
· Alpha Smart instruction and use in the classroom;
· articulation instruction for home practice;
· social skills instruction/reinforcement on an as needed basis with a counselor/group if appropriate;
· a behavioral intervention plan if Marshall’s behaviors escalate or if requested by Marshall’s teacher;
· consideration of Marshall’s atypical neural sensory, medical social developmental history for discipline;
· transition planning between the 6 th and 7 th grade teachers in September 2006 (P31B).
30. On or about January 31, 2006, Harwich sent Parents notice of their finding of ineligibility (the N2 form). The N2 informed Parents that Marshall’s teachers reported many examples of substantial growth in Marshall’s social emotional development within the classroom and in extracurricular activities, including improved reciprocal peer relationships and self confidence, significant decrease in discipline referrals to the office, increased classroom participation, proficient and advanced MCAS scores, and grades on the Honor Roll (S13, see also Childress). The N2 also explained why Harwich did not feel that Marshall qualified for 504 eligibility; ( see S13). Harwich also included a Parent’s rights brochure (S13, see also P31C).
31. On February 6, 2006, Harwich sent Parents a home survey and a release of information so that it could begin a functional behavioral assessment regarding the incident with the BB gun (FBA). Harwich also informed Parents that it wanted to include Marshall in the FBA ( see P31A/S49). Parents and Harwich met on February 16, 2006. Parents told Harwich that they would not fill out the Home Assessment information or give Harwich consent to have Marshall participate in the FBA because they were afraid that the information could be given to the police, but that Harwich could otherwise conduct an FBA at school (Mother, Darson, Bertucci, see also P31E). Harwich felt that without information from Parents and Marshall the FBA would not include all pertinent information to reach a decisive Behavioral Intervention Plan (BIP). Dr. Bertucci consulted with the school’s attorney who informed them that since Marshall had not been determined to be eligible for special education or a 504 plan, a manifestation determination meeting would not be required (Bertucci, Darson, see P31E)42 . Harwich also contacted the Department of Education’s (DOE) Program Quality Assurance (PQA) division who informed them that the matter was moot because Marshall’s suspension had not exceeded ten days, he would be readmitted to school and that through agreement Marshall would be assessed in other areas43 of suspected disability (Darson, Bertucci, P31F, see also P31G).
32. Marshall was to return to school on February 28, 2006 (Darson, Childress). On February 24, 2006 Marshall’s pediatrician Dr. Kaselis filled out a physician’s statement for temporary home or hospital education; ( see P32). Dr. Kaselis indicated that Marshall would be out of school for more than 14 days and would not be expected to return to school until implementation of an appropriate IEP that is consistent with the available diagnosis and the totality of the evidence (P32).44 Dr. Kaselis indicated that it would be extremely detrimental to Marshall and his education if he were to resume attending classes at Harwich Middle School before the school implemented a comprehensive, supportive individualized and written educational plan that took into account Marshall’s learning disabilities, his current counseling with a local therapist and included tangible assurances to guard against the school or its agents assessing, labeling or treating Marshall’s behavior as delinquent in the absence of a competent adjudication (P32). Harwich received the physician statement on February 27, 2006 (S46). Harwich provided the tutoring; ( see P34E, S45, Bertucci).45
33. On February 29, 2006, Harwich scheduled a TEAM meeting for March 9, 2006 to review the additional information and evaluations; ( see S45). On March 4, 200646 Parents wrote to Harwich to clarify their position regarding the TEAM meeting Harwich scheduled for March 9, 2006. Parents stated “ We did not request this meeting and do not want this meeting to proceed as scheduled. The stated meeting purpose is “Eligibility, Determination, additional information provided by parent”. We, the parents, do not at this time possess “additional information” upon which the TEAM could reasonably reconsider Marshall’s eligibility”. The letter further indicated that Harwich refrain from scheduling another eligibility determination until the speech language evaluation, a new neuropsychological evaluation, the assistive technology evaluation47 and Dr. Becker’s evaluation were completed; ( see S44). Harwich assented to Parents’ requests; (Wilson, see S8).
34. On March 7, 2006 Ms. Childress sent Dr. Kaselis a written request for clarification as to the medical reason for home tutoring for Marshall because the information in her physician statement appeared to be inaccurate and was from other sources ( see S43). Harwich also requested permission from Parents to receive information from Dr. Presnall, Dr. Becker and Marshall’s current counselor. Harwich and Parents spoke on the phone regarding this the next day. Consent was not granted (Mother, S42, S41, Childress, Bertucci).
35. On March 15, 2006 Marshall’s psychiatrist, Shannon Scarry, provided another physician’s statement indicating that Marshall should be educated at home for more than 14 days and that he would be expected to return to school in September 2006 (P32). Dr. Scarry indicated that: “[Marshall] suffers from a pervasive developmental disorder which grossly impairs his ability to understand “social interactions” and means that he may be prone to inappropriate verbalizations and behaviors. Until such time as I feel we have been able, with medication48 and specific therapy, to remediate his problem I think he should be tutored at home for his and others’ safety” (P32). Dr. Scarry further indicated that she had met with the family only once and would see them again on March 23, 2006 at which time Marshall would probably be started on medication; Id.
36. On April 3, 2006 Dr. Scarry sent correspondence to the Middle School Principal Mary Childress; ( see P32/S40). Dr. Scarry told Ms. Childress that she had reviewed Dr. Presnall’s and Dr. Cassens’ reports, and although the two neuropsychological reports disagree about the diagnosis of Asperger’s Syndrome, the differences in their interpretations was not clinically significant and that Marshall could be formally diagnosed with Pervasive Developmental Disability (PDD). She also indicated that Marshall clearly had a disorder of written expression and clinically met the criteria for Attention Deficit Disorder, and that based on his diagnosis Marshall should have an IEP that took into account his social difficulties, extraordinary intelligence and severe49 written expressive difficulties. Dr. Scarry indicated however that she and Marshall’s parents and therapist were comfortable that Marshall was currently safe, both to himself and others and could return to school immediately full time (P32).50 Marshall’s therapist, Carol Nickerson, concurred with the recommendation that Marshall return to school as well as Dr. Scarry’s conclusion that Marshall was not a danger to himself or others and did not display any oppositional defiant behaviors or a conduct disorder (P32/S40). A TEAM was not convened after receiving this information (Bertucci).
37. Marshall returned to school on or about April 6, 2006 ( see P34E, Childress). He made an easy and successful academic and social transition in all his classes contributing in classes, and maintaining positive interactions with friends (Darson, Childress, P34E, S39). He did not however want to continue to participate in the school play ( see Mother, P36, P34E). Parents did not agree that a regular education program for Marshall was appropriate and filed a hearing request with the BSEA on April 6, 2006 ( see P30).51
38. On May 11, 2006 Parents made a written request for a TEAM meeting that would be based on new information provided through Dr. Scarry’s April 3, 2006 letter52 to Ms. Childress, Dr. Presnall’s DSM determination of Asperger’s and the Children’s Hospital assessment from Dr. Becker (P34B). Harwich set the TEAM meeting for May 23, 2006 ( see P34C).
39. Harwich reviewed Dr. Becker’s report prior to the TEAM meeting ( see Darson, Wilson). Information about family history, parental concerns and recommendations related to family therapy was redacted (P34D, P34A).53 During testing Marshall showed fine motor and graphomotor tasks within age expectation and showed, consistent with other testing, above average intellectual functioning (P34A). Marshall also performed at age expectation in visual, auditory and motor recall skills however, despite good visual memory, was not able to organize visual information that was free form (P34A). Marshall also showed good receptive and expressive language skills and, unlike previous testing, displayed writing that was organized and logical with few punctuation and spelling errors (P34A). Marshall presented with some pragmatic language concerns such as choosing to talk about military weapons regardless of the topic. He also had difficulty initiating or sustaining conversations with others and his conversational style tended to be one sided with little awareness of his audience. In addition, some of Marshall’s comments lacked empathy for other people, his play was negative, violent or destructive and parent reporting showed continued concerns with hyperactivity, distractibility, aggression, atypicality, social withdrawal and lack of independence in self-care skills (P34A). Marshall also displayed appropriate use of nonverbal gestures and appropriate eye contact. He also on several occasions showed objects to the examiner and wanted to share information (P34A). Dr. Becker found that while Marshall’s impairments in social interactions and his restricted interests were consistent with Asperger’s Syndrome and PDD he did not meet the criteria for Asperger’s Syndrome. However, Dr. Becker felt that despite the diagnosis, Marshall would benefit from behavior modification techniques. Dr. Becker also indicated that Marshall’s preoccupation with violence and his tendency to perceive aggression in neutral situations was highly concerning and should be monitored and addressed.
Dr. Becker recommended that Marshall be placed in a highly specialized program for children on the autism spectrum who also have well-developed cognitive abilities. He also recommended that this program incorporate a behavior management plan and have consultation from a behavioral psychologist; contain pragmatic instruction, weekly social skills training and use of the Alpha Smart to address handwriting difficulties, and that Marshall receive special education services to redirect his writing from violent themes. Dr. Becker also recommended that Marshall receive individual therapy and engage with his family in family therapy (P34A).
40. Harwich asked Parents for consent to speak to Dr. Becker, Dr. Scarry, Dr. Presnall and Carol Nickerson prior to the TEAM meeting (S38). Parents did not provide consent (Mother, see (P38).
On the advise of counsel,54 Parents provided Harwich with a limited authorization to use and disclose information on May 19, 2006 (P34C/S37). That release authorized Ms. Darson and Mr. Wilson permission to contact Dr. Becker, Ms. Nickerson and Dr. Scarry (the practitioners) and obtain information regarding their observation and interaction with Marshall or test results obtained, but only with prior written approval or consent of Parents. However, the release specifically forbade the practitioners from discussing any personal and family history, parental concerns or any verbal information reported to them by Parents. The release also indicated that the practitioners only give verbal disclosures unless the written disclosures were submitted to Parents and approved by them in advance (P34C/S37). The authorization was to expire on May 26, 2006 (P34C/S37, see also Mother).
41. Dr. Wilson and Ms. Darson phoned Dr. Scarry after receiving the release. Dr. Scarry told them that given her knowledge in working with Marshall she worried that kids like this when they grow up would become like Ted Kaczynski the Unabomber. She also told Ms. Darson and Dr. Wilson that she had concerns about Marshall’s inability to attach and had concern about thought disorders (Scarry).
42. On May 22, 2006 Parents rescinded their authorization for Ms. Darson or Mr. Wilson to speak to Ms. Nickerson but did offer, as previously arranged, to submit specific questions to Ms. Nickerson that Parents would pass along to her (S36, see also S39).
43. The TEAM meeting occurred on May 23, 2006. The TEAM reviewed Dr. Becker’s redacted report, Marshall’s progress reports from his tutors, progress reports from Marshall’s teachers, Dr. Scarry’s reports, Ms. Dillon’s OT evaluation update and also used Dr. Cassens’ neuropsychological report, Mr. Wilson’s testing, Ms. Darson’s educational assessment and Parent’s January 30, 2006 personal evaluation to make its determination. The TEAM determined that Marshall had a Pervasive Developmental Disability (PDD/NOS), however, the Harwich members of the TEAM found that Marshall did not qualify for special education because he was doing well both academically and socially in school ( see P35/S7, P34E, see also Bertucci, Reuss). The Harwich members of the TEAM also found that Marshall was not eligible for a 504 plan because the PDD disability did not substantially limit a major life event ( see P35/S7, Bertucci, Darson, Wilson). Parents however felt that Harwich did not adequately review Dr. Becker’s report or recommendations and as such the finding regarding no special needs was flawed (Mother, P36, P37A). Harwich however felt that Dr. Becker did not have current information regarding Marshall’s academic and social/emotional growth with peers and adults and his improved behavior and adjustment at school and in the classroom and at extracurricular activities because he did not contact the school (Wilson, S35). Harwich also felt that because it could not receive possibly pertinent information contained in the redacted section of the evaluation, did not see any instances of preoccupation with violence in school and could not complete a Functional Behavioral Assessment (FBA), it could not come to a different conclusion (Wilson, S35).
44. On May 24, 2006 Harwich sent Parents its finding that Marshall was not eligible for special education or a 504 accommodation plan (S6). Harwich did however believe that the Curriculum Accommodation Plan of November 2005 should be continued and included a copy of the Curriculum Plan in its notice. That plan called for:
· social skills instruction/reinforcement on an as needed basis or incident basis with a counselor or peer groups if appropriate;
· counselor intervention when/if Marshall displayed inappropriate language;
· a behavioral intervention plan if needed or requested by any teacher;
· implementation of a PDD/Asperger/Autism Spectrum disorder workshop for Middle School teachers; and,
· a 6 th to 7 th grade transition conference
Harwich noted that it would encourage the opportunity to collaborate with professionals who were currently working with Marshall regarding school issues. (S6).
45. On May 31, 2006 a prehearing conference occurred at the Bureau of Special Education Appeals before Reece Erlichman. At the prehearing the Parties agreed to get further information from Dr. Scarry who had expressed concern to Harwich about Marshall’s history of violence, aggression and military themes and had said that while she can’t predict the future, kids who perseverate on content with violent themes may exhibit behaviors or problems when they become adults like Ted Kaczynski) (Mother, Darson, Wilson, S35). At the prehearing the parties agreed to engage in a TEAM meeting on June 16, 2006 to obtain further information from Dr. Scarry (P37B).
46. On June 6, 2006 Harwich requested written consent to contact Dr. Scarry. On June 13, 2006 Harwich received written permission for Mr. Wilson, Ms. Darson and Dr. Bertucci to release information to Dr. Scarry but did not allow Dr. Scarry to share information with them. The effective dates of the release were from June 12, 2006 to June 16, 2006 (S34).
47. A TEAM meeting occurred on June 16, 2006. The TEAM reviewed teacher reports that found that Marshall had adjusted well to school, both academically and socially and that he had successively completed his OT writing program (P37D). At that meeting Parents read a statement that they had prepared (P37C). In that statement Parents expressed concern about sharing information with Harwich because they believed that Harwich had wrongly disclosed Marshall’s private information to the police department; that Harwich had selectively and inaccurately used Marshall’s school record to portray him as a violent, dangerous person that justified authorizing information without Parent consent; and as such they did not believe that additional information was necessary to determine eligibility because eligibility would be found if Harwich would reconsider Dr. Becker’s findings and information already provided to Harwich from Dr. Scarry’s documents. If Harwich were willing to find Marshall eligible for special education, Parents would agree to make Dr. Scarry available for IEP development and to specifically explain her recommendation for placement at a therapeutic school (P37C, see also Mother, Bertucci).
48. The TEAM discussed potential approved out of district programs special education schools for Marshall to attend. These schools included the Learning Clinic in Brooklyn, Connecticut,55 the Elan School in Maine and the Baird Center in Plymouth (Mother, P37E, Bertucci). Harwich then contacted Dr. Scarry by phone and with Parents’ permission taped the conversation (Wilson). Dr. Scarry told Mr. Wilson and Ms. Darson that she was comfortable with Marshall’s response to the medication he took. She also stated: “he is doing okay in school because he’s in a small nurturing environment in a middle school. I think absolutely, just based on this diagnosis, whether or not superficially you guys don’t know what he is thinking either. He qualified for an IEP as a very serious emotional disturbance. You better be safe than sorry in my opinion. Umm, I think that just because he is smart and can do things academically and teachers have not heard what he is saying or thinking this year does not mean that it is not still there. Clearly, he is going to be moving on to a much less nurturing, far more stressful environment as he progresses in school. And it seems like, sounds like frankly the school as long as this year is okay, although shooting a BB gun at a school bus kind of tops a lot of behaviors. He’s really not fine. I think he is an ill child.” (Scarry).56
Father hung up on Dr. Scarry and therefore Dr. Scarry was not able to provide further information Harwich was seeking (Wilson, Bertucci).57 Therefore Mr. Wilson sent Dr. Scarry a form to fill out regarding this serious emotional disturbance (the SED form) to obtain further information so that they could determine eligibility pursuant to a diagnosis of severe emotional disability; ( see Bertucci, Wilson, P37G). Harwich believed up to that point in time that Marshall was not eligible for special education however, after that conversation it became concerned about Marshall having a qualifying disability and became concerned about Marshall’s safety and the safety of others (Bertucci). However, Dr. Scarry’s assertion contradicted her April 3, 2006 statement that Marshall was safe to go back to the Middle School; see (Wilson, Darson). Harwich determined that based on the information it had Marshall remained ineligible for special education at that time and sought to seek further information from Dr. Scarry; ( see Wilson, Darson).
49. On or about July 7, 2006, Harwich received a report from Dr. Scarry written June 20, 2006 (S32/P39B). Dr. Scarry indicated that Marshall had PDD/NOS but not Asperger’s Syndrome, but that the diagnosis was immaterial to Marshall’s treatment needs (S32/P39B, see also Scarry). Dr. Scarry also indicated that treatment for persons with PDD can be variable from case to case but that children with PDD require specialized multimodal treatment that includes medication, and highly specialized psychotherapy58 ; Id. Dr. Scarry including use of social stories and do not do well when lumped with children with other severe mental disorders or behavioral disorders including Bipolar Disorder, Schizophrenia, Post Traumatic Stress Disorder, Oppositional Defiant Disorder or Conduct Disorder. Dr. Scarry also indicated that children with PDD often require day or even residential treatment. Dr. Scarry also included a checklist to determine severe emotional disturbance59 . She did not however make any specific recommendations for Marshall. She also did not return the SED form that Harwich had sent her because Parents did not allow her to do so; ( see S32, Scary, Wilson).
50. A mediation occurred in July 2006 but did not result in resolution (Bertucci, Mother).60
51. On July 21, 2006 Harwich sent Parents notice for a TEAM meeting for August 2, 2006 (P39C). The purpose of the TEAM meeting was to review the additional information from Dr. Scarry that did not occur at the June 16, 2006 TEAM meeting. The TEAM was also going to review Marshall’s report card from June 2006 ( see P39C, S31, Darson, Bertucci). The Parties agreed to have the TEAM meeting in the summer so that Marshall’s placement could be resolved prior to the start of the school year. Harwich told Parents that a meeting during the summer might not include all the TEAM members and Father appeared to be in agreement with this option (S31). Dr. Bertucci told Mother that if she preferred having a full TEAM that Harwich would reschedule the TEAM meeting for a time when the full TEAM could meet (S31, Bertucci). Mother chose to have the TEAM meeting on August 2, 2006 (Mother, Bertucci).
52. On August 1, 2006 the regular education teacher informed Dr. Bertucci that she could not attend the TEAM meeting due to a family emergency (Reuss, Bertucci, see also S30/P40A). Dr. Bertucci called Mother and offered to reschedule the TEAM meeting. Mother told Dr. Bertucci that she was uncomfortable with the composition of the TEAM but that the TEAM should meet as scheduled (Bertucci, Mother, see S30/P40A). Harwich believed that Mother had consented to the absence of a full TEAM (Bertucci). Mother however believed that Harwich would assemble a full TEAM for the August 2, 2007 meeting (Mother, P40B).
53. The TEAM meeting occurred on August 2, 2006. Harwich noted that Dr. Scarry had reiterated her diagnostic impression of PDD/NOS but did not clarify her June 16, 2006 statement that Marshall was seriously emotionally disturbed (S30/P40A). At the meeting Mother requested that the TEAM meeting be discontinued because there was not a regular and special education teacher in attendance and Mother did not excuse their absence in writing (Mother, S30/P40A). Harwich offered to reschedule the TEAM meeting to August 7, 2007.61 Mother told Harwich that she would discuss Marshall’s ongoing treatment with Carol Nickerson and Dr. Scarry at a subsequent TEAM meeting but also told Harwich that she was uncomfortable setting any other date (Mother, S30/P40A).
54. After the TEAM meeting Dr. Bertucci wrote Dr. Scarry that day asking her to clarify her statement that Marshall was seriously emotionally disturbed and sent her another form so that the information could be incorporated at the TEAM meeting to assist in appropriate educational planning (S29, P40A).
55. On August 8, 2006, Parents wrote to Harwich informing them that they believed that Dr. Scarry did not indicate that Marshall was seriously emotionally disturbed and that since there was agreement that Marshall had PDD, Harwich should determine that he was eligible under that category. The TEAM could then use the extended evaluation process to further clarify diagnoses with Dr. Scarry, however, the TEAM meeting could not be rescheduled and no information could be provided unless Harwich agreed to a release of information that was to be used solely for eligibility determination, IEP development or any proceedings with the BSEA concerning eligibility or an IEP, and not released to any other person for any reason ( see (Mother, P39B, P40B).
56. On August 21, 2006 Harwich received a letter that Father provided Harwich’s superintendent with notice of Parents’ intention to withdraw Marshall from Harwich Middle School and seek payment from Harwich for Marshall’s tuition and related costs at the Hillside School (P41, see also Mother).62
57. Harwich decided to offer Parents an IEP in an effort to try to resolve the matter because it was unlikely that a TEAM meeting would be productive or that it could be convened prior to the start of the school year; ( see Bertucci). On August 29, 2006 Harwich, through Counsel, informed Parents that: “Harwich agrees to waive any further TEAM meeting for the purpose of determining special education eligibility for Marshall” (P42B, see also Bertucci). The Parties agreed to a settlement conference with Reece Erlichman (P42A). A settlement conference was set for September 13, 2006; ( see P42B).
58. On August 31, 2006 Father wrote to Harwich’s attorney63 indicating that Harwich’s letter did not establish that Marshall was eligible for special education and that Parents would need an unequivocal statement from Harwich indicating that IDEA eligibility for Marshall had been established, and that if the Parties agree that eligibility has been established then Harwich should propose an IEP that Parents could consider in advance of the settlement conference. Father informed Harwich’s attorney that Parents would not agree to a settlement conference until Harwich signed an agreement that Marshall was eligible for special education because he had PDD, and had not made effective progress, and that an IEP would be written for Marshall ( see P42B).
59. On September 1, 2006 Dr. Bertucci requested consent from Parents to send Marshall’s records to Devereux (S1). Parents did not provide consent (Mother, Bertucci).
60. On September 8, 2006 Harwich’s Counsel wrote Father that it would find Marshall eligible for special education but that it was continuing to propose through settlement (as opposed to a TEAM) that Marshall receive an 8 week extended evaluation because the evaluation information was inconclusive and an extended evaluation would determine what services would be appropriate in an IEP (Bertucci, see P42C, see also P44B, P49, Wilson, Darson). Harwich included the proposed extended evaluation form. It did not include an N1 form.64 The form indicated that the TEAM found that the student was eligible for special education and developed a partial IEP with social/emotional goals and objectives and counseling, but recommended further assessment through an extended evaluation (P42C). The additional evaluation would be used to answer the following questions:
· Does Marshall demonstrate signs of perseveration of thought or behavior regarding violence, morbid, anxious and or aggressive themes?
· What therapeutic interventions are needed to address Marshall’s social/emotional issues raised by Parents or psychiatrist?
· How has Marshall responded within a therapeutic milieu?
· What coping strategies does Marshall use interacting within his immediate environment or with peers/adults;
· What behavioral plans, strategies or interventions are indicated for home, school and his community?
· What has Marshall’s response been to pharmacological treatment?
· What support services are indicated for reintegration into Marshall’s home, school and community?
· Has Marshall been able to form new relationships with peers?
· How has (Marshall) responded to staff direction and compliance with rules and regulations?
· What observations have the staff made regarding Marshall’s use of structured vs. unstructured time with regard to maladaptive thoughts and behavior?
· Is Marshall a danger to himself or others, or is there any evidence of violence, morbid or aggressive themes that would indicate concern for the Harwich school or the community?
· Does Marshall demonstrate empathy or form attachments in his relationships with others?
· Based on observations and evaluations, what is the least restrictive environment that will enable Marshall to make effective progress given his disability? (P42C).
Harwich proposed that the extended evaluation be conducted at the Devereux School in Rutland, MA (Devereux) ( see P42C). However Harwich told Parents that it was willing to have the extended evaluation conducted at any approved special education facility and had proposed the Elan School and the Learning Clinic among others (Bertucci, Teso, Darson, see P43A). Harwich however told Parents that it could not authorize Hillside because it was not an approved school (Bertucci).
61. On September 11, 2006 Harwich sent this proposed evaluation to Ms. Erlichman along with a number of other reports and evaluations for Ms. Erlichman to consider at the September 13, 2006 settlement conference. Parents received a copy of the letter sent to Ms. Erlichman listing the documents sent to her (P42D). Marshall also began attending Hillside on that day (Mother).
62. On September 12, 2006 Parents informed Ms. Erlichman that Harwich had cancelled the September 13, 2006 settlement conference because Harwich had not provided them with an unequivocal eligibility determination that would be a precondition to discussing the content of a partial IEP or an extended evaluation (P42E).
63. On September 21, 2006 Harwich sent a redacted application to Devereux (P43A). Devereux indicated that it would invite Student for an interview and provided information regarding its program that Harwich passed along to Parents (P43B). The information indicated that Devereux served students with various psychological disorders with varying degrees of severity including but not limited to Post Traumatic Stress Disorder, ADD, PDD, Mood Disorders, Dissociative Disorders, Emotional Disturbances, and disruptive behavioral problems (P42B). Devereux would accept Marshall based on the redacted material but required an interview (P43C, P49). Parents did not believe that this was an appropriate program for Marshall and did not arrange for an interview (Mother, P43D).
64. On October 23, 2006 Parents requested that Harwich again reconvene the TEAM so that the TEAM could determine that Marshall was eligible for special education instead of having Marshall found eligible by administrative decision (P45B). Parents requested that the TEAM have all members present at this TEAM meeting (P45B).
65. On October 30, 2006 Parents and Harwich’s interim special education director Vida Gavin met. The next day Dr. Gavin wrote to Parents reiterating that Harwich proposed that Marshall was eligible for special education through an administrative decision and asked if Parents would be willing to have a TEAM meeting on November 8, 2006 for the purpose of modifying the proposed partial IEP for a change of placement from Devereux to the Learning Clinic65 and make corrections to the IEP (P45C).
66. On November 10, 2006 Harwich sent Parents notice that the TEAM would reconvene on November 17, 2006 to make an eligibility determination and possibly develop an IEP (P45F).
67. The TEAM reconvened on November 17, 2006. Parents wanted Harwich to answer what disability it had premised its determination of eligibility on and what reports it had used to form its determination. Harwich wanted to review and modify the partial IEP and extended evaluation and did not wish to rereview the eligibility determination that was part of settlement proposals (S3). Parents wanted an eligibility determination decided by a TEAM process (Mother). Parents also did not believe that Marshall required any more evaluation and that an IEP should be developed on the basis of Marshall’s PDD disability (Mother, P45H). Parents also vehemently disagreed with Marshall being labeled as seriously emotionally disturbed (SED) and that Harwich had maligned Marshall with an SED label as a legal strategy to defend against Parents’ FERPA claim (P45H). Parents ended the meeting by leaving the room because no agreement could be reached regarding the purpose of the meeting (S3). The meeting ended because the Parties could not agree on the purpose of the meeting; Id.
68. Marshall began attending Hillside on September 11, 2006 as a 7 th grader residential student (Mother, P47D). The Hillside School is a private regular education program for boys age ten through sixteen in grades five through nine (P47B). Seventy percent of the students are either five or seven day boarders66 (P47). It accommodates both traditional learners and boys with learning differences and/or attention problems but does not accept boys with severe behavioral and emotional problems (P47B). Hillside School does not and will not directly accept public funding from a local school district, yet accommodates families who receive reimbursement from their local school district for the cost of tuition and related services provided at Hillside. Hillside is willing to provide special education services as indicated on an IEP developed by a local school district but only if that IEP is consistent with the program that Hillside designs for the student. These services may not be the same services as an IEP (P47B). Academic courses may or may not be the same as a public school however Hillside does not follow the Massachusetts Curriculum frameworks (Stevens, see also P47D).67 Hillside will also not sign a monitoring contract that allows a public school to make on site visits and contact the school and student to see if it is meeting the student’s special education needs (Bertucci). Hillside does not determine when a student is ready to transition to a less restrictive educational setting leaving that decision to the parents (P47B).
69. During the fall Marshall took English, US History I, Algebra I, Science Explorer III, Latin and Leadership68 (P47D). He also engaged in a social skills tutorial for one fifty-minute period per week, a mandatory activity period where he took cross-country, a supervised study hall from 6:30 p.m. -8:00 p.m. on Monday through Thursday evenings and a mandated off campus recreational activity and chapel on Sunday (P47B). Marshall also has assigned seating at lunch that serves as a social skills tutorial and teaches responsibility because all the boys must take turns at being the waiter (P47B, Stevens). Marshall also attends dorm activities pursuant to a privilege/consequence system however, technology (TV and computer), even if earned, is monitored by the dorm parents (P47B, Mother, Stevens). Marshall’s teachers all have Bachelor’s degrees in the subject they teach. His social skills tutorial teacher is also the school chaplain (P47B).69 Marshall received A’s in all his classes and showed good conduct in all classes but had a tendency to making off topic comments in class; Id. His History teacher noted that Marshall had studied the topic previously.70 Marshall’s Latin teacher noted that Marshall showcased his writing skills producing thoughtful and well-written work. His Leadership teacher and his advisor commented that Marshall got along well with other students, was fitting in well and making fast friends and displayed advanced social maturity for his age. During September Marshall received an award for compassion (P47D). He participated in athletic activities for the first time and appeared to enjoy them (Mother).
70. Harwich requested an opportunity to observe Marshall at Hillside (Darson). Hillside’s policy is that it allows by arrangement outsiders to observe or monitor individual students as guests of the parents. It will also accommodate the guest/observer of the parent who participates in a TEAM meeting on behalf of the student and parents, but takes no responsibility for designing, implementing or monitoring the implementation of an IEP (P47B). Ms. Darson was not given an opportunity to observe the program or talk to Hillside (Darson).
71. Marsha Stevens71 observed Marshall’s program at Hillside on November 8, 2006 (Stevens). She was not accompanied by Parents (Stevens). Ms. Stevens observed Marshall in his math class, lunch and then his history class and talked to Marshall’s Latin teacher (also Marshall’s advisor) about his progress at Hillside (Stevens). Ms. Stevens also talked to staff about Marshall’s progress in the dorms but did not see him in that program because it was a daytime observation (Stevens). Ms. Steven’s talked to Marshall’s pragmatics teacher but did not see the class or talk to the teacher about what she was specifically doing with Marshall. Marshall’s math class contained six students (Stevens). The activity involved measuring different students’ heights and finding averages and percentage of change. Marshall was allowed to move around in class aiding him to focus (Stevens). In history Ms. Stevens observed appropriate instruction about how to obtain information through skimming text72 . Both teachers made sure that the students had appropriate materials for their class and knew what their assignments were, which Ms. Stevens felt gave Marshall the structure he required (Stevens).73 Marshall interacted appropriately at lunch but did however engage more with the adult at the table than the other students (Stevens). Ms. Stevens felt that Hillside was appropriate for Marshall because he appeared to benefit from the program (Stevens). However, Ms. Stevens also testified that there could also be 766 approved programs that would be appropriate for Marshall including the Learning Clinic and possibly the Chamberlain School (Stevens). She also testified that it was possible that a program in a public school or a collaborative could also be fashioned if it included a social skills component during school and beyond the school day with teachers trained in that area and offered Marshall an opportunity for physical activity to help him focus (Stevens).
72. Parents and Dr. Scarry continue to believe that Marshall does not require further evaluation (Mother, Scarry). Harwich however feels that further evaluation is need because the information they received from Dr. Scarry and information from some of the outside evaluators does not match the description of Marshall in school and therefore further evaluation is needed in a 766-approved therapeutic school setting (Reuss). In addition, given Dr. Scarry’s information about Marshall’s possible potential for violence Harwich needs further evaluation, including projective testing,74 to determine how to meet Marshall’s needs and the appropriate setting to meet those needs (Bertucci, Teso). If the evaluation shows that Marshall can be educated in a public school setting Harwich would love to have him back (Teso, Reuss, Childress).
73. Parents do not feel that Marshall requires an out of district residential program in order to receive a FAPE but that they had no other choice because Harwich was not providing Marshall with an IEP based on his PDD and writing disability (Mother). Parents believe that they should be reimbursed for Hillside because it provided a structured and supportive environment that addressed his needs (Mother).75 However, Parents would like Marshall immediately reenrolled in Harwich Middle School with an IEP and a 504 plan where Marshall would be placed in a general education classroom with an extended day program with accommodations, (including accommodations for participation in extracurricular activities). Parents also want an extended evaluation to be conducted while Marshall is in the Middle School program that includes a behavioral plan that addresses his social deficits due to his PDD and includes verifiable limitations on involvement by the school resource officer if Marshall is involved in a non-criminal internal school disciplinary matter; see (Mother), see also Parents’ brief at 21.
FINDINGS AND CONCLUSIONS
At issue is whether Harwich’s partial IEP and extended evaluation at an out of district facility offers Marshall a free appropriate public education (FAPE) in the least restrictive environment (LRE). If Harwich’s partial IEP and extended evaluation are found not to offer a FAPE to Marshall the Hearing Officer must determine whether Parents are entitled to reimbursement for their unilateral placement of Marshall at the Hillside School. Also at issue is whether Marshall is entitled to compensatory education because of Harwich’s previous denial of eligibility and/or whether Harwich committed procedural violations that denied Marshall a FAPE in the LRE.
The general purpose of the IDEA is to ensure that to ensure that all children with disabilities have available to them a free and appropriate public education (FAPE) that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living and to ensure that that the rights of children with disabilities are protected; 20 USC 1400 (d)(1)(A), (B);76
Under the federal FAPE standard, an educational program must be provided under an IEP that is tailored to the unique needs of the disabled child and meets all the child’s identified special education and related service requirements. This includes academic, physical, emotional and social needs; Lenn v Portland School Committee , 910 F. 2d 983 (1 st Cir. 1990), cert. Denied, 499 U.S. 912 (1991) and Burlington v Mass. Dept. of Education, 736 F. 2d 773, 788 (1 st Cir. 1984). In addition, the IEP must be reasonably calculated to provide a student the opportunity to achieve meaningful educational progress. This means that the program must be reasonably calculated to provide effective results and demonstrable improvement in the various educational skills identified as special needs; Roland v Concord School Committee , 910 F. 2d 983 (1 st Cir. 1990).
FAPE also entails complying with the procedural requirements of the IDEA. A school district that violates a student’s procedural rights under federal or state law may be liable where “procedural inadequacies [have] compromised the pupil’s right to an appropriate education…or caused a deprivation of educational benefits.” Roland M. v Concord Public Schools , 910 F. 2d at 994 (1 st Cir. 1990); see also Murphy v Timberlane Regional Sch. Dist. , 22 F. 3d 1186, 1196 (1 st Cir. 1994) (“a procedural default which permits a disabled child’s entitlement to a free and appropriate education to go unmet for two years constitutes sufficient grounds for liability under the IDEA”).
In addition to meeting the above standard, special education and related services must be provided in the least restrictive environment. This means that to the extent appropriate, students with disabilities must be educated with children who do not have disabilities. Programs and services can only be implemented in separate settings when the nature and severity of the child’s special needs is such that the student can not make meaningful progress in a regular education setting even with the use accommodations and specialized services; see 20 U.S.C. 1412 (a)(5)(A). In Massachusetts, the IEP must also enable the student to progress effectively in the content areas of the general curriculum; 603 CMR 28.02 (17). Massachusetts has defined “progressing effectively in the general education program” as “mak[ing] documented growth in the acquisition of knowledge and skills, including social/emotional development, within the general education program, with or without accommodations, according to the chronological age and developmental expectations, the individual educational potential of the student and the learning standards set forth in the Massachusetts Curriculum Frameworks”.
In order to receive the protections of the IDEA a student must qualify as a child with a disability. Under federal law the child must be one with “… mental retardation, hearing impairments… speech or language impairments, visual impairments…, serious emotional disturbance (hereinafter referred to as emotional disturbance), orthopedic impairments, autism, traumatic brain injury, other health impairments or specific learning disabilities” who requires special education and related services because of his/her disability; 20 U.S.C. 1401 (3) (A)(i) (ii). The Massachusetts standard is similar; the student must have a disability and as a consequence of the disability be unable to progress effectively in the general education program without specially designed instruction or is unable to access the general curriculum without a related service; see 603 C.M.R. 28.02(9). Once a student is eligible (s)he will have the right to receive special education and any related services that are necessary for the student to benefit from special education or that are necessary for the student to access the general curriculum. In determining eligibility, the school district must thoroughly evaluate and provide a narrative description of the student’s educational and developmental potential; Id.
Here Parents contend that Harwich failed to identify Marshall as eligible for special education and that it failed to offer him an appropriate IEP that addressed all of his identified special needs. Parents also contend that Marshall did not require any additional evaluations to develop an appropriate IEP and did not need to have evaluations or a program in an out of district placement; however because Harwich did not meet his needs Parents had no choice but to place Marshall at Hillside.
After examining the documents and the testimony in this matter, this Hearing Officer finds that Marshall currently requires an IEP that includes the counseling that Harwich offered in its IEP but that the partial IEP should be modified to incorporate the additional accommodations and services that Harwich recommended in its curriculum accommodation plans (or action plans) that incorporated recommendations by Harwich’s school psychologist (Mr. Wilson), school adjustment counselor (Ms. Darson) and special education teacher (Ms. Reuss) as well as from Dr. Cassens, Dr. Becker, Mr. Beach, and Dr. Presnall. These additional accommodations include: preferential seating and an opportunity for frequent movement throughout the day (recommendations of Mr. Beach and Ms. Reuss); reduction in written work if needed (recommendations of Dr. Presnall, Mr. Wilson), use of the Alphasmart or other computer system at school for long written assignments and computer software (i.e. Co-Writer) to support written language skills (recommendation of Dr. Cassens, Dr. Presnall, Mr. Wilson, Dr. Becker), strategies to organize writing including brainstorming, outlining, graphic organizers, use of study aids(recommendations of Dr. Cassens, Mr. Wilson, Dr. Presnall). Harwich’s IEP should also be amended to include additional services recommended in its curriculum accommodation plan. These services include a weekly social pragmatics group (recommendation of Dr. Presnall, Dr. Cassens, Dr. Becker and Dr. Scarry), organizational accommodations social skills (pragmatics) instruction (recommendations of Dr. Presnall, Dr. Cassens, Dr. Becker, and Ms. Darson).77
The evidence also shows that Marshall requires further evaluation in a therapeutic setting. On approximately May 20, 2006, Marshall’s psychiatrist Dr. Scarry told Harwich that given her knowledge in working with Marshall she worried that kids like this when they grow up would become like Ted Kaczynski the Unabomber and that she had concerns about Marshall’s ability to attach and questioned whether he had a thought disorder. At the TEAM meeting on June 16, 2006, Dr. Scarry indicated that Marshall has a serious emotional disturbance, that he was not fine and that he was an ill child. When a school receives information like this it has an obligation to assess whether it can service a child in its system and keep him (and others) in an environment where learning can occur.
Harwich attempted to gather this information however it was not able to obtain full information regarding Marshall’s emotional status. It attempted to conduct a functional behavioral assessment (FBA) after Marshall fired a BB gun at a school bus so that it could develop a behavioral intervention plan (BIP) but was able to complete the assessment or adequately develop a BIP because Parents would not share any information. Dr. Becker from Children’s Hospital informed Harwich that Marshall’s preoccupation with violence and his tendency to perceive aggression in neutral situations was highly concerning and should be monitored and addressed. However, Dr. Becker did not speak to Harwich and parts of his evaluation were redacted by Parents. Harwich requested but was not given a release to talk to Dr. Becker unless it got prior written approval from the Parents. Even if permission were to be granted, Harwich was not permitted to obtain any information about the family’s concerns or any verbal information that Parents told him. This prohibition extended to Dr. Presnall. Similarly, Harwich could get information from Marshall’s therapist Carol Nickerson only if Harwich submitted written questions to Parents for delivery. Harwich also attempted to get more information from Dr. Scarry to obtain further information about her assertion that Marshall had serious emotional disturbance; however Parents did not allow Dr. Scarry to fill out the form, provide her written assessment to Harwich, or provide any written information that would have given Harwich information. Dr. Scarry asserted at hearing that she did not feel that Marshall met the DSM criteria for emotional disturbance but that his emotional disturbance was part of Marshall’s PDD. However, regardless of the disability that contributes to Marshall’s preoccupation with violence, when a treating psychiatrist makes such a statement that given her knowledge of working with Marshall he could be the next Unabomber, along with previous behavior (making a stick figure killer flip book in 4 th grade, shooting a BB gun at a school bus in 6 th grade) when looked at in conjunction with recent information justifies concern, and when Harwich requests but cannot receive further information, and is not able to freely obtain information from other sources, Harwich’s recommendation for an evaluation in a therapeutic setting is correct.
Further evaluation is also needed because there is conflicting information about Marshall’s special needs. While all of the evaluators note a disorder of written expression and organizational deficits, there is conflicting evidence regarding whether Marshall has ADD and/or Asperger’s Syndrome or whether these disabilities impact his ability to learn. For example Mr. Beach noted the possibility of Asperger’s syndrome and ADD but did not diagnose Marshall with either of these disabilities. Dr. Presnall found that Parents’ scores on the ADD scale did not comport with scores on the Burks Behavior rating scales that did not show marked patterns of inattention or distractibility. Dr. Presnall also noted that Marshall may be likely to have Asperger’s syndrome, but like Mr. Beech, did not diagnose him with Asperger’s Syndrome. Similarly, Dr. Cassens concluded that Marshall did not meet the DSM diagnosis for Asperger’s Syndrome due to reports that Marshall had difficulty understanding emotions or expressions of others and was immature, aggressive and rude but also had friends, was involved in school and outside activities, was creative in his play, not indifferent to peer pressure and did not avoid social contact with children. Marshall’s teachers at Harwich have noted that Marshall sometimes makes inappropriate spontaneous remarks in class and does not pick up cues from peers, yet other Harwich teachers have observed him engaging in humor and acting appropriately with friends. Dr. Becker also found that Marshall had impairments in social interactions and restricted interests that were consistent with Asperger’s but that Marshall did not meet the criteria for Asperger’s Syndrome. Harwich’s art teacher and advisor, like Dr. Becker, noted that some of Marshall comments lacked empathy for other people, yet the Hillside School noted that in September, (the first month that Marshall attended), that Marshall was immediately making friends, displayed advanced social maturity for his age, and had received an award for compassion. Harwich’s speech/language pathologist (SLP) noted that Marshall demonstrated a well-developed ability to understand and process nonliteral language and abstract and double meanings and while he displayed some weaknesses in pragmatic skills appeared to know when a response was inappropriate because he asked the SLP not to count certain responses. Dr. Scarry however formally diagnosed Marshall with PDD because of his gross inability to understand social interactions and tendency for inappropriate verbalizations and behaviors.
In addition there is some question regarding whether Marshall does have an emotional disability either alone or in conjunction with other disabilities and if so, whether it affects his ability to learn. Mr. Beech questioned whether Marshall had a mood disorder. Dr. Cassens noted that Marshall was clinically at risk for social anxiety. Many evaluators and Marshall’s art teacher noted Marshall’s preoccupation with violence. Dr. Scarry noted concern that Marshall had a thought disorder and put Marshall on Abilify, an antipsychotic medication used to stabilize mood and illogical thinking, hallucinations, and rigidity as well as to treat PDD.
Finally, recommendations for a behavioral plan from Harwich and from Dr. Presnall, Dr. Cassens, Dr. Becker, and Mr. Beach cannot be developed without conducting a functional behavioral assessment (FBA). This FBA cannot be adequately completed or coordinated in the home setting without input from Parents. This has not happened in the Harwich Middle School and should be implemented in a short- term therapeutic setting.
Therefore Marshall’s IEP will include further evaluation including but not limited to a functional behavioral assessment, projective testing, and a safety evaluation in a therapeutic setting that provides pragmatic instruction and therapy. The evidence shows that the Devereux School appears to offer an appropriate program. However since Parents will not send Marshall for an interview there and Harwich has, as early as the spring 2006, agreed to explore other programs Harwich will immediately send referral packets to other summer programs that provide such instruction.78 Marshall should be evaluated by staff while he is in the program; however if the program cannot also provide the projective testing that Marshall requires, Harwich may arrange for an outside provider to conduct these tests. If the therapeutic program and evaluators determine that Marshall can be educated in a public school setting, the TEAM will reconvene to develop a transition plan and amend the IEP if appropriate.79
Parents feel that the partial IEP is improper because it did not indicate that Marshall had PDD and that he was not making progress because of this disability. The partial IEP does indicate on page 4 that Marshall has been diagnosed with PDD and that he requires access to counseling to facilitate and develop reciprocal social and emotional relationships. The IEP also indicates that Marshall has social/emotional needs and behavior issues. It will be amended to reflect the other recommendations that Harwich agreed that Marshall required through its curriculum accommodation plans and may be further developed once the further evaluations are conducted and the TEAM reconvenes to review them. It is noted that Parents would like Harwich to admit that Marshall has PDD and is not making effective progress because of this disability. However, there is not enough evidence at this juncture to form that conclusion. In addition, regardless of whether Marshall is determined to have a nonverbal learning disability, a disorder of written expression, Asperger’s syndrome, PDD, ADD, an emotional disability, or a combination of some of these disabilities, the Parties should focus less on the label and more on the recommendations for programming if it is determined that any of these disabilities affect Marshall’s ability to progress effectively in regular education.
Parents also assert that the partial IEP and extended evaluation is inappropriate because both were offered as part of a settlement agreement instead of through a TEAM process and this procedural violation denied Marshall a FAPE. If the Team finds the evaluation information insufficient to develop an IEP, the Team, with parental consent, may agree to an extended evaluation period. If however there is sufficient information to develop some of the goals, objectives, and services, the TEAM should write a partial IEP that if accepted by the Parent shall be immediately implemented by the District while the extended evaluation is occurring; 603 CMR 28.05 (2) (b) (1). The evaluation information that the TEAM has must be inconclusive and cannot be used to extend the thirty school day time period to complete the assessments; 28 CMR 28.05 (2)(b)(2); see 603 CMR 28.04 (2). If the Parent consents to an extended evaluation, the TEAM shall determine what evaluation time period is necessary and the types of information to develop an IEP and reconvene at the end80 of the evaluation period to develop or complete an IEP if appropriate; 603 CMR 28.05(b)(3). If the TEAM determines that a partial IEP is required they will determine a placement; however the extended evaluation is not considered a placement but rather a location where the extended evaluation is conducted. The placement is determined when the TEAM reconvenes after the evaluations are completed.
Parents are correct that the partial IEP and the extended evaluation were procedurally improper. While Harwich was correct that the evaluative material they had was inconclusive, the extended evaluation should not have been used because it was not consented to by Parents. It is also undisputed that the partial IEP and extended evaluation were not offered at a TEAM meeting but through administrative decision.81 Procedural violations will result in an award of compensatory education if the procedural violation impeded the child’s right to a FAPE, caused a deprivation of educational benefits, or significantly impeded the parents’ opportunity to participate in the decision making process regarding the provision of FAPE to the child; see 20 U.S.C. s. 1415 (f)(3)(E)(ii).82 Here the evidence shows that Marshall should receive an evaluation and a partial IEP and as such procedural violations83 in the issuance of this IEP and partial evaluation did not result in a deprivation of educational rights or deny a FAPE to Marshall. Therefore compensatory education is not warranted..
The evidence also shows that Parent had several opportunities to participate in the decision making process. Parents participated in a TEAM meeting on June 16, 2006 and had an opportunity to participate in decision making for Marshall. That TEAM meeting did not result in a finding of eligibility or an IEP because Parents terminated the conversations with Marshall’s treating psychiatrist and would not allow her to give Harwich the information they needed to develop an IEP and perhaps eliminate the need for further evaluation. Parents also had an opportunity to participate in a TEAM meeting on August 2, 2007. Although the IDEA requires that a regular education teacher be at the TEAM meeting, Parents affirmatively were told that some of the TEAM members may not be available in the summer and requested that the TEAM convene so that the matter could possibly be resolved prior to the next school year. When the regular education teacher became suddenly unavailable due to a family emergency, Mother elected to have the TEAM meeting. It did not occur because Mother cancelled the TEAM meeting when the regular education teacher was unavailable and elected not to reschedule another TEAM meeting in the summer. If Parents had taken the opportunity to participate in a TEAM meeting prior to the school year and had freely shared information it is more likely than not that Marshall would have been found eligible for special education prior to the school year and prior to Parents’ unilateral placement at Hillside. Parents were also given another opportunity to participate in decision making through mediation and a settlement conference. Even though the IEP established eligibility Parents strongly feel that that eligibility should have been established through a TEAM process only. However, the IDEA does not preclude resolution through negotiation. In fact, the IDEA anticipates that matters, including a student’s placement, may be resolved through mediation, or a resolution session or other proceeding prior to hearing. Father, an attorney, freely engaged in negotiation throughout the process with Harwich’s attorney, including mutual drafting of release of information, negotiations through discovery and offers of settlement prior to the settlement conference. Therefore Parents should not have been surprised that Harwich’s Counsel might also seek resolution of the hearing issues through a settlement agreement.
Parents have agreed that they have not given Harwich all of the information available but that their actions were justified because Harwich violated their trust when it relayed information to the school resource officer in late March of Marshall’s 5 th grade year after Marshall created a flip book and as a result information was entered into a database at the Harwich police department. Parents also feel that Harwich did not take Marshall’s PDD into account prior to his two-day suspension nor did they conduct a manifestation determination or develop a BIP. It is understandable that Parents were upset that the police became involved in a school matter; however this incident involved a possible threat of serious bodily injury to a student who had been bullied at school and contained pictures with the words “KILLER STICK FIGURES” and a series of pictures that depicted violent images and death. Harwich investigated the claims and determined with Mother that the drawings did not depict violence toward the school and that Marshall would not act out his drawings. The IDEA states that nothing should be construed to prohibit an agency from reporting a crime84 committed by a child with a disability to appropriate authorities or to prevent state law enforcement or judicial authorities from exercising their responsibilities with regard to the application of Federal or state law to crimes committed by a child with a disability. An agency reporting a crime committed by a child with a disability shall ensure that copies of the special education and disciplinary records of the child are transmitted for consideration by the appropriate authorities to whom the agency reports the crime; 20 U.S.C. s. 1415(k) (6) (A) (B); see also 20 U.S.C. s. 1415 (7) (D).85 Therefore Harwich did not commit a procedural violation when it involved the school police officer in its investigation.
The evidence also shows that Harwich did not commit a procedural violation when it did not conduct a functional behavioral assessment (FBA) or develop an behavioral intervention plan (BIP) or otherwise conduct evaluations at that time to determine if Marshall had PDD. Harwich investigated the situation and gave Marshall a two-day suspension. School personnel may suspend a child with a disability (or a child who should have been determined to have a disability) for not more than ten school days if the suspension is consistently applied to children without disabilities; see 20 U.S.C. s. 1415 (k) (1)(B). Harwich at that time did not have reason to suspect that Marshall had a disability. He was doing well in school academically, scored in the proficient range on the English/Language arts MCAS and the advanced range on the 4 th grade math MCAS. Mr. Beach’s evaluation had not diagnosed Marshall with Asperger’s or PDD and Harwich’ SLP noted average scores in pragmatic testing. Marshall’s previous disciplinary infraction prior to the incident of March 30, 2005, had been on October 12, 2004. The incident that occurred on March 30, 2005 as well as the remark in October 2004 about gas coming out of the jets warranted concern and review by Harwich however inappropriate comments about violence spaced almost six months apart do not lead to a conclusion that a child has a disability or has PDD or warrant an FBA.86 Parents have the right to share or not share information; however a school district can only find that a student is eligible and if eligible create a program based on the information it has at the time; see Roland v Concord School Committee , 910 F. 2d 983 (1 st Cir. 1990).
Parents also assert that reimbursement for the Hillside School is proper because Harwich’s past actions showed that it would not find Marshall eligible for special education and had never developed a full IEP prior to Parents’ unilateral placement of Marshall on September 11, 2006. Parents did not appeal Harwich’s April 4, 2004 finding of no special needs87 nor did they meet their burden in showing that the accommodations in the agreed upon curriculum accommodation plan were not implemented in 4 th or 5 th grade.88 Harwich’s finding of no special needs and ineligibility for a 504 plan in January, May, and June of 6 th grade (2006) was also proper based on Marshall’s “A” and “B” grades89 and appropriate social skills in school, the lack of consent to conduct a full FBA or freely speak to Marshall’s evaluators or receive any information from Parents or to the contrary.
Even if the evidence had shown that Harwich should have developed an IEP for Marshall Parents would only be entitled to reimbursement for the Hillside School if they demonstrate that the program and services offered by the school district are inappropriate, and that the program and services that they obtain privately are appropriate. School Committee of Town of Burlington , Mass. v. Dept. of Education of Mass ., 471 U.S. 359, 369-70 (1985). To be deemed appropriate, so as to qualify parents for reimbursement, the parents’ chosen program need not be a state approved special education school, so long as it is does meet the federal FAPE standard; Matthew J. v. Mass. Dept. of Education , 989 F. Supp. at 387, 27 IDELR 339 at 343-344 (1998), citing Florence County School District Four v. Carter , 510 US 7, 13 (1993). Thus, a parent may be reimbursed for the costs of a unilateral placement if that placement is “appropriately responsive to [a student’s] special needs;” i.e., so that the student can benefit educationally. Matthew J. , 27 IDELR at 344. Reimbursement is an equitable remedy. The amount of reimbursement to be awarded is determined by balancing the equities; see e.g. Burlington (supra).
The evidence shows that Harwich’s partial IEP with modifications and request for further evaluation in a therapeutic program are correct. Even if it were not correct, Parents have not met their burden of proving that Hillside was appropriately responsive to Marshall’s needs. It is noted that Marshall is doing well at Hillside; however the Hearing Officer does not know whether he is doing well because of the program at Hillside or because he is receiving instruction that he previously received in Harwich or because of factors that are not academic.90 It is also noted that Marshall is receiving counseling and pragmatics, however there is no information regarding what skills were being taught in Marshall’s pragmatics class or the qualifications of this teacher or any of the academic teachers because Hillside would not supply this information despite several requests to do so. In addition, Hillside is not an approved special education program and could not be approved unless there were no 766 approved programs that could meet his needs. Parents’ own expert testified that there were approved programs that could have met Marshall’s needs. As such reimbursement is not appropriate.91
ORDER
Harwich’s partial IEP with modifications and evaluation in a therapeutic program provides Marshall a FAPE in the LRE. Harwich will immediately locate or create a summer program where the partial IEP and evaluations can be implemented. Parents’ request for compensatory education for 4 th -6 th grade and request for reimbursement for the Hillside School is denied.
By the Hearing Officer,
Joan D. Beron
Date: May 22, 2007
1
Marshall is a pseudonym used for confidentiality and classification purposes in publicly available documents.
2
The record was to close on April 13, 2007 because Father wanted to receive the transcripts and have time after work to write Parents’ closing argument (Father). On April 5, 2007, Father filed a 2 nd request for postponement because the transcript had not been timely received. The time for submission of closing arguments was extended to April 30, 2007 for both Parties.
3
The Hearing Officer was a Legal Intern at the same facility where Father now is employed. The Hearing Officer had not met Father prior to this proceeding. The above was disclosed to both Parties and neither party objected to the Hearing Officer proceeding over this matter.
4
Parents contend that Harwich had enough information in preschool or early elementary school to find Marshall eligible for special education. However, Parent’s hearing request was filed on April 4, 2006. Issues prior to April 4, 2004 fall outside the two-year statute of limitations; see 34 CFR 300.507 (a)(2).
5
TEAM meetings occurred on April 5, 2004, January 30, 2006, May 23, 2006 and June 16, 2006. The TEAM meeting of August 2, 2006 was not completed at Mother’s request because a regular education teacher was not in attendance. The TEAM meeting of November 17, 2006 was also not completed because the Parties could not agree on the purpose of the meeting.
6
A compensatory education remedy would be those services that Marshall would have been entitled to based on the recommendations regarding what Harwich knew or should have known at the time that Marshall would have been found eligible. Compensatory education can also be awarded for procedural violations if Marshall was denied a FAPE as a result.
7
It appears that Marshall did not receive OT in his private preschool.
8
Marshall had four incidents in kindergarten that generated a discipline report. On November 10, 1999 Marshall pushed another student on the playground; on January 12, 2000 Marshall was disrespectful in the cafeteria and lost recess; on February 11, 2000 Marshall engaged in rude behavior in the cafeteria, and on April 28, 2000 Marshall kicked another student. Harwich informed parents on each occasion and made a verbal plan on the first two occasions and a self-improvement plan on the last two occasions (P5A, see also 6A, 6B).
9
Marshall received a verbal IQ of 123 and a performance IQ of 119 on the WISC-III; (2C). He also scored in the very superior range in most subtests on the WJ-R with no scores below the average range; see (2B). These average scores were in the areas of sustaining attention and concentration (2C).
10
Marshall however did receive occupational therapy support and speech therapy to address articulation. This continued through third grade; ( see P15).
11
The daily to do list also included 6 smiley faces along with five frown faces and indicated that the teacher and Marshall had worked on strategies about how to calm down when upset; ( see P8C).
12
These claims are the subject of a FERPA complaint and will not be decided here as the BSEA does not have jurisdiction over FERPA issues and these incidents occurred before IDEA’s two-year statute of limitations. Findings prior to April 2004 are provided for background information only.
13
This disciplinary report indicates a 2002-2003 SY but reports dates of 2000 and 2001. These claims are also the subject of a FERPA complaint and will not be decided here, as the BSEA does not have jurisdiction over FERPA and these incidents fall before IDEA’s two-year statute of limitations. Findings prior to April 2004 are provided for background information only.
14
The report did not further elaborate nor did Parents offer any testimony regarding behavior at home.
15
Mr. Beach concluded that further investigation would be needed to determine whether Marshall exhibited empathy before an Aspergers’ diagnosis could be made and recommended therapy to explore this (P15). Parents did not choose to have Marshall in therapy (Darson). Mr. Beach offered no explanation as to the possible mood disorder; see (P15).
16
Mr. Beach did not explain how to achieve this structuring. Similarly he recommended that Marshall’s worksheets and books be carefully evaluated for potential disasters in terms of visual distractibility. It is unclear what Mr. Beach means nor did he offer any specifics regarding this evaluation.
17
This exhibit like many others contain copies of Mother’s notes that appear to be on post-its;( see eg. P17).
18
The SLP administered the Comprehensive Assessment of Spoken Language (CASL) pragmatic judgment subtest, the Test of Pragmatic Language, the Test of Problem Solving-Revised and also evaluated Marshall’s spontaneous language; ( see P18B). Marshall scored in high average range on the CASL with a standard score (SS) of 126, in the high end of the average range on the Test of Pragmatic Language (SS 109) and in the average range on the Test of Problem Solving (SS 101). Marshall’s spontaneous speech contained a mild, but self-correcting distortion of the “l” sound and some unusual dysfluency that did not interfere with successful communication.
19
Parents indicate in their brief that the accommodations were not implemented. Parents indicated at hearing that Marshall did not receive social skills training but did not bring up failure to implement other accommodations either in testimony or in documentary evidence.
20
There may have been more words to Marshall’s statement but they did not appear on the exhibit copies; ( see P23C).
21
During the spring of 2005 Marshall participated in an informal short term and voluntary after school social skills group with Ms. Darson; ( see P30A).
22
Parents have filed a FERPA complaint regarding this issue as well as the alleged inaccuracies contained in Marshall’s earlier discipline reports and have requested that Harwich amend Marshall’s school record. Parents have also requested information about the school resource officer policies in Harwich. The BSEA will make no findings regarding the policies of the Harwich police department. However this finding will be included because it is relevant to Parents’ reason for not giving Harwich full consent or supplying information to Harwich regarding later events; ( see Mother).
23
The school officer documented the May 4, 2005 meeting through an incident report. Under status he wrote, “No crime involved” and under events wrote “Parent meeting at the Middle School”.
24
Dr. Presnall mentions review of the evaluation done at OTA when Marshall was four years old and Mr. Beach’s evaluation. Dr. Presnall does not indicate whether he reviewed other records or evaluations; see (P30G).
25
Parents referred Ms. Childress to Marshall’s academic record but did not state what the disability was in this letter; ( see P25).
26
Parents also requested that the meeting address their opposition to another parent’s request to separate their children in school due to the yearbook incident and to request that Harwich not share information with the police or other outside organizations or individuals without Parents’ informed consent (P25).
27
Parents did not specify that it was the Children’s Hospital assessment in the letter but indicated that it was the evaluation already provided to Harwich.
28
At that time Harwich had the educational assessment completed by the school adjustment counselor Deborah Darson (P30A), an observation from the school psychologist Steven Wilson (P30B), assessments from Marshall’s teachers (P30B), an occupational therapy evaluation (S74), Vision and Hearing screening (S75), and the other evaluations previously done that were requested by the Parents. It is not known whether Harwich had a copy of Dr. Presnall’s evaluation at that time because the evaluation was not date stamped by the school and Dr. Presnall indicated in his report that he sent the evaluation to Harwich in c/o of Parents; ( see P30G). Harwich did however have the Presnall evaluation when the TEAM did later convene on January 30, 2006.
29
Parents consented to this evaluation.
30
Marshall’s articulation, voice and fluency were adequate for conversational purposes. Marshall did display a slight distortion of the [r] and [l] sounds along with increased rate of speech and mumbling but could self-correct with minimal instruction; ( see P30E). The SLP also assessed Marshall’s pragmatic speech. This will be expanded in other findings.
31
Marshall however told Dr. Cassens that he only had word finding difficulties with his parents, denied that he repeated himself, and was able to follow directions; ( see P30D). Dr. Cassens however also observed this repetition in Marshall’s speech revealing organizational difficulties in expressive language.
32
Parents also were asked to fill out a Behavior Assessment System for Children-Parent rating scale (BASC). The BASC profiles for conduct and behavior were in the At Risk range; however Dr. Cassens indicates that these scores should be approached with extreme caution due to both Parents tendency to be excessively negative in describing the child’s behavior; ( see P30D).
33
Dr. Cassens alluded to executive functioning deficits in her summary but did not specifically diagnose it; ( see P30D p. 15-17).
34
Dr. Cassens indicated that Marshall’s speech difficulties may not meet the requirements of school-based intervention and recommended that Parent’s pursue the Speech Viewer software program or private intervention. Although Dr. Cassens did not separate her recommendations, some appear to be recommendations solely for Parents such as the recommendation for a medication evaluation and private counseling and assessment for thyroid function given family history ( see P30D).
35
Parents were also given notice of this TEAM meeting on December 20, 2005 that described the purpose of the meeting as an eligibility determination and an initial evaluation ( see P29).
36
This assessment references included Marshall’s disciplinary record and both school and private evaluations ( see P30A).
37
Marshall’s scores ranged from the 37 th percentile in story construction to the 99 th percentile in vocabulary; ( see P30C). Marshall’s other TOWL-3 subtest scores were as follows: 50 th percentile in contextual language, 60 th percentile in spontaneous writing, 63 rd percentile in style, 84 th percentile in spelling and contextual conventions, 93 rd percentile in overall writing, and the 98 th percentile in logical sentences, sentence combining, and contrived language (P30C).
38
Similarly the OT found that while Marshall scored in the average to above average range on the standardized OT assessments, his performance showed a difficulty in writing that required more open ended responses that affected his handwriting and therefore also recommended accommodations in class to help Marshall organize. The OT also recommended a trial of direct OT to address letter closures and formations; ( see P30F).
39
Marshall’s results on the TLC-E subtests were as follows: Listening comprehension 84 th percentile, Ambiguous sentences 91 st percentile, and Oral Expression and Figurative language 95 th percentile; ( see P30E).
40
Marshall scored in the 95 th percentile on the OWLS.
41
However, Marshall’s handwriting was legible (Reuss).
42
Although this conversation may be otherwise protected under the attorney-client privilege Harwich introduced this conversation in evidence and therefore the privilege is waived.
43
Harwich had agreed to conduct a social pragmatic language assessment and an assistive technology assessment to address writing weaknesses. On February 16, 2006, Parents sent Harwich correspondence from Dr. Presnall indicating that Marshall met the DSM-IV criteria for Asperger’s Syndrome but requested that the latest information not be considered a TEAM eligibility determination or that the TEAM be reconvened to consider it, instead requesting an independent evaluation to determine an Asperger’s diagnosis; (P31G). Harwich, after consulting with PQA, agreed to fund an independent evaluation ( see P31G, Bertucci).
44
Dr. Kaselis indicated that Harwich should consider medical information from Dr. Cassen’s evaluation from December 16, 2005 and Dr. Presnall’s evaluation from August 30, 2005 ( see P32). Dr. Kaselis also indicated that Harwich should also consider Dr. Becker’s February 16, 2005 evaluation from Children’s Hospital; however Parents did not receive that evaluation until May 11, 2006 and Harwich did not receive the evaluation until shortly after; ( see P34, S71).
45
The tutors found that Marshall demonstrated the necessary skills in reading, spelling, math and science to complete all his assignments (P34E). The tutors however found that Marshall did not always complete assigned homework despite having the homework written down and describing it to Mother. He demonstrated good eye contact and appropriate body language in tutoring sessions, good language capabilities and appropriate social behavior (P34E).
46
The letter was dated March 4, 2006. Harwich received the letter on March 8, 2006; ( see S44).
47
However Parents also told Harwich on or about February 23, 2006 that Marshall not have these evaluations because he had been tested enough; ( see S41, S47).
48
The medication was Abilify. Abilify is an antipsychotic medication used to stabilize mood and illogical thinking and address issues of hallucinations and rigidity. Abilify is most often prescribed for individuals diagnosed with bipolar disorder and schizophrenia but has off label uses in treating those diagnosed with PDD (Scarry). Harwich did not know that Marshall was taking Abilify until Dr. Scarry’s testimony at hearing.
49
Dr. Scarry indicates that Marshall’s written expression difficulties are severe; however Dr. Presnall’s testing shows weaknesses in Marshall’s processing speed and weaknesses in organization and written language production ( compare P32, P30G). Dr. Cassens found mild attentional deficits for short bits of fleeting visual information, impaired sequencing and prioritization skills consistent with weakness in executive function. Dr. Cassens also indicated that Marshal had a disorder of written expression but did not label it as severe ( see S72).
50
Dr. Scarry conducted an evaluation. She did not provide it to Harwich in discovery because Harwich did not pay for it and Parents did not give their consent to have the results released. Dr. Scarry indicated that she would not release the information even with an order to do so (Scarry). Therefore no information contained in the evaluation was shared.
51
Harwich received Parents hearing request on April 4, 2006; ( see P30).
52
Harwich received the letter on May 12, 2006 (P34A).
53
Mother offered to supply the redacted information to the Hearing Officer upon request ( see P34A). The Hearing Officer did not request the additional information because the issue is what program would be appropriate based upon the information the school district had; see e.g. Roland v Concord School Committee , 910 F. 2d 983 (1 st Cir. 1990). In addition, all information shared with the Hearing Officer must also be shared with the School District; see e.g. 801 CMR 1.03 (6).
54
Parents filed their hearing request pro-se on April 4, 2006. Tim Sindelar, Esq. filed an appearance on April 20, 2006. He withdrew his representation on June 26, 2006. A conversation between an attorney and a client is privileged; however Parents’ introduced this information in their documents and in testimony and as such the privilege is waived.
55
Parents looked at the Learning Clinic on June 23, 2006 and were impressed with the program. Parents did not however think that Marshall could attend the Learning Clinic because they did not have an IEP ( see Mother, P38).
56
Parents objected to the tape or the transcript of the tape going into evidence because it was not produced within five days prior to the hearing. However, Dr. Scarry confirmed that she made those statements.
57
The Parties attempted to recall Dr. Scarry but she did not have any time left to talk (Bertucci, Wilson, Scarry).
58
At hearing Dr. Scarry also testified that treatment would include use of social stories and group therapy; ( see Scarry). She did not tell Harwich this information prior to hearing.
59
The DSM-IV (and the IDEA) definition of “serious emotional disturbance” means a condition exhibiting one or more of the following characteristics over a long period of time and to a marked degree, which adversely affects educational performance:
1. An inability to learn which cannot be explained by intellectual, sensory or health factors:
2. An inability to build or maintain satisfactory interpersonal relationships with peers and teachers;
3. Inappropriate types of behaviors or feelings under normal circumstances;
4. A general pervasive mood of unhappiness or depression;
5. A tendency to develop physical symptoms of fears associated with personal or school problems;
6. The term includes students who are schizophrenic. The term does not include students, who are socially maladjusted, unless it is determined that they are seriously emotionally disturbed; see 34 C.F.R 3. 300.8 (4)(i)(A)-(E).
60
There was some confusion from Harwich regarding whether it would mediate however mediation did occur (Bertucci).
61
Mother maintains that there would be no general education teacher on that day; ( see P40B).
62
Parents informed Harwich in May 2006 that they would be seeking another placement if an appropriate special education program was not developed in Harwich (Mother). There is no dispute that Parents gave adequate notice prior to making a unilateral placement.
63
Harwich’s Counsel received the letter on September 5, 2006 (P42C).
64
An N1 is a DOE form which provides Parents with notice of the School District’s action. That action can be a request for an evaluation, a proposal for an IEP or an IEP amendment, a placement or other action that is specified; see doe.mass.edu/sped/iep/forms/word/n1.doc.
65
The proposed placement was the Learning Clinic in Brooklyn, CT.
66
Marshall was a five-day boarder (Mother).
67
Marsha Stevens observed Hillside in November 2006. She believes that Hillside provides a high quality education but does not know what grade level Marshall’s class are (Stevens).
68
The Leadership class focuses on team building, communication skills and decision making through projects such as building an Adirondack log lean-to (P47D). In the winter Marshall took yoga and art instead of Leadership. In the spring Marshall would take music (P47D).
69
It is not known whether Marshall’s teachers are certified or licensed because Hillside did not supply any information despite a discovery request and directives for Parents to obtain this information. Ms. Stevens observed the program in November 2006 but did not ask the teachers about their qualifications or know if any of the teachers were licensed or certified (Stevens).
70
The record is unclear whether Marshall had previously taken Algebra I or covered the material in his English and Science classes.
71
Marsha Stevens has been an educational consultant since 1973. She has taught as a substitute or summer school teacher from 1967-1970 and as a psychologist during the summers between 1971 and 1976 (P51). She is not certified or licensed in these areas (Stevens).
72
The lesson was about state and national government (Stevens).
73
Ms. Stevens did not observe Marshall’s regular education classes in Harwich Middle School (Stevens). If she did she would have seen well-organized instruction where students had an opportunity to take move around (Reuss, Childress). If she had been able to see Marshall when he was at the Middle School she would have seen him participating and interacting with other students; Id.
74
Although Harwich feels that the projective testing should be done within a 766 approved therapeutic program it is willing to have the projective testing done by an outside evaluator (Teso).
75
Parents feel that Hillside met Marshall’s needs because it was not a special education school and therefore Marshall did not stand out as different (Mother, see also Parents’ brief at 24).
76
There are other broad purposes to the IDEA not relevant to this decision; see 20 U.S.C. 1400 (d) (1)(C).
77
Ms. Darson did not testify that she recommended pragmatics instruction but did offer Marshall and Marshall did participate in an afterschool social skills group during the spring of 2005; see (P30A).
78
Harwich will explore the Reed Academy, the Elan School, Pathways, and the League School. Harwich is not restricted to these programs nor is the Hearing Officer making any recommendation regarding their appropriateness for Marshall.
79
Mr. Teso is credible in his assertion that Harwich would welcome having Marshall back if he is able to be educated in a public school setting. The Hearing Officer notes that Parents do not trust Harwich; however Marshall has friends in Harwich and it is hoped that the Parties can work together. If not, Parents can look into public school programs through School Choice.
80
The TEAM may also agree to meet at intervals during the evaluation period; see 603 CMR 28.05(b)(3).
81
While settlement proposals prior to hearing are not considered at hearing, Harwich incorporated their proposal into an IEP and both Parties wish the Hearing Officer to address this issue.
82
Parents also committed a procedural violation when it did not submit its written closing argument simultaneously with its submission to the Hearing Officer. However Parents, like School Districts are not sanctioned for procedural violations when the opposing party does not suffer harm as a result of the violation. Parents did send the closing argument to Harwich when the omission was brought to their attention and Harwich did not suffer harm as a result.
83
Parents assert that Harwich committed a number of procedural violations in the issuance of the partial IEP and extended evaluation. These include a lack of consent to develop an extended evaluation, the absence of a TEAM to determine eligibility and placement, absence of notice and two copies of the IEP, failure to make reasonable efforts to secure Parents’ participation, and failure to have a Devereux representative a TEAM meeting before recommending it.
84
The police determined that there was no crime involved. Although the statute indicates that an agency is not prohibited from reporting a crime, the school district does not determine if a crime occurred. If an LEA believes that a crime occurred IDEA does not prohibit the reporting of the incident.
85
Marshall was not on an IEP or a 504 plan at this time and was not considered a child with a disability; however Parents are contending that Marshall should have been considered a child with a disability. If Harwich should have known that Marshall had a disability this provision would apply. If Harwich did not have any reason to know that Marshall had a disability at this time Marshall could be subjected to disciplinary measures applied to children without disabilities.
86
A diagnosis of PDD does not lead to a conclusion that violence will occur and boys without disabilities may focus on action and violence; ( see Scarry).
87
Parents assert that Harwich should have conducted a 504 meeting after the TEAM determined that Marshall was making effective progress and did not qualify for an IEP. School districts are required to make reasonable accommodations and provide reasonable access to services if it finds that a student is a qualified individual with a disability that substantially limits one or more major life activities.
88
No evidence was presented that accommodations other than social skills training were not implemented. Harwich indicated that it offered some voluntary social skills training in 5 th grade but did not offer specifics about the amount or duration of services. Mother did make a statement but did not offer any corroborating evidence that social skills training was not implemented. The evaluators have recommended social skills (pragmatics) once a week. Harwich was ordered to provide a summer program that offers pragmatics. Pragmatic sessions that occur more than once a week will be considered compensatory education.
89
Marshall received one C for a one-term course first term. The rest of his 6 th grade marks were 3 A’s, 3 A-‘s, 3 B+’s and one B (S63).
90
Marshall is attending Hillside’s residential program. An IEP designating a residential program is appropriate only if the severity of the student’s special needs is such that he cannot educationally progress effectively in a less restrictive environment, even with the use of supplementary aids and services; see 603 C.M.R. 28.06(f). The courts have approved residential educational placements, for example, for students who need a comprehensive, 24-hour, highly structured special education program that would address students’ social and behavioral needs in a consistent manner. David D. v. Dartmouth School Committee , 775 F.2d 411 (1st Cir. 1985). Parents admit that Marshall does not require a residential school in order to learn; see Parents’ brief.
91
Even if Parents had shown that Harwich’s program was inappropriate and that reimbursement at Hillside was warranted, Harwich could not have developed a prospective IEP for Hillside because Hillside will not engage in the approval process including, but not limited to, allowing Harwich to visit or monitor it to ensure that it was meeting Marshall’s special education needs.