COMMONWEALTH OF MASSACHUSETTS
SPECIAL EDUCATION APPEALS
In Re: Taunton Public Schools
BSEA No. 09-5294
DECISION
This decision is issued pursuant to the Individuals with Disabilities Education Act (“IDEA”, 20 USC Sec. 1400 et seq.); Section 504 of the Rehabilitation Act of 1973 (29 USC Sec. 794); the Massachusetts special education statute or “Chapter 766,” (MGL c. 71B) and the Massachusetts Administrative Procedures Act (MGL c. 30A), as well as the regulations promulgated under these statutes.
The major issue in this case is whether the Student requires a residential educational placement in order to receive a free, appropriate public education (hereafter, FAPE) or whether, as Taunton has asserted, a private, therapeutic day school such as the Clifford School affiliated with Longview Farms would meet Student’s educational needs.
Procedural History
On March 9, 2009 Parent filed a request for a hearing at the Bureau of Special Education Appeals (BSEA). Parent seeks an order finding that the Taunton Public Schools (hereafter Taunton or School) denied Student a FAPE when it issued an IEP in February 2009 that offered Student a placement in a private day school, and that Student needs a residential educational program to make meaningful educational progress.
A hearing on the merits took place on May 19, 20, and 22, June 3, 12, and 23, July 14, 15, 16, 21 and 28, 2009. The first 8 days of hearing took place at the office of the BSEA in Malden, MA, and the final three days were held at the administrative offices of the Taunton Public Schools in Taunton, MA. Parent was represented by an advocate and Taunton was represented by counsel.
Those present for all or part of the proceeding were:
Student’s Mother
Student’s Father
Ralph Friedman Out of District Coordinator, Taunton Public Schools
Nancy Herron, M.D. Psychiatrist, Pembroke Hospital
Steven Leonard Taunton Public Schools
Sarah Fenton Clinical Coordinator, Dept. of Youth Services (DYS)
Rebecca Carreiro Guidance Counselor, Taunton High School
Rachel Berry Brandon School
Virginia Martin School psychologist, Taunton High School
Cheryl Nicholson Dept. of Elementary and Secondary Education (DESE), Special Education in Institutional Settings (SEIS)
Cynthia Dickens Clinician, Clifford Academy
Jonathan Hanlon* Teacher, Clifford Academy
Michael Turner, Esq.* Student’s juvenile court attorney (testified as witness)
Stacey Bloom, Esq. Attorney for DYS
Crispin Birnbaum Attorney for DYS
Anjali Waikar, Esq. Attorney for Brandon School
Elizabeth Keliher, Esq. Attorney for DESE
*Testified by speaker phone
The official record of the hearing consists of Parents’ Exhibits P-1 through P-25, School’s Exhibits S-1 through S-37, and tape recorded testimony and argument. The parties requested and were granted a postponement to file written closing arguments. Written closing arguments had been received on August 25, 2009 and the record closed on that date. A Conclusion and Order was issued on September 21, 2009, which is incorporated by reference in this Decision.
ISSUES PRESENTED
The issue presented for hearing is whether the IEP that the Taunton Public Schools issued in February 2009, which called for placement of Student in a private, therapeutic day school, was reasonably calculated to provide Student with a FAPE, or whether Student needed to be placed in a residential educational setting in order to make effective and meaningful educational progress.
POSITION OF PARENT
Student has serious emotional and behavioral disabilities which interfere with his ability to function and learn in school. Without the 24-hour structure and therapeutic support of a residential educational setting, Student is unable to attend and remain physically within the school building, and also is unable to focus on and complete academic work. He also runs away from home and gets involved in risky activities. The private day school placement offered by Taunton is inadequate and inappropriate. Any limited success that Student might have experienced during his extended evaluation in that school must be attributed to Student’s having been on an ankle bracelet and, therefore, unable to leave the premises of the private school. At all relevant times, Taunton has failed to provide Student with appropriate residential educational services, both while he has been living with his family and while he has been detained in various DYS facilities. Additionally, Taunton committed numerous procedural violations that have deprived Student of FAPE. Finally, in part as a result of Taunton’s failure to provide appropriate educational services, Student has languished in the DYS detention system for many months, without receiving the educational services to which he was entitled.
POSITION OF TAUNTON PUBLIC SCHOOLS
Parent has not met her burden of persuasion that Student needs a residential placement for educational reasons. None of Student’s evaluations recommend a residential educational placement for Student. In fact, Student’s behavior and performance were far better during his trial in the day placement that Taunton had offered than they had been in either Taunton High School or residential facilities in which Student had spent time for diagnostic purposes. If Student does need a residential placement, it is not for educational reasons, and Taunton is not responsible for providing it. Finally, Taunton has met its procedural obligations to Student.
FINDINGS OF FACT
1. Student is a sixteen-year-old young man who, with his family, is a resident of Taunton. Student’s eligibility for special education services is not in dispute. From approximately February 27, 2009 through the hearing dates, Student has been held in detention facilities operated by the Department of Youth Services.
2. Student has been described as an intelligent, academically capable, and personable young man who has worked at part-time jobs, been involved in sports and who wants to attend college. Student has emotional disabilities, however, which appear to have emerged as Student entered his teens, and which have had a significant impact on Student’s ability to function both in and out of school. (Mother, Stepfather, Dickens, Hanlon, S-27; S-29 – 31)
3. Student did fairly well during elementary and middle school, and received no special education services or accommodations during that period. (Mother) At the beginning of Student’s freshman year at Taunton High School (2007 – 2008 school year), Student began to have problems in school with attendance, behavior, and grades. During that year, Student failed virtually all of his subjects, had many absences, and was suspended approximately six times for such infractions as fighting, bad language, disrupting a school assembly, and cutting class. (P-18-19, Mother, Carreiro)
4. Mother became very concerned not only about Student’s academic decline but also a developing pattern of leaving the Taunton High School building after Mother had dropped him off, not coming home that night, then appearing in school the following day. (Mother) The documentary record indicates that Mother feared that Student was involved in risky behavior in the community, and she was—and is–very concerned about his safety. Mother also was concerned that abuse by another child that Student had suffered as a preschooler was continuing to have a negative impact on Student’s emotional state. During 2007 – 2008, Mother went to Taunton High School many times – sometimes several times per week–to meet with the principal or guidance counselor in an effort to get help for her son. Based on Student’s academic failure and behavioral problems, Mother came to believe that Taunton High School was not structured enough to meet Student’s needs. Student was also getting into conflicts with Parents at home over rules. (Mother, P-4)
5. On or about February 13, 2008, Parents had Student admitted to the psychiatric unit of Pembroke hospital after Student had run away from home. (Mother, P-4) Student was hospitalized for approximately three months, until May 8, 2008. (Herron, P-3)
6. Pembroke Hospital initially housed Student on an adolescent unit, where his treating psychiatrist was Nancy Herron, M.D. Dr. Herron met with Student every weekday while he was on the adolescent unit, made diagnostic findings, and prescribed and monitored medications. Dr. Herron also spoke to and met with Mother. (Herron)
7. Dr. Herron wrote several “Clinical Summaries” of Student’s course at Pembroke Hospital. The first such summary, dictated on March 25, 2008, stated that Student had Axis I diagnoses of Oppositional Defiant Disorder, Mood Disorder NOS, and Post traumatic Stress Disorder. (P-3) The report noted that during his five weeks of hospitalization, Student had been started on medications to address “mood swings, behavior, impulsivity and irritability,” but that Mother had asked to have most of the medications discontinued because she felt that they were not helpful or effective. (P-3)1
8. The report further stated that following family meetings, Student became “irritable and oppositional” regarding parental expectations after discharge, that the treatment team had recommended that Mother file a CHINS petition and seek out voluntary DCF services to obtain a “suitable” placement, and that Mother declined these recommendations.2 The report is silent on what would constitute a “suitable” placement. Finally, the March 25 summary indicated that Pembroke had “pursued transitioning the patient to a community based acute treatment facility but because of his outbursts and irritability, he has not been accepted.” (P-4)
9. This summary made no recommendations regarding appropriate educational services or placement for Student. (P-4) Dr. Herron testified that she generally does not make such recommendations, other than to state that the student’s school system should evaluate him. She further testified that she recommended DCF services and a CHINS petition because she sensed that Student was difficult to manage at home, and she often made such recommendations when this was the case. Dr. Herron felt that DCF might be able to provide some type of service that would be helpful to the family. (Herron)
10. Dr. Herron issued the second clinical summary approximately on or about April 25, 2008. In this second summary, Dr. Herron discussed Student’s behavior in the hospital. Dr. Herron reported that Student’s behavior was inconsistent. On some occasions he was compliant and cooperative, and on others he was “irritable and oppositional,” and refused to comply with staff requests. (P-3) In her testimony, Dr. Herron stated that Student could be “charming and sweet,” but that he could become angry and belligerent with staff or in family meetings, and required restraints. (Herron)
11. Dr. Herron reported that on some occasions, Student “displayed behaviors that are very concerning,” including threatening to assault a peer and, on one day, overturning furniture, throwing objects, and possessing a sharp object. As of the date of the April 25 report, Student had been placed in locked door seclusion once and was chemically restrained at another time. (P-3) In fact, on two occasions during his stay, Pembroke transferred Student to an adult unit because he had been assaultive to other residents and staff. (P-29, Herron)
12. In the “Recommendations” section of the April 25 report, Dr. Herron stated that Mother was “pursuing a residential placement and is seeking support from the school setting,” and that upon discharge, Student would receive ongoing individual therapy and medication management, as well as “whatever family supports the mother feels is appropriate.” (P-3) Dr. Herron testified that she removed references to DCF at Mother’s request. (Herron)
13. On May 5 and 6, 2008, Student underwent a neuropsychological evaluation arranged by Pembroke Hospital and conducted by a licensed psychologist, Christopher T. White, Ed.D. According to the report of this evaluation, testing suggested that Student had fragile self esteem. He also had signs of a non-verbal learning disorder leading to difficulty processing information from his environment, and, particularly, in accurately perceiving emotionally charged interpersonal situations. Dr. White diagnosed Student with Generalized Anxiety Disorder (primary), Major Depressive Disorder, moderate, and R/O Dysthymic Disorder on Axis I and Learning Disorder NOS (nonverbal) on Axis II. (P-2)
14. Dr. White recommended intensive individual therapy, family therapy, random urine screens, and psychiatric assessment for a trial of antidepressant medication to treat anxiety and depression. He made no educational recommendations. ( P-2)
15. Pembroke Hospital discharged Student on May 8, 2008. The Discharge Summary, written by Dr. Herron on that date, reported that at the time of discharge, Student was “safe, stable, and ready for discharge,” and eager to go home. Dr. Herron’s therapeutic recommendations included medication, individual and family therapy, psychopharmacological monitoring, as well as referral to a Family Support Team and referral to the Department of Mental Health (DMH) for ongoing services.3 (P-3)
16. With respect to education, Dr. Herron stated that it was unclear whether Student should be placed in public school or an “alternative school placement,” and, therefore, recommended “a detailed evaluation to identify the best school placement of him.” (P-3) The discharge report went on to state that Student needed “a therapeutic approach with a significant amount of structure and support,” as well as “a specialist” to assist him with academics in light of his anxiety, depression, non-verbal learning issues, and tendency to be oppositional. (Herron, P-3)
17. Meanwhile, in January 2008, before Student’s hospitalization, Mother referred Student for an initial special education evaluation by Taunton because she was concerned about Student’s academic and behavioral difficulties. In March 2008, while Student was hospitalized at Pembroke, Taunton conducted its evaluation, which consisted of a psychological assessment conducted by Taunton school psychologist Virginia Martin and an educational assessment conducted by special educator Robert McCabe. (Martin)
18. Ms. Martin’s evaluation consisted of the WISC-IV, two subtests of the Woodcock-Johnson Test of Cognitive Abilities-Third Edition, (WJ-3), Behavior Assessment Scale for Children-Second Edition (BASC-2), review of records, and a student interview. Testing revealed that all of Student’s cognitive functioning was solidly within the average range, with verbal reasoning in the high average range.
19. The areas of concern were in the social-emotional domain, as both Student and teachers had elevated responses to many areas of the BASC-2, including Attitude to School, Attitude to Teachers, Anger Control, Aggression, Conduct Problems, Depression, Emotional Control, and others, indicating several areas of emotional and social concern. (S-33, Martin) Ms. Martin’s recommendations were for continued psychiatric and therapeutic interventions, a high level of structure, and access to counseling supports built into Student’s educational program. (S-33) Ms. Martin testified that she had envisioned possible placement in a substantially separate program but not a residential program. (Martin)
20. Mr. McCabe’s educational testing consisted of the Woodcock-Johnson-III Tests of Achievement. Student’s scores were all in the average range, with math skills in the low average range. Mr. McCabe made no educational recommendations. (S-33, 34)
21. A TEAM meeting was held on March 27, 2008, while Student was still an inpatient at Pembroke Hospital. The TEAM found Student eligible for special education as a result of emotional disabilities. The IEP issued after the meeting was designed to be implemented following Student’s discharge, rather than to describe hospital-based services.4 It contained very general goals in areas entitled “social” and “school behavior,” provided for three counseling sessions per cycle in Grid A of the service delivery page. The IEP called for placement in a public substantially separate program but did not specify a placement. The N-1 form accompanying the IEP stated that due to a lack of information from Pembroke Hospital, the School was unable to determine a placement, and that the TEAM would reconvene for this purpose after receiving the discharge summary from Pembroke. Mother rejected this IEP in full, stating that the IEP was “incomplete,” in that it failed to address “psych. issues or appropriate placement and/or services.” (S-24)
22. As stated above, Pembroke Hospital issued its Discharge Summary on or about May 8, 2008. The TEAM reconvened on June 19, 2008 to consider the Pembroke Hospital clinical summaries and discharge summary described above. The resulting IEP amendment called for placement in a substantially separate public or private day school. (S-21) The School members of the TEAM discussed some possible day placements, including Longview Farm, but did not agree to residential placement because the Pembroke hospital evaluations did not recommend such placement. (Carreiro) No agreement was reached on a placement. Mother did not sign the amendment, and did not authorize Taunton to send packages to private day placements. Rather, Mother sought an extended evaluation in a residential facility. (S-21)
23. On or about July 10, 2008, Pembroke issued a final clinical update which essentially summarized Student’s history at Pembroke. Mother first became aware of this report on or about May 22, 2009, when Dr. Herron referred to it in her testimony. Mother received the report after that date and provided it to Taunton on July 14, 2009.
24. The parties entered into mediation in an attempt to resolve the placement issue. On July 9, 2008, the parties executed a mediation agreement providing for a 45-day extended evaluation to take place at a residential school program with an associated day school. (P-28, Mother, Friedman)
25. On August 14, 2008, pursuant to the mediation agreement, Taunton placed Student in the residential diagnostic assessment component of the Brandon Residential Treatment Center in Natick for the purpose of an extended evaluation. (Mother, Barry, Friedman, (S-46)). Student’s IEP was not amended to reflect the proposed extended evaluation or to indicate the information needed from Brandon to develop a complete IEP for Student. (Friedman)
26. Student’s placement at Brandon was not successful. Within two days of his admission, Student ran from the program. When the police officers who returned Student to Brandon searched him upon his return, they found two pocket knives in his pockets. (Berry, S-45)
27. This discovery, together with “threatening” behavior towards staff (see S-45), led Brandon to terminate Student on an emergency basis on August 18, 2008. Brandon’s termination letter of that date, faxed to Ralph Friedman, stated that Student was being terminated “effective immediately,” that Student “was in possession of 2 knives and was threatening to staff…” and that, further, Student “continue[d] to be threatening and non-compliant.” It was the opinion of Brandon staff that Student presented “a clear and present danger to Brandon staff and students.” (S-45)
28. In a letter dated August 21, 2008, Mr. Friedman formally informed Mother of the termination and enclosed releases to allow Taunton to seek alternative placements for the diagnostic evaluation. (S-42)
29. Mother did not pick up Student from Brandon because she felt that he would not be safe at home. (Mother, Berry) After some negotiations between Brandon administration and Ralph Friedman, Brandon allowed Student to remain in its facility while Taunton searched for a new placement. (Friedman, Berry, S-42)
30. On or about September 3, Student ran away from a medical appointment in Brockton.5 Ms. Berry called Taunton Public Schools to inform them of Student’s run, stating that Brandon would be willing to accept him back temporarily once he had been found. (S-42, Berry, Friedman) Later that day, Brandon’s administration imposed certain conditions on Student’s return, including medical and psychiatric clearance. Another condition of return was a meeting with Student’s family, advocate, Taunton, and DCF regarding how to work together in light of increasing antagonism between Student’s family and advocate on the one hand and Brandon staff on the other.6 Student did not return to Brandon, however. (Mother, Friedman)
31. Brandon had not conducted the 45-day extended evaluation of Student that was originally planned. Brandon administered no formal tests or assessments of Student’s cognitive, emotional, or behavioral functioning, and did not conduct a functional behavioral assessment (FBA). Since school was not in session, Student did not attend classes, and so did not undergo assessment of his academic or classroom functioning. (Berry)
32. On September 16, 2008, Mother accepted the services in the IEP amendment issued on June 19, 2008 but rejected the absence of a residential placement. Mother further stated that “there is no need for 45 day diagnostic reached through mediation.” (S-19) Because no other placement was available, Student returned to Taunton High School as his “stay put” placement. Pursuant to the accepted portions of the IEP, Student attended regular education classes and was to receive counseling three times per week for the purpose of developing and implementing behavioral goals as well as for having the counselor “assist [Student] in his therapy.” The IEP did not further define or explain these goals, and deferred development of benchmarks to the counselor and Student’s therapist. The portion of the IEP calling for a description of how progress would be measured was left blank. (S-19)
33. Taunton did not convene a TEAM meeting from the time it was notified of Student’s impending discharge in August 2008 through the month of September 2008. (Stipulation of Parties). Taunton’s out-of-district coordinator, Ralph Friedman, testified that Taunton did not convene a TEAM meeting within this time because the 45 day assessment had not been completed. Rather, Mr. Friedman, was in the process of searching for another facility to provide the extended evaluation. (Friedman)
34. In mid-September 2008, Mother initiated a referral for Student to the Baird Center, a Chapter 766-approved residential facility in Plymouth that conducts extended evaluations. In response to a request from the Baird Center, Taunton followed up with a formal referral. Baird was willing to consider providing Student with an extended evaluation on a residential basis, and informed Mother and Taunton that the next step would be an interview with Student. (S-39, Mother, Friedman)
35. At the time of Mother’s initial referral to Baird, Student was in a DYS detention facility. The Baird staff was willing to interview him in lockup. On or about September 18, 2008, Mother informed Baird that Student had been released, and Baird then stated that he must appear at an interview in Plymouth. (S-29, Mother)
36. Student never attended the interview, and the record is contradictory as to the reasons. Mother testified that Student was wearing an ankle bracelet as a condition of his release from detention, and that the juvenile court would not allow him to remove or disable the bracelet to attend the Baird Center interview. Mother further testified that she asked Baird staff to interview Student at home for this reason. (Mother)
37. On the other hand, in a letter to Mr. Friedman dated October 1, 2008, Baird’s clinical director reported that Mother had said that Student refused to go to the interview at the Baird Center because he felt he had no problems, that Mother was unable to force him to go, and that Student needed to be interviewed at home. I credit Mother’s contemporaneous statement to the clinical director, as reported in the October 1, 2008 letter, over her subsequent testimony to the contrary. (Mother, Friedman, S-39) Regardless of the reasons, however, Student did not fulfill Baird’s on-site interview requirement and did not attend its program.
38. On or about October 2, 2008, Brandon sent copies of its discharge summary to Taunton and Mother.7 The undated summary had been written by Wendy Gillenson, LICSW, Clinical Supervisor, and Sanmarie Gordon, BA, Case Manager. (Berry, Friedman, Mother, S-28)
39. The discharge summary indicated that Brandon staff had not performed the clinical diagnostic assessment that was the purpose of Student’s placement at Brandon. (S-28) Nonetheless, the document contained a summary of Student’s history immediately prior to and during his hospitalization at Pembroke, as well as a description of his stay at Brandon, a statement of impressions gathered, and recommendations. (S-28)
40. In summarizing Student’s course of placement at Brandon, the report recounted the pocket knife incident and subsequent termination of August 18, 2008, as well as a conflict with a staff member over opening a window that led to a report of Student’s being “aggressive” to staff and subsequent physical restraint of Student. From the date of this incident until Student’s run from program staff on September 2, the report described Student as sometimes oppositional but not violent or needing physical restraint but in need of 1:1 or 2:1 staffing at all times. (S-28)
41. Brandon’s impressions, gathered from clinical interviews, review of prior information, and observation, were that Student “appear[ed] to feel justified in defying authority figures…” when asked to do something with which he disagreed, was volatile and escalated easily when angry, had little insight into why he had been placed at Brandon, and had limited coping skills. Student stabilized after the incident of August 18, “but only with the availability of intensive 1:1 or, at times, 2:1 supervision and attention.” School was not in session during this period, so Student was not dealing with academic demands. (S-28)
42. The report further stated that based on referral data, there appeared to be a “high level of family conflict” over such issues as Student’s behavior, Mother’s concern that Student was unsafe at home because of his running away and possible involvement in risky activity in the community, and Student’s anger about being placed in Brandon. (S-28)
43. Brandon staff recommendations included the following:
· Referral to the Department of Children and Families (DCF) for services to Student and the family;
· A Family Stabilization Team (FST) to address family conflict issues;
· Community-based therapy and medication management
· Exploration by DCF of services needed because of Student’s trauma history8
· Further educational diagnostic information to be sought by Taunton, to be completed in a hospital or BIRT9 program since Student “required 1:1 and 2:1 staff to student ratios at Brandon, which is a staff secure residential facility…” (S-28)
· Inclusion of Student in discussions of his residential and educational needs, to help him understand the impact of his behavior on his education and living situation.
44. At hearing, Rachel Berry testified that the report referred to a BIRT as an example of the level of security Brandon felt that Student needed at the time. She further testified that she had no knowledge of Student’s educational needs, but at the time of discharge he needed intensive services. (Berry)
45. Taunton scheduled a TEAM meeting for October 10, 2008. Mother did not attend the meeting. The record does not indicate the purpose of the TEAM meeting, i.e., whether or not it was intended to review the Brandon discharge report and consider the next steps to be taken for Student. The record also does not reveal whether the meeting took place in Mother’s absence, but there was no testimony or documentation indicating that the meeting had occurred.
46. Four days later, on October 14, 2008, Student was suspended from Taunton High School for having a BB gun in his possession on school premises. With Mother’s consent, the manifestation determination was deferred until after “more in-depth diagnostic testing, including psychological testing, is conducted and provided to the Taunton Public Schools to clarify his emotional disability and needs.” Student was not allowed on the Taunton High School campus until after the manifestation determination and exclusion hearing. (S-15) Student remained at home after his suspension. He was under court order not to leave his home and was wearing an ankle bracelet. (Mother, S-15)
47. On or about October 24, 2008, Student was offered an extended evaluation as a day student at the Clifford School, the therapeutic day school component of the Longview Farms residential program in Walpole, MA. On October 29, Taunton prepared an amendment to Student’s IEP to reflect this placement. Mother orally waived the necessity of a TEAM meeting in order to speed up Student’s placement.10 Mother accepted the IEP services on November 17, 2008 and the placement on November 19, 2008. (Friedman, Mother, S-13) The N-1 form accompanying the amendment proposed an extended evaluation at Clifford School that would run from mid-November until January 22, 2009, at which time the TEAM would develop a “new, more detailed IEP” for Student. (S-13)
48. Student entered the Clifford School program on November 19, 2008 and attended continuously until a TEAM meeting held on February 9, 2009. (Dickens) Student’s program there consisted of academic classes (English Language Arts, History, Mathematics, Science/Technology) as well as Woodshop, Music, and P.E. Student’s Math instruction was at approximately the seventh-grade level, and all other courses were at the ninth grade level. Student also received counseling. (S-27)
49. The Clifford School evaluation process consisted of a review of records, behavioral observations, teacher reports, and clinical impressions. No “in-depth diagnostic testing, including psychological testing” or other formal assessments were done reportedly because of recent prior testing by Taunton. No Functional Behavioral Assessment was completed. (Dickens, Hanlon, S-27)
50. Student had mixed success at Clifford School. He attended school regularly and remained on the school premises for the required hours. For the most part, he attended all of his classes. (Dickens, Hanlon, Mother, S-27) Student’s academic performance and classroom behavior varied, depending on the course. In ELA, Student met or exceeded grade level academic expectations. His ELA teacher, Jonathan Hanlon, described him as a “bright, capable student” with “very good analytical, inferential, and recall skills.” Student often led class discussions and was interested in literature. While Student needed to improve his classroom behavior, his teacher rated him as “always” or “sometimes” meeting behavioral expectations, and described him as one of the better-behaved students in the class. (S-27, Hanlon)
51. According to Mr. Hanlon, Student’s misbehavior in ELA class consisted primarily of conversing with classmates when he was supposed to be writing, as well as occasional use of disrespectful or abusive language (described by Clifford as “verbal aggression.”) In ELA class, Student responded well to redirection, timeouts, or loss of points in the Clifford School’s token economy. While he was given approximately two time-outs per week, this was considerably lower than the average for the class. (Hanlon)
52. In History, Student’s academic performance was rated as “near” ninth grade-level expectations, and his behavior was rated as generally “average.” The history teacher commented that Student had made a “positive entry into LVF11 community but firm limits and concise expectations must be set.” (S-27) Student also did reasonably well in Music, Woodshop and P.E., with no major academic or behavioral problems reported. (Hanlon, P-27)
53. Student did have problems in math and science. His academic skills were below grade level expectations, and he had behavior problems consisting of resisting coming into class, conversing with peers during lessons, and leaving class when spoken to about this behavior. According to the written report of the math/science teacher, Student’s behavior made it impossible to assess his skills in these subjects. (Hanlon, S-28)
54. In addition to academic classes, Student participated in counseling at Clifford School with his assigned clinician, Cynthia Dickens. Ms. Dickens testified that she saw Student weekly for 45 minutes for individual therapy. Additionally, teachers on occasion sent Student to see Ms. Dickens when he had problems in class. Ms. Dickens testified that Student “did well” in counseling, and that she had a good therapeutic relationship with him; however, in Clifford’s discharge summary, Ms. Dickens noted that while Student was polite and cooperative in counseling, he was not invested in the process. (S-27)
55. On February 11, 2009, the TEAM convened to consider the results of the extended evaluation at Clifford, which were summarized in a written report signed by Ms. Dickens. (Friedman, Dickens, Mother, S-27) This report briefly recounted Student’s placement and diagnostic history, and presenting problems, described Student’s functioning in the behavioral and educational domains at Clifford, and offered diagnostic impressions and recommendations.
56. Student’s educational performance has been discussed in detail, above. Behaviorally, according to the Clifford report, Student’s performance varied. In one-on-one situations with adults, he usually presented as caring and respectful.12 With peers, his behavior fluctuated from friendly to disrespectful or condescending, and he got involved with peers’ negative behavior. He felt that the other students at Clifford were “not like him.” Student had difficulty following rules, and could be oppositional or defiant when redirected. Student had 32 time-outs during the evaluation, mostly for refusal to follow instructions, but also for verbal aggression, other verbal infractions, and twice for “physical aggression.”13 (S-27) This number was below the average for a day student at Clifford. (Dickens)
57. The “Diagnostic Impressions” contained in the report were that Student’s behavior was similar to that seen in prior settings. Student seemed to hold onto emotions and had little interest in therapy. He seemed to rely on aggression, lack of respect for authority, and anger in order to feel more powerful and in control in situations where others tried taking control away from him. According to the report, Student could feel overwhelmed and as though he lost part of himself when given a directive, and that aggression was his only tool for coping with these emotions. (S-27)
58. Relying on written reports of prior placements, reports from Mother, academic performance, and observation, Clifford School’s report recommended the following: a school placement with a strong therapeutic and behavioral component, individual therapy, anger management and Dialectical Behavioral therapy to increase Student’s ability to manage anger, and positive associations with peers. Noting Student’s lack of trust or interest in family therapy, the report suggested that a therapist work with the family separately, until Student became more engaged with his clinician. (S-27)
59. At the February 11 TEAM meeting, the TEAM determined that Student should continue as a day student at the Clifford School, and the same day, the TEAM issued an IEP calling for that placement. (S-7)
60. The IEP issued on February 11, 2009 contained academic goals for ELA and math, as well as social-emotional and school behavior goals. The social-emotional goal was for Student to manage his anger while identifying underlying causes and using appropriate coping skills, at school and at home. The school behavior goal was for Student to consistently follow school rules and expectations, including a 25% reduction in time-outs during each quarter and 90% use of appropriate language. (S-7)
61. The Service Delivery page listed all services in Grid C. Student was to receive 45 minutes per week of individual counseling, along with social-emotional and behavioral services from the special education teacher throughout the school day. (S-7) The IEP provided for 5 x 6 hours per day of Extended School Year (ESY) for approximately eight weeks during July and August of 2009. (S-7) The IEP did not contain extended day, home-based, or parent consultation services.
62. Upon hearing the TEAM recommendations at the February 10 meeting, the Student became very upset because he had hoped to return immediately to Taunton High School. According to Mother, three adults had to physically put Student in Mother’s car for the ride home, and Student threatened to jump out of the moving car during the drive. (Mother) Student did resume attending the Clifford School after the TEAM meeting, and continued there until on or about February 27, 2009.
63. Pursuant to court order, Student wore an electronic ankle bracelet during the period when he attended the Clifford School. The bracelet effectively prevented Student from running away from home or school—the two locations where the Court allowed him to be–because it would automatically have notified law enforcement if Student attempted to go elsewhere. Student understood and respected the ankle bracelet. (Hanlon, Mother)
64. The ankle bracelet was removed at some point in late February 2009. On or about February 27, 2009 Student was arrested for alleged unlawful activities unrelated to school. He was placed in the custody of the Department of Youth Services (DYS) on detention status, where he has remained through the dates of the hearing in this matter. He did not return to school at Clifford or elsewhere. (Mother, Fenton) As of the hearing date, the underlying delinquency matter or matters had not been resolved. (Mother, Turner) Mother testified that was her impression that the Court would release Student from detention only to a residential facility having some level of security. This impression was corroborated by Attorney Michael Turner, who represents Student in the Juvenile Court. (Turner)
65. During Student’s tenure at Clifford, Mother had numerous telephone conversations with Student’s therapist, Ms. Dickens, and other staff at Clifford School in which she stated she was seeking residential placement for Student in order to provide him with additional clinical and behavioral support, and asked Longview Farm (LVF) to determine the appropriateness of its residential program for Student in addition to the Clifford School. (P-2, Mother)
66. In an unsigned letter dated February 27, 2009, a LVF staff member stated, “I am writing this letter at your request. Providing a funding agency’s agreement for placement and it is clinically appropriate, Longview Farm currently has a bed open and is willing to accept your son, [Student], as a residential student. (P-2)
67. On March 17, 2009, Cynthia Dickens wrote a second, lengthier letter to Mother at her request, and provided a copy to Ralph Friedman. This letter reiterated that Longview Farm would be willing to accept Student in its residential program “if a determination for placement is deemed clinically appropriate and a funding agency is in agreement with placement…” (P-2)
68. This letter went on to state that “assessment completed by Longview Farm was specifically geared to his academic needs and not to his overall functioning.” (P-2) In her testimony, Ms. Dickens reiterated that the extended evaluation was for the purpose of assessing Student’s functioning in a school setting, only. (Dickens)
69. The letter stated that the Longview Farm treatment team was “unable to make a recommendation regarding [Student’s] need for residential care at this juncture.” (P-2) because Student’s difficulty in appropriately managing his emotions did not occur consistently at school. Finally, the letter stated that although Longview staff “cannot make an informed recommendation regarding level of care…,” the treatment team did recommend that Student address his mental health needs through therapy. The letter stated that an appropriate placement would be one where Student felt he was in a safe environment, with staff who were “accustomed with dealing with young people like [Student] while having a non-judgmental stance. A therapeutic approach with a strong behavioral component…would be beneficial.” (P-2)
70. Both Ms. Dickens and Mr. Hanlon testified that other students with profiles similar to Student’s and with more severe behavioral issues were successful as day students in the Clifford School. (Dickens, Hanlon)
71. As stated above, Student was placed in DYS custody on detention status on or about February 27, 2009. Shortly thereafter, DYS placed Student in its locked Howland facility, located in a former Taunton State Hospital building. (Mother, Nicholson, Fenton)
72. Pursuant to 603 CMR 28:10(3)c, responsibility for education of eligible students who are being detained in a DYS facility is shared by the child’s LEA and a division of the DESE named Special Education in Institutional Settings (SEIS). The LEA is responsible for providing SEIS with educational records and the Student’s IEP, and for convening TEAM meetings. SEIS is responsible for general oversight, including ensuring that staff necessary to implement IEPs are available to detained eligible students. To this end, SEIS employs staff members each of whom monitors special education services in several facilities. Most of the actual teaching is done by DYS employees. (Nicholson)
73. Cheryl Nicholson is the SEIS employee who was the Acting Principal for Special Education Services in DYS facilities located in the Southeast Region, which includes the Howland facility. (Nicholson). According to Ms. Nicholson, neither DYS nor SEIS initiates contact with the LEAs of students who are being detained by DYS but have not been committed to DYS.14 Rather, special education students on detention status come to SEIS’ attention only if the parent delivers or sends to SEIS the detained student’s IEP and/or school records. Upon receipt of this information, the TEAM leader (ETL) employed by SEIS and assigned to that facility is responsible for taking further action, including contacting the school district, coordinating TEAM meetings with the district, and implementing the student’s IEP within the facility. Howland’s ETL was Susan Hachem. (Nicholson)
74. In Student’s case, shortly after his admission to Howland, Mother and/or her advocate notified the main SEIS office that Student had been detained at Howland and had an IEP. SEIS relayed this information to Ms. Nicholson approximately late March 2009, and Ms. Nicholson, in turn notified the Howland ETL. Mother had provided SEIS with Student’s IEP of February 2009 as well as some school and medical records. (Nicholson, Mother)
75. Taunton played no independent role in forwarding education records or the IEP to DYS. According to Ralph Freedman, Taunton generally does not initiate contact with SEIS or DYS on behalf of detained Taunton special education students. Mr. Freedman testified that it is impractical for Taunton to do so because it is difficult to track down any one student within the statewide, multi-facility DYS detention system. (Freedman)
76. Between February and April 2009, the Howland facility relied on the February 2009 IEP calling for a day placement at the Clifford School. In mid-April 2009 Ms. Hachem contacted Taunton to set up a TEAM meeting to develop an IEP to be implemented within the detention setting. The TEAM met in late April or early May 2009 and developed this IEP, which Mother accepted. (S- 2)
77. Student had difficulty with the educational program at Howland. Reports indicate that he missed classes, was rude to teachers, and refused to do schoolwork. Student refused the pullout services on his IEP because he was embarrassed at being singled out as a special education student. At Mother’s request, IEP services were then implemented within the classroom. (Mother) Additionally, according to Mother, Student missed classes when he was being disciplined, and, on one occasion, when he was asked by a DYS worker to help move boxes. (Mother)
78. Student also had difficulties in the facility during non-school hours. He was involved in numerous altercations with other residents, was restrained and secluded multiple times, and was reportedly assaulted by a staff member or members. (Mother)
79. As of the hearing dates, Student remained in the Howland facility.
FINDINGS AND CONCLUSIONS
There is no dispute that Student is a child with disabilities who is entitled to a free appropriate public education (FAPE) as defined in federal and state law.15 There also is little or no dispute on Student’s profile as an intelligent, academically capable16 young man whose functioning both in and outside of school is affected by serious emotional disabilities and related behavioral problems, as well as by a possible non-verbal learning disability.
At issue here is whether the Parent can prove that Taunton’s proposed IEP calling for a private day placement for Student was inappropriate, i.e ., was not reasonably calculated to provide Student with FAPE because Student requires a residential placement in order to make effective educational progress in the least restrictive environment.17 The Parent asserts that the Student cannot make educational progress without the structure and support of a therapeutic setting during all of his waking hours, and, indeed, cannot be safe outside of that setting because of his history of running away from home and school and accumulating delinquency charges. Taunton argues, on the other hand, that Student can be educated successfully in a therapeutic private day placement such as the Clifford School, that if Student needs a residential setting, it is solely for non-educational reasons, and, hence is the responsibility of Parent or other agencies.
It is well settled that an eligible student should be placed in a residential educational placement only if the nature or severity of the student’s disability precludes effective educational progress in a less restrictive setting. Specifically residential educational placement is appropriate when a student requires educational and/or related services during all waking hours in order to make effective educational progress. 34 CFR 300.114(a); David D. v. Dartmouth School Committee , 775 F.2d 411, 416 (1985) Aff’d. U.S. (19 ).; A student may meet this requirement if the student’s emotional, behavioral or other out-of-school needs are “inextricably intertwined with his educational performance,” such that the student cannot make educational progress unless these needs are addressed on a 24-hour basis. Mohawk Trail Regional School District v. Shaun D., 35 F. Supp. 2d 34, 24-43 (D. Mass. 1999), citing Abrahamson v. Hershman , 701 F.2d 223, 227 (1983). See also Kruelle v. new Castle County School district , 552 IDELR 350 (3d cir. 1981).
Proof that a child meets the criteria for residential placement is generally provided by testimony and reports of professionals who have evaluated, treated, observed, taught, or otherwise become familiar with the child’s strengths, needs, and functioning, as well as with his or her educational history. Such professionals are most credible if they also are familiar with both the proposed residential placement as well as the program being offered as an alternative to residential placement.18
In the instant case, Mother has not provided this proof, although she has amply demonstrated that Student has significant educational, social and emotional needs, and has had a chaotic placement history since 2008.
Parent presented no witnesses and no evaluations recommending residential educational placement, although she presented several witnesses who were in a position to recommend residential placement if they thought it necessary, as well as numerous reports written by these witnesses and others. A review of the pertinent testimony and documents is illustrative.
Dr. Herron and the Pembroke Hospital Reports :
As stated above, Dr. Nancy Herron was Student’s treating psychiatrist during his stay at Pembroke Hospital. In addition to overseeing the medical aspects of Student’s care, Dr. Herron saw Student almost daily during his stint on the adolescent unit at Pembroke, met with his family on numerous occasions, and was familiar with his day-to-day functioning in the hospital, including his behavioral difficulties. (Herron) Dr. Herron did not recommend residential placement for Student—for educational reasons or otherwise–either in her testimony or in any of the reports and summaries that she generated for Student.
Dr. Herron’s discharge recommendations were for medication management, individual and family therapy, and family support services. In one report Dr. Herron mentioned that Parent was seeking residential placement, and in another she used the term “suitable placement” without elaboration about what that meant. Dr. Herron did not explicitly recommend any out-of-home placement for Student, however, either in her reports or in her testimony. At most, she made vague, equivocal statements about increased support in view of parent-child conflict and Mother sometimes feeling it was unsafe to take Student home. Moreover, Dr. Herron made virtually no recommendations regarding Student’s educational placement, and, indeed stated that she felt this was not her role. Rather, she commented, in one report, that it was unclear whether Student needed a standard public school placement or an “alternative” setting, and recommended, in her discharge summary, that Student receive a full educational evaluation upon discharge to determine the appropriate educational services.
Rachel Berry and Brandon School
Student spent a total of about six weeks at the Brandon School, where, although no formal testing was done, staff had an opportunity to observe and interact with Student. Brandon’s final recommendations were primarily for community-based therapeutic and family services, referral to DCF for unspecified services, and the like.
The discharge report did recommend that the educational diagnostic evaluation that Brandon had not been able to complete needed to be finished in a hospital or BIRT program since Student “required 1:1 and 2:1 staff to student ratios at Brandon, which is a staff secure residential facility…” (S-28) This statement is the only recommendation in the record that indicated Student needed a residential placement of any type, or for any purpose.
Parents rely on this statement as evidence of Student’s need for residential placement. This reliance is misplaced, however. The statement in the Brandon report reflects only that Brandon staff had difficulty managing Student and could not assess him while he was being held to await another placement. Student did not want to be at Brandon, and Brandon did not want him in their facility. Under these circumstances, and given that Brandon did not provide Student with educational services while he was there or conduct an FBA or other assessments, this single statement does not support a conclusion that Student needed a residential educational placement.
Clifford School Witnesses and Reports :
During the period at issue, Student experienced the most success when he attended the Clifford School day program for an extended evaluation while living at home with his family. The testimony and documents establish that Student attended school regularly, did fairly well in his classes, and was pleasant and cooperative with his therapist. While Student’s behavior was not perfect, his infractions were relatively minor, for example, socializing when he was supposed to be working, occasionally using some bad language, refusing to work. All of these behaviors were readily managed using the program’s token economy system, time outs, and discussions with teachers and his therapist. He did not require intensive 1:1 supervision or any physical interventions. In fact, Student’s conduct was more appropriate than that of many residential and day students at Clifford School, and he was one of the better behaved students in his English class.
Neither the testimony of Clifford School witnesses (Hanlon, Dickens) nor the reports and documents from Clifford in the record state that Student needed to be placed residentially. At most, in response to repeated correspondence and inquiries, the program indicated that Student could be accepted into the residential portion of the program if it was “clinically appropriate” and if funding were available.
Neither the witnesses nor the documents stated that Student required residential placement to benefit educationally. On the contrary, the testimony and documents indicated that for the first time in many months, Student functioned fairly well as a student, attending classes and counseling, while living at home. Parent argues that Student’s performance at Clifford must be assessed in the context of his wearing an ankle bracelet which effectively prevented him from leaving the building and his home, and that but for the bracelet, Student would still be leaving home and school, and engaging in risky behavior. While the bracelet certainly limited Student’s movement, it would not have prevented him from being disruptive in school or unmanageable within the home, and he was neither.
Finally, Parent argues that because the extended evaluation was designed only to assess Student’s academic needs and performance, and not his general functioning, it should not be relied on when determining Student’s need for residential educational placement. However, Mr. Hanlon and Ms. Dickens testified that they were familiar with the profiles of both day and residential students at Clifford, and Student’s profile fit that of a day student. Moreover, had either Mr. Hanlon or Ms. Dickens suspected that Student might need a more restrictive setting to benefit educationally, they were in a position to suggest expanding the scope of the evaluation.
Student’s Functioning at DYS
There is no dispute that Student had a very difficult time in the Howland detention facility. Mother testified that Student had been restrained numerous times, had been assaulted by other detainees and staff. He had behavior problems, mainly refusing to follow staff directives. He did not fully participate in the special education services offered to him, but this is not surprising under the circumstances. It is unclear what assessments, if any, were done on Student while he was detained but, again, there was no testimony or other evidence that Student needed a residential educational placement.
In sum, the evidence presented by the Parent did not support her assertion that Student needed residential placement for educational reasons. As stated above, Parent amply demonstrated that Student needs appropriate educational and therapeutic services in a substantially separate setting in order to make effective educational progress. The weight of the evidence is, however, that despite Student’s considerable need, he learned and functioned best when he attended the small, structured, therapeutic setting of the Clifford School, as a day student. On the other hand, Student had great difficulty managing his behavior in more restrictive residential settings such as Pembroke Hospital, Brandon, and DYS. While in some instances, the inability of a student to manage his or her behavior in a particular setting points to a need for a more restrictive placement, in the instant case, during the period in question, the opposite was true; Student did better with less restriction, not more..
It is clear that Parent failed to offer any expert evidence in support of her claim that the Student required a residential placement for educational reasons. As such, Parent failed to meet her burden of persuasion under Shaffer v. Weast , supra . Moreover, Parent failed to demonstrate that procedural errors on Taunton’s part, if any, led to a deprivation of FAPE. Lenn v. Portland School Committee , supra.
ORDER
The Conclusion and Order issued in September 2009 is incorporated and reproduced below verbatim:
Based on the evidence presented at the hearing, I find that the Parent failed to meet her burden of proving that the IEP issued in February 2009 was inappropriate, or that Taunton should have placed Student in a residential program for educational reasons. On the other hand, Student’s circumstances have undergone several changes subsequent to the issuance of that IEP, such that the evaluations and other information on which the TEAM relied may not still be accurate.
Therefore, I issue the following Order:
1. Within ten days of the issuance of this Order, Taunton shall seek consent from Parent for, and shall arrange for a comprehensive, multi-disciplinary re-evaluation of Student, which shall include assessments of all areas of disability. These shall include, but need not be limited to, psychological, educational, home and psychiatric assessments. The evaluation shall also include a functional behavioral assessment (FBA).
2. The comprehensive evaluation shall be conducted by professionals or a facility with no prior connection to Taunton, the Parent/Student, the Department of Youth Services, Pembroke Hospital, the Brandon School, Longview Farms, or any other agency, facility or professional that has previously evaluated, treated, or otherwise served Student.
3. Upon completion of the evaluation, the TEAM shall convene and propose an IEP or amendment reflecting the recommendations from the re-evaluation.
By the Hearing Officer:________________
Dated: __________________
1
Mother testified that prescribed medications caused Student’s symptoms to worsen. (Mother)
2
Mother testified that she would not seek DCF services because she would be required to relinquish temporary custody of her son in order to receive a residential placement, and risked permanent loss of custody. She reasoned that this was an unacceptable risk given that, in her view, Student was entitled to residential services from the school system.
3
Dr. Herron had testified that at some points during Student’s hospitalization, his subsequent placement was a dilemma, because Mother felt she could not safely take him home, and he had been rejected by a CBAT because of his behavior. (Herron) On the other hand, as stated above, she concluded that he was stable and ready for discharge at the time he left the hospital. (Herron)
4
Taunton provided some tutoring late in Student’s hospital stay. (mother)
5
Mother testified that she had directed Brandon staff to take Student to a doctor located near the facility, rather than risking Student’s running during a longer trip to Student’s personal physician in Brockton, but that Brandon staff did not comply with Mother’s request. (Mother) Brandon’s subsequent discharge summary states that local physicians would not accept Student’s insurance, requiring them to take Student to his own doctor in Brockton.
6
Mother had filed at least one 51A complaint as well as a complaint with the Department of Early Education and Care related to Brandon’s handling of certain incidents with Student. (Mother, S-42)
7
Mother testified that she had not received this document until the commencement of this hearing. However, the documents in the record indicate that Taunton’s counsel forwarded the report to Mother’s advocate in October 2008.
8
The report stated that the effects of Student’s childhood abuse were “unclear,” but “emotional deregulation is one symptom of trauma.” (S-28)
9
A BIRT is a locked treatment facility for adolescents with serious mental health and safety issues, who meet the criteria for involuntary commitment under G.L. c. 123 Sec. 7 and 8. School districts do not have authority to refer students to such facilities. (Friedman,)
10
Mother testified that the only reason she accepted the day placement for Clifford School was because she had never seen the final Brandon discharge summary, which she felt, recommended a staff-secure residential facility for Student, such as a BIRT, at least for evaluation purposes. Had she been aware of this Brandon report, Mother would not have consented to an additional extended evaluation, but would have immediately pursued residential placement. As stated above, I do not credit Mother’s testimony that she had not seen or had access to the final Brandon report. Even if this had been the case, however, it is not relevant to the central issue in the case and does not undermine evidence arising from the Clifford School evaluation.
11
Longview Farms
12
His lead teacher, Mr. Hanlon, described him as “a gentleman.” (Hanlon)
13
Mr. Hanlon did not know the exact nature of the “physical aggression,” but testified that the label encompassed such acts as throwing down a pencil. (Hanlon)
14
Students who have been committed to DYS by a court (as opposed to being on detention status, like Student) are assigned education liaisons employed by DYS. These liaisons initiate the process of contacting school districts. (Nicholson)
15
The IDEA defines FAPE as special education and related services that (A) are provided at public expense and under public control; (B) meet the standards of the state educational agency; (C) include an appropriate preschool, elementary, or secondary school education; and (D) are provided in conformity with a properly developed IEP. 20 USC Sec. 1401. The Massachusetts special education statute, G.L. c. 71B, Sec. 1 (“Chapter 766”) defines FAPE as special education and related services that conform to the IDEA and its regulations and also “meet the education standards established by statute or…by regulations promulgated by the Board of Education.” G.L. c. 71B, Sec.1. Relevant case law defines FAPE as, among other things, educational services that enable the eligible child to derive educational benefit, and make meaningful progress in the areas identified as special needs, in light of the child’s potential. See generally, Hendrick Hudson Bd. of Education v. Rowley , 458 U.S. 176, 188-9, 203 (1992); Burlington v. Mass. Dept. of Education , 736 F.2d 773, 788 (1 st Cir. 1984); Lenn v. Portland School Committee , 998 F.2d 1083 (1 st Cir. 1993).
16
Student has excelled in Language Arts, and has relative weaknesses in math.
17
According to the Supreme Court’s holding in Shaffer v. Weast , 56 U.S. 49, 62 (2005), Parent, as the party challenging the status quo , carries the burden of proving that the School’s proposal for a private day program is inappropriate.
18
Obviously, while the usual scenario is for a parent to request residential placement over the opposition of the school, the reverse also takes place.