COMMONWEALTH OF MASSACHUSETTS
BUREAU OF SPECIAL EDUCATION APPEALS
In Re: Quincy Public Schools
BSEA # 08-5707
DECISION
This decision is issued pursuant to the Individuals with Disabilities Education Act (20 USC 1400 et seq .), Section 504 of the Rehabilitation Act of 1973 (29 USC 794), the state special education law (MGL c. 71B), the state Administrative Procedure Act (MGL c. 30A), and the regulations promulgated under these statutes.
A hearing was held on July 23 and 28, 2008 in Malden, MA before William Crane, Hearing Officer. Those present for all or part of the proceedings or who testified by telephone were:
Student’s Mother
Sarah Kerns Site Coordinator, Quincy After School Program
Cynthia Levinson* Neuropsychologist, Lifespan Services, Inc.
Erika Coles* Program Director, Summer Treatment Center at
Judge Baker Children’s Center
John Harkness* Psychologist in private practice
Jeffrey Turley* Psychiatrist, Consultant to South Shore Educational Collaborative
David Labbe Classroom Teacher, South Shore Educational Collaborative
John-Paul Reisman Behavioral Specialist, South Shore Educational Collaborative
Thomas Kinsman Program Director, South Shore Educational Collaborative
Katelyn Dyer Paraprofessional, Quincy Public Schools
Marisa Qualter 1 st Grade Teacher, Quincy Public Schools
Dorothy Greene Elementary School Principal, Quincy Public Schools
Judith Todd Director of Special Education, Quincy Public Schools
Lisa O’Hare Attorney for Parent and Student
Kathleen Yaeger Attorney for Quincy Public Schools
* indicates that testimony was by telephone.
The official record of the hearing consists of documents submitted by Parent and marked as exhibits P-1 through P- 6; documents submitted by the Quincy Public Schools (Quincy) and marked as exhibits S-1 through S-18; and two days of recorded oral testimony and argument. As agreed by the parties, oral closing arguments were made by telephone on July 31, 2008, and the record closed on that date.
INTRODUCTION AND POSITIONS OF THE PARTIES
This dispute presents the question of whether Student, who will be entering 2 nd grade for the 2008-2009 school year, should be placed in Quincy’s substantially-separate program located within a Quincy elementary school or whether Student should be placed at a private, therapeutic day school. Because Quincy’s program, as compared to a private placement, offers the opportunity for Student to have contact with regular education children, it is the less restrictive of the two proposed placements.
Parent seeks placement of her son in Quincy’s program. She recently moved her family to Quincy, in part, so that this public school program would be available to her son. Parent understands that her son has demonstrated inappropriate behavior in school but believes that this behavior has often been triggered by her son’s being singled out by others and that his behavior has been aggravated unnecessarily as the result of inappropriate teacher responses to her son. Parent also emphasizes that her son does not respond well to being isolated, and Parent does not believe it appropriate or necessary that a program for her son include a separate time-out space.
Parent takes the position that the highly structured and small class size of the Quincy program, together with an individualized behavior, would result in an appropriate placement for her son that is less restrictive than a private placement proposed by Quincy. Parent hopes that placement in the Quincy substantially-separate program may result in a relatively early transition back into a regular education classroom within the Quincy Public Schools and that the Quincy placement would avoid possible stigmatization as a result of placement in a private program that provides services to children with severe emotional and behavioral disabilities.
Quincy seeks placement of Student in a private, therapeutic program because Quincy does not believe that its own substantially-separate program has the capacity to work effectively with Student’s inappropriate behaviors. Quincy takes the position that the staffing of its program is insufficient, the children who may attend next school year would be an inappropriate peer group for Student, and the lack of a separate time-out space would compromise the ability of program staff to respond effectively to Student’s behavior.
ISSUES
The issues to be decided in this case are the following:
1. Is the IEP most recently proposed by Quincy (which would place Student in a private, therapeutic day school) reasonably calculated to provide Student with a free appropriate public education in the least restrictive environment?
2. If not, would placement in Quincy’s substantially-separate Behavior, Growth, and Development Program satisfy this standard?
FACTS
Student Profile .
Student is a seven-year-old boy who lives with his family in Quincy, Massachusetts. Student is energetic and bright. Student has been diagnosed with Attention Deficit Hyperactivity Disorder (ADHD) and oppositional defiant disorder. He may also have an emerging conduct disorder. Student has not been diagnosed with any major illness nor has he been diagnosed with a learning disability. Testimony of Parent, Turley, Levinson, Reisman; exhibits P-2, P-4, S-5.
Student’s behavior over the course of the past year may be summarized as follows. Within the classroom during the 2007-2008 school year, Student frequently was aggressive and defiant towards peers and teachers, with significant use of profanities. Occasionally he engaged in unsafe conduct. During the 2007-2008 school year, this behavior was consistent across two regular education placements (Braintree and then Quincy) and a substantially-separate educational placement at the South Shore Educational Collaborative (South Shore Collaborative). Student’s conduct during a neuropsychological evaluation was similar. However, during the Quincy after-school program at the end of the 2007-2008 school year, Student’s conduct was improved. Also, the current summer program at the Judge Baker Children’s Center has been working effectively with Student to reduce his inappropriate behaviors and has not needed to use time-out space separate from the classroom. In addition, Student has not demonstrated aggressive behavior towards others at home, nor has he used profanity at home. During private therapy sessions, Student has exhibited no recent inappropriate behaviors. Testimony of Parent, Levinson, Coles, Kerns, Harkness, Todd, Qualter, Labbe, Reisman.
Proposed IEP .
Quincy’s most recently-proposed IEP for Student is for the period 5/28/08 to 5/28/09. The IEP would provide Student with the following direct special education and related services:
· social/emotional services by a therapist for 30 minutes per day, three days per week;
· behavioral services by staff for 60 minutes per day, one day per week; and
· academics for 255 minutes per day, five days per week.
These services are to be provided within a separate day school. Parent has not accepted this proposed IEP and has indicated her objections to it. Testimony of Todd; exhibits P-5, S-1.
Educational/Behavioral History and Evaluations .
Regular Education Classroom for Pre-School and Kindergarten in Milton . Parent testified that her son did very well, with no significant behavior difficulties, in pre-school and kindergarten regular education classrooms in the Milton Public Schools. Near the end of Student’s kindergarten year in the spring of 2007, Parent moved from Milton to Braintree.
Regular Education Classroom for 1 st Grade in Braintree. Student and his Parent were the subject of a previous BSEA dispute, which ended in a Decision, dated March 6, 2008, by the present Hearing Officer. The BSEA Decision explained that during Student’s 1 st grade (2007-2008 school year), he attended a regular education classroom within the Braintree Public Schools. The Decision found that Student exhibited aggressive behaviors that included pushing, tripping, and punching other children, as well as knocking over children by “shouldering” them. Occasionally, he would also pick up a child and throw the child to the ground, or run full-speed into other children knocking them to the ground, or push his desk on top of another child. On other occasions, he threatened children with scissors or a pencil. He threw objects within the classroom, including chairs. On several other occasions, he ran out of the room and hid in his locker. Once, he walked on the desks in the classroom. Student’s 1 st grade teacher counted 34 days during the school year when she had significant concerns regarding Student’s safety and 54 days during the school year when Student exhibited dangerous behavior towards others. Approximately 20 times, the 1 st grade teacher needed to physically hold Student in order to avoid someone being hurt. Some children became extremely frightened of Student. The BSEA Decision concluded that notwithstanding the addition of a 1:1 aide in October 2007, a functional behavioral assessment, psychological evaluation, and the consultation of a Braintree psychologist and behaviorist, Student’s behavior difficulties continued without Braintree staff’s being able to anticipate their occurrence, understand their causes, or implement effective strategies for significantly reducing their severity or frequency. The Decision further noted that in after-school and before-school programs during the 1 st grade year, Student demonstrated behavioral difficulties similar to those reported at the Braintree elementary school. In Re: Braintree Public Schools , BSEA # 08-2415, 14 MSER 62, 64 (SEA MA 2008) (exhibit S-18, pages 4-5).
The Decision in this previous dispute found that maintaining Student in his 1 st grade regular education placement was substantially likely to result in injury to Student or to others. The Decision changed Student’s placement to the South Shore Educational Collaborative (South Shore Collaborative or Collaborative) as an interim alternative educational setting for not more than 45 school days. In Re: Braintree Public Schools , 14 MSER at 66-67 (exhibit S-18, pages 8-10).
Placement at the South Shore Collaborative for 45 School Days Beginning March 26, 2008 . Subsequent to the March 6, 2008 BSEA Decision but prior to its implementation, Parent moved from Braintree to Quincy. Quincy implemented the BSEA Decision by placing Student at the South Shore Collaborative for 45 school days beginning March 26, 2008. At the Collaborative, Student was placed in a classroom with six other children with emotional and behavioral deficits, one teacher, and one aide. In addition, one of the children in the room had his own 1:1 aide. Other behavioral staff were available as needed to assist with difficulties that required Student to be removed from the classroom, including assistance with transporting Student and monitoring Student in a separate, school support area that included a time-out room. The Collaborative was intended to provide Student with a highly-structured, therapeutic placement that would assess him for purposes of understanding how his behavioral (and any emotional) needs may be addressed in a more long-term educational placement. Testimony of Todd, Kinsman, Reisman.
Student’s behavior over the course of the 45 school days at the South Shore Collaborative was consistently oppositional, disruptive, defiant, aggressive, and sometimes unsafe. Much of the behavioral difficulties stemmed from Student’s deciding that he did not want to follow a particular rule or staff expectation, and seemingly enjoying the turmoil caused by his defiant behavior. Student demonstrated resistance to following directions within all contexts, whether it be within the classroom, a play area, or an isolated area separate from other children. Behavioral difficulties were occasionally triggered by his interactions with other children although infrequently did other children appear to provoke Student’s behavior. Student was routinely verbally aggressive, using profanities with staff and other children, he pushed desks into other children, he attempted to pick up a chair in order to throw it, and he demonstrated unsafe behavior with scissors and pencils. Testimony of Kinsman, Labbe, Reisman.
At the Collaborative, a student is not removed from the classroom unless his or her behavior substantially interferes with the learning of other children. Student’s Collaborative teacher testified that Collaborative staff tried keeping Student in the classroom during his times of difficult behavior. However, during 22 out of the 45 school days in which he attended the placement, Student was removed one or more times from the classroom to the separate support area because his behavior was sufficiently disruptive to the other children (and interfered with their learning) so as to preclude his remaining in the classroom. After removal from the classroom, Student’s behavior almost always escalated further, for example with kicking, crying, shouting profanities, or demonstrating other aggressive behaviors (such as throwing a chair). Student would then, eventually, calm down. He was also suspended on two occasions, once for fighting with another child and once for assaulting staff. Testimony of Kinsman, Labbe, Reisman.
Student appeared to have no interest in trying to please staff, and he was not motivated by staff’s offering rewards for positive behavior, with the result that staff’s efforts to influence Student’s behavior were generally unsuccessful. Staff found that if Student’s behavior escalated, it was only through the passage of time that Student calmed down. In comparison to the other children in Student’s classroom (all of whom had emotional or behavioral disabilities), Student’s defiance of the staff and the classroom rules was described as on the “extreme end.” Student used the separate support area substantially more than any other child in the classroom. Through the course of the 45-day placement, the South Shore Collaborative staff (including their behaviorist) tried many different behavioral strategies but none was demonstrated to be effective. When his behavior became extreme, staff resorted simply to removing him to an isolated area so that his behavior would not disrupt other children, with staff allowing Student sufficient time to calm down prior to returning him to the classroom. Testimony of Kinsman, Labbe, Reisman.
Over the course of the 45-day South Shore Collaborative placement, Student’s work output was inconsistent—one day he would do the schoolwork and another day he would not. Overall, Student produced little academic work during this placement. Testimony of Labbe; exhibit S-4
Neuropsychological Evaluation Secured by Parent . On April 3, 2008 while Student was attending the 45-day placement at the Collaborative, Cynthia Levinson, PhD, of Lifespan Services, Inc., performed a neuropsychological evaluation of Student at Parent’s request. Dr. Levinson testified that during her testing of Student, he had significant difficulties with impulse control, compliance, and attention—for example, he repeatedly flipped the light switch off and on, put his feet on the desk, and looked over Dr. Levinson’s shoulder to see what she was writing, even though she asked him not to do these things. Dr. Levinson utilized consistent, individualized cueing, structure, and encouragement in order for Student to participate in her testing. Her testing found that Student has overall average intellectual functioning. She found no evidence of a specific learning disability or thought disorder, and she did not observe an emotional disability. Testimony of Levinson; exhibit P-4 (pages 7-8).
In her written report, Dr. Levinson’s review of reports and evaluations found that a lengthy behavioral analysis conducted over time and in several school settings concluded that Student exhibited maladaptive behavior at least seven times an hour. She then stated that aside from concerns as to safety and distractions to other children, “these episodes of defiant, disruptive, or aggressive behavior would also be a time when he was not listening and learning, and his ability to make effective academic progress with all of these missed opportunities for instruction would be severely compromised.” Dr. Levinson testified that Student had not been able to establish appropriate peer relationships, he had demonstrated deficits regarding attention, he had been unable to control his behavior, and he had learned many maladaptive behaviors. Consequently, she found that Student not only needed to learn appropriate behaviors, he also needed to unlearn maladaptive behaviors, and that this could only occur within a highly structured, small program with low distractibility where behavior consequences are clear and are consistently carried out. Testimony of Levinson; exhibit P-4 (page 8).
Psychiatric Consultation Evaluation at South Shore Collaborative . On May 13, 2008, near the end of Student’s 45-day placement, Jeffrey Turley, MD, conducted a two-hour psychiatric evaluation as part of his consultation to the South Shore Collaborative. Dr. Turley testified and his report reflects that Student presented as bright, slightly hyperactive, cocky, and friendly, with a strong mischievous streak. Dr. Turley concluded that Student did not have an emotional disability. Dr. Turley noted that Student is aware of his ability to test the limits of any program. Dr. Turley opined that Student needs to be motivated to internalize the expectations of adults, and this is best done through a system of consequences and rewards. He concluded that Student required a standard contingency management behavioral system with positive reinforcement. Testimony of Turley; exhibits P-2, S-5.
Final Report of the South Shore Collaborative . The South Shore Collaborative issued a final written report for Student’s placement from March 26, 2008 to June 4, 2008. The report recommended that Student be placed within a small, self-contained classroom with an individualized positive behavioral program that employs nonconfrontational de-escalation techniques and collaborative problem-solving approaches. The report noted Student’s continued pattern of conduct that disrupts the learning environment and that Student’s behaviors were generally unresponsive to interventions and supports within the Collaborative’s therapeutic-based, behaviorally-supported program. Exhibits P-3, S-6 (page 5).
Regular Education Placement in Quincy Public Schools for Last Two Weeks of School Year . The 45 day placement at South Shore Collaborative ended on June 4, 2008. Because the parties were unable to agree upon any other placement, Quincy implemented Student’s “stay put” placement, based upon the most recently-accepted IEP from Braintree. This IEP called for Student to be placed in a regular education classroom with a 1:1 aide without any additional special education or related services. Testimony of Todd.
From June 5, 2008 through the end of the 2008-2009 school year (about two weeks), Student attended the 1 st grade at Quincy’s Atherton Hough Elementary School. Student was in school for a total of five days. As recounted by Student’s teacher, 1:1 aide, principal, and director of special education, and as reflected in contemporaneous school records, Student’s behavior was similar to his behavior in Braintree during 1 st grade and the South Shore Collaborative during the 45-day placement, as described above. More specifically, Student was oppositional (for example, frequently refusing to comply with rules or expectations), disrespectful (for example, frequently using profanity in a loud voice), threatening and assaultive (for example, physically challenging other children, pushing desks onto other children, pouring water over a child’s head, fighting with another child, and throwing his backpack at his aide “with full force”), and, at times, unsafe (for example, utilizing scissors and pencils to threaten harm, and standing in a street during a field drip). Student was suspended for two days as a result of his punching and scratching the face of another child. Testimony of Qualter, Dwyer, Greene, Todd; exhibits S-3, S-7, S-8, S-9, S-10, S-11, S-14.
The Quincy classroom teacher testified that any time Student did not want to comply with a rule, he had a behavior episode; and when Student felt he was being singled out by an adult or whenever a number of children looked at him, this provoked his behavior. Because the teacher had no recourse to a time out area separate from the classroom, she occasionally had to dismiss the entire class (other than Student) as a result of Student’s behavior. By the end of the school year, other children sought to avoid any interaction with Student, and they had become afraid of him. Testimony of Qualter.
After School Program at Quincy . During the two week period that Student attended a Quincy regular education 1 st grade classroom during the school day, he attended the Quincy After School Program for three afternoons, from 2 p.m. to approximately 5:00 p.m. The Quincy After School Program is a private, non-profit program located at the Atherton Hough Elementary School where Student was going to school at that time. The program is not otherwise associated with Quincy Public Schools. Testimony of Kerns.
In the after school program, Student had the opportunity to choose all of his activities with the result that he was never required to do something that he did not want to do. The program is not academic, but rather functions as a child-care program. The Site Coordinator found that Student acted appropriately during his three days there. There was no use of profanity and no aggression towards others. At one time, he seemed upset but was not aggressive or destructive; he was then allowed to have his own space within the classroom, and this resolved the difficulty. The site coordinator found that Student’s attention span was unusually short but that otherwise he appeared and acted like any other 1 st grader. Testimony of Kerns.
Summer Program for Children with ADHD and Oppositional Behavior . Currently this summer, Student has been attending a six-week program (from 8 a.m. to 4 p.m. every weekday) entitled “Summer Treatment Center” which is located at the Judge Baker Children’s Center. The Summer Treatment Center is an intensive behavior modification program that utilizes a point system (children both earn and lose points) that is intended to reward appropriate behavior and discourage inappropriate behavior. The program is specifically geared for children who are diagnosed with ADHD and oppositional defiant (or other disruptive) behavior disorder. Although generally a recreational summer program, two hours of each day is spent on remedial academics (for example, reading and writing) geared to each individual child. The program is generally comprised of eleven children and five counselors, although during the academic portion of the day, there is only a teacher and aide for the eleven children. Testimony of Coles.
By the last day of Hearing in the instant dispute (July 28, 2008), Student had attended the Summer Treatment Center for the first two weeks of the six-week program. The program director (Erika Coles, PhD) testified that while Student demonstrated behavioral difficulties the first week, none of these behaviors included aggressive or intimidating behavior. By the second week, Student’s behavior had improved although some negative behaviors continued. Student has been required to use in-class time out space occasionally but less frequently during the second week than during the first week, and during the second week his behavior has not been escalating during time-out as it had during the first week. Dr. Coles reported that, in general, Student has been responding well to the behavior modification structure of the program, including the two-hour academic period each day. She opined that Student would likely continue to do well in this type of behavioral program during the school year, without the need for a time-out space separate from the classroom. Testimony of Coles.
On-Going Private Therapy . John Harkness, PhD, a clinical psychologist in private practice has known Student since November 2007. Dr. Harkness was retained by Parent to address Student’s school-related behavior difficulties and has been seeing Student in therapy approximately once (for an hour) every two weeks. Dr. Harkness testified that during the initial therapy sessions, Student was oppositional but after two or three therapy sessions, Student completely changed. Since then, Student has been cooperative and pleasant. Dr. Harkness opined that Student needed to go through a period of time to get to know Dr. Harkness and to “test the waters.” Testimony of Harkness.
Dr. Harkness testified that Student continues to work on impulse control and frustration tolerance, and Student has more work to do in this area (especially in understanding the world around him), but Student continues to make progress. Dr. Harkness explained that Student thrives on connecting with others and that it is very difficult for him emotionally if he is isolated, with the result that his behavior may worsen. Testimony of Harkness.
Student’s Behavior at Home . Parent testified that Student does not demonstrate aggressive or intimidating behaviors at home. She added that Student has never sworn at her. She noted the importance of relating to her son in a positive way and explained that it is not effective (and may be counterproductive) to suspend him from school or to isolate him from other children. Parent is a licensed clinical social worker who is experienced with home-based therapy and is willing and able to follow through at home with a behavior plan.
Quincy’s Behavior, Growth, and Development Program at the Marshall Elementary School .
This program is substantially separate from regular education but includes inclusion opportunities for all students, such as lunch and recess, and “specials” (such as music and art) with regular education students when appropriate for a particular student. There is a 2 nd /3 rd grade classroom within this program. There would be up to ten children in the classroom, with one teacher and one aide, with a guidance counselor attached to the program. Children attending this program are diagnosed with Attention Deficit Hyperactivity Disorder (ADHD), behavioral disabilities including oppositional defiant disorder, and emotional disabilities including bi-polar disorder. In the past, children who have participated have had low-average to average intelligence. Also, children have participated with a secondary disability on the autism spectrum, and who have a non-verbal learning disability. Presently, it is known that one of the children likely to attend the 2 nd /3 rd grade class for the 2008-2009 school year has a diagnosis of Asperger’s Syndrome.
DISCUSSION
It is not disputed that Student is an individual with a disability, falling within the purview of the federal Individuals with Disabilities Education Act (IDEA)1 and the Massachusetts special education statute.2 The IDEA was enacted “to ensure that all children with disabilities have available to them a free appropriate public education [FAPE] that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living.”3 The Massachusetts special education statute also includes a FAPE requirement.4
Under state and federal special education law, a school district has an obligation to provide FAPE in the “least restrictive environment.”5 The phrase “least restrictive environment” means that, to the maximum extent appropriate, a student must be educated with other students who do not have a disability.6 The First Circuit Court of Appeals has cautioned that the guarantee of least restrictive placement may not be used to cure an otherwise inappropriate placement.7
In the instant dispute, Quincy is the party seeking relief from the BSEA and therefore has the burden of persuasion that Student should be placed in a private educational program rather than its own Behavior, Growth, and Development Program.8
This dispute is a narrow one. The parties do not disagree that Student requires a substantially-separate educational program, nor is there any disagreement regarding the educational services to be provided in such a placement. The only issue in contention is whether the specific placement for Student should be a private therapeutic day school or the Behavior, Growth, and Development Program which is located within a Quincy elementary school. Parent seeks the latter, Quincy the former. Since the latter placement (within a Quincy elementary school) is less restrictive in that it offers opportunities to participate with regular education children, it must be provided if it can appropriately educate Student. Therefore, the essential question to be decided through this appeal is whether Quincy’s Behavior, Growth, and Development Program is appropriate for Student.
Quincy argues that the following three aspects of its program demonstrate its inappropriateness for Student: peer group, staffing, and physical space. I consider each in turn.
It is not disputed that Student should, ideally, be placed only with other children who have the same or similar profile – that is, ADHD and oppositional behavior. Also, the peer group should be children with average to above-average intelligence. There was also testimony that it would be best not to place Student with children who do not understand social cues (such as a child on the autism spectrum) as Student may try to take advantage of these children. Testimony of Turley, Levinson.
Quincy’s Behavior, Growth, and Development Program is intended to provide educational services to children whose primary disability is emotional or behavioral. Children may also have a secondary disability within a broad range, including a disability on the autism spectrum or a non-verbal learning disability, and some children may have cognitive deficits. Testimony of Todd.
There was unrebutted testimony that one of the likely children to attend this program for the 2008-2009 school year has a secondary disability of Asperger’s Syndrome, which is on the autism spectrum. Otherwise, it is unknown what the actual makeup of the class would be for the 2008-2009 school year. Testimony of Todd.
The likely peer grouping in Quincy’s program is not ideal for Student. Nevertheless, the participation of one child diagnosed with Asperger’s Syndrome and the possibility that other children will not precisely fit Student’s profile does not, by itself, demonstrate that the peer group is inappropriate. I conclude that Quincy has not met its burden of establishing the inappropriateness of its program by reason of the peer grouping.
Second, Quincy takes the position that the staffing in this program is insufficient and that the total class size is too large. Quincy’s program has a cap of ten children and currently is staffed by one teacher and an aide. The evidence on this point was mixed. In any event, there was no persuasive evidence that ten children is too many, nor was there any evidence that additional staffing could not be added if necessary. I conclude that Quincy has not established the inappropriateness of its program by reason of size or staffing.
Quincy’s third concern, the physical limitations of the program space, is more troublesome. The unrebutted testimony of a Quincy witness was that neither for this particular program nor with respect to any other program within the Quincy Public Schools is there space for a separate time-out area to which Student could be sent in the event that he cannot be maintained within the classroom. When a student at Quincy Public Schools needs to be separated from all other children, the student must go into one of the staff offices or all of the other children must leave the classroom. Parent does not disagree. Therefore, the question is whether the unavailability of this time-out space makes Quincy’s program inappropriate for Student. Testimony of Todd.
It is not disputed that separation of Student likely worsens his behavior and in general is quite difficult for him. Therefore, separation should be avoided whenever possible. Nevertheless, it is also undisputed that the use of a separate time-out space may be justified for Student (1) if the safety of one or more persons in the classroom requires Student’s removal or (2) if Student’s behavior is so disruptive as to interfere unduly with the education of the other children in the classroom. It is not disputed that if Student demonstrates behavioral difficulties but his behavior does not rise to this level, he should be maintained within the classroom. Testimony of Parent, Levinson, Harkness, Reisman.
In light of this context, I now consider whether the evidence indicates that an appropriate program for Student must include a separate time-out space. I first consider Student’s placement at the South Shore Collaborative during the 2007-2008 school year and the relevance of that experience to Student’s likely need for a separate time-out space for the 2008-2009 school year.
The South Shore Collaborative is a substantially-separate program specifically designed to educate and evaluate students with significant behavioral difficulties. Student’s classroom at the Collaborative was small (seven children), highly staffed (one teacher, one aide, and a 1:1 aide specifically for one student), and highly structured. In addition, the Collaborative had a behaviorist who frequently worked with Student and with the educational staff responsible for Student, and there were additional behavioral aides to assist as needed when the educational staff were not able to work effectively with Student. Testimony of Kinsman, Labbe, Reisman.
During the 45 school days during which Student was placed at the South Shore Collaborative, the Collaborative staff utilized a variety of behavior techniques and strategies to reduce Student’s negative behaviors and increase his positive behaviors. In contrast to their experience generally with other children in their program, staff reported that Student was never willing to “buy in” to the program model or its incentives. It never seemed to matter to Student whether staff approved or disapproved of his behavior. Over the course of the 45 school days, Student’s behavior did not improve. He consistently acted out, requiring his use of the time-out area over the entire course of his placement. Testimony of Kinsman, Labbe, Reisman.
The testimony of South Shore Collaborative staff made clear that their policy was not to remove Student from the classroom simply because of inappropriate behavior, but rather removal was required when his behavior escalated to the point of being unduly disruptive to the education of the other children in the room. During 22 days out of the 45-day placement, Student was required to be removed one or more times from the classroom and taken to the time-out area. Testimony of Kinsman, Labbe, Reisman.
South Shore Collaborative staff testified as to the critical importance of having time-out space available for Student away from the classroom. Collaborative staff noted that Student’s behavior frequently escalated to the point that his own well-being as well as the well-being of other children required his removal to a different space, separate from the stimulation and expectations of the classroom, so that Student could be given the opportunity to calm down with staff and no other children. South Shore Collaborative staff were persuasive in their testimony that without the availability of this separate space (together with appropriate educational and behavioral staffing), Student’s conduct would overwhelm a classroom environment thereby limiting the opportunity of other children to learn, and there would likely be times when Student’s behavior would present a safety risk to others. In addition, without separate time-out space, Student’s behavior would interfere with his own ability to make educational progress since it is not possible for him to learn when he is acting out in opposition to teachers or other children, and Student’s educational program would likely fail. Testimony of Kinsman, Labbe, Reisman.
Dr. Turley, a psychiatrist who consults to the South Shore Collaborative and who evaluated Student, agreed with the Collaborative staff. He provided credible, expert testimony that Student’s frequent use of time-out space at the Collaborative was indicative of Student’s need to have such a space available to him at his placement for the 2008-2009 school year. Dr. Turley’s written evaluation report made clear his commitment to placing Student in the least restrictive environment possible, and he was called as a witness on behalf of Student and Parent. Testimony of Turley; exhibits P-2, S-5.
It is also relevant that Student’s behavioral history within the 1 st grade regular education classroom in Braintree and later within the 1 st grade regular education classroom in Quincy were essentially the same as his behavioral history at the South Shoe Collaborative. See the “Educational/Behavioral History and Evaluations” subsection of the Fact section of this Decision, above. Parent is correct that Student’s regular education classroom experiences are not necessarily predictive of Student’s behavioral needs within a substantially-separate program because both regular education classrooms were relatively large and unstructured, they were not specifically designed to address the needs of a behaviorally-disabled student, and they included no classroom staff with experience or expertise relevant to such a student. Nevertheless, Student’s continuing and consistent behavioral difficulties throughout 1 st grade point to Student’s having learned maladaptive behaviors that he utilizes in a variety of classroom settings. As Parent’s expert explained, these maladaptive behaviors will have to be unlearned in order for Student to make significant progress (testimony of Levinson), and it seems apparent that this unlearning process will need to occur prior to a separate time-out space becoming unnecessary, at least for purposes of Student’s academic placement.
Parent disagrees that Student’s experience within the South Shore Collaborative is indicative of what his behavioral needs would be in the Quincy program during the next school year. She argues that the South Shore Collaborative experience may be distinguished on the following bases: (1) Parent opposed the Collaborative placement and Student knew that his mother opposed the placement, (2) as a result, Parent did nothing to support the success of the Collaborative placement and Student did not feel the need to cooperate with Collaborative staff or otherwise become invested in the program, and (3) the placement was time-limited, with the result that Student knew he could simply wait out the program and would then be transferred somewhere else without ever conforming his behavior to staff’s expectations.
Certainly it is hoped that Parent is correct that in another program, which is supported by Parent, Student’s behavior would be significantly improved. However, there is no history of Student’s being able to manage without a separate time-out space at any time during the 2007-2008 school year. During his placement in the regular education 1 st grade classroom in Braintree until March 2008 and during his placement in the regular education 1 st grade classroom in Quincy at the end of the school year, Student’s behavior was essentially the same as his behavior at the South Shore Collaborative even though Parent supported the Braintree placement but not the South Shore Collaborative placement or the Quincy placement, and even though the Braintree placement was relatively long term as compared to the South Shore Collaborative placement. I find that it would be speculative to conclude that Parent’s support of a 2 nd grade placement at Quincy during the 2008-2009 school year (together with the long-term nature of the placement) would be sufficient to change Student’s behavior from 1 st grade so as to eliminate the need to have a separate time-out space available for him.
Parent makes several other arguments. She points to Student’s experience in his current summer program. After the first two weeks, the program director reported that Student’s aberrant behavior has diminished through the implementation of a structured behavior program, and that although Student has been required to utilize time-out space within the classroom, Student has not needed to use the time-out area outside of the classroom. Parent takes the position that this experience is relevant to what might occur during the school year because in the summer program, expectations are placed on Student, he is not given free choice as to activities, and two hours each day are devoted to academic work. Testimony of Coles.
In addition, the summer program director, who has significant expertise with children with Student’s profile, testified that she believed that Student could be appropriately taught within a classroom that did not have available a separate time-out area. She also made clear the advantages of keeping Student within the classroom, even during time-out, from an educational and behavioral perspective. Testimony of Coles.
As compared to Student’s behavior during the South Shore Collaborative placement, I do not find Student’s experience this summer to be persuasive (regarding the issue of the need for a separate time-out space) for the following reasons. First, Student’s experience in the summer program was only for two weeks as compared to 45 school days (or nine weeks) at South Shore Collaborative. Second, the summer program consists principally of recreational activities together with two hours per day of individualized academic remediation where the expectations and demands placed upon Student would likely be significantly less than those placed upon Student during an academic year, while the South Shore Collaborative program reflected an academic classroom experience similar to where Student will be placed for 2 nd grade. Student’s behavioral difficulties have most often been triggered when he is required to comply with a classroom rule or classroom expectation. Third, the summer program was designed specifically to meet the behavioral needs of children with Student’s profile—that is, all of the children in the program had the same disabilities of ADHD and oppositional behavior. Quincy’s program would not be focused exclusively on children with this profile (for example, there would likely be a number of children whose principal disability was emotional, such as a bi-polar disorder) and therefore does not have the ability to tailor its entire program to the needs of children with Student’s profile. Finally, Dr. Coles had not spoken to anyone who has dealt with Student’s behaviors within an academic classroom, nor had she evaluated Student. At the time of her testimony, she had known Student only for two weeks within the context of a summer program. This diminishes the persuasiveness of her opinion regarding Student’s needs for the 2008-2009 academic year. Testimony of Coles.
Parent also pointed to evidence demonstrating that within non-educational environments, Student’s behavior does not require the availability of a time-out area. Within the Quincy after school program, Student demonstrated no significant behavior difficulties. Similarly, Parent has reported no aggressive behaviors at home. Student’s therapist also reported that Student has been cooperative during all therapy sessions after the first several sessions in which he appeared to be “testing” the therapist. Testimony of Kerns, Parent, Harkness.
I do not find this evidence persuasive. These non-educational environments are sufficiently different than the classroom context so as to provide little, if any, useful guidance in resolving the underlying dispute. As already noted, the frequent cause of Student’s behavior difficulties has been the imposition of classroom rules or other expectations that require him to do what he does not want to do. Within the Quincy after school program, the children were never required to engage in an activity which they did not choose. Similarly, there was nothing to indicate that either home or therapy placed demands on Student similar to those found in the classroom. Therefore, I give little weight to Student’s experiences in these environments. Testimony of Kerns, Parent, Harkness.
Finally, Parent pointed out that relatively recently, Student began taking medication for ADHD. She takes the position that the medication may significantly reduce Student’s behavioral difficulties. Dr. Turley, who was Parent’s witness, provided the most reliable testimony in this regard, explaining that the medication may have a secondary effect on Student’s behavior, but the likelihood of this occurring cannot be predicted. Testimony of Turley.
After considering all of the evidence as well as Parent’s arguments, I conclude that the South Shore Collaborative is the previous placement that is most similar to the substantially-separate placement that Student will utilize for the 2008-2009 school year (regardless of whether Student attends the Quincy program or a private school), and Student’s history at the Collaborative remains the best indicator of how Student may behave (and the implications of this behavior) within an academic environment during the 2008-2009 school year. It is not disputed that having a separate time-out space available for Student when necessary was an essential component of the South Shore Collaborative placement.
For these reasons, I find that to place Student into a program that does not have a separate time-out area would likely (1) preclude Student from making effective educational progress, (2) result in Student’s behavior unduly interfering with the education and safety of the other children in the classroom, and (3) lead directly to the failure of the educational program for Student. Therefore, I further find that a time-out area separate from the classroom is an essential ingredient of an appropriate placement for Student for the 2008-2009 school year. Because Quincy’s program does not have a separate time-out area nor is such an area available to Quincy in any of its school buildings, I conclude that Quincy’s program is not appropriate for Student. Accordingly, a private, therapeutic day school (which includes the availability of a time-out area separate from the classroom) is the appropriate, least restrictive placement for Student.
Quincy has not proposed a specific private, therapeutic day school. Quincy shall immediately commence a process for identifying such an appropriate placement for the 2008-2009 school year.
Parent has the right to participate in Quincy’s determination of the specific private school placement for Student. The IDEA requires that Parents be “members of any group that makes decisions on the educational placement of their child.”9 Massachusetts provides greater procedural protection, stating within its special education regulations that any placement determination must be made by the IEP Team.10 The regulatory language, regulatory history and a Massachusetts Department of Education Administrative Advisory make clear that the IEP Team’s placement decision includes a determination of the “specific program setting in which the services will be provided” including the proposed location of the educational program .11 Quincy Director of Special Education (Ms. Todd) made clear in her testimony that she would provide Parent with a meaningful opportunity to be part of the selection process. Testimony of Todd.
Parent’s meaningful participation in the process of selecting Student’s private school placement takes on added significance for two reasons. First, as the unrebutted testimony of several witnesses made clear, critical to the success of Student’s program is finding one that can be supported both by Quincy and by Parent. Testimony of Levinson, Turley, Reisman, Parent, Todd; exhibit S-6 at page 5 (“solid, working relationship between [Parent] and [Student’s] school … will be a key factor in [Student’s] being successful in any school program”).
Second, although many private therapeutic day schools may have sufficient staffing, appropriate physical resources, and an acceptable peer group, some programs may be more effective than others in working with children with Student’s profile. This may depend on the particular peer group of the program, the kind of behavioral interventions utilized, the program structure, and the expertise of staff in working with a relatively young child with ADHD and oppositional behavior but no emotional disability. Quincy and Parent share a common interest in working together to identify an effective program for Student and doing what may be needed to increase Student’s likely success within it. In addition, Parent is a clinical social worker with experience working with troubled youth. Her meaningful participation in the placement selection process will increase the likelihood of Quincy’s finding a successful program for Student.
ORDER
The IEP most recently proposed by Quincy (which would place Student in a private, therapeutic day school) is reasonably calculated to provide Student with a free appropriate public education in the least restrictive environment.
By the Hearing Officer,
William Crane
Dated: August 8, 2008
COMMONWEALTH OF MASSACHUSETTS
BUREAU OF SPECIAL EDUCATION APPEALS
THE BUREAU’S DECISION, INCLUDING RIGHTS OF APPEAL
Effect of the Decision
20 U.S.C. s. 1415(i)(1)(B) requires that a decision of the Bureau of Special Education Appeals be final and subject to no further agency review. Accordingly, the Bureau cannot permit motions to reconsider or to re-open a Bureau decision once it is issued. Bureau decisions are final decisions subject only to judicial review.
Except as set forth below, the final decision of the Bureau must be implemented immediately. Pursuant to M.G.L. c. 30A, s. 14(3), appeal of the decision does not operate as a stay. Rather, a party seeking to stay the decision of the Bureau must obtain such stay from the court having jurisdiction over the party’s appeal.
Under the provisions of 20 U.S.C. s. 1415(j), “unless the State or local education agency and the parents otherwise agree, the child shall remain in the then-current educational placement,” during the pendency of any judicial appeal of the Bureau decision, unless the child is seeking initial admission to a public school, in which case “with the consent of the parents, the child shall be placed in the public school program”. Therefore, where the Bureau has ordered the public school to place the child in a new placement, and the parents or guardian agree with that order, the public school shall immediately implement the placement ordered by the Bureau. School Committee of Burlington, v. Massachusetts Department of Education , 471 U.S. 359 (1985). Otherwise, a party seeking to change the child’s placement during the pendency of judicial proceedings must seek a preliminary injunction ordering such a change in placement from the court having jurisdiction over the appeal. Honig v. Doe , 484 U.S. 305 (1988); Doe v. Brookline , 722 F.2d 910 (1st Cir. 1983).
Compliance
A party contending that a Bureau of Special Education Appeals decision is not being implemented may file a motion with the Bureau contending that the decision is not being implemented and setting out the areas of non-compliance. The Hearing Officer may convene a hearing at which the scope of the inquiry shall be limited to the facts on the issue of compliance, facts of such a nature as to excuse performance, and facts bearing on a remedy. Upon a finding of non-compliance, the Hearing Officer may fashion appropriate relief, including referral of the matter to the Legal Office of the Department of Education or other office for appropriate enforcement action. 603 CMR 28.08(6)(b).
Rights of Appeal
Any party aggrieved by a decision of the Bureau of Special Education Appeals may file a complaint in the state court of competent jurisdiction or in the District Court of the United States for Massachusetts, for review of the Bureau decision. 20 U.S.C. s. 1415(i)(2).
An appeal of a Bureau decision to state superior court or to federal district court must be filed within ninety (90) days from the date of the decision. 20 U.S.C. s. 1415(i)(2)(B).
Confidentiality
In order to preserve the confidentiality of the student involved in these proceedings, when an appeal is taken to superior court or to federal district court, the parties are strongly urged to file the complaint without identifying the true name of the parents or the child, and to move that all exhibits, including the transcript of the hearing before the Bureau of Special Education Appeals, be impounded by the court. See Webster Grove School District v. Pulitzer Publishing Company , 898 F.2d 1371 (8th Cir. 1990). If the appealing party does not seek to impound the documents, the Bureau of Special Education Appeals, through the Attorney General’s Office, may move to impound the documents.
Record of the Hearing
The Bureau of Special Education Appeals will provide an electronic verbatim record of the hearing to any party, free of charge, upon receipt of a written request. Pursuant to federal law, upon receipt of a written request from any party, the Bureau of Special Education Appeals will arrange for and provide a certified written transcription of the entire proceedings by a certified court reporter, free of charge.
1
20 USC 1400 et seq .
2
MGL c. 71B.
3
20 USC 1400(d)(1)(A). See also 20 USC 1412(a)(1)(A).
4
MGL c. 71B, ss. 1, 2, 3.
5
20 USC 1400(d)(1)(A); 20 USC 1412(a)(1)(A); 20 USC 1412(a)(5)(A); 34 CFR 300.114(a)(2(i); MGL c. 71B, ss. 2, 3; 603 CMR 28.06(2)(c).
6
20 USC 1412(a)(5)(A) (“To the maximum extent appropriate, children with disabilities . . . are educated with children who are not disabled, and special classes, separate schooling, or other removal of children with disabilities from the regular educational environment occurs only when the nature or severity of the disability of a child is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily.”); MGL c. 71B, ss. 2, 3; 34 CFR 300.114(a)(2(i); 603 CMR 28.06(2)(c). See also Burlington v. Mass. Department of Education , 471 US 359, 369 (1985) (federal statute “contemplates that such education will be provided where possible in regular public schools, with the child participating as much as possible in the same activities as nonhandicapped children”).
7
Burlington v. DOE , 736 F.2d 773, 789 n. 19 (1 st Cir. 1984).
8
Schaffer v. Weast , 546 U.S. 49, 62 (2005) (burden of persuasion in an administrative hearing challenging an IEP is placed upon the party seeking relief; a party who has the burden of persuasion “ loses if the evidence is closely balanced” ).
9
20 USC 1414(e).
10
603 CMR 28.05(6); 603 CMR 28.06(2); 603 CMR 28.06(2)(d).
11
603 CMR 28.05(6) (“Team shall determine the appropriate placement to deliver the services on the student’s IEP”); 603 CMR 28.06(2) (“Team shall determine if the student shall be served in an in-district placement or an out-of-district placement and shall determine the specific placement according to the following requirements:”); 603 CMR 28.06(2)(d) (“ In-district placement . The placement decision made by the Team shall indicate the specific program setting in which services will be provided.”); In Re: Boston , BSEA # 04-2506, 10 MSER 311 (MA SEA 2004) (discussing the regulations, regulatory history, and state advisory relative to placement decisions by the IEP Team); Administrative Advisory SPED 2001-5: Updating of IEP Process Guide and IEP Form and Notices , dated June 11, 2001, found at: http://www.doe.mass.edu/sped/advisories/01_5.html