COMMONWEALTH OF MASSACHUSETTS
BUREAU OF SPECIAL EDUCATION APPEALS
IN RE: SEBASTIAN1 v KING PHILLIP REGIONAL SCHOOL DISTRICT
BSEA# 09-1334
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 occurred at the Catougno Court Reporting Offices in Worcester, MA on September 18, 2008 and September 22, 2008 and at the Bureau of Special Education Appeals (BSEA) in Malden, MA on September 25, 2008 and September 26, 2008. On September 26, 2008 the matter was continued to November 3, 2008 and November 10, 2008 to accommodate both School District and Parents’ remaining witnesses and both Counsels’ schedules. The matter was again continued for hearing on December 3, 20082 . The Parties’ joint motion to continue the matter until January 5, 2009 was granted so that the Parties could receive and review the voluminous written transcriptions from the hearing.3 The record closed January 8, 2009, when written closing arguments were received from both Parties.4
Those present for all or part of the hearing were:
Mother/Guardian
Father/Guardian5
Paternal Grandmother
Marsha Stevens Educational Consultant
Suzanne Nixon Parent Advocate
Ann Marie Lasoski Parents’ Neuropyschologist
Barbara Woodland Out of District Coordinator, King Phillip Regional School District
Audrey Lacher Special Education Director, King Phillip Regional School District
Douglas Frazier Teacher, Cardinal Cushing School at Hanover (Cardinal Cushing)
Jean Fiske Former special education teacher, Bi-County Collaborative (BICO)
Barbara Sherman School District’s Nueropsychologist
June Smith Occupational Therapist, Cardinal Cushing
Lynn Lapointe Former vocational coordinator, BICO
Sam Shoenfeld Attorney for Parents
Regina Williams Tate Attorney for School District
Brenda Ginisi Court Stenographer, Catougno Court Reporting6
Judith Kent Court Stenographer, Wood Court Reporting, Cohasset
Maureen Pires Court Stenographer, Wood Court Reporting, Cohasset
Joan Beron Hearing Officer, BSEA
The official record of the hearing consists of Parents” Exhibits marked P1-P517 and School Exhibits marked S1-S158 and approximately 5 ½ days of stenographic-recorded oral testimony.
ISSUES
1. Did King Phillip Regional School District’s (KP) IEPs designating a program for a vocational and educational program at BICO for the 2006-2007 and 2007-2008 school years provide Seb with a free appropriate public education (FAPE) in the least restrictive environment (LRE)
2. If not, is Seb entitled to compensatory services?
3. Did KP commit procedural violations that denied Seb a FAPE?
4. If so, is Seb entitled to compensatory services?
5. If so, should any compensatory award be reduced or denied because Parents’ hearing request was not timely and/or because Parents did not give KP ten days notice of their unilateral placement at the Cardinal Cushing School (Cardinal Cushing)?
6. May compensatory services be in the form of tuition reimbursement and prospective services at Cardinal Cushing School (Cardinal Cushing)?
7. If so, was and is Seb’s program at Cardinal Cushing appropriately responsive to his special needs so that he can benefit educationally, thus entitling him to tuition reimbursement?8
FINDINGS OF FACT
1. Sebastian (Seb), born May 1, 1986, is a friendly, handsome twenty-two year old resident of the King Phillip Regional School District (KP), interested in bowling, playing baseball, basketball and soccer, riding his bicycle, going out to eat and playing with the computer. He is also especially interested in cars ( see S85, S49, S79/P25, S104 Mother, Nixon, Stevens, Lapointe). Seb has been a residential student since January 2, 2007 when his parents/ legal guardians unilaterally placed him at the Cardinal Cushing School at Hanover (Cardinal Cushing). When Seb is home on school vacations or holidays he resides with his Parents and legal guardians and elementary school age nephew and lives next door to his paternal grandmother (Mother, Grandmother, see also P50).9 Seb also has a 29 year old and a 27 year old half-brother and a twenty eight year old sister, all who no longer reside in the home; Id.
2. Seb has been eligible for special education services since he was three years old due to developmental delays falling at the moderate mental retardation level, delays in fine-motor/gross-motor and expressive, receptive and social language and visual perceptual deficits, ( see generally S1-S15, S22, Mother). He received accepted special education and related services10 in preschool and elementary school pursuant to IEPs for a partial inclusion model that emphasized a multisensory approach, concrete and consistent functional learning with repetition and review ( see S4, S11, S22/P26).
3. In the fall of 6 th grade (SY 1998-1999), Seb moved to a partial inclusion program in the junior high with services in the resource room. He was not able to keep up with the work and as a result was placed at the Bi-County Educational Collaborative’s (BICO) Work Lab I program pursuant to an accepted IEP (Mother, see generally S15).11 Seb remained in the Work Lab I program until the end of the summer 2001 and did well there. There was good communication and coordination between the home and school so that Mother was aware of any behavioral issues and the things that Seb was working on in school (Mother, see S23).
4. Seb received a multidisciplinary independent evaluation at the Braintree Hospital on August 23, 1999 and August 24, 1999 (Mother, Lasoski). At the time of the assessment Parents noted that Seb had a tendency to imitate negative behavior of other children and engage in some physical aggression and tantrums that required repetitive low key feedback and occasional restraint to deescalate although behavior had improved due to Seb’s increased language skills (S21/P26, S22/P26, see also Mother). At the time of testing Mother also informed the Occupational Therapist (OT) that Seb continued to require assistance with manipulating a knife and fork simultaneously and with thoroughly brushing his teeth (S16/P22). Although Seb’s hearing was within normal limits, he scored at the 1 st percentile in auditory discrimination tests and showed weaknesses in auditory decoding and short-term memory (S19/P22, see also S22/P22). Seb also showed decreased balance, strength and coordination as well as decreased motor planning skills and difficulty with visual perceptual and visual motor skills (S16/P22, S20/P22, S22/P22, see also Mother). Speech/language testing also showed that Seb had a significantly reduced ability to attend, process, comprehend, sequence and recall oral language (S17/P22, see also S22/P22). Seb also displayed expressive language skills at about a 3 ½ -4 year old level and deficits in pragmatic skills, characterized by poor topic maintenance, off-topic verbal interjections, perseveration and inappropriate laughter (S17/ P22, S22/P22, see also Mother). On neuropsychological testing by Dr. Lasoski, Seb showed social and activities of daily living skills (ADL) at the four to five year old level and on cognitive testing on the WISC III, Seb received a verbal score of 46, a performance score of 46 and a full scale score of 46, placing him in the moderate level of mental retardation (MR) (S22/P22, Lasoski). Dr. Lasoski noted that this level of functioning meant that Seb would benefit from some vocational training with moderate supervision. She also noted that those with moderate MR could attend to their personal care and could also benefit from training in social and occupational skills. She further noted that those with moderate MR may learn to travel independently to familiar places but would be unlikely to progress beyond the 2 nd grade level (S22/P22).
As such, the Braintree Hospital team recommended a special education program that emphasized and targeted functional skills necessary for obtaining daily living and safety skills, with multisensory strategies to enhance language and auditory processing skills. These strategies included repetition, rehearsal, chunking, and simple and functional language that incorporated the use of scripts to aid in social skills training (P22/S22, S16-21). The Braintree Hospital team also recommended that Seb continue receiving Adaptive physical education (APE) and school based functional OT for two thirty-minute sessions a week to address fine motor and daily living issues, short-term outpatient OT to improve sensory processing, bilateral coordination and upper extremity and hand strengthening; continuation of speech/language therapy that would focus on functional communication and pragmatic skills and behavioral consultation (P22/S22, S16-21, Lasoski). Dr. Lasoski also recommended that Parents contact the Department of Mental Retardation (DMR) for financial support and additional resources such as respite care, and that Parents request that DMR provide access to a psychologist who is a behavioral consultant who could consult with the parents in the home and in the school as necessary (S22/P22, Lasoski).
5. Seb moved from the BICO Work Lab I program to the Work Lab II program in the North Attleboro High School in the fall of 2001. This change was effectuated because Seb was, at that time, fifteen years old and the TEAM felt that a high school vocational program was more appropriate for him (Lapointe, see S28, Mother). During this time and until approximately the end of the 04-05 SY Seb was in the exploratory phase of program working at jobs on campus such as the BICO office and the BICO cafeteria. He also participated in business tours at a nursery, a few animal facilities, and a supermarket. In addition people from the community came in to speak to Seb and his class about the different jobs that were available12 (Lapointe, S26, S80, S37, S39). Seb also went out into the community to the library, post office, local restaurants and businesses, attended career fairs in 2002 and 2004 and participated in job shadows, business tours and internships before participating in paid work (Lapointe, S80). The purpose of the exploratory phase of the program was for BICO staff is to get an idea of what each student’s stamina was and what their interests were (Lapointe).
6. Mother felt that when Seb moved to the Work Lab II program communication between home and school decreased. (Mother). Mom asked for more communication and BICO agreed to monthly meetings. BICO also provided daily communication sheets at Mother’s request that fairly consistently listed the skills that Seb worked on in each area of that day,13 the description of the work he did and the time period that the skill was worked on (Woodland, Lapointe, see P14). The communication log also provided a section for things to follow up at home and for parent comments, Id. BICO occasionally provided written communication regarding home/school follow up and Mother less occasionally provided comments ( see P14, Mother). BICO also sent Parents required progress reports and felt that they gave Mother information at TEAM meetings that indicated that Seb was progressing with his goals and objectives with accommodations such as verbal cues and prompting.14 (Woodland, Lapointe, see also S25, S26, S27, S28, P14). However Mother did not feel that she received sufficient information to know what Seb was doing or where his weaknesses were, or what Parents could do at home to follow through on what they were doing at school (Mother, but see Woodland, Lapointe, Fiske, P14). BICO also provided progress reports that showed that Seb was making steady progress commensurate with his ability ( see e.g. S25, S28). However Mother did not agree with the progress reports because at home Seb could not do many of the things listed on the progress reports. For example progress reports said that Seb could count and subtract, but at home Seb was not always able to distinguish between different amounts of money and Mother never saw him make change. In addition, Seb’s communication skills appeared to be higher at school than at home ( compare Mother, S28).
7. BICO administered a three-year reevaluation of Seb during May and June of 2002 ( see S29-S35). At the time of this evaluation, Seb was 5 feet, 8 inches tall and weighed 203 pounds (S30). The OT noted that Seb’s range of motion and strength had improved from a diminished state to within functional limits since the last evaluation in November 1998 (compare S15, S29). The 2002 OT evaluation also showed that Seb continued to have visual motor and visual spatial deficits, scoring between a four year, eleven month level and a six year, two month level in these areas ( see S29, S34).
Seb’s receptive language skills at that time were approximately at a six to seven year level if presented with simple material; however when presented with complex or lengthy material such as understanding of time, money and sequencing or longer paragraph comprehension, Seb scored at a two year, eight month old level ( see S32). Seb also displayed some deficits in pragmatic/social conversation skills at times being off topic or displaying inappropriate laughter with difficulty maintaining eye contact (S32, S33). However, when compared with the MR population, Seb displayed average to above average skills in community independence (S35).
Educational testing showed that Seb continued to exhibit delays in all areas, scoring in the mid first to mid second grade level in language arts and the low 3 rd grade level in math skills (S31). The BICO evaluator found that Seb continued to learn best in a one-to-one or small group situation with new material presented using a multisensory approach and new skills broken down into small concrete steps with numerous opportunities for practice in an extremely structured environment with clear expectations and consistently applied consequences to maintain age appropriate behaviors (S31).
8. On or about June 2002 the TEAM met to review the three-year reevaluations and conduct an annual review. KP proffered an IEP for substantially separate academic, speech/language, vocational and social emotional services and continued OT and adaptive physical education that were accepted by Parents (S36, Mother). Progress reports for the 2002-2003, the 2003-2004 and the 2004-2005 school years continued to show that Seb was making steady progress commensurate with his ability (S37, S38, S39, S41, S43, S44, S45, S46, S50, S51, S52, S53, S54, S55, P9, P10). Mother continued not to believe these progress reports because Seb was not doing many skills independently at home. She did not however tell the TEAM that she disagreed with the IEPs for continuation at the BICO Work Lab II program and accepted all the IEPs for the 2002-2003 school year (SY), the 2003-2004 SY and 2004-2005 SY including a March 2004-March 2005 IEP that eliminated Seb’s half hour a week of vision services to consultation four times per year (S40, S42, S41, S42, S48, S49, Mother).15
9. In approximately late 2002-2003, Seb began moving from school-based work experiences to community work experiences found by Mother (Mother, Lapointe). (Mother, Lapointe). One such experience was with Sisters16 House of Pizza folding pizza boxes Id. This remained a private placement. In 2002 Mother also found Seb a job at the Double Con Company (Double Con) located next to her place of employment. Seb began there for a two-hour period one day per week (Mother). Seb’s job at Double Con was to run paychecks through a stamping machine and to perform some light cleaning responsibilities such as vacuuming and emptying the trash (Lapointe, Mother, S85). At school, Seb continued to engage in functional academics, and engaged in career awareness opportunities, such as participating in business tours, exploring the community, job shadows,17 and work on campus (Lapointe, see S80, S28, S36, S39). Ms. Lapointe and BICO also worked with Seb on functional communication skills addressing this area through concrete directions, a social skills group with the adjustment counselor, and retrieval strategies as well as vocational skills such as preparing a resume and interviewing. Seb was not able to prepare a resume, interview or some other prevocational skills independently but with assistance, modeling, verbal cuing and/or repetition with gradual fading over time he did make gains requiring less cueing (Lapointe, S85, see e.g. S28, S41)
10. During approximately this time period, BICO also began travel training through the Dial a Ride program so that Seb could access off-site vocational experiences (Lapointe). The Dial a Ride program is a community-based public transportation service for the elderly and disabled (Lapointe, Mother, Fiske). Dial a Ride busses are van-sized vehicles that only had a capacity of eight to ten people and usually carried no more than four passengers. Often Seb would be riding the bus by himself or with one other person (Lapointe). Before passengers were allowed to access the Dial a Ride program, the transportation company required eligibility approval to use it (Lapointe, Fiske). The transportation company also required that drivers pass criminal record checks. Seb knew the three or four bus drivers and most of the riders because they consistently traveled the same route at the same time and the drivers (and Seb) knew where Seb needed to exit (Lapointe).
In addition, BICO required that students receive training on how to access the transportation and received frequent reports about the students’ use of the system (Lapointe, Fiske). If, as in Seb’s case, the Parent(s) consented to having a student use the transportation and the student was approved to ride the bus, the student would get trained to use the bus (Sherman, Lapointe). For Seb, this meant that he was monitored by BICO staff regarding getting on and off the bus, given role play, training in class and repeated practice regarding paying the bus driver.
BICO also coordinated the travel training with its banking program. The banking program was set up so that Seb (and his classmates) would go to a credit union once a week, and with assistance, withdraw money for his needs, including bus transportation (Lapointe, Mother, Woodland, Fiske, see also P18, S85). The Dial a Ride program was also coordinated with Seb’s social skills training where BICO staff would give Seb a written script for accessing, canceling or otherwise changing the bus transportation, sit with him and cue him regarding what telephone numbers to dial and what to say if needed (Lapointe, see also Mother, S85).18
In addition, the transportation program was coordinated with a safety awareness program in the classroom (Lapointe, see S85). When students first began travel training, they would be given maximum assistance, and, depending on their needs, this assistance would fade where staff would shadow the student by following the bus in a BICO van. Although Parent at hearing indicated that she was afraid that Seb would not be safe on the bus because he did not have appropriate understanding of strangers or street awareness, she did not voice concerns about his safety to either BICO or KP staff. Nor did Parents, or later on her Advocate, make any requests to remove Seb from the Dial a Ride system (Mother, see also Nixon). Seb always got to his job site and no safety incidents occurred on the bus. In addition, Seb was not required to cross any streets (Mother, Sherman, Lapointe, Fiske). In addition, reports from the Dial a Ride program indicated that Seb was appropriately behaved on the bus (Sherman, Fiske).
11. During the 2003-2004 School year, BICO began moving Seb from the exploratory phase of the BICO program to more community-based experiences (Lapointe, Fiske, S80, S42, S49). In April 2004 Ms. Lapointe set Seb up with an interview at the ABC Corporation and Seb was one of the students selected for a position to do painting and some light janitorial tasks (Lapointe, Mother). In approximately October 2004, Ms. Lapointe received a call from the employer who told her that he felt that Seb was not interested in the work and the pace of Seb’s work was not up to his capacity. Ms. Lapointe talked to Seb who told her that he didn’t care if he kept working at the ABC Corporation. Ms. Lapointe contacted the employer and together they decided that the employer would meet with Seb and Ms. Lapointe to explain why he was being let go (Lapointe). When Ms. Lapointe asked Seb if he understood what the employer was telling him, he told her “yeah I think I just got fired”.19 Seb did not appear either at the exit interview or thereafter to be upset about being let go (Lapointe).
12. On September 24, 2004, Seb was, pursuant to the Dial a Ride suspension policy, suspended for thirty days from using the Dial a Ride because he owed fares totaling $6.25 for failing to show up or cancel rides on July 13, 2004, July 14, 2004 and September 23, 2004 (P18). The Dial a Ride company sent Seb a copy of the suspension policy and a written letter regarding this. Seb was not able to comprehend the letter because the wording was too advanced for him (Lapointe, Mother, see also Stevens, Lasoski). However, Ms. Lapointe verbally went over the reasons why Seb was suspended and he understood why he could not take the bus. Ms. Lapointe and Seb worked on a letter for Seb to send to the bus company. Parents knew about the letter and did not object (Lapointe). The letter was sent so that Seb could understand why he was suspended and for him to take accountability for his actions (Lapointe). On October 1, 2004, Seb typed and signed a letter that Ms. Lapointe assisted him with that said:
“Dear Sirs,
Im (sic) sorry for the delay in my payment of the bill. I forgot to give you the money. I would like to have my transportation back because I like going to work in Attleboro. Here is my check….
Thank you,
[Sebastian (last name)].
[ Sebastian ______]”
Seb was able to resume bus transportation and did not have any incidents since that time (Lapointe, Mother, see S53).
13. However, after the suspension incident, Mother began to feel that the BICO program was inappropriate for Seb, and she began not to trust BICO because she felt that Seb’s progress reports indicated that he was achieving goals and objectives independently and he was not doing this at home (Mother). However, the progress reports, communication logs, and IEPs during this time indicated that Seb continued to need assistance to pay for bus transportation (Mother, see also S49, S50, S52, S53, S54, S55).20 Although Seb occasionally was able to bring his paycheck and independently fill out his deposit slip, he more often required verbal prompts to bring his paycheck to the bank, fill out a deposit slip or look for his paycheck in his belongings (Mother, Lapointe, P14).21 There were many times that Seb was able to participate in the banking program with fading assistance (Lapointe). However, there were approximately nine occasions during his tenure with BICO that Seb did not have his paycheck with him or could not locate it, and on at least four occasions he was not permitted to go to the bank despite a request from Mother to have Seb withdraw the money from his savings account (Mother, see P14). Although Parents did not feel that the Work Lab II/Life Roles Transition program22 at BICO program was appropriate and/or being implemented for Seb, they accepted the March 31, 2004-March 31, 2005 IEP in full (Mother, Lapointe, Sherman, Woodland, see S49).
14. Seb began transitioning to more community-based vocational experiences during the end of the 2003-2004 school year and more fully into the 2004-2005 school year (Lapointe, Fiske, see S80). At about that time, the BICO transitional specialist Lynn Lapointe incorporated the Double Con placement to a BICO community placement. Ms. Lapointe contacted the two employers at Double Con and met with them as needed. At the time of Ms. Lapointe’s first meeting, the employers were comfortable with Seb and were comfortable supervising him, and Ms. Lapointe observed that Seb seemed to know what he needed to do and how to do it. The Double Con employers were also comfortable contacting Ms. Lapointe if they needed assistance and when contacted, Ms. Lapointe was able to help the Double Con employers provide reasonable accommodations so that Seb was not distracted and his rate of performance increased. Both Double Con employers and coworkers valued his company to the point where Seb was going to get coffee with them. Double Con staff and management also valued Seb’s work, and it became a successful vocational placement for him. (Lapointe, see S85).
As of March 3, 2006, the President and President of Double Con at the request of Lynn Lapointe, wrote a letter to Ms. Lapointe and prospective employers that stated in part: “[Sebastian] has been an employee of our company since 2002. [Seb] has been a terrific employee. After careful, deliberate training, he was able to grasp the task sequences quite well and has improved his speed and accuracy by 100% over the years. This year we have yet to find any “missed checks in the stacks of envelopes we provide him. He also learned without being prompted, to review the stacks after completion, by flipping through tem, because he noticed that we did that when we checked his work. [Seb’s] record for postage in one day is approximately 1,000 envelopes. He is also punctual and well-behaved. Overall, we think Seb is quite capable of performing repeated tasks and can also learn to integrate new tasks and do some problem solving with proper training. Beyond that, he is quite friendly and a cooperative person, and is fun to work with…. (S85).
15. After Seb was let go from the ABC Corporation (October 2004), Ms. Lapointe began exploring other off-site vocational experiences for him (Lapointe). Ms. Lapointe knew that Seb was especially interested in cars. Therefore, she contacted Mariah’s Auto Body (Mariah’s)23 . Mariah’s had never hired a special needs employee in any capacity but agreed to explore the possibility because the three brothers who operated the auto body end of the business, and their mother who operated the office, were personal friends of Ms. Lapointe (Lapointe). Ms. Lapointe set up a job shadow in February 2005 (Lapointe, see S85). During the job shadow, Seb was able to accurately identify the pictures of the cars in the shop, and the Mariah brothers agreed to offer him an internship. Seb began working at Mariah’s once per week from approximately 9:00 a.m. to 11:15 a.m. (Lapointe, P20). In the beginning, Ms. Lapointe accompanied Seb to Mariah’s to show him what the tasks were which ranged from making sure the horn worked to vacuuming the cars or checking the brakes. After a few visits, and only after the employers were comfortable, Ms. Lapointe began fading her visits because both the employers and Seb did not seem to need her there, and were not only comfortable with Seb being there but incorporated him as one of the family, accepting calls at home, visiting Seb when he was in the hospital, and cheering him at his Special Olympics games (Lapointe). However, Ms. Lapointe continued to call or visit every other week and employers were comfortable calling her and with telling her if there was an issue with Sebastian24
16. Seb received his three-year adaptive physical education (APE) reevaluation in May 2005 ( see S56-S60). At the time of this evaluation, Seb was participating in a wellness program focusing on physical fitness, range of motion and strengthening as well as community based recreational programs such as flag football, basketball, baseball and bowling (S56, see also Lapointe, Fiske, Mother). At times, Seb missed some of these community experiences because he was working at Mariah’s and did not want to leave the job Id. During the evaluation, Seb had a difficult time with both body and spatial awareness and had very poor visual tracking of moving manipulatives. The physical therapist noted that this could be a safety concern (S56).
17. Seb also received his educational three-year reevaluation, his speech and language evaluation and OT evaluations in May 2005 (S57). His teacher John LaCroix indicated that at that time Seb was using transportation to his work sites independently and scored in the 4 th grade level in word recognition and computational skills. Mr. LaCroix also indicated that Seb could identify 39 out of 40 safety signs and although he could not give an exact definition of all the sign he knew what to do ( see S57). The speech and language pathologist (SLP) noted that Seb appeared to have improved his ability to focus his attention and process more efficiently since the last three year reevaluation and had made slight gains in receptive language and had increased processing speed since the last reevaluation. The SLP also indicated that Seb demonstrated slight growth in expressive language skills and that he had made a two-year jump in pragmatic skills (S58). However, although the SLP did some formal testing, she did not reference any scores to support her conclusions ( see S58, Woodland).25 The OT concluded that Seb had made progress over the years, however she also noted that standardized testing of Seb’s visual perceptual and motor testing were similar to results from three years ago ( see S59).
18. On June 8, 2005, at about 2:15 p.m., Mother received a call from Sebastian’s teacher John LaCroix informing her that Sebastian had not returned from Mariah’s on the bus when he was supposed to (about 12:15 p.m.) and that BICO staff had picked him up at the end of the school day (about 1:50 p.m.) (Mother, Lapointe, Fiske, see P23). Mother became frantic because she received no explanation about where Seb had been. Mother believes that Seb’s whereabouts were unknown for a two hour period because she thought that Seb usually returned to BICO about 11:15 a.m. or 11:20 a.m. (Mother). Mother was worried that Seb was not safe because he was very trusting and could have gone off with anyone especially if someone was wearing a Red Sox hat (Mother).
19. Mother called King Phillip’s (KP) out-of-district coordinator Jonathan Parker to report the incident at about 3:15 p.m. She met with Ms. Fiske (BICO’s program director) and Mr. LaCroix on June 9, 2005 (Mother, P23, Fiske, Lapointe). BICO staff informed Mother that Seb was supposed to watch for the 12:15 p.m. bus from the Mariah’s window and needed to be ready anytime between noon and 12:30 p.m. but that the bus had left because Seb was not there (Lapointe). BICO staff informed Mother that there was a miscommunication about whether Seb had checked in with BICO staff at the high school cafeteria for lunch and that there was a fifteen minute, not a two hour window, where Seb’s exact location was unknown but that when Seb had not checked in after fifteen minutes, BICO called Mariah’s who told him that Seb had missed the bus and asked if Seb could stay and have lunch with them and stay for the afternoon (Lapointe). The request was granted and Ms. Lapointe picked up Seb at the end of the school day (Lapointe). As a result of the incident, BICO implemented a new procedure the following day where all students would have to sign in and out on a white board regarding where they were going and who they were going with (Mother, Lapointe, Fiske, see P23). Sebastian required frequent reminders to institute this new procedure but with frequent repeated practice and reminders, was able to carry out the task (Lapointe).
20. On June 20, 2005 the TEAM convened to review Seb’s evaluation results and to develop an IEP for the 2005-2006 school year (Mother, Lapointe, S60-S62, P8). The June 2005-June 2006 IEP maintained the quarterly vision consultation and the hour-a- week of OT and added a session of APE each week, increased vocational services from 12 to 16 hours per week, increased social skills training from 45 minutes to an hour per week and greatly increased the time allocated for social communication ( compare S49, P8/S62). Mother met with Ms. Fiske, and Mr. Parker to set up a plan for meaningful communication (Fiske). Seb rejected the IEP in full on July 26, 2005 (P8/S62). Mother also sent a full rejection of the IEP. KP received the rejected IEP on August 2, 2005 (S62, Mother).
21. Seb remained at the Life Roles Transition Program attending the BICO extended school year (ESY) program at the North Attleboro High School. The ESY program continued the weekly community field trip, participated in weekly shopping and cooking classes and continued in the banking program. (S63). Seb also participated in a wellness/exercise program that was reinforced in OT and continued his direct speech and language services Id.26
22. The TEAM reconvened on August 10, 2005 and again on August 24, 2005 to discuss the rejected IEP (Mother, see S70). No resolution was reached; therefore Mother retained an Advocate (Suzanne Nixon) in September 2005 (Mother, Nixon).
23. On September 13, 2005 Mother sent a letter to KP’s out-of-district coordinator Jonathan Parker informing him about continued poor communication between her and BICO (P23, Mother, Fiske, Lapointe). Mother told Mr. Parker that Seb was upset because he had put on his Mariah’s shirt and had his bus money ready and was prepared to go to Mariah’s during the first week of school but could not go because BICO did not inform her or Seb that work would not be starting until the following week ( Id.) Mother also informed Mr. Parker that the teacher (Mr. LaCroix) sent her a homework sheet with no explanation and also did not send her the daily communication sheet that she prepared and that was agreed to at the June 2005 TEAM meeting. Therefore, Mother did not know what Seb needed to work on at home Id. Mother further informed Mr. Parker that when she talked to Mr. LaCroix about the daily communication log, she was not given the communication log that was agreed to but instead received a communication sheet filled out by Seb entitled “My Day” with picture icons depicting a wellness activity (track), snack, lunch and weather. Mother felt that this sheet not only did not tell her what Seb was working on but was insulting and an attempt by the teacher to mock her request for communication (Mother, see also S23). Mother also felt that the agreed upon communication sheet that came home the next day was not appropriate because it was not completely filled out. She also told Mr. Parker that she was particularly unhappy with the incident that occurred on June 8, 2005 where Seb missed the bus, as well as BICO’s denial of her request to rewrite the incident report concerning the event. At that time Mother informed Mr. Parker that she would like to see BICO make changes to Seb’s program. She also requested that Seb attend a twelve-month residential school program because the summer program at BICO had resulted in regression because the summer program changed Seb’s schedule. Mother also told Mr. Parker that Seb could make progress with a proper program because he had gained language and social skills while attending community programs through SNARC.27 (Mother, S23).
24. The TEAM reconvened on September 21, 2005 (Mother, see S70). At that time, Mother told the TEAM that she did not want Seb to remain in Mr. LaCroix’s class any longer because she did not trust him and asked that other programs be explored (Mother, see also Lapointe). The TEAM decided to switch Seb to Ms.Williams’ class because Seb had previously been in this class, and Mother seemed to have a better relationship with Ms. Williams (Lapointe, Fiske). Mother was not happy with this decision because Seb would be one of the older students in the class but did not say anything to the TEAM. She consented to the change of classroom because she felt that she did not have any other choice because BICO and KP would not agree to set up interviews at other school programs (Mother).
25. The TEAM again reconvened on October 12, 2005 to review the IEP (Mother, Nixon, Lapointe, Fiske. P7/S65). The school-based members of the TEAM told Mother and her Advocate that Seb was doing well in school and progress reports issued on October 7, 2005 showed that Seb had increased his pragmatic language skills, was using the credit union with infrequent verbal and visual cues and only occasional reminders to withdraw money needed for the bus, was doing a great job at both Double Con and Mariah’s and was participating effectively in both his weekly social skills group and in town meetings, but that he still needed to work on being less silly or rude in less structured settings (S68, see Mother, Fiske). At that meeting, Mother told the rest of the TEAM that she was concerned because Seb was the oldest in Ms. William’s class and that Seb has meltdowns when he was at home during unstructured time or when there were changes to his schedule (S65, P7, see also Mother). She did not tell the TEAM any specifics regarding what was happening at home (Mother, Grandmother, Lapointe, Fiske, see also P14 p. 1-206). Mother did tell the rest of the TEAM that she was concerned about Seb’s ADL skills because Seb still requires assistance with toileting, showering, shaving and tying his shoes28 and that Parents were also concerned about Seb’s money management issues, functional academics, safety issues and direct safety training as well as the lack of coordination between DMR in transition planning ( Id. ) Mother also told the rest of the TEAM that she was concerned because Seb wanted to work more hours at Mariah’s and that would mean that he may miss opportunities at school and she did not believe that Seb’s needs were more intense than BICO could provide for (Mother, S65/P7). The proposed IEP expanded the accommodations sections, added goals in vocational and independent living skills (including shoe tying) and goals in safety and social judgment, made each goal and objective more detailed and added five hours a week in independent living skills, ( compare P8, S65/P7). The TEAM also agreed to meet with Mother for scheduled monthly progress meetings and to reconvene in the fall of 2005 to discuss recommendations regarding Seb’s visual needs (P8). However, KP did not agree to explore residential programs (Mother, Lapointe, Fiske). KP sent Parents the IEP on October 19, 2005. Mother rejected the IEP in full on November 29, 2005 ( see S65/P7, Mother).
26. Seb was out of school from late October 2005 until approximately late November 2005 due to jaw/facial surgery (Mother, Lapointe, see S67). He received ten hours of tutoring per week during this time ( see S67). During this time he also received frequent visits from everyone at Mariah’s (Lapointe).
27. The TEAM reconvened on December 14, 2005 and then again on January 12, 2006 and January 20, 200629 to refine his IEP and discuss transitional planning (Mother, Lapointe, Sherman, White, Lacher, see S70, S71/P6).30 Both Mother and Advocate had considerable input regarding the wording of each goal, and objective and approved the language to each goal (Fiske, Sherman, Lacher). Before moving onto each goal Ms. Fiske, as the TEAM chair asked if everyone was in agreement and if there was anything that anyone would like to add (S73, Fiske, Mother, Nixon, Sherman, Lacher). Neither Mother nor her Advocate voiced any objection or offered additions before the TEAM moved on to another goal (S73, Fiske, Mother, Sherman, but see Nixon).31 The meeting was, over Mother’s objection,32 scheduled for January 20, 2006 to finish developing the IEP because the TEAM had met for four hours and three more goals and objections needed to be developed (Mother, Nixon, Sherman, Fiske, S72, S73).
28. On January 25, 2006, the special education director sent Parents an IEP that increased added accommodations such as a computer typing program, and added 1.2 hours per week in independent living skills and in functional academics and offered a vocational assessment to be done in March 2006, exploration of an afterschool Y program, an OT consult with Parents regarding personal care issues, collaborative clinical consultation services, implementation of the Making Action Plans33 for transitional planning, exploration of the MBTA Ride for transportation, job shadowing three to four times a year and exploration of the Consensual Circle of Friends program34 (Nixon, Mother, Lapointe, Fiske, S71, compare S71/P7). Ms. Fiske also offered to meet with Mother weekly either in person or by phone or written correspondence (Fiske). With the advise of her Advocate Mother rejected the IEP in full on March 17, 2006 (Nixon, Mother, see S74/P6, also see S76, Fiske). Mother also did not take Ms. Fiske up on her offer for weekly meetings or participate in the parent support group that BICO offered (Fiske).
29. Parents were upset because BICO was not following through on its promises made at the TEAM meeting such as the implementation of an afterschool Y program the However BICO could not implement the afterschool Y program, the OT consult in the home, the clinical services or any of the other services or goals and objectives because the IEPs were rejected in full (Fiske, Sherman, Mother, Nixon, Lapointe). Progress reports issued in 2006 that were based on the old goals and objectives indicated that Seb had achieved most of these goals and that Seb required new goals and benchmarks ( see S75, S77, S78, S90).35 In addition, Parents felt that BICO was not complying with other parts of the IEP because Seb missed out on some community experiences such as job shadows or a career fair because they occurred when Seb was scheduled to be at Mariah’s and Seb did not want to miss work or have his schedule altered (Mother, Lapointe). BICO agreed that Seb might miss some community experiences or time in the classroom because he was transitioning from a school to a more vocationally based program and would be working more hours on more days but that BICO would work with Seb and his parents to fit in what was most important for Seb. BICO felt (and still feels) that the most important goals for Seb were pragmatic language development, and continuation of his safety program, support in functional academics in math so that Seb could better handle money, and that it would be better to schedule the other community and functional academics to another time of day when it was offered (Fiske).
30. Parents were also upset because they felt that BICO was not following through on providing Seb with an appropriate checklist so that he understood what he needed to do at Mariah’s (Mother, Nixon). The checklist that Mariah’s used contained many items on one page, which would result in too much visual clutter for Seb and may also be hard for him to understand (Mother, Lasoski, Lapointe, see also S84, P19). BICO bought Seb a clipboard and developed a script so that Seb could ask the Mariah brothers what he needed to do. Ms. Lapointe did meet with the Mariah brothers to develop a list to go over appropriate vocabulary words so that the teacher could go over this in the classroom and also did work with the vision specialist and did collaboratively develop a revised appropriate checklist However, the scripts were not used consistently because Seb would often forget the clipboard and Mariah’s only used the checklist a few times because they preferred their own checklist36 (Lapointe, Mother, see S85, S86).
31. In addition, Parents were also upset because they did not believe that progress reports were accurate because the April 2006 and the June 2006 progress reports indicated that Seb used inferences to figure out situations, used the dictionary to look up unfamiliar words, counted money and made change and, for the most part, remembered his lunch bill, and that Seb had achieved these goals. However, Seb was not doing these things at home (Mother, see P11 p. 11-19, but see P11, p. 11-19, Lapointe).37 Parents also remained concerned about Seb’s ADL skills because Seb would sort laundry at home but would not wash it and at school would sometimes forget to bring his laundry in, and when he did do laundry, it would come home damp. Parents were also concerned that there were repeated occasions that Seb did not bring in his paycheck and could not deposit it in the bank and at times needed prompts to deposit his paycheck and was not allowed to withdraw money from the bank when he forgot his check (Mother, see also P14, but see P14, Lapointe).38
32. On June 21, 2006, KP received an evaluation from Thomas Lehane at HMEA. This evaluation was done in order to assist KP and BICO in transitional planning for Seb (S79/P25). Mr. Lehane reviewed Seb’s June 20, 2005-June 20, 2006 IEP, and school evaluations, interviewed Mother, Seb’s teacher Ms. Williams, and Ms. Lapointe, interviewed Seb at school, observed him in his cooking class and at three separate work environments. Mr. Lehane also had Seb complete the Reading-Free Vocational Interest Inventory, assessed Seb’s skills, with information from Mother, through the Vineland Adaptive Behavior Scales (Vineland), and had Seb participate in a pre-arranged visit to a worksite (S79, see also Lapointe).
Mr. Lehane concluded that Seb had some independent skills. Mother reported that Seb was able to get up on his own, get dressed, make his own breakfast including operating the toaster, get his school bag and walk to the school bus stop from home and complete night time routines but needed verbal prompts to get his wallet and other items and brush his teeth thoroughly (S79/P25). However, Seb did require help at work and at home during long periods of unstructured time such as extended school vacations and weekends and has verbal outbursts of anger when he is bored (S79/P25, Mother, Grandmother).39
Results on the Vineland showed that that Seb had low ADL skills needing assistance with tooth brushing, tying his shoelaces and prompts in order to correctly use a knife. In the community domain, Seb did demonstrate some basic, unsophisticated skills such as phone use, time and money concepts, but his overall safety on streets and roads remained relatively poor. Seb did show strengths in his ability to communicate with others, particularly familiar people, but was relatively passive in initiating social interaction and needed assistance to interact with his friends, keeping appointments and time management (S79/P25). Similarly in work situations Mr. Lehan concluded that Seb had made progress because he was interacting with people whom he knew, was doing repetitive familiar tasks and did less well with more flexible new situations or when there was a break in the routine (such as the machine jamming at Double Con).40 Mr. Lehan also concluded that Seb would be best suited to an environment in which some kind of mechanical or assembly task is involved that would also give Seb the opportunity to engage in some level of social interaction with his co-workers; that work should begin part-time and be systematically increased and that formal planning for instruction in independent living and leisure/recreation skills should also occur; that Seb should be placed in a job 9-12 months before he leaves school with full time supports provided at the beginning until Seb learns the job and is comfortable interacting with his supervisor and a few co-workers with a planned timetable for fading of the job coach.
Mr. Lehan also recommended that the goals for the work experience be outlined prior to Seb beginning at a new site, that data be collected by the job coach at least weekly followed by a brief progress report and recommendations for changes and that the job coach have sufficient oversight of the job. Mr. Lehan also recommended that Seb be taught a self-monitoring system, conversational and interview related scripts, instruction and coaching in career, skill training in Independent Living Skills, and that Seb participate in a language based social skills group. Finally, Mr. Lehan recommended that Seb be assisted in locating and participating in regular recreational activities in the community with particular emphasis on peer-group affiliations Id.
33. On October 10, 2006, KP received a written report from an independent evaluation from Ann Marie Lasoski, Psy.D. (Dr. Lasoski) that was done at the request of Parents to determine the services necessary for Seb to move into adulthood (P27/S90, Lasoski). Dr. Lasoski reviewed the previous 1999 independent evaluation’s findings, the school district’s 2005 three-year reevaluation, and developmental and medical records and administered the Wechsler Adult Intelligence Scale-III (WAIS-III) on February 6, 2006 Id.41 Dr. Lasoski found that while Seb had previously tested in the moderate mental retarded range on the WISC (Wechsler Intelligence Scale for Children) in 1999, he had in this administration achieved a full scale score of 56 (with a verbal IQ of 61 and a performance IQ of 59) putting Seb in the borderline range of mild mental retardation (MR). Dr. Lasoski concluded that this meant that Seb could acquire academic skills up to approximately the 6 th grade level42 and in adulthood, could achieve vocational skills adequate for minimum self-support, but may need supervision, guidance and assistance especially when under unusual social or economic stress Id. Dr. Lasoski noted that with appropriate supports, individuals with mild MR could usually live successfully in the community, either independently or in supervised settings. Conversely, expectations for those with moderate MR are that they would profit from vocational training and would need moderate supervision, vocational training and training in social and occupational skills to attend to their personal care, travel independently in familiar places, and perform unskilled or semi-skilled work with supervision, but would be unlikely to progress beyond a 2 nd grade level academically Id.
Dr. Lasoski also assessed Seb’s academic functioning by comparing the former 1999 results with Dr. Lehan’s scores obtained in June 2006 ( Id. ) This comparison showed that Seb had made approximately a two-year jump in interpersonal relations, but had made either slight gains or losses or had stayed at essentially the same level in all other adaptive domains with approximately a one year decline in domestic skills; Id.
34. On May 23, 2006, Dr. Lasoski observed Seb’s BICO43 placement at the request of Mother (Mother, Lasoski, S90/P27). She did not, however, talk to Seb’s teachers or see his work.44 Dr. Lasoski observed Seb at lunch with four or five other males and three females. Seb was observed talking loudly and then engaging in a “burping” contest with the other males and yelling a comment to a custodian. Dr. Lasoski then observed Seb in his classroom. Seb was attentive during the lesson and appropriately worked independently in his workbook (S90/P27). He was also able to understand turn taking during an “I Spy” game but did have to be cued not to have his classmates see his cards. Dr. Lasoski also observed Seb during a social studies/vocabulary lesson that contained words such as chronometer, superfluous, rubicund. Seb was unable to read the words out loud or extract the meaning of these vocabulary words because the material was well above his ability Id, see also Fiske). Similarly, Dr. Lasoski found that the math instruction regarding adding sales tax was above Seb’s cognitive level and was also inappropriate for Seb because the tax table had a lot of visual content that Seb could probably not follow (Lasoski, P27/S90, see also Smith).
35. On June 30, 2006, Dr. Lasoski followed up with the school adjustment counselor by phone to obtain more information about the program. She did not however speak to Seb’s teacher or Ms. Lapointe or review Seb’s work samples (Lasoski). Dr. Lasoski concluded, based on this conversation as well as conversations with the OT and speech/language therapist and her review of Seb’s IEP, that Seb’s program was not coordinated because there was not detailed data collection (such as formal checklists) to define progress or enough specific, targeted skills on Seb’s IEP in regards to acquisition of ADL skills, pre-vocational and vocational skills and Seb’s social and leisure skills and pragmatic language and no coordination between the school, home or job programs (Lasoski, P27/S90, see also S115). Dr. Lasoski recommended that Seb receive an individualized life skills program in a full year setting that emphasized activities of daily living, independent living skills, recreational skills, social skills and vocational skills taught in a repetitive, concrete, systematic, multidisciplinary manner reinforced throughout all the settings that Seb is in ( Lasoski, see also Stevens, Woodland, Sherman). Dr. Lasoski specifically recommended that Seb’s program target issues regarding personal hygiene such as showering and shaving, selecting and laundering clothing, completion of domestic chores such as washing dishes, clearing a table and vacuuming, and functional academics such as improved ability to tell time, make change and manipulate money greater than $1.00 and fundamental budgeting skills (S90/P27, but see S83, S115, Fiske).45
36. The TEAM reconvened on November 1, 2006 to review Seb’s vocational and neuropsychological evaluations, discuss transition planning and review Seb’s progress (Lapointe, White, Sherman, Mother, Nixon, P5/S92). The Parents’ TEAM members (Mother, Advocate) felt that when Dr. Sherman reviewed Dr. Lasoski’s findings, she agreed with Dr. Lasoski, believing that the current program was not a coordinated program (Mother, Nixon, but see Sherman). However, the school-based members of the TEAM remember that Dr. Sherman did not agree with all of Dr. Lasoski’s findings, especially those findings that found that Seb was, because he had a full-scale score of 56 on the WAIS, in the mild MR range (Sherman). Dr. Sherman made this conclusion because the 1999 WISC scores can not be correlated with 2006 WAIS scores and a score of 56 was not statistically significant because the score was only one point above the designation for mild and moderate MR, which was not statistically significant and would not result in a dramatic functional difference. Dr. Sherman also notified that separate administrations of the Vineland Adaptive scales can vary depending on the subjective ratings of the user and that his performance in school was more indicative of moderate MR and that while changes to the IEP would be made as a result of the new information, BICO would be an appropriate placement to implement those changes (Sherman, Fiske).
Mother told the TEAM that she did not agree with the recommendation for continuation at BICO and told the TEAM about Seb’s lack of flexibility and rigidity about his schedule and his poor coping strategies when changes occur or when Seb was bored or frustrated (P5/S92, Mother). Mother told the members of the TEAM that when Sebastian came home, he was very loud and was mimicking students on the bus (Nixon, see also Mother). Parents and Grandmother were also concerned because when Seb came home, he would, about 50% of the time, ignore his grandmother, insult her or her birds, watch inappropriate rap stations at a very loud level and not comply with requests to turn the volume down, or to limit himself to two sodas. Grandmother was also concerned that Seb would sometimes eat all the lunchmeat in the fridge and would often leave the television blaring to go outside to ride his bicycle or shoot hoops (Grandmother, see also Mother). Parents were also concerned because Seb had on one occasion pushed his uncle,46 was at times picking fights with his six year old nephew who lived with them Id. Neither Grandmother nor Parents told KP, BICO, Mr. Lehan or Dr. Lasoski about the specific difficulty that they were having with Seb at home (Mother, Grandmother, Lapointe, Sherman, see P27/S90, P25/S79, see also P14 p. 1-206). Dr. Sherman, did based on what Mother told her, propose that someone ride with Sebastian on the bus to assess his behavior and do a behavioral plan if appropriate (Nixon).
At this time, Mother did tell the rest of the TEAM that Seb still required assistance to shower, shave, toilet and tie his shoes (P5/S92, Mother). Mother also told the rest of the TEAM that she was concerned over Seb’s money management issues and safety issues. The Advocate also recalled that Mother had concerns that some of the job shadows and community experiences had not taken place because the times conflicted with Sebastian’s off-campus morning work schedule, and Sebastian did not want to miss or reschedule his work, and BICO did not want to move the work to the afternoon because Sebastian got too tired then (Nixon, see also Lapointe).
Mother told the rest of the TEAM that Seb needed a program with more individual skill assessment, job shadowing opportunities, job search training and resume and interviewing skills as well as more opportunity to explore community-based employment opportunities. She requested that KP send out packets to residential schools including Cardinal Cushing (Mother, Nixon, Lapointe, Sherman, Woodland). Dr. Sherman told the TEAM that two of the programs were inappropriate for Seb and that Cardinal Cushing was a good school but she did not know whether it would be appropriate for Seb (Sherman, Nixon). Mother also requested that DMR fund a residential placement for Seb (Mother, White). However, neither Mother nor her Advocate indicated that additional services were needed or that goals or objectives needed to be added. Nor did they tell the TEAM that Sebastian was going to be unilaterally placed outside of school district (Sherman, Mother). The TEAM agreed to coordinate Seb’s speech goals with his work experience and that he should receive individualized checklists for job sites with preparatory role playing and explicit instruction. KP also assented to Mother’s request for an assistive technology evaluation and offered to have a behavioral specialist consult with Seb and his family to improve Seb’s hygiene skills and his coping strategies with “down” time and changes in his schedule (Sherman, Mother, Lapointe, White, see P5). The proposal for a functional behavioral assessment on the bus was not included in the IEP ( see P5/S92).
37. KP sent Parents the IEP on November 17, 2006 ( see P5/S92). On December 18, 2006, KP’s TEAM Chairperson Jonathan Parker sent the BSEA a copy of the IEP because Parents had not, as of that date signed the IEP despite several attempts to obtain a response. KP informed the BSEA that it considered this to be a denial of FAPE for Seb (S95).
38. In December 2006, Seb was absent from school on six occasions (December 8, 2006 and the following week ending on December 15, 2006) (S98).
39. On December 19, 2006, Mr. Parker received a letter from Parents’ Counsel informing him that he was representing Parents and was requesting all of Seb’s records in KP’s possession (S96). Also, in that letter Parents’ Counsel informed KP that Parents intended to enroll Seb as a residential student at public expense as of January 2, 2007 because of previously-expressed concerns that the program offered by KP was not appropriate to meet Seb’s needs (S96/P29).
40. On December 20, 2006 KP’s Counsel wrote to Parents’ Counsel informing him that KP would send Seb’s student records once it had received payment for the copying fee. School Counsel also informed Parents’ attorney that Parents’ unilateral placement was not given in a timely manner and would be used as a defense to retroactive reimbursement and that Parents’ unilateral placement of Seb prior to completion of the evaluation process would also be raised as a defense (S97).
41. On December 21, 2006 Mother and Seb sent back a signed consent form for an assistive technology evaluation (P30). They also rejected the IEP in full on that day (P5).
42. Seb began attending Cardinal Cushing on January 2, 2006 (Mother, Frazier, P36). When Seb first came to Cardinal Cushing, he would isolate himself and did not take much initiative to join groups, make friends or speak out for himself. He would often have silly interactions with his peers (Frazier). Seb also would often not look at the speaker in a conversation and would often travel looking down at his feet (Frazier).
43. Cardinal Cushing does not have an IEP for Seb (Frazier). They did have a service planning meeting for Seb on January 2, 2007, the day of his arrival (P40). The vocational director, Mr. Frazier, was not at the service planning meeting. He does not usually go because he is not the student services coordinator and as such is not responsible for the programs in the classroom (Frazier).47 Cardinal Cushing listed Seb’s priority needs as building on his skill set, repetition to aid in internalization of ideas, safety and stranger awareness skills, pragmatics, and participation in activities such as sports and Boy Scouts. Cardinal Cushing notes that when Seb was at BICO he worked at off-site jobs as an assistant at a body shop (Mariah’s), worked at a retail merchandiser (Double Con) and at a pizza shop. At that time, Cardinal Cushing placed Seb in the Voc Prep II classroom on a full-level system of supervision where he would be doing group exploratory experiences or would be working on jobs on campus with staff accompaniment (Frazier, see also P38). Cardinal Cushing noted that Seb had basic math and money skills and could read signs and had a basic vocational and safety word vocabulary. Cardinal Cushing’s goals were to have Seb have varied work experiences, learn more basic skills and carry over skills, and work longer in an enriching way. Seb’s residential goals were to have more independence with his tooth brushing, meal preparation, cleaning his room, laundry and chores and cooperative living skills, and to have better stranger awareness that he could apply to daily situations (P40). The service planning meeting resulted in no further specificity to these goals and objectives ( see P40). Cardinal Cushing filled out daily progress reports followed by a weekly report summary ( see P38). These daily progress reports were a fill-in-the-blank format where the teacher would fill in the following information: “Today [Seb] worked at ______. The tasks that he was asked to perform were_______. He did really well at: ______ and Areas that need to be addressed and obstacles that he ran into are:” The weekly progress reports generally listed what Seb did each day (i.e., “Wednesday: journal writing, current events, health class (nutrition), gym, functional math (measurement), lunch, art, then Seb worked in Central Supply”. The weekly progress report also listed the areas of progress (i.e., “takes directions nicely, better understanding of each job”) and areas of concerns and difficulties (“multiple cues not to put fingers in mouth and play with rubber bands”) (P38). As of April 2007, Cardinal Cushing staff would fill out weekly vocational skills checklists where it would rate the levels of assistance that Seb needed for discrete tasks (i.e. check to see if more paper cups etc are needed at coffee station) (P38, P39). However, these checklists were for staff only ( see P38, P39). Seb was not given a checklist because he did not have good self-monitoring skills (Frazier).
44. Cardinal Cushing completed a vocational assessment on February 16, 2007. Like other students in the Voc Prep II classroom, Seb rotated through a variety of sites, working approximately two hours a day, twice a week and took turns working on sites on campus to gain an introduction to various vocational options, on campus and in the community (Frazier, P41). When Seb first began he required constant cueing and prompting in order to complete a job, but as of February, in culinary he could, get his apron and stand behind the counter without prompting, could take the plates off the counter and place them in the bin without cueing, could tie the garbage bag and knock on the door to get back in the building without cueing and could put the salt and pepper on the table without prompting. He had difficulty with vocational tasks except in the area of office practice where staff noted that Seb had had practice in that type of work (P41, see also P38, P39, Frazier).
45. On June 4, 2007, Cardinal Cushing met for a six-month review for Seb (P40). At that time, Seb was working on simple money concepts without assistance (labeling dimes, nickels and quarters on worksheets) and could add similar (but not mixed) coins together and needed assistance regarding which bill to use to pay for items in the community. Staff noted that Seb was reading at approximately a second grade level. Seb still required constant cueing and struggled with job completion at his job sites but had made some progress in areas that were very repetitive (P38, P40). Cardinal Cushing noted that Seb had trouble processing verbal information and that, at times, Seb would snap at his supervisor because staff asked Seb to repeat directions several times (P38, P40). He continued to need a supervisor in close proximity to keep him focused and productive (P40, see also Woodland).
Cardinal Cushing also noted that Seb was comfortable in the community and had made progress in the ADL skills addressed in the residence (P40). As of February 5, 2007 Cardinal Cushing staff noted that during a community experience, Seb was able to cross the street and look both ways without cues (P38 p. 26). However, the June 2007 review report noted that Seb’s safety skills did not allow for him to cross streets and parking lots without staff supervision and Cardinal Cushing’s campus mobility checklist indicated that as of March 2008, Seb still required verbal cues in many of the steps of crossing the street (P40, P44, see Mother, Nixon, Stevens). As of June 2007, Cardinal Cushing staff noted that in the residence Seb was very flexible and was able to handle changes in the schedule and handled disappointment well and that he had made progress in his social skills (P40). Seb had also made progress brushing his teeth (partly attributed by the removing of his braces) but still struggled putting on the correct amount of toothpaste and shaving cream for shaving. Seb was very flexible and able to handle changes in schedule. The target areas and goals were generally listed (i.e. “community safety skills”, “development of speech and language and social communication skills”) along with identified needs/new goals “self advocacy and learning how to say no when appropriate, initiation skills”, but there were no specific goals and objectives. The service plan noted that Seb attended a speech class in his residence on Tuesday evenings and like most of the other students, attended a weekly Brain Gym (motor planning) with the OT and had made progress crossing the midline and with motor planning coordination (P42, Smith). However, other than provision of weighted silverware and a slant board, there were no individualized related services or other delivery recommendations ( see S40).
46. In approximately the fall of 2007, Seb’s time at vocational on-campus sites increased, working Monday and Thursday in the Greenhouse, Wednesday at the Culinary program on campus and Friday in the Bakery (Frazier, P39).
Seb’s greenhouse teacher noted that Seb was compliant and able to work with a variety of supervisors but that he required many cues to complete a task, did not take initiative and waited for staff to cue him regarding what needed to be done next. The supervisor noted that cueing did not quicken Seb’s pace. Similarly, the bakery teacher noted that while Seb was cooperative and willing to do the necessary work, he lacked the insight to perform routine tasks without cues from staff and peers. Seb’s culinary teacher also noted that Seb got along well with both staff and peers and worked best when given repetitive one-step directions. The Culinary teacher, however, was concerned about Seb’s safety because Seb was cooperative to a fault, not saying “no” even if asked to do something that he did not want to do (P39, see also P40, P43).48 Although Seb did have an exploratory job experience at a Toyota dealership this experience was limited to cleaning in the office. Seb has not been to any other vehicle or mechanical job sites because they are not available at Cardinal Cushing (Frazier).
47. KP’s out-of-district coordinator Barbara Woodland observed Se on November 29, 2007 while he was working at his Greenhouse placement on campus (Woodland). Sebastian was sitting with five to six students and two to three staff members. The speech/language pathologist (SLP) was conducting a vocabulary lesson about items that make noise. Seb was compliant and was able to respond to concrete questions but was off-topic on a couple of occasions and needed some minimal verbal redirection when he and his peers would get silly. Ms. Woodland also observed Seb working with another student and a staff member making bows for the wreaths that they were selling at the greenery. This activity required Seb to take a piece of wire and tie it around an already-made bow. Seb was not engaged in the activity right away, required quite a bit of physical assistance with the activity despite several verbal prompts and visual modeling by the staff person, and would stop his work whenever the staff member would turn his attention to the other student. This vocational activity lasted about twenty minutes. This was a typical day at the Greenhouse; Id.
48. The TEAM reconvened on December 4, 2007 for Seb’s annual review (Lapointe, White, Woodland, Mother, Nixon, Sherman, S103). At that time, the TEAM reviewed the Part B educational assessment that it had requested and received from Cardinal Cushing the day prior. Ms. Alper-Minor from Cardinal Cushing told the rest of the TEAM what Seb was currently doing at Cardinal Cushing (Sherman, S102). The school-based members of the TEAM found that many of the skills were ones that BICO had not only worked on but ones that they thought that Seb had already obtained. They were concerned that Seb was only going to work sites on campus, was no longer accessing public transportation and not getting integrated into the community (Sherman, see also Lapointe). The TEAM developed goals and objectives that were aligned with what BICO would have been working on had Seb stayed in the Life Skills program and participated in off-site work experiences with public transportation (Sherman). As such, the proposed IEP contained goals and objectives in independent living skills including transportation, laundry, shopping, money management, vocational skills, social pragmatic skills, functional reading, fine motor skills and transition planning at the BICO Life Roles Transition program until Seb’s 22 nd birthday (May 1, 2008). The IEP designated two 45 minute sessions of adaptive physical education, one hour per week each in OT, social communication and social emotional services, 5.3 hours per week of functional academics and 6.2 hours per week in independent living skills (S103). The TEAM also continued to offer a possible after school program at the Y, possibly in conjunction with HMEA, an OT consult with Parents regarding personal care issues on a regularly scheduled basis, collaborative, clinical consultative services, exploration of the MBTA RIDE for transportation, and implementation of the MAPS transition program if the IEP were accepted (Woodland, S103, Mother, Nixon). However, BICO or KP did not know that Cardinal Cushing had conducted an initial OT assessment in February 2007, a vocational assessment in February 2007, issued a progress report in November 2007, an initial cognitive-communication evaluation in February and March 2007, or follow up OT assessment and PT assessments in November 2007 (Mother, Woodland, Lapointe, see P34, P35, P36, P42, see also Smith). Therefore, there was no discussion of the information contained in these reports.49 The school-based members of the TEAM felt that the meeting was fairly quiet because no one seemed to have any questions or concerns (Woodland).
49. KP sent the IEP to Parent on or about January 4, 2008. Mother and Seb rejected the IEP on January 30, 2008 because Mother did not feel that the BICO program was appropriate since it contained goals and objectives that Seb was not capable of doing, such as alphabetizing and accessing needed information from a phone book or computer. Mother also did not believe that KP or BICO would follow through with the after school Y program, use the work checklists or find job shadows for Seb (Mother). However, the primary reason that the IEP was rejected was because it did not offer a continuation of the Cardinal Cushing residential program that Parents felt that Seb required in order maintaining his current skills so that he could successfully transition into supported employment and supported independent living skills (Mother, see also S103).
50. The Department of Mental Retardation (DMR) began the process to determine if Seb would be eligible for adult services on April 13, 2004. Seb was found eligible for adult services in August 2004 (White). At that time, DMR assigned Nancy White to be his transition coordinator (White). Ms. White has attended every TEAM meeting since that time to discuss transition planning for Seb so that he would have an appropriate transition upon his twenty-second birthday in May 2008 (White).
Mother met with the DMR caseworker Nancy White and her supervisor, Mary Barry, on February 26, 2008, to go over transition planning options for Seb when he reached his 22 nd birthday (White, Mother). DMR told Mother that it was recommending that Seb receive vocational services for supported employment through Riverside Community Care and that it had also identified a specialized home care family upon Seb’s 22 nd birthday. Mother told Ms. White and Ms. Barry that it was impossible for Seb to come home because Parents couldn’t handle him at home and that they did not have the structure he needed (Mother, White). Mother told DMR staff that Seb could not go home. Mother requested that DMR fund Seb’s continued placement at Cardinal Cushing. DMR told Mother that Seb was not prioritized for residential funding. Parents did not think that a specialized home care situation would be a good fit for Seb because they thought that he would become introverted and get depressed if he was living in a home situation that was not his own home (Mother). Mother did not share this with DMR or the TEAM (Mother). Mother does not remember much of the conversation about the specifics of the supportive vocational options because she was upset that DMR would not fund Cardinal Cushing (Mother).
51. KP conducted Seb’s three-year reevaluation in February and March 2008 (Woodland, see S104-S107). As part of the psychoeducational evaluation, KP’s school psychologist (Denise Foley) reviewed records from Cardinal Cushing, administered several educational tests including the Wechsler Adult Intelligence Scale (WAIS-III), interviewed several Cardinal Cushing staff and observed Seb in both his classroom and vocational settings (S106, see S107). She learned from Seb’s special education teacher at Cardinal Cushing (Cynthia Erbe) that Seb remained easily distracted and had difficulty focusing without staff cueing and that he still required supervision for personal safety because he has not yet mastered how to cross the street. Ms. Erbe also was concerned that Seb would, in the “real world” require self-advocacy training because his agreeableness might make him vulnerable to victimization (S106). Ms. Foley also reviewed a transition planning inventory that Ms. Erbe had prepared for Seb; however no conclusions could be formed because the information appeared to be summarative and not used to monitor progress (S106, see S107). Similarly, a rating sheet regarding Seb’s work in the greenhouse could not be used to measure progress because it was unclear who filled it out, how often it was filled out, how often the ratings were completed and the criteria for the rating (S106, see S107, P39). Similarly, Seb’s nursing home laundry room supervisor reported that there was no daily recording of students’ activities (S103, see also P39).50 Ms. Foley also observed Seb at the Greenhouse. Here Seb was involved in a task where he had to separate light blue tiles from blue gray, dark blue, and white tiles. The supervisor’s back was turned to Seb. Seb could not independently locate a light blue tile, often confusing it a blue gray tile. During her observation of Seb at his job at the Cardinal Cushing dining room. Ms. Foley observed that the dining room, staff did not use a checklist or reference guide but that Seb was cued and was mostly successfully filling the ice machine or a bowl of fruit (S106). However, when Seb made a mistake (i.e. using the wrong cart) he was not corrected until twenty minutes later and was not corrected regarding an error he made in filling a fruit bowl.
Educational testing showed that Seb was functioning at a 1 st or 2 nd grade level academically and on the WAIS, he achieved a full-scale score of 52, placing him in the moderate MR range (Sherman, S106). The OT (Barbara Shapanus) found that Seb had decreased motor planning, requiring assistance to sequence the motor movements of moderately-complex tasks (S204). She also found that Seb displayed visual tracking deficits in his right eye and significant weaknesses in visual motor integration and significant weaknesses in visual perceptual skills (S104). Seb also displayed decreased handwriting skills that were however, functional for writing short sentences (S104, see also P38). Like other evaluators, Ms. Shapanus found that Seb benefited from step-by-step instructions, repeated demonstrations, practice and increased time, hands-on tasks and a quieter atmosphere to reduce distraction (S104). Ms. Shapanus recommended consultation but did not recommend direct services because when given increased time Seb was able to complete all functional physical and self-care tasks independently across multiple school settings (S104). In the speech/language testing, Seb scored at the 1 st percentile in all receptive and expressive language subtests and displayed deficits in social language tasks that were not concrete (S105).
52. On April 15, 2008, the TEAM reconvened to review Seb’s evaluations and to discuss transition planning (Mother, Nixon, Stevens, Woodland, Lapointe, White, Sherman). The school psychologist, Denise Foley, discussed her testing which showed that Seb remained at the moderate MR range. DMR informed the rest of the TEAM about its recommendation for transition planning for Seb which would give him a choice of two vocational worksites through Charles River Industries or through Justice Resource Inc., and he could reside in a specialized home care setting through Riverside Community Care (S110, Lapointe, Woodland, Mother, Nixon, Stevens, Sherman). The TEAM also discussed the evaluations and heard from Ms. Alper-Miner who informed the rest of the TEAM about Seb’s progress from January-March of 2008. However, no progress reports were shared with the TEAM (Woodland). The proposed IEP expanded Seb’s transition goals and objectives but continued to recommend placement at BICO until Seb’s 22 nd birthday (Mother, Woodland, see S110, compare S103/S110). Marsha Stevens, hired in January 2008 as an educational consultant, participated in this TEAM meeting. It was a quiet meeting where no objections were voiced. Ms. Stevens did not voice an objection o because she believed that the school district did not want her there and she was intimidated to speak (Stevens, but see Stevens).51
53. Prior to the TEAM meeting, Ms. Stevens had contacted the school district to set up an observation of Seb’s proposed program at the Like Skills program (Stevens, Woodland). At the TEAM meeting, Ms. Stevens was given a schedule for her observation of Seb’s proposed program at BICO for the next day. Both KP and BICO felt that producing a schedule was challenging because Seb had not been at the Life Skills program for over a year and a half and would at that point be out of the classroom most of the time attending work off-site (Woodland, see also Fiske, Stevens). Therefore BICO’s program director, Jean Fiske, created a schedule that might be something that Seb would be doing at the time and told Ms. Stevens that if Seb attended the program he might be at a job site that day (Woodland, Stevens). Because the IEP was rejected the proposed program that would be observed would be the last agreed upon IEP of June 2005 because that was the only IEP that the school could implement (Sherman, Woodland, Fiske, see also Stevens, Fiske).
54. Dr. Sherman, Ms. Fiske and Ms. Stevens observed the BICO program on April 16, 2008. The observation was scheduled for 8:30 to noon. Ms. Stevens was approximately 45 minutes late and missed the social skills/voc prep class. If Ms. Stevens had seen the class, she would have seen a discussion with Mnemonics, incorporating the ABC rules with pictures involving a lesson using visual and verbal cues concerning students who were going out into the workplace. The class discussed basic manners such as not talking back in the workplace; asking somebody who is bothering you to please stop; watching the volume of your voice; being aware of other peoples’ needs; and body language (Sherman). It was clear to Dr. Sherman that it was not the first time this lesson was given to the class. Dr. Sherman also observed a lot of discussion about how to prepare for an interview, including how to dress, laying out the clothes the night before, going to bed early the night before and having breakfast (Sherman).
Dr. Sherman, Ms. Fiske and Ms. Stevens observed a class on safety. It was clear to Dr. Sherman, Ms. Fiske and Ms. Stevens that it had been previewed many times before (Sherman, Stevens). The lesson contained a picture of a stranger on a stick. The class talked about a stranger being someone you don’t know. The class engaged in role playing and brainstorming involving information to give out if you were lost, who to give the information to, and scenarios of what would happen if a stranger asked someone to ride in their car. Dr. Sherman and Ms. Fiske thought that the lesson was appropriate because it provided reinforcement and previewing of skills of what to say in the situation and allowed repetitive practice in the safety of the classroom, so that it could be applied in the real-life setting (Sherman). Ms. Stevens however believed that a picture of a stranger on a stick would be confusing for Seb, and that the information about what to do and who to go to if a stranger approached was confusing and vague (Stevens).
The participants also observed a discussion about nutrition and food choices about what was healthy with a menu plan where the students worked from a planned menu. The class then transitioned into a math lesson with a discussion of how much ground beef and rolls needed to make hamburgers and the price estimate to know how much money one would need, coordinated with pictures of food and the color of each food. Dr. Sherman and Ms. Fiske felt that they observed functional connections between counting and real life situations with money (Sherman). Ms. Stevens, however, felt that the lesson would have been confusing for Seb because it classified healthy foods as green, unhealthy foods as red and foods in between as yellow and placed a hamburger as a yellow food when the actual color of a hamburger was red (Stevens).52 Dr. Sherman, Ms. Fiske and Ms. Stevens observed the peers who might have been grouped with Seb if he had remained in the program. Dr. Sherman believed that the peers appeared to be appropriate ones because most had mild to moderate retardation, with Seb being neither the highest or the lowest functioning child in that group (Sherman). However Ms. Stevens believed that the peers were not appropriate because some were nonverbal and used assistive technology to speak and some had behavioral plans as part of their IEP (Stevens).
55 . Parents filed a request for hearing on April 25, 2008 requesting retroactive reimbursement for Seb’s expenses at and related to his placement at Cardinal Cushing, continued placement of Seb at Cardinal Cushing until he turned twenty-two (May 1, 2008) and for compensatory services past age twenty-two as well as damages for substantive and procedural violations (see P1).
56. Mother rejected the IEP on May 9, 2008 (S110, Mother, Woodland).
57. The School District filed a response on May 15, 200853 alleging that its program was both substantively and procedurally appropriate and, in the alternative, that claims should be reduced or denied because neither the notice for unilateral placement nor the hearing request was timely filed; Parents had not allowed the School District to complete evaluations before placement, and compensatory claims used for the purpose of obtaining tuition reimbursement was not appropriate or legally permissible in the 1 st Circuit ( see P2).
58. On May 23, 2008 Mother received a letter from Mary Barry, the Area Director of the DMR Newton/South Norfolk area office informing her that DMR had offered Seb vocational services through Riverside Community Care and a specialized home care setting and that these options may not be available in the future (S111, White). Parents have not followed up with DMR because they would like him to continue at Cardinal Cushing until he can no longer remain there (Mother, see also White). Once Seb can no longer be at Cardinal Cushing, Parents want Seb to live in a supported living environment such as a group home that has structure that can provide or assist him in appropriate leisure and social activities (Mother, see also Stevens, Nixon, Frazier). Seb remains at Cardinal Cushing but must leave when he is twenty-three because Cardinal Cushing does not provide adult services (Frazier). Cardinal Cushing has not provided transitional planning for Seb (Frazier). Parents have not been in contact with DMR since February 2008 (White, Mother, see S111).
59. On June 18, 2008, the TEAM reconvened for a final time to discuss the Assistive Technology evaluation (S112).54 Easter Seals did not recommend assistive technology for Sebastian (Mother, Woodland, see S112). The Parties also had a resolution meeting following the TEAM meeting. The matter did not resolve; Id.
60. A hearing on this matter began on September 18, 2008. At hearing, Mother and her educational advocate and educational consultant all took the position that Seb had made progress while he has been at Cardinal Cushing. Parents and Grandmother have noticed that Seb is much calmer when he comes home and has better tooth brushing, shaving and eating skills and can better relate to family members; however, he still is challenging when he is bored or frustrated (Mother, Grandmother). Parents’ Advocate, Ms. Nixon, noted that when Seb first attended Cardinal Cushing in January 2007 he was impulsive and not displaying safe behavior, asking the Advocate to follow a yellow car on the road whereas in October 2007, when Ms. Nixon visited Seb at Cardinal Cushing, she saw a room that was neat, saw a chore chart on the wall of the residence and observed that Seb was able to go out to dinner and have simple appropriate conversations and eat using appropriate-sized mouthfuls (Nixon).
61. Ms. Stevens also testified that Seb has made progress at Cardinal Cushing (Stevens). When Ms. Stevens visited Seb at Cardinal Cushing on May 14, 2008 and June 2, 2008, she found that he transferred skills across settings, observing that Seb in a class discussion regarding the Celtics at a reading lesson was later able to talk about the Celtics during a work activity (Stevens). Ms. Stevens also observed appropriate conversation out to dinner and relatively good eating skills, and believed that he displayed better safety awareness when crossing the street (Stevens). Cardinal Cushing also noted that Seb has made slow but steady progress. As an example Cardinal Cushing noted that Seb was now able to buy his lunch meat at a deli counter in the grocery store and make a sandwich for the day he works off-campus (Frazier, Smith, Stevens).
62. However, BICO believes that Sebastian has not followed through with meeting some of Sebastian’s needs. For example, although the HMEA evaluation recommended that Seb would be best suited for a mechanical job, Cardinal Cushing has not done that because mechanical or automotive experiences are not available. In addition, although HMEA has recommended that Seb be taught a self monitoring system to use at each work experience, Cardinal Cushing has not implemented this because Seb has a difficult time with self-monitoring (Woodland, Frazier). Cardinal Cushing has also not offered any regular recreational activities off campus other than Special Olympics (Woodland).
63. Both KP and BICO also believe that Cardinal Cushing is too restrictive for Seb and that he has regressed there because Seb has less off-site vocational experiences, requires frequent cueing and no longer takes public transportation. The School District believes that if Seb could have been allowed to stay at BICO, and the proposed IEP implemented that Seb would have been more independent, and could have been employed at Mariah’s upon his completion of the BICO program (Lapointe). Parents still believe that Seb could be employed at Mariah’s because he goes there on vacation periods and though he is no longer paid, they do buy him lunch (Mother). BICO believes that Seb is not working there but is just “hanging out”. Mariah’s is not monitored by Cardinal Cushing ( see Frazier).
64. Parents would like Seb to stay there at Cardinal Cushing because he goes grocery shopping every week, goes off campus to participate in community experiences such as the mall and when he goes to a job site, someone transports him from Cardinal Cushing and stays with him (Mother , see also Frazier).55 However, this can be done in if Seb were in a day program (Frazier). Cardinal Cushing recommends residential programs for those students that have protective issues or those who may have out of control behavioral concerns that need addressing (Frazier). Sebastian has not displayed any out-of-control behavior at Cardinal Cushing (Frazier). Seb does, however, need constant supervision at his work sites at Cardinal Cushing because he takes a very long period of time to learn various tasks, needs cueing to remind him when materials are running low and doesn’t have the ability to know whether the task is done correctly. Supervisors also need to refocus Seb when he does tasks his own way or when the environment is noisy (Frazier).
65. The School District asserts that the BICO Life Roles Transition Program should be found appropriate for Sebastian because it provided Seb with the functional academics, social skills development and vocational opportunities he required and has he stayed in the program would have made a good transition to adult services including vocational, living and recreational opportunities in a community close to his family (Woodland).
FINDINGS AND CONCLUSIONS
At issue is whether the programs and services that the King Phillip Regional School District (KP) offered to Sebastian (Seb) through its IEPs in the 2006-2007 and the 2007-2008 school year provided Seb with a free appropriate public education (FAPE) in the least restrictive environment (LRE) and if not are Parents entitled to reimbursement and/or compensatory education for a residential program beyond his 22 nd birthday at the Cardinal Cushing School at Hanover (Cardinal Cushing) because KP denied Seb a FAPE either in the form of substantively and/or procedurally inappropriate IEPs. A subsidiary issue is whether, any such reimbursement or compensatory services claim should be reduced or denied because of procedural errors from the Parents.
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; 34 C.F.R. 300.300(3)(ii); 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).
The law also requires that the school district implement all accepted elements of the IEP without delay once a parent accepts the IEP; see 603 CMR 28.05(7)(b). The First Circuit has indicated that noncompliance that affects the provision of an educational benefit amounts to a denial of FAPE. Roland M. v. Concord School Committee , 910 F.2d 983, 994 (1 st Cir. 1990), see also W.G. v. Board of Trustees of Target Range School District , 960 F.2d 1479(9th Cir. 1992), Green County Board of Education , 102 LRP 39656 (Alabama Department of Education 2002), see also Houston Independent School District v. Bobby R. , 200 F.3d 341,349 (5th Cir. 2000), Sioux City Community School District , 103 LRP 37969 (Iowa 2003) (failing to implement a substantial or significant provision of an IEP constitutes a denial of a free and appropriate public education).
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 of accommodations and specialized services; see 20 U.S.C. 1412 (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 (18). 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 expectations, the individual educational potential of the child and the learning standards set forth in the Massachusetts curriculum frameworks and the curriculum of the district”; Id.
Parents may be reimbursed for the costs of providing special education and related services for their eligible children 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 meets the federal FAPE standard. 34 CFR 300.403(c), 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).
Here, Parents ask for a finding that Sebastian requires an IEP that designates a residential program. An IEP designating a residential program is appropriate only if the severity of the student’s special needs is such that he can not 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, 416 (1st Cir. 1985).
Finally, FAPE also requires that School District’s comply with the procedural requirements of the IDEA. Pursuant to the IDEA Parents would be entitled to a remedy for procedural violations if that procedural violation either impeded his right to a free appropriate public education or significantly impeded the parents opportunity to participate in the decision making process regarding the provision of a free appropriate public education to Seb or if the procedural violation caused a deprivation of educational benefits; ( see 20 USC sect. 1415(f)(3)(E)(2)(ii)); see also Roland M. v Concord Public Schools , 910 F. 2d at 994 (1 st Cir. 1990) ( 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.”); see also Murphy v Timberlane Regional Sch. Dist. , 22 F. 3d 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) ”.
Although the IDEA requires many more procedural requirements for School Districts, the IDEA also mandates some basic procedural requirements for Parents in order for them to receive full or partial relief. For example, the IDEA requires that a party must present a complaint within two years of the date that they knew or should have known about the alleged action that forms the basis of the complaint; 20 USC 1415 (b)(6)(B); 34 C.F.R. 300.507(a) (2) 54. For matters of retroactive reimbursement the IDEA also requires that Parents inform the School District of their intent to unilaterally place their child at either at the most recent TEAM meeting that they attended prior to removal or give the school district written notice of their intent to remove the child to a unilateral placement within ten business days (including any holidays that occur on a business day) prior to removal; 20 USC 1412 (a)(10)(C)(iii); 34 CFR 300.14856 . Also because compensatory education and reimbursement are equitable remedies any such remedy may be reduced or denied if a parent does not act in good faith or agrees or otherwise waives compliance with procedural requirements.57
After careful review of the testimony and documents presented in this matter, this Hearing Officer finds that the IEPs proposed by KP during the 2006-2007 and 2007 and 2008 school year offered Sebastian a free appropriate public education in the least restrictive environment but that BICO did not implement parts of the last accepted IEP and as such Sebastian is entitled to some compensatory education services. However, reimbursement at Cardinal Cushing is not an appropriate remedy.
The evidence is undisputed that Seb requires a program in a substantially separate setting that has small group multi-sensory concrete and repetitive instruction with related services (APE, a pragmatics language group, OT) that employs conversational and interview related scripts that emphasizes functional instruction in activities of daily living (ADL) and independent living skills, including recreational skills, social skills, community experiences and vocational skills and that is taught in a repetitive, concrete, systematic multidisciplinary manner and reinforced throughout all the settings that Seb is in.
The evidence also shows that Seb should be prepared to transition into a vocational experience that has some sort of mechanical or assembly task beginning at least 9-12 months before Seb leaves school; that the goals for the work experience be outlined prior to Seb beginning at a new site, that data be collected by the job coach at least weekly; that the job coach should provide a brief progress report with recommendations for changes; that Seb should be taught a self-monitoring system, and that a job coach continue to have sufficient oversight of Seb’s program with full-time supports provided at the beginning until Seb learns the job and is comfortable interacting with his supervisor and a few co-workers with a planned timetable for fading of the job coach. The evidence further shows that Seb’s transition plan needs to be coordinated with DMR and to provide assistance in locating and participating in regular recreational activities in the community with particular emphasis on peer-group affiliations.
Parents, as the moving party, have the burden of showing by a preponderance of the evidence that IEPs do not offer Sebastian a FAPE in the least restrictive environment; Schaffer v. Weast , 126 S. Ct. 528, 535 (2005). Parents have not met this burden.
The IEPs developed by KP and BICO as well as most of the work samples, progress reports and supporting communication logs as well as the testimony of KP and BICO show that KP and BICO developed an educational program that was tailored to meet Seb’s unique needs and was reasonably calculated to permit Seb to make meaningful progress and thus provided a FAPE to Seb. The evidence shows that the School District at each TEAM meeting added and refined goals and objectives and added services to meet Sebastian’s needs. These services included direct and consultative speech/language services, occupational therapy, social skills training, social skills training, counseling, vocational training, and an opportunity to be integrated into the community and work. The progress reports, work samples, comparison of test scores and credible witnesses from KP and BICO also demonstrate that Seb had made progress and would have made more progress if the School District had been permitted by Parents to implement the additional goals and objectives and services proposed on the rejected IEPs. The evidence shows that Seb has moderate MR, and as such, his progress was slow and required repetition and fading. However, the evidence also shows, by the preponderance of the evidence, that Seb made progress commensurate with his ability.
The evidence also shows that KP and BICO tried to implement appropriate transition planning for Seb and that he would have more fully benefited from this planning if Parents had accepted the IEP and the School District had been allowed to implement it within their educational program. The IDEA requires that an IEP include measurable post-secondary goals based upon age-appropriate transition assessments related to training, education, employment and where appropriate, independent living skills and that transition skills be designed to promote movement from school to appropriate post-school activities; see 20 U.S.C. s. 1414(e)(1)(A)(vii)(I)(ii). For Seb, this includes vocational training, employment opportunities, supported living opportunities and community participation along with coordination with DMR so that Seb can access these services. Examination of the IEP and accompanying documents show that the educational program was appropriately geared to assist Seb to transition from school to post school activities. The testimony is credible that if Seb had remained in the educational program, he probably would have transitioned into a job at Mariah’s or supported vocational services set up by DMR and would also have been able to live in a community residence set up through DMR.
Parents do not feel that the BICO program was appropriate because they do not believe that progress reports were accurate because the April 2006 and the June 2006 progress reports indicated that Seb could do things at school such as counting money and making change, use the bank and do his laundry, and he could not do these things at home. They also do not believe that Seb’s program at BICO was appropriate because Seb had gotten let go from an off-campus job, was not safe because he was not given daily supervision at his work sites or when riding public transportation and as a result of BICO’s actions, Seb was suspended one time from using bus transportation and had missed the bus on one occasion causing his whereabouts to be unknown and Mother to panic because Seb does not have fully developed safety skills.
However, this Hearing Officer finds that neither of these isolated incidents nor the fact that Seb has not independently achieved some skills make the program inappropriate.
Hodding Carter Jr. (a Pulitzer prize winning journalist) has said:
“There are only two lasting bequests we can hope to give our children; One is roots; the other, wings.”
It seems at first glance that these two gifts (roots and wings) are juxtaposed to each other; that one cannot be rooted (or safe) at the same time as having wings (or being independent). However, Parents, and school officials who are responsible for implementing programs that emphasize independent living skills, must do both.
Having wings does not come immediately or automatically. Independent living skills are achieved by giving a child consistent, repetitive teaching and structure, and gradual, structured independence at a level that the child can handle. The balance between roots and wings keeps changing with the child’s developmental needs and as the child (and the parent) learns what the child can handle.
The balance is not an easy one. Too much independence and a child may not be safe; too much safety may thwart a child’s independence and their ability to learn at the level (s) he is capable of. It is an especially hard balance to give to children who are going through an adolescent stage of development and for students like Seb, one who has special medical and cognitive needs and who will need more support and more structure to achieve the amount of independence he is capable of.
It is also not a perfect balance. Students (and parents and teachers) will make mistakes. However, one often learns more from failing than success, and, as long as a plan exists that enables a student to make progress, it is often better to give that student an opportunity to be challenged and at times fail so that (s) he can achieve at the best of his ability.
Examination of the IEPs, progress reports, work samples and testimony of School staff show that the School District was able to achieve this balance. The IEPs that the School District proposed gave Seb an opportunity to do many skills (i.e. banking, laundry, accessing transportation) with support and fading assistance. The progress reports and communication logs show that Seb was able to do tasks with gradual fading and less cueing and in some cases independently. BICO did not put Seb on public transportation alone but provided him with repeated training in the classroom and in the community. The School District began by having staff ride with Seb on the van that had limited passengers, some of whom Seb knew, with a limited amount of drivers who Seb knew. This assistance was faded when Seb was ready with staff shadowing the van to having Seb get on the bus with only a staff member or a work employee at either end. Similarly, when Seb first began his vocational placements, Ms. Lapointe had more frequent contact with the employers and then began to fade her daily onsite supervision only when the employers and Seb were comfortable. While Ms. Lapointe did not make visit on site frequently, she did maintain frequent phone contact, made accommodations when necessary and the employers were able to adequately supervise Seb because Ms. Lapointe was available and the employers called her when they needed her.
Although there were some glitches, the evidence shows that Seb was able to make meaningful progress in these settings and thus received a FAPE. It is noted that Seb was suspended from the Dial a Ride service on one occasion in 2004, he missed the bus back to school on one occasion, and he was let go from his first position. However an appropriate program need not be a perfect program. As long as the student makes meaningful educational progress the FAPE standard is met. Seb and the School District were able to learn why these incidents occurred and the School District was able to make adjustments to the program. Mr. Lehan noted that at the time of his evaluation, Seb was able to get off the bus and check in at Mariah’s and he had successful vocational experiences after being let go from ABC.58
Parents feel that the School District’s IEPs were not appropriate because Seb was engaging in behaviors at home. It is understandable that Parents were challenged in dealing with a young adult who was in the adolescent stage of development and could not independently manage his leisure time. However, the School District’s testimony is credible that if BICO had been able to implement the IEPs, Seb would have been able to make meaningful progress at home. Examination of the documents, including the communication log, as well as the testimony in this matter, show that Parents, although they had the opportunity to do so, did not inform the School District of the specific problems they were having with Seb, and the TEAM, based on the information that it did have, offered a number of goals and objectives (such as tying shoes) and services that would have helped with behaviors at home, including implementation of an after school Y program, the OT consult in the home, the clinical services. However, these services could not be implemented because the IEPs were rejected in full. In addition, Parents did not take advantage of the offer of monthly meetings with the school district or the parent support group or follow through with DMR’s offer of services. Since the IEPs were offered and were reasonably calculated to enable Seb to make progress in his ADL skills, this Hearing Officer cannot hold the School District accountable for any lack of progress because they were not implemented.
In addition, the evidence shows that Seb does not require a residential program in order to learn. Cardinal Cushing’s vocational director admitted in his testimony that Seb does not fit the criteria for a residential program. Mother also admitted that when Seb was given community programming (funded through DMR) while at an educational day program, he made gains in his pragmatic language skills and DMR did not prioritize Seb for residential placement.
Parents also claim that they should be entitled for reimbursement for their costs of a residential program at Cardinal Cushing because the School District committed several procedural violations. Parents would be entitled to a remedy for procedural violations if those procedural violations either impeded his right to a free appropriate public education or significantly impeded the parents opportunity to participate in the decision making process regarding the provision of a free appropriate public education to Seb or if the procedural violation caused a deprivation of educational benefits; see 20 USC sect. 1415(f)(3)(E)(2)(ii).
Parents have asserted that KP has committed several procedural violations. KP disputes whether they occurred. Among these violations are that the School District did not produce Student’s record for nearly six (6) months; the School District asserts that the lag was due to Parents not providing the copying fee. Parents claim that there was delay in conducting an assistive technology evaluation; the School claims that Parents did not make Seb available for the evaluation once he was unilaterally placed at Cardinal Cushing. Parents claim that they were not given notice each and every time that the DMR caseworker was at the meeting; the School District and Parents agree that Parents wanted DMR at the TEAM meetings. Parents claim that the School District did not send the December 2007 IEP until thirty-seven days after the TEAM meeting; the School District claims and the Parents acknowledge that Seb had already been at Cardinal Cushing for eleven months and a timely IEP would not have changed Parents’ decision regarding rejection of the IEP.
The IDEA sets up procedures to aid in the provision of a FAPE for a student (i.e., so students being evaluated in a timely manner, receive an appropriate IEP that is reviewed in a timely manner so that there is not delay when changes need to occur changes). However, a school district is only liable for procedural violations if they deny a student a FAPE, cause a deprivation of educational benefits or deny parents an opportunity to participate in the decision making process. Parents have not claimed, nor does the evidence show, that Seb was denied a FAPE as a result of those procedural violations and the evidence shows that Parents were given (although they did not always take), the opportunity to participate in the decision-making process. Without a denial of harm, any procedural violations, if they did occur, are not outcome determinative.
The evidence does show that the School District did not consistently implement the IEP. Although the work samples show that Seb was given many materials that were cognitively appropriate for him such as vocabulary words connected to the work place and to ADL activities, and money and check writing activities, the evidence shows that there were more than an occasional number of times where Seb was given math activities above his level (calculating sales tax) and vocabulary words and reading material above his grade level. Similarly, while many of the work samples are free of visual clutter and are sized appropriately, there were more than an occasional number of samples that have visual clutter that are sized too small for Seb or placed too close together for Seb to write. There were also some occasions where Seb was not permitted to participate in community experiences such as grocery shopping because it conflicted with his work schedule as well as other community experiences that did not conflict with his work schedule such as banking, because he forgot his paycheck, or laundry, because he forgot his laundry at home and the School District (while it kept Seb safe by not putting him in a position where he had to cross streets) did not appropriately program for this even though they had information from Mother and evaluators that this was a concern. As such, Seb is entitled to compensatory education.
However, tuition reimbursement at Cardinal Cushing is not an appropriate remedy. The evidence shows that while Cardinal Cushing had many good aspects, it was too restrictive a program for Seb. At Cardinal Cushing Seb has only one limited off-site vocational experiences, requires frequent cueing and refocusing and no longer takes public transportation. Seb was not able to perform at the same level as he did at BICO because work opportunities were not geared toward his interests or abilities. Cardinal Cushing has also not provided data collection for this off-site work experience, has ceased its data collection as of April 2008 and does not provide the self-monitoring that Seb needs and perhaps most important has no transition plan for Seb even though he has to leave when he is 23 (less than four months from now).59
Compensatory services are essentially a discretionary remedy designed to make a student whole – that is, to make up for what was lost as a result of not having received the requisite special education services.60 As one federal court has instructed, the decision-maker needs to make “an informed and reasonable exercise of discretion regarding what services [Student] needs to elevate him to the position he would have occupied absent the school district’s failures.”61 This may include future services to make up for what was lost.62
Compensatory education is an equitable remedy. This means it must make sense for Seb. Seb will be twenty-three on May 1, 2009 and has no transition plan because Parents have not contacted DMR and Cardinal Cushing has not developed or participated in any transitional planning.63 Seb needs to transition into employment in an environment suited to his interests and capability involving mechanical or assembly tasks. Once a job is located, Seb needs a job coach who has sufficient oversight over the program, who can help Seb define the goals for the work experience and who can work with him to develop a self-monitoring system. Seb also requires a vision specialist to work with the employer to adapt any of its material so that Seb can be more independent and utilize with less supports from the employer. Consultation must also be given to the employer to deal with Seb’s distractibility and auditory processing deficits. The job coach also needs to initially collect data at least weekly followed by a brief progress report and recommendations for changes, and to coordinate this with the employer. There also needs to be a timetable for fading of the job coach once Seb learns the job and is comfortable with a few co-workers.
Seb also requires coordination with DMR for assistance with locating community and recreational activities with peers, possibly health insurance, government benefits and planning to access related and supplemental services, and a supported living situation.
Therefore, Parents are strongly encouraged to recontact DMR so that they can reassess Seb’s needs, find him an appropriate living situation and supported work environment.64 KP will also contact Mariahs to explore whether it can be an appropriate post secondary vocational experience for Seb. KP will also provide Seb an updated transition planning evaluation. KP will also provide Seb with a current vision evaluation from an independent certified vision specialist, an updated OT and language evaluation and will develop an updated transition plan that will be coordinated with DMR if Parent chooses to contact them regarding benefits for services that may be needed as a result of the evaluations.65
ORDER
The IEPs proposed by KP during the 2006-2007 and 2007-2008 school years provided Seb a FAPE in the least restrictive environment. However, the School District shall provide Parents with compensatory education as a result of incidents of noncompliance with Seb’s IEP in the form of updated evaluations and coordinate with DMR (if Parents choose to contact them) regarding appropriate services so that Seb can transition when he leaves Cardinal Cushing.
By the Hearing Officer,
Joan D. Beron
Date: January 13, 2009
1
Sebastian or Seb are pseudonyms used for confidentiality and classification purposes in publicly available documents. The names of this student’s work sites have also been changed to aide in confidentiality of Student’s identity.
2
The matter required postponement because Parents’ neuropsychologist Anne Marie Lasoski did not fully comply with the School District’s subpoena to produce records by October 24, 2008. Dr. Lasoski testified on November 3, 2008 but the School District Counsel could not effectively cross-examine Dr. Lasoski because she did not provide her notes regarding her observations or her protocols. At the November 3, 2008 hearing date, this Hearing Officer had to add an additional day of hearing so that the School District could effectively cross examine Dr. Lasoski and also Marsha Stevens, who had inadvertently left out one piece of requested information. Dr. Lasoski agreed to provide her protocols to King Phillip’s (KP) psychologist, further agreed that those protocols would be shredded at the BSEA offices after completion of psychologists’ testimony and agreed to provide a copy of her notes no later than November 5, 2008. The Hearing Officer issued an order with the agreement but extended the time for compliance to November 6, 2008. Ms. Stevens did present the requested documents on November 10, 2008. However on November 13, 2008, KP filed a motion to strike Dr. Lasoski’s testimony because she had still not provided the requested material and had on that day informed KP’s Counsel that she would not produce the material until November 18, 2008 ( see KP’s motion to strike, Exhibit 3). Dr. Lasoski also emailed KP’s former psychologist to obtain information that was not contained in KP’s subpoena request to her ( see KP’s motion to strike). Because Dr. Lasoski did, on or about November 15, 2008, send KP the subpeoned materials, her testimony was allowed. However, it is noted that her noncompliance caused a delay in the proceedings that prejudiced both Parties.
3
The BSEA received the transcript for the last day of hearing on December 24, 2008. The stenographer asserts that she sent the transcript to the Parties on or about the same day as the BSEA.
4
Closing arguments were originally due on January 5, 2009. On January 5, 2009, the BSEA received a joint request to extend the date of the closing arguments until January 7, 2009. The date for closing arguments was extended until January 7, 2009. On January 7, 2009 the School District requested a one-day extension because of a computer malfunction. The motion to extend was not objected to and was allowed.
5
On March 27, 2006 the Norfolk County Probate and Family Court appointed Parents Sebastian’s guardians by of reason of mental retardation. Seb remains responsible for his property ( see P50).
6
The Hearing Officer would like to thank Ms. Ginisi for her outstanding service despite being [very] under the weather on more than one occasion.
7
Although it appears that the School District had approximately 100 more exhibits, Parent’s exhibits were equal in size and many exhibits contained multiple pages and subparts; ( see e.g. P14 p. 1-206, P16 p. 1-179, P38 p. 1-136, P39 p.1-82, P49 A-D.
8
See Matthew J. v. Mass. Dept. of Education , 989 F. Supp. at 387, 27 IDELR 339 at 344 (D.Ma. 1998).
9
Seb has also gone home on some weekends (Mother).
10
The related services were OT, speech and language services, adaptive physical education and adjustment counseling (S1-15, S22).
11
Seb began this program as a diagnostic placement.
12
These experiences included talking to a vocational counselor, and speaking to representatives from a nursing home, a business and a sports facility (Lapointe, see S80).
13
It is not clear whether all skills were not worked on each day or whether parts of the sheets were not filled out; ( see P14).
14
One report was not sent out in 2005 because the progress report came out at the same time as Seb’s IEP which listed Seb’s current performance level (Mother). Mother asserts that this is a procedural violation that has denied Seb a FAPE. Procedural violations will be addressed later in this decision.
15
The School based vision specialist felt that Seb’s deficits with hand-eye coordination, and visual perceptual and visual motor deficits were more related to processing delays rather than visual issues and recommended accommodations for more processing time, verbal and physical cues, reducing the amount of text and visual clutter, a slant board to reduce glare and use of a reading guide to help highlight one sentence at a time (S48). However, Seb’s July 2002 assessment on the Developmental Test of Visual-Motor Integration showed that Seb had very low visual functioning with percentile scores below the 1 st percentile, and no further testing was done since that time to show differing results ( see S34, compare S34, S48).
16
The name of the pizza shop and the names of Seb’s other community based vocational sites have been changed because the true names may lead to the identity of the student.
17
The goal of a job shadow is to provide students a one to three hour staff- supervised opportunity to observe many aspects of a job that they may be interested in as identified through an interest inventory. After the job shadow, the student and vocational specialist met to discuss the experience (S85, Lapointe).
18
For example on February 17, 2006 Seb wrote a script with verbal prompts and a speakerphone that said the following: [BUS TRANSPORTATION name and phone number). This is [Sebastian ___]. I am calling to cancel my transportation to [______] (work site] on Tuesday February 21 st and Thursday 23 rd to [___] (work site).
19
Being let go is a more common occurrence with the MR population ( see Lasoski, Stevens, Lapointe). However, it is not exclusive to the MR community. Those that have experienced being fired or let go include, Michael Bloomberg, Muhammad Ali, Billie Jean King, Jessie Ventura, Robert Redford, Walt Disney, Albert Einstein and Hodding Carter Jr. (a Pulitzer prize civil rights journalist).
20
For example, in regards to transportation, the IEP and progress reports relating to the IEP indicate “Seb will independently call [the bus transportation company] scheduling transportation to work given fading cues to begin ” (emphasis added) (S49, S49, S51, S53).
21
Similarly, Seb often required prompting or assistance including parental reminders to bring in his laundry and laundry was damp when it came home (Mother). Prompting is an accepted accommodation in Sebs IEP (Mother, see S49). At times, Seb also did not have his lunch money and a parental reminder needed to be sent home, and there were times when Seb was given more money than needed and he did not come home with any change (Mother, Lapointe, P14).
22
The name of the program changed from the Work Lab II program to the Transition Life Skills program in 2005 because the name was a more accurate reflection of the transitional goals of the program (Lapointe).
23
The name of the auto body has been changed to aid in confidentiality.
24
For example one of the brothers also contacted Ms. Lapointe to tell her that at times he was not sure that Sebastian understood a direction. Ms. Lapointe told the staff to have Seb repeat back the directions to ensure that he understood. Ms. Lapointe also made an unscheduled visit after the office manager told her during one of her check-in phone calls that Seb popped bags a lot at lunch (Lapointe). However Seb was allowed to keep popping bags in the workplace, but not other places, because the Mariah brothers did not mind (Lapointe). Ms. Lapointe did not believe that Seb could understand this inconsistency but did not want to contradict the brothers and did not later address this with Mariah’s (Lapointe).
25
Parents’ Counsel requested protocols during discovery of this matter. However, these could not be produced because pursuant to the standard practice of the school, testing records were destroyed after their use. Although this does not constitute bad faith this speech/language evaluation will be given little weight and will not be considered in drawing a conclusion because Parents were not able to cross-examine or provide rebuttal evidence regarding the report. However duplicative material in other evaluations as well as later speech/language evaluations can be used.
26
BICO’s ESY progress reports are more general and unlike school year progress reports do not relate to the goals and objectives in the IEP ( compare SS43 and S63 with S54, S55).
27
SNARC is an acronym for South Norfolk County Association for Retarded Citizens. SNARC is a nonprofit program funded through the Department of Mental Retardation (DMR) where Parents have received services and funding (Mother, White).
28
Seb was also piling up food on his plate and had a hard time using his knife to cut food, so Mother would do it for him. Seb would also not clean up after himself (Mother). The daily communication logs do not indicate that Mother relayed this information to BICO ( see P14 p. 1-206, see also Fiske, Lapointe).
29
Ms. Lapointe (the vocational specialist) was not at the January 20, 2006 meeting because she had unexpected surgery. There was no objection to going forward with the TEAM meeting (Mother, Nixon)
30
KP had made a 688 referral in March 2004 (White, Mother, Woodland).
31
The Advocate (Suzanne Nixon) indicated that she and Mother did not agree with the goals and objectives and privately talked to the Special Education Director (Audrey Lacher) who indicated that she was upset with Mother (Nixon). Ms. Lacher testified that she has never had a private conversation with Ms. Nixon and has never been angry at Mother about anything she has done (Lacher).
32
Mother wanted to finish the TEAM on that day because she needed to take time from work to attend the TEAM meeting (S72).
33
Making Action Plans (MAPS) is a planning process for transition directed by the student and family and facilitated by the team members. The MAPS process consists of taking a history, ascertaining what the student would like to do, barriers to achieving goals, information regarding the strengths of the student and prioritizing the information and creating a list of needs for the student for transition development (examples may include further vocational assessment, job exploration in a specific area, additional community support services) (Lapointe, Fiske, S101).
34
The Consensual Circle of Friends program is a program that addresses safety where safe people would be identified, then expanded. The program also provided repeated practice and discussion regarding safety issues around strangers, including town meeting, role-play and recreating situations within the school (Fiske, see also Nixon).
35
The last progress report issued by BICO appears to be based on goals and objectives from the rejected IEP; ( see S100). KP and BICO felt that they were in an ethical bind because Seb’s goals and objectives were no longer appropriate and that they would be denying him a FAPE to keep implementing them so they began to try to implement the goals and objectives that they felt were appropriate for Seb (Sherman).
36
The Mariah brothers, however, were very satisfied with Seb’s use of the checklist and his work. In a March 3, 2006 letter of recommendation, they noted that Seb …”, By watching us and working with us, …has learned to anticipate the next step in the process. Seb has helped us assemble vehicles and wash them when they are done. He takes his job very serious (sic) and is able to help us in our final quality control checklist…(S85).
37
The April and June 2006 progress reports indicated that Seb would achieve these goals with decreasing levels of support or fading cues, staff prompting or other assistance and that Seb had acquired those specific goals and required new goals and benchmarks ( see P11p11-19, Lapointe). The last accepted IEP (and as such the progress reports corresponding to the last accepted IEP) do not have a specific goal regarding laundry.
38
The daily communication log indicates that Seb had occasions where he forgot to bring his laundry and that Seb required prompting and assistance to complete his laundry. Mother did not relay any concerns regarding laundry in the Parents’ Comments section of the daily communication logs ( see P14 p. 1-206, see also Mother, Fiske, Lapointe). The log also indicates that there were occasions where Seb forgot his paycheck and at times required prompts to complete his banking and that on two occasions Seb did not go to the bank because he forgot his check. Mother did inform BICO that Seb should be able to take out money from the bank when he forgot his paycheck but did not indicate that Seb had trouble with his banking in class or homework or informed BICO of any other issues regarding banking ( see P14 p. 1-206, Mother, Lapointe, Fiske).
39
Mother told Mr. Lehan that when Seb was younger, he had physical outbursts and property destruction but that his impulsivity had improved in the last couple of years (Mother, see S79/P25).
40
The employers at Sisters House of Pizza, Double Con and Mariah’s were all pleased with Seb’s work and noted progress (P25/S79). Double Con reported that when he first began, Seb would become distracted easily and required several prompts to initiate a job and maintain attention to the task but could at the time of the observation begin to work immediately at the task. Mariah’s reported that Seb had blossomed during the last six months on the job and with assistance, was able to use the Mariah’s checklist to help the mechanic complete car checkups and required less monitoring and supervision once he became familiar with the routine Id . Similarly the owners at Sisters House of Pizza indicated that while Seb was initially very slow, he was able to independently complete the task of folding pizza boxes now that he was familiar with the routine. In all three positions, Seb appropriately engaged in conversation with the staff and seemed to enjoy being with all of them (S79/P25).
41
In 1999 Dr. Lasoski administered the Wechsler Intelligence Scale for Children III. The Adult scale was administered in this session because Seb was nineteen years old ( see P25/S90).
42
Dr. Lasoski also administered language testing. These results showed that Seb was at a four-to-five year old level in vocabulary and a 1 st to second grade level in language sequencing. Achievement tests showed that Seb had skills at a first-to-second grade level. Seb showed language recall and processing deficits during several tests ( see P27/S90).
43
Dr. Lasoski also observed the Cardinal Cushing program while he was there and found that program appropriate (Lasoski).
44
If she had, Dr. Lasoski would have learned that Seb also received appropriate functional vocabulary words and that while incidents regarding burping occasionally occurred, Seb was generally well behaved and that these issues were addressed in Seb’s social pragmatics class and at town meeting (Fiske).
45
Work samples show that Seb was receiving functional instruction in food preparation, telling time, functional vocabulary and hygiene at an appropriate academic level ( see S83, P19 Sherman, P21). However, some of these same work samples had a lot of visual information on them in small font that may have been visually confusing for Seb and some of the work contained vocabulary above Seb’s academic level ( see Smith, see P16, but see P16 (most materials were appropriately sized)). The home communication log during this time period, like former entries in the log, showed that Seb was doing functional academics and life skills (i.e. check writing) that were coordinated with OT and social communication. However, there was no homework or requests from either the school or the home for home school coordination ( see S115, S86, S87, S88 Mother).
46
Neither Mother nor Grandmother was sure when Seb hit his uncle but could ascertain that it occurred sometime between 2002 and November 2006 (Mother, Grandmother).
47
Similarly the Cardinal Cushing OT indicated that she was aware that Seb was working with the PT in street crossing and working with the speech therapist but did not know what he was working on because that was not her field (Smith).
48
There does not appear to be an assessment or progress report regarding Seb’s off campus work site at the nursing home ( see P39, P40, P43). Progress reports seem to have ceased as of fall 2007 ( see P38-47, Frazier).
49
KP received a copy of the evaluations during discovery after Seb had turned twenty two (Woodland). The initial cognitive communication assessment found expressive communication within normal limits, a moderate to severe impairment in comprehension and auditory processing and recommended accommodations found in KP’s IEP ( compare P36, S103). The PT noted that Seb had deficits in balance, core strength and motor planning and recommended PT group similar to the APE in KP’s proposed IEP ( compare P34, S103). Vocational recommendations are also found in the IEP ( compare, P41, S103). However, the OT assessment recommended use of a slantboard, pen grip and check writing guide, use of weighted silverware and adapted cooking equipment to increase stability and functional hand skills ( see S35). The OT in this evaluation also noted that Seb was participating in a Brain Gym (motor planning) group but did not make this specific recommendation for Seb because most of the Cardinal Cushing students participated in this class (Smith).
50
Seb had just started working off-site at the nursing home in March 2008 (Frazier).
51
Ms. Stevens has been working as an educational consultant since 1973 and taught in the classroom prior to that time( see P49). Ms. Stevens also testified “no one has ever accused her of being quiet”. Ms. Stevens attended all six days of hearing and did not appear either intimidated or quiet in any situation.
52
In May 2008 Ms. Stevens showed Seb a copy of the food pyramid sheet used in the class she observed and Seb was not able to accurately tell her what was a healthy and unhealthy food. Ms. Stevens concludes that this lesson was too complex for Seb. The School District feels that the lesson was not presented clearly or that Seb has regressed at Cardinal Cushing.
53
Hearing Officer Berman granted the school district’s request to extend the time for filing a response and the unopposed request for postponement of the hearing. The BSEA reassigned this matter to this Hearing Officer on September 12, 2008. The notice was received by the Hearing Officer and the Parties on September 15. 2008.
54
An assistive technology (AT) evaluation from Easter Seals was completed on May 7, 2008. KP received the evaluation on June 3, 2008. Parents are alleging that KP committed a procedural violation because it did not evaluate Seb in a timely manner or reconvene the TEAM. No specific assistive technology was recommended as a result of the evaluation ( see S112).
55
Submitted discovery shows that Ms. Lapointe documented only ten onsite visits between 2005 and 2006; that the BICO OT, the vision specialist and the BICO SLP had only one documented on site visit and that classroom teachers only made four on site visits between 2005-2007 (P19). There is no documentation regarding what occurred at these visits because BICO deleted its notes when Seb left the program in January 2007 pursuant to its procedure (Fiske). Parents allege that this amounts to bad faith because Parents had made a request for the records in December 2006 when he informed School’s attorney of the Parents’ unilateral placement in January 2007. This issue will be addressed later in this decision.
56
The IDEA defines a business day as Monday through Friday except for state and federal holidays; 34 CFR 300.148.
57
For example a School District may be excused from compliance or other FAPE denial if a Parents’ actions prevent it from implementing an appropriate IEP or if a Parent asks for procedural timelines to be waived. KP is asserting several defenses that will be addressed later in this decision.
58
In addition, being let go from ABC opened the door for Seb to work at Mariah’s which became a very positive experience for him.
59
Ironically, not all of Cardinal Cushing’s materials were visually appropriate for Seb and the communication sheets that Parents found appropriate at Cardinal Cushing were less detailed in many cases than BICOs. In addition, Cardinal Cushing did not provide any IEP or goals and objectives for Seb.
60
See, e.g., C.G. ex rel. A.S. v. Five Town Community School Dist . , 513 F.3d 279 , 290 (1 st Cir. 2008) (“ compensatory education is . . . a discretionary remedy for nonfeasance or misfeasance in connection with a school system’s obligations under the IDEA” ); G. ex rel. RG v. Fort Bragg Dependent Sch., 343 F.3d 295, 309 (4th Cir. 2003) (“Compensatory education involves discretionary, prospective, injunctive relief crafted by a court to remedy what might be termed an educational deficit created by an educational agency’s failure over a given period of time to provide a FAPE to a student.”); Pihl v. Mass. Dept. of Ed. , 9 F.3d 184 (1 st Cir. 1993) (“compensatory education is available to remedy past deprivations”); Lester H. v. Gilhool, 916 F.2d 865 (3rd Cir. 1990), cert. denied 499 U.S. 923, 111 S.Ct. 317 (1991) (compensatory education is intended to be “an appropriate remedy to cure the deprivation of a child’s right to a free appropriate public education”); Miener v. State of Missouri , 800 F.2d 749 (8th Cir. 1986) (compensatory education intended to cure the deprivation of a handicapped child’s statutory rights).
61
Reid v. District of Columbia, 401 F.3d 516, 527 (D.C. Cir. 2005). See also Draper v. Atlanta Independent School System , 518 F.3d 1275, 1289 (11 th Cir. 2008) .
62
Pihl v. Mass. Dept. of Ed. , 9 F.3d 184, 189 (1 st Cir. 1993) (The IDEA “may require services at a future time to compensate for what was lost”).
63
Even though KP and BICO provided appropriate transitional planning for Seb while he was there and the IEPs described appropriate transitional planning disjointed community experiences do not make sense for Seb. Therefore, KP shall provide compensatory education commensurate with what they owe in a manner that makes sense for Seb. KP asserts that any tuition reimbursement be reduced or denied because Parents did not provide adequate notice prior to unilateral placement and that any award only take into account violations within the two-year statute of limitations period (between April 2006-May 2008) when Seb turned 22. The award does take this time period into account and the appropriate two-year limitations period. Issues regarding reduction pursuant to Parents missing the ten-day written notice period will not be addressed because Parents’ request for unilateral reimbursement was denied.
64
Parents may also want to explore contact with an attorney who specializes in special needs planning to see if a supplemental needs trust may be appropriate for Seb.
65
KP can choose any provider as long as it is qualified to do a vocational assessment. The Hearing Officer requests that KP recontact HMEA since it is familiar with Seb and because Ms. Lapointe now is there, and she is not only is aware of Seb’s needs and has a personal connection with Mariah’s, but has a personal investment in seeing Seb succeed. This Hearing Officer observed Ms. Lapointe over five days of hearing and noted that she lit up whenever Seb’s accomplishments were mentioned and was very excited to see current pictures of him.