Student v. Shrewsbury Public Schools – BSEA #02-2613
COMMONWEALTH OF MASSACHUSETTS
SPECIAL EDUCATION APPEALS
Re: Student v. Shrewsbury Public Schools
BSEA # 02-2613
This decision is issued pursuant to 20 U.S.C. 1401 et seq. (the “IDEA”), 29 U.S.C.794, M.G.L. chs. 30A, 71B, and the Regulations promulgated under those statutes.
A Hearing in the above-referenced matter was convened on December 3, 4, 5, 6, 11 & 12, 2002, at Catuogno Court Reporting, 446 Main St., Worcester MA and at the BSEA, 350 Main St., Malden, MA, before Rosa I. Figueroa, Hearing Officer. The Parents’ request for Hearing was received on April 9, 2002. This matter was originally assigned to Hearing Officer Catherine Putney-Yaceshyn and was first scheduled to proceed to Hearing beginning on August 5, 2002. On the first day of Hearing, the Parties entered a temporary agreement whereby Shrewsbury Public Schools (hereinafter, “Shrewsbury”) agreed to fund the Student’s (hereinafter, “Student”) placement at the May Center through December 2003. The Parties further agreed that if they were unable to resolve the remaining issues they would proceed to hearing. On November 19 th , a new Hearing was scheduled to begin on December 3, 2002.
The case was administratively reassigned to Hearing Officer Rosa I. Figueroa on November 25, 2002. On November 27 th an Order was issued following a telephone conference call with the Parties addressing some issues regarding exhibits, a motion for sanctions and setting the time and location of the Hearing.
The Parents’ written closing argument was received on February 3, 2003 and the School’s on February 4, 2003. The Record closed on February 4, 2003 upon receipt of the Parties’ written closing arguments. On March 5, 2003 an Order directing Shrewsbury to continue the Student’s placement at the May Center through the end of the 2002-2003 school year was issued. This decision contains additional orders addressing all of the issues raised by the Parties.
Those present for all or part of the Hearing were:
Constance Hilton, Esq. Attorney for the Student/Parents
Michelle Arons, M.A. Senior Director of Education and Training, The May Center For Education and Neurorehabilitation
Michael Dorsey, Ph.D. Psychologist, Independent Evaluator/Consultant
Erin Dunn, Ph.D. Psychologist, The May Center For Education and Neurorehabilitation
Charles Gunnoe, Ed.D. Neuropsychologist, Franciscan Children’s Hospital
Gary Pace, Ph.D. Senior Vice President of Neurorehabilitation Services at the May Institute
Jill Ashworth Speech and Language Pathologist at The May Center For Education and Neurorehabilitation
Michael Grimes Classroom Teacher at The May Center For Education and Neurorehabilitation
Michelle M. Tierney, M.Ed. Associate Director of Education at The May Center For Education and Neurorehabilitation
Steve Depuis Shrewsbury Public Schools, Special Education Administrator
Sharon Heavey, M.A. Shrewsbury Public Schools, Psychologist
Elizabeth Hebert Shrewsbury Public Schools, Inclusion Specialist
Nichola Favorito, Esq. Attorney for Shrewsbury Public Schools
Colleen M. Leone Shrewsbury Public Schools, Inclusion Specialist
Margaret Fishkind Shrewsbury Public Schools, Physical Therapist
Gina Ruggieri Shrewsbury Public Schools, Occupational Therapist
Joan Concordia Shrewsbury Public Schools, Speech/Language Pathologist
Christina Preskenis Shrewsbury Public Schools, Third Grade Teacher
Shirley Markey Lemay Shrewsbury Public Schools, Teacher
Nancy Watson Shrewsbury Public Schools
Margery Clark Shrewsbury Public Schools
Parents’ Exhibits 1 through 92 and 98, 99 and 101 to 112A and 113, and School Exhibits 1 through 55E were admitted in evidence and were considered for the purpose of rendering this decision. PE-95, PE-96 and PE-97 were excluded and PE-101 was withdrawn.
1. Whether the IEP proposed by Shrewsbury Public Schools for the 2002-2003 school year offers the Student a Free Appropriate Public Education in the least restrictive environment appropriate to meet the Student’s needs in accordance with state and federal special education law. If not,
2. Whether the Student is entitled to a private day placement at Shrewsbury’s expense, and;
3. Whether the Student is entitled to compensatory education in the form of a private day placement at Shrewsbury’s expense for interruptions in services over the last three years, and/or inadequacy of the programs proposed by Shrewsbury during the 2001-2002 school year.
POSITION OF THE PARTIES
The Parties do not dispute Student’s entitlement to special education services or the areas of disability. Their disagreement stems from the program and services offered to Student over the 2001-2002 and 2002-2003 years, and whether Student should remain placed at the May Center For Education and Neurorehabilitation (hereinafter, “May Center”) for the remainder of the 2002-2003 IEP and beyond. According to the Parents, Shrewsbury failed to provide Student a Free Appropriate Public Education (hereinafter, “FAPE”) during the 2001-2002. They further assert that the program proposed for the 2002-2003 school year in Shrewsbury would not have offered Student a FAPE either. According to them, Shrewsbury did not offer Student a FAPE until it agreed to fund Student’s placement at the May Center in the summer of 2002. Under said agreement Student could stay at the May Center through December 2002. The Parents seek continued placement of Student at the May Center from January 2003 on, with provision of transportation by Shrewsbury from the home to school and back. They further seek compensatory services for Student’s shortened school day (by 15 minutes) throughout his first, second and third grade years and allege some procedural violations. The Parents also wish to be reimbursed for all costs and expenses they have incurred in providing special education and related services to Student, as well as all other relief within the authority of the Hearing Officer which is fair and equitable.
Shrewsbury denies violating Student’s procedural due process rights and affirms that it has always offered Student appropriate programs. The IEPs drafted by Shrewsbury offered Student programs and services that assured him a FAPE in the least restrictive setting. Shrewsbury implemented these programs with the consent of the Parents. Student was able to grow behaviorally and academically during this period of time therefore, it denies that it owes Student compensatory education.
Shrewsbury also contends that all the programs proposed for Student in 2002 including the November 4, 2002 through November 4, 2003 IEP can deliver special instruction to address Student’s needs in the least restrictive setting and offer him a FAPE. Therefore, it should not be held responsible for Student’s placement at the May Center from January 2003 on or any other related services and transportation. Shrewsbury maintains that if its IEP of November 2002 through November 2003 is found substantively inappropriate, its staff is capable of implementing the necessary modifications to render it adequate and appropriate under a FAPE standard in the least restrictive environment.
FINDINGS OF FACT:
· Born on September 20, 1992, Student is a 10 year old, fourth grader receiving services at the May Center in Brockton, MA. Student is a resident of Shrewsbury, MA. (PE-10; SE-45) His entitlement to special education services and areas of disability are not in dispute, though the parties disagree as to the degree of disability. (SE- 45)
· On December 12, 2002, the Parties submitted a Stipulation which terms are hereby incorporated in these facts:
· The Parties executed a written Interim Agreement on August 5, 2002 relative to the above-entitled matter.
· The Interim Agreement provided, inter alia, that Student would attend the May Center for Education and Neurorehabilitation in Brockton, MA through the final school day in December 2002.
· The Interim Agreement provided that Shrewsbury would arrange for and provide transportation for Student to and from his home and the May Center through the final school day in December 2002.
· The Interim Agreement provided that there is no continuing right to payment of Shrewsbury’s share of the tuition for the May Center program or to the provision of transportation for Student by Shrewsbury after the final day of school in December, 2002, unless otherwise agreed to by the Parties or ordered by the Hearing Officer.
· The Interim Agreement provided that it resolved any and all claims, issues, and disputes between the Parties concerning placement and transportation for Student’s program at the May Center from July 1, 2002 through December 30, 2002.
· The Interim Agreement provided that the Parties reserved their rights, claims and defenses regarding Student’s future educational programming after December, 2002 and regarding any claims by the Parents for compensatory services through June 30, 2002.
· The Interim Agreement provided that the terms of the Agreement would be confidential and that the terms of the Agreement may not be construed as an admission by either Party and may not be used as evidence in any subsequent hearing before the BSEA.
· At four months old, Student suffered a stroke of unknown etiology which affected his entire left side, caused him to have seizures and impacted negatively on his speech (PE-2) and language (PE-5). He has difficulty with mobility and has vision depth perception problems (PE-2) and has left exotropia (PE-8). He has been diagnosed with cerebral palsy, left hemiparesis, due to a stroke after which he developed hydrocephaly requiring a shunt implantation in 1994. He then developed a seizure disorder for which he is on medication (Depekane). (PE-3; PE-25) He has been seizure free since 1993. (PE-3) He demonstrates decreased motor control of the left upper and lower extremities. ( Id .) He is able to walk with the aide of foot orthotics in both legs and wears a wrist splint on his left hand. (PE-8; PE-25) His cognitive skills fall in the low to low average range (PE-2) and he presents with a moderate communication disorder (PE-5). Both a Franciscan Hospital evaluation of 2002 and his most recent evaluator at Shrewsbury have described the Student as moderately mentally retarded while the most recent IEP propounded by Shrewsbury continued to describe him as mildly mentally retarded. (PE-54; PE-107; Testimony of Ms. Heavey)
· At two and a half years of age Student underwent an Early Intervention evaluation at the Child Development Center where he participated in a parent/child play-group program. At the time he received speech, occupational and physical therapies at New England Rehabilitation in Framingham. PE-1 At the time of this evaluation, April 11, 1995, he demonstrated gains in all areas with support services. Gains were particularly noted in gross motor skills development (Kathleen B. Tracy, M.A., P.T., Physical Therapist). His fine motor skills were found to be delayed for his age (Katherine L. Thurmond, M.S, OTR/L Occupational Therapist) as were his cognitive and play skills (Deborah Puchovsky, M.S., Developmental Educator). He demonstrated moderately delayed receptive language skills and moderately to severely delayed expressive language skills (Margaret Brooks, M.S., CCC, Speech Language Pathologist). In the area of personal/social skills, while the overall performance was not found to be age appropriate, changes were noticed in his ability to respond to those around him and in his imitation skills and association skills (Nereida Colon, M.S.W. Social Worker). Continuation of services to address developmental needs was noted, especially participation in an intensive physical therapy program, occupational therapy with consultation to his teachers, and structured speech and language interventions. (PE-1; PE-3; PE-4; PE-5; PE-6) According to an evaluation conducted by Sharon Wade, M.A., CCC-SLP, on May 8, 1995, the speech and language interventions should be individual, 45 to 60 minutes long, ongoing throughout the primary school years. (PE-5)
· On April 11, 1995 Student was observed by Janet Maki in preparation to receive special education services through Shrewsbury.(PE-2) She recommended:
1. Assess further the development of motor and cognitive skills.
2. Use repetition of tasks to acquire skills.
3. Increase use of language and communication skills, possibly using black and white pictures to make choices.
4. Assess vision.
5. Continue OT, PT and Speech services.
6. Additional adult assistance needed for safety and mobility.
· Following a Team meeting of May 30, 1995, the Student began to receive services in Shrewsbury under a 502.9 prototype IEP agreed to by the Parents. (PE-8) At that time the Team had an occupational therapy pediatric functional evaluation performed by Genevive Dionne, M.Ed., OTR/L at New England Rehabilitation Hospital, and she recommended both that the Student participate in OT 1 to 2 times per week and consultation to the class. (SE-41) At that time the Student had been receiving occupational therapy, physical therapy and speech therapy at New England Rehabilitation Center since January of 1993. (SE-41)
· Student’s Team gathered again on November 3, 1995 and drafted a 502.8 IEP for the Student to participate in an integrated preschool program at the Beale School. (PE-9; PE-10) That IEP was subsequently amended in June of 1996 to reflect the provision of services over the summer. (PE-12) Pre-School services continued under a 502.8 prototype program IEP between 1996 and 1997. (PE-13; PE-15) The IEP forwarded to the Parents on or about January 29, 1997 and accepted by the Parents in full shortly thereafter, offered the following services: physical therapy consultation with teachers and specials 1 x 15 minutes per week, and speech and language pathology consultation 1 x 15 minutes per week under consultation services. Under direct services in the regular education classroom, this IEP offered participation in an integrated preschool class 2.5 hours 4 days per week, speech by the speech and language pathologist 2 x 30 minutes per week, occupational therapy by the O.T. provider 2 x 30 minutes per week and physical therapy by the P.T. provider 1 x 60 minutes per week. (PE-15)
· On May 21, 1997, the Parents requested that Student participate in an afternoon program in school with structure and supervision. (PE-16) Support of a program that offered the maximum amount of structure was provided by Dr. William Garrison of the University of Massachusetts Department of Pediatrics. Dr. Garrison recommended a full day program inclusive of augmented OT, PT and Speech and Language services, as well as behavior modification training for the Parents in the home. The services were recommended through the summer. (PE-17)
· On April 14, 1998 the Parent contacted Shrewsbury to request that Student attend their summer program on Tuesdays Wednesdays and Thursdays and that Student be able to attend the Greendale Y program on Monday and Fridays. (SE-39) Summer services would run between June 15 th and August 10 th and the Parents would pay for an assistant to accompany Student to the Greendale Y program. ( Id .)
· On April 15, 1997, the Team met to discuss services for Student’s program in pre-kindergarten. (PE-18) They drafted an IEP that ran from 7/1/1997 through 7/1/1998. Student’s Instructional Profile indicates that Student would benefit from a full day program. Student would participate in a half day self contained program to work on specific skills and a half day integrated preschool class to foster the development of age appropriate social and developmental skills. The program called for continuation of extensive speech therapy, the use of a communication log, PT and OT. (PE-18) This IEP was accepted by the Parents. (Testimony of the Parent) Student participated in this program and according to the progress updates of May 1998 by Wendy O’Neill, teacher, Susan Delorme, COTA/L, Loubaina Buxamusa, OTR/L, Kara Ferguson, teacher and Garie Morgenstern Stein, M.S., CCC-SLP, he made great overall strides in all areas of development, especially in the areas of daily living skills. He was toilet trained and during bathroom routines he was “able to wash and dry his hands and face with minimal assistance…could pull his pants down independently, and [could] pull underwear up or down with verbal prompts” and ate independently. ( Id .; see also SE-40, the OT recommendations and progress notes of May 15, 1997) Student’s teachers found him to be to be easily distracted, to require a lot of teacher assistance (including hand over hand guidance through tasks at times), and found that he often engaged in task refusal but responded well to praise, verbal reinforcement and verbal encouragement. (PE-20)
· The IEP covering the period from 5/4/1998 through 5/4/1999 was developed at a Team meeting of May 4, 1998. (PE-19) This IEP offered a 502.4 prototype program for Kindergarten inclusive of participation in a four hour per day summer program. During the school year Student would receive direct OT services in the classroom 2 x 30 minutes per week. The focus of the OT would be to “encourage the use of the left hand, develop perceptual motor skills, fine motor skills and monitor the left hand splint, tactile sensitivity and self feeding and self-care skills.” (PE-20) Under direct services in other settings, he would receive PT at a rate of 1 x 30 minutes per week, Speech 3 x 30 minutes per week and would participate in a multi-age class 5 x 2.5 hours per week. The Parents accepted this IEP in full on June 25, 1998. (PE-19)
· Garie Morgenstern Stein’s speech and language progress notes of June 30 through August 31, 1998, indicate that Student’s therapy focused on strengthening the auditory processing and verbal language skills. (SE-21) Student benefited from open-ended as well as structured language activities which included verbal and visual cueing. (SE-21)
· On September 17, 1998 the Parents consented to a re-evaluation of Student inclusive of a physical therapy evaluation, occupational therapy evaluation, speech and language assessment, psychodevelopmental evaluation and a functional analysis to be performed by Shrewsbury. (SE-37)
· On October 15,19, 22 and 29, 1998, Student underwent a speech and language evaluation with Polly Struthers, M.A., CCC/Sp as part of a three year re-evaluation. (PE-21) At that time he was six years one month old. Due to Student’s “reduced attention span, distractibility, and difficulty gaining and sustaining attention” formalized testing was discontinued as Student “experienced great difficulty adhering to the directions and requests on formal test measurements and scales.” (PE-21) He was found to have improved greatly in the areas of language processing/ comprehension as well as all areas of expressive language abilities. It was recommended that he continue to receive individual and small group speech and language therapy three times per week. The evaluator raised concern regarding Student’s attention and behavior skills, which were felt to impact Student’s ability to learn and to interact with others. (PE-21)
· An OT re-evaluation was performed by Loubaina Buxamusa, OTR/L, on October 15, 1998. (PE-22) The assessment combined clinical observation with the Peabody Fine Motor Scale and items from the Miller Assessment for Pre-Schoolers. The evaluator found that Student was easily distracted and had to be verbally persuaded to interact and complete the activities. His success on an activity depended on his motivation, attention and interest at a given moment. Student is right hand dominant and due to decreased voluntary control of the left upper extremity has to be reminded to use his left hand when engaging in activities involving fine motor and gross motor skills. (PE-22) He demonstrated basic strengths in the areas of perceptual motor skills, which were found to have improved. In the area of self-help skills, he was found to be independent in the area of feeding with finger foods and when scooping with the spoon, but could not use his left hand as an effective stabilizer of the bowl. (PE-22) He was found to drink from a cup independently, serve himself at the table, begin to spear food with a fork, taste new foods, use a napkin and with minimal assistance, refill his glass from a small pitcher and clean up spills with verbal cues. (PE-25) In dressing, he could not manipulate snaps or large buttons but could finish pulling up a zipper if started for him. He was able to pull down his pants for toileting but required help to correctly pull them up. (PE-22) He flushed the toilet and washed and dried his hands and face. (PE-25) With physical prompts he could brush his teeth as well as his hair. (PE-25) He also needed help to put his left arm through a coat sleeve. (PE-22) The evaluator opined that he had the potential to continue to develop and acquire more refined fine motor and perceptual motor skills as well as become more independent in activities of daily living. Continued occupational therapy once per week was recommended. (PE-22; PE-26) In May 1998, five months before, these same evaluators had recommended that the Student receive OT for thirty minutes each session, twice per week during the 1998-1999 school year. (SE-38) The recommendations of October 1998 represented a decrease in the services recommended.
· The developmental assessment performed in October 1998, by Maureen Moore, Ed. D., Certified School Psychologist, showed delays in all areas of development. (PE-23; SE-36) She used the Battle Developmental Inventory (Selected Subtests), Parent Questionnaire, Review of Records, Normative Adaptive Behavior Checklist (NABC) and observation to conduct the assessment. Student’s performance was found to have been compromised by his short attention span and his lack of interest in many of the tasks he was required to perform. He responded well to implementation of the behavior plan implemented in his classroom, encouragement, prodding and persistent redirection to task. (PE-23; SE-36) Student, who was then 6 years old, demonstrated scattered cognitive skills ranging from 27 to 36 months of age with strengths in the social domain. ( Id .) At the time of this evaluation his mother reported that the Student was able to “unzip pants to bottom of zipper, identify coins, identify body parts, state his name and current age, count to ten, and identify objects that are the same… [he was] able to follow two step commands, identify several colors, and identify left and right.” (PE-23; SE-36) Maureen Moore recommended that his program continue to be modified and individualized as needed with a curriculum consistent with his functioning and abilities. ( Id .)
· Elizabeth Raymond, MSPT, performed the physical therapy re-evaluation during which Student was cooperative and was able to follow instructions. (PE-24) At the time of the evaluation he was receiving physical therapy and adaptive physical therapy services. Decreased strength and flexibility of the left lower extremity limited his functional mobility though he was found to have progressed in gross motor skills and functional mobility in the playground and the classroom settings. (PE-24) Ms. Raymond recommended that he continue to receive physical therapy and adaptive physical therapy once per week for 30 minutes. (PE-24) According to Ms. O’Neil, the multi-age classroom teacher, he was no longer receiving adaptive physical education but rather participated in the kindergarten gym class at the time of this assessment. (PE-25) It was noted that Student could move independently within the school building and on the playground. (PE-25)
· Wendy O’Neil, the multi-age classroom teacher, conducted the three-year re-evaluation on October 30, 1998. (PE-25) Student was found to have transitioned well into the Kindergarten program. Communication and comprehension skills were greatly improved when compared to previous assessments. He could ask appropriate “wh” questions and could form sentences made up of 4-5 words. He required predictable daily routines and a behavioral plan to reinforce positive behavior and attention to task. (PE-25) At the time of this evaluation he could handle unpredictable events better and transitioned well from one activity to another throughout the day. Overall, he made good progress in all areas of development, although he needed to continue to work on becoming more independent and completing activities in the self-help and academic areas. He was found to benefit from being with age appropriate peers. (PE-25)
· The Team met again on January 8, 1999 and drafted an IEP amendment to the plan covering the period from January 8, 1999 through May 5, 1999. (PE-27) Student’s IEP was modified to include a PT consultation 1 x 15 minutes per week. (PE-27) This recommendation was made by Dr. Errol Mortimer, M.D. of the Department of Orthopedics and Physical Rehabilitation of the University of Massachusettts Medical Center. (SE-35) Dr. Mortimer recommended at least three sessions of physical therapy per week outside the school, depending on the amount of physical therapy offered in school. (SE-35) His recommendations were received by Shrewsbury on December 9, 1998. ( Id .) The IEP also included a Team consult at a rate of 1x 15 minutes per week. Also, while the total amount of occupational therapy per week, 2 x 30 minutes, was not changed, the location for provision of services changed. The 30 minutes per week of OT would be delivered in the classroom and 30 minutes in the OT area. (PE-27) On January 8 th the Parent gave written consent to increase the physical therapy consultation time by 15 minutes, starting on January 15, 1999. (SE-34) The full IEP, which offered Student services under a 502.3 prototype program, was forwarded to the Parents on February 23, 1999 and the Parent accepted it in full on June 15, 1999. (PE-27)
· Susan Delorme, COTA/L and Loubaina Buxamusa, OTR/L, OT evaluation of May 1999, stated that Student made terrific strides during his twice per week occupational therapy sessions at the Beal School kindergarten program, especially when he was motivated. (SE-33) Student worked on range of motion of his left hand, spontaneous use of the left hand, fine motor, perceptual motor and visual motor skills. ( Id .)
· A review of Student’s progress and Team meeting took place on May 4, 1999. (PE-28; SE-32) Wendy O’Neil, Student’s teacher, reported that Student had made progress in all areas of development during the 1998-1999 school year, including improving his ability to attend to task and in the area of activities of daily living. (PE-28; SE-32) According to her, he benefited from combined structured and unstructured activities and could sit and attend to task for periods of time of 20 to 30 minutes during one-to-one sessions. Student required a behavior management approach inclusive of positive reinforcement. (PE-28; SE-32) He also required a consistent schedule with a familiar routine in a structured environment inclusive of a multi-modal presentation, with a hands-on approach. Frequent opportunities to practice and concrete examples worked best for him. ( Id. )
· The IEP drafted as a result of the May 4, 1999 meeting covered the period from May 4, 1999 through May 4, 2000 and offered a 502.4 prototype program IEP for the first grade. (PE-28) This plan called for the following services: under consultation, PT consult to the Team 1 x 15 minutes per week and Team consultation to work on classroom modifications 1 x 30 minutes per week. (PE-28) Under direct services in the regular education classroom, 5 x 45 minutes per week in the classroom by the regular/special education teachers, OT 1 x 30 minutes per week by the occupational therapist, speech 1 x 30 minutes per week by the speech and language pathologist and OT 2 x 30 minutes per week by the OTR. Under direct services in other settings, participation in a multi-age class 5 x 2.5 hours per week, speech 3 x 30 minutes per week by the speech and language pathologist, OT 1 x 30 minutes per week by the occupational therapist in the OT area, PT 1 x 30 minutes per week by the physical therapist in the PT area, functional academics 5 x 45 minutes per week by the resource room teacher/aide, and, speech 2 x 30 minutes per week by the speech/language pathologist in the special education resource room. (PE-28) This IEP was accepted by the Parent. (Testimony of the Parent)
· Also on May 4, 1999, the Team drafted a separate plan outlining services to be provided to Student during a six-week summer program. (PE-29) This 502.4 prototype program plan proposed direct services in other settings inclusive of: PT 1 x 30 minutes per week by the physical therapist, speech 2 x 30 minutes per week by the speech and language pathologist, OT 1 x 30 minutes per week by the occupational therapist, summer academics 3 hours x 5 days per week. (PE-29) This IEP was accepted by the Parent. (Testimony of the Parent)
· On September 7, 1999, Polly Struthers, Student’s speech and language therapist made several recommendations to the Team regarding improvement of his auditory and receptive language skills as well his expressive language skills. (SE-31) These included: repetition of information; additional processing time; visual aids paired with auditory information; verbal information being presented in concise, short segments, introduction of new vocabulary through multi-modality methods; pre-teaching and continuous opportunities for review. (SE-31) Also recommended were provision of verbal choices; verbal models provided across all settings; use of initial sound cues or sentence fill-ins; facilitation of interactions with peers by suggesting topics; use of visual materials and relating back to Student’s own experiences; and provision of additional time in a relaxed manner. (SE-31)
· The Team gathered again on September 9, 1999 to amend the IEP that covered the period from September 9, 1999 through May 4, 2000. (PE-30) Goals 9, 10, 14 & 15 were deleted, as were some of the objectives in goals 3, 5, 8, 11, 17, 18 and 21. Regarding type, frequency and amount of services this IEP is the same as the one presented to the Parents on May 4, 1999. (PE-30) The plan included a very specific behavior plan that outlines the seven behaviors targeted to be decreased and describes the token board with six rules and ten tokens, which will continue to be implemented to manage his behavior. The behaviors targeted are: bolting, hitting, kicking, spitting, flopping, thrashing and yelling. A one on one instructional aide was provided to assist with consistency with the behavior management as well as minimal physical support. Other classroom modifications include “full time access to a computer/computerized device for the purposes of communication, curriculum instruction and written assignments; positive peer role models for social skill building; daily communication with parents; an alternative behavior program; and modified/alternative testing methods (when applicable).” (PE-30) This IEP, forwarded to the Parents on September 20 th , was accepted in full on October 4, 1999. ( Id .)
· In November 1999, Student underwent an independent neuropsychological evaluation with Michael S. Sefton, Ph.D., Director of the Psychological and Neuropsychological Services at Whittier Rehabilitation Hospital. (PE-31) The behavior rating scales completed by Student’s mother and two teachers described him as having marked difficulty with transitions; working or playing alone, being uncooperative; having poor concentration; clinging; being dependent; having fears, mild obsessions, periodic temper tantrums, being severely inattentive, distractible and academically well below his peers. Student exhibited significant maladaptive behaviors in the Atypical Development Scale including unusual fears, erratic moods, apprehension, being difficult to console and sometimes hitting himself. During the evaluation, he was observed to be anxious, “sensitive to changes in his routine often becoming perseverative and easily frustrated. His capacity to listen and attend to task [was] inconsistent. He [seemed] quite distractible when especially anxious. At these times it [was] hard to redirect and console him. He became tearful and whiny when anxious often clutching his mother. He was described as being motivated to join with peers while in the classroom.” (PE-31) His intellectual functioning was found to be at the age equivalent of 2 years 6 months to nearly 4 years of age, with weaknesses in facial recognition and perfunctory arithmetic, and strengths in expressive vocabulary. At the time of this evaluation he was 7 years 2 months old. His complex medical history contributed to deficits in intellectual functioning, memory, language processing, attention, perceptual motor skills and psychosocial development. (PE-31) His was diagnosed with: AXIS I
436.0 Cerebral Vascular Accident during Infancy- S/P
Hydrocephalous with Ventriculopereitoneal Shunt Insertion and residual Left Hemiparesis
314.00 Attention Deficit Hyperactivity Disorder-Inattentive Variant
293.89 Anxiety Disorder Due to Complications of CVA
315.4 Developmental Coordination Disorder
Rule Out- 317 Mild Mental Retardation
As a result, Dr. Sefton recommended that Student continue to receive a “structured routine with predictable activities and expectations” in a “small group setting with a low teacher pupil ratio [which] will optimize the child’s attention and perhaps enhance social skills interaction…and continuation of his child specific aide…” along with implementation of a meaningful behavioral program. (PE-31) Also recom-mended was continuation of occupational therapy, environmental management, inclusive of preferred seating, to address inattentiveness, and motor training which offers opportunities for repetition and rehearsal which help establish behavioral routines that can make him more independent. He firther recommended a central auditory processing evaluation and a follow-up neuropsychological evaluation in one year. (PE-31)
· The Team met on February 11, 2000 and drafted an IEP covering the period from February 11, 2000 through February 11, 2001. (PE-32) At the time of the meeting, Student was on Ritalin and Buspar to address his anxiety, behavior and attentional difficulties. It was reported that he enjoyed all forms of musical activities, using the computer, media, gym, art and playing with friends, but was still exhibiting difficulty around transitions. ( Id .) He responded well to material presented in discrete trial form, and had the “ability to learn and retain information when…presented in a variety of formats and when it has relevance to his own life.” This IEP offered Student a 502.2 prototype program IEP with the following services: under consultation, PT consult to the Team 1 x 30 minutes per week and Team behavioral/academic consultation to support the IEP goals 1 x 30 minutes per week. Under direct services in the regular education classroom, 5 x 30 minutes per week instruction modification by the regular/special education teachers. Under direct services in other settings, PT 1 x 30 minutes per month by the physical therapist in the PT area, speech 2 x 45 minutes per week by the speech therapist in the speech area, and, OT 2 x 30 minutes per week by the OTR in the OT area. (PE-32) This IEP was accepted by the Parent. (Testimony of the Parent)
· On March 20, 2000, Nina Marchese, M.Ed., of the May Center For Education and Neurorehabilitation filed a report following a March 3, 2000 observation of Student’s program of. (PE-33) She commented that Student appeared to have a heightened sense of sound and was easily distracted by noises caused by other students elsewhere in the classroom. She did not observe consistent use of the penny contract (a token board with ten tokens to reinforce six appropriate behaviors throughout the day) and commented that while it had great potential, “inconsistent implementation could eventually prove to be counter productive.”(PE-33; PE-35) Ms. Marchese observed that the classroom environment was organized and contained several visual pictures around the room, verbal and visual cues were used to introduce activities, and clear and simple directions were used. Student was included with classmates for snack and during play-time, and his desk was positioned in a cluster with four other students. Verbal reinforcement was used when the desired behavior was displayed. (PE-33) Ms. Marchese recommended that everyone be properly trained in the use of the penny contract system “to provide consistency and effectiveness across people and setting”; that clear expectations be set before beginning an activity so that Student knows what he was working towards; that the one-to-one aide continue to work with Student; that direct services in OT, PT and speech and language therapy be continued. She also recommended that the discrete trial format be continued and that the 3 minute break indicated in his profile be implemented; that all teachers be trained in discrete trials method, antecedent management and clinical programming as modeled by Ms. English; that there be training regarding transitions; that Student be provided visual cues inclusive of a schedule board that could travel with him to different settings; that simple and clear cues be used; that summer program planning to prevent regression begin; that use of a home/school communication log regarding medication and behaviors be used to capture changes in symptomatology. (PE-33) Overall, Ms. Marchese supported Student’s participation in a program that was predictable with structured routines, and appropriate scheduled sessions with therapists that provided carryover to the classroom which allowed the Student to blend with his peers. (PE-33)
· During the 3 rd quarter of the1999-2000 school year, Student displayed 90% independence when using the toilet with respect to wiping and flushing, spontaneously washed his hands 68% of the time but decreased bathroom independence to 49% during the 4 th quarter, while improving his ability to wash his hands 71% of the time. (PE-35; SE-20; see also SE-19) His progress towards reaching his fine motor skills goals was described as slow and inconsistent as he participated in tasks for short periods of time “before becoming frustrated and unwilling to participate.” Student’s overall academic skills improved during this year. He made gains in expressive language skills, could follow two step directions and up to three step directions with 84% accuracy, he could count up to twelve, and increased his vocabulary. His teachers reported that his attention to a specific task varied depending on his interest on that subject. (PE-35;SE-20)
· On May 2, 2000, Elizabeth Miner, OTR/L, wrote a letter confirming Student’s participation in weekly occupational therapy sessions at the Whittier Rehabilitation Hospital. (SE-30) His treatment included stretching, range of motion, sensory-based activities and activities of daily living. Student worked on “neuromuscular retraining of his left side and overall proximal strengthening for independent function.” (SE-30) According to Ms. Miner, Student was making excellent gains and showed lasting cumulative effects in attention to task and in organization. (SE-30) Ms. Miner explained that sensory processing and sensory motor ability are linked to Student’s ability to develop attention and all levels of learning, therefore, Student benefited from vestibular stimulation for alertness (i.e. bouncing on a therapy ball, swinging a ball) and from proprioceptive inputs (i.e. bear hugs, rolling a ball on him, joint compression, work patterns that engaged both of his upper extremities). (PE-30) He also benefited from quiet environments so as to enhance his ability to listen to instructions and focus better on the task before him. (PE-30)
· On or about June 2000, Student’s IEP was amended and a six week summer program was included. (PE-34) The additional services in this IEP all fall under direct services in the regular education classroom during the summer. These are: Summer Program 5 days per week x 3 hours per day by the special education teacher, OT 1 x 30 minutes per week by the occupational therapist, and, Speech 2 x 30 minutes per week by the Speech therapist. (PE-34) The Parent declined the OT and the Speech summer services and requested that the summer program last 1 hour 20 minutes instead of 3 hours. (Id.)
· The Team met again on October 18, 2000, to modify Student’s schedule and address transitions resulting from staff changes after the beginning of the year, as well as address issues regarding Student’s surgery. (PE-36; SE-13) An amendment was issued on November 15 th , which among other things, addressed a 2 to 3 week stay/tutorial program. (PE-36) The Amendment made adjustments to Student’s behavior guidelines, stated that reasonable attempts would be made to schedule all of Student’s therapies in the morning, have the school staff consult with the personal care attendant/behavioral specialist, and that the staff collaborate with the Parents on a home schedule board and changing the amount of time Student needs to work to earn his penny. The Amendment also includes the Parents’ concerns regarding earlier planning and discussion of the summer program, discreet trials, wrap-around home services, modified homework assignments and assistance with behavior and Student’s ability to remain in Mr. Burke’s class. (PE-36; SE-13) The IEP mentions that at the Parents’ request, Student was on a waiting list for a behavioral, medical and academic evaluation at Franciscan Children’s Hospital. ( Id .) The additional information section of Student’s instructional profile in this IEP includes the previous observation made by Ms. Miner regarding the benefits derived from servicing Student in a quiet environment. (PE-36)
· Between September 5, 2000 and October 23, 2000 Student faced several health related challenges. On September 5 th he underwent surgery for Achilles heel lengthening, causing Student to be non-ambulatory and in a wheel chair. (PE-54) On October 16 he was admitted to the hospital and a new V-P shunt was implanted because of complaints of headaches and vomiting. On October 18 th the cast for the surgery to the Achilles heel was removed and he was ordered not to participate in gym or negotiate the stairs independently for up to 8 weeks. On October 23 rd the shunt was infected and he required a 3-week hospitalization. (PE-54)
· The Team met again on or about January 8, 2001 and drafted an IEP Amendment covering the period from January 8, 2001 to February 11, 2001. (SE-10) The Team meeting notes show that the Parent requested that Student participate in a full time summer program. (PE-37) The Parent accepted the amendment on February 13, 2001, and therefore the IEP as developed, with the understanding that an additional visit from the O.T. would occur for a total of two O.T. home visits. (SE-10)
· Fast ForWord is a computer-based training program that assists students in speeding up their cognitive processing and improves the acuity with which students understand speech sounds. (PE-39) Student participated in a 7 week program to address auditory processing skills, improve his attention to task and work on his negative behavior. A Fast ForWord information letter of January 11, 2001 and subsequent report by Christine McKenna, Speech and Language Pathologist, states that when Student first started his training “it took 3-4 people to control [Student’s] outbursts of negative behavior. He was able to attend for not more than 30 seconds. He refused to sit in the chair and attempted to leave the room several times. He presented with consistent screeching vocalizations with frequent loud outbursts. [Student’s] mother provided a reward system daily which was effective some of the time.” (PE-39) Student achieved most of his goals over the 50 % of the time when he was able to attend to task and the sessions did not end abruptly due to the uncontrollable physical and verbal outbursts. Overall his attention to task, auditory processing and computer interactions became more effective allowing for better communication. It was recommended that he continue treatment for his behavioral issues as these seemed to hinder his ability to learn. (PE-39)
· On January 25, 2001 the school district recommended another IEP amendment based on Student’s overall performance academically and behaviorally across all settings, as well as Student’s classroom performance, observations, work samples, formal and informal evaluations. (PE-38; SE-12) Input was also sought form the Family Support Coordinator. The handwritten school district narrative proposal further states that none of the options discussed at the Team meeting had been rejected, as such, it was agreed that the Team would be reconvened in February after the Parents had explored outside placements in Boston. The Team would then determine whether the outside placement would meet Student’s learning and behavioral needs. (PE-38; SE-12) The Team agreed to: have the inclusion specialist send the Parents notes regarding the weekly consultation sessions, which the Parents were invited to attend; the child specific aide would remain with him during all of Student’s therapies; and, the consultation between Student’s Behavioral Specialist from HMEA and school staff would occur as needed and Student’s afternoon program behavioral guideline section would change from 15 minute to 7 minute blocks. (PE-38; SE-11) The target behaviors in Student’s behavioral plan were bolting, hitting, kicking, spitting and flopping described as instances of “dropping to the floor and refusing to stand within 10 seconds” that is unrelated to falling due to unsteadiness. (PE-38; SE-11) The Parent rejected the portion of the IEP that addressed occupational therapy, “OT to come 2 times”. (PE-38)
· On January 25, 2001, Ann Neumeyer, M.D., Pediatric Neurologist, performed a neurological consultation. (PE-40) At the time of the evaluation Student, then 8½ years of age, was agitated, cried a lot, and was intolerant of the examination and refused to have the examiner touch him. A possible diagnosis of Pervasive Developmental Disorder was considered and an MRI recommended. (PE-40)
· In February of 2001, Student began to take 25 mgs. of Zoloft at bedtime. (PE-41; SE-9) Student’s Team reconvened on February 13, 2001 and concluded that additional information on Student was required. (PE-41; SE-9; PE-42) A Functional Behavioral Assessment was recommended as Student’s lack of behavioral controls and aggressive verbal and physical behaviors in school and at home affected his progress significantly. (PE-42)
· Student’s progress notes for the third quarter of the 2000-2001 school year state that Student had demonstrated improvement in all areas including behavior. (SE-18) While he had achieved some of the objectives within a goal, he continued to work on most and had not yet totally achieved any of the goals in his IEP. (SE-18)
· Student was re-evaluated by Ann Neumeyer, M.D on March 1, 2001. (PE-44) Again Student was extremely agitated and uncooperative during the examination. In her report, Dr. Neumeyer states that Dr. Cefta, Ph.D., neuropsychologist at the Whittier Rehab Hospital, evaluated Student when he was 7 years 2 months old. Dr. Cefta found Student to be mildly retarded with erratic mood and unusual fears, and to present poor concentration, mild obsessions, periodic temper tantrums, and below average perceptual motor skills and psycholinguistic functioning. (PE-44) The diagnosis was ADHD, anxiety disorder, developmental coordination disorder and rule out mild mental retardation. Dr. Neumeyer reported that according to the Parent, the change in medication to 50 milligrams of Zoloft a day, 15 milligrams of Buspar a day and 10 milligrams of Adderall a day helped Student improve his behavior, swear less, and do better in school. Dr. Neumeyer stated that Student’s behaviors were consistent with a diagnosis of Pervasive Developmental Disorder. She recommended that a neuropsychologist experienced in Autism evaluate him. According to her, the MRI study of February 5, 2001 showed “large right sided temporal occipital lobe infarction extending to portions of the parietal lobe as well. Shunt is in good position and there has been decompression of the right lateral ventricle since the previous CT scan…” A previous MRI performed in July of 1993 “showed near complete loss of right matter within the right cerebral hemisphere. Ventricular dalitation was noted in the third ventricle and no flovoids noted within the aquaductsilvias.” (PE-44)
· On April 6, 2001 an IEP covering the period from 2/13/2001 to 2/13/2002 was forwarded to the Parents recommending that Student continue to receive services in the inclusion program at the Coolidge School in Shrewsbury. (PE-43; SE-7) The Team did not recommend that Student participate in the Fast ForWord program. (PE-43; SE-6) Student’s disabilities were seen as mild mental retardation, ADHD, ODD OCD, developmental coordination disorder and left hemiplegia. (PE-43; SE-7) The IEP states that the Parent had expressed concerns that the gap between Student’s ability and the academic demands was widening and she wished for an establishment of basic functional skills for daily living, implementation of a behavioral management plan that incorporated common language to be used by everyone working with Student and the use of discrete trial training for vocabulary and sight word building. (PE-43) The IEP offered Student participation in an inclusion program with 1 x 30 minutes per week each consultation for PT by the physical therapist and 1 x 30 minutes per week resource consultation by the resource room teacher, 1 x 45 minutes per week direct PT services in the general education classroom, and, direct services in other settings daily for behavior by the special education reading teacher, 5 x 45 minutes per week academic support by the special education teacher, 2 x 45 minutes per week speech by the speech therapist, and 2 x 30 minutes per week OT by the occupational therapist. (PE-43; SE-7) The Parent rejected the following portions of the IEP on May 7, 2001: parent concern, vision statement, requested that the OT be 10 to 15 minutes longer, asked that a social skills goal be added and requested several other additions to goals #1, 2, 5. (PE-43; SE-5) Also, the Parent attached a 3 page document expressing her concerns in specific areas which included the vision statement, goals # 1, 2, 5, 6, specific design modifications and other. (SE-5) The Parents checked and signed the Placement decision sheet as “consented.” (SE-5)
· Lynn Grush, M.D., Child Psychiatrist, evaluated Student on May 21, 2001 and recommended changes to his medications to include a mood stabilizer and referred Student for a multidisciplinary evaluation. (PE-45)
· Difficulty with transitions, behavior and illness impacted negatively on Student’s ability to progress effectively during the 2000-2001 school year. (PE-48) Ms. Concordia states that “limited direct service time has impacted work” on Student’s ability to use “basic expressive language structures in spontaneous speech.” (PE-48) In her opinion, Student’s processing skills are best when attention and behavior are appropriate, when structures are imposed and distractions are at a minimum.” ( Id .) Elizabeth Hebert states that he is “able to execute 2 step directions but has difficulty retaining the information to complete 3 steps. (PE-48; PE-89; SE-42) He is able to follow group directions when his attention is focused.” He could also sequence up to 4 events in a single story and could recall a number of details randomly when stories were read to him. He required verbal cues to use two hands during activities requiring bilateral use of hands, though occasional use of the left hand was observed. He continued to require physical assistance to conduct or complete functional skills but could initiate some activities independently. (PE-48) Academically, he showed progress in word recognition skills, math addition and subtraction using manipulatives (but continued to have difficulty with 1:1 correspondence), and participating in special and routine activities. (PE-49: SE-15) Increased appropriate behavior during the last quarter allowed him to follow 1 out of 5 directions correctly and he demonstrated “nice pragmatics”. (PE-49)
· Student’s Team convened again on June 14, 2001 and Student was offered essentially the same services as those described in the previous IEP for the period covering June 14, 2001 through June 14, 2002, except that OT was increased to 2 x 45 minutes per week, and Student was offered a five days per week, six week summer program. (PE-46; SE-4) The summer program consisted of 3 hours, 5 days per week direct services during a 6-week period by the summer staff. Also offered under direct services during the summer was speech 2 x 30 minutes per week by the speech therapist, OT 1 x 30 minutes per week by the occupational therapist and consultation for physical therapy 1 x 30 minutes per week by the physical herapist. (PE-46; SE-4) On August 3, 2001, the Parents accepted the proposed placement at the Coolidge School but partially rejected the IEP in that Student needed a “writing/ word-letter recognition, phonics objective/ goal.” (PE-46; SE-4) Student’s schedule shows that Student was allotted two OT sessions per week totaling 70 as opposed to 90 minutes per week for OT as stated in the IEP, and his Friday speech session was allotted 40 as opposed to 45 minutes per week. (PE-51)
· Student’s progress report card for the 2000-2001 school year shows that for the most part he did not meet grade two expectations as a beginner reader/writer, speller or in handwriting. In Math he demonstrated inconsistent progress in work habits and social attitudes and growth. (PE-47) On November 29, 2001, Ms Heavey, Calvin Coolidge School’s psychologist, wrote to the Parents to follow up on the consultation by the Parents of October 25, 2001. (PE-49; PE-89, SE-42) Ms. Heavey confirmed that Student was provided a child-specific aide throughout the day who helped him “generalize services provided by the therapists into the classroom setting.” (PE-49; PE-59)
· Debbie L. Gluszczac, speech and language pathologist who serviced Student during the summer of 2001, commented that she had to give Student 2 -3 minute breaks every 12 – 3 minutes during therapy. (PE-50) He often appeared frustrated and made verbal refusals to tasks such as “‘This is stupid’, or ‘No! Go away!’” though his behavior and performance was better when Ms. Breen accompanied him. By the last two weeks, Ms. Breen was not in the room with him at all. (PE-50; PE-89; SE-42) Ms. Gluszczac found that by ignoring Student’s behavior after re-directing him to task, he would come to her on his own a few minutes later. (PE-50)
· On September 4, 2002, Shrewsbury sought the Parents’ consent to conduct a three- year re-evaluation in accordance with state law. (SE-27) The re-evaluation would include occupational therapy and physical therapy assessments, and observation of Student, an educational assessment, a health assessment, a psychological assessment, the Test of Receptive and Expressive Language, Brigance Diagnostic Inventory of Early Development, Informal Inventories, Vineland Adaptive Behavior Scale and the Normative Adaptive Behavior Checklist. (SE-27)
· The classroom performance assessment performed on September 28, 2001 at the beginning of Student’s third grade states that the he received resource room assistance, adaptive physical education, speech, OT and PT in order to access the general curriculum. His teachers and aide stated that at the time of this assessment Student could not read, spell or write, had difficulty understanding directions, could identify a handful of words, knew numbers 1 through 10 by sight, could complete simple addition such as 3 + 2 with assistance and a board maker, required visual and verbal cues to recall skills previously taught or to attend to task, could follow 2-step directions and occasionally 3-step directions, and, became frustrated if unable to complete what was requested of him. (PE-52) According to the teachers, he had developed a positive relationship with peers as other students wanted to help and be with Student. (PE-52)
· Between September 17, 2001 and October 5, 2001, Ms. Hebert performed an educational achievement evaluation as part of Student’s 3-year re-evaluation. (PE-53) Student was compliant with the tester and was able to work for approximately 15 to 20 minutes before taking a break. Breaks consisted of walking or spending time at the computer. According to Ms. Hebert, after a break Student “had difficulty refocusing and could generally work for no more than an additional 10 minutes.” He did better with visual aides, where choices were limited, rather than when information was presented auditorily. When the tasks became too difficult for him his attention wandered and he verbalized his refusals to continue with the tasks. (PE-53) While the report offers no specific test scores, Student, 9 years of age at the time of this evaluation, was found to function between 3 and 6 years of age. On self-help skills his approximate developmental age level ranged between 2 years and 4 years as follows: feeding/eating, a 4 year old equivalence; undressing, 3 year old equivalence; dressing, 2 year old equivalence; unfastening, 3 year old equivalence; fastening, 3 year old equivalence; toileting, 4 year old equivalence; bathing, 3 year old equivalence; and, grooming, 4 year old equivalence. (PE-53) Regarding general knowledge and comprehension his abilities ranged developmentally between those of a 2 and a 6-year old (though most of the skills fell between 3 and 5 years of age). His social emotional development fell between 3.5 and 5 years of age. The evaluator was unable to asses Student’s readiness skills regarding visual discrimination (2 and 3 symbols) and found him to be able to sing the alphabet song (though he said s for x) consistent with a child 5.5 years of age. Upper and lowercase letters readiness was found to be at approximately 5.6 years of age. (PE-53) In basic reading skills he was able to identify one out of 16 signs correctly (exit), could not read any of the color or number words, could not recognize any of the 10 pre-primer words, was unable to correctly chose a picture based on its beginning sound and was only able to identify the letter S when asked to point to a letter that made a certain sound among four letters. He was able to print his name in manuscript. In Math, he was unable to solve problems using 0, could recognize and name a penny and a nickel and knew that a penny was worth 1 cent, could write preceding and following numerals between 1 and 4 and could correctly choose afternoon, morning and night in answering “when do you _” questions. (PE-53) Ms. Hebert concluded that Student’s cognitive impairment impacted his speed for learning, academic ability and retention of information. He also evidenced difficulty in processing and retaining auditory information. ( Id .) Ms. Hebert recommended continued individualized instruction both in and out of the classroom, the use of manipulatives, visual aides and hands on activities; preferential seating; pre-teaching and reviewing of material for long term memory creation; and continued instruction in life skills to help him become more independent. (PE-53) She stated that Student’s attention must be gained before giving him directions and activities should be “broken down into smaller tasks with one or two step directions given at a time in language that [Student] understands.” (PE-53)
· The Psychological Assessment was completed by Ms. Sharon Heavey on September 14, 19, 25 and 26, 2001. (PE-54) As part of the Assessment she conducted observations, a clinical interview, a classroom assessment, and administered the Stanford-Binet Intelligence Scale (4 th edition, SB), Vineland Adaptive Behavior Scales: Classroom Edition, Normative Adaptive Behavior Checklist and the Children’s Nonverbal Learning Disabilities Scale. ( Id .) Student’s range of adaptive functioning was found to be in the low range when compared to age equivalent peers in communication, daily living skills and socialization skills. It was reported by his teacher, aide and the Parent that he is very distractible, has difficulty with change (e.g., teachers or schedule), and becomes very frustrated when he cannot complete a task or verbalize what he wishes to say. Ms. Heavey’s October 9, 2001 report does not include a specific diagnosis but does make several recommendations consistent with those made in Ms. Hebert’s report. Among the recommendations, Ms. Hebert stated that the “teachers should tie in various concepts that he has learned and present material in an organized and meaningful manner in order to show the relationships of these concepts. Introduce new concepts gradually and in a supportive manner, provide frequent feedback.” (PE-54)
· The three year speech and language re-evaluation was performed over several sessions between September 11 and October 16, 2001, by J. Concordia, M.A., CCC-SLP. (PE-55) The evaluation consisted of observation, diagnostic-based language tasks, language sampling and some formalized normative tests, completion of which was affected by Student’s inattentiveness. He was able to work for periods of 15 to 20 minutes, during which his attention fluctuated and was interrupted by either task avoidance or refusals and tangential language, such as “whining, banging on the table, perseverative questions/requests”, before taking a break. (PE-55) According to Ms. Concordia, Student required “frequent repetition of stimulus questions, many prompts to remain on task and frequent cues so as to understand a question and / or formulate a response… much wait time in order to formulate responses…” behaviors which she considered typical of Student’s day to day language functioning. (PE-55) However, she noted that Student had made significant behavioral progress and that overall, he transitioned in an appropriate manner. In measuring receptive language she noted several difficulties and stated that Student was able to follow up to 3-step directions. Regarding expressive language, he was observed to use some signs to convey meaning, demonstrated much difficulty formulating and sequencing his ideas and required a great deal of cues to express complete thoughts. The results of the evaluation showed global language difficulties with significant delays in receptive and expressive language skills. Student’s “understanding of vocabulary, directions, and story grammar is concrete and best aided by much cueing, repetition, and visual supports.” His understanding is greatly impacted by his attentional fluctuations. Ms. Concordia recommended continued speech and language therapy and made several suggestions to enhance Student’s receptive and expressive language skills. (PE-55)
· The physical therapy assessment completed by Margaret Fishkind, MS, RPT on September 10 and 11, 2001, states that Student received physical therapy and adaptive physical education services. Overall, Ms. Fishkind was pleased with his mobility around the school and progress. She recommended that Student continue to receive monthly consultative services from a physical therapist who should individualize an exercise program, and monitor said program as well as the Student’s mobility within the school to assure access and safety. (PE-56; PE-89; SE-42) Student participated in both his classroom period gym class and in adaptive PE. Student’s schedule for the 2001-2002 school year allots one 50 minute per week session for adaptive physical education and a 45-minute per week physical education class. (PE-51) While Student’s IEP states that he will receive a 45-minutes per week physical therapy session, the 2001-2002 schedule makes no reference to physical therapy. (PE-46; PE-51) Ms. Fishkind states that she will put together a mat exercise routine, which Student can follow at home or before his physical education class. (PE-56)
· Gina Ruggieri, MOTR/L conducted the occupational therapy assessment on September 17 and 20, 2001. (PE-57; PE-89; SE-42) During the assessment, Student was able to communicate his needs, but was easily distracted by an insect flying around the light and by people walking in and out of the room. He was unable to refocus on tasks until the lights were turned off and the insect flew away. Ms. Ruggieri noted that Student had made progress in the area of visual-motor and visual-perceptual skills. For instance, he was able to position scissors in his right hand to cut paper, could write his name with fair accuracy, could replace and screw on a bottle cap, and could remove clothes with snaps. He required further work to attain independence in ADLs, and to improve visual-motor skills and bilateral skills. As a result, she recommended that Student continue to receive occupational therapy twice per week for 30 minutes and that his teachers should receive ongoing consultation. (PE-57)
· Student underwent a neurological re-evaluation by Dr. Neumeyer on October 25, 2001. (PE-58) On exam he was “very fearful, cried when a number of simple tasks were requested of him such as removing a shoe or standing on the scale… was not cooperative even to having his head circumference measured… [his] weight by maternal report is 111 pounds and height is 4 ½ feet tall… couldn’t name his morning teacher… could count to 6… identified a lion and kangaroo only with prompts… had difficulties even finding the word for dog… when given choices of names, was able to correctly identify each of those animals.” (PE-58) She recommended that his school program concentrate on life skill issues and that his occupational therapy focus on more than teaching Student how to draw a face and should work on things like zippering and sensory integration. Dr. Neumeyer did not support reducing the amount of OT to twice per week and recommended a neurological follow-up in six months. (PE-58)
· Student’s Team convened on October 25, 2001 to discuss the results of the 3- year re-evaluation and draft the IEP through October 24, 2002. (SE-3)
· Student’s progress report of November 2001 states that Student was completing modified assignments to a 70 % accuracy, had lost some sight words he knew previously, learned to count from 1 to 5 and could rote count into the 20’s but had difficulty identifying numbers greater than 11. (PE-61) His ability to remain on task had improved significantly according to Ms. Hebert. He showed progress with pragmatic skills, could follow multi-step directions in 2 out of 5 trials, and was able to participate in at least 50 % of the regular PE sessions with close supervision and could complete his adaptive PE routine. (PE-61) He continued to require verbal cues at the start and throughout activities to demonstrate use of his non-dominant hand and still could not initiate zipping without assistance nor could he draw a person independently. Participation in group activities fluctuated depending on “the nature of the activity (level of noise, messiness, fears) and he still required cueing to stay focused on the teacher or to act appropriately. (PE-61)
· On December 7, 2001, Shrewsbury forwarded an IEP Amendment to the Parents for the period covering October 25, 2001 through October 24, 2002, after discussing the Student and considering the Parents’ input. (PE-60; SE-3) The Amendment, which proposed that Student continue to receive academic and therapeutic special education services, followed Student’s 3 year re-evaluation and considered the results of the neurological consultation performed at LADDERS. Notwithstanding Dr. Neumeyer’s recommendation, Shrewsbury decided to offer Student OT twice per week for 30 minutes each, and “a third session for two months to augment his exercise regime following the Botox injections.” According to Shrewsbury, no other steps were recommended at the time. (PE-60; SE-3) The IEP attached to the proposed amendment reflects the changes proposed by Shrewsbury and includes a behavior management system description that continues to refer to Student as being a “good second grade worker.” (PE-60; SE-3) On January 10, 2002, the Parent consented to Student’s placement, rejected the IEP services in part, and attached a sheet describing the changes she wished implemented in Student’s IEP. The proposed changes included:
1. Need to add 2 nd page of Parent Concerns from previous IEP.
2. Student strengths- participation in standardized testing is not appropriate at this time.
3. Under accomodation add picture schedule of daily routine, utilize assistive technology and computer.
4. Typo-IEP 3 – progress affected by disability – noncompliance.
5. Add to accomodations – ask Student to repeat directions (not have repeat directions – not clear)
6. Questions on Performance Criteria – is it to be evaluated by educators or how Student’s – performance is expected.
7. Add – Homework will be sent home modified to Student’s ability for completion and for Student to participate in class discussion.
8. Words/letters/math will be updated weekly to home
9. Need 1x/month for ABA coordinator consult.
10. Reject 4 week summer service; should be after summer enrichment program or a 6 week course.
11. Reject OT 2 x 30 sight words, not 20. Add without losing previous learned letters/words. ABA to be used on Goal #1.
12. Goal #1-13 sight words, not 20. Add without losing previous learned letters/words.
13. Goal #2 add without losing previous learned letters.
14. Goal #3 add use of calculator.
15. Goal #9 Quarter 1 Button – change to another skill. Add stretching/strengthening exercises.
16. Goal #7 – expressive language-max, mod, min cues not measurable – need more specifics.
17. Goal #10 OT-maybe change from draw a person to using familiar shapes to construct a person, house, story, etc. either by drawing, using tiles/construction paper shapes, blocks, computer or other manipulatives available. Simple environmental objects using basic shapes.
Goal # 6- add into goal-keep instructions to no more than 5-6 words.
18. Free time, SI, recess is not to be taken away or held as a reward.
19. How come [Student] doesn’t see the reading specialist?
20. Sight words.
Goal #7 – sentence structure – use pecs + practice with peer to achieve goal-
lost “wh” questions, add in -must/should do at home also.
Computer evaluation sheet?
Incomplete file for work. (PE-60; SE-3)
· On February 4, 2002 the Parent also signed a consent form agreeing to Student’s participation in a MCAS alternative assessment. (PE-60)
· Student underwent a multidisciplinary evaluation at Franciscan Children’s Hospital on January 15 & 16, 2002. (PE-62) The evaluations were performed by Charles Gunnoe, Ed.D., Clinical Neuropsychologist, Margaret Read, M.S., C.C.C.S./A. licensed Speech and Language Pathologist, Amanda Martinage, OT/C, Stacey Medina, OTR/L, Priscilla Pano, M.Ed., Educational specialist, Lisa Dembeck, M.A., CCC-A, Audiologist, Sara Jodi Leahy, and Physical Therapist. (PE-62; PE-63; PE-64; PE-65; PE-66; PE-67; PE-68; PE-89; SE-42) At the time of this evaluation Student’s medications included Tegretol, Zoloft, Buspar and Concerta. Student was described as being quite unstable during the evaluations with most of the clinicians reporting Student resisting work, crying, being distractible, having difficulty staying focused and requiring redirection. (PE-62) Neuropsychologically, he was very difficult to test because he could not stay on task for more than moments and was difficult to engage. (PE-62; PE-63) The WISC-III was found to be an inappropriate test given Student’s ability so the Stanford -Binet, Fourth Edition, was administered resulting in a Composite IQ score of 42, which placed him in the moderate range of mental retardation. (PE-62; PE-63) Hearing was found to be adequate for communication although the “test findings suggest[ed] borderline rising to normal hearing bilaterally.” (PE-62; PE-64; PE-67) His receptive and expressive language scores were found to be consistently and severely impaired placing him at approximately a 3½ year-old level at a time when Student was 9 years three months old. (PE-62; PE-64) He was found to be very consistently developmentally delayed but could learn in an environment where structured, specific instructions were offered. (PE-62; PE-64) For instance, Ms. Read stated that with “considerable structure, careful pacing and strong, forceful instruction [Student] was able to work for 1 ¼ hours with no breaks and no tears.” (PE-64) Speech production and oral motor examination were found to be normal. (PE-64) The educational testing found his reading, writing and math skills to be at the emergent level. In this area he was able to write the contraction of his first name, read the word “Exit”, recognize some upper and lowercase letters, and could count from 1 to 22. (PE-62; PE-66) Student however, failed to demonstrate the visual discrimination and phonological awareness necessary to learn to read. (PE-62; PE-66) Occupational Therapy weaknesses included visual-motor, visual-perceptual, fine motor and functional skills while strengths were noted with eye-contact, sensory integration techniques, use of utensils to feed himself and ability to initiate tracing. (PE-62; PE-65) He exhibited below average sensory motor skills. (PE-65) The Physical Therapy evaluation found deficits with gross motor skills, decreased balance, trunk and lower extremity strength. (PE-62; PE-68)
· The interdisciplinary team at Franciscan Children’s Hospital opined that Student was moderately retarded and that he should be in a year-round substantially separate small group classroom with other moderately mentally retarded students instead of in an inclusion program. (PE-62; PE-63; PE-64; PE-66) According to Dr. Gunnoe, the higher expectations placed on Student in the inclusion class could account for some of the performance anxiety evidenced since he found it unreasonable to assume that Student could consistently perform at the level assumed in the inclusion program. (PE-63) Priscilla Pano was of the opinion that Student would “have difficulty making satisfactory progress in a regular education classroom even with modifications and accommodations designed by a special education teacher.” (PE-66) The curriculum should focus on providing Student the “basic skills necessary to live as independent and self-supporting a life as possible”, something that would be difficult for any moderately retarded individual and even more of a challenge to Student who presents a complicated medical and neuropsychiatric profile. The Franciscan Children’s Hospital team recommended that all efforts be focused on developing practical living skills. (PE-62; PE-63; PE-64) Student should receive twice per week 45 minute speech and language therapy and a consultation to the classroom; one time per week physical therapy to focus on balance strengthening, coordination and functional tasks (such as negotiating stairs); small group adaptive physical education twice per week; physical therapy consultation to the instructors, teachers and the family; 45 minute long individual occupational therapy sessions and one session per week outpatient treatment to focus on sensory integration; and, a referral to a behavioral optometrist. (PE-62; PE-65; PE-68) Additionally, Student should participate in daily home stretching supervised by the Parent, and recreational activities such as walking, swimming or karate. (PE-62; PE-68) Dr. Gunnoe diagnosed him as follow:
Axis I: 314.01 Attention deficit hyperactivity disorder, 300.02 Generalized anxiety disorder, R/0296.70 Bipolar disorder NOS.
Axis II: 318.00 Moderate mental retardation, primary diagnosis .
Axis IIII: Left hemiplagia, CVA at 3 months and shunt placement at approximately 1½ years.
Axis IV: Educational problems.
Axis V: GAF 30, current. (PE-63)
· Student’s third quarter progress reports dated January 28, 2002, describe a Student who consistently makes progress and whose behavior continues to improve. (PE-69)
· On February 4, 2002, the Team met to discuss the IEP for the 2002-2003 school year. (PE-70; SE-2) The IEP describes Student as a child with mild mental retardation, attention deficit hyperactivity disorder and left hemiplagia whose disabilities impact mathematical, social language skills, fine motor and physical abilities. (PE-70;SE-2) The vision statement says “we are hoping to curb his anxiety, anger, impulsivity, obsessiveness, mania and aggression better so as not to impede his future learning. We would like to see [Student] participate more in class, hold age appropriate conversations, have peer helpers in class and begin having a social life.” (PE-70; SE-2) The IEP offered Student 1 x 60 minutes per month Physical Therapy consultation, 1 x 60 minutes bimonthly ABA consultation and 1x 30 minutes per week team consultation. It also offered direct physical therapy services 1 x 45 minutes per week. Under Direct Services in other settings, Shrewsbury proposed to address behavior daily by the special education and the regular education teachers, and offered a three hour long five times per week summer program, 5 x 30 minutes per week academic support by a sped staff, 1 x 45 and 1 x 30 minutes per week occupational therapy, 5 x 45 minutes per week academic support, 2 x 45 minutes per week speech and language by the speech and language therapist, and 3 x 30 minutes per week occupational therapy. (PE-70; SE-2) On April 1, 2001, the Parents partially rejected the IEP. (PE-70; SE-2) The Parents specifically rejected the proposed placement and submitted a five-page response addressing areas of concern and providing specific suggestions for changes to the IEP. (PE-70; SE-2)
· Ms. Heavey testified that Shrewsbury provided the Parents a description of the IEP summer school program for the summer of 2002. (PE-112A) The description states on the second line of the title that it is “not for ABA services”. It delineates the policy to be used by the special education staff as follows: the program is available only to children that will “experience ‘substantial regression’” which is defined as “a loss of knowledge of learned skills over the summer vacation that will not be relearned by Thanksgiving vacation,” for whom it is stated in the IEP that they will receive a summer program. (PE-112A) The 2002 summer program ran for 4 weeks between July 8 and August 2, 2002, from 8:15 AM to 11:30 PM, all services were to be provided in a team, and would include OT, PT, speech or other, if required by Student. No make-up session were to be provided for lost sessions and the program was offered as a “package not a menu of services…” and could include lesser services than those provided during the year. For students with rejected IEPs a summer program would be available if they were entitled to one under stay-put. (PE-112A)
· On March 20, 2002, the Computer Learning Program at Children’s Hospital conducted an evaluation to “investigate hardware and software options to enhance learning and bypass the fine motor demands of paper/pencil tasks [and to] provide suggestions for ways to use the computer more effectively.” (PE-71) Carol Cunningham, M.Ed., the evaluator, recommended that Student use a multimedia desktop computer with recording capabilities, IntelliKeys computer keyboard, and a reasonable quality color printer. (PE-71) She also recommended IntelliTalk II software, Boardmaker and from IntelliTools the IntelliPics and Overlay Maker, and also stressed the need for teacher coordination and planning and to successfully integrate technology into Student’s educational program. (PE-71) All those involved with Student, including family members, therapists and teachers should be familiar with the software recommended. (PE-71)
· The Team met again on April 1, April 10 and May 7, 2002 at which times the Parent voiced her concerns with Shrewsbury’s program and the May Center was discussed. (PE-72; SE-8) On April 1 st , Shrewsbury’s staff generally discussed the progress made by Student. (PE-72; SE-8) On April 10 th , the Parent expressed her concerns that the Franciscan Hospital evaluators had not observed Student in the inclusion program and stated that Student was refusing to attend school and was complaining that the work was too hard. (PE-72) The IEP was subsequently revised by Shrewsbury and a new plan forwarded to the Parents on May 10, 2002. (PE-73; SE-1) While the IEP addressed some of the Parents’ concerns, the services as described in the Service Delivery Grid remained the same. (PE-73; SE-11)
· The Parents filed a request for Hearing on April 8, 2002. (PE-76; PE-77) The Parents rejected the IEP services and placement on June 10, 2002, and notified Shrewsbury that Student had been accepted to the May Center program in Brockton and requested that Shrewsbury fund an intensive, specialized, twelve-month program there and provide Student with transportation. (PE-73) During this time Student’s progress reports from Shrewsbury stated that Student continued to make progress and after a decrease in his level of cooperation during the first part of the quarter, his behavior improved. His report card states that he “made tremendous progress” socially and academically during the 2001-2002 school year. (PE-74; PE-78; PE-79; SE-14; SE-15; SE-16; SE-17) Work product samples of June 2001 to June 2002 evidence the progress made by the Student. (PE-81; Compare with PE-82 the Student’s Elementary Handbook) Student however, continued to have some difficulties with 1 to 1 correspondence in Math though he progressed by the end of the year and began to check his work using a calculator. (SE-14; SE-15) While in January 21, 2002 he was reported to be able “to draw a person with eyes, nose, mouth, ears and hair in 3 out of 5 trials” without modeling, in occupational therapy, as well as having the ability to copy a shape after looking at it, these skills had not been fully mastered in May of 2002 as depicted by Student’s sample drawing. (SE-15; PE-111)
· On May 21, 2002, Andrea Potoczny-Gray, Director of Social Services at the May Center for Education and Neurorehabilitation (hereinafter, “May Center”) forwarded to the Parents a description of the types of services that could be offered to Student at that location over a twelve month extended day program. (PE-90) Generally, the program at the May Center uses a “multi-disciplinary approach and provides educational and residential services for children and adolescents with acquired brain injuries and neurological impairments.” (PE-90) It would offer Student: “enriched teaching ratios, neurobehavioral rehabilitation, 7 hour coordination of medical services by a licensed and registered nurse, ongoing medication management, therapeutic evaluation and intervention in physical therapy, occupational therapy and speech and language therapy, individual and group counseling, family support and education and community integration.” (PE-90) The proposal states that a comprehensive treatment plan would be developed after an evaluation period that would last 8 weeks targeting areas of cognition, academics, speech and language, physical therapy, occupational therapy, activities of daily living, social behavior, community integration and recreation and leisure. (PE-90)
· The May Center is a co-ed facility which services 88 students ranging in age from 5 to 21. (PE-91) It is the largest pediatric brain injury school in the country and approximately 81% of its students are discharged to a less restrictive environment. (PE-91) The school’s goal is to help students become “as independent as possible at home, at school, in the community and in the workplace”. The students at this facility present with a combination of disabilities which include memory, processing and organizational difficulties, motivational issues, neurobehavioral challenges, poor safety awareness, difficulty with school performance, social and peer relations and other. (PE-91)
· According to Dr. Erin K. Dunn, Dr. Gary Pace, and other May Center staff, they use the term “in-baseline” referring to the tracking they conduct of target behaviors, where no specific procedures are yet available. (PE-89; PE-100; PE-94; SE-42; Testimony of Dr. Dunn, Dr. Pace, Mr. Grimes) A sample of the document used for baseline tracking is found in PE-100. (PE-100) When a student first arrives at the May Center s/he is put in baseline until a formal support plan is drafted and approved. During this time, specific guidelines must be followed by the behavior team and the rest of the staff to ensure that the students will be kept safe. (PE-100) In baseline procedures allow the “Behavior team an opportunity to conduct functional behavioral assessments and ensure that data is collected for some period prior to intervention.” (PE-100) During this time staff must be very consistent as even minor contingencies may result in serious implications regarding the development of future behavioral plans. (PE-100)
· On June 4, 2002, the Parents filed an application for admissions to the May Center’s extended day-school program on behalf of Student. (PE-92)
· On June 20, 2002, the Parents received an IEP amendment. (PE-86) This IEP amendment offered Student 1 x 60 minutes per month Physical Therapy consultation, 1 x 60 minutes bimonthly ABA consultation and 1x 30 minutes per week team consultation. It also offered direct physical therapy services 1 x 45 minutes per week. Under “direct services in other settings”, it proposed that behavior would be addressed daily by the special education and the regular education teachers, and offered a three hour long five times per week summer program, 15 hours per week academic support by a special education staff person, 1 x 45 and 1 x 30 minutes per week occupational therapy, 2 x 45 minutes per week speech and language by the speech and language therapist, and 3 x 30 minutes per week occupational therapy. (PE-86) The 15 hours per week academic support by a special education staff is the main alteration in the provision of services delineated in the grid. The Team recommended an increase in the amount of time that Student would be spending outside the classroom in anticipation of the complexity of the 4 th grade curriculum. (PE-86) The Parent fully rejected the proposed IEP and the placement for the 2002-2003 school year on June 26, 2002. (PE-86)
· A description of the Coolidge School’s Learning Center, proposed for Student by Shrewsbury depicts the classroom as follow:
The classroom will be structured for children with significant cognitive and communication impairments to work on functional and meaningful skills and activities.
The curriculum will be based on the student’s IEP goals. Included will be activities of daily living (i.e., self-help skills- toileting, dressing, feeding- as well as activities teaching calendar, time and money, and learning about community). Also integrated throughout the curriculum will be practice of functional communication and social skills. Instruction will take place both individually and in small groups.
Additionally, specific academic areas addressed in this classroom would parallel that of the regular education classroom both in time and in content. These content areas include language arts, math, social studies and science, all of which will be modified and adapted to fit the students’ individual needs.
The schedule times students will be included in their respective regular classroom will vary depending upon the appropriateness of the activity. Consult and planning time among the Team members will assist in deciding what activities shall be modified in order for students to most meaningfully participate. (PE-85)
· Shrewsbury’s Home School Communication Log for the period covering February 15, 2002 through June 20, 2002 shows that out of 74 school days, the service providers reported observing behavioral issues on approximately 33 days. (PE-80; SE-25) The behaviors requiring intervention included: refusal to engage in classroom task, engaging in off-task behaviors, inability to control verbal impulses, physically grabbing items, throwing things, banging tables or the desk, kicking the wall (though not much) or door, refusal to participate in class activities, refusal to go to gym, acting silly, walking around the classroom, kicking the desk, complaining that he was tired or did not like school, irritability, and crying. (PE-80) These occurred during school functions, speech and language sessions, sessions in the resource room such as math or reading, gym, music and were also observed when Student’s routine was altered. The behaviors occurred intermittently through June 13, 2002. (PE-80) In some instances, he was reported to work for approximately 15 to 20-25 minutes before getting frustrated or upset and needing a break. Variations in attitude or behavior were observed at times during the same day, or class period. (PE-80) On some instances Student was reported to have good days such as March 19 and 22, April 22 and 26, 2002. (PE-80; SE-25)
· A Children’s Hospital Communication consultation was performed on July 2, 2002 by Patti Ducoff, CCC-SLP and Shannon Hennig, B.S, to discuss visual strategies that could be used to support Student’s expressive and receptive communication skills. The Student was found to benefit from visual supports not only to support expressive and receptive language skills but also to address his high anxiety and low frustration level. (PE-83) A follow up was recommended in 6 to 9 months. ( Id .)
· The Student entered the May Center Program in Brockton, MA, on July 8, 2002. (PE-99; PE-112) In August of 2002, Shrewsbury and the Parents entered an agreement, whereby Shrewsbury agreed to fund Student’s placement at the May Center through December 2002. The contract between Shrewsbury and the May Center however, covers the period between July 1, 2002 and June 30, 2003, and included provision of a school and home program for the Student. (SE-51) At the May Center, Student was placed in a class that offered special education to seven students and was staffed by five adults. (PE-112) Shrewsbury did not draft an IEP for this placement.
· The May Center conducted a Brain Injury Battery which included speech and language, occupational and physical therapy school based evaluations on July 10,16,17 and 19, 2002. (PE-99) The Physical therapist found that Student did not incorporate his left upper extremity into functional or motor tasks requiring verbal and visual cueing to open his left hand and grip objects. When walking too fast, negotiating uneven surfaces or when excited he lost his balance and was not always able to avoid falling. (PE-99) With encouragement and frequent cues he was able to participate in speech and language testing though his reduced attention to task impacted the scores. Receptive language skills were found to be at a 24-month age equivalence. He was observed to respond accurately to one step directions that were familiar to him but he required gestural cues and repetition to more novel multi step questions. Expressive language skills corresponded to those of a 32-month old (2.8 years) child. He demonstrated no initiation of language except when he manifested his dissatisfaction during testing. During testing he exhibited difficulty following multi component as well as novel directions. (PE-99) Student’s behavior and participation in the speech and language and the physical therapy evaluations was rated as fair as he “attempted to escape from activities that were perceived as difficult by whining and stating ‘I just want to get out of here’”. He was found to be cooperative though impulsive, and to become frustrated easily, needing frequent re-direction so that the tasks could be completed. According to the physical therapy and the occupational therapy evaluators, he responded better to concrete 1-2 step command structured routines, and to modeling and verbal cues. (PE-99) Even in one-on-one distraction free environments he was distracted by noises outside the testing room. The speech and language test had to be stopped after 30 minutes because Student became fatigued. Regarding his cognitive functioning he exhibited great difficulty making associated inferences. He required a great deal of assistance to perform self-care skills such as feeding, and dressing and with hygiene. (PE-99)
· During the visual perception test Student did not demonstrate enough visual attention to enable the tester to accurately assess visual spatial relationships of his visual sequential memory. (PE-99) From a functional standpoint, a decrease in visual perceptual skills may impact Student’s ability to pay attention to details, organize his work and discern salient information. ( Id .) The ocular motor control appeared to be within normal limits. The right upper extremity, which he uses 90% more than the left, functioned within normal limits in terms of range of motion and strength. A decrease however, was noted on the left upper extremity. To improve range of motion the Student received Botox injections (PE-99; PE-80) He is right hand dominant. During the fine motor skills evaluation he was asked to draw a person and was only able to produce a picture which had a number of circles with disconnected lines. The right lower extremity functioned within normal limits while the left lower extremity presented with “weakness at the hip, the knee and the ankle dorsiflexors during ambulation and functional tasks” regarding strength and range of motion. He demonstrated good hand-eye coordination when using the right upper extremity only. He used his right and left upper extremities during fine and gross motor activities when encouraged to use both, but required moderate verbal cueing. (PE-99) He was very sensitive to auditory stimuli and seemed to become overwhelmed in extremely noisy settings. (PE-99)
· The May Center staff described the functions affected by Student’s injuries to the particular areas of the brain as follows:
The Frontal Lobe is responsible for planning, initiating and controlling purposeful actions. It assists in time-span judgment, intentional memory, decision-making and determining right from wrong. This section of the brain reflects emotions, often resulting in emotional changes when frontal deficits are documented. Generalized damage to the frontal lobe is associated with decreased motivation, lethargy, decreased concentration, concrete thinking, poor planning or judgement, aggressive behavior, inappropriate sexual/ emotional behavior.
The Parietal Lobe perceives touch and movement accurately. In addition, this portion of the brain is extremely important for considering multiple aspects of an object at a time. Skilled voluntary motor movements are thought to result from this portion of the brain as well.
Generalized damage to the parietal lobe results in difficulties with recognizing touch sensation from opposite sides of the body, right left reversals, neglect, disorientation of environmental space, difficulty with writing, difficulty with overall body orientation. Agnosia refers to a person’s inability to know or recognize people or objects.
The Temporal Lobes are often associated with perception, analysis and evaluation of auditory input.
Generalized damage in the temporal lobe may result in difficulty with information retrieval, receptive speech, expressed behavior (irritability, childish behavior, agitation) hearing deficits, as well as possible seizure disorders.
The Occipital Lobe is the portion of the brain that is responsible for translating visual input coming in through the eyeballs and optic nerves in order to “understand” sight. The occipital lobe on each side of the brain perceives the opposite visual field. (PE-99)
· Given the extent of Student’s difficulties, the May Center recommended that he receive intensive speech and language therapy 2 x 45 minutes per week as well as classroom consultation. (PE-99) Functional speech and language skills would be assessed further. Direct occupational therapy and physical therapy 2 x 30 minutes per week was also recommended. Therapeutically designed strategies would be incorporated within the academic and the residential settings on a daily basis and these strategies would be monitored so they could be modified or discarded when appropriate. (PE-99)
· On July 16, 2002, Michael Dorsey, Ph.D. performed an independent psycho-educational evaluation of Student. (PE-84; PE-89; SE-42) His evaluation consisted of a diagnostic interview of the Parent, a comprehensive review of the recent evaluations, educational documents and reports, an observation of Student at the Shrewsbury program and an informal meeting with the Student’s Team. (PE-84) He noted that according to the Parent, Student left school 15 minutes earlier than the rest of the student population during the previous 3 years which Dr. Dorsey calculated to be 136 hours of lost school/services time. Dr. Dorsey observed Student during a lecture about Mozart and a lecture on the properties of water regarding water surface tension. He described Ms. Lamey’s teaching style as excellent but found the complexity of the project in which Student engaged with other peers to be beyond his capabilities and understanding, causing Student to lose interest in the experiment quickly and spend the majority of his time quiet by resting his head on his arms. (PE-84) He did not observe any student interact or talk to Student during times when other students were appropriately socializing or interacting with one another. Dr. Dorsey stressed that Student’s deficits in short term memory detracted from the “normal use of positive reinforcers to motivate behavior and a typical ‘learning based’ academic model.” Student does not remember new information and therefore individuals with this type of disability respond better to an “‘antecedent’ based model, which does not depend on Student being able to make the connection between his behavior and a consequence (positive or negative) being delivered at a later time.” (PE-84) Dr. Dorsey expressed concern about Shrewsbury’s proposed program for the 2002-2003 school year given that Student would spend half of his educational time isolated in the resource room, the services offered would not provide for generalization and maintenance of acquired skills in the home and other natural environments, only one goal in the IEP addressed adaptive behavioral deficits, and, there was no provision to address social skills deficits. (PE-84) He recommended that Student receive services in a program designed to address the needs of children who presented with mental retardation as a result of a brain injury. The program should include a maximum of 6 to 8 students, with a 1 to 3 staff to student ratio with a staff trained in “Applied Behavioral Analysis as it applies to the education of children with acquired traumatic and/or Acquired Brain Injury.” (PE-84) Dr. Dorsey specifically recommended that Student be educated at the May Center as he required much specialized instruction to achieve even minimal educational benefit from an educational program. Additionally he recommended that the IEP be modified to stress “developmentally appropriate adaptive behaviors, social skills and the use of expressive/receptive skills”, that a functional behavioral assessment be conducted upon arrival, and that a formal Behavioral Intervention Plan be developed, and that his education should be year round with interruptions of no more than 10 consecutive days at any time, across all environments. Only the level of consistency and predictability of a program that runs 24/ 7 will allow Student to benefit from an educational program. H should also receive no less that 10 hours of home-based 1 on 1 ABA services weekly for 48 weeks per year by properly certified and trained individuals. All staff assigned to work with Student should be trained and have experience in ABA. The classroom teacher must additionally be certified and experienced as a special education teacher with training and experience in the education of children in elementary school diagnosed with Acquired Brain Injury, mental retardation and other disabilities. The class itself must be structured based on the principles of Applied Bahavioral Analysis and the service providers must be supervised by a doctoral level Psychologist or Special Educator experienced with the population described before. (PE-84) Finally, Dr. Dorsey recommended that the staff meet regularly and so that collected data can be analyzed and the program can be modified according to Student’s needs and progress. ( Id .)
· On August 21, 2002 Erin K. Dunn, Ph.D. drafted an expanded behavior support plan to reduce the frequency of Student’s maladaptive behaviors as well as to increase appropriate social behaviors such as toileting and use of total communication. (PE-102) The maladaptive behaviors included tantrums, destruction, refusal of task and inappropriate touch. (PE-102)
· The May Center progress notes for Occupational Therapy, Physical Therapy and Speech Therapy of August 2002 describe Student’s progress up to that time. (PE-103) The notes reflect that Student was less argumentative and was becoming more verbal. (PE-103)
· On November 1, 2002, the Student underwent a Pediatric Physiatry evaluation with Dr. Harry Webster, M.D. at New England Medical Center. (PE-104) Dr. Webster was following Student for issues regarding left hemiparesis for which Dr. Webster noted progress. Dr. Webster and Dr. Yassir conducted a combined pediatric and orthopedic evaluation on August 2, 2002 concluding that Student would not require orthopedic intervention unless his gait deteriorated and he had stumbling episodes or began to trip. Dr. Webster reported being “extremely pleased with the relative dramatic improvement noted in Student’s hand,” which he attributed not only to the effects of the Botox injections but also to the occupational therapy program that the May Center was offering Student. He found Student’s wrist to be more actively extendable. (PE-104) The Parent reported that she had observed major gains in Student’s use of the left hand (e.g., holding a crayon or other device for coloring on a wall) since he began attending the May Center. (PE-104) Dr. Webster recommended replacing Student’s hand splint and prescribed a “triceps and wrist extensor functional electrical stimulation trial at Whittier rehabilitation” if Student liked and tolerated the electrical stimulation. He reported satisfaction with the lower extremity functioning in that no regression was observed though no new gains were reported. (PE-104)
· On November 4, 2003, Student’s Team met at the May Center. (PE-105; PE-106; SE-44) The Draft IEP prepared by Shrewsbury for this meeting, which runs from November 4, 2002 through November 4, 2003, identifies, under Present Levels of Educational Performance, the following areas for consideration: adapted physical education, social/emotional needs, assistive technology devices/services, communication, behavior, occupational therapy, physical therapy and nonacademic activities. (PE-106; SE-44) This IEP called for implementation of a behavioral management program. The grid offered the following services: 1 x 60 minutes per month Physical Therapy consultation, 1 x 60 minutes bimonthly ABA consultation and 1x 30 minutes per week team consultation. It also offered direct physical therapy services 1 x 45 minutes per week in the general education classroom; under direct services in other settings, it offered that behavior would be addressed daily by the special education and the regular education teachers; 1 x 45 and 1 x 30 minutes per week occupational therapy; 2 x 45 minutes per week speech and language by the speech and language therapist; and 15 hours per week academic support by a special education staff member. (PE-106; SE-44) Basically, this IEP offered the same services that had been delineated in the previous IEP (See PE-86) of June 20, 2002. (PE-106; PE-86; SE-44)
· On November 14, 2002, Shrewsbury forwarded to the Parents an IEP Amendment which according to Shrewsbury, incorporated updated information provided by the May Center personnel and was cognizant of the increased complexity and demands of a 4 th grade curriculum. (PE-107; SE-44) The life of this IEP is the same as the draft brought by Shrewsbury to the Team meeting on November 4 th described above (see PE-106). The services offered to Student in the IEP forwarded on November 14 th differ in that the latter offers Student the following additional services as described in the Grid: under consultation services it adds a behavior consultation 1 x 30 minutes per week to be delivered by the behavioral consultant. Under special education direct services in other settings the IEP added physical therapy 1 x 30 minutes per week, and a 15 hours per week summer program which would run between July 8 and August 15, 2003. The amount of academic support offered to Student was increased from 15 hours per week to 4 hours per day. (PE-107; SE-44) Student’s schedule was modified to reflect a longer day. The attorneys for both Parties were present during this Team meeting. On November 25, 2002, the Parent rejected both the IEP and the placement decision. (PE-107; SE-44)
· The May Center also prepared a draft (or working) IEP as a result of the Team meeting of November 4, 2002. (PE-108; SE-45) This draft IEP was forwarded to the Parents on November 18, 2002, by Michelle Tierney who also drafted the plan. (PE-108; PE-89; SE-42) It reflected the services being offered to Student at the May Center. Under this IEP general considerations were given to Student’s social/emotional needs, communication, behavior, physical therapy, occupational therapy and speech therapy. (PE-108; SE-45) The grid described the following services: under consultation services it offered ongoing case management, speech therapy, physical therapy and occupational therapy. Under direct services in other settings it offered 35 hours per week of academic services by the May Center teachers, 20-25 hours per week of behavior to be implemented by the May Center teachers, 2 x 30 minutes per week of occupational therapy, 2 x 45 minutes per week of speech and language by the speech therapist and 2 x 30 minutes per week physical therapy by the physical therapist. (PE-108) The schedule was modified to reflect both a longer day and a longer year. (PE-108)
· Student’s progress report notes of November 2002 by the May Center staff describe great progress by Student in behavior, academics, speech and occupational therapy. (PE-112) At the May Center, Student participated in two classroom reinforcement schedules, one was a daily class lottery where the student could earn lottery tickets during the day which he could later exchange for a prize or a soda, and the second was a penny board where the student was given 10 pennies at the beginning of each day and could keep the pennies daily depending on his ability to complete work, display appropriate behaviors, stay on task, etc. At the end of the week, the students could take the pennies to the school’s store and purchase items there. Student was reported to earn between 9 and 10 pennies daily. He was also making steady progress academically in Reading and Math with verbal redirection and individual instruction. Student would reportedly engage in task refusal when he perceived a task as being too difficult or when asked to partake in an activity which he did not enjoy. (PE-112) He was an active willing participant in his speech therapy sessions, made appropriate eye-contact, engaged in proper turn-taking, and was able to express his dissatisfaction or satisfaction with an activity appropriately. He was able to answer “wh” questions correctly in at least 3 out of 5 trials when the questions are “concrete and pertaining to a limited amount of information.” His attentional difficulties impacted his ability to follow directions. (PE-112; SE-49) In occupational therapy the goals set out by Shrewsbury continued to be addressed, but would need to be modified to reflect more realistic goals for Student. (PE-112) O.T. also focused on “developing compensatory strategies for and remediation of visual perceptual and visual-motor integration skills.” (PE-112) He was observed to incorporate his left upper extremity into table top tasks including, among others, coloring, puzzles, blocks and playing with play dough, receiving only 1-2 verbal cues, and would initiate left upper extremity use in the classroom at least 60 % of the time. (PE-112)
RULINGS OF LAW
Due to a brain injury, Student presents with several disabilities including moderate mental retardation, a seizure disorder, left hemiparesis, attention deficit hyperactivity disorder (ADHD), anxiety disorder, emotional and behavioral issues, obsessive compulsive disorder and severe mood swings. (PE-62; PE-84; PE-99, PE-108; Testimony of Dr. Dorsey, Dr.Gunnoe.) He takes Tegretol, Buspal, Concerta and Zoloft to address seizures, emotional and attentional issues. (PE62; PE-84; PE-99, PE-107; PE-108) Student’s disabilities, which fall within the purview of the IDEA and M.G.L. c. 71B, profoundly affect his ability to learn and retain new information and skills. (PE-107; PE-108; Testimony of Dr. Dorsey, Dr. Gunoe, Ms. Hebert, Ms. Heavey, Ms. Dunn, Mr. Grimes, the Parent) He is therefore, entitled to special education services and his eligibility is not in dispute.
The Parties dispute the appropriateness of the services offered to Student at Shrewsbury during 2001-2002, and the services proposed in the 2002-2003 IEP. The Parents assert that since the programs offered by Shrewsbury failed to meet the standards required by law, Shrewsbury should be responsible for placement of Student at the May Center. They also allege that compensatory services are due. Careful review of the evidence before me supports the Parents’ position on most counts.
I. Legal Standards:
A. Maximum Feasible Development:
Only the IEPs offered to Student up to and including December 2001 would fall under the standard in effect in Massachusetts until January 1, 2002. This standard required that students be educated in a program that provided a free appropriate public education (hereinafter, “FAPE”) that assured development of Student’s maximum potential, David D. v. Dartmouth School Committee , 775 F.2d 411 (1 st Cir. 1985), in the least restrictive environment appropriate to meet Student’s individual needs. 603 CMR 28.118.0 Said program was inclusive of special education and related services, that met state educational standards, provided under an IEP that met the requirements of the “Chapter 766” Regulations, at the preschool, elementary or secondary education level. 603 CMR 28.110.0 However since Shrewsbury convened the Team several times since February 2002, those IEPs fall under the FAPE standard in effect since January 1, 2002.
In Massachusetts, provision of a Free Appropriate Public Education as defined by the IDEA is the legal standard by which a public school district must be guided in providing special education to eligible students. MGL c. 71 B § 1, 2, 3; see also 603 CMR 28.01 and 28.02 (21) The IDEA in turn defines FAPE as “special education and related services that:
(A) have been provided at public expense, under public supervision and direction, and without charge;
(B) meet the standards of the State educational agency;
(C) include an appropriate preschool, elementary, or secondary school education in the State involved; and
(D) are provided in conformity with the individualized education program required under section 614 (d).
This standard came into effect on January 1, 2002. It further requires that provision of a FAPE meet the state educational standards, which in Massachusetts are the State Curriculum Frameworks and access to the general curriculum. 20 USC §1414(d)(1)(A)(iii); 34 CFR 300.347(a)(2)(i) and (a)(3)(ii); 64 Fed. Reg. No. 48, page 12595, column 1; MGL c. 71B § 1; 603 CMR 28.02 (12). See In re: Worcester Public Schools , BSEA # 00-0912, 6 MSER 194 (SEA MA 2000) and In re: Gill-Montague Public Schools District , BSEA # 02-1776, August 28, 2002.Consistent with federal law, the student’s program must be implemented in the least restrictive environment appropriate to meet his/her individual needs. The law requires that students have access to a public education rather than an education that maximizes the student’s individual potential. Lenn v. Portland School Committee , 998 F.2d 1083 (1 st Cir. 1993); GD v. Westmoreland School District , 930 F.2d 942 (1 st Cir. 1991). The Federal Courts have stated that the IEP proposed for the student must provide meaningful access to an education that provides “significant learning” and confers “meaningful benefit” to the student, through “personalized instruction with sufficient support services …” . MGL c. 71B § 1, the Massachusetts Department of Education and the interpretations offered by the Massachusetts Courts are consistent with the federal view.
II. Shrewsbury’s Proposed Programs:
The Parents’ compensatory claims dating back to 1999 deal with Shrewsbury shortening Student’s day by 15 minutes in violation of 603 C.M.R.§28.05(4)(d). This claim is consistent with the 3-year statute of limitation applicable in civil rights actions, which has been adopted and applied in previous BSEA cases. In Re: Bourne Public Schools , BSEA #02-3804, 9/18/2002; In Re: Fall River Public Schools , 5 MSER 183 (1999); Murphy v. Timberlane Regional School District , 22 F.3d 1186, 1194 (1 st Cir. 1994); Strawn v. Missouri State Board of Education , 210 F.3d 954 (8 th Cir. 2000) Therefore, I will consider the Parties’ positions beginning on April 9, 1999, three years before the date upon which the Hearing request was received by the BSEA.
The IEPs offered to Student during the 2001-2002 school year, fall under both standards. Those presented before the February 2002 Team meeting would require application of the maximum feasible potential standard in effect in Massachusetts through 2001. The programs and services offered from February 2002 forward require application of the FAPE standard consistent with state and federal law.
Until Student’s transfer to the May Center in the summer of 2002, he was a student at the Beale and Coolidge schools in Shrewsbury. (Testimony of the Parent) Student began attending Shrewsbury in 1995 where he participated in a preschool program for three years. During that time he received speech and language therapy, occupational therapy and physical therapy. He also participated in a three hour per day summer program inclusive of therapies. (PE-8; PE-9 PE-12; PE-13; PE-15, PE-16, PE-18, PE-19, PE-20; Testimony of the Parent) During the third year in preschool he also attended a half a day self-contained special education class. The Parents accepted the IEPs during those years. (Id.) The first year of the Parents’ claim is the 1999-2000 school year.
1999-2000 School Year:
Student’s Team met on May 4, 1999 to discuss first grade services and the summer program. Two separate IEPs were drafted. One (PE-28) covered the period from May 4, 1999 through May 4, 2000 and offered Student a 502.4 prototype program, while the second one (PE-29) covered summer services.
The plan for the 1999-2000 school year offered the following services: under consultation, PT consult to the Team 15 minutes 1 x per week and Team consultation to work on classroom modifications 30 minutes 1 x per week. (PE-28) Under direct services in the regular education classroom, 45 minutes 5 x per week in the classroom by the regular/special education teachers, OT 30 minutes 1 x per week by the occupational therapist, speech 30 minutes 1 x per week by the speech and language pathologist and OT 30 minutes 2 x per week by the OTR. Under direct services in other settings, participation in a multi-age class 2.5 hours 5 x per week, Speech 30 minutes 3 x per week by the speech and language pathologist, OT 30 minutes 1 x per week by the occupational therapist in the OT area, PT 30 minutes 1 x per week by the physical therapist in the PT area, functional academics 45 minutes 5 x per week by the resource room teacher/Aide, and, speech 30 minutes 2 x per week by the speech/language therapist in the special education resource room. (PE-28) For all other subjects/specials Student would be mainstreamed. Under this plan direct services would be provided by the designated professional or by the teacher aide. (PE-28) While the plan’s signature page was not a part of this exhibit, the Parent testified that she had accepted this plan.
For the 1999 summer, Student was offered a six-week summer program consisting of 3 hours per day 5 day per week academics, and the following direct services in other settings: PT 30 minutes 1 x per week by the physical therapist, speech 30 minutes 2 x per week by the speech and language pathologist, OT 30 minutes per week by the occupational therapist. (PE-29) Student participated in this program. (Testimony of the Parent)
Student attended first grade at the Coolidge School in Shrewsbury. Thereafter, he completed his second and third grades at the Coolidge School. (PE-28; PE-30; PE 32; PE 34, PE-36; PE 38; PE- 43; PE-46; PE-47; PE-60; PE-70; Testimony of the Parent) Student was placed in regular education classes where he was exposed to typically developing peers. Student’s behavior was difficult to control during this period and in December 1999, Shrewsbury provided him with a one-to-one aide, Ms. Lynda Breen, to address the behaviors. Ms. Lynda Breen was not a certified regular education or a special education teacher. (SE-42) Ms. Breen remained Student’s aide during the second and third grades.
The Team gathered again on September 9, 1999 to amend the IEP through May 4, 2000. (PE-30) Regarding type, frequency and amount of services, this IEP is the same as the one presented to the Parents on May 4, 1999, described in the section supra , but deleted goals 9, 10, 14 & 15 as well as some of the objectives in goals 3, 5, 8, 11, 17, 18 and 21. (PE-30) The plan included a very specific behavior plan that outlined the seven behaviors targeted. It provided a token board system implemented to manage the bolting, hitting, kicking, spitting, flopping, trashing and or yelling. Under this plan the one-on-one instructional aide was responsible for consistency with behavior management. She also offered minimal physical support to Student. Classroom modifications included “full time access to a computer/computerized device for the purposes of communication, curriculum instruction and written assignments; positive peer role models for social skill building; daily communication with parents; an alternative behavior program; and modified/alternative testing methods (when applicable).” (PE-30) This IEP was forwarded to the Parents on September 20 th and was accepted in full on October 4, 1999. ( Id .)
Tracey English, Student’s first grade teacher, had experience with applied behavioral analysis and implemented an ABA as well as an “errorless” learning approach with Student. (PE- 32; PE 34; Testimony of Parent and Ms. Heavey) These approaches were successful with Student. ( Id .)
In November 1999, Student, then seven years old, was evaluated by Dr. Michael Sefton who found that Student’s cognitive abilities were in the less than 2.6 to 4 year old range. His neuropsychological evaluation found expressive language skills were at the 6 year-old level. (PE-31) He recommended that Student be placed in a small group setting with an aide that provided structured behavioral interventions and that therapies be continued. He noted high levels of anxiety, poor attention and concentration, marked difficulties with transitions, erratic moods, elevated fears and maladaptive behaviors including self abusive behaviors, explosiveness and refusal to cooperate. (PE-31) This was the first time such a program was recommended for Student.
Student’s Team met again on February 11, 2000 and drafted an IEP covering the period from February 11, 2000 through February 11, 2001. (PE-32) Despite Dr. Sefton’s recommendations of November 1999 that Student be placed in a small group setting, Shrewsbury recommended a 502.2 prototype program IEP in February of 2000. (PE-32) At that time Student was on Ritalin and Buspar to address anxiety attentional deficits and behavioral issues. (PE-32) According to Shrewsbury, Student benefited from being with age appropriate peers, enjoyed all forms of musical activities, using the computer, media, gym, art and playing with friends, but was still exhibiting difficulty around transitions. (PE-25: Testimony of Ms. Hebert, Ms. Heavey, Ms. Preskenis) He responded well to material presented in discrete trial form, and had the “ability to learn and retain information when…presented in a variety of formats and when it ha[d] relevance to his own life.” (PE-32) Student’s instructional profile in this IEP states in pertinent part that the “[Student]’s ideal learning environment is a structured, familiar setting with consistent routines and staffing across his day. He currently requires a 1:1 instructional aide in order to provide consistency with behavior management, as well as some minimal physical support.” (PE-32)
The February 2000 IEP offered Student a 502.2 prototype program IEP with the following services: under consultation, PT consult to the Team 1 x 30 minutes per week and Team behavioral/academic consultation to support the IEP goals 1 x 30 minutes per week. Under direct services in the regular education classroom, 5 x 30 minutes per week instruction modification by the regular/special education teachers. Under direct services in other settings, PT 1 x 30 minutes per month by the physical therapist in the PT area, speech 2 x 45 minutes per week by the speech therapist in the speech area, and, OT 2 x 30 minutes per week by the OTR in the OT area. (PE-32) The Parent accepted this IEP. (Testimony of the Parent) According to Shrewsbury, Student made gains during that year. (PE-35; SE-20; SE-19)
On March 20, 2000, Student was observed by Ms. Marchese, of the May Center Foundation, at the request of the Parents. (PE-33) She supported continued participation in the program at Shrewsbury. (PE-33; Testimony of the Parent) Ms. Marchese commented on Student’s attentional issues and how easily he was distracted by normal outside/environmental noise. (PE-33) Later in May of 2000, Elizabeth Miner, OTR/L of Whittier Rehabilitation, who offered Student weekly occupational therapy outside Shrewsbury echoed the benefits of working with Student in a quiet environment. (PE-30) She stressed that it enhanced Student’s ability to listen to instructions and helped him focus better on tasks. ( Id .) Additionally, Ms. Marchese stressed that she had not observed consistent use of the penny board and recommended that everyone be properly trained in the use of the penny contract to provide consistency across all settings. (PE-33) This training however, did not take place. (Testimony of Ms. Heavey and Parent)
In June of 2000, Student’s IEP was again amended to reflect participation in a six week summer program. (PE-34) It offered 3 hours per day, five days per week special education services, OT 1 x 30 minutes per week by the occupational therapist, and, speech 2 x 30 minutes per week by the speech therapist. (PE-34) The Parent declined the OT and the speech summer services and requested that the summer program be 1 hour 20 minutes instead of 3 hours long. (Id.)
2000-2001 School Year:
Student was scheduled to begin the 2000-2001 school year, second grade, in a 502.2 prototype program, attending a regular education classroom with the aide and receiving the therapies described in the section supra . He however, underwent surgery on September 5 th , to lengthen his Achilles heal and remained non-ambulatory until October 23, 2000. (PE-54) He was admitted to the hospital again on October 16, 2000 and a V-P shunt was implanted to ameliorate symptoms of headaches and vomiting. However, after the cast was removed on the 18 th of October, the shunt became infected and he was hospitalized for three weeks. (PE-54) Student’s Team met on October 18 th and on November 15, 2000 an Amendment was issued providing a more specific behavior management plan and changes to Student’s schedule recommending that the therapies take place in the morning. (PE-36; SE-13) The Amendment memorialized the Parents’ concerns regarding the program, their request for home assistance and the fact that the Student was on a wait list for an evaluation at Franciscan Children’s Hospital.
Team met again on January 8, 2001 to consider the Parents’ request that Shrewsbury fund Student’s participation in the Fast ForWord program, that he participate in a full time summer program and the Parents’ concern about Student’s behavior at home and the overall program in school. (PE-37; PE-39; SE-10) On January 25, 2001 Shrewsbury recommended another amendment to the IEP addressing home/school communications as well as Student’s behaviors, but no home services were offered. (PE-38; Testimony of the Parent) The Parents rejected that portion of the IEP that addressed occupational therapy and requested that OT continue to be provided twice per week. (PE-38; Testimony of the Parent) Also on January 25 th , the child was seen by his neurologist, Dr. Neumeyer, who raised the possibility of a Pervasive Developmental diagnosis given Student’s behavior and recommended that he undergo an MRI. (PE-40) This diagnosis was later confirmed by Dr. Neumeyer in March of 2001. (PE-44) Soon thereafter, Student began to take 25 mgs. of Zoloft in addition to Buspar and Adderall, the combination of which proved to have a positive effect on Student. (PE-41; SE-9; PE-44)
The Team met again on February 13, 2001, to conduct the annual review. (PE-42) They concluded that a Functional Behavioral Assessment was required as they lacked sufficient information regarding Student’s lack of behavioral controls and aggressive verbal and physical behaviors both in school and at home. These behaviors interfered with Student’s ability to progress. (PE-42) Ms. Heavey, the School psychologist requested that the functional behavioral assessment be conducted via memorandum to the then Director of Special Education, but this was never done. (PE-42; Testimony of Ms. Heavey) The Parents again requested that an ABA approach be used. Shrewsbury turned down their request to fund the Fast ForWord program. (PE-41; PE-42)
In April, Shrewsbury forwarded to the Parents an IEP for the period covering February 13, 2001 through February 13, 2002 recommending continued services in the inclusion program at the Coolidge School. (PE- 43; SE-7) The Student’s disabilities were listed as mild mental retardation, ADHS, ODD OCD, developmental coordination disorder and left hemiplegia. (PE-43; SE-7) The Parent expressed concerns that the gap between the Student’s ability and the academic demands was widening and she requested establishment of a basic functional skills for daily living plan, implementation of a behavioral management plan that incorporated common language to be used by everyone working with the Student and the use of discrete trial training for vocabulary and sight word building. (PE-43)
The IEP offered 1 x 30 minutes per week consultation for PT by the physical therapist and 1 x 30 minutes per week resource consultation by the resource room teacher. It also provided 1 x 45 minutes per week direct PT services in the general education classroom. Under direct services in other settings Student’s behavior would be handled daily by the special education/reading teacher. He would also receive 5 x 45 minutes per week academic support provided by the special education teacher, 2 x 45 minutes per week speech with the speech therapist, and 2 x 30 minutes per week OT with the occupational therapist. (PE-43; SE-7) The IEP does not mention whether an ABA approach will be used or how it would be implemented. The Parent rejected portions of the IEP on May 7, 2001 and on the IEP itself expressed her concerns over the vision statement, she requested that the OT be 10 to 15 minutes longer, asked that a social skills goal be added and requested several other additions to goals #1, 2, 5. (PE-43; SE-5; Testimony of the Parent) The Parent also attached a 3 page document detailing concerns in the specific areas regarding the vision statement, goals # 1, 2, 5, 6, specific design modifications and other. (SE-5) The Placement decision sheet was checked and signed as consented by the Parent thereby accepting placement of Student in Shrewsbury. (SE-5)
In May 2001, Student was evaluated by Dr. Lynn Grush, a child psychiatrist at Franciscan Children’s Hospital. (PE-45) She noted significant behavioral problems regarding extreme anxiety as well as difficulties with attention and focus, found to be consistent with Attention Deficit Hyperactivity Disorder. She also found that Student presented a “cycling quality to his mood and his agitation and irritability.” (PE-45) Changes to Student’s medications to include a mood stabilizer were recommended and a referral for a multidisciplinary evaluation was made by Dr. Grush.. ( Id .)
Student’s progress report card for the 2000-2001 school year shows that for the most part he did not meet grade two expectations as a beginner reader/writer, speller, or in handwriting, did not meet expectations in Math and demonstrated inconsistent progress in work habits and social attitudes and growth. (PE-47)
2001-2002 School Year:
On June 14, 2001, Student’s team convened again and Student was offered essentially the same services as he had been offered before. (PE-46; SE-4) This IEP for Student’s third grade, which ran from June 2001 through June 2002, continued Student’s placement in the regular education classroom with some support services outside the general education classroom. Namely, the consultation by the different providers remained the same as in the February IEP and he would continue to receive 45 minutes of academic support daily, 2 x 45 minutes per week speech and language therapy and behavior management would be addressed daily by the special education/reading teacher. Occupational therapy was increased to 45 minutes twice per week. (PE-46; SE-4) Ms. Gluszczac, the summer speech and language pathologist, commented that the maladaptive behaviors continued during the summer but that Student behaved better when the aide was with him, and noted improvement towards the end of the summer. (PE-50)
The IEP included essentially the same summer program offered previously, that is, a six week, three hours per day, five days per week, program and therapies. The therapies included a once per week 30 minutes physical education consultation, twice per week 30 minutes direct speech and language services and one 30 minutes occupational therapy session per week. ( Id .) The Parent accepted the proposed placement at the Coolidge School on August 3, 2001, but partially rejected the IEP in that Student needed a “writing/word-letter recognition, phonics objective/goal.” (PE-46; SE-4) Student’s schedule shows that Student was allotted two 35 minute OT sessions per week adding up to 70 as opposed to 90 minutes per week as called for in the IEP, and his Friday speech session was allotted 40 as opposed to 45 minutes per week. (PE-51)
Student attended the Coolidge School program in Shrewsbury as described above for third grade. (Testimony of the Parent) His morning teacher in the regular education classroom was Shirley Lemay and the afternoon teacher was Ms. Breene continued to be his aide and he received one 45-minute period per day of academic support with Ms. Hebert. Student received speech and language therapy and occupational therapy, physical therapy consultation and most of his team of teachers met weekly for 30 minutes. (PE-89; SE-42; Testimony of Parent, Hebert, Heavey, Fishkind, Preskenis) Ms. Hebert provided direct services and modifications to the curriculum to which Student was exposed in the regular classroom. (SE-42, Testimony of Ms. Hebert) Student’s aide was responsible for carry over, generalization of skills and at times helped with the instruction of the modified information in the regular education classroom. (PE-49; PE-59)
The behavior management program incorporated in Student’s IEP was stopped soon after the semester started, but the Team was not reconvened prior to dropping the service, and consent was not sought from the Parents. Consultation with an ABA coordinator was later added to Student’s IEP drafted in February 2002. (SE-2) Ms. Breen and Ms. Hebert testified that during the spring of 2002, Ms. Hope Murphy provided them with approximately two to four sessions total (one per month) of ABA consultation, although the Parents were not previously notified nor were they offered ABA consultation in the home. (PE- 46; PE 51: Testimony of Parent, Hebert, Heavey)
In September of 2001, Shrewsbury began an evaluation of Student, which took place over several weeks under optimal conditions for Student. (PE-52; PE-57) The evaluations included testing and observations. (Testimony of Ms. Hebert, Concordia, Fishkind, Heavey, Ruggieri) Ms. Heavey evaluated Student’s cognitive functioning concluding that the Student was moderately mentally retarded. (PE-54; Testimony of Ms. Heavey) While she characterized Student’s social skills as “a strength,” these were found to be in the low adaptive range primarily at the 3-year-old level. (PE-53; PE-54) Self-help skills were found to be at the 2-5 year old level and general knowledge and comprehension was at the 2 to 5 year old levels. (PE-53; PE-54) At the time Student was nine years old. Ms. Fishkind, a certified physical therapist in Shrewsbury recommended that Student receive monthly consultation and support in adaptive Physical education following her evaluation. (SE-3; PE-56) Ms. Fishkind was of the opinion that Student was “very functional”, could ambulate safely around the school building and therefore, presented no safety concerns. (Testimony of Ms. Fishkind) Ms. Ruggieri a certified occupational therapist in Massachusetts, provided services to Student around self-help skills during 2001. (SE-42; Testimony of Ms. Ruggieri) She noted progress regarding Student’s use of the left hand to stabilize during self-help tasks without requiring much prompting. (Testimony of Ms. Ruggieri) Overall his abilities continued to be quite limited, he presented extremely limited age-appropriate spontaneous language skills and still engaged in inappropriate behaviors. (PE-52; PE-53; PE-54; PE-55; PE-57)
Ms. Hebert recommended that Student continue to participate in the same type of partial inclusion program. (SE-53) She noted improvement between the second and third grades regarding Student’s attention, participation in class, interactions with peers and staff, accuracy in and ability to retain learned information. (PE-74; PE-78; Testimony of Hebert) According to Ms. Hebert, his primary maladaptive behavior continued to be refusal to task, for which he was on a behavioral management system, but he was no longer throwing books or laying down on the floor and refusing to complete tasks. (PE- 80; Testimony of Ms. Hebert) Student’s spelling, reading and writing instruction was provided by Ms. Preskenis, a certified special education teacher in MA, with experience dealing with behaviorally and cognitively challenged girls. She testified that Student was instructed in a class with sixteen students and one aide in addition to Ms. Breene, and testified that lessons were modified to according to Student’s capabilities. (SE-43)
Dr. Ann Neumeyer re-evaluated Student on October 25 and found Student to present as very fearful, uncooperative and he cried at requests as simple as asking him to remove his shoes or get on the scale. (PE-58) According to her, he “could not name his morning teacher…identified a lion and a kangaroo only with prompts…had difficulty finding the name for dog…”. (PE-58) She recommended that the school program concentrate on life skill issues and occupational therapy that focused on more than teaching Student how to draw a face. Student should also work on things like zippering and sensory integration. Dr. Neumeyer did not support reducing the amount of OT to twice per week and recommended a neurological follow-up in six months. (PE-58)
Student’s Team convened on the same date as Dr. Neumeyer’s evaluation, October 25, 2001. They discussed the result of the 3-year re-evaluation performed by Shrewsbury and drafted the IEP covering the period through October 24, 2002. (SE-3) The IEP Amendment was forwarded to the Parents on December 7, 2001. (PE-60; SE-3) The Amendment proposed that Student continue his placement in the regular education classroom with the same support services, except for OT which was decreased. Shrewsbury offered OT twice per week for 30 minutes each, and “a third session for two months to augment his exercise regime following the Botox injections”, notwithstanding Dr. Neumeyer’s recommendation. (PE-60; PE-58: SE-3) Ms. Ruggieri, Shrewsbury’s occupational therapist, opined that the Student had reached a plateau. (Testimony of Ms. Ruggieri) According to Shrewsbury, no other steps were recommended. (PE-60; SE-3) The IEP attached to the proposed amendment reflects the changes proposed by Shrewsbury and includes the behavior management system description that appeared before, even though it was not being implemented. (PE-60; SE-3) The description continues to refer to Student as being a “good second grade worker.” (PE-60; SE-3) On January 10, 2002, the Parent consented to Student’s placement, rejected the IEP services in part, and attached a sheet describing the changes she wished implemented in Student’s IEP which were detailed in pages 22 and 23 of the fact section of this decision.
On January 15 and 16, 2002, Student was evaluated at Franciscan Children’s Hospital inclusive of a neuropsychological evaluation, a speech and language evaluation, an audiological evaluation, an educational evaluation an OT evaluation and a physical therapy evaluation. (PE-62; PE-68) The interdisciplinary team at Franciscan’s opined that Student had a primary diagnosis of moderate mental retardation along with attention deficit hyperactivity disorder, generalized anxiety disorder, bipolar disorder NOS, left hemiplagia, CVA at 3 months and shunt placement at approximately 1½ years, educational problems, GAF 30, current. (PE-63) He was found to be severely impaired cognitively, functioning at approximately the 3½- age level. They opined that he should be in a year round substantially separate small group classroom with other moderately mentally retarded students instead of in an inclusion program. (PE-62; PE-63; PE-64; PE-66) According to Dr. Gunnoe, the higher expectations placed on Student in the inclusion class could account for some of the performance anxiety evidenced since he found it unreasonable to assume that Student could consistently perform at the level assumed in the inclusion program. (PE-63; Testimony of Dr. Gunnoe) Priscilla Pano was of the opinion that Student would “have difficulty making satisfactory progress in a regular education classroom even with modifications and accommodations designed by a special education teacher.” (PE-66) The curriculum should focus on providing Student the “basic skills necessary to live as independent and self-supporting a life as possible”, something that would be difficult for any moderately retarded individual and even more of a challenge to Student who presents a complicated medical and neuropsychiatric profile. (PE-62; PE-63; PE-64) The multidisciplinary team recommended that all efforts focus on developing practical living skills, including twice per week 45 minute long speech and language therapy and a consultation to the classroom; once per week physical therapy to focus on balance strengthening, coordination and functional tasks (such as negotiating stairs); small group adaptive physical education twice per week; physical therapy consultation to the instructors, teachers and the family; 45 minute long individual occupational therapy sessions and one session per week outpatient treatment to focus on sensory integration; and a referral to a behavioral optometrist. (PE-62; PE-65; PE-68) Additionally, Student should participate in daily home stretching supervised by the Parent, and recreational activities such as walking, swimming or karate. (PE-62; PE-68) In contrast, Shrewsbury’s third quarter progress reports dated January 28, 2002 describe a Student who consistently makes progress and whose behavior continues to improve and continued to view him as a child with mild mental retardation. (PE-69) According to Shrewsbury, the results of the evaluation were consistent with and similar to the results of their 3-year re-evaluation. (Testimony of Ms. Concordia, Ms. Heavey, Ms. Hebert, Ms. Fishkind and Ms. Ruggieri)
The Team met again on February 4, 2002, to discuss the IEP for the 2002-2003 school year. (PE-70; SE-2) At that time neither Shrewsbury nor the Parents had received the results of the evaluation at Franciscan’s. The IEP describes Student as a child whose disabilities impact on mathematical, social language skills, fine motor and physical abilities. (PE-70; SE-2) The vision statement further says “we are hoping to curb his anxiety, anger, impulsivity, obsessiveness, mania and aggression better so as not to impede his future learning. We would like to see [Student] participate more in class, hold age appropriate conversations, have peer helpers in class and begin having a social life.” (PE-70; SE-2) The IEP offered Student 1 x 60 minutes per month physical therapy consultation, 1 x 30 minutes per week team consultation and added 1 x 60 minutes bimonthly ABA consultation. It also offered direct physical therapy services 1 x 45 minutes per week. Under direct services in other settings, it proposed to have the special education and the regular education teachers manage Student’s behavior daily, 1 x 45 and 1 x 30 minutes per week occupational therapy, 5 x 45 minutes per week academic support, 2 x 45 minutes per week speech and language by the speech and language therapist, 3 x 30 minutes per week occupational therapy, and added 5 x 30 minutes per week academic support by a special education staff which would begin in September of 2002, Student’s fourth grade. (PE-70; SE-2) It also offered a four-week long, three-hour per day, five day per week summer program. ( Id .) This was a reduction in the length of the program as in the past Shrewsbury had offered Student a six-week summer program. (Testimony of the Parent) On April 1, 2001, the Parents partially rejected the IEP. (PE-70; SE-2) This time, the Parents specifically rejected the proposed placement and submitted a five-page response addressing areas of concerns and providing specific suggestions for changes to the IEP. (PE-70; SE-2)
Additional recommendations for the use of hardware and software options were made on March 20, 2002, by Carol Cunningham, M.Ed, of the Computer Learning Program at Children’s Hospital. (PE-71)
The Team met again on April 1, April 10 and May 7, 2002 and the Franciscan evaluation results were discussed. (PE-72; PE-73; SE-1; SE-8) Shrewsbury disagreed with Franciscan’s recommendation for a substantially separate program for Student. The Parent voiced her concerns over Shrewsbury’s program in light of the Franciscan’s findings and requested that Shrewsbury use ABA techniques daily and asked that Student be placed at the May Center and be provided with transportation. (PE-72; PE-73; SE-8; Testimony of Heavey, the Parent) The Parents requested a Hearing on April 8 th . On April 10 th , the Parent alerted Shrewsbury that the Student was refusing to attend school and was complaining that the work was too hard. (PE-72) The IEP was subsequently revised by Shrewsbury and a new plan forwarded to the Parents on May 10, 2002. (PE-73; SE-1) While this new IEP addressed some of the Parents’ concerns, the services as described in the Service Delivery Grid remained the same as in the February 2002 IEP. (PE-73; SE-11) It is clear that during this period Shrewsbury and the Parent interpreted Student’s progress differently. (PE-74; PE-78; PE-79; PE-81; PE-82; SE-14; SE-15; SE-16; SE-17)
In May 2002, Shrewsbury assembled an MCAS Alternative Assessment (a portfolio) for Student but when submitted, the Massachusetts Department of Education determined that Student failed the MCAS. (PE-75; Testimony of Ms. Hebert, Ms. Heavey, the Parent)
On June 12 th the Parent and Dr. Dorsey attended a meeting during which Shrewsbury provided information regarding a new program it intended to develop at the Coolidge School for the 2002-2003 school year. Dr. Dorsey had observed Student in Shrewsbury and at the May Center, reviewed the records and recent extensive evaluations, interviewed the Parents and the May Center personnel on behalf of the Parents/Student. (Testimony of Dr. Dorsey) The new Learning Center program presented by Shrewsbury was still in the planning stages and only a brief description was provided. The staff had not yet been selected. (PE-85; PE-89; SE-42; Testimony of Dr. Dorsey, the Parent, Ms. Heavey, Ms. Leone) Although the Parent did not know that the meeting was intended by Shrewsbury as a Team meeting, they later received another IEP amendment on or about June 20, 2002 with essentially the same services as in the previous IEPs. (PE-86; Testimony of the Parent) The main alteration in this plan, which ran through June 2003, is a 15 hours per week academic support service to be provided by the special education staff. ( Id .) The plan states that the reason for the increase in support services is the complexity of the material in the fourth grade. (PE-86) The majority of Student’s academic services would be delivered in the Learning Center under this plan and he would only partake in the regular education classroom if the activities were meaningful and appropriate for him. It also provided no ABA or behavioral management plan. (PE-86; Testimony of Dr. Dorsey, Ms. Heavey) The complexities of a fourth grade curriculum were not news to Shrewsbury and yet no such additional services or need for a more structured program were thought to be necessary by these same service providers in February, April or May 2002. By the date of receipt of this new IEP the Parents had already applied for admission of Student at the May Center on June 4 th . (PE-92; Testimony of the Parent) Dr. Dorsey and the Parents concurred with the Franciscan’s recommendation for a specialized, small group, twelve- month program. (Testimony of Dr. Dorsey) Dr. Dorsey further recommended that a functional behavioral assessment be conducted, that an individualized behavior intervention plan be implemented across all settings, and that all the staff servicing Student be properly trained. (PE-84; Testimony of Dr. Dorsey) The Parents fully rejected the proposed services and placement on June 26, 2002. (PE-86)
On July 8, 2002, Student began attending the May Center. (Testimony of the Parent) On August 5, 2002, what was the first day of Hearing, the Parties entered a Stipulation whereby Shrewsbury agreed to fund the May Center program and transportation for Student from July 1 st through December 2002.
During all three school years, 1999-2000, 2000-2001 and 2001-2002 the Student was dismissed 15 minutes early every day. According to Shrewsbury, this was done because he should avoid high traffic times in the school corridors. (Testimony of Ms. Ruggieri, Ms. Hebert, the Parent)
In the instant case, the Parents allege that Shrewsbury owes Student compensatory education for the periods of time during which Student’s educational program was interrupted and for denying Student a FAPE during his third grade year. Careful review of the evidence warrants granting the Parents’ request in part.
Masachusetts has recognized the rights of students to compensatory education since 1985. Stock v. Massachussetts Hospital School , 467 NE. 2d 448, 392 Mass. 205 (1985). Compensatory education may be awarded if the student has been denied essential special education services, or where a significant interruption in the provision of those services has occurred during the period of the Student’s entitlement. Stock v. Massachussetts Hospital School , 467 NE. 2d 448, 392 Mass. 205 (1985). The BSEA is the forum charged with the responsibility of evaluating the evidence to determine what relief is appropriate, including awards of compensatory education when appropriate. Murphy v. Timberlane , 973 F.2d 13 (1 st Cir. 1994); 603 CMR 28.08 et seq .
This right was also recognized by the First Circuit Court of Appeals as an appropriate relief to remedy deprivations in services that may occur as a result of a deficient IEP. Pihl v. Massachusesetts Department of Education , 9 F. 3d 184 (1 st Cir. 1993).
As stated before in In Re: Medford Public Schools , 8 MSER 329, (2002) in determining whether compensatory education should be awarded
“several factors, such as the conduct of the parties, the specific period of time during which the specific service was denied, the appropriateness of the services offered to the student and the type and extent of harm caused to the student as a result of any denial of a FAPE must be weighed. In deciding whether this form of relief is appropriate, the hearing officer must also take into account the parent’s actions. If a Parent is found to have been given a real opportunity to participate in the team meeting, and if thereafter, the parent knowingly and voluntarily accepted the IEP, then compensatory education should not be considered for that period. W.B. v. Matula , 67 F. 3d. 484 (3 rd Cir. 1995). A parent’s refusal to allow the student to access services deemed to be appropriate, or rejection of services that would otherwise render an IEP appropriate for the student, would also bar the student’s claim as to those periods. In Re: Taunton Public Schools , BSEA # 01-0462 (2001); In Re: Silver Lake Regional School District , BSEA # 01-1370 (2001); In Re: Sharon Public Schools , BSEA # 02-1490 (2002).” In Re: Medford Public Schools , 8 MSER 329, (2002)
Compensatory services is an acceptable form of relief to be awarded by the BSEA where the school district has partially or totally failed to implement an IEP, if the student was denied a FAPE as a result of the variance from the services outlined in the IEP where the provision of special education or related services would have allowed the student to progress towards achieving the goals stated in the IEP. See Murphy v. Timberlane , 973 F.2d 13 (1 st Cir. 1994); Ross v. Framingham , 44 F. Supp 2d 104 (D. Mass. 1999).
Consistent with the guidelines offered by the higher courts, four areas must be considered in determining whether an award of compensatory education is warranted in this case. First, the programs and services offered by Shrewsbury must be reviewed in accordance with the totality of the information available to the Team through evaluative material, Student’s progress, performance and the recommendations of the service providers. Second, it must be ascertained whether there were any interruptions in the provision of services delineated in the IEP accepted by the parent. Third, the appropriateness of the placement as well as the types of services offered must be evaluated. Fourth, the Parents’ actions, regarding their acceptance of services and cooperation in facilitating Student’s accessing such services, must also be weighed. Only then can one determine Student’s entitlement to compensation, if any.
Careful review of the evidence leads me to conclude that Student is entitled to compensatory education for Shrewsbury’s failure to provide him with a FAPE during portions of the 2001-2002 school year; for its shortening of the school day during the 1999-2000, 2000-2001 and 2001-2002 school years; and the for shortening the occupational therapy and speech and language therapy sessions to which he was entitled under his IEP for the 2001-2002 school year.
First, the evidence is persuasive that the programs offered by Shrewsbury during the 2001-2002 school year denied Student a FAPE. Given the information available to the Team it should have been clear that up to February 2002, the program at Shrewsbury was not reasonably calculated to maximize Student’s individual potential consistent with state and federal law. David D. v. Dartmouth School Committee , 775 F.2d 411 (1 st Cir. 1985). The Parent however, accepted placement and partially accepted services up to April 1, 2002, when she rejected Student’s proposed placement in Shrewsbury, most of the services offered and the proposed extended school year program. (PE-72; PE-73; SE-8; SE-11; Testimony of the Parent) Therefore, Student is not entitled to compensatory education for the entire period. Specifically, Student is not entitled to compensation for the period of time during which the Parents accepted the IEP or for those portions of the program accepted and implemented by Shrewsbury. He is however, entitled to partial compensation from April 1, 2002, the date of their rejection of the program/placement, through the end of the school year, since the program offered by Shrewsbury did not afford Student a FAPE.
“The First Circuit Court of Appeals’ interpretation of minimally acceptable standards of educational progress require that the IEP yield ‘effective results’ and ‘demonstrable improvement’ in the ‘various educational and personal skills identified as special needs’, in the context of the potential of the particular student.” See In Re: Medford Public Schools , 8 MSER 329, (2002) In the instant case Student did not show demonstrable improvement in all of his areas of disability academically, behaviorally, socially or regarding activities of daily living. Academically he was able to hold on to very little information and did not make effective progress with development of social skills nor could he account for even one friend after three years in the Coolidge School. (PE-53; PE-58; PE-62; PE-63; PE-64; PE-66; Testimony of the Parent) There was also lack of communication between the school and the home in that while a behavioral consultant met with Student’s teacher two or three times and with his aide, the Parent was not aware of these interactions. I find that those interactions were insufficient to properly address Student’s needs in this regard. Assuming arguendo , that assistance by the ABA consultant helped the teacher and aide control Student better while in school, it did nothing to eliminate the behaviors long term and supplant them with appropriate responses as evidenced, in the communications log, by their intermittent resurfacing. (PE-80) While I am persuaded that the Shrewsbury providers were caring, the School did not provide them with the training and assistance they required to address the needs of this particular child effectively in all areas.
The IEP is the road map that defines the services to be provided, and the goals established therein are used to measure whether the student is making educational progress. See also, In Re: Arlington Public Schools , BSEA # 02-1327, issued on July 23, 2002. Given that the goals in Student’s IEP were not being achieved consistently, the services offered to Student should have been intensified, including services during the summer. The evidence shows that one area of confusion may stem from Shrewsbury’s misunderstanding of the extent of Student’s needs. While Ms. Heavey may have been aware that the Student was moderately mentally retarded as opposed to mildly mentally retarded as stated in the IEPs, the information was not transmitted to others during either the Team meetings, or in her report of the fall of 2001. Shrewsbury did not have information regarding the extent of Student’s cognitive limitations until the Franciscan Children’s Hospital evaluation reports were available to the Team. (PE-62; PE-63, PE-64; PE-66) This may have contributed to Shrewsbury’s continued recommendations for programs that were inappropriate to meet Student’s needs. (PE-54; PE-63; Testimony of Ms. Heavey, the Parent, Dr. Dorsey) Shrewsbury however, did not change its recommendations even after receiving this information from Franciscan Children’s Hospital. Similarly, the proposed 2002 summer program was also inapproparite. (Testimony of Dr. Dorsey) In August 2002, Shrewsbury and the Parents entered into an agreement whereby Shrewsbury agreed to fund Student’s placement at the May Center retroactive to July 2002. Thus, Student is not entitled to compensatory services for the summer of 2002. Since I have found that the IEP offered by Shrewsbury for the 2001-2002 school year did not afford Student a FAPE, and taking into account the mitigating circumstances stemming from the Parents’ acceptance of some of the programs and placements offered by Shrewsbury during that period, I conclude that Student is entitled to receive compensatory education services for part of that year. Student is entitled to compensatory education from the time of the Parents’ first rejection of the proposed placement on April 1, 2002 and subsequent request for Hearing. (PE-70; PE-73; Testimony of the Parent) As a result of Shrewsbury’s infraction, Student is entitled to two months of compensatory education at the May Center.
Second, I turn to the Parents’ claim regarding the 15 minutes daily shortening of the program during the Student’s first three years at the Coolidge School.
The Parents maintain that Student missed approximately 15 minutes every day during the 1999-2000, 2000-2001 and the 2001-2002 school years and is therefore, entitled to compensatory education for said interruption in services in accordance with 603 C.M.R. 28.05(4)(d). (Testimony of the Parent, Ms. Preskenis) The Parents assert that Student is entitled to 135 hours (15 minutes per day for 180 days per school year for three years). Shrewsbury denied this allegation. Ms. Preskenis testified that she ended all her classes at 2:30 p.m. and dismissed children to their lockers. They then returned to the classroom and prepared to go home. The school buses were then called between 2:45 p.m. and 3:10 p.m. (Testimony of Ms. Preskenis) Student’s program was modified so that he could prepare for his departure at 2:20 p.m. given his physical limitations, and the Parents were aware of this arrangement. Shrewsbury maintained that this was in keeping with the recommendations of the occupational therapist who indicated that Student should avoid high traffic times in the hallways as well as distractions so that he could complete self-care skills. Shrewsbury argues that while the Parents had partially rejected the IEP, they did not specifically raise this issue. This argument is not persuasive. The Parents’ request for hearing was received in April of 2002 and at least as of the date of the Pre-Hearing Conference the Parents argued this point. Shrewsbury was aware that the Parents had rejected the IEP in part, that they were looking for placement of the Student in a smaller classroom and were, in general, dissatisfied with the services offered by Shrewsbury approximately 7 months before the November 2002 Team meeting. In light of this, Shrewsbury should have known that its continuing shortening of Student’s school day constituted a problem for the Parents. Student is therefore entitled to compensatory education for the approximately 135 hours lost. The 135 hours represent an additional month of compensatory education services which he will receive at the May Center as requested by the Parents.
Third, a close look at Student’s accepted IEPs covering the 2001-2002 school year, and the schedule offered by Shrewsbury shows that Student was allotted two 35 minute OT sessions per week adding up to 70 minutesas opposed to the 90 minutes per week called for in the IEPs. (PE-46; PE-51; SE-4) Also, Student was entitled to two 45-minute speech sessions per week. His schedule reflects however, that the Friday session was allotted 40 minutes instead of 45 minutes of speech services, cutting the second session short by five minutes every week. (PE-43; PE-51; PE-43) Under different circumstances losing five minutes weekly may not have been grave, but in the case at bar, given Student’s severe limitations and the demands placed on him, it did have serious repercussions. (Testimony of Dr. Dorsey, Dr. Gunnoe) Nothing in the evidence suggests that the Parents agreed to the combined 25-minute loss of speech and OT services weekly. Said decrease in services does not comply with the amount of services delineated by his IEPs. The record lacks evidence that this issue was discussed with the Parents and that they agreed to the reduction of services. Student is therefore, entitled to compensatory education for the interruption in services and decrease in the length of the OT and speech sessions during the 2001-2002 school year.
Shrewsbury is responsible to provide the Student with compensatory education services at the May Center for three months, as well as to make the Student whole for the lost 25 minutes per week OT and speech services.
In April 2002, the Parents filed a complaint with the DOE’s Problem Resolution System regarding the early dismissal and the length of the proposed summer program (four weeks as opposed to six as in previous years) and other issues. (Testimony of the Parent) As stated earlier, shortly thereafter the Parents requested a Hearing before the BSEA.
2002-2003 School Year:
It is undisputed that Student’s Team met at the May Center on November 4, 2002 to discuss programming for the 2002-2003 school year. (Testimony of Heavey, the Parent) Thereafter, on November 14, 2002, Shrewsbury forwarded an IEP covering the period from November 4, 2002 through November 4, 2003. (PE-107) At the time, Student was receiving services at the May Center as per an agreement between the parties through December 2002. (Testimony of the Parent) While at the May Center he was twice observed by Shrewsbury’s staff. (Testimony of Ms. Concordia, Ms. Heavey, Ms. Hebert) The Parents do not challenge this IEP on procedural grounds; rather, they challenge it substantively as they declare that it failed to provide the Student a FAPE. (Testimony of the Parent; Dr. Dorsey)
The November 2002 to November 2003 IEP offered Student four hours a day of special education services with five other students at the Learning Center at the Coolidge Elementary School. Services there would be one-to-one or small group (three students or less) instruction. (Testimony of Ms. Leone) Each of the five students has a dedicated aide who accompanies the student during instruction time. Some of the regular 4 th grade students visit the Learning Center and assist there. The Massachusetts Curriculum Frameworks is modified to meet the student’s needs. (Testimony of Ms. Heavey; Ms. Leone) Either Ms. Leone or the aide would accompany Student to the inclusion/regular education classroom. The amount of inclusion would be determined weekly by Student’s school based team. (Testimony of Ms. Leone)
Consultation and speech and language services twice per week, by a licensed speech and language pathologist, are included in the proposed IEP. (Testimony of Ms. Concordia; SE-42) The speech pathologist would be Ms. Concordia who worked with Student in the second and third grades and evaluated Student in 2001. (Testimony of Ms. Concordia) She would focus on expressive and receptive language skills. Ms. Concordia noted great difference in Student’s behavior between the second and third grades. Also, twice per week occupational therapy is offered with Ms. Ruggieri under this IEP. (SE-44; Testimony of Ms. Ruggieri) These recommendations were consistent with other speech and language and occupational therapy recommendations including those made by Franciscan Children Hospital. (See SE-2; PE-64; PE-65) The plan also includes weekly physical therapy services with Margaret Fishkind. (SE-44) Interestingly, while she had expressed no safety concerns for Student and found him to function well within the school environment during 2001, in November 2002, Ms. Fishkind recommended direct one-to-one physical therapy sessions, in addition to the consultation and support in adaptive physical education previously offered. (Testimony of Ms. Fishkind) She testified that the recommendation for increased services had to do with her lack of knowledge as to what Student had done over the summer of 2002 and how he was doing at the May Center during which she assumed some regression. Both Ms. Fishkind and Ms. Ruggieri have had experience working with brain injured children. (Testimony of Ms. Fishkind)
Shrewsbury’s IEP offers opportunities to address social and functional skills as well as address Student’s behavior. The IEP offers participation in an extended day program to concentrate on socialization and generalization of skills learned in all areas during the day. It also provides a behavioral plan developed by Ms. Hebert, Ms. Leone and Ms. Heavey in addition to consultation to the Team by an ABA consultant. (Testimony of Ms. Heavey, Ms. Leone; see PE-34) Ms. Heavey further testified that Shrewsbury has ABA trained technicians that could be called to collect data during Student’s activities throughout the day. Shrewsbury asserted that the program would be implemented by qualified and experienced professionals and that should Student require ancillary consultative services, at school or at home, from the May Center, Shrewsbury could offer them as well. (SE-51; Testimony of Mr. Depuis, Ms. Heavey)
I find that the related services aspect of this IEP are appropriate but for the reasons stated in the section below I am not persuaded that, as with the IEP for the 2001-2002 school year, the IEPs offered by Shrewsbury for the 2002-2003 school year were reasonably calculated to offer the Student a FAPE.
Shrewsbury’s Proposed Program for November 2002 through November 2003:
Student presents with significant, multiple complex disabilities as a result of his brain injury which impact upon all realms of his functioning and daily life. (PE- 54; PE-62; PE-84; PE 107; PE-108) As a result of Student’s brain injury, it is extremely difficult for him to acquire, retain and generalize new information and skills. He requires an intensive, highly structured, consistent, specialized program designed to meet the needs of children with brain injuries. (Testimony of Dr. Gunoe, Dr. Dorsey, the Parent, Dr. Pace, Ms. Dunn) His cognitive abilities are in the moderately mentally retarded range and he presents with deficits in short-term memory, verbal reasoning, abstract/visual and quantitative reasoning, with significantly below average language and social skills. At age ten, he functions at a pre-school/kindergarten level. (PE-53; PE-55; PE-62; PE-64; PE-84; PE-99; Testimony of Dr. Gunoe, Ms. Heavey, Ms. Hebert, Dr. Dorsey) His difficulties are further compromised by his significant fine and gross motor deficits due to his left hemiparesis, serious attentional deficits, and task refusal and other maladaptive behaviors (i.e. yelling, pounding, throwing objects, crying, kicking, irritability), which interfere with his acquisition and retention of skills. (PE-33; PE-55; PE-56; PE-57; PE-62; PE-66; PE-78; PE-80; PE-99; PE-100; PE-102; Testimony of Dr. Dorsey, the Parent) The diagnosed attention deficit hyperactivity disorder makes it difficult for him to focus and concentrate for any significant period of time even with a one-to-one aide, as he is easily distracted by normal environmental noise. (PE-33; PE-55; Testimony of Ms. Dunn, Ms. Hebert, Ms. Heavey) His documented general anxiety disorder, combined with obsessive-compulsive behaviors, renders it difficult for him to negotiate crowds, transitions, dealing with new or noisy situations. (PE- 45; PE58; PE-60; PE-63; PE-72; Testimony of Dr. Gunoe, Ms. Hebert; the Parent) He also presents with significant delays (approximately three year old-level) in daily living skills such as dressing and toiletting. These delays prevent him from functioning independently at home, in school or in the community. (Testimony of Ms. Hebert, Dr. Dorsey; the Parent, Dr. Gunoe) Given all of his difficulties and severe limitations, the evidence is persuasive that he requires an intensive, structured, consistent program that can address the totality of his needs, in order to receive a FAPE.
I find the testimony provided by Dr. Gunnoe and Dr. Dorsey to be credible in their findings and recommendations that the appropriate program for Student at this time is one that provides a substantially separate, specialized special education program designed to address the needs of children who present with mental retardation as well as the types of pervasive disorders found in children with brain injuries. I further rely on the Franciscan Children Hospital’s evaluation results and recommendations which were to great extent similar to the findings, albeit not the recommendations, of Shrewsbury. (PE-62; PE-63; PE-64; PE-65; PE-66; PE-67; PE-68) Student requires a year round, full day, five day per week program. His special education and related services must be delivered through a combination of small group classroom and individual services. The program must emphasize the acquisition of functional academic skills, daily living/adaptive skills, language and communication skills, as well as social skills. He requires a peer group of students with similar disabilities and cognitive ability to his. There must be good consistent home/school communication. Lastly, he needs an individually designed, consistently applied across all settings, adaptable behavioral plan based on the principles of Applied Behavior Analysis (ABA), delivered by a trained, experienced staff that is properly supervised by a qualified, experienced professional. (PE- 31; PE-33; PE-44; PE-45; PE-63; PE-68; PE-84; PE-99; PE-100; PE-108; Testimony of Dr. Gunnoe, Dr. Dorsey, Dr. Pace, Ms. Dunn, Ms. Tierney)
There is little disagreement between Shrewsbury and the Parents regarding the areas of Student’s disabilities. (Testimony of Ms. Hebert, Ms. Heavey, Ms. Ruggieri, Dr. Dunn, Dr. Dorsey, Dr. Gunnoe) Shrewsbury must have realized that Student required a more intensive program than the ones offered in previous years. It was not until June of 2002, after the Parents rejected the IEP and requested funding of Student at the May Center, that Shrewsbury offered the Student an IEP which called for participation in a new Learning Center program it was going to create. This IEP called for significantly less inclusion in regular education than IEPs of previous years. (PE-107) This program however, does not comport with the recommendations of Franciscan Children’s Hospital and fails to meet Student’s needs. It does not offer participation in a special education, substantially separate classroom; the program itself lacks many of the components of such a classroom. (Testimony of Mr. Depuis) The IEP calls for “some services outside the general education classroom” for Student and other peers. (PE-87; PE-107; Testimony of Mr. Depuis, Dr. Dorsey, Ms. Leone) The program lacks the cohesiveness of a classroom as children come and go from the Learning Center and can spend as little as two periods per day there, making it difficult for Student to have a real peer group. Most of the instruction is individualized and Student would spend only one out of four periods a day in a small group situation. (PE-10; Testimony of Ms. Leone) Rather than offer a specialized small group classroom experience, the Learning Center’s focus is on assisting students to be mainstreamed. (PE- 85; PE-87; Testimony of Ms. Leone, Ms. Hebert) As Ms. Leone testified, she splits her time between the Learning Center and assisting students in their respective first or fourth grade classroom. (Testimony of Ms. Leone, Ms. Hebert) It is unclear from the testimony how much inclusion of Student in regular education is to occur, at what frequency, or what criteria will be used to determine from day to day, when Student should be included. (Testimony of Ms. Preskenis, Ms. Heavey) The evidence is convincing that Student lacks the skills and ability to comprehend fourth grade classroom material. (Testimony of Ms. Hebert, Ms. Preskenis, Ms. Heavey, Dr. Gunnoe, Dr. Dorsey) In essence, the Learning Center program functions much like a resource room as opposed to a substantially separate classroom.
Review of the evidence shows that Shrewsbury’s proposed program for the period from July 2002 through November 2003 does not assure the academic progress that should be expected from Student and is inappropriate to meet his needs. (See Kevin T. v. Elmhurst , 36 IDELR 153 (N.D. Ill. 2002) (“in determining whether a school district has provided a FAPE, the court must analyze the child’s intellectual potential and then assess the student’s academic progress”).) This program would deny Student a FAPE.
While in Shrewsbury, Student benefited from the related services received, namely, physical therapy, occupational therapy and speech and language therapy. The service providers at May Center even adopted the therapy goals and objectives previously established by Shrewsbury as they found them to be appropriate and consistent with Student’s needs. (PE-107; PE-108; Testimony of Ms. Ashworth) However, the benefits derived from the related services, in which Student made some progress, do not outweigh the rest of the inadequacies of the program for this particular child as demonstrated by the minimum progress achieved in other areas. (PE-60; PE-61; PE-64; PE-65; PE-66; PE-69; PE-70; PE-74; PE-75; PE-78; PE-81; PE-84; PE-86; PE-99; PE-107; PE-111; Testimony of Dr. Dorsey, Dr. Gunnoe, the Parent)
I am not persuaded that Student derived the expected benefit from his inclusion experience and am equally not persuaded that he was actually integrated with the group. (Testimony of Dr. Dorsey, the Parent) He was unable to participate in class without extensive modifications and the maximum assistance from the full time aide, and, given his extremely limited social skills, did not engage in meaningful interactions with typically developing peers. (Testimony of the Parent, Dr. Dorsey) The record was devoid of any such relationships being carried over outside the school with regular or even special education peers when children in the same classrooms as Student were observed to be chatting and interacting normally with one another. (Testimony of the Parent, Ms. Hebert, Dr. Dorsey) The evidence shows that Student was aware that he was different than other same aged peers and was troubled and unhappy about it. (Testimony of the Parent, Ms. Hebert) Inability to handle the work in school or at home caused Student to become anxious, refuse task or have outbursts of inappropriate behaviors. (PE-80; Testimony of the Parent, Ms. Preskenis, Ms. Hebert) The primary goal for Student is acquisition of life skills. In this regard, his needs are so great that placing him in an inclusion classroom, where he is exposed to information that is not within his grasp, and where he is not developing meaningful relationships, is at this point in his development, a waste of precious time. (Testimony of Dr. Gunnoe, Dr. Dorsey, the Parent) As stated in In Re: Arlington Public Schools 8 MSER 187, 197 (2002) “ Where there is a tension between the educational services necessary to meet the needs of a child (and provide her with educational benefit) and the principles of least restrictive environment, “the desirability of mainstreaming must be weighed in concert with the Act’s mandate for educational improvement… requir[ing] a balancing of the marginal benefits to be gained or lost on both sides of the maximum benefit/least restrictive fulcrum .” In the case at bar, inclusion, as a lesser restrictive environment, cannot take precedence over Student’s need for a program that can actually afford him a FAPE.
Also, the IEP (which continues to reflect a diagnosis of mild as opposed to moderate mental retardation) does not address participation of Student in a social skills group or a pragmatic language group to address his social skills deficits that clearly need to be tackled effectively. (PE-107; Testimony of Dr. Dorsey, Dr. Gunnoe, Ms. Leone, Ms. Hebert) Further, no other child in the selected peer group presents with issues due to a brain injury and two out of the three students with whom he would be grouped are non-verbal. (Testimony of Ms. Leone, Ms. Hebert)
Shrewsbury contends that this IEP can meet Student’s behavioral needs as well as the increased curriculum demands, and would afford him an opportunity to address social and functional skills in his home community. Shrewsbury’s proposed IEP provides an extended day component to concentrate on socialization and generalization of skills learned in all areas during the day. Ms. Heavey testified that the IEP provides a behavioral plan developed by Ms. Hebert, Ms. Leone and Ms. Heavey in addition to an ABA consultant to the Team. (Testimony of Ms. Heavey, Ms. Leone; see PE-34) Shrewsbury argued that it has ABA trained technicians that could be called to collect data throughout Student’s daily activities; however, no specificity was offered in this regard nor did Shrewsbury ever produce such provider. (Testimony of Ms. Heavey) The child- specific aide on whom Shrewsbury would be relying to a great extent to support Student in the mainstream, implement the ABA plan, etc. was not identified, though it was clear that she would not be a special education teacher. (Testimony of Ms. Leone, Ms. Heavey, Dr. Dorsey)
Shrewsbury further asserts that the program would be implemented by qualified and experienced professionals and that should Student require ancillary consultative services, at school or at home, from the May Center, Shrewsbury could offer them as well. (Testimony of Mr. Depuis, Ms. Heavey; SE-51)
Shrewsbury had an opportunity to present and discuss all of this at the Team meeting of November 2003 a few weeks before the Hearing, and could have offered all of this in its proposed IEP, but it did not.
Furthermore, while Shrewsbury’s staff has seen the benefits of implementing a behavior plan with the Student, and has attempted to do so to some extent, the behavior plan attached to the proposed IEP is inadequate to meet Student’s needs, because it does not address the problematic behaviors and lacks any methodology for taking data or refining it based on Student’s success. (Testimony of Dr. Dorsey) Ms. Leone, who has no expertise in behavior management, was responsible for developing and implementing this plan, which does not incorporate the results of the only functional behavioral assessment available to date, the one completed by the May Center. (Testimony of Ms. Leone) At least on one previous occasion, third grade, Shrewsbury discontinued use of the Student’s behavioral plan without convening the Team because Student was allegedly doing well. (Testimony of Ms. Hebert) Entries in the communication book however, showed that while the frequency of task refusal/ maladaptive behaviors decreased as the year went on, they were not eliminated. In fact the entries show that Student could be quite inconsistent, sometimes during the same day, in maintaining appropriate behaviors. (PE-82; Testimony of Ms. Hebert) Also, the plan was not implemented by any of his teachers or related service providers even when the problematic behaviors were displayed. (Testimony of Ms. Hebert, Ms. Ruggieri, Ms. Fishkind, Ms. Heavey) According to Dr. Dunn, the problem with not addressing the behaviors consistently could have reinforced the undesired behaviors.
The testimony and documentary evidence proffered by Shrewsbury is not persuasive that Shrewsbury is prepared to address this issue appropriately, effectively and immediately. Shrewsbury’s proposed IEP calls for an ABA Consultant once per month for 30 minutes and one 60 minute bimonthly (one session every other month) consultation by an ABA coordinator. (PE-107; Testimony of Mr. Depuis) Ms. Heavey testified that Shrewsbury’s position was that Student does not require ABA and that the consultation was added as a compromise with Student’s Parents. (Testimony of Ms. Heavey) The staff assigned to work with Student is not trained in ABA, nor is formal training for all of them scheduled. Implementation of an ABA type program at Shrewsbury for Student would substantially be the responsibility of the aide. (Testimony of Ms. Heavey) Shrewsbury does not currently have an appropriate behavior intervention plan in place for Student. (Testimony of Dr. Dorsey, the Parent, Ms Heavey, Ms. Leone) In 2001, Ms. Heavey wrote to the then special education director requesting that a functional behavioral assessment of Student be done and to date none has been completed by Shrewsbury. (Testimony of Ms. Heavey) During the hearing, Mr. Depuis and Ms. Heavey raised the possibility of having Dr. James Ellis from the May Institute, Inc. an autism specialist, consult to the staff regarding an ABA plan for Student. (SE-52; Testimony of Mr. Depuis, Ms. Heavey) Dr. Ellis has been under contract with Shrewsbury consulting for other students. ( Id .) Prior to the hearing Dr. Ellis was never mentioned as a possible consultant for Student at any Team meeting or at any other time. It was at the hearing that the Parents first learned that Shrewsbury was considering contracting with Dr. Ellis to consult for Student. Shrewsbury’s staff is not trained and prepared to implement an ABA program forthwith nor was there any evidence that such training is underway. (Testimony of Ms. Heavey, Mr. Depuis) Dr. Pace testified that the approach and techniques used at the May Center could be carried out in a public school. In this regard, Dr. Dunn agreed and testified that teacher certification was not required to train someone in the data collection methodologies used at the May Center. While Shrewsbury was persuasive that an appropriate program can be developed in Shrewsbury, it failed to demonstrate that it already existed. If Student were to attend Shrewsbury tomorrow the staff would still be ill prepared to address the behavioral issues. Shrewsbury’s argument would have been stronger had they actually performed the functional behavioral assessment, given that the Student was still displaying behaviors that interfered with his education, had developed an appropriate behavioral plan, and trained all of the staff assigned to work with Student. Given that Dr. Ellis was already under contract with Shrewsbury, he could have assisted to achieve the aforementioned tasks. Shrewsbury could have actually developed a program that provided more functional academics and development of daily living skills and could have met all of Student’s needs in an integrated manner. I find that Shrewsbury presented no evidence to support that it is ready, willing and able to train all service personnel assigned to work with Student in ABA, and that it can implement an effective behavioral program that can be applied consistently throughout the day and across all settings.
Regarding the length of the program, Franciscan Children Hospital recommended a year round program for Student. (PE-62; PE-63; PE64; PE-66) Testimony of Dr. Gunnoe, Dr. Dorsey) Shrewsbury however, is offering a fragmented program in the sense that its summer program, which runs for six weeks, is not designed to address the individual needs of Student. Rather, it makes available to Student a three-hour per day program offered to students with a variety of needs. (PE112; PE-112A; PE-113; Testimony of the Parent, Dr. Dorsey, Dr. Gunnoe) The head of the program is Ms. Anderson who is not a special education teacher, although Shrewsbury had stated via letter to the DOE, that the program was run by a special education teacher, a program aide and other child specific aides. (PE-97; PE-89; SE-42) The summer program is neither consistent with nor a continuation of the program offered to Student during the school year. According to Shrewsbury, the criteria for offering a student participation in a summer program is “substantial regression” defined as “a loss of learned skills over the summer vacation that will not be relearned by Columbus Day.” (PE112; PE-112A; PE-113; Testimony of Mr. Depuis, Ms. Heavey, Ms. Hebert) Parent Exhibit 112A quotes “Thanksgiving” as the relearning deadline. This standard has no basis in law as it is not individually determined by the Team to assure Student a FAPE. 20 U.S.C.§1412(a)(1); 34 C.F.R. §300.309; In Re: Quincy Public Schools , 6 MSER 277, 287 (2000) The criteria under federal law applicable in Massachusetts for a child to be eligible to participate in an extended school year program is that the Team determine, on an individual basis, that the services are necessary for the child to receive a FAPE. This is consistent with the language of the Federal Regulations, which defines extended school year services that-
I. are provided to a child with a disability-
1. Beyond the normal school year of the public agency;
2. In accordance with the child’s IEP; and
3. At no cost to the parents of the child; and
4. Meet the standards of the SEA. 34 C.F.R. §300.309.
Similarly, Shrewsbury’s proposal that Student attend an after-school recreation and homework support program with the aide in the cafeteria, is inappropriate. (Testimony of Ms. Leone, the Parent) The aide is not a special education teacher and the venue and number of students involved, given Student’s issues with anxiety, environmental noise and limited social skills, is inappropriate. Therefore, Shrewsbury’s offer of an extended day program for Student fails to meet the requirements of the law and denies the Student a FAPE.
Having found that the program offered by Shrewsbury did not afford Student a FAPE, I now turn to the question of whether the May Center can meet Student’s current needs.
The May Center Program:
On July 8, 2002, the Parents placed Student at the May Center in Brockton. (PE-99; PE-112) Thereafter, Shrewsbury and the Parents entered into an agreement to maintain Student at in that program through December 2002. (See the Stipulation entered by the Parties) The May Center is a private Chapter 766 approved school located in Brockton, Massachusetts, approximately one hour away from Student’s home in Shrewsbury. The May Center, which is part of the May Institute, specializes in multidisciplinary programs for children with brain injuries. (PE-90; PE-91) The average stay of a student in the program is 2 ½ years, as the May Center attempts to provide students with the necessary skills to return to a less restrictive environment. (Testimony of Dr. Pace, Dr. Dunn) Currently there are 51 brain-injured students between the ages of 7 and 20, 15 of whom are between 7 and 13 years of age. ( Id .; PE-90; PE-91)
The staff at the May Center includes administrators, teachers, assistant teachers, therapists (in related services), three full time nurses, social workers, and a consulting psychiatrist. They can also access numerous other professionals from the May Institute, Inc. The staff participates in a three-week training program. During the first week they receive in-service training followed by one week during which the new staff shadows a more experienced member of the staff. The new staff is in turn shadowed/supervised directly during the third week. (PE-90; PE-91; Testimony of Dr. Pace, Dr. Dunn, Mr. Grimes, Dr. Dorsey) They are required to receive training in CPR, first-aide and restraints.
The program applies a behaviorally based approach of consequence-based principles known as Applied Behavioral Analysis, and an antecedent approach. Each student has an individually designed behavior program to address his/her maladaptive behaviors that interfere with the child’s ability to learn. The individual behavioral plan is developed after a baseline protocol process is conducted when the student first arrives. The service providers take contemporaneous formal and informal data on students’ behavior throughout the day. This behaviorally based approach is used across all settings, including academics, in which the errorless approach is utilized. In addition, each class has a rule-based program designed to reinforce positive behaviors. Dr. Dunn is responsible for developing and ensuring proper implementation of Student’s behavioral plan. (PE-100; PE-102; PE-108; Testimony of Dr. Dorsey, Dr. Pace, Dr. Dunn, Mr. Grimes)
The May Center program for Student follows a modified Massachusetts Framework Curriculum adapted to meet his individual needs. (PE-108; SE-46; Testimony of Mr. Grimes, Ms. Tierney) The May Center purchased a new curriculum which was expected to arrive in January 2003. (Testimony of Ms. Tierney, Mr. Grimes) Student’s class is staffed by a senior teacher, a teacher and three “direct care staff” (hereinafter, “DC2s.”) The senior teacher is Mr. Michael Grimes who is currently in a Master’s program in special education. (Testimony of Mr. Grimes) The second teacher is Ms. Michelle Forte who is also in a graduate level special education program at Fitchburg State College. (SE-53) Neither Mr. Grimes or Ms. Forte are certified teachers in Massachusetts, although they both have received waivers from the DOE. (Testimony of Mr. Grimes, Ms. Tierney, Dr. Pace, Dr. Dunn) At the May Center they have both received extensive training in working with children with brain injuries, behavioral issues, mental retardation and in the implementation of effective behavioral strategies, and are both supervised by appropriately credentialed staff. Ms. Tierney who holds special education certification, is Mr. Grimes supervisor relative to educational issues, and Dr. Dunn supervises him on issues relative to the behavioral plan for Student and the classroom. Training is ongoing at the May Center. The staff meets frequently for scheduled or on as needed basis, for supervision case or program discussions. (Testimony of Dr. Dunn, Dr. Pace, Mr. Grimes, Ms. Tierney) The program is highly coordinated and structured but also provides students scheduled free choice time. ( Id .; SE-54)
Direct instruction in Student’s classroom is provided by Mr. Grimes or one of the other teachers in the program. (Testimony of Dr. Pace, Ms. Tierney, Mr. Grimes) Student also receives related services which include speech and language for expressive, receptive and pragmatic skills with Ms. Ashworth, and occupational therapy and physical therapy in a small group or individual basis. Ms. Ashworth testified that she also works with Student on social skills, which are also addressed throughout Student’s day. (SE-50; Testimony of Ms. Ashworth) He also partakes in a social skills group, a combined OT/PT group, a handwriting group, an adaptive physical education group and a cooking group.
The program runs full day, five days a week year round with two weeks of vacation and a few holidays. (Testimony of Dr. Pace, Dr. Dorsey) Shrewsbury challenges that the May Center’s IEP for Student calls for 35 hours weekly of instruction and support while the testimony could support only 32.5 hours per week as the staff testified that the school day ran from 9:00 a.m. to 3:30 p.m. inclusive of lunch, snack and free-choice time. (Testimony of Ms. Tierney, Mr. Grimes, Mr. Pace; SE-46) Student is transported back and forth to the May Center by Shrewsbury in accordance with the agreement reached by the Parties. He however, is not at the May Center from 9:00 a.m. to 3:30 p.m. (SE-46; Testimony of Dr. Pace, Ms. Tierney, Mr. Grimes)
The May Center also provides supervised community outings and social activities as well as other social and educational opportunities for the parents and families of the students. (Testimony of Mr. Grimes, Ms. Tierney) The home school communication is ongoing. At the time of the Hearing, the May Center staff did not find it necessary to offer home-based services to Student because of improvements in his behaviors at home. (Testimony of Mr. Grimes, Ms. Tierney, Dr. Dorsey, the Parent) Behavioral improvements were also noted in school where although he continues to engage in verbal refusals, his on task behavior is better, and he has not engaged in kicking, throwing objects, banging on his desk and other behaviors displayed at the Coolidge school in Shrewsbury. (PE-80; Testimony of Mr. Grimes, Ms. Tierney, the Parent)
Student’s class was split around November of 2002. Since then, he has been in a class with six other boys ranging in ages between 9 and 12. All of the students have similar disabilities, all are verbal and all need services in the same areas. Some of the brain-injured students in Student’s peer group present more behaviorally involved issues than Student. (SE-55A; SE-55B; SE-55C; SE-55E; Testimony of Ms. Tierney, Mrs. Heavey) Student was described as “milder” behaviorally than four of the other five students in his class. (Testimony of Dr. Dunn) He however, has not modeled or acquired the maladaptive behaviors manifested by other students in his group. (SE-55; Testimony of Dr. Dorsey, Dr. Dunn, Mr. Grimes, the Parent) Student’s program focuses on acquisition of skills related to self-help and activities of daily living, functional academics, language, fine and gross motor skills, social interactions and behavior. (SE-108; Testimony of Dr. Dorsey, Dr. Dunn, Mr. Grimes, Ms. Tierney, the Parent)
Shrewsbury raised a question as to the amount of hours reflected in Student’s May Center schedule when compared to the hours of services reflected in the IEP drafted by the May Center for the Student. (SE-54; PE-108) This is even more concerning in light of Dr. Pace’s testimony that the May Center school day is from 8:50 a.m. to 3:50 p.m. (Testimony of Dr. Pace) Since there is an obvious discrepancy, Student’s Team, inclusive of the May Center staff, should meet to ascertain what types of adjustments may be necessary and how to make the Student whole vis a vis services that have already been funded by Shrewsbury.
Shrewsbury raised concerns that two teachers have left the program since it started and substitutes from the May Center pool are being used to cover these positions. Also, one of the DC2s positions was open when the program started this year but has been covered by one of the 8 substitutes in the May Center. (Testimony of Ms. Tierney) Ms. Ashworth, the speech and language therapist, was awaiting receipt of certification (for which she had completed all requirements) in 2003. (Testimony of Ms. Ashworth) Her findings were consistent with those of Shrewsbury and Franciscan hospital at the time she began working with the Student in 2002. ( Id .)
In making its case against the May Center, Shrewsbury relies on the fact that its teachers and service providers are properly certified while not all of the May Center personnel servicing Student are certified in their particular field in Massachusetts. To look at providers in a vacuum and attempt to discredit them solely on the basis of their credentials is not a persuasive argument. The May Center obtained the necessary waivers from the DOE for the staff that is not yet certified. Its staff has been trained in ABA, receives supervision from qualified professionals, and is able to implement ABA consistently across all settings. The testimony is persuasive that the academic program and therapies are appropriate for Student. The evidence regarding the progress made by him, as described by his mother, who I found to be a credible witness, is compelling. The Parent testified that in a relatively short period of time since his placement (5 months) Student had been able to tolerate going to the beach with his family, going in the water, sitting at the beach and not being afraid of the birds. (Testimony of the Parent) He is able to appropriately answer the phone at home without swearing or banging the phone, can talk to his neighbors and stay on topic, can now sit through church services without being scared by the organ, the choir or the speakers, and is much more compliant and cooperative with chores around the house. (Testimony of the Parent) The Parent testified that three weeks into the program at the May Center, she tested Student’s knowledge of upper and lower case letters, at random, with flash cards (something she would do from time to time when Student was in Shrewsbury) with very good results. She found Student to be much calmer, does not get agitated about going to school, does not yell at the mother, hit his siblings, refuse to follow instructions or want to isolate himself in his room. The Parent testified that she could now reason with, and talk to, him. He could read numbers in order on the digital clock, his left arm was a lot looser, he could give her stronger hugs, could stand on his tip-toes, could do the stretching on his own, and recently had been able to hold a piece of chalk with the left hand and scribble on the blackboard. (Testimony of the Parent) According to the Parent, Student could not do any of this while he was in Shrewsbury.
Both Dr. Dorsey and Dr. Gunnoe endorsed Student’s continued attendance at the May Center and I am persuaded that the weight of the credible evidence favors this placement. (PE-84; Testimony of Dr. Gunnoe, Dr. Dorsey) Academically his skills are more solid and he is generalizing them at the home and other settings. Behaviorally, he is calmer, friendlier, less angry or perseverative and he has a friend in his class. Regarding activities of daily living, he has become more independent, including toileting and his ability to get food or drinks for himself. He has also made progress regarding use of his left arm, as documented by his physiatrist, Dr. Webster. (PE-84; PE-104; PE-112; Testimony of Dr. Pace, Dr. Dunn, Mr. Grimes, Ms. Ashworth, the Parent, Dr. Dorsey) I find that the testimony of Shrewsbury’s witnesses regarding their conclusions from their observations of the May Center are not reliable. They did not seem to understand, nor did they seek clarification of aspects of the program over which they had concerns. Still, none of them found the program inappropriate to meet Student’s needs, rather they were concerned that it was not the least restrictive alternative. (Testimony of Ms. Leone, Ms. Heavey, Ms. Hebert, Ms. Ruggieri, Dr. Pace, Dr. Dunn, Mr. Grimes) Also, at least one observation occurred during an atypical day and in at least one instance, the service was not provided/observed in the classroom/therapy room where it is usually provided. (Testimony of Ms. Leone, Ms. Heavey, Ms. Hebert, Ms. Ruggieri, Dr. Pace, Dr. Dunn, Mr. Grimes) I am persuaded by the Parents’ argument that the testimony of Shrewsbury’s witnesses made more poignant their lack of understanding of the educational and behavioral techniques used at the May Center. (See Testimony of Ms. Leone) I am further persuaded that while Student’s program in Shrewsbury may have exposed him to typically developing peers, his only meaningful interaction occurred with the aide, as it is clear that in three years spent in Shrewsbury he had no real friends. For the 2002-2003 school year, two of the three children in his proposed peer group at the Learning Center are non-verbal. At the May Center Student has more opportunities for appropriate social interactions at a level that is accessible and satisfying to him. In this regard the Shrewsbury program therefore, is not the least restrictive appropriate program to meet his needs.
Lastly, the contract between Shrewsbury and the May Center raised the possibility of home services for the Student. (PE-112) At the time of the Hearing these services were not being offered nor were they recommended. However, the possibility of said services being needed in the future was left open. Should the Team decide at a later time that they are appropriate, Student’s IEP shall be amended to include this service.
A FAPE must offer Student an opportunity for meaningful educational progress or benefit in accordance with the federal standards embodied in the IDEA. The evidence is persuasive that the program offered by Shrewsbury as described supra does not meet this standard. Given the Student’s needs, he requires continued placement at the May Center in order to receive a FAPE.
Shrewsbury is ordered to convene the Team forthwith and draft an IEP continuing Student’s placement as a day student at the May Center. that is, the life of the IEP challenged at Hearing which runs from November 2002 through November 2003. Said placement shall continue through March 2004, that is three months of compensatory education for Shrewsbury’s denial of FAPE to Student from April 1, 2002 through the end of the 2001-2002 school year and for the interruptions in services, amounting to 135 hours, caused by shortening the school day during the 1999-2000, 2000-2001 and 2001-2002 school years.
The Team shall also discuss how to make the Student whole for the lost 25 minutes per week OT and speech services during the 2001-2002 school year.
The Team shall further discuss how to rectify the discrepancy regarding the length of the school day prescribed by the IEP, Student’s May Center schedule and the regular May Center school hours. Student’s IEP shall be modified accordingly. Lastly, the Team shall discuss whether home services, may be appropriate. Transportation shall be adjusted so as to enable Student to avail himself of the full program offered and accepted in his IEP.
So ordered by the Hearing Officer,
Rosa I. Figueroa
Dated: June 11, 2003