COMMONWEALTH OF MASSACHUSETTS
SPECIAL EDUCATION APPEALS
In Re: Student v. Lexington Public Schools
BSEA # 09-0139
DECISION
This decision is issued pursuant to the Individuals with Disabilities Education Act (20 USC 1400 et seq .), Section 504 of the Rehabilitation Act of 1973 (29 USC 794), the state special education law (MGL ch. 71B), the state Administrative Procedure Act (MGL ch. 30A), and the regulations promulgated under these statutes.
Parent requested a hearing on July 3, 2008. Following two settlement conferences, multiple requests for postponements, a decision on an ancillary matter, a partial motion to dismiss, and several other rulings, the matter was heard on March 23, 24 and April 7, 2010, at the Bureau of Special Education Appeals, 75 Pleasant St., Malden, Massachusetts, before Hearing Officer Rosa I. Figueroa. Those present for all or part of the proceedings were:
Student’s Mother
Student
Shelly Greene Parent’s/Student’s Advocate
Kristen Mallett Bator Private Writing Tutor
Lisa Rainen Bedford Public Schools/Private Math and Physics Tutor
Dr. Anjana Rajan Clinical Psychologist, Cambridge Health Alliance (testified
via telephone conference call)
Dr. Jeff Bostic Psychiatrist, Consultant to the Lexington Public Schools
Janet Vodvarka School Psychologist, Lexington Public Schools
Karen Rowe Vocational Coordinator, Merrimack Special Education Collaborative
Brad Brooks MSEC Administrator
Sherry Coughlin High School Supervisor, Lexington Public Schools
Barbara Fortier Out of District Coordinator, Lexington Public Schools
Linda S. Chase Director of Student Services, Lexington Public Schools
Colby Brunt, Esq. Attorney for Lexington Public Schools
The official record of the hearing consists of documents submitted by Parent and marked as exhibits PE-1, PE-2, PE-3, PE-4, PE-11, PE-16 through PE-25, PE- 26 (first part consisting of the occupational therapy evaluation of May 5, 2005 is allowed, but the second part, Parent’s letter of June 10, 2005, is excluded), PE-29 through PE-46, PE-48 through 55, PE-59, PE-60, PE-63, PE-67, PE-71, PE-72, PE-73, PE-74, PE-76, PE-77, PE-79, PE-86, PE-87, PE-89, PE-108, PE-1121 , and Lexington Public Schools (Lexington) marked as exhibits SE-1 through SE-33; recorded oral testimony and written closing arguments. The record closed on April 26, 2010 upon receipt of the Parties’ written closing arguments.
HEARING ISSUES:
1. Whether the IEP promulgated by Lexington in November 2009, was reasonably calculated to offer Student a free and appropriate public education (FAPE) consistent with state and federal law?
2. Whether Student is entitled to prospective placement at a combined high-school/college program with a tutor and an aide funded by Lexington?
POSITIONS OF THE PARTIES:
Parent’s Position:
Parent seeks placement of Student in a combined reduced schedule, high school/college program with provision of a tutor for academic support, and an aide responsible to provide social/pragmatic assistance to Student, as well as several other accommodations. Since 2008, following withdrawal from Minuteman Regional Vocational Technical School (Minuteman), Student has been educated through a combination of math tutorials in the home and more recently enrollment in a physics class with a laboratory through the Harvard Extension Program. According to Parent, staying at home has had a negative psychological impact on Student. Parent wishes for Student to be in school with like peers, that is, other gifted students within his age range. Parent disagrees with all of the programs proposed by Lexington.
Parent’s retroactive claims were dismissed in February 2009 pursuant to a Motion to Dismiss.
Lexington’s Position:
Lexington states that Student who is over sixteen years of age has not been enrolled in Lexington for several years. His last high school educational placement was at Minuteman. According to Lexington, its responsibility toward Student is pursuant to “child find”. It does not dispute Student’s eligibility to receive special education services but does not support Parent’s proposed placement. Lexington argues that Student’s areas of need can be properly addressed in a private therapeutic day placement, consistent with the IEP offered in November 2009. Specifically, Lexington argues that Pathways is the appropriate placement for Student.
FINDINGS OF FACT:
1. Student is a seventeen-year-old high school student who resides with his mother in Lexington, Massachusetts. He has been diagnosed with Asperger’s Syndrome, ADHD, semantic, written language, social pragmatic learning disabilities, executive functioning deficits, dyscalculia, and clinical suspicion of Mitochondrial disease .2 (SE-32; testimony of Parent). He also presents with other medical issues including sleep apnea, seizures, Tourette’s Syndrome, and sensory integration issues (PE-39; testimony of Parent). According to Parent, Student is of gifted intelligence with an IQ within the 140 to 160 range ( Id. ).
2. Student was enrolled in Lexington until January 2007, when Parent submitted a Home/ Hospital Form and Student was out of school for the remainder of that school year.
3. During the 2007-2008 school year, Student attended Minuteman Career and Technical High School (Minuteman). He then officially withdrew from Minuteman in November 2008 and did not re-enroll in Lexington. Student was over 16 years of age at the time, that is outside the mandatory school age requirements pursuant to MGL c. 76 §1.
4. Since June 2008, Student has not attended a secondary school in Massachusetts (testimony of Dahill, Coughlin, Parent, Student). Lexington continues to be Student’s Local Educational Authority (LEA). As such, it has continued to offer Student an education should he seek to re-enroll.
5. On July 8, 2008, Parent filed a Request for Hearing with the BSEA. Thereafter, the Parties engaged unsuccessfully in two settlement conferences during the fall of 2008.
6. In November 2008, Lexington forwarded to Parent a request for consent to evaluate Student. Parent responded on February 1, 2009, consenting only to a physical therapy evaluation. Following a Ruling issued by the previous Hearing Officer, Catherine Putney-Yaceshyn, addressing this issue, Lexington was able to conduct the following evaluations: Educational and Psychological Assessment, Speech and Language, Assistive Technology Assessment, and a Vocational/Transitional Assessment. (SE-11; SE-12; Administrative Record)
7. On January 14, 16, 21, 23, 30 and February 7, 2009, Dr. Deirdre Lovecky performed a neuropsychological evaluation of Student at Parent’s request. (PE-42 which appears in Lexington’s exhibit as number 43). She performed approximately twenty-two tests3 in addition to administering numerous questionnaires and engaging Student and Parent in behavioral checklists. (PE-42).
8. Regarding Student’s social interactions, Dr. Lovecky’s forty-five page neuropsychological report stated:
Since [Student] has Asperger’s Syndrome some of these results are not surprising, but they do speak to the isolation [Student] experiences, his lack of understanding and experience with age appropriate peer relationships, his lack of ability to interact in mutually satisfying ways with others. [Student’s] stories show that he experiences significant anxiety in general and shows concerns about negative interactions with age peers, especially bullying. He is concerned about aggressive behaviors, especially in being the victim of aggressive actions by others, by forces outside the self and by internal impulses. He is not yet at the emotional maturity level of most 16 year olds for emotional independence, emotional and behavioral self regulation, and ability to maneuver the social world. Thus, [Student’s] projectives suggest emotional and social concerns that will need to be addressed. (PE-42).
9. Dr. Lovecky noted that Student appeared motivated and was cooperative during the testing but he talked and interrupted numerous times during presentation of instructions and during administration of the test. He went off on tangents and required redirection, and laughed and made jokes on materials that others would not have considered funny, in part because he was found to personalize things that others would see as straightforward tasks. While not concise in his answers, he attempted to respond to questions precisely and correctly, at times providing too many details and demonstrating difficulty choosing the pertinent ones. Student demonstrated difficulties with planning and organization, and his work speed was “exceptionally slow” taking him the equivalent of seven sessions to complete what most same-age peers would have completed in three to four sessions. (PE-42). He analyzed visual perceptual tasks slowly and wrote very slowly and laboriously, needing breaks to rest his hand. Dr. Lovecky further noted Student’s difficulties with interpersonal cues and with noting nonverbal language, while at the same time trying to be social, make jokes, and ask questions. He was also noted to be considerate of the tester, and despite feeling fatigued, he did not complain. He was also noted to display happiness and take pleasure in his ability to work through challenging intellectual material and solve the problem correctly. Compared to previous testing, Student continued to display intellectual abilities in the superior range. (PE-42).
10. The Attwood Scales showed that Student displayed unusual facial tics and grimaces and that he had a lack of sensitivity to low levels of pain. According to Dr. Lovecky, his scores suggested “deficits in social and emotional abilities, communication skills, cognitive skills and movement skills as well as indications of sensory sensitivities and deficits… consistent with Asperger’s Syndrome.” (PE-42). The results of the Revised Cambridge Personality Questionnaire placed him in the average range for Asperger’s Syndrome but on the Cambridge Behavior Scale, an experimental questionnaire regarding the understanding and use of empathy, he scored average for an individual with Asperger’s. On the Self Esteem Index, Student saw himself as below-average on self- esteem. (PE-42).
11. Dr. Lovecky further noted that Student continued to have difficulty managing aggressive impulses and anger as related to fears of what may happen in conflict situations such as being bullied. (PE-42) She further stated that Student
… had close relationships with adults and feels he can depend on them but he, more so than previously, views himself as a child living in a world controlled by adults. This is now less appropriate for his age. He withdraws less into a fantasy world than previously, and he wants more to relate to people, but his ability to see himself as having successful relationships, sharing reciprocity and mutuality with others is less than expected of his age. Thus, current testing highlights more [Student’s] immaturity, lack of emotional independence and lack of ability to negotiate relationships, especially with peers than is expected for his age. (PE-42).
12. Dr. Lovecky noted that test results and overall presentation of Student was consistent with a diagnosis of Asperger’s Syndrome; Attention Deficit Disorder-Combined Type; Generalized Anxiety Disorder; Dysthymia; Disorder of Written Expression; Developmental Coordination Disorder and Learning Disorder Not Otherwise Specified (Slow Processing and Work Speed). (PE-42). Her twenty-three recommendations included numerous best teaching practice suggestions, and accommodations including frequent breaks, assistive technology, access to a computer and computer software as well as to a calculator, test-taking in two parts in a quiet room on a computer, and others. She recommended that Student’s specialized education be delivered with much of his work provided in a one-to-one setting within a high school so that he could go to lunch and participate in after school activities with typically developing students. He should have access to a curriculum that offered high-level work, without stressing or overtaxing Student, which allowed for flexible scheduling and self-paced learning, and that took into account Student’s interests. Dr. Lovecky contemplated the possibility of Student’s dual-enrollment in college. She recommended a one-to-one aide to help him manage his schedule, provide “real-time” feedback regarding interpersonal communication, and be attuned to his physiological needs and fatigue. This aide would also help Student work on independence and self-advocacy and should be “present for all activities except” where the one-to-one teacher was present. There should be consistency of methodology across all settings regarding organization and study skills, and use of the EmPOWER program for writing. Student should have mentorships or apprenticeships in his areas of interest. Hr should continue the study of a foreign language using the Rosetta Stone . Participation in a high school level art, photography or shop class was recommended. Access to a specialized physical education program such as swimming or horseback riding, and also health training regarding adolescent issues was also recommended. She suggested that Student have access to a therapeutic tutor or coach to assist with functional living skills as well as transition services. Dr. Lovecky also recommended one-on-one extensive work on social pragmatics with adjunct group work. According to Dr. Lovecky, he should also continue to receive individual psychotherapy and partake in community activities that help him build confidence. Dr. Lovecky also recommended that Parent receive weekly progress reports and that the IEP be adjusted during the year as necessary, and also recommended consultation with an Asperger’s Syndrome specialist, and access to information regarding Student’s metabolic issues. (PE-42).
13. A physical therapy evaluation performed by Barbara Jean Hetherington, RPT, on April 28, 2009, found Student to present with slight hypermobility at the shoulders, elbows and knees, with good balance and strength of the extremities and the trunk. He was noted to have decreased endurance for gross motor activities and he reported becoming fatigued quickly (SE-16). He seemed unable to recognize when he was becoming fatigued and stop the activity. Ms. Hetherington noted that Student appeared to understand his dysautonomia and was able to monitor fluid intake to avoid dehydration. Ms. Hetherington recommended that Student be instructed in energy conservation techniques. (SE-16).
14. Psychological testing conducted on June 23 and 24, 2009, by Dr. Janet Vodvarka (SE-31; SE-18), School Psychologist in Lexington, reported that pursuant to the WISC IV Student’s cognitive functioning falls within the superior range (127/96%), with verbal comprehension falling in the very superior range (134/99%), perceptual reasoning in the superior range of intelligence (125/95%), working memory in the high average range of intelligence (116/86%), and processing speed in the average range of intelligence (103/56%).4 According to Dr. Vodvarka, the results of the WIAT II, showed statistically significant weaknesses in the areas of spelling, word reading, pseudo-word decoding, and numerical operations. As such, she recommended that Student receive academic support in the aforementioned areas. (SE-18).
15. Dr. Vodvarka’s psychological testing also found that Student displays a variable ability to use executive functions and that his executive functioning is susceptible to becoming derailed and deteriorating into non-productive modes when stressed. She recommended that Student be allowed the following accommodations: additional time to complete tasks; use of a calculator; assistive technology; and direct organizational assistance. (SE-18). Dr. Vodvarka also noted that Student remains vulnerable to anxiety and depression (although these were not at the clinically significant range), and as such would benefit from school therapy to focus on developing coping strategies. (SE-18; testimony of Vodvarka).
16. Dr. Vodvarka’s findings were similar to past neuropsychological testing, including the one performed by Dr. Lovecky in 2009. Some of the recommendations with which Dr. Vodvarka agreed included Student’s participation in a high school level program with a reduced academic schedule, an aide available in the larger classroom (to assist with note-taking, previewing and reviewing), resource room support, assistive technology and numerous accommodations such as extra time and frequent breaks. However, she disagreed with Dr. Lovecky’s recommendation for Student’s placement with a 1:1 teacher away from all peers for all academic instruction. Dr. Vodvarka opined that Student needed contact with peers that went beyond exchanges during lunch and/or during non-academic classes. Based on her formal testing, observation of Student, and her review of the previous evaluations, she opined that Student needed instruction and support regarding peer interactions so that he did not need to be as dependent on adults for social interactions (testimony of Vodvarka).
17. On September 1, 2009, Debbie McCanne, M.S. CCC-SLP, conducted Student’s Speech and Language Assessment on behalf of Lexington. She found Student to have strengths in receptive and expressive language, but noted that his learning profile is such that he has difficulty with shifting focus of attention, difficulty with reading facial expressions, and he demonstrated slow performance especially with written tasks. Ms. McCanne opined that Student’s difficulties could interfere with his academic performance. (SE-21). She found that as the language demands increased in complexity or became less concrete, Student’s response time also increased. (S-21). Ms. McCanne recommended that Student receive formal services in the area of pragmatic language. (SE-21).
18. Patty McTigue conducted an Assistive Technology Evaluation on behalf of Lexington on July 8 and 14, 2009, and provided her report on September 8, 2009. (SE-20). During the evaluation Student reported difficulties keeping his binders organized and remembering to turn in homework assignments when in school. She recommended computer access to help address Student’s organization, memory and fine motor skills difficulties, and recommended further evaluation with computer access when he was in his educational setting. She also recommended the use of Dragon NaturallySpeaking v10, speech to text software and the use of graphic organizers. In her opinion, Student would also require alternative means to standard note-taking. Ms. McTigue was unable to make any further assistive technology recommendations until the usefulness of tools were tried in his educational setting. (SE-20).
19. Lexington also had an occupational therapy evaluation performed by Maureen Smith-Wojcik on September 16, 2009. (SE-19). Ms. Wojcik found that while Student’s visual motor and fine motor skills fell within the average range, his writing appeared to cause pain, as his sensory issues were significant, and he appeared to lack self-awareness of his own needs and preferences. She opined that Student presented with dyspraxia. She recommended that he work with his teachers on short term goals that helped him achieve his long-term goal of working for the Defense Department, but did not recommend participation in occupational therapy. Ms. Wojcik recommended “access to a sensory diet and energy conservation practices in the school setting.” She recommended that the material on his sensory diet be provided to the school nurse, Student, and his teachers. She also found that Student would benefit from specific instruction in the use of Dragon NaturallySpeaking v10 (speech to text software). She recommended that a sequence checklist regarding autonomic symptoms be developed, and that he have access to a PDA programmed with the sequences in which he must engage to perform certain tasks; and discuss how to tape classes clearly. (SE-19).
20. On September 10, 2009, Karen Rowe conducted a vocational assessment at Lexington’s request. (SE-22). She is employed by the Merrimack Special Education Collaborative and is certified to conduct vocational assessments of students ages fourteen to twenty-two (testimony of Rowe). She testified that Student’s vocational evaluation, which lasted approximately five hours, assessed the following factors: emotional behavioral; coping/adaptive behavior; memory; sensory testing; fine and gross motor skills; and intellectual capability for which she relied on the results of the Wechsler Adult Intelligence Scale (WAIS), Peabody Picture Vocabulary Test-Revised (PPVT-R), and Wide Range Achievement Test (WRAT 4). A situational assessment is typically a part of vocational assessments but the Parties were unable to arrange for one due to security issues in the locations of interest to Student5 . During the initial part of the assessment Student reported being home-schooled because at his last high school placement people were confused about his abilities. He reported that he was capable of making a bomb, but that did not mean that he was going to make one. Student reported aspiring to an autonomous life in the community, where he were able to use public transportation, and care for himself, such as knowing that the stove was turned off (testimony of Rowe). He also aspired to a job with a place like “Raytheon or Lincoln Labs, working with lasers.”(SE-22). Ms. Rowe noted that during the evaluation Student engaged in monologues rather than in dialogues and seemed to be a perfectionist. He stated that when he did not get the right answer, he became very frustrated with himself. Ms. Rowe testified that Student lacked on-the-job type experiences and that while intellectually he may be able to do a job, emotional issues may pose a problem. She opined that he would require accommodations in the workplace. The general approach to training should be to provide oral instruction paired with visual instruction. She opined that Student’s weakest area was in social pragmatics, such as how to communicate with the boss or work cooperatively with others (testimony of Rowe). Student testified that he found this evaluation to be too easy for him as he was already aware of possible vocations through his experience in the Boy Scouts. He put little effort into the evaluation which he found irrelevant (testimony of Student).
21. On September 30, 2009, Harvard University’s Division of Continuing Education received Parent’s/Student’s request for accommodations in a Physics E-1A 11897 course for which he had registered through the Harvard Extension School. (SE-26). The request listed the following accommodations:
An aide in all settings.
Flexible scheduling to accommodate health & processing problems.
Note taker.
Use of a laptop computer with word processor, math notation software. ‘he is familiar with’.
Laptop computer with calculator, ‘ee’ check, templates, organizers.
Self-pacing of class work and assignments.
Frequent breaks as needed during class, lab and testing.
Examination and homework to include oral answers.
All testing on computer. He should be trained to use the exam program & format prior to tests of academic material.
Templates and formulas written down for him to refer to, even during exams.
Clear written instructions for assignments & exam questions with opportunity to ask for clarification.
All testing in small quiet room, 1 double-time, with breaks at least every hour, and food & water/liquids.
For paragraph and writing assignments, he should be allowed to explain orally rather than write.
Extended length of semester as needed, rather than taking an incomplete. (SE-26).
Following a meeting of Harvard University administrators, Parent was informed on October 23, 2009 that the Extension School does not provide aides but Parent would be allowed to accompany Student to class and serve as an aide, to help Student carry his bags, take notes in class and remind him to take breaks when he was fatigued. She however would not be permitted to assist Student by participating in class, by asking or answering questions, or completing any in-class assignment for Student. (SE-27).
22. Harvard University’s Coordinator of Disability Support Services wrote to Student on November 2, 2009, explaining that there was a difference between the accommodations offered in high school versus those offered in college which was the reason for which some of the accommodations requested by Student were denied.6 Student would be allowed to take his exams in a separate testing room with a proctor, in addition to:
Double time for exams.
The use of a scribe for exams –the scribe would have knowledge of algebraic functions.
Exams will be taken over the course of two days.
You will have breaks of five to ten minutes per each half hour of testing.
You may bring food and liquids to the exam.
Use of a note-taker –while we do not hire note-takers, Professor Rueckner requests volunteers in the class to share their notes. We will put you in touch with the note-taker and the two of you can photo-copy the notes after class. We provide the volunteer with a copy card so you will not have to absorb the cost of the photo-copies. (SE-28; SE-29).
23. Lexington convened a Team meeting on November 3, 2009, to review the evaluations and develop an IEP covering the period from November 2009 to November 2010. The Team reviewed Lexington’s most recent evaluations and the independent neuro-psychological evaluation conducted in January 2009 by Dr. Lovecky. (SE-23; PE-43).
24. The Team proposed that Student receive academic support sixty minutes each, twenty- five times per week, social pragmatics sixty minutes each three times per week; counseling / social twice per week for sixty minutes each and transition; Post–High school services twice per week for sixty minutes each, all of the aforementioned services as direct services in substantially separate classrooms. The IEP also proposes once per week, sixty minutes each, consultation services by the special education teacher, the speech and language therapist, the counseling staff, and the transition staff. The aforementioned services are geared toward addressing Student’s social emotional needs, communication deficits and offers assistive technology services. It also offers approximately twenty-six accommodations regarding organization, lesson presentation/class-work and testing, as well as providing the school nurse and the teachers with materials regarding sensory diet and energy conservation practices. The goals and objectives in this IEP address Student’s organizational skills, speech and language/pragmatic skills, self-advocacy skills, written language skills, and post-secondary planning. The IEP shows that a Chapter 688 referral was made to the Massachusetts Rehabilitation Commission (MRC). (SE-23).
25. The November 2009 IEP sates that Student’s education will be provided in a “public” separate day school placement, although Lexington maintains that this is an error since the Team discussed Student’s placement in a private separate day school. Shortly after the Team meeting, Lexington forwarded blind referral packets on Student to several private day schools (SE-23; testimony of Coughlin, Fortier).
26. Sherry Coughlin, supervisor of special education at Lexington High School, chaired the Team meeting. She testified that on the first day of Hearing she had realized that instead of checking the IEP box that called for Student’s participation in a private day school, she had checked the box for participation in a public separate day school. (PE-17; testimony of Coughlin). She forwarded the IEP to Parent on November 11, 2009 (testimony of Coughlin).
27. Ms. Coughlin testified that once a particular private school is identified, that particular school is responsible to deliver the services in the grid and the IEP is modified according to how they implement those services. Since Student’s IEP includes a transition plan, the particular private school would develop the transition plan. Ms. Coughlin testified that when Parent was asked about Student’s transition goals Parent stated that “it was irrelevant and none of her business”. She further testified that at this time, Student’s anticipated graduation day in the IEP is June 2011, but explained that that was based on Student’s age. Until she is able to review the records from Minuteman and looks at what Student has actually done, she cannot say with certainty what Student’s actual graduation date will be, and she was unaware that Student had only passed one high school course according to Parent (testimony of Coughlin).
28. The Team recommended that Student participate in a therapeutic day program that could address his social and emotional needs (testimony of Bostic, Coughlin, Dahill).
29. Parent and her advocate, Shelly Greene, attended the Team meeting in November 2009. Student did not attend because, in his opinion, the meeting was “irrelevant.” He testified that he had given up hope that Lexington’s IEP would have anything productive because he was already working on college level courses (testimony of Student). At the meeting, Parent refused to provide any updated information regarding the work that Student was completing at the Harvard Extension School (even though Parent sits with Student during the physics class and acts as his scribe) as well as the work he was completing at home with Ms. Rainen (testimony of Coughlin, Dahill). On cross-examination, Parent agreed that in addition to reviewing the 2009 evaluations completed by Dr. Lovecky and the Lexington staff, the Team discussed Student’s need for a therapeutic day placement that offered small class size, though no specific location was identified (testimony of Parent, Coughlin). The Team also recommended that the placement focus on social pragmatics and the social emotional piece, and that Student should be in a placement with similar peers (testimony of Coughlin). Parent had few questions at the Team because she opined that the Team did not know Student well, and had no right to know more about Student than they already did, especially regarding his medical information (testimony of Parent). Parent further conceded that she had refused to provide medical information regarding Student at the Team meeting (testimony of Parent).
30. Also present at the November 2009 Team meeting was Dr. Jeff Bostic. Dr. Bostic attended the meeting at the request of Lexington. He holds an M.D. as well as an Ed.D. in curriculum and instruction. Prior to becoming a medical doctor, he taught public school seventh grade and high school. At present, Dr. Bostic is the Director of the Massachusetts General Hospital’s (MGH) School’s Psychiatry program, and is also the medical director of the Massachusetts Child Psychiatry Access Project. (SE-30). Over the past several years, Dr. Bostic has been a consultant to approximately 19 school districts in Massachusetts and New Hampshire. He also has extensive experience in working with adolescents on the Autism spectrum, and specifically, adolescents with Asperger’s disorder (SE-30; testimony of Bostic).
31. Prior to the November 2009 Team meeting, Dr. Bostic reviewed the psychological testing performed by Lexington, Dr. Lovecky’s January 2009 evaluation, the letters from Dr. Mark Korson and Student’s MGH medical notes of Dr. Sims (testimony of Bostic). At the meeting, Dr. Bostic asked Parent for any additional information regarding Student’s then current medical needs, and specifically regarding the mitochondrial disease. Parent refused to provide any information regarding Student’s mitochondrial disease, and stated that the reports of Dr. Korson spoke for themselves and that to provide any additional information would be a violation of Student’s privacy rights7 (SE-32; testimony of Bostic).
32. Dr. Bostic hoped to establish an alignment between the educators, the clinicians and Parent so that they could all work together to assist Student. In rendering his impression of Student he stated that Student was a smart individual who was able to connect with people, but would be held back most by the Asperger’s Syndrome. He opined that neither Student’s executive functioning deficits, nor the Tourrette’s Syndrome were at the forefront of Student’s difficulties. He testified that Student required therapeutic staff to help him connect with peers. Student, in his opinion, was ill prepared to establish peer connections with college level students who were older and more mature than he. A regular high school would also be inappropriate. However, Student’s desire to connect with peers gave him a good prognosis (testimony of Bostic).
33. Dr. Bostic was familiar with Pathways as he had worked with the staff and visited Pathways often. He had been there three or four times during the month of March 2009. He noted that the first thing that Dr. Rajan had worked on was Student’s hopelessness and opined that the greatest impediment in Student’s life was not academics but the social pragmatics, the ability to connect with a wide variety of people. Until that was addressed Student would feel isolated, lonely and depressed. Dr. Bostic felt strongly that Student needed people to advocate for him because he may not know some of the things he needs.
34. Lisa Dahill is a special education teacher in Lexington. She holds certification in moderate special needs (middle school and high school) and communication disorders (all levels). Ms. Dahill is a former employee of Minuteman. While at Minuteman, she was Student’s liaison, and direct service provider as the speech language pathologist for social pragmatics. Ms. Dahill testified that she worked with Student to facilitate exploring new friendships, helped him build on some of the friendships he was forming within the school setting, and assisted him in generalizing those friendships beyond the school environment. She testified that while at Minuteman, Student was not doing well academically due to the lack of work he was producing. According to Ms. Dahill, Student’s teachers reported that his difficulties were not due to an inability to do the work, but rather, a failure to do any work outside of school. She attended the November 2009 Team meeting in Lexington as the special education teacher for Lexington High School. Ms. Dahill testified that Dr. Vodvarka’s findings were consistent with how Student presented when at Minuteman and she agreed with the recommendations made by Dr. Vodvarka. Furthermore, as a trained professional in EmPOWER, she opined that the written language goal in the IEP reflected the principles embodied in EmPOWER. Ms. Dahill testified that based on her direct knowledge of Student while at Minuteman as well as Lexington’s evaluation results, Dr. Lovecky’s evaluation report, and Kristen Mallett Bator’s assessment, the proposed goals, accommodations, modifications, and placement in the November 2009 IEP were appropriate to address Student’s needs (testimony of Dahill).
35. Ms. Dahill testified that Student needs to be re-engaged in a learning process/ environment for both academic and social reasons. She opined that he requires remediation regarding “theory of mind”, something that he would be able to receive in a small group setting. According to her, he should also be in a program where he is not able to avoid subjects that he does not like (i.e. language arts), because he needs to work on taking academic risks (testimony of Dahill). It was Ms. Dahill’s opinion that Parent’s proposed placement in a college setting is inappropriate for several reasons. First, Student needs to learn how to be a student again; second, he needs to take academic risks and not be allowed to avoid things he dislikes because it is important to work around his rigidity; and third, he requires a therapeutic program that supports him and encourages him to take risks. In her opinion, Student needs to learn how to be a student again and do this in a therapeutic milieu at the high school level. She explained that in her experience, Student has a tendency to focus on the negative and only talk about all the things that he is unable to do. This is something that can be addressed in the context of a therapeutic placement. She also opined that he requires intervention and support around social pragmatic issues. According to Ms. Dahill, Student seemed to have regressed socially since leaving Minuteman (testimony of Dahill).
36. On November 20, 2009, Student’s advocate wrote to the BSEA stating that the proposed evaluations which formed the basis of the IEP proposed by Lexington were not comprehensive and appropriate as such, it was Parent’s position that the IEP was not reasonably calculated to offer Student a FAPE and stated that Parent would prepare a response to the District’s IEP. (SE-24). In her closing argument, Parent stated that she neither accepted nor rejected the IEP8 (Parent’s Closing Argument).
37. In December 2009, Barbara Fortier, Lexington’s out of district coordinator, sent out redacted packets to the following therapeutic day placements: Pathways Academy, Clearway and New England Academy. The packets included the proposed IEP for the period from November 2009 through November 2010, and the testing conducted by Lexington in late spring and early fall 2009. Ms Fortier testified that based on the information submitted, New England Academy found Student to be appropriate, but they had no openings. Clearway responded that it may not be appropriate for Student because its program did not have students over 19 years of age. Pathways informed Lexington that Student appeared to be an appropriate candidate and that they currently had a spot available for him (testimony of Fortier). Ms. Fortier testified that she has placed many students in out-of-district placements and specifically has placed students at Pathways who present profiles similar to Student’s. In her professional opinion, Pathways would be an appropriate placement for Student, because it could engage him academically. She also stated that some of the students she sent to Pathways went on to college (Testimony of Fortier) According to Ms. Fortier, in the spring of 2007 and 2009, she attempted to send out packets to out-of-district placements on Student’s behalf, but Parent summarily dismissed these placements as inappropriate.9 Ms. Fortier opined that Parent had not truly engaged in an authentic process of working with Lexington to identify an appropriate out-of-district placement for Student (testimony of Fortier).
38. Parent testified that she was familiar with Pathways (having spoken to program staff there approximately a year ago) and objected to this placement because it lacked a rigorous science curriculum, an area of interest to Student. She also stated that while there were some students with high IQs (120 to 125), none were as gifted as Student. She opined that the special education teachers there were wonderful but not capable of responding at the level Student needed to ask questions and learn. Parent is also concerned that there will not be other same-age peers at Pathways and that Student will be the oldest (testimony of Parent).
39. Lisa Rainen is a teacher of the gifted and talented in the Bedford Public Schools’ middle school. She is certified in elementary education and academic advance Kindergarten through twelve. Ms. Rainen has been Student’s private math tutor during the past one and a half years. She meets with him between one and up to three times per week (including the summer), and each session lasts from one to two hours. Specifically, she tutored him in calculus and also helped him with physics. She testified that she has been a teacher for the past nine years and that she has worked with students who present with medical and educational issues similar to those of Student, in school as well as privately (testimony of Rainen).
40. Ms. Rainen testified that when she first met Student, they played board games so she could make a connection with him. She found him to be strategic in his approach. She later found that Student enjoyed learning and thinking about ideas. She found that he had many gaps in his understanding of mathematics which required her to review material he had already covered. She found that Student understood high level concepts when she first explained them to him but these did not seem to stay with him unless he engaged in repetition and practice over a period of time. She noted that there was no difference in terms of the amount of material presented; whether it was one item or ten items, he moved through it quickly but continued to need multiple opportunities for revision. Similarly, even if he seemed to understand something when she explained it to him during their sessions, he later did not know what to do with the homework she gave him on the same subject. She testified that Student needs a setting where students can go off on tangents and in this sense, a smaller classroom would allow for this to happen (testimony of Rainen).
41. Ms. Rainen testified that the Harvard Extension School physics course Student is taking was very difficult for him. The textbook and material were not easy for him to understand as he lacked the skills to read the text and apply it to the material. She found Student to be a very hard worker which resulted in him making tremendous progress in math and physics. She stated that note-taking was challenging and that he got more out of a class if he listened as opposed to trying to take notes. She opined that this was more of a processing speed issue with him. Because writing was difficult, it slowed him down, but because he is so careful and methodical the end result was accurate. When he knows what he is going to write, then he is able to write well and fast. Her approach in writing has been to have a conversation with Student regarding what he will write and then have him write it. She stated that he needs a great deal of wait time once he initiates a thought in conversation and then needs time to develop that thought. Student benefits from having a note-taker as an accommodation but he does not want to inconvenience others (testimony of Rainen). Ms. Rainen testified that Student reads without knowing what the text says and opined that he needs work on how to read for meaning. She noted improvement in Student’s ability to generalize material ( Id ).
42. Ms. Rainen opined that issues regarding self-esteem are important and must be addressed. As a gifted student with learning disabilities, he is aware of his abilities but is unable to access them. She testified that Student cared deeply about doing well academically but also doing well for those around him, sometimes to his own detriment. When he does not succeed at doing what he is asked to do, he gets truly upset, even if the demand was inappropriate in terms of the work that was required. He works better when he values the individual with whom he works and develops a connection with that person. She testified that she worried about the numerous hours that Student spent studying for his physics class (testimony of Rainen).
43. Ms. Rainen recommended Student’s participation in a small group classroom, with students who are similar in their profile to Student as opposed to a setting that is larger and more diverse or heterogeneous. His peers should be high level intellectually and able to play with ideas, but not move rapidly among those ideas. She opined that Student is able to access college level material in science with supports, but also needs work on organization and planning skills. Ms. Rainen stated that Student had made progress with metacognitive strategies (how to learn what he learns) and attributes this to the fact that Student is able to see its relevance and because he likes her and wants to please her. According to Ms. Rainen, Student is currently in a setting that is not working for him (testimony of Rainen).
44. Kristen Mallett Bator, holds a Master’s degree in speech and language and works in communication science disorders at the Landmark School. In 2007 she worked with Architects for Learning in Wellesley, MA, as a supervisor and service provider to several students including Student regarding written language intervention. She used EmPOWER which is a predictable and sequential process approach to writing (testimony of Mallett Bator). Ms. Mallett Bator noted that Student lacked regulation ability in his writing as a result of which she had to provide structure and enforce breaks so as to prevent Student from getting fatigued. She described her work with Student in 2007 and 2008 and explained that when addressing pragmatic language it made a difference whether Student worked with a familiar partner. When not working with a familiar individual, Student’s anxiety level increased. As a result of his depressed social language skills and inability to read others, he would engage in conversation but was unable to stop talking. At those times he needs to be given warnings and told to stop talking. She testified that Student did better when he was able to talk himself through the task because language is his strength and he does well with verbalization (testimony of Mallett Bator).
45. In late December 2009, Ms. Mallett Bator assessed Student at Parent’s request. (PE-43). Overall, she was pleased with the progress student had made, even though he was still not writing at grade level. She found his writing sample to be at approximately the sixth grade level, consistent with that produced by a twelve year old. Her testing of Student found that he has very impaired written output skills and that he has substantial issues with “theory of the mind” (i.e. perspective taking). Student’s working memory and graphomotor deficits impacted upon his note-taking ability. However, in oral format, Student could organize his sentences at the above-average to superior level (PE-43; testimony of Mallett Bator). Ms. Mallett Bator testified that she has not provided Student written tutorial since March 2008, when Student was in his sophomore year at Minuteman (testimony of Mallett Bator). Ms. Mallett Bator’s evaluation was not provided to Lexington prior to the Hearing (testimony of Parent).
46. Ms. Mallett Bator recommended pragmatic language intervention for Student with peers that included gifted children as well as other same-age students with Asperger’s Syndrome . She clarified that she did not mean that Student should not interact with other peers of average intellectual ability. Pragmatic language intervention should include interaction with peers, not just modeling typically developing peers (testimony of Mallett Bator) .
47. Student testified that he is currently taking a physics course at Harvard Extension School and is doing work on Calculus with Ms. Rainen (testimony of Student). He works on his Harvard Extension School physics class with his father and Ms. Rainen. According to him, he typically spends approximately forty (40) hours per five day week working on physics and about eighteen (18) hours on weekends including his one-to-one time with his father (with whom he spends three to four hours during the week and about six more during weekends) and with Ms. Rainen (with whom he spends two to three hours per week). (PE-50; testimony of Student). Student testified that he would like to take more college courses, but that due to problems with his writing, he cannot take courses which require significant writing. Whereas during the first semester he spent about sixty hours per week working on physics, now he thinks he is spending about thirty hours. He believes that a learning skills seminar he took last semester helped him. According to Student, his English/ language arts skills are currently at a six point five or seventh grade level, history at an eleventh grade level, Math at an eleventh, twelfth or maybe college level, and science at a college level (testimony of Student). He opines that he is almost caught up with Algebra. However, because of his difficulties in writing, he does not believe that he would pass any college course that had writing as a requirement ( Id .).
48. Student explained that the mitochondrial disease impacts him because there are days when he has no energy, and it is hard to move around. On those days, he is prevented from engaging in any activity that requires energy or stamina, something that keeps him from participating in social groups. When engaged in activity he dehydrates easily, perspires a great deal and feels dizzy. He explained that he could have extreme instantaneous strength but no stamina. In the past, he used to pushed himself to the limit or until he collapsed but he does not do that anymore. He testified that at present he is doing better because of the cocktail of medications he takes (testimony of Student).
49. Since he is taking a college level course, he views going to a high school setting as a demoralizing experience, and would prefer to be in a college campus getting supports from the high school. He understands Pathways to be a medical setting which is inappropriate, and he would be ashamed of being there. He is also not sure if Pathways would be helpful to him. He envisions starting with only two college courses with support from aides and accommodations. He has not thought much about how or where it would happen as he does not think much about the future (testimony of Student). Student testified that he would try Pathways if it were ordered, unless it interfered with his physics class at Harvard Extension. He likes to please, and has tried things in the past to please others (testimony of Student).
50. He is proud of his accomplishments in the Boy Scouts, having achieved Eagle Scout level after spending approximately six hundred and ninety-five hours getting his merit badges, and being a member of the Order of the Arrow, which is the equivalent of being in the honor society. Student is grateful to his mother who helped him with organization skills and to his scout master who helped him immensely in achieving this goal. He also took the week-long leadership training and this summer will be his third summer training others in leadership skills. He is the “go to guy” when it comes to fire building at camp, as he is good at controlling smoke to control the mosquitoes. He also considers himself very good at teaching basic scouting skills. Student however, finds that he does not have many things in common with the other youngsters in his Boy Scout group, something that he attributes to his not having passed high school (testimony of Student). He opined that he has been able to pick-up good socialization skills from his participation in scouts because there is a wide variety of people involved and the vast majority of the kids are able to socialize. Through the Eagle project, Student started to form a friendship with another boy, and together they decided to take the Harvard Extension School physics course. This is the only friend with whom he has spent a good amount of time over the last several years ( Id. ).
51. When not working on physics, Student spends his time playing computer games, reading, looking up things on line (such as lasers or metals), drawing energy in all of its forms (such as fire and electricity), and is involved in scout activities (testimony of Student). This summer, Student plans on building a Tesla coil and a coil accelerator (that accelerates magnetic fields for projectiles) with his friend from the scouts (testimony of Student).
52. Regarding independent living, he feels that he does not know how to manage money or to prepare nutritious meals for a week. He is not able to take public transportation on his own or to select clothing. He would like to be able to drive if he is seizure free. He does not know how to manage his medication independently (testimony of Student). Student opines that he lacks the life skills and academic and educational skills required to succeed in college ( Id. ).
53. In describing his previous experiences at Minuteman and in Lexington, Student testified that at Minuteman he liked being part of a group of students10 in Shop because they were all interested in the same sort of things, all of the students got along and they were all good friends. At Minuteman, he had a good time and made many interesting things. He liked that the teachers taught them how to do something but then left the students alone to work on things. Student enjoyed this independent, free-form approach. In Lexington, he enjoyed middle school the best, because he had time to meet people and make friends. Fifth grade was great for him because he had an “absolutely fantastic teacher” and some of the students around him were nice (testimony of Student). In sixth grade he had pretty nice teachers but had less opportunity to be with other students (testimony of Student).
54. Student asserts that he will go “crazy” in a program that does not offer challenging academic material or where teachers are teaching to “the lowest common denominator in a group.” Student is concerned that Pathways may not have challenging academics or a good science program and believes that it is a hospital setting, although he has not visited this program (testimony of Student).
55. Dr. Anjana Rajan is a clinical psychologist at the Cambridge Health Alliance who works with children on the autism spectrum. She has been seeing Student since the fall of 2008 to address mood disorder, depression, anxiety and issues regarding Student’s social isolation as a result of staying at home. Dr. Rajan has been providing Student supportive therapy to address his depression and hopelessness. She checks in on Student’s mental status regarding academics, familial issues helping him talk and verbalize his feelings. She testified that she was familiar with Pathways because she sees patients who attend Pathways and has had communication with the director, although she has never observed any class at the school, or any of her patients there. She testified that she did not think that Pathways would be a good clinical match for Student. Dr. Rajan also has had no contact with Lexington.
56. Parent is a professional musician with experience as a music teacher. She is also a medical doctor11 and is involved in many non-profit endeavors and organizations (PE-76; testimony of Parent). She sees Student as having trouble communicating and initiating communication or conversations. He relates better to adults. She views him as not being independent and needing frequent reminders, direction and redirection to do things, including self-care tasks, as he forgets midstream. He also has difficulty following multi-step directions. Student does not know how to make phone calls unless he is provided a script and he gets anxious about making them. He operates better when he understands things, as well as when he is provided scripts or modeling. Parent testified that Student may not realize that he needs help or cannot figure out how to ask others for assistance. Due to his sensory integration issues he dislikes loud noises, and motor issues cause him to be clumsy. Tasks need to be broken down because of his organizational issues. She described him as motivated and well-meaning (testimony of Parent).
57. At present, Student is learning at home with a tutor who works with him on math, and he takes a physics class at the Harvard Extension School, in which he gets help from his father and his math tutor. Parent testified that she is not “home-schooling” Student because that requires submitting a written curriculum for approval, which she has never done (testimony of Parent).
58. The concurrent enrollment program described in Parent’s exhibits, describes a program designed for students with severe learning disabilities. It uses a student with Down Syndrome as an example of the type of student that would be appropriate for participation in the program. The Department of Elementary and Secondary Education’s (DESE) advisory regarding this type of concurrent enrollment states that the program is available for disabled students, between the ages of 18-22 who are
considered to have severe disabilities and have been unable to achieve the competency determination necessary to pass the Massachusetts Comprehensive Assessment System (MCAS) exam…(emphasis supplied). (PE-72).
59. Parent seeks a program on a college campus that would allow Student to take college courses with a one-to-one paraprofessional, and a tutor to work with him to review the materials from class and assist with his work. Parent wants the paraprofessional to assist Student with learning how to function on a college campus and assist him with some real life experiences (e.g., “going to a nightclub”) (testimony of Parent). Student also wishes to be placed in a college setting, receiving the support services and accommodations that he would receive if he were in high school (i.e., an aide, a speech language pathologist, and extra time to complete tasks) but receiving them in the college setting. Parent also envisions Student participating in a physical education class on the college campus with a trainer at the gym to work with Student, or he could engage in hippotherapy (testimony of Parent).
CONCLUSIONS OF LAW :
The Parties do not dispute that Student is an individual with a disability falling within the purview of the Individuals with Disabilities Education Act12 (IDEA) and the state special education statute.13 As such, Student is entitled to a free, appropriate public education (FAPE).14 The dispute between the Parties is centered on Student’s current educational program and placement, pursuant to Parent’s rejection of the November 2009 IEP proffered by Lexington. In rendering my decision, I rely on the facts recited in the Facts section of this decision and incorporate them by reference to avoid restating them except where necessary.
The IDEA and the Massachusetts special education law, as well as the regulations promulgated under those acts, mandate that school districts offer eligible students a FAPE. A FAPE requires that a student’s individualized education program (IEP) be tailored to address the student’s unique needs15 in a way reasonably calculated to enable the student to make meaningful16 and effective17 educational progress. Additionally, said program and services must be delivered in the least restrictive environment appropriate to meet the student’s needs.18 Under the aforementioned standards, public schools must offer eligible students a s pecial education program and services specifically designed for each student so as to develop that particular individual’s educational potential .19 Educational progress is then measured in relation to the potential of the particular student.20 School districts are responsible to offer students programs and services that will allow them to make meaningful, effective progress.
As the party challenging the adequacy of Student’s IEP, and seeking public funding for a high-school/college program, Parent carries the burden of persuasion pursuant to Schaffer v . Weast , 126 S.Ct. 528 (2005)21 , and must prove her case by a preponderance of the evidence. Also, pursuant to Shaffer , if the evidence is closely balanced, the moving party, that is, Parents, lose. Id .
In the instant case Parent wishes for Student to be in an environment with similar age peers, where he can have positive social experiences (as he currently has no friends, according to Parent), and he needs to become more independent (testimony of Parent). From Student’s standpoint, he is feeling lonely and hopeless regarding social connections. He testified that he only has one friend but wants to have more friends. He is also very concerned that he will soon turn eighteen years of age, at which point the world will consider him an adult and have adult expectations of him. He however, feels unprepared to meet those expectations as he lacks the skills necessary for an independent life (testimony of Student, Parent).
In order to achieve personal and educational goals, Parent is correct that Student needs the support and structure of an appropriate school program. He needs to be with like- peers with whom he can address and practice social pragmatics. This placement must provide a challenging and engaging academic curriculum that also addresses and remediates Student’s weaknesses in writing and organizational issues. As part of his transition into adult life, Student’s functional living skills must also be addressed. The evidence is persuasive that Lexington’s proposed therapeutic private day placement constitutes the appropriate program for Student. The evidence further shows that the program envisioned and proposed by Parent not only fails to address Student’s needs effectively but would only increase his dependency on adult intervention to navigate life. As such, I find that Parent has not met her burden of persuasion pursuant to Schaffer . My reasoning follows.
The issue in the case at bar is the determination of what services Student is entitled to receive in order to receive FAPE, and whether the IEP proposed by Lexington in November 2009 is reasonably calculated to provide him FAPE in the least restrictive setting consistent with federal and state special education law.
To ascertain the appropriateness of the proposed IEP, the information available to the Team when it convened in November 2009, at the time the IEP was developed, must be considered. As stated in In Re: Southwick-Tolland Regional School District,
The appropriateness of the IEP must be assessed by “what was, and was not, objectively reasonable when the snapshot was taken, that is, at the time the IEP was promulgated.” In Re: Southwick-Tolland Regional School District, 12 MSER 279, 289 (Crane, 2006), citing Roland M. and Concord Sch. Comm., 910 F. 2d. 983, 992 (1 st Cir. 1990). In assessing the “snap shot”, the personalized instruction and support services need not maximize Student’s potential to assure her a FAPE. That is, “the public school district is not responsible to offer Student a “Cadillac” but rather a serviceable Chevrolet that allows Student to get around effectively.” In Re: Arlington Public Schools, 8 MSER 187 (Crane, 2002); In Re: Middleborough Public Schools, 12 MSER 310, 328 (Figueroa, 2006).
Consistent with applicable case law, based on the information available, Lexington is responsible to offer Student a program tailored to meet his unique needs so as to allow him to make effective educational progress. Lexington is not obligated to offer Student the best possible program; to do so would be equivalent to offering Student “the Cadillac”.
When Student’s Team convened in November 2009, it had available to it the reports of the evaluations performed by Lexington during 2009 as well as the report of Dr. Lovecky, who performed the neuropsychological evaluation of Student at Parent’s request in January and February 2009. The Team did not have available to it the report of the evaluation conducted by Ms. Mallet Bator in December 2009 which was not made available to Lexington until Parent submitted the exhibits for Hearing in March 2010. The evidence shows that at the November 2009 Team meeting, Parent was reluctant to share information regarding Student’s suspected mitochondrial disease or much information regarding the education in which Student was engaged at home with Ms. Rainen or through the Harvard Extension School. As such, Lexington cannot be held responsible for Parent’s lack of cooperation in providing it with valuable information to assist with the development of the IEP.
Thus, I turn to the available information and the Team’s findings after discussion of the numerous evaluation reports reviewed. The November 2009 Team members agreed that Student, who has been diagnosed with Asperger’s Syndrome, ADHD and who presents with several other medical issues, possesses superior cognitive ability. He presents difficulties with written output, organizational and executive functioning issues and weaknesses in social pragmatic and functional life skills. He also has emotional issues. With proper programming and services, Student is capable of accessing the curriculum and progressing effectively. In order for this to occur, he requires numerous accommodations, and concepts need to be previewed and reviewed. He also needs to have opportunities to practice what he learns educationally across settings.
Regarding past history, the Team was aware that Student had not been successful in his ninth grade inclusion program at Lexington High School, or during his sophomore year at Minuteman (testimony of Parent, Student, Dahill). They also knew that Student had not participated in any educational program with same-age peers since June 2008.
Based on the information available to the Team in November 2009, the Team proposed to address Student’s needs in a therapeutic private day placement, with the understanding that the proposed IEP would be finalized once the specific placement were identified (testimony of Coughlin). I note that the actual IEP forwarded to Parent mistakenly identified placement in a public separate day program, which Ms. Coughlin testified had been a mistake; however, Parent and her advocate were aware that Lexington was offering a private, not public, separate day placement as this was discussed during conference calls. Parent was also aware prior to Hearing, that Lexington had forwarded blind packets to potential private placements.
Regarding the drafting of the IEP, Parent argued that Lexington had unilaterally drafted the IEP without Parent’s input or assistance, and only offered Parent the opportunity to accept of reject it. She further stated that no placement or transition services were discussed at the Team meeting and also asserts that Student was not presented with a transition plan. Similarly, Parent argued that Student’s input regarding transition services was not sought following the meeting (testimony of Parent).
The evidence shows that both Student and Parent were invited to participate at the Team meeting convened in November 2009. Parent attended this meeting with her advocate Shelly Green, but Student, by his own admission, opted not to attend (testimony of Parent). The evidence further shows that Lexington attempted to engage Parent in the discussions during the Team meeting and asked several questions which Parent chose not to respond to asserting that it was none of the school’s business (PE-112; testimony of Parent, Bostic, Coughlin, Dahill). Whether she is aware of it or not, Parent’s unwillingness to cooperate with the Team process only served to increase the difficulty in creating a program that could meet Student’s needs.
In spite of Parent’s lack of cooperation, Lexington devised an IEP that would assist Student with a re-entry into secondary school, placing him with appropriate peers, and providing him with the necessary therapeutic environment to address all of his educational needs as described in the Fact section of this decision.
Ultimately, Parent disagreed with the proposed IEP arguing that,
A therapeutic High School Day program where he would be placed in the ninth grade is completely inappropriate, both [Student] and Parents do not support this plan, and as Dr. Bostic testified, that is absolutely not a recipe for success. To begin with, [Student] would be placed with children four or more years his junior –this is a set-up for probable inappropriate and illegal relationships with girls, should he develop an interest in dating. Furthermore, while [Student] has involuntarily been refused attendance by Lexington High School, he has been working at home successfully passing college courses as well as the AP Environmental Science exam for college credit… He has discovered that when he can approach his education the way he needs to, he can be successful and he likes that feeling (Parent’s Closing Argument).
The objections to the IEP voiced in Parent’s argument above center on issues regarding social pragmatics and appropriate peer groupings, a challenging academic curriculum, emotional health, and Student’s transition into adult life. She also raises Lexington’s alleged refusal to allow Student to attend Lexington High School.
Student has been described as cheerful and personable. According to Parent, he is well liked by his peers in Scouts, especially the younger scouts and adult leaders.
Parent however, argues that , placing Student with younger students is inappropriate because it is a “set up for probable inappropriate and illegal relationships with girls, should he develop an interest in dating.” This argument presumes that Student would engage in conduct which up to this point has not occurred. Student has issues with social pragmatics. Parent herself stated that he has better relationships with younger peers, as is the case with Scouts, and with adults. However, to conclude that Student’s ability to engage in successful friendship with a younger male or female friend will result in inappropriate behavior on his part, when there is nothing in the record to suggest that Student is likely to engage in “illegal relationships with girls”, is not persuasive. The evidence is however, uncontroverted that Student desires connections but needs social pragmatics training regarding peer relationships with same-age, younger and older peers so that he can develop actual friendships.
Regarding Parent’s contention that same age peers like Student, Parent’s view, is inconsistent with Student’s testimony regarding his lack of same-age friends and feelings of loneliness (testimony of Parent, Student). Student spoke of being the go-to guy regarding fire building, but did not testify that he had made actual significant connections with same age, or for that matter, younger peers (testimony of Student). Ms. Rainen testified that Student has only one friend, another student of superior intelligence whom he met through the Scouts (testimony of Rainen). While some other adolescents may like Student, it is clear that his issues with social pragmatics have made it difficult for him to develop meaningful relationships with same age peers that go beyond Scout activities other than one individual.
This finding is supported by almost every witness including Dr. Lovecky, who noted in her evaluation report that t est results demonstrated that Student continued to display depression and anxiety. (PE-42). According to her, Student’s emotional and social testing indicated that he had
… significant difficulties with peer relationships, understanding reciprocity and mutuality in relationships, ability to utilize feelings and thoughts to enhance relationships, difficulties with anxiety, depression, and aggressive impulses. [Student] is quite immature for his age in social and emotional functioning, and does not have the social and emotional independence required for adult functioning. (PE-42 at 34).
Dr. Lovecky’s report discusses Student’s lack of emotional maturity when compared to same age peers. She noted that Student’s social skills are impaired and stated that he experienced significant social isolation. Nevertheless, her report recommends addressing Student’s social emotional issues in a one-to-one setting for all academic subjects (PE-43). This recommendation is not supported by the evidence for reasons explained later in this Decision, and without Dr. Lovecky’s testimony to clarify the basis for this recommendation, it is not given weight.
Parent’s argument that in a high school program Student would be with students too young to constitute an appropriate peer group is neither supported by the evidence nor the law. Student has been described as immature for his age and under the Massachusetts regulations, an age differential is permissible.
603 CMR 28.06(6), which addresses permissible instructional groupings, requires that when eligible students receive services outside the general education classroom, the size and composition of instructional groupings be compatible with the goals and methodologies identified in each student’s IEP and that the groupings not differ by more than 48 months, thus allowing an age differential.22 Given Student’s level of maturity, it would not be inappropriate to group him with students who are chronologically a couple of years younger. In this sense, he would be paired with peers who are functioning in similar ways. Similarly, it would be appropriate to place Student with other youngsters with Asperger’s Syndrome.
Dr. Bostic testified that it would be important for Student to be able to generalize social pragmatic skills across all settings, and that he be able to adjust and navigate around people who were younger than he, the same age and older than he (testimony of Dr. Bostic). The objective should be for Student to be able to interact qualitatively, productively and effectively with a variety of people ( Id. ). He explained that Student has the ability to connect with others, but he presents a pattern where he affixes to one person and when that person is no longer there, he feels that the experience is “less than” satisfying, as was the experience when the middle school teacher Student liked was no longer his teacher (testimony of Bostic, Student). Student may be able to do well with adults as Parent suggests, but according to Dr. Bostic, if Student cannot extrapolate from that experience to do well with others, he will be deprived of something that he will need now and in the future to decrease some of the depressive, and hopeless symptoms Student described (testimony of Bostic). These are the type of issues that a therapeutic placement would be able to address (testimony of Bostic).
In arguing against the social emotional piece being at the forefront of Student’s educational program, Parent stated that Student’s social skills had improved enough that he was now able to speak in front of a group alluding to his Scouts’ presentation. Student however, testified that he was terrified of public speaking, or even making phone calls. This clearly indicates that these continue to be areas of difficulty for him. The fact that he is willing nonetheless, to put himself through the experience in order to achieve something he desires, like a merit badge, speaks volumes of Student’s strengths. However, the evidence does not support a finding that Student’s pragmatic skills are sufficient to allow him to be socially successful, especially not in an independent manner. Parent herself has requested that when in college, Student be provided with a one-to-one aide that can accompany him to class, to pubs or to other locations where college students go, so that the aide can assist Student in learning how to socialize appropriately with college level students. She even contemplated the possibility that Student may require such an aide for life (testimony of Parent).
Student testified that he wants friends but that he has not made college level friends at the Harvard Extension School (testimony of Student). When he described the periods of his life when he felt happier, he described instances when he was able to participate in activities with other students, especially when those activities were intellectually engaging to him. Nothing in the record supports the idea that Student would somehow be able to establish real friendships with college level students whose social skills are more sophisticated than those of high school students, especially if according to Parent’s plan, Student’s interactions in college are to be facilitated by an aide.
The type of learning required by Student needs to occur within the context of an age appropriate, therapeutic, high school placement so that when Student is actually in college, he can handle social situations as appropriately and independently as he is able.
Dr. Bostic testified that in his professional opinion, Student requires a therapeutic placement with trained staff who can assist him with navigating a school environment and generalizing skills to interactions with other like age peers. Dr. Bostic opined that because Student’s main presenting issue is his Asperger’s Syndrome, Parent’s proposed placement on a college campus cannot provide the level of social pragmatic instruction that Student requires. He noted that Student’s reliance on a one-to-one aide would be detrimental as he would continue to be dependant on one adult to mediate social situations and therefore never learn to generalize his social skills (testimony of Bostic). According to him, for someone like Student who has Asperger’s syndrome, the School District needed to address issues that contribute to Student becoming depressed or hopeless, and that in Student’s case, he requires extensive social remediation in order to stop feeling isolated, hopeless and lonely (testimony of Bostic). Dr. Bostic testified that
the issue with [Student] for the rest of his life is not his ability to do things or be intelligent. The thing that is going to hold him back is being able to interact with human beings effectively whether it is working at the Department of Defense or whether it’s working at Dunkin Donuts. People will expect some degree of predictability for him to sustain a functional role in any of those kinds of entities (testimony of Bostic).
Regarding Pathways, Dr. Bostic, who was very well acquainted with the program, testified that what made the program appropriate was not just the students, but rather the therapeutic staff who work with each student to help him/her connect with other students. In a larger program or school setting, it would be difficult to control all the variables that go into providing that individual kind of attention. At a program like Pathways, the staff would be able to rehearse a script on how people would typically conduct themselves in a specific situation, work with the students in a specific setting and then practice in the real world. Since in his opinion, the social pragmatics piece is what is keeping Student back, a placement capable of addressing this piece was essential. He also opined that flexibility should be built into Student’s schedule not just regarding time but also with what you do with that time, in order to address Student’s metabolic and functional life skills, in addition to his other needs; something that he explained could be successfully done at Pathways (testimony of Bostic).
I found Dr. Bostic’s testimony to be credible and compelling. His qualifications, both academic and experiential, are impressive. Dr. Bostic’s candor and true investment in the wellbeing of children in the spectrum was persuasive. Therefore, I credit and rely on his opinion that addressing Student’s social and emotional issues is a priority. I also credit his opinion that Student requires participation in a therapeutic placement such as Pathways. At Pathways, Student’s needs can be properly addressed and he may be able to forge the meaningful friendships which he has not been able to form up to this point; first, within the confines of an appropriate program and placement, and second, in the outside world (testimony of Bostic).
Regarding Parent’s concern that Student may not be properly engaged intellectually and academically, Lexington argues that school is not solely the acquisition of academic skills, but that the Massachusetts special education regulations specifically state that effective progress in a program includes “documented growth in the acquisition of knowledge and skills, including social/emotional development.” 603 CMR 28.02(18). As the BSEA held in In Re: Dighton-Rehoboth ,
The ability to attend class on a daily basis, to behave appropriately, to participate in group learning and class discussions, and to interact with teachers and peers both in and outside of class are all skills that are fundamental to the educational experience, the purpose of which, for students with disabilities, is to ‘develop student’s individual educational potential,’ 603 CMR 21.01(3), as well as to equip students with disabilities with the knowledge and skills to “be prepared to lead productive and independent adult lives, to the maximum extent possible.” 20 USC § 682(c)(5)(A). In Re: Dighton-Rehoboth, 45 IDELR 146 (Berman, 2006).
As acknowledged by all of the witnesses, Student has clear academic strengths and strong cognitive abilities; as such, he requires an academic environment that will engage and challenge him. He also requires remediation regarding his written output, organizational skills, life skills, and also extensive support to assist him with social pragmatic. All evaluations regarding Student reflect agreement that this is Student’s profile. (SE-1; SE-2; SE-3; SE-18; SE-19; SE-20; SE-21; SE-22; SE-23; PE-42; PE-43). As such, he requires a program and placement that address all of his areas of need, and do not simply promote academic development. To suggest that Student will be able to develop and progress in all areas, especially the social pragmatics, in the isolation of a one-to-one program is contrary to the credible evidence.
For Student to receive all of his instruction in a one-to-one setting with a tutor (whether in a college lecture hall with a one-to-one aide, or in a different venue) would be overly restrictive and a denial FAPE. As Lexington correctly argues, such a placement would not adequately address the fundamental skills in which Student requires remediation, to wit, social pragmatics, functional living skills, and written output. Student is clearly aware of how his writing difficulties prevent him from enrolling in courses that require greater written output. Parent’s proposed program ignores Student’s well documented educational needs in these areas. There is no evidence that Parent’s proposed program could be tailored to appropriately meet Student’s needs and it is not likely to foster the independence Student requires.
Lexington is also correct in arguing that the evidence shows that Student is currently having great difficulty in keeping up with the demands of one desired college course even with the assistance of a one-to-one aide, his mother, and the support and interventions provided by his father and his tutor, Ms. Rainen. If it currently takes Student over fifty (50) hours a week to be able to handle one college course (in a subject area he enjoys), it is unrealistic to think that he would be able to handle a greater load. It would be difficult if the courses were not of interest to him but that may be requirements for graduation. He would have particular difficulty in courses that require greater written output. Lexington correctly notes that this further amplifies the magnitude of Student’s Asperger’s Syndrome and his issues with ADHD/executive functioning skills “in that he focuses so much on circumscribed interests that he cannot transition to other topics, even within a desired class, and with appropriate efforts effectively or efficiently.” (Lexington’s closing brief). Ms. Rainen testified that she worried about the amount of time it took Student to be able to pass his physics course in spite of the numerous accommodations that have been put in place, such as Parent’s accompanying Student to class and receiving class notes from another student.
It is understandable that in trying to boost Student’s self-esteem, Parent has supported and fostered Student’s superior intellectual skills. She is clearly a loving and caring Parent. But the situation created over the past two years has only prevented Student from experiencing the growth that is expected to occur as a result of participating in the day-to-day of high school life. To have Student skip over the experience of high school, given his deficits, could have a dire impact on the development of his social/emotional well-being.
Student also requires extensive instruction and remediation in the areas of written output and organization. He is entitled to receive an education that allows him to learn how to write effectively in a classroom setting, with instruction that is in line with the Massachusetts Curriculum Frameworks.
Ms. Mallett Bator, the EmPOWER tutor, testified that Student made good progress with this methodology and that once she and Student developed a positive relationship, he worked hard to overcome his deficits. She also testified that Student wants to please the adults with whom he develops positive connections (testimony of Mallett Bator). According to Ms. Dahill, who is trained in EmPOWER, Lexington’s IEP addresses Student’s written output needs. She credibly testified that the November IEP does not label a specific methodology in the written language skills goal, but that the description of the methodology that would be used to address this goal contained many of the approaches embodied in EmPOWER (testimony of Dahill). The evidence is persuasive that EmPOWER has been effective with, and is appropriate for Student. Therefore, the approaches embodied in EmPOWER shall be utilized in addressing Student’s written language goal.
Student is also entitled to an education that addresses social pragmatics and functional living skills which will help him transition successfully into independent adult life as discussed earlier in this decision. Lexington is correct that none of this can be achieved through the piecemeal approach he is currently receiving.
Both Student and Parent raised the concern that Student may never be able to function as an independent adult (testimony of Parent, Student). However, given Student’s numerous strengths, the available data suggests that with proper interventions and remediation, Student has the cognitive abilities necessary to begin to develop the skills required to successfully transition into adulthood and develop the social skills necessary to independently develop a network of peers who appreciate and embrace him.
Parent seriously questions Student’s ability to learn and progress in a setting where Student “is surrounded by disability.” Instead, she seeks for Student to be educated in a tailor-made college/high school program.23 Parent requests that Lexington offer Student a concurrent college/high school program at a local college, where Student may take college level courses with the assistance of a one-to-one paraprofessional (to assist Student with learning how to function on a college campus and assist him with some real life experiences such as going to a pub) and a one-to-one academic tutor (who can assist Student in reviewing the materials from class and assist Student during the lecture or laboratory) (testimony of Parent). Additionally, Parent believes Student will require assistance to further support the information presented in the classroom as well as provide direct instruction in written language through the use of EmPOWER.
The concurrent enrollment program described in Parent’s documents describes a pilot program for students with severe learning disabilities, between the ages of 18-22. (PE-72). The districts that form a part of this pilot program send the eligible students to a state or community college in the local area to either audit or take remedial classes. The DESE advisory regarding this type of concurrent enrollment states that the program is available for disabled students who are
“considered to have severe disabilities and have been unable to achieve the competency determination necessary to pass the Massachusetts Comprehensive Assessment System (MCAS) exam…”(emphasis supplied). (PE-72).
Student is a disabled student who is not yet eighteen years of age. He turns eighteen in August 2010. He possesses superior intelligence, does not fit the definition of severe learning disability pursuant to 603 CMR 28.02, and his most recent available MCAS scores from eighth grade (while at the Diamond Middle School in Lexington) show that he scored in the Proficient Range on English/Language Arts, Mathematics, and Science and Technology/engineering. Prior to that, Student had scored in the proficient or advanced range on all MCAS tests taken. While in tenth grade at Minuteman, he did not take MCAS because he was absent on the day the test was administered. (PE-87). Clearly, he is not a student with a severe disability which prevents him from passing the MCAS examination. Furthermore, Lexington asserts that it is not a public school system that is a part of this DESE partnership program. (PE-72). Also, the typical student described in the brochure (a student with Down syndrome) would be an inappropriate peer for Student whose needs are totally different from those presented by individuals with Down syndrome. The program described in the DESE advisory is inconsistent with Student’s profile and/or his needs.
Parent failed to present persuasive evidence regarding her contention that Lexington’s proposed program was inappropriate. None of Parent’s witnesses had observed Student in a secondary placement (i.e., Lexington High School or Minuteman) or at Harvard Extension School. Similarly, none of them had observed any of the out-of-district placements to which Lexington sent referral packets. Neither Ms. Rainen nor Ms. Mallett Bator had observed Parent’s proposed college/high school program (testimony of Rainen, Mallett Bator24 ).
In Burlington , the Supreme Court held, “ the Act contemplates that such education will be provided where possible in regular public schools, with the child participating as much as possible in the same activities as non-handicapped children…”, and private placement at public expense should only occur when this is not possible. School Comm. of Burlington v. Dept. of Ed., 471 US 359, 369 (1985) .
Parent alleges that Student has been “involuntarily refused attendance by Lexington High School” and/or that Student was “not allowed admission to his own local high school for at least two years.” It is worth noting that Student is not currently enrolled in Lexington, something that has been brought to Parent’s attention multiple times, including in a Ruling by the previous Hearing Officer issued on May 29, 2009.25 Neither Parent, nor Student who was over sixteen years of age at the time, has completed the re-enrollment process following Student’s withdrawal from Minuteman on or about November 2008. Since Student is beyond compulsory age for school attendance, he is not enrolled in Lexington and Parent has not accepted or rejected the proposed IEP, Lexington is technically not responsible to fund Student’s education until such time as he is properly enrolled. Therefore, Lexington’s responsibility in this regard will commence upon Student’s re-enrollment.
Given Student’s age, it is imperative that he be invested in any placement he attempts if he is to be successful. At Hearing, Student testified that he would be willing to “try out” Pathways Academy should the Hearing Officer rule that Pathways was an appropriate placement for him (testimony of Student). Having entered such a finding, it is this Hearing Officer’s hope that Student chooses to give Pathways an opportunity to educate and support him.
Lexington’s experts testified that Student’s main area of need is social pragmatic skills (testimony of Coughlin, Bostic, Vodvarka, Dahill). They persuasively and convincingly testified that at this time, Student requires a therapeutic placement that has a social component embedded in the program throughout the day and across all settings. This type of setting can help Student learn how to access same-age peers in a smaller, safer environment, in an attempt to assist Student in developing age appropriate social pragmatic skills that he is then able to generalize into the real world (testimony of Coughlin, Bostic, Vodvarka, Dahill, Fortier). Student also requires remediation in the areas of written output, organizational skills, and transition planning. As such, Lexington is responsible to develop an IEP that addresses all of Student’s areas of need.26
Pathways has accepted Student based on the information contained in the redacted packet and it currently has an opening (testimony of Fortier). According to Dr. Bostic and Ms. Fortier, Pathways can provide Student with a challenging and appropriate academic curriculum. Ms. Fortier testified that based on her knowledge of the program, Pathways would be appropriate to address all of Student’s areas of need. In the past, Ms. Fortier has placed students with profiles similar to Student’s in Pathways. Lexington notes that based on the information provided to Pathways, which included the evaluations that describe Student’s cognitive profile, Pathways concluded that Student would be an appropriate match academically and socially to the peer grouping currently enrolled at Pathways.
Lexington has persuasively demonstrated that Student requires a therapeutic placement so as to be able to progress effectively towards the goals and objectives in his IEP.
Based on Student’s statement that he would be willing to try a placement such as Pathways if ordered, Lexington asserted that it was committed to working with Parent and Student (who will be eighteen in August), to assist with the transition into a therapeutic day placement, as soon as Student re-enrolls in Lexington.
As Dr. Bostic testified, this is a tragic case and one that needs to be remedied sooner rather then later as Student is now on the verge of his 18 th birthday and by his own admission lacks the skills necessary to be an independent adult (testimony of Bostic, Student). At the end of his testimony Dr. Bostic stated
… Real life is not going to wait for [Student]. Time is not going to stop until everything happens and falls into place for him. His life continues to go and so for me impels me to feel more pressure for us to do something to help him make up and cultivate skills… We have to find the best ways to move forward with this. He has not been engaged as meaningfully as I would wish for a seventeen year old to be with his strengths and assets as smart as he is… The thing that is going to hold him back is being able to interact with other human beings effectively.
Lexington argues that the placement proposed by Parent will only further isolate Student and exacerbate his deficits. In contrast, Lexington’s proposed placement is appropriate under the law and can provide Student with the much needed foundational skills to move forward with the hope of an independent life. The evidence overwhelmingly supports Lexington’s position.
I find that Parent/Student failed to prove their case by a preponderance of the evidence consistent with Shaffer v. Weast , 546 U.S. 49; 126 S.Ct. 528, 534, 537; 44 IDELR 150 (2005). The evidence supports a finding in favor of Lexington
Lastly, at the conclusion of Parent’s case in chief, Lexington moved for a Directed Verdict. This request was denied. At the conclusion of the presentation of its case in chief, Lexington once again made a Motion for Directed Verdict. In the context of BSEA proceedings, a Motion to Dismiss would be more appropriate as BSEA proceedings are bench-type cases where Hearing Officers enter findings of fact. At this juncture, this decision disposes of all matters before the BSEA and therefore has the same effect as the granting of a Motion to Dismiss. This decision constitutes the final agency determination, triggering the Parties’ right of appeal pursuant to the IDEA.
ORDERS:
1. Lexington shall provide Student a private therapeutic day placement that offers him participation in small classes, with a challenging academic curriculum, and social pragmatic interventions, addresses Student’s functional living issues and develops a transitional plan consistent with Student’s aspirations of attending college, pursuant to the IEP developed in November 2009. Lexington’s implementation of this order shall occur immediately upon Student’s re-enrollment in Lexington.
2. Lexington shall implement Student’s IEP at Pathways. Should Pathways no longer have a slot available for Student, Lexington shall locate or create a program consistent with this decision.
By the Hearing Officer,
___________________________________________
Rosa I. Figueroa
Dated: May 21, 2010
1
During the Hearing it became evident that Parent had organized the exhibits differently in the Hearing Officer’s binders and Lexington’s binders resulting in some of the exhibits having different numbers. For purposes of this decision, I am using the numbering provided in the Hearing Officer’s binder.
2
Dr. Jeff Bostic testified that the Massachusetts General Hospital (MGH) medical documents did not indicate that Student had a biological diagnosis of mitochondrial disease. MGH’s clinician, Dr. Sims raised a “clinical suspicion of mitochondrial disease” (SE-32; testimony of Bostic).
3
In some areas, Student’s test scores were lower than they had been in testing done in 2004 and 2007 by Dr. Lovechy, such as the Rey Complex Figure. (PE-42).
4
Dr. Vodvarka testified that she inadvertently typed in the wrong score column when typing her report as it appears in PE-46, but had submitted a revised version of the report, SE-18, when she realized it (testimony of Vodvarka).
5
Ms. Rowe also reported issues with Parent’s wanting to be present during the assessment which would have compromised the data because it would have impacted assessing Student’s independence
6
Internal emails of November 2009, between Marie Trottier (University Disability Coordinator/ Disability Compliance Officer) and Rory Stein of Harvard University, raise concerns that some of the accommodations requested could constitute “fundamental potential alterations of class requirements.” Ms. Trottier also raised concerns as to why Parent was doing all of the communication with Harvard University as opposed to Student, and stated that it sounded like Parent, not the disabled individual, was the student. She was further concerned that if Student could not communicate with the administration, how could he be the student taking the course? (SE-33).
7
Dr. Bostic testified that one of the letters from Dr. Korson was primarily a generalized letter regarding the needs of students with mitochondrial disorder and were not necessarily specific to Student’s individual needs. On cross-examination, he testified that he was familiar with the clinicians in some of the medical letters in Parent’s exhibits, and stated that those clinicians do not focus on educational needs or planning, but rather on the medical conditions of their patients (testimony of Bostic). Dr. Bostic has had experience with children diagnosed with mitochondrial disorder ( Id .).
8
Parent testified that she had not attended the Team meeting of November 2009 and that she had rejected the IEP. She also testified that she had not been involved in the writing of the goals and objectives and stated that the placement identified in the IEP had not been discussed at the Team meeting. On cross-examination, she agreed that she had been present at the Team meeting of November 2009 (testimony of Parent).
9
In the spring of 2007, Lexington sent packets after Parent removed Student from Lexington High School. These were sent to the following: Corwin Russell, the Victor School, Pathways, and Clearway. With the exception of Corwin Russell, where Student was not found to be a good match, the other placements indicated that either Parent believed that it would not be a good match, Parent inaccurately reported the classes that Student required (i.e. only Advanced Placement), or she failed to follow through on the application process. (SE-4; SE-5; SE-6; SE-7) In the spring of 2009, Lexington once again sent out packets to Milestones (aka: School for Accelerated Learning) and New England Academy at the request of Parent’s former counsel. According to Ms. Fortier, Milestones responded that it did not have an opening and Parent failed to follow up with New England Academy (SE-15 SE-17; testimony of Ms. Fortier).
10
There were seven or eight students in Shop, mostly boys (testimony of Student).
11
Parent is not board certified in psychiatry and she does not hold a teaching certificate (testimony of Parent).
12
20 USC 1400 et seq .
13
MGL c. 71B.
14
MGL c. 71B, ss. 1 (definition of FAPE), 2, 3.
15
E.g., 20 USC 1400(d)(1)(A) (purpose of the federal law is to ensure that children with disabilities have FAPE that “emphasizes special education and related services designed to meet their unique needs . . . .”); 20 USC 1401(29) (“special education” defined to mean “specially designed instruction . . . to meet the unique needs of a child with a disability . . .”); Honig v. DOE , 484 U.S. 305, 311 (1988) (FAPE must be tailored “to each child’s unique needs”).
16
Board of Education of Hendrick Hudson Central School District v. Rowley, 458 U.S. 176, 192 (1982) (goal of Congress in passing IDEA was to make access to education “meaningful”); Deal v. Hamilton County Board of Education, 104 LRP 59544 (6 th Cir. 2004); (“ IDEA requires an IEP to confer a ‘meaningful educational benefit’ gauged in relation to the potential of the child at issue”); G. by R.G. and A.G. v. Fort Bragg Dependent Schs , 40 IDELR 4 (4th Cir. 2003) (issue is whether the IEP was reasonably calculated to provide student meaningful educational benefit); Weixel v. Board of Education of the City of New York , 287 F.3d 138 (2 nd Cir. 2002) (placement must be “‘reasonably calculated’ to ensure that [student] received a meaningful educational benefit”); Houston Independent School District v. Bobby R ., 200 F.3d 341 (5 th Cir. 2000) (educational benefit must be “meaningful”); Ridgewood Board of Education v. NE for ME , 172 F.3d 238 (3 rd Cir. 1999) (IDEA requires IEP to provide “significant learning” and confer “meaningful benefit”).
17
Lenn v. Portland School Committee , 998 F.2d 1083 (1 st Cir. 1993) (program must be “reasonably calculated to provide ‘effective results’ and ‘demonstrable improvement’ in the various ‘educational and personal skills identified as special needs’”); Roland v. Concord School Committee , 910 F.2d 983 (1 st Cir. 1990) (“Congress indubitably desired ‘effective results’ and ‘demonstrable improvement’ for the Act’s beneficiaries”); Burlington v. Department of Education , 736 F.2d 773, 788 (1 st Cir. 1984) (“objective of the federal floor, then, is the achievement of effective results–demonstrable improvement in the educational and personal skills identified as special needs–as a consequence of implementing the proposed IEP”); 603 CMR 28.05(4)(b) (Student’s IEP must be “ designed to enable the student to progress effectively in the content areas of the general curriculum”); 603 CMR 28.02(18) (“ Progress effectively in the general education program shall mean to make documented growth in the acquisition of knowledge and skills, including social/emotional development, within the general education program, with or without accommodations, according to chronological age and developmental 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.”).
18
See generally In re: Arlington , 37 IDELR 119, 8 MSER 187, 193-195 (SEA MA 2002) (collecting cases and other authorities).
19
MGL c. 69, s. 1 (“paramount goal of the commonwealth to provide a public education system of sufficient quality to extend to all children the opportunity to reach their full potential… ”); MGL c. 71B, s. 1 (“special education” defined to mean “…educational programs and assignments . . . designed to develop the educational potential of children with disabilities . . . .”); 603 CMR 28.01(3) (identifying the purpose of the state special education regulations as “to ensure that eligible Massachusetts students receive special education services designed to develop the student’s individual educational potential…”). See also Mass. Department of Education’s Administrative Advisory SPED 2002-1: Guidance on the change in special education standard of service from “maximum possible development” to “free appropriate public education” (“FAPE”), effective January 1, 2002, 7 MSER Quarterly Reports 1 (2001) (appearing at www.doe.mass.edu/sped) (Massachusetts Education Reform Act “underscores the Commonwealth’s commitment to assist all students to reach their full educational potential”).
20
Hendrick Hudson Dist. Bd. of Educ. v. Rowley , 458 U.S. 176, 199, 202 ( court declined to set out a bright-line rule for what satisfies a FAPE, noting that children have different abilities and are therefore capable of different achievements; court adopted an approach that takes into account the potential of the disabled student ); Deal v. Hamilton County Board of Education, 104 LRP 59544 (6 th Cir. 2004); (“ IDEA requires an IEP to confer a ‘meaningful educational benefit’ gauged in relation to the potential of the child at issue”); HW and JW v. Highland Park Board of Education , 104 LRP 40799 (3 rd Cir. 2004) (“benefit must be gauged in relation to the child’s potential”); Houston Independent School District v. Bobby R ., 200 F.3d 341 (5 th Cir. 2000) (progress should be measured with respect to the individual student, not with respect to others); T.R. ex rel. N.R. v. Kingwood Twp. Bd. of Educ., 205 F.3d 572, 578 (3d Cir. 2000) (appropriate education assessed in light of “individual needs and potential”); Ridgewood Board of Education v. NE , 172 F.3d 238 (3 rd Cir. 1999) (“quantum of educational benefit necessary to satisfy IDEA . . .requires a court to consider the potential of the particular disabled student”); Mrs. B. v. Milford Board of Ed. , 103 F.3d 1114, 1122 (2d Cir. 1997) (“child’s academic progress must be viewed in light of the limitations imposed by the child’s disability”); MC v. Central Regional School District , 81 F.3d 389 (3 rd Cir. 1996), cert. denied 519 US 866 (1996) (child’s untapped potential was appropriate basis for residential placement); Roland v. Concord School Committee , 910 F.2d 983 (1 st Cir. 1990) (“academic potential is one factor to be considered”); Kevin T. v. Elmhurst , 36 IDELR 153 (N.D. Ill. 2002) (“ Court must assess [student’s] intellectual potential, given his disability, and then determine the academic progress [student] made under the IEPs designed and implemented by the District ”).
21
Schaffer v . Weast , 126 S.Ct. 528 (2005) places the burden of proof in an administrative hearing on the party seeking relief.
22
“The ages of the youngest and oldest student in any instructional grouping shall not differ by more than 48 months. A written request for approval of a wider age range may be made to the Department, which may approve such request.” 603 CMR 28.06(6)(f).
23
In her closing argument, Parent stated that Student “had made huge gains in the social sphere and is looking forward to participating in the Aspirations programs at [the University of Massachusetts Lowell Campus], which is designed to transition young people with Asperger’s Syndrome, as well as neurotypical students, to gain even more skills and comfort socially with a group of real peers.” (Parent’s Closing Argument).
24
Dr. Rajan, Student’s current therapist also had not observed any of the educational programs proposed for Student. Her testimony was taken over Lexington’s objection since she and Parent failed to comply with the order requiring Parent to produce Dr. Rajan’s Curriculum Vitae. In its closing argument, Lexington continued to object to inclusion of any part due to Parent’s failure to produce the necessary Curriculum Vitae. As such, I give little weight to Dr. Rajan’s testimony.
25
See Ruling on Lexington’s Motion for Summary Judgment, Parent’s Motion to Compel Lexington to Provide Consent and Other Forms, and Parent’s Request to Postpone Hearing , Administrative file in BSEA # 09-0139 (May 29, 2009, Putney-Yaceshyn).
26
See, In Re: Acton Boxborough Regional School District , 8 MSER 402 (Beron, 2002) (holding that when choosing a placement for a student with significant social/emotional and psychological needs, that “attending to the psychological factors that are impeding his progress must be the priority…” and because the IEP addressed other areas of concern (i.e. writing and organization), the IEP as written identified and addressed all areas of the Student’s special needs and was deemed appropriate).