Nancy v Hamilton Wenham Regional School District – BSEA # 07-7139



<br /> Nancy v Hamilton-Wenham Regional School District – BSEA # 07-7139<br />

COMMONWEALTH OF MASSACHUSETTS

BUREAU OF SPECIAL EDUCATION APPEALS

In re: Nancy1

BSEA#07-7139

DECISION

This decision is rendered pursuant to M.G.L. Chapters 30A and 71B; 20 U.S.C. §1400 et seq.; 29 U.S.C. §794; and the regulations promulgated under these statutes.

A hearing in the above-entitled matter was held on July 3, 2007. The record remained open for receipt of final documents and written final arguments until July 9, 2007.

Those in attendance were:

Student

Mother

Father

Allison Collins Director of Special Education, Hamilton-Wenham Regional School District

Deborah Frontierro Out of District Coordinator, Hamilton-Wenham Regional School District

Suzanne Laughlin Program Director, Arlington School

Catherine Lyons Attorney, Hamilton-Wenham Regional School District

Raymond Oliver Hearing Officer, Bureau of Special Education Appeals

The evidence consisted of Parents’ Exhibits labeled P-1 through P-41 excluding

P-36, P-38, and P-40; Hamilton-Wenham Regional School District’s Exhibits labeled S-1 through S-21; and approximately 3 ¾ hours of oral testimony.

HISTORY/STATEMENT OF THE CASE

Nancy is a fifteen year old young lady who resides with her parents in Hamilton, MA. She attended school within the Hamilton-Wenham Regional School District (HW) from kindergarten through fifth grade; a charter school for sixth grade; and HW for seventh grade (2004-2005 school year). Nancy had received a number of school evaluations and independent evaluations and was placed under a 504 Accommodation Plan in 2002. However, during this period Nancy was a regular education student. (See S-1; P-39; testimony, Frontierro.)

In January 2005 Nancy was admitted to Metro West Medical Center (MWMC) for ten days which was followed by home tutoring. In March 2005 Nancy was placed in a forty-five day diagnostic evaluation at the Merrimack Educational Collaborative (MEC). Nancy finished out the 2004-2005 school year at MEC.2 In June 2005 Nancy was diagnosed by Tufts-New England Medical Center (NEMC) with a generalized anxiety disorder and with a recommendation for individual psychotherapy (P-41; S-1; testimony, Frontierro). I take administrative notice of BSEA#05-2725 dated July 14, 2005 and cited at 11 MSER 121, which details Nancy’s educational history and evaluations through June 2005.

In September 2005 Nancy had difficulty with re-entry to school and she was provided tutoring through Commonwealth Learning Center (CLC) by HW. In October 2005 Nancy was re-admitted to MWMC for one week for anxiety. In November 2005 Parents requested home tutoring followed by an all girl residential placement. In December 2005 the team met, found Nancy eligible for special education, and wrote an Individual Education Plan (IEP) for an unnamed therapeutic day school placement which Parents rejected, requesting a residential placement (S-21). In January 2006 HW sent out referrals for therapeutic day school placements. In March-April 2006 Parents visited all referral schools, found them to be inappropriate, and requested residential placement for Nancy at New Leaf Academy in North Carolina. (See S-1; testimony, Frontierro.)

In May 2006 HW developed an IEP for Nancy covering 5/30/06 to 5/30/07 at New Leaf Academy, which was accepted by Parents on June 2, 2006 (S-20), and Nancy began attending New Leaf Academy throughout the 2006 summer and into the 2006-2007 school year.3

On September 29, 2006 Parents requested that HW send a referral for Nancy to Educational Consultants of New England’s School of Accelerated Learning (ECNSAL), which is a private day school in Waltham, MA (P-14). On October 3, 2006, per Parental request, HW sent to ECNSAL Nancy’s IEP and assessments (P-13). However HW visited ECNSAL and found it not appropriate to address Nancy’s special education needs because it is designed for students on the autism spectrum (Asperser’s Syndrome) and her class would have been all boys (S-1). On October 4, 2006 Parents withdrew Nancy from New Leaf Academy as inappropriate (P-15, 16,; S-1). On October 17, 2006 a team meeting took place, referrals were sent out, Parents chose the Arlington School, and on December 13, 2006 Parents signed the placement consent form changing the 5/30/06-5/30/07 IEP from a residential placement at New Leaf Academy to a day school placement at Arlington School. (See S-20; testimony, Frontierro; Collins.)

Nancy began attending the Arlington School on December 14, 2006. On April 24, 2007 the team met and developed a new IEP for Nancy covering April 24, 2007 to April 23, 2008 which continued her placement at the Arlington School (S-11; P-1). On May 18, 2007 Parents rejected this IEP and the Arlington School placement (S-11; P-32, 33). On or about May 21, 2007 Parents unilaterally removed Nancy from the Arlington School (S-7, 8, 9; P-29). On May 22, 2007 HW wrote to Parents requesting Parents to allow Nancy to continue to attend Arlington School (S-9). On May 29, 2007 HW filed a Request for Hearing and the Bureau of Special Education Appeals scheduled a hearing for July 3, 2007. A pre-hearing conference call took place on June 26, 2007 but settlement was not possible and the hearing took place, as originally scheduled, on July 3, 2007.

ISSUES IN DISPUTE

1) What is Nancy’s placement pending appeal/last agreed upon placement?

2) Does HW’s proposed IEP for Nancy (S-11; P-1) appropriately address her special education needs so as to provide her with a free and appropriate public education (FAPE) in the least restrictive educational environment?

STATEMENT OF POSITIONS

HW’s position is that Nancy’s placement pending appeal is her last agreed upon placement at the Arlington School which was accepted by Parents on December 13, 2006. HW’s position is that its proposed April 2007-April 2008 IEP placing Nancy at the Arlington School is appropriate to address her special education needs so as to provide her with FAPE in the least restrictive educational environment.

Parents’ position is that HW should provide Nancy with tutoring until she is placed at another placement. Parents contend that the Arlington School is inappropriate to address Nancy’s special education needs so as to provide her with FAPE in the least restrictive educational environment. Parents are investigating other possible placements such as Eagle Hill School or Kildonan School.

BRIEF PROFILE OF STUDENT

Nancy has been extensively evaluated over her educational career. I deal briefly with her two most recent neuropsychological and psychoeducational evaluations.

On February 26, 2006 Nancy underwent a neuropsychological evaluation at Tufts-New England Medical Center (NEMC) by Dr. Hope Schreiber, a Licensed Psychologist who is Board Certified in Clinical Neuropsychology (P-41). The reason for this evaluation was the referral of Nancy’s therapist due to Nancy’s extreme agoraphobia and body dysmorphic syndrome.

On the Wechsler Intelligence Scale for Childen-4 th edition (WISC-IV) Nancy achieved a Full Scale IQ of 114 placing her, overall, in the high average range of intellectual functioning. Subtest scores ranged between average to superior as follows: Verbal Comprehension-110; Perceptual Reasoning-121; Working Memory-113; and Processing Speed-94. On the Woodcock-Johnson Tests of Achievement-3 rd edition (WJ-III) Nancy, then at 13 years 10 months of age, achieved the following age equivalent scores:

Achievement Area Age Level Score

Letter-Word Identification 17y 5m

Reading Fluency 18y 1m

Spelling 15y 2m

Passage Comprehension 15y 3m

Calculations 11y 4m

Applied Problems 11y 11m

Broad Reading 17y 7m

Academic Skills 14y 5m

On projective testing Dr. Schreiber found that Nancy did not easily understand the complexities of her environment and could be extremely fearful, leading to withdrawal, anxiety, anger, frustration and general discomfort, with her functioning limited to an extreme degree i.e., extreme agoraphobia, fearfulness and body dysmorphia.
(See P-41 for complete NEMC Evaluation.)

In April 2007 Nancy underwent a private psychoeducational evaluation from Dr. Marilyn Engelman of Educational Directions, Inc. (P-39). Dr. Engelman provided a comprehensive summary of Nancy’s educational history and prior evaluations. On current WISC-IV and WJ-III testing Nancy achieved scores comparable with the NEMC testing of the prior year. On the Gray Oral Reading Test-4 th edition (GORT-4) Nancy’s reading scores fell within a high average to end of high school level. (Refer to P-39 for complete evaluative results on all of Dr. Engelman’s testing.)

In her summary and recommendations, Dr. Engelman noted the following (P-39):

Academically, reading is an area of strength for [Nancy]. She is able to read material at an end of high school level. Her vocabulary is well developed, and her ability to understand abstract concepts when given structure is also well developed. While [Nancy] can write well at the sentence level, she has difficulty sequencing and organizing her ideas into a story format or paragraph. These weaknesses have been previously documented, and [Nancy] still needs support in these areas. Math is also an area of significant weakness compared to her overall ability. While [Nancy] can do basic calculation skills, her math facts are not automatic and she has difficulty breaking word problems down into component steps. Here too, she has difficulty discerning essential from non-essential materials. She becomes confused and has difficulty solving the problems. She needs to learn how to break the problems down and work with them in a sequential fashion.

Of equal importance, is her social-emotional liability. [Nancy] exhibits anxiety in classroom settings, becomes overwhelmed, and then tends to avoid the situation. This has been noted in previous testing as well as her school attendance, ability to relate to teachers, and in her ability to sustain friendships. [Nancy] needs a placement where teachers and students understand the source of her frustration, her anxiety, and her subsequent withdrawal. At the same time she needs to be placed in an academic setting for students who are bright but who exhibit some mild learning disabilities.

In light of these findings, [Nancy] needs to continue to be identified as a young woman with social-emotional difficulties. In addition, the presence of learning disabilities are noted, especially in overall organization and planning. She needs to be identified as a young woman with a Learning Disability NOS (DSM-IV), Code 315.9) as well as a Written Language Disorder (DSM-IV, Code 315.2). Therefore, the following recommendations are made:

Classroom Environment

1. [Nancy] needs to be placed in an environment where the student-teacher ratio is small and where teachers understand and have expertise in working with students with social-emotional difficulties as well as learning disabilities.

2. [Nancy] would benefit from ongoing group support to help her understand the source of her frustration. Groups should take place several times a week. In addition, individual therapy would be important to help [Nancy] better understand her own feelings.

3. A school setting also needs to be able to work on her learning disabilities. Specifically, she needs help in overall organization, written language, as well as a review of math facts and problem solving. [Nancy] is very bright and needs to be placed in college preparatory classes, which are small in nature where support can be provided both in and outside of the classroom.

In terms of Nancy’s social and emotional disabilities Dr. Engelman recommended 1) weekly group therapy focusing on social interactions; 2) individual therapy on a weekly basis with the therapeutic intervention designed to help Nancy learn how her social difficulties impact both academic and social relationships; and 3) an alternative placement which specializes in working with bright students who are school phobic as well as having mild learning difference. Dr. Engelman recommended a highly structured therapeutic environment.
(See P-39 for complete Engelman Evaluation.)

SCHOOL’S PROPOSED PROGRAM

HW proposes that Nancy continue to be educated at the Arlington School (Arlington). Arlington is a school located on the grounds of McLean Hospital, a psychiatric hospital. Arlington is a private therapeutic day school placement which serves 40-45 students each year in grades 9 through 12. Arlington students have moderate to severe emotional disabilities such as depression, anxiety, mood disorders and attentional problems. Many students have been hospitalized prior to attending Arlington. Most student are in therapy, many are on medications. Arlington students have above-average intelligence. Arlington is a college preparatory program for emotionally-socially disabled students. Arlington follows the public school calendar (180 school days per year) and follows the Massachusetts Curriculum Frameworks. Arlington is also an 11 month program-there is a four week summer school component that runs between July 2 to July 26, 2007 to prevent regression and which is important for students who have had frequent absences and school avoidance behaviors. The school day runs from 8:45 a.m. to 2:45 p.m. during both the school year and summer component. Students who graduate from Arlington receive a diploma from both Arlington and their sending community. Arlington is a MDOE approved private day school placement.

Arlington offers both an academic component and a clinical (social/emotional) component. The student to teacher ratio is 6-8:1 or lower in all academic classes. All academic teachers are certified in their subject matter teaching area and 50% are also certified in special education. Clinically there are 2-4 clinicians at Arlington School every day. All students participate in small group counseling once weekly for 55 minutes and individual counseling at least once weekly for 55 minutes, more if necessary, even on a daily basis. Arlington offers a therapeutic milieu. The environment is safe and supportive where trusting relationships are built between students and between students and adults to help students feel better about themselves. Students are part of a school community where they learn to take risks. There is lots of talking with students to promote coping strategies for stress, anxiety, frustration and anger.
(See testimony, Laughlin; S-2, 3,4,5.)

FINDING AND CONCLUSIONS

It is undisputed by the parties and confirmed by the evidence presented that Nancy is a student with special education needs as defined under state and federal statutes and regulations. The fundamental issues in dispute are listed under ISSUES IN DISPUTE , above.

Based upon the oral testimony presented, the written documentation introduced into evidence and a review of the applicable law, I conclude that:

I. Nancy’s placement pending appeal/last agreed upon placement is the Arlington School;

II. HW’s proposed IEP covering 4/07-4/08 at the Arlington School is appropriate to address Nancy’s special education needs so as to provide her with FAPE in the least restrictive educational environment.

My analysis follows.

I.

20 U.S.C. §1415(j) provides, in pertinent part:

Maintenance of current education placement . Except as provided in subsection (k)(4), during the pendancy of any proceedings conducted pursuant to this section, unless the state or local educational agency and the parents otherwise agree, the child shall remain in the then-current educational placement of the child ….. until all such proceedings have been completed. Emphasis added

On December 13, 2006 Parents accepted an IEP which placed Nancy at the Arlington School (P-31; S-20, final page). Nancy attended Arlington from December 13, 2006 until she was unilaterally removed by Parents in late May 2007. Therefore, Arlington is the then current/last agreed upon educational placement of Nancy and Arlington is Nancy’s placement pending appeal. Because that IEP provided a summer placement, Nancy’s placement pending appeal for the summer is Arlington’s summer school placement.

II.

Based upon the most recent private evaluations (P-39, 41) Nancy is a young lady of above average intelligence and above achievement levels in most areas despite her disabilities. (See also P-1; S-11). Based upon those same evaluations, Nancy is clearly a student with significant emotional and social disabilities which severely affect her ability to function in school or even attend school. While Dr. Engelman has also diagnosed learning disabilities, particularly in math, she has characterized such learning disabilities as mild. It is clear from the evidence presented that it is Nancy’s emotional and social disabilities of anxiety, fearfulness, withdrawal, school avoidance behavior, and agoraphobia which necessitate Nancy’s placement outside of a public school educational environment.

Based upon the evidence presented, I conclude that Nancy’s placement at Arlington is appropriate to address her special education needs so as to provide her with FAPE. Indeed, a comparison of Dr. Engelman’s recommendations (See BRIEF PROFILE OF STUDENT , above; P-39) with the description of the Arlington program (See SCHOOL’S PROPOSED PROGRAM , above; testimony, Laughlin) demonstrates that Arlington clearly offers the type of program recommended by Dr. Engelman. Dr. Engelman evaluated Nancy in April 2007. Her comprehensive, real time evaluation (P-39) reinforces the NEMC/Dr. Schrieber evaluation of February 2006 (P-41) regarding Nancy’s academic strengths but significant emotional disabilities. Dr. Engelman’s comprehensive recommendations regarding how to address Nancy’s social-emotional disabilities and her learning disabilities, as well as the classroom environment in which to address these disabilities, practically describes the Arlington School!

The evidence also indicates that while Nancy was attending Arlington from December 14, 2006 through mid-May 2007 she had made a good adjustment to Arlington and was progressing academically and clinically. (See S-2, 3,4,5 – academic and clinical progress reports; see also testimony, Laughlin.) Her lowest subject was math which was her first period of the day and for which she was frequently tardy.4

I note that Dr. Engelman’s evaluation (P-39) was first provided to HW five days prior to this BSEA hearing as one of Parents’ Exhibits. Therefore, HW has not had the opportunity to conduct a team meeting to consider Dr. Engelman’s evaluation and recommendations. Dr. Engelman has been the first evaluator to specifically diagnose Nancy with mild learning disabilities. HW may well amend the currently proposed IEP to reflect Dr. Engelman’s recommendations/modifications. I note the testimony of Ms. Laughlin, Program Director and Clinical Director of Arlington School, that Arlington can provide the academic assistance and special education (including 1:1 work) to address Nancy’s learning disabilities. I also take administrative notice of the Massachusetts Association of Approved Private Schools (MAAPS) Book which lists Arlington as serving not only emotionally disabled but also learning disabled students.

Neither Parent testified at this hearing. Only Nancy testified in response to HW’s Appeal. Nancy testified regarding her reasons for not wanting to continue at Arlington which were that she was uncomfortable with the math teacher who call her a slut on two occasions; and that the math teacher was trying to set her up with several students. Ms. Laughlin testified that she spoke with the math teacher who denied the slut allegations and reported that Nancy had asked her about a certain student. Nancy testified that she had initiated a conversation with the math teacher about a certain student but that the math teacher tried to get her to go out with another student. Nancy also testified that her clinician spoke with her several times regarding the dress code (shirt too low) which embarrassed her and that one of the times the math teacher called her a slut it was over her shirt being too low. Ms. Laughlin testified that the math teacher has worked at Arlington for four years and there has never been a complaint against her. Ms. Laughlin also testified that if such events had occurred she would have heard about it from other students as an injustice. Both Ms. Laughlin and Nancy testified that no students reported these incidents. (See testimony, Nancy; Laughlin.)

Nancy testified that she did not tell her Parents until several weeks after these incidents happened in late April. Ms. Laughlin testified that Nancy never reported these incidents to Arlington nor did Parents until Nancy had stopped attending Arlington and only then upon inquiry from Arlington regarding why Nancy was not coming to school in late May. (See testimony, Nancy; Laughlin.)

I do not find Nancy’s testimony to be credible. I further find Parents’ actions in unilaterally removing Nancy without contacting Arlington about these alleged incidents and with no more reason than that Arlington is inappropriate (S-7, 8, 9, 10; P-29) to be highly questionable. Assuming, arguendo, that these alleged incidents with the math teacher occurred, there is another math teacher at Arlington and Nancy’s math teacher could have been changed (testimony, Laughlin).

Nancy testified regarding what she does since she stopped attending Arlington. Nancy stays in the house and rarely goes outside. Nancy has no schedule for the day and does what she wants with no demands or expectations placed upon her other than cleaning up after herself. Nancy does not go to the library for books but sends her mother. She doesn’t leave the house unless she has to i.e., to go to a doctor’s appointment. Nancy testified that she has social anxiety and is more of a solitary person. Nancy also testified that when her Parents took her to a therapist because of her anxiety and depression about a month ago, she could not go into the building; she could not get out of the car; and that the therapist had to come out and meet with Nancy in the car. Nancy testified that such behavior has happened a number of times in the past. Nancy also testified that she needs primarily academics to get caught up; that counseling would be O.K. but is not essential and that she does not need therapy; and that she does not need a structured therapeutic school. Nancy testified that her goal is college. (See testimony, Nancy.)

Based upon the Schreiber/NEMC evaluation (P-41); the Engelman evaluation (P-39); the Arlington progress reports (S-2, 3, 4, 5); and Nancy’s testimony at this hearing; I conclude that Nancy desperately requires a structured therapeutic placement to address her significant emotional and social disabilities in order to receive FAPE, so that her innate intelligence and academic abilities can be brought the surface and allowed to flourish.

ORDER

I. Nancy’s placement pending appeal/last agreed upon placement is the Arlington School.

II. HW’s proposed IEP covering 4/07-4/08 at Arlington School is appropriate to address Nancy’s special education needs so as to provide her with FAPE in the least restrictive educational environment.

By the Hearing Officer

___________________________ Dated: July 17, 2007

Raymond Oliver


1

Nancy is a pseudonym chosen by the Hearing Officer to protect the privacy of the Student in publicly available documents.


2

HW offered Nancy a summer placement at MEC which was refused by Parents (S-1).


3

New Leaf Academy was not a Massachusetts Department of Education (MDOE) approved placement. Nancy was placed at New Leaf Academy pursuant to a sole source of care referral (testimony, Frontierro).


4

Although HW offered to provide transportation for Nancy to/from Arlington, Parents close to drive her and be reimbursed by HW (testimony, Fontierro; Collins).


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