COMMONWEALTH OF MASSACHUSETTS
SPECIAL EDUCATION APPEALS
In Re: Wachusett Regional School District
BSEA # 02-1337
DECISION
This decision is issued pursuant to 20 USC 1400 et seq . (Individuals with Disabilities Education Act), 29 USC 794 (Section 504 of the Rehabilitation Act), MGL chs. 30A (state administrative procedure act) and 71B (state special education law), and the regulations promulgated under said statutes.
A hearing was held on December 14 and 21, 2001 in Worcester, MA before William Crane, Hearing Officer. Those present for all or part of the proceedings were:
Student’s Mother
Gretchen Timmel Psychologist, Mass. General Hospital
Phyllis Samara Occupational Therapist, Barrett Family Wellness Center
Thomas Tashjian Private Psychologist
George Haile Supervisor, Mass. Department of Education
Nora Rushford Associate Director for the Community and School Programs (CASP)
of the Walker Home and School
Richard Murphy Executive Director, the FLLAC Collaborative Program (FLLAC)
Michele Brady School Counselor/Program Coordinator, FLLAC
Jason Newton (former) School Psychologist, Wachusett Regional School District
Glenn Williams Supervisor of Special Education, Wachusett RSD
Philip Campbell Wachusett’s Director of Student/Information Services and
Interim Administrator of Special Education, Wachusett RSD
Regina Williams Tate Attorney for Wachusett RSD
The official record of the hearing consists of documents submitted by Mother and marked as exhibits 1 through 70 of exhibit book 1 and exhibits 1 through 47 of exhibit book 2 (hereafter, Exhibit P-1, Book 1, etc.); documents submitted by the Wachusett Regional School District (hereafter, Wachusett) and marked as exhibits 1 through 190 (hereafter, Exhibit S-1, etc.); and approximately fourteen hours of recorded oral testimony and argument. As agreed by the parties, written closing arguments were due on January 9, 2002, and the record closed on that date.
ISSUES PRESENTED
Issue 1 : Is the IEP1 most recently proposed for Student by Wachusett (including the services being provided pursuant to that IEP) reasonably calculated to assure Student’s maximum possible educational development in the least restrictive environment consistent with that goal? And, if not, what changes should be made to the IEP in order to meet said standard?
Issue 2 : Is the provision of services from a learning disability specialist, as described in the most recently-proposed IEP, necessary in order for the IEP to be reasonably calculated to assure Student’s maximum possible educational development in the least restrictive environment consistent with that goal? If not, how may those services be changed?2
HISTORY AND DISPUTED IEP
On September 10, 2001, Wachusett filed a Request for Hearing in this matter. The Request for Hearing stated that Student is currently not attending school because Mother refuses to send him to school. The Request for Hearing described the need for resolution of the dispute regarding Student’s current and prospective educational placement and services.
A Hearing (with a short Pre-Hearing to occur immediately prior to the Hearing) was scheduled to begin on October 19, 2001. The Pre-Hearing led to resolution of this matter, in principle, for the purpose of Student’s enrolling into the FLLAC Collaborative Program (hereafter, FLLAC). The resolution included scheduling a progress review after four weeks at FLLAC and a more complete review (including consideration of when Student should return to the public school) after eight weeks at FLLAC. Hearing dates were scheduled for the end of January and beginning of February in the event that a more long-term resolution was not reached by the parties regarding Student’s placement and services.
On October 23, 2001, Wachusett filed a Motion to Amend its Request for Hearing , seeking to include within its Request for Hearing all issues raised by Mother in her complaint before the Program Quality Assurance Services (hereafter, PQA) of the Massachusetts Department of Education. Noting that the requested amendment would bring into this dispute a myriad of complicated and contested issues regarding past procedures and services and further noting that the requested amendment was filed just after the parties had resolved in principle their dispute regarding current/prospective services, this Hearing Officer denied the Motion, concluding that to do otherwise could easily complicate and disrupt the remaining discussions necessary to reach a more long-term resolution regarding current and prospective services and placement which are central to Student’s receiving a free appropriate public education. Wachusett retained the right to file a separate Request for Hearing regarding the additional issues.
The Team met on November 16, 2001. An IEP was prepared, proposing that Student attend the Caldwell Alternative School (hereafter, Caldwell School) which is part of FLLAC. Services to be provided pursuant to the IEP include counseling for thirty minutes, once per five-day cycle; occupational therapy for thirty minutes, twice per cycle; speech-language therapy for thirty minutes, twice per cycle; academics from a special education teacher for 240 minutes each day; and academic support from a learning disability specialist for up to 240 minutes each day. In addition, the IEP calls for consultation from the following persons: school counselor for fifteen minutes, twice per five-day cycle; speech therapist for fifteen minutes; once per cycle; occupational therapist for fifteen minutes, once per cycle; sensory integration therapist for fifteen minutes, once per cycle; and the learning disability specialist for 150 minutes per week. The IEP is for the period 10/25/01 to 1/30/02. Exhibits S-156; P-43, Book 2.
Pursuant to this IEP, Student began attending the Caldwell School. Student’s first day at Caldwell was November 1, 2001 but his second day of school was November 9, 2001, after which he attended more regularly.
By memorandum of December 7, 2001 to Dr. Williams, Mother partially rejected the IEP. She noted the following specific objections:
1. The next scheduled three-year evaluation should be March 2004, not November 16, 2004.
2. The 4 th paragraph of the “Student Strengths & Key Evaluation Results Summary Continued” should not indicate that Student has an Oppositional Defiant Disorder since his mood disorder is not an issue at this time.
3. Under “Other Educational Needs” on page IEP3, there should be written clarification as to what is to be provided regarding the checked-off “Assistive Tech Devices”;
4. The allotted time (on the service delivery grid) for the learning disability specialist should be 240 minutes each day, rather than “up to” 240 minutes each day.
5. The IEP should provide that in March 2002 (rather than April 2002) there will be determination of an extended year program for Student.
6. The service delivery grid should state that the amount of time and frequency of the learning disability specialist should be at least that of the teacher (240 minutes each day), if not more.
Exhibit P-43, Book 1.
Although Mother accepted the services and placement (with the above-noted exceptions) at the Caldwell School, it soon thereafter became apparent (during telephone conferences with the Hearing Officer, Mother and Wachusett attorney and staff) that Mother had substantial reservations and objections regarding the placement and the services being provided there. In addition, Wachusett had substantial concerns regarding the role of the learning disability specialist as agreed to by Wachusett within the IEP. During a telephone conference call with the Hearing Officer on November 26, 2001, the parties agreed that this matter should go to a Hearing as soon as possible in order for the Hearing Officer to resolve these various disagreements and ultimately to determine what educational and related services Student should receive. Hearing dates were scheduled for December 14 and 21, 2001.
STATEMENT OF THE EVIDENCE
· Michele Brady testified that she has been employed as a counselor and program coordinator for the Caldwell Elementary School at FLLAC since August 2000. She explained that her prior employment includes working as a special education aide (8 months), therapist in private practice (14 months), Department of Social Services (DSS) social worker (5 years), DSS supervisor (3 years), and child care worker for a residential school for emotionally disturbed children (6 to 9 months). She noted that she has a Masters Degree in social work, is licensed as a social worker (LICSW) and is certified as a school adjustment counselor.
Ms. Brady testified that the Caldwell School (at the FLLAC collaborative) has two classes – one for kindergarten to 3 rd grade and one for 4 th to 6 th grades, with each class of no more than seven children having a teacher and one or two aides. She explained that the written program description (Exhibit S-139) accurately describes the School, that the goal for every student is the return of the child to the sending school district, and that the Caldwell School has a behavior management system. She further explained that the Caldwell has a restraint policy (Exhibit S-137) and that she as well as Student’s teacher and aide have been trained regarding the use of restraint through the Crisis Prevention Institute’s program for at least ten hours each. She also noted the School’s disciplinary policy (Exhibit S-138) which emphasizes the use of positive reinforcement as much as possible, relying on time-out as a last resort.
Ms. Brady testified that she has observed Student in his class, which includes four other children one of whom has a language-based learning disability. She explained that the School has an occupational therapist and speech-language therapist (who provide Student with OT, including sensory integration, and S-L services on a pull-out basis pursuant to his IEP), and there is an art therapist. Ms. Brady explained that she runs a social skills group for the entire class, working on managing one’s temper and relaxation techniques to help a student self de-escalate. She also noted that Student participates in an additional social pragmatics group to teach conversational social skills.
Ms Brady testified that Student’s language arts include “Explode the Code” (a recently received program designed to assist with decoding skills), a regular education reading program (the Wilson Reading Program is available but no staff person is adequately trained and qualified to use it), and a “Co-Writer” (reading out loud) program. She also noted that the School currently has the “Project Read/Framing Your Thoughts” program which can be implemented.
Ms. Brady testified that, as reflected in the “General Principles” of the draft sensory diet for Student (Exhibit S-142), instruction for Student includes a quiet, ordered environment; clear, simple directions; predictability and routine so he knows what is expected of him and what is next; permission for Student to get a drink as needed (allowing him a break by walking across the room); and hands-on learning that includes multi-sensory learning and use of manipulatives.
Ms Brady testified that Student has a behavior plan pursuant to which he earns up to five points per category per day, and if he earns 80% of the possible points for the day, he receives a (fake) “dollar” which can then be used towards purchasing a prize at the School.
Ms. Brady testified that Student began at the School on November 1, 2001 but his second day of school was November 9, 2001, after which he attended more regularly. She noted that Student’s behavior (as reflected in the points that he earned in various categories on his Daily Performance Sheets, Exhibit S-144) indicate that during the first several weeks, Student’s behavior included physical aggression (including occasional incidents of biting, hitting, and pushing over furniture) and significant verbal aggression. Ms. Brady observed that Student’s interactions with Ms. O’Connor were often difficult, including verbal aggression and struggle with her. Ms. Brady testified that towards the end of November 2001, Ms. O’Connor missed several days and then stopped coming to the School after November 28, 2001. At the same time, Student’s behavior improved so that over the past two or three weeks prior to Ms. Brady’s testimony (on December 14, 2001), Student’s behavior has generally been good (especially his behavior towards adults) although occasionally he is verbally aggressive and he continues to have difficulties with his relations with peers. She noted that, in general, children need to have at least three or four months of behavior that is free of physical aggression before they are able to return to a mainstream classroom, so that Student would need to continue the generally good behavior of the past two to three weeks for this three or four month period before he would be ready (behaviorally) to be a part of a mainstream class. She explained that until his behavior improves to that level, she would have reservations about Student (given his history of aggression) returning to a regular classroom.
Ms Brady testified that she has observed that Student has very positive participation in class, is usually attending to task, appears to want to be in class with the other children and seeks the approval of the teacher and his peers. She concluded that on the basis of her observations and information from other staff, Student has appropriately transitioned into the program. She also explained that although Student enjoys occupational therapy in particular (a pull-out therapy), Student generally does not like to be pulled out of the activities of the group as he does not like to be seen as different than the other children.
Ms. Brady testified that at the School there is opportunity for individual instruction either during class or near the end of the day. She believes that he has made academic progress. She noted that Student has a large sight vocabulary which allows him to do well in reading, but he has difficulty with spelling and writing and would benefit from educational services specifically addressing his decoding deficiencies.
· Richard Murphy testified that he has been the Executive Director of FLLAC for the past two and a half years. He explained that previously he was special education administrator at another collaborative for one year, educational consultant to a program for deaf/blind children for two years, and director of education at a pediatric nursing home for four years. He noted that he is licensed as a special education administrator and has a doctorate degree in curriculum administration, special education.
Dr. Murphy testified that he supervises Student’s program at FLLAC and employed Ms. O’Connor as a consultant to work with Student and staff. He testified that (in accordance with his letter to Ms. O’Connor of November 20, 2001 describing Ms. O’Connor’s responsibilities) her duties included acting as a learning disabilities specialist/instructor to Student; providing direct observation to Student in the school setting for the purposes of making recommendations to better meet his educational goals; and providing consultation to the program staff regarding modifications to Student’s school work/materials/environment that are designed to enhance his learning. Exhibit S-153. He testified that she worked at FLLAC on November 28, 2001 but after that, at her initiative, she did not return to work at FLLAC.
Dr. Murphy testified that based on his observations, Student needs a small classroom, information presented in away that he can understand, a variety of teaching techniques, and clear expectations. He further noted that although he is not an expert on learning disabilities, he believes that Student has weaknesses with decoding and that it would be helpful to have access to someone with learning disabilities expertise who could help determine Student’s educational needs and how they can be met. He stated that he has been seeking to hire a full-time learning disabilities specialist to work generally with staff and children at FLLAC, including the elementary school that Student attends.
· Thomas Tashjian testified and wrote a neurobehavioral assessment of Student that was admitted into evidence (Exhibit S-190; P-1, Book 2). Dr. Tashjian currently is Clinical Director of the Developmental Disability Unit at Community Healthlink, UMass./Memorial Health Care in Worcester, MA; a Fee-for-Service Psychologist at Advanced Geriatric Services at Woburn, MA; a Behavior Psychology Consultant for the Ayer School System and the Athol-Royalston School System; and a Psychologist for Group and Individual Therapy, focusing on Behavior Psychology, Neurobehavioral Rehabilitation and Developmental Disabilities. Exhibit S-183 (resume of Dr. Tashjian). He testified that he has done a significant amount of research and has a significant amount of experience in the behavioral area, having performed approximately 60 to 70 functional behavioral assessments each year since 1990, and approximately 5 or 6 of these yearly assessments were done for children who have a disability similar to Student’s and who are approximately the same age as Student. He also noted that he has done approximately 2 or 3 educational assessments for Students who have a learning disability but who typically are younger than Student, and he has experience providing curriculum consultation to schools regarding students with a learning disability.
Dr. Tashjian’s neurobehavioral assessment of Student included the following two components: (i) a functional behavioral assessment, leading to a behavioral assessment plan; and (ii) an educational assessment, leading to recommendations regarding appropriate educational materials. Dr. Tashjian testified that he spent six hours during two visits at the Caldwell School, during which he observed Student and spoke with staff. His evaluation is dated 12-5-01. Exhibits S-190; P-1, Book 2.
In his written report, Dr. Tashjian indicated that he reviewed a number of previous assessments, including a psychological assessment by Jason Newton which “discloses clear evidence for a language disorder in subscale scores on the WISC-III”. Dr. Tashjian also noted that the pattern of scores and follow-up testing disclose a “specific verbal processing (understanding) problem”. He further explained that this is supported by a speech-language evaluation by Katie Walsh. Exhibits S-190; P-1, Book 2.
Dr. Tashjian testified that he agreed with all previous assessments, and he specifically noted his agreement with the first numbered recommendation (on page 8) of Jason Newton’s psychological evaluation where Mr. Newton describes Student’s “significant weaknesses in phonological processing which effects reading decoding and encoding” and then endorses the instructional approaches recommended in previous educational and neuropsychological reports. Exhibit P-23, Book 1 (Newton’s psychological evaluation).
Dr. Tashjian’s report concludes that Student’s behavior and academic difficulties derive from a combination of auditory/verbal processing difficulties and inadvertent reinforcement by others of interfering behaviors primarily by extraneous spoken cues and physical consequences of that behavior. The report noted that Student’s “auditory/verbal processing problems interfere in two ways:
1. Extraneous verbal information causes disorganization and arousal.
2. Inability to process the content of speech results in speech serving only as attention and reinforcement for preceding behaviors.”
Dr. Tashjian testified that in order to address Student’s learning disability needs (in particular, encoding and decoding), Student needs behavior cues, reinforcement of concentration, multisensory teaching approach, feedback and support to stay on task. Dr. Tashjian explained that although Student has a learning disability, his primary limitation is behavioral. Therefore, Dr. Tashjian emphasized that he would not recommend a rule-based reading program (which Student would likely find to be boring and may have difficulty attending) because Student needs a functional approach, not more cognitive processing. Dr. Tashjian noted that Student’s learning needs will be met through the recommended interventions which are designed to ensure that Student attends to what is being taught. Dr. Tashjian explained that when these interventions are in place, Student learns at grade level.
Dr. Tashjian testified that Student has difficulty listening to and understanding words and strings of words, so that words do not always cue him appropriately to tell him to do something. Dr. Tashjian explained that when Student is having difficulty processing language and there is a lot of auditory/verbal information, this produces confusion and arousal, resulting in Student becoming more active, fidgety and sometimes acting out as his way of blocking out some of the sensory input. Dr. Tashjian noted that in this context, when Student is not listening or acting up, adults tend to talk more, but this results in providing additional auditory input that typically leads to Student’s behavior becoming worse. Similarly, Dr. Tashjian explained that restraint serves functionally to reward Student for his behavior since restraint allows Student to collect himself, and Student may therefore exhibit behavior in order to be restrained.
Dr. Tashjian recommended in his report and through his testimony that Student’s behavior and academic difficulties be addressed through “simple contingency management approaches” using a delay procedure to structure cues and with other multisensory input – for example, a visual or tactile cue by the teacher for Student to attend, rather than relying only on talking. He explained that Student will need to practice appropriate responses that serve to compensate for his auditory/verbal processing difficulties and consequent disorganization – perhaps doing something physical such as adjusting his posture or getting a drink of water.
Dr. Tashjian testified that in order to implement his recommendations, staff need to have a behavior intervention plan (or functional behavior plan) which explains in detail how they are to work with Student regarding his behavioral issues; the plan should be drafted or reviewed by someone with appropriate behavioral expertise (i.e., a behavioral consultant); several times per week for the first few weeks, the behavioral consultant should review the behavior plan and how it is working so that modifications can be made in order to ensure that it functions appropriately; and after several weeks, the behavior consultant may be able to “fade out”, with staff at the program taking responsibility for continuing to monitor (including weekly functional analysis) and making adjustments as necessary to the behavior plan. He noted that the Caldwell School staff are capable of implementing, and eventually (after several weeks of involvement by the behavior consultant) monitoring and adjusting such a plan for Student. Dr. Tashjian further testified that the behavior plan recently provided to Mother (Exhibit P-47, Book 2) reflects what staff at the Caldwell School have been doing and is not consistent with his recommendations.
Dr. Tashjian testified that an appropriate behavior plan should be able to address immediately Student’s behavior difficulties. Nevertheless, he explained that Student has had a “lot of practice” with inappropriate behaviors, and Dr. Tashjian strongly recommended that Student stay in his current placement for the remainder of this academic year. Dr. Tashjian opined that it will take the remainder of this school year for Student to practice appropriate behavior and generalize what he has learned to other settings (for example, outside of school). Dr. Tashjian stated that for Student to move to another placement this year would present difficulties with respect to making the necessary progress regarding his behaviors. Dr. Tashjian further noted that if Student is able to make effective progress regarding his behavior this year, Student may be able to transition into a less restrictive placement for the next academic year.
Dr. Tashjian testified that while at the Caldwell School, he observed the learning disability instructional assistant and found that her interactions with Student were inappropriate, resulting in behavior problems from Student. He opined that it would be counterproductive for Student to have 1:1 staff assigned to him in the classroom, regardless of who is providing the assistance.
Dr. Tashjian testified that he has reviewed the draft sensory diet proposed for Student, and found that what is described under “General Principles” to be appropriate for Student and also reflects what is currently being provided Student at the Caldwell School. He further explained that with respect to the category described as “hands on”, he suggested describing what is to be done in greater detail and ensuring that Student is producing the activities himself. Exhibit S-142 (Draft Sensory Diet).
Dr. Tashjian testified that he does not believe that there are any particular safety risks to Student at the Caldwell School, and noted that there are sufficient staff at Caldwell to provide Student with 1:1 assistance when needed for safety reasons.
· Gretchen Timmel testified that she has a Masters Degree in Education and is a licensed educational psychologist and certified school psychologist. She explained that she has been employed at the Learning Disorders Unit at Mass. General Hospital for the past fifteen years, where she has done neuropsychological and other testing. She noted that she has performed approximately 3,000 evaluations of children (predominantly with learning disabilities) during these fifteen years. She explained that she also works as the education liaison for the Psychology Assessment Center at Mass. General Hospital, where she performs observations of children with an educational program. Ms. Timmel stated that she has not visited or spoken with staff at the Caldwell School.
Ms. Timmel testified that she first evaluated Student in October 1999. She explained that Student at that time appeared to present three significant issues: (1) behavior possibly driven, at least in part, by bio-medical issues and therefore medication may be needed to address behavior issues, (2) Student did not process language accurately and therefore needed a speech-language evaluation to assess auditory processing, and (3) if there turned out to be an auditory processing deficit, Student would need further educational assessment. Exhibit S-100 (Report of Psychometric Testing by Ms. Timmel).
Ms. Timmel wrote a letter “To Whom It May Concern” dated November 10, 2000, explaining that since her initial evaluation of Student, he has received medication and is able to focus and apply himself more consistently. The letter further noted that additional testing for the presence of a specific learning disability will be conducted, but in the meantime, she recommended that Student’s service providers utilize a rule based reading program such as the Wilson or Orton Gillingham programs. Exhibit P-42, Book 1.
Ms. Timmel testified that she saw Student in November and December 2000 when she performed her second evaluation of Student. She explained that his behavior had improved significantly since the first visit. Her evaluation report and testimony indicate that Ms. Timmel’s testing of Student indicates that as items increased in length and complexity, Student had difficulties with linguistic comprehension; also Student has a relative weakness with the auditory perception abilities that are associated with successful reading skills. Ms. Timmel explained that her testing indicated that Student is in at least the average range of intelligence and that he has difficulties decoding. Ms. Timmel also testified that Student has characteristics of dyslexia – for example, he does not have the ability to automatically decode nonsense words. Exhibit S-48 (Report of Psychometric Testing, Addendum, by Ms. Timmel).
Ms. Timmel testified that Student would best be served in a language-based classroom with a predictable schedule and behavior conduct requirements. She explained that Student would benefit from language services that are consistently and systematically introduced throughout Student’s academic schedule. Her evaluation report and testimony further emphasized the recommendation for a rule-based reading program (which would build reading skills in a sequential fashion) as well as speech-language services to address Student’s auditory profile. Exhibit S-48.
Ms. Timmel testified that Student’s learning disabilities impact him both academically and socially. She explained that there is a direct correlation between his auditory processing deficits (making it difficult to understand language) and his behavioral problems, and that both behavior and academic difficulties need to be addressed simultaneously – that is, without a behavioral component to Student’s program, the educational services will not work well; and without appropriate educational services, his behavior will be negatively impacted. Ms. Timmel further explained that it is important to develop strategies to address Student’s difficulties being attentive in school (as Dr. Tashjian has done through his report and testimony), but she made it clear that in her opinion, focusing on these behavior difficulties alone will not address directly Student’s learning disability deficiencies which relate to Student’s limit capacity for processing phonetics and language. She concluded that Student’s educational program needs to include learning disability strategies which will expand his auditory capacities and help him learn, which in turn will help address his behavioral issues.
Ms. Timmel testified that Student’s most recent IEP indicates that assistive technology has been checked off. She explained that the assistive technology to be provided Student should be described within the IEP under methodology.
· Jason Newton testified that he is currently employed by Wachusett within its office of
Quality, Accountability and Compliance. He added that during the previous school year, he was employed by Wachusett as a school psychologist, and has been a school psychologist for twenty years. He is a certified school psychologist and a licensed educational psychologist.
Mr. Newton evaluated Student twice – first, Mr. Newton did an educational assessment on January 4, 2001 (Exhibit S-45) and second, he did a psychological assessment on March 28 and 29, 2001 (Exhibit P-23, Book 1). Mr. Newton’s assessment reports and testimony explain that Student has a complex pattern of neuropsychological, behavioral, sensory, medical, communication and learning problems which have previously significantly limited his educational progress. Exhibit P-23, Book 1 (page 7 of report).
Mr. Newton further explained that Student’s intellectual and cognitive abilities are in the average range, but his academic profile indicates a weakness on the Word Attack and Dictation subtests, both of which require phonological processing abilities (i.e., encoding and decoding) which have been identified in previous neuropsychological testing as a weakness for him. Exhibit P-23, Book 1 (page 7 of report).
Mr. Newton’s impressions and recommendations for Student are summarized by Mr. Newton as follows:
[Student] has the capacity for essentially average cognitive and academic performance. Their [sic] continues to be a significant weakness in phonological processing which effects reading decoding and encoding words when writing. Given a significant discrepancy in his performance on [sic] between his average cognitive levels and below average levels on phonological tasks, [Student] may be considered eligible for special education services due to a learning disability impacting upon reading and written language. The instructional approaches which have been recommended with previous Educational and Neuropsychological reports appear appropriate to remediate [Student’s] phonological processing deficits.
Exhibit P-23, Book 1 (page 8 of report). Mr. Newton noted in his earlier report that the previous neuropsychological report recommended controlled, rule-based, direct instruction. Exhibit S-45 (page 5 of report).
Mr. Newton concluded that Student has a learning disability and that “materials designed for students with learning disabilities may contribute to increasing [his] rate of learning and completeness of skill development.” Exhibit S-45 (page 5 of report).
Mr. Newton also testified, however, that Student does not present with dyslexia because of his average reading and comprehension; rather Student has a more narrow impairment in the area of phonological skills. He also explained that he would not recommend for Student a complete rule-based reading program because Student does not need this and because it will be important for Student’s motivation that he have access to more age-appropriate materials.
Mr. Newton testified that he would recommend rule-based instruction to remediate Student’s particular deficits in phonological processing, while using other grade-appropriate reading materials. He further noted that these educational services could be provided in a substantially separate program. He suggested an educational consultant to identify the appropriate educational tools to address Student’s phonological deficits, to assist the program staff with implementation and fine tuning these educational tools, and to make any additional recommendations as to adjustments in the educational materials used with Student. Mr. Newton also noted Student’s complex and multiple needs, and Student’s continuing need for behavioral support.
· Phyllis Samara testified that she has been working as an occupational therapist for the past thirty years, she is a registered occupational therapist and she is licensed by Massachusetts as an occupational therapist. She noted that since 1978, she has been certified as a sensory integration therapist and for the past fifteen years has concentrated on children with sensory integration needs. She added that she currently works as an occupational therapist for the Barrett Family Wellness Center.
Ms. Samara testified that she first saw Student for occupational therapy (OT) near the end of September 2001, and then initially worked with him once per week and then twice per week, for a total of fifteen visits. She explained that in September, Student had strong need for sensory integration, including deep pressure and activity, which Student found calming. She noted that at that time, Student had a short attention span, exaggerated movements and risky behavior. She stated, however, that by the end of October 2001, Student’s attention span was longer and he was able to follow instructions with less deviation, although he continued to have difficulty with motor planning and with smaller objects. She concluded that Student made very good progress while working with her with sensory integration, and that Student is not now “extremely needy” regarding sensory integration.
Ms. Samara testified that although she is no longer providing direct OT services to Student, she has been consulting to the occupational therapist at the Caldwell School who is currently working with Student. She explained that the consultation is for the purpose of helping the Caldwell occupational therapist (who is relatively inexperienced with sensory integration) understand Student’s needs and how his needs can be met through a sensory diet. Ms. Samara explained that she recommended that she visit Caldwell School and observe Student while he receives his occupational therapy/sensory integration so that she could provide more useful consultation regarding sensory integration techniques to be used with Student, as well as sensory integration equipment that would be helpful to Student. She also opined that Student would benefit from additional outside sensory integration services (which could be more extensive that what is available at Caldwell) until Student’s behavior improves.
Ms. Samara testified that she reviewed her report (dated 10/23/01) which recommended sensory integration therapy and included a list of recommended sensory integration equipment to be purchased by Caldwell. She acknowledged that Caldwell has obtained some of the recommended equipment and other equipment has been ordered but not received. Exhibit S-184 (Report of Samara).
· Glenn Williams testified that he has been employed by Wachusett as the Supervisor of Special Education since July 2000. He explained that he has been working in special education since 1979, including fourteen years as a school psychologist, two years as a special education director and approximately three years consulting and teaching at Wheelock College’s graduate program. He further testified that he is licensed and certified as a school psychologist, certified as a special education administrator and has a doctorate degree in special education administration.
Dr. Williams testified that soon after he began work at Wachusett in July 2000 he was asked to take responsibility for managing Student’s case. He explained that during the last school year (2000-2001), Student attended a program called Project Grow where Student made good progress and was capable of continuing to make good progress, but in Dr. Williams’ opinion, the role of Student’s Mother undermined the program and made it impossible for Student to continue to make progress.
Dr. Williams explained that as part of a Team meeting in January 2001, Wachusett agreed to send referral packets to private schools, including any schools suggested by Mother. Dr. Williams explained that referral packets were sent out, but subsequently Mother changed her mind and opposed sending her son to a private placement. He explained that at that time Mother requested consideration of placement in one of the two district-wide programs which are integrated programs with specialized services and expertise – either the Mayo School which specializes in serving children with learning disabilities or the Davis Hill School which specializes in serving children with behavior/emotional issues. Dr. Williams testified that the Team believed that it would be necessary to include additional, specialized assistance for Student were he to attend either program and to that end, Mother suggested that the CASP Program might be used to provide that assistance since the CASP Program specializes in providing sufficient support for special education children to participate in mainstream education. Dr. Williams explained that he then had discussions with Nora Rushford from CASP, seeking to obtain the necessary support from that organization; he invited Ms. Rushford to a meeting with Mother.
Dr. Williams testified that, with Ms. Rushford’s input, it became clear to him that for Student to attend successfully either the Mayo School or the Davis Hill School, CASP would need to recruit an aide who would work with Student 1:1 and who would be capable of working with and managing Student’s behavioral issues. Dr. Williams explained that even with this aide, Ms. Rushford had concerns regarding the viability of placing Student into a mainstream environment unless certain additional conditions were agreed to (including Mother’s signing a contract regarding her parental role); Ms. Rushford believed that the success of the program was “inextricably linked” to the development of a positive relationship between Mother and the school. Exhibit S-14 (summary of meeting indicating Ms. Rushford’s position). Dr. Williams explained that it was agreed (with Mother) that CASP would seek to recruit a support person so that Student would be able to attend one of the district-wide programs with support from CASP.
Dr. Williams testified that during the summer of 2001, Student attended a summer program pursuant to his IEP in order to prevent social regression, but that by the end of July 2001, Dr. Williams had been informed by the program that due to behavioral issues, it was no longer appropriate for Student to continue to attend this program. Exhibit S-9 (letter from summer program explaining events leading to the termination of the placement).
Dr. Williams testified that Ms. Rushford kept him informed regarding the recruitment process; by the end of July 2001, Ms. Rushford informed him that she had not been able to recruit the requisite person. He noted that according to previous communications with Mother, the failure to find a CASP person by August 1, 2001 would then lead Wachusett to shift its search to seek a private placement for Student. Exhibit S-11 (letter of July 30, 2001 from Dr. Williams to Mother, explaining that CASP had not been able to find a 1:1 aide and that as agreed, if a CASP aide was not found by August 1, 2001, a private placement would be arranged).
Dr. Williams testified that at a later time, which was close to the beginning of the school year (and after the August 1, 2001 deadline for finding a CASP person), Ms. Rushford called him to say that she possibly had identified an aide to work with Student although the aide was significantly more qualified than had been originally intended when the search began for this person and therefore would be more expensive. Dr. Williams testified that he then spoke with Mr. Campbell and asked that Mr. Campbell speak with the proposed aide, but that the proposed aide did not return Mr. Campbell’s phone call, and the aide was not otherwise pursued by Wachusett.
Dr. Williams testified that by letter of August 6, 2001 from the Walker School, the School informed Dr. Williams that although it considered the School appropriate to meet Student’s needs, the School would not consider Student for placement because of Mother believed that the School would not be in Student’s best interests. Exhibit S-10.
Dr. Williams testified that at the beginning of the 2001-2002 school year, no educational program had been identified that was acceptable to Wachusett and Mother. He explained that although Student’s stay put (i.e., last agreed upon) placement would have been at Project Grow, Mother refused to send Student there, and Wachusett and Mother then agreed to an interim home education program. Efforts were then made by Wachusett to provide educational services in Student’s home and to arrange for related services (speech-language and occupational therapy) outside of the home. Exhibits S-1A through S-5.
Dr. Williams testified that at the beginning of the school year, he was aware of the FLLAC collaborative program and its recently established elementary school program. Dr. Williams explained that he contacted the School’s director (Dr. Murphy) who thought it could meet Student’s needs, but Mother was not willing to consider FLLAC; therefore it was not pursued. Dr. Williams explained that Mother’s position regarding FLLAC changed in late October 2001 when during a Team meeting Mother indicated that she would be willing to try FLLAC on an interim basis (no longer than ten weeks) provided that Sharlene O’Connor (Student’s home tutor at the time) would be engaged to work with Student at FLLAC. Dr. Williams explained that his understanding of Ms. O’Connor’s role was to assist with transitioning Student into FLLAC, providing assistance to Student as needed and consultation to FLLAC staff. An IEP was prepared, which included a description of the role of Ms. O’Connor. Exhibit S-173 (page 12 of 12).
Dr. Williams testified that after Mother rejected this IEP, another Team meeting was held on November 16, 2001, which was attended by Ms. O’Connor and also attended (through telephone connection) by Dr. Waxmonski (who is a psychiatrist regularly seeing Student). Dr. Williams explained that at the meeting it was agreed that Ms. O’Connor would participate in the FLLAC program although she would not be there all of the time that Student would be there. Dr. Williams added that Ms. O’Connor agreed she would eventually transition out of the program. An IEP was prepared, including a description of Ms. O’Connor’s role, for the time period October 25, 2001 to January 30, 2002 (consistent with the previous description of her role). Exhibits S-156, P-43 (book 2). Mother partially rejected this IEP, but she agreed to the services reflected within it as well as placement at the FLLAC program. Exhibit P-43 (book 2)
Dr. Williams testified that in his opinion this most recent IEP (Exhibits S-156, P-43, Book 2) and placement at the FLLAC program are appropriate. He explained that Student is having success and enjoying himself there. He opined that it would be beneficial for Student to remain in the program this school year and that if things progress in a positive way, Student would increase his chances of success in another program.
Dr. Williams testified that in general he agreed with the Neurobehavioral Assessment of Dr. Tashjian on December 5, 2001 (Exhibits S-190, P-1, Book 2) and there are no parts of the report with which Dr. Williams disagreed. Similarly, he stated that he generally agreed with the psychological evaluation on March 28 and 29, 2001 (Exhibit P-23, Book 1) and the educational evaluation on January 4, 2001 (Exhibit S-45), both performed by Jason Newton and Dr. Williams did not recall any particular disagreements with them. When asked more specifically about a statement within the psychological assessment indicating that Student has significant weaknesses in phonological processing and has a learning disability, Dr. Williams stated that he did not have sufficient knowledge to agree or disagree with the statement about phonological processing and that it was debatable whether Student had a learning disability since Student did not appear to have a “specific learning disability” as that term is defined in federal regulations regarding eligibility for special education. However, Dr. Williams testified that in the event that Student has significant weakness in phonological processing which effects reading and decoding words (as concluded by Mr. Newton in his evaluation), then Student would benefit from direct instruction in that area, including a rule-based instructional program. He further explained that this instruction could be provided through a packaged approach (such as the Wilson Reading Program) or through an individually designed educational program that would focus on phonemic awareness and decoding skills.
Dr. Williams testified that with respect to the most recently-proposed IEP, it would be appropriate to list the next three-year re-evaluation as occurring March 2004, and he thought it reasonable to begin consideration in March (rather than April) 2002 regarding a summer program. He also stated that he believed that the IEP’s description of Dr. Waxmonski’s views of Student were accurate, and reflected Dr. Waxmonski’s statements in his participation in the November 2001 Team meeting, but that this language within the IEP was not essential to the IEP since there was sufficient information describing Student within other parts of the IEP.
Dr. Williams testified that Student also has auditory processing issues and sensory integration issues, although he concluded that the most central issue in Student’s successful education would be having a positive, collaborative relationship between school and home.
· Philip Campbell testified that he has been Wachusett’s Director of Student/Information Services for the past three years and, in addition, for the past two years has been appointed by the School Committee as the Wachusett Interim Administrator of Special Education.
Mr. Campbell testified that during the summer of 2001, he had discussions with Dr. Williams regarding a CASP person to support Student’s enrollment in one of the two district wide programs (Mayo School and Davis Hill School). He explained that Ms. Rushford (of CASP) concluded that in order for Student to be successful in one of these programs (with CASP support), there would need to be a 1:1 staff person who would be more than an aide but less than a teacher, whose role would be not to address Student’s learning disabilities but rather his behaviors (that is, anything disruptive to his learning), and if Student became disruptive, the 1:1 staff person would intervene and deal with the disruption and if necessary, remove Student from class. Mr. Campbell further explained that Ms. Rushford concluded that the 1:1 staff person should be Mother’s only contact with the school, and that Mother should also give up any rights to “stay put” because if the 1:1 aide became sick or unavailable, the program would no longer be appropriate for Student.
Mr. Campbell testified that in late August 2001, Dr. Williams told him that Ms. Rushford had called to say that she had identified someone who might work as Student’s 1:1 staff person, but Mr. Campbell was doubtful that there was enough time prior to the beginning of the school year to make this work. He explained that at the urging of Dr. Williams, he called the proposed 1:1 staff person to seek to discuss the possibility of his working with Student. Mr. Campbell noted that he left a message for this person, but the call was not returned.
· Nora Rushford testified that she is employed as the Associate Director for the Community and School Programs (hereafter, CASP) of the Walker Home and School in Needham, MA. She noted that she is a licensed clinical social worker. She explained that her knowledge of Student is based on a one hour classroom observation of him, and discussions with Mother, Dr. Williams, Dr. Waxmonski (Student’s psychiatrist), and Ms. O’Connor (Student’s home tutor and later his learning disabilities instructor at the Caldwell School).
Ms. Rushford testified that CASP has contracts with schools to help them serve their emotionally and behaviorally disabled students. She explained that she was contacted by Wachusett for the purpose of exploring the possibility of placing Student, with supportive services, into a mainstream program operated by Wachusett. She further explained that her assumption was that after identifying an appropriate placement for Student, she would seek to recruit a person who could provide the requisite supportive services, and Wachusett would then enter into an agreement with CASP to provide those services. She noted that she observed Student for approximately one hour to learn more about him, and that for purposes of a placement for Student, she considered the program where Student was placed at that time (Project Grow) and two district-wide programs – one serving children with behavior disabilities (the Davis Hill School) and the other serving children with learning disabilities (the Mayo School). She further explained that her first choice for Student would have been the Davis Hill School except that the teacher who would have been assigned to Student was leaving, thereby creating some uncertainty; and therefore she believed the better placement for Student would be at the Mayo School where Student would have likely caused some disruption to the classroom during a transition period but she expected that it would be possible to work through these initial difficulties. She noted her opinion that with the right supports, the Mayo School would have been an appropriate placement for Student.
Ms. Rushford testified that during the summer of 2001, she placed advertisements for the purpose of recruiting the requisite support person. Her understanding was that the person needed to be identified by August 1, 2001 or in the event no person was found by that date, Wachusett would explore an alternative placement in a substantially separate program. She testified that she was not able to find an appropriate person until late in August 2001 when she identified someone who was more experienced (eight to ten years of experience) and therefore more expensive than originally anticipated. She stated that she then contacted Wachusett with the information regarding the identified support person. She stated that she was informed that the school district had concerns about moving forward with the CASP model in light of Student’s current presentation, and CASP and Wachusett did not enter into an agreement to provide services to Student. She explained that were CASP to be engaged by Wachsuett to provide services to Student in the future, she would need to recruit again for the needed support person; and once an appropriate person was identified and ready to start, it would take approximately one week to begin Student into the educational placement.
Ms. Rushford testified that on the basis of her knowledge of Student, she concluded that in order for Student to be served successfully within the Mayo School, the support person, who would provide 1:1 services to Student, would have to have an ability to do comprehensive case management, would have clinical oversight of Student, and would serve as the liaison between Mother and the School. She noted that at least for the first six to eight weeks, all communication between Mother and School should go through this support person, thereby allowing there to be some distance between Mother and the School and helping Mother to remove herself from the role of case managing her son’s education.
Ms. Rushford testified that Student’s predominant need is to have a behavior program that works well for Student. At the same time, she emphasized that for there to be appropriate services for Student, his program must not only contain him physically and emotionally, but must also meet his educational needs.
Ms. Rushford testified as to the importance of the relationship between Mother and the educational staff. She explained that if Student’s home and school are in conflict, Student will likely be defiant and oppositional; there needs to be a comfortable relationship between home and school in order for Student to feel safe and contained. She explained that in order to address potential disharmony between home and school, she recommends that there be assigned a clinical case manager who would be the liaison between home and school, serving to facilitate treatment planning and communication. She noted that this person must have good case management skills, must understand educational and clinical language and must be trusted by both Mother and the school district.
Ms. Rushford also recommended a therapeutic assessment for the purpose of determining whether and what kind of family therapy might be provided to Mother and Student (as well as others within the family structure) to provide support as well as a safe forum for discussion of concerns and disagreements. Ms. Rushford anticipated that family therapy might help those involved understand that it may be appropriate for home and school to “agree to disagree”, and then to move forward with Student’s education. She recommended that Dr. Waxmonski (Student’s psychiatrist) be included in any therapeutic assessment, and noted that any therapy would have to be voluntary in nature.
· George Haile testified that he is employed as a supervisor at the Mass. Department of Education, serving as a liaison to school districts in Central Massachusetts. He stated that he has masters degrees in education administration and psychology. He testified that on August 28, 2001, after speaking with Mother, he talked to Philip Campbell who said that the school district had discussed finding a CASP person to support placement of Student, but they were not able to find a CASP person. Mr. Haile further testified that on August 29, 2001, he spoke with Nora Rushford who told him that she had identified a CASP support person but that the school district told her that the person would be too expensive.
· A Speech-Language Evaluation was performed at the Speech-Language Pathology Department of Mass. General Hospital by Katie Walsh, MS CF-SLP, on February 28, 2001. Ms. Walsh concluded that Student presents with “significant deficits in auditory processing that adversely affect his behavior.” She further explained that although Student demonstrates language skills for functional comprehension and thinking, “he is unable to fully and accurately process auditory information in order to provide the correct responses.” Exhibit P-39, Book 1.
Ms. Walsh’s report stated that many of Student’s behavior issues may directly be related to his difficulty processing auditory and sensory information, but she further explained that not all of his behavioral issues can be attributed to these sensory processing difficulties. She concluded in her report that Student’s performance “is suggestive more of a behavioral response to information rather then reflective of language or processing skills”. She recommended that in order to address Student’s language needs, his placement should include a small classroom (no more than 8 to 10 students) in which Student is challenged academically according to his cognitive-linguistic capacities, and he should be placed either in a “language-based classroom with a strong behavior component, or a behavior-based program with language support”. She further recommended instruction be multisensory in nature, information should be presented with visual and kinesthetic supports, there should be frequent repetition of auditory information, and all instruction should be presented in a highly organized and structured way. She also noted that for improvement in reading and written language, Project Read and Framing Your Thoughts would be “an excellent program of instruction for [Student]”. Exhibit P-39, Book 1.
Ms. Walsh also reflected in her evaluation the tension between parents and school, and noted that “[a]ny lack of trust and respect can be expected to exacerbate existing behavioral problems.” She “highly recommended” family counseling “in order to refocus current issues on maintaining [Student’s] socio-emotional and academic development.” Exhibit P-39, Book 1.
· James Waxmonski, MD, is Student’s psychiatrist from the Department of Child and Adolescent Psychiatry of Mass. General Hospital. Dr. Waxmonski has written a number of letters, usually to the “Members of the Wachusett School Board”, addressing his understanding of Student’s needs. There are five letters from Dr. Waxmonski in evidence, dated 2/25/00, 4/19/00, 10/21/00, 5/14/01 and most recently 10/29/01. Exhibits S-17, S-57, S-66, S-77, S-174; P-27, Book 2. The letters typically stress the importance of addressing Student’s learning disability, and note that any learning disabilities likely impact upon Student’s behavior. (For example, the 10/21/00 letter states: “For [Student] to be successful at school, any potential learning disabilities must be identified and addressed, as academic frustrations can often lead to significant behavioral difficulties.” Exhibit S-57.) Dr. Waxmonski’s most recent letter stated that Student’s mood is “fairly stable”; that for Student to feel most comfortable at a new school, his family and school officials must jointly present to Student that the selected school is an appropriate placement where he can succeed; and that he is most likely to become oppositional when he feels that he is incapable of performing the academic tasks requested of him. He also explained that “[i]t will be very important that [Student] develop a trusting attachment to several members of the school staff.” Exhibits S-174; P-27, Book 2.
· Mandy Witkin wrote an account of the situation leading up to Student’s dismissal from Camp Habonim on July 20, 2001. The account describes verbal and physical aggression by Student, and physical restraint by staff. Exhibit S-9.
· Dave Yeiter, of the Shriver Clinical Services Corporation in Rindge, NH, wrote a letter to Mother dated February 19, 2001. The letter is a report based on observations of Student at school (on February 5, 2001) and home, discussions with Mother and persons working with Student within and outside of school, and review of various reports and a draft IEP. Mr. Yeiter concludes that Student “needs to be enrolled in a regular public school program with adequate (positive behavioral) supports and effective teaching protocols.” It is Mr. Yeiter’s opinion that Student’s behavior issues are seen by others as an obstacle to receiving a more relevant and typical education, but paradoxically, the absence of experiencing success in his educational program may in fact be contributing to some of his more “rebellious” behavior. In particular, Mr. Yeiter expressed the concern that Student’s special educational needs are not being effectively addressed, with the result that Student is not being successful in school, which in turn leads to frustration, anger and behavioral issues. Mr. Yeiter also expressed concerns that Student’s behavior was not being appropriately understood in terms of the underlying causes of the behavior, with the result that the behavior treatment that he was receiving at the time of his report, coupled with physical restraint, may actually be exacerbating Student’s behavior difficulties. Exhibit S-35.
· A report of Ronald Davis, MD, of the Department of Neurology, Children’s Hospital, Boston, MA, dated 12/01/00, describes Student as having a language-based learning disorder and a reactive mood disorder as a result of his frustration with those language-based learning disorders. Dr. Davis strongly recommends Student’s inclusion in a language-based educational program. Exhibit S-53.
· A “Specific Learning Disability Evaluation Statement” of Wachusett, dated 5/11/01 states that Student “has been determined to have a specific learning disability.” The statement is signed and specifically agreed to by the Team members, including the Wachusett Supervisor of Special Education (Williams), the Wachusett School Psychologist (Newton) and Mother. Exhibit P-21, Book 1.
· A letter from Marsha Raredon, OTR/L, of Occupational Therapy Associates, dated August 16, 2000, concludes that the results of an eight-week trial of occupational therapy with a sensory integration emphasis indicate a need for a continuation of these services for one hour per week. Exhibit S-64.
· The Program Description for the Caldwell School explains that the School is designed to meet the needs of elementary aged children with significant emotional, learning and behavioral challenges, and notes that these children pose a risk to themselves or to others and require intensive staff supervision/intervention. The Program Description states that the goal is to provide students with the skills and supports they need to successfully return to the regular education setting while maintaining and developing academic skills. Exhibit S-139.
· A Communication Book between Mother and School, from 11/14/01 through 12/4/01 describes how Student did at school on a daily basis, as well as concerns of Mother. Exhibit S-143.
FINDINGS AND CONCLUSIONS
Student is an individual with a disability, falling within the purview of the Individuals with Disabilities Education Act (IDEA)3 and the state special education statute.4 As such, he is entitled to a free, appropriate public education which is reasonably calculated to assure his maximum possible educational development in the least restrictive environment consistent with that goal.5
The principal issue presented is whether the programming and specialized services embodied in the proposed IEP, as currently implemented, are consistent with this legal standard.
A. Introduction .
Although there are many aspects to the present dispute, much of the disagreement may be summarized as follows. Wachusett has emphasized Student’s behavior difficulties, describing them as the predominant need to be addressed. Mother, on the other hand, has emphasized Student’s learning disability, taking the position that Student does not have significant behavior needs, that any behavior issues may be caused by the failure to address adequately Student’s educational needs, and therefore Student’s learning disabilities should be the principal focus of the special education services. Consistent with these views, Wachusett has sought to minimize the relevance of any need for specialized services to address learning weaknesses, while Mother has argued that Student’s behavior issues are not so significant as to preclude Student from returning to a mainstream school environment.
For the reasons that will be explained in detail below, I am in agreement with Wachusett that Student’s behavior needs presently are of significant concern, but I am also in agreement with Mother that Student has substantial learning disability needs. Virtually all of the professionals who expressed an opinion on this matter agreed (and I find their views persuasive) that it is essential that both Student’s behavior and his learning needs be understood clearly and met simultaneously and adequately in order for Student to make meaningful educational progress.
There can be little doubt that Student presents a complex and multi-dimensional profile. Much of what this Decision seeks to accomplish is to ensure that Student’s needs are addressed in a comprehensive and balanced manner, rather than focusing either too much or too little on any one particular aspect of this case.
In addition and of concern to this Hearing Officer, there have been serious disagreements between Mother and the service providers, the disagreements have occurred consistently over a significant period of time, and these disagreements have likely impacted negatively on Student’s well-being. For any solution to Mother’s special education disputes to be meaningful, long-lasting and helpful to Student, this aspect of the case must be considered.
B. Profile of Student .
Student is a nine-year-old boy living with his Mother in Jefferson, MA, and attending the 4 th grade at the Caldwell Alternative School which is part of the FLLAC Collaborative Program. His date of birth is 11/9/92.
Student has complicated and multiple needs. As explained most completely by the Wachusett School Psychologist (Newton), Student has a complex pattern of neuropsychological, behavioral, sensory, medical, communication and learning problems which have significantly limited his educational progress. Testimony of Newton; Exhibit P-23, Book 1 (page 7 of report). The speech-language evaluation of Student at Mass. General Hospital added that Student presents with a complex history of sensory dysfunction, auditory processing deficits and complicated behavioral issues. Exhibit P-39, Book 1 (page 2 of report). Similarly, Student’s psychiatrist (Waxmonski) has noted Student’s combination of behavioral, mood, learning disability and neurological symptoms, although he also noted, most recently, that Student’s mood is “fairly stable”. Exhibits S-27, S-174; P-27, Book 2.
Student’s intellectual and cognitive abilities are in the average range. Testimony of Timmel; Exhibit S-48 (Timmel’s report concluding that intellectual functioning is in high average range); P-23, Book 1 (Newton’s report concluding that Student has average cognitive performance).
C. Student’s Behavioral Needs .
The importance of addressing adequately Student’s behavioral needs is apparent both from his history of difficulties within school and summer programs and from the evaluations. For example, Student’s behaviors during his extended school year program (summer of 2001) led to withdrawal from the program. There was verbal and physical aggression by Student, and physical restraint by staff. Exhibit S-9.
Similarly, the testimony of school staff regarding Student during his first several weeks at the Caldwell School, indicated that Student’s behavior included physical aggression (including occasional incidents of biting, hitting, and pushing over furniture) and significant verbal aggression. This behavior, if uncorrected, would likely make it impossible for Student to move to a less restrictive, mainstream learning environment. Testimony of Brady; Exhibit S-143 (Communication Book between Mother and School from 11/14/01 through 12/4/01).
Mother argues that Student does not have significant behavior issues. I accept that her view of Student reflects the reality which Mother has encountered and observed on a daily basis, typically outside of school or other institutional settings. Yet, this perspective does not allow me to ignore the unrebutted evidence of Student’s serious behavior difficulties within other settings.
Even those witnesses who are perhaps most supportive of Mother’s efforts to move Student into a less restrictive environment and who fully appreciate the need to address his learning disabilities, testified as to the seriousness of Student’s behavioral issues and the necessity of addressing them. For example, Ms. Rushford testified that Student’s predominant need is to have a behavior program that works well for Student. And, Ms. Timmel testified that without a satisfactory behavioral component to Student’s program, the educational services will not work well.
Student’s behavioral issues are most recently and most comprehensively addressed through the evaluation, written report and testimony of the behavior psychologist (Tashjian) whom Wachusett engaged to perform a functional behavioral assessment of Student at his current placement in early December 2001. Dr. Tashjian has extensive and impressive credentials and experience in assessing special needs, behaviorally involved children. Testimony of Tashjian; Exhibit S-183 (resume).
In his testimony and written report, Dr. Tashjian makes clear his opinion that although Student has a learning disability, his primary limitation is behavioral. Dr. Tashjian was optimistic that an appropriate behavior plan should be able to address immediately Student’s behavior difficulties. Moreover, Student has more recently made significant progress regarding his behavior at the Caldwell School where over the past two or three weeks (prior to the first day of Hearing on December 14, 2001), Student’s behavior had generally been good (especially his behavior towards adults) although occasionally he was verbally aggressive and he continued to have difficulties with his relations with peers. Testimony of Brady, Tashjian.
However, as Dr. Tashjian emphasized, Student has had “a lot of practice” with inappropriate behaviors, thereby presenting a difficulty that must be worked with over time and in a variety of settings in order to be addressed adequately. Dr. Tashjian opined that it will take the remainder of this school year for Student to practice appropriate behavior and generalize what he has learned to other settings (for example, outside of the classroom). This is consistent with the testimony of the Caldwell School program coordinator who explained that in general children need to have at least three or four months of behavior that is free of physical aggression before they are able to return to a mainstream classroom. Testimony of Brady, Tashjian.
Dr. Tashjian was persuasive that Student’s behavior difficulties derive from a combination of auditory/verbal processing deficits and inadvertent reinforcement by others of interfering behaviors primarily by extraneous spoken cues and physical consequences of that behavior. Dr. Tashjian explained that Student’s behavior difficulties can be addressed through “simple contingency management approaches” using a delay procedure to structure cues, with other multisensory input, and feedback and support to stay on task.
Dr. Tashjian’s analysis of Student’s behavior makes it clear that Student should not be considered a “bad” person who might somehow be intentionally seeking to harm others or who wants to disrupt the classroom environment. Rather, Student should be understood as having particular deficits with respect to auditory/verbal processing, which naturally lead to behavioral difficulties. Most importantly, Student’s deficits (that lead to behavior problems) can be resolved through a strategy that includes (i) staff’s responding appropriately to Student, (ii) Student’s learning to self-monitor, and (iii) Student’s having sufficient practice with appropriate responses that serve to compensate for his auditory/verbal processing difficulties and consequent disorganization. Student’s behavior weaknesses can only be resolved over time, with a combination of informed responses from staff and significant practice by Student. Testimony of Tashjian.
In order to implement Dr. Tashjian’s recommendations, a behavior plan is needed to explain to staff in detail how they are to work with Student regarding his behavioral issues; the plan should be drafted or reviewed by someone with appropriate behavioral expertise (i.e., a behavioral consultant); and several times per week for the first few weeks of its implementation, the behavioral consultant should review the behavior plan and how it is working so that modifications can be made in order to ensure that it functions appropriately. Continuing, on-going monitoring and adjusting of the plan can be done by teachers or other staff at the Student’s placement. Testimony of Tashjian; Exhibit S-190; P-1, Book 2.
There was no dispute as to the importance of such a behavior plan. Following Dr. Tashjian’s testimony during the second day of Hearing, the parties informally agreed that Wachusett would immediately begin the process of developing and implementing a behavior plan consistent with Dr. Tashjian’s recommendations.
D. Importance of Addressing Both Behavioral Needs and Any Learning Disabilities .
The importance of addressing satisfactorily Student’s behavior needs should not be understood as minimizing in any way the need to understand and respond appropriately to Student’s learning disabilities.
The critical importance of addressing simultaneously Student’s various needs has been consistently noted and emphasized by professionals who have worked with, planned services for or evaluated Student. For example, Wachusett’s former school psychologist, in his educational assessment of Student, described the need for the Team to find a placement that could focus more intensively on the specialized instructional approaches needed to address Student’s learning disabilities and at the same time provide appropriate, intensive behavior support. Exhibit S-45 (pages 5 and 6 of report).
The Associate Director of the Walker School CASP program (Rushford) whom Wachusett enlisted to help provide services necessary for Student to be placed in an integrated program, testified unequivocally as to the necessity of providing a program that effectively addresses his behavioral needs, and at the same time provides sufficient support and services to meet Student’s educational needs. Testimony of Rushford.
Ms. Timmel, a licensed educational psychologist at the Learning Disorders Unit at Mass. General Hospital who performed two assessments of Student, testified that there is a direct correlation between Student’s auditory processing deficits (making it difficult to understand language) and his behavioral problems, and that both behavior and academic difficulties need to be addressed simultaneously – that is, without a behavioral component to Student’s program, the educational services will not work well; and without appropriate educational services, his behavior will be negatively impacted.
Similarly, Student’s psychiatrist (Waxmonski) in a series of five letters from 2/25/00 to 10/29/01 noted the interplay between Student’s behavior and learning disabilities, emphasizing the importance of addressing both simultaneously. Exhibits S-17, S-57, S-66, S-77, S-174; P-27, Book 2. For example, Dr. Waxmonski’s 10/21/00 letter states: “For [Student] to be successful at school, any potential learning disabilities must be identified and addressed, as academic frustrations can often lead to significant behavioral difficulties.” Exhibit S-57. In a letter seven months later, Dr. Waxmonski similarly cautioned: “it is critically important that his future academic placement have the capacity to address [Student’s] identified learning disabilities, as I believe that a portion of his behavioral difficulties stem from academic frustrations.” Exhibit S-17.
In his report, Mr. Yeiter adds his concern that Student’s special educational needs are not being effectively addressed, with the result that Student is not being successful in school, which in turn leads to frustration, anger and behavioral issues. Exhibit S-35.
Finally, I note a report of Ronald Davis, MD, of the Department of Neurology, Children’s Hospital, Boston, MA, dated 12/01/00, which describes Student as having a reactive mood disorder as a result of his frustration with his language-based learning disorders. Exhibit S-53.
There is no persuasive testimony or other evidence to the contrary.
I conclude that if Student’s behavior needs are not adequately addressed, his educational progress will suffer; and without adequately addressing his learning disability needs, there will more likely be behavior issues. Therefore, in order for Student to make meaningful educational progress, both his behavioral deficits and his learning disabilities need to be addressed adequately and simultaneously.
I now turn to a discussion of those learning disabilities and how they should be met.
E. Student’s Learning Disabilities .
Wachusett’s attorney has sought to minimize the seriousness of any language weaknesses. Yet, the evidence is overwhelming that Student has a “learning disability” as that concept is commonly used by education specialists for purposes of understanding and addressing a child’s special education needs.
One need look no further than Wachusett’s own proposed IEP to find, under the heading
“General Curriculum”, that Wachusett is proposing a methodology/delivery of instruction that includes remediation for a learning disability: “Multisensory approach; Language-based program; rule-based reading program; direct instruction.” Exhibits S-156; P-43, Book 2.
Even more to the point, Wachusett agreed to a “Specific Learning Disability Evaluation Statement”, dated 5/11/01. This Statement unequivocally takes the position that Student “has been determined to have a specific learning disability.” The Statement is signed and agreed to by the Team members, including the Wachusett Supervisor of Special Education (Williams), the Wachusett School Psychologist (Newton) and Mother. Exhibit P-21, Book 1.
Similarly, Wachusett’s former school psychologist (Newton) made the following principal recommendation in his psychological evaluation of Student:
Their [sic] continues to be a significant weakness in phonological processing which effects reading decoding and encoding words when writing. Given a significant discrepancy in his performance on [sic] between his average cognitive levels and below average levels on phonological tasks, [Student] may be considered eligible for special education services due to a learning disability impacting upon reading and written language.
Exhibit P-23, Book 1 (page 8 of report).
In addition, I note the following:
· A neurology report of Ronald Davis, MD, of the Department of Neurology, Children’s Hospital, Boston, MA (12/01/00) describes Student as having a language-based learning disorder. Exhibit S-53.
· Testimony of Ms. Timmel that Student has learning disabilities that impact him academically as well as socially.
Finally, Wachusett’s behavioral and educational consultant (Dr. Tashjian) testified generally that he agreed with the previous assessments of Student, and he testified in particular that he agreed with Mr. Newton’s conclusions regarding Student’s having a learning disability.
The evidence is consistent that Student has a learning disability. However, Student’s learning disability is not global in nature.
Instead, Student’s learning disabilities relate more specifically to a significant weakness in phonological processing which effects Student’s decoding and encoding skills. Testimony of Newton; Exhibit P-23, Book 1. In addition, Student’s significant deficits in auditory processing result in an inability to fully and accurately process auditory information and provide correct responses. Exhibit P-39, Book 1 (speech-language evaluation of Walsh). There is further support for these conclusions from Dr. Tashjian who noted that the pattern of scores and follow-up testing disclose a “specific verbal processing (understanding) problem” and from Ms. Timmel who noted Student’s difficulties with “linguistic comprehension” and his “relative weakness with auditory perception abilities that are associated with successful reading skills.” Exhibits S-48, S-190; P-1, Book 2.6
F. Services Necessary to Address Student’s Learning Disabilities .
In order to address Student’s learning disabilities, Mother seeks a rule-based reading program that is implemented within a language-based learning environment. The language-based services would ensure that appropriate language remediation is consistently and systematically introduced throughout Student’s academic schedule. The rule-based reading program would build reading skills in a sequential fashion – for example, through an Orton Gillingham or Wilson Reading Program. This position is supported by Ms. Timmel’s report and testimony. Although I do not seek to minimize Ms. Timmel’s experience and credentials relative to learning disabilities in general, I am not persuaded that Student needs or would necessarily benefit from this intensive level of remediation.
In comparison, Dr. Tashjian’s testified that in order to address Student’s learning disability deficits (in particular, encoding and decoding), Student only needs behavior cues, reinforcement of concentration, multisensory teaching approach, feedback and support to stay on task. Dr. Tashjian’s view appears to be that with these interventions in place, Student can learn at grade level. It follows that a rule-based reading program would be inappropriate because Student needs a functional approach, not more cognitive processing. Testimony of Tashjian.
Although I find Dr. Tashjian’s recommendations relevant to Student’s behavioral issues persuasive, the weight of the evidence simply does not support his limited approach for addressing Student’s learning disability needs, nor does Wachusett argue in favor of it. I also note that although Dr. Tashjian has some degree of expertise and experience regarding learning disability issues (typically with children who are younger than Student), the primary focus of his work is behavioral.
I do not subscribe to Ms. Timmel’s ultimate recommendations for Student. Nevertheless, her learning disabilities expertise in general and her understanding of Student’s learning deficits in particular provide an important starting point for understanding Student’s learning issues. After hearing Dr. Tashjian’s testimony and after reading his report, Ms. Timmel testified that she could not accept the adequacy of a purely behavioral approach to Student’s learning needs. I am persuaded by Ms. Timmel’s testimony that as useful as a behavior plan may be in order to help Student attend and understand in the classroom, this approach inherently cannot adequately address all of Student’s needs. This is because Student suffers from learning disability deficiencies which relate to his limited capacity for processing phonetics and language. As a result Student’s educational program needs to include learning disability strategies which will expand his auditory capacities. Testimony of Timmel.
Similarly, Wachusett’s former school psychologist (Newton) emphasized the importance of providing Student with specific learning disability strategies necessary to remediate Student’s phonemic weaknesses, apart from and in addition to a behavior plan. Testimony of Newton. See also Mr. Newton’s written evaluation: “materials designed for students with learning disabilities may contribute to increasing [his] rate of learning and completeness of skill development.” Exhibit S-45 (page 5 of report).
Also, the FLLAC program coordinator testified that Student would benefit from educational services specifically addressing his decoding deficiencies. Testimony of Brady. And, the FLLAC Executive Director testified that although he is not an expert on learning disabilities, he believes that Student has weaknesses with decoding and that it would be helpful to have access to someone with learning disabilities expertise who could help determine Student’s educational needs and how they can be met. Testimony of Murphy.
The Wachusett Supervisor of Special Education (Williams) agreed that in the event that Student has significant weakness in phonological processing which effects reading and decoding words, then Student would benefit from direct instruction in that area, including a rule-based instructional program. He further explained that this instruction could be provided through a packaged approach (such as the Wilson Reading Program) or through an individually designed educational program that would focus on phonemic awareness and decoding skills.
As explained above, near the end of part E Student’s Learning Disabilities of this Decision, Student’s learning disability is focused on particular weaknesses relative to phonological and auditory processing. Because of the specific (and somewhat focused) nature of these weaknesses, they can be addressed through strategies that target the particular deficiencies. Therefore, instead of a complete rule-based reading program , I find that Student should be provided rule-based instruction tailored to remediate his particular deficits in phonological processing, while using other grade-appropriate reading materials.
This instruction can be incorporated into an existing educational program through the assistance of an educational consultant. The educational consultant should identify the appropriate educational tools to address Student’s phonological deficits, assist the program staff with implementation and fine tuning these educational tools, and make any additional recommendations regarding adjustments in the educational materials used with Student. Testimony of Newton. Although not required, it may be helpful for the person selected as the educational consultant to be someone whom Mother believes has the requisite experience and expertise to help Caldwell School address satisfactorily Student’s learning disability deficits.7
The most recent IEP provides for a learning disability specialist to work with Student, providing academic support for up to 240 minutes each day as well as consultation for 150 minutes per week. Exhibits S-156; P-43, Book 2. These services have been provided by Sharlene O’Connor (Student’s former home tutor) working with Student individually (1:1 basis) during his academic instruction at Caldwell School, as well as providing consultation to others at the School.
There was no evidence presented to support the continuing need for direct services from a learning disability specialist. Rather, Dr. Tashjian was clear in his recommendation that it would be counterproductive for any staff person to be assigned to work with Student on an individual basis during his academic instruction. Dr. Tashjian also testified that his observations of Ms. O’Connor with Student indicated that some of her interactions with Student resulted in inappropriate behavior by Student. For these reasons, I find that it is not necessary for the IEP to include direct or consultation services from a learning disability specialist, other than those services (described above in this part of the Decision) from an educational consultant.
G. The Placement Within Which Services Should be Provided: Least Restrictive Setting .
Wachusett and Mother have a disagreement as to what placement is appropriate in order to meet Student’s special education deficits. The disagreement flows, in part, from their differing perspectives as to Student’s underlying difficulties – with Wachusett emphasizing Student’s behavioral needs and Mother emphasizing his learning disability needs.
It seems clear that with the addition of an appropriate behavior plan and the learning disability support and services described above, the Caldwell School is well-suited to meet Student’s needs. The School is designed to meet the needs of elementary aged children with significant emotional, learning and behavioral challenges, with the goal to provide students with the skills and supports they need to successfully return to the regular education setting while maintaining and developing academic skills. Testimony of Brady, Murphy; Exhibit S-139 (Program Description for the Caldwell School).
The program for Student at Caldwell includes small classes (Student’s classroom includes only four other children, and a teacher and aide), a structured, behaviorally-oriented approach, with a speech-language pathologist, occupational therapist and adjustment counselor. A draft sensory diet has been prepared and is being implemented in order to provide Student with sensory breaks when he is in danger of being overwhelmed. Instruction for Student includes a quiet, ordered environment; clear, simple directions; predictability and routine so he knows what is expected of him and what is next. With the addition of the behavioral and learning disability services which are mandated pursuant to this Decision, Student’s program at Caldwell meets the recommendations of Mr. Newton, Dr. Tashjian, and Ms. Walsh, all of whom have evaluated Student during calendar year 2001. Testimony of Brady, Tashjian; Exhibits S-45, S-142, S-190; P-23, Book 1; P-39, Book 1, P-1, Book 2.
However, Mother raises the question of whether Caldwell is the least restrictive environment within which Student’s needs can be met, arguing that these same services can be provided in a more integrated setting.
The federal special education statute (the IDEA) mandates that a free, appropriate education be available to all eligible special needs children. Within this general mandate, the IDEA provides a specific directive prescribing the environment within which children with special needs are to receive their education. The IDEA provides that each state must establish policies and procedures to assure that:
To the maximum extent appropriate, children with disabilities . . . are educated with children who are not disabled, and special classes, separate schooling, or other removal of children with disabilities from the regular educational environment occurs only when the nature or severity of the disability of the child is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily.8
Numerous courts have recognized that with this statutory provision, Congress created a strong preference in favor of mainstreaming.9
By creating a statutory preference for mainstreaming, Congress also created a tension between two provisions of the statute. School districts must both seek to mainstream special needs children and, at the same time, tailor each child’s educational placement and program to his or her special needs. Ultimately, the task is to balance competing requirements of the laws’ dual mandate for the individual student: the maximum possible educational development must be provided within the least restrictive environment consistent with this goal (of maximum possible educational development).10 The First Circuit Court of Appeals has also cautioned that the guarantee of least restrictive placement may not be used to cure an otherwise inappropriate placement.11
I do not perceive any difference in the positions of the parties in principle with respect to the restrictiveness of Student’s placement. Both Wachusett and Mother seek to have Student return to a mainstream classroom as soon as he is able to do so. However, Mother urges that this should occur immediately, while Wachusett takes the position that until Student has addressed more completely his behavior deficits, he should continue within the existing placement. Wachusett is hopeful that he may return to the mainstream for the next school year. Testimony of Williams.
I note at the outset that the time period for the IEP in question is 10/25/01 to 1/30/02. Exhibits S-156; P-43, Book 2. As a practical matter, it seems likely that the next IEP will address this issue more squarely. Nevertheless, resolution of the present dispute requires a consideration of Student’s placement at the Caldwell School and whether or not this is the least restrictive setting within which his special education needs can be met.
The critical importance of addressing adequately Student’s behavioral needs has been discussed in detail in part C Student’s Behavioral Needs of this Decision. Without both short- and long-term resolution of what at times has been aggressive physical and verbal behavior, it is unlikely that Student can succeed academically or move to a less restrictive learning environment. It is therefore essential that Student’s placement be able to implement a well-designed behavior plan with the result that Student’s behavior is safely contained and remedial services are provided to help Student learn more appropriate ways of responding.
Over the several weeks just prior to Ms. Brady’s testimony on December 14, 2001, Student’s behavior had improved significantly. With the introduction of an appropriate behavior plan, consistent with the recommendations of Dr. Tashjian, Student’s behavior is likely to continue to improve. Dr. Tashjian was persuasive that the Caldwell School staff are capable of implementing and monitoring/adjusting such a behavior plan. Testimony of Tashjian.
Mother correctly points out that Dr. Tashjian testified that this behavior plan could be implemented within a less restrictive setting. Also, additional services could be added (for example, through the CASP program if CASP were able to recruit an appropriate support person) to help address Student’s behavioral issues in one of the district-wide programs.
But, Dr. Tashjian strongly recommended against either approach. He pointed out that any change of placement during this academic year would represent a “loss” to Student in terms of working towards addressing Student’s special education needs, and perhaps most compelling, Dr. Tashjian opined that in order to have the best opportunity to learn new behavior patterns and be prepared for a mainstream classroom, Student needs to have the remainder of this school year in the Caldwell School to practice appropriate behavior within the classroom and then to learn how to generalize this behavior to settings outside of the classroom.
I appreciate and sympathize with Mother’s desire to move Student as quickly as possible into a less restrictive setting. In fact, the law requires Student to be moved to such an environment as soon as his special education needs can be met there. However, I find Dr. Tashjian’s recommendations persuasive and therefore conclude that to move Student now simply presents too high a risk that he will lose the opportunity he now has to move past the behavior difficulties which have so severely limited his educational progress.
Additionally, I note that Student’s psychiatrist (Waxmonski) emphasized in his most recent letter, dated 10/29/01, that “[i]t will be very important that [Student] develop a trusting attachment to several members of the school staff.” Exhibits S-174; P-27, Book 2. Student reportedly has developed good relations with staff, has positive participation in class, appears to want to be in class with the other children and seeks the approval of the teacher and his peers. Ms. Brady concluded that on the basis of her observations and information from other staff, Student has appropriately transitioned into the program. This followed a period of difficulty for Student – being out of school for several months and then, upon entering Caldwell, exhibiting aggressive physical and verbal behaviors for several weeks. Testimony of Brady. All of this supports the importance of continuity rather than change, at least for the time being.
For these reasons, I find that the Caldwell School presents the environment most likely to help Student succeed behaviorally and academically at this time, and therefore is the appropriate placement.12
H. Occupational Therapy .
There is agreement among the parties that Student requires occupational therapy with sensory integration (OT/SI). An eight-week trial of occupational therapy with a sensory integration emphasis indicated a need for a continuation of these services for one hour per week. Exhibit S-64. OT/SI services and consultation are reflected in the most recently-proposed IEP. Exhibits S-156; P-43, Book 2.
OT/SI services had been provided through a contract with Phyllis Samara, and are now being provided exclusively by the occupational therapist at the Caldwell School, with consultation from Ms. Samara. Ms. Samara testified as to Student’s continuing needs for these services and suggested that she is able to provide more sophisticated and complete OT/SI services through her facilities than at Caldwell. Ms. Samara recommended these more sophisticated and complete services based on Student’s continuing to have significant behavior difficulties.
As explained above, Student’s behavior has improved significantly, and with an appropriate behavior plan, his behavior is likely to improve further. Caldwell has recently purchased sensory integration equipment recommended by Ms. Samara for Student, and with Ms. Samara’s consultation, the OT/SI services at Caldwell are likely to improve. Under these circumstances, there is no persuasive evidence that Student’s needs regarding OT/SI cannot be met with his current occupational therapist at Caldwell.
In order to ensure that such services will most likely meet Student’s needs, Ms. Samara (or someone else with similar expertise) should continue to provide consultation to the less experienced occupational therapist at Caldwell. This consultation should include the opportunity for Ms. Samara (if she continues to be the consultant) to observe Student receiving OT/SI services at Caldwell so that Ms. Samara will then be able to provide additional guidance and suggestions regarding the OT/SI services for Student.
I. Other Aspects of the Disputed IEP .
In her partial acceptance of Student’s most recently proposed IEP, Mother objected to six parts of the IEP. These objections are specifically described above in HISTORY AND DISPUTED IEP of this Decision. Mother’s objections numbered 4 and 6, which relate to the amount of time of the learning disability specialist, have been addressed above in part F Services Necessary to Address Student’s Learning Disabilities of this Decision. I now turn to the remaining four issues in dispute.
Mother takes the position that the next scheduled three-year evaluation should be March 2004, not November 16, 2004 as marked on the IEP. In his testimony, the Wachusett Supervisor of Special Education (Williams) agreed that the three year evaluation should be March 2004. There was no additional evidence on this issue. Therefore, I find that the IEP should be amended to provide for the three year evaluation to occur in March 2004.
Mother takes the position that the 4 th paragraph of the “Student Strengths and Key Evaluation Results Summary Continued” of the IEP should not indicate that Student has an Oppositional Defiant Disorder since his mood disorder is not an issue at this time. The contested language in the IEP makes it clear that Student has been previously diagnosed with Oppositional Defiant Behavior. Thus, it appears that Mother’s objection is not so much with the accuracy of the statement as with its relevance. I will not order that the language be removed or changed. At the same time, however, the Team, at its next scheduled meeting, shall reconsider this language and remove it if the Team concludes that it is not needed. I note that Dr. Williams testified that the language may not be necessary in light of other parts of the IEP.
Mother takes the position that under “Other Educational Needs” on page IEP3, there should be written clarification as to what is to be provided regarding the checked-off “Assistive Tech Devices”. Mother’s point is well taken. The checked-off box implies that something is needed, without further explanation of what should be provided to meet this need. Therefore, I find that the IEP should describe what assistive tech devices are to be provided Student.
Mother takes the position that the IEP should provide that in March 2002 (rather than April 2002 as presently stated in the IEP) there will be determination of an extended year program for Student. Mother’s point is that consideration in April does not allow sufficient time to plan for a program for the summer months. In his testimony, Dr. Williams agreed that it would be reasonable for this process to occur in March, rather than April 2002. There was no other testimony on this issue. Therefore, I find that the IEP should be changed to indicate that consideration of Student’s extended year program will occur in March 2002.
J. Services That May Support the Parties’ Future Efforts to Resolve Their Differences .
As noted earlier in this Decision, of concern to this Hearing Officer is that there have been serious disagreements between Mother and the service providers, and the disagreements have occurred consistently over a significant period of time.
I discuss this aspect of the case not for the purpose of criticizing either party; I do not judge their past actions in any way. Rather, I observe (and seek to emphasize) this history because if the disagreements between home and school continue in the same manner as in the past, they will likely impact negatively on Student’s well-being, including his educational development.
Ms. Rushford and Dr. Waxmonski have been quite clear regarding this issue and its potential harm to Student. Ms. Rushford testified that if Student’s home and school are in conflict, Student will likely be defiant and oppositional; similarly, there needs to be a comfortable relationship between home and school in order for Student to feel safe and contained.
The MGH Speech-Language evaluation (by Walsh) noted the tension between parents and school, concluding that “[a]ny lack of trust and respect can be expected to exacerbate existing behavioral problems.” Exhibit P-39, Book 1.
Similarly, Dr. Waxmonski’s most recent letter stated that for Student to feel most comfortable at a new school, his family and school officials must jointly present to Student that the selected school is an appropriate placement where he can succeed. Exhibits S-174; P-27, Book 2.
By raising this matter, I do not intend to imply that disagreements should never occur so that the parties must somehow find a way to agree on each aspect of Student’s services. Rather, I assume that Mother and the service providers will in fact have disagreements in the future. When these disagreements occur, however, they need to be addressed in a manner that is respectful and professional and that does not impinge upon either the ability of the educational program to provide services to Student or the ability of Student to benefit from those services. In other words, Wachusett and Mother should negotiate strongly for what each believes to be right, but this need not (and should not) damage their relationship. If agreement cannot be reached, Mother and Wachusett then have the option to pursue more formal avenues of dispute resolution.13
Ms. Rushford testified that in order to address potential disharmony between home and school, there should be assigned a clinical case manager who would be the liaison between home and school, serving to facilitate treatment planning and communication. She noted that this person must have good case management skills, must understand educational and clinical language and must be trusted by both Mother and the school district.
I conclude that there should be careful consideration by Wachusett and Mother as to whether a liaison could be helpful and if so, what would be the responsibility of that person as well as who should carry out this role. This model can succeed only if there is mutual agreement (among the parties) regarding these details, including the identity of the liaison. Therefore I will order that the Team carefully consider this matter, determine whether agreement can be reached, and appoint a liaison only with agreement from the parties.
Ms. Rushford also recommended a therapeutic assessment for the purpose of determining whether and what kind of family therapy might be provided to Mother and Student (as well as others within the family structure) to provide support as well as a safe forum for discussion of concerns and disagreements. Ms. Rushford anticipated that family therapy might help those involved understand that it may be appropriate for home and school to “agree to disagree”, and then to move forward with Student’s education. She recommended that Dr. Waxmonski (Student’s psychiatrist) be included in any therapeutic assessment, and noted that any therapy would have to be voluntary in nature.
I note also that Ms. Walsh (in her speech-language evaluation) “highly recommended” family counseling “in order to refocus current issues on maintaining [Student’s] socio-emotional and academic development.” Exhibit P-39, Book 1. There was no testimony to the contrary.
I therefore find that Wachusett should provide or arrange for a therapeutic assessment for the purpose of determining whether and what kind of family therapy should be provided to Mother and Student (as well as others within the family structure) consistent with 34 CFR 300.24 (federal regulatory definition of “related services”). Provided, however, this assessment shall occur only with Mother’s consent and only after consultation with Dr. Waxmonski.
K. Conclusions .
I conclude that the following changes must be made relevant to the most recently proposed IEP,14 and that with these changes, the IEP (including its implementation at the Caldwell School) meets the requisite legal standards:
1. Wachusett shall ensure that a behavior plan is developed and implemented to explain to staff in detail how they are to work with Student regarding his behavioral issues, consistent with the recommendations of Dr. Tashjian. The plan shall be drafted or reviewed by someone with appropriate behavioral expertise (i.e., a behavioral consultant); and several times per week for the first few weeks of the plan’s implementation, the behavioral consultant shall review the behavior plan and how it is working so that modifications can be made in order to ensure that it functions appropriately. Continuing, on-going monitoring and adjusting of the plan shall occur, and this may be done by teachers or other staff at the Student’s placement.
2. Wachusett shall ensure that Student receives rule-based instruction tailored to remediate his particular deficits in phonological processing, while using other grade-appropriate reading materials. Wachusett shall engage or arrange for an educational consultant (with expertise regarding learning disabilities) to assist with the incorporation of this instruction into an existing educational program. The educational consultant shall identify the appropriate educational tools to address Student’s phonological deficits, assist the program staff with implementation and fine tuning these educational tools, and make any additional recommendations regarding adjustments in the educational materials used with Student. It is not necessary for the IEP to include direct or consultation services from a learning disability specialist other than those services, described above, from an educational consultant.
3. Occupational Therapy consultation shall include an opportunity for the consultant to observe Student receiving OT/SI services at the Caldwell School.
4. The IEP shall be amended to provide for the next three year evaluation to occur in March 2004.
5. At its next meeting, the Team shall reconsider the reference to Oppositional Defiant Disorder (as it appears in the 4 th paragraph of the “Student Strengths and Key Evaluation Results Summary Continued” of the IEP) and shall remove the language if the Team concludes that it is not needed.
6. The IEP shall describe what assistive tech devices are to be provided Student.
7. The IEP shall be changed to indicate that consideration of Student’s extended year program will occur in March 2002.
8. At its next meeting, the Team shall consider whether a liaison should be appointed, the responsibilities of a liaison, and the liaison’s identity. A liaison shall be appointed only if agreement can be reached by the parties on all of these issues.
9. Wachusett shall provide or arrange for a therapeutic assessment for the purpose of determining whether and what kind of family therapy should be provided to Mother and Student (as well as others within the family structure) consistent with 34 CFR 300.24 (federal regulatory definition of “related services”). Provided, however, this assessment shall occur only with Mother’s consent and only after consultation with Dr. Waxmonski.
L. Continuing Jurisdiction .
Because of the difficult history of this case, the Hearing Officer requested the parties to advise him (through their written closing arguments) whether they would like the Hearing Officer to retain jurisdiction of this matter past the issuance of this Decision. Mother responded that she would like the Hearing Officer to retain jurisdiction for purposes of monitoring the remainder of this school year and part or all of the next school year. Wachusett responded that it “would strongly support the Hearing Officer’s continued involvement in this case”.
I will retain jurisdiction of this case for a limited period of time. My jurisdiction will continue only until any of the following occurs: (i) a new IEP is proposed by Wachusett and agreed upon in full by Mother, (ii) a Request for Hearing is filed relevant to a new IEP (the BSEA would consider a request from the parties that the matter be assigned to me), or (iii) upon written request of either party or upon my own initiative, I determine at any time that it no longer is appropriate or helpful to retain jurisdiction.
For these purposes, the parties will be directed to provide to the Hearing Officer a written status report, to be received on or before February 15, 2002. The written report shall include, but shall not be limited to, the status of consultation and direct services being provided relevant to Student’s learning disabilities and his behavioral needs.
ORDER
The most recently proposed IEP shall be amended as explained above in part K Conclusions of this Decision.
In particular, those aspects of this Order related to the development and implementation of a behavior plan (with the assistance of a behavior consultant) and the implementation of rule-based instruction (with the assistance of an educational consultant) shall be accomplished without delay.
The Hearing Officer retains jurisdiction of this matter for a limited period of time, as explained above in part L Continuing Jurisdiction of this Decision.
The parties shall provide to the Hearing Officer a written status report, to be received on or before February 15, 2002. The written report shall include, but shall not be limited to, the status of consultation and direct services being provided relevant to Student’s learning disabilities and his behavioral needs.
By the Hearing Officer,
William Crane
Dated: January 14, 2002
COMMONWEALTH OF MASSACHUSETTS
BUREAU OF SPECIAL EDUCATION APPEALS
EFFECT OF BUREAU DECISION AND RIGHTS OF APPEAL
EFFECT OF DECISION AND RIGHTS OF APPEAL
The decision of the Bureau of Special Education Appeals is final and is not subject to further agency review. Because 20 U.S.C. s. 1415(i)(1)(B) requires the Bureau decision to be final and subject to no further agency review, the Bureau cannot permit motions to reconsider or to re-open a Bureau decision, once it is issued. Any party aggrieved by the Bureau decision may file a complaint in the Superior Court of competent jurisdiction or in the District Court of the United States for Massachusetts for review of the Bureau decision. 20 U.S.C. s. 1415(i)(2). Under Massachusetts General Laws, Chapter 30A, Section 14(1), appeal of a final Bureau decision must be filed within 30 days of receipt of the decision.
Except as set forth below, the final decision of the Bureau must be implemented immediately. Under G.L. c. 30A, s. 14(3), appeal of the decision does not operate as a stay; rather, a party seeking to stay the decision of the Bureau must seek such stay from the court having jurisdiction over the party’s appeal.
Under the provisions of 20 U.S.C. s. 1415(j), “unless the State or local education agency and the parents otherwise agree, the child shall remain in the then-current educational placement,” during the pendency of any judicial appeal of the Bureau decision, unless the child is seeking initial admission to a public school, in which case “with the consent of the parents, the child shall be placed in the public school program,” 20 U.S.C. s. 1415(j). Therefore, where the Bureau has ordered the public school to place the child in a new placement, and the parents or guardian agree with that order, the public school shall immediately implement the placement ordered by the Bureau. School Committee of Burlington, v. Massachusetts Department of Education , 471 U.S. 359 (1985). Otherwise, a party seeking to change the child’s placement during the pendency of judicial proceedings, must seek a preliminary injunction ordering such a change in placement from the court having jurisdiction over the appeal. Doe v. Brookline , 722 F.2d 910 (1st Cir. 1983); Honig v. Doe , 484 U.S. 305 (1988).
RECORD OF THE HEARING
The Bureau of Special Education Appeals will provide an electronic verbatim record of the hearing to any party, free of charge, upon receipt of a written request. Pursuant to MGL c.30A, ss. 11(6) and 14(4), an appealing party seeking a certified written transcription of the entire proceedings, must arrange for the transcription, or portion thereof, by a certified court reporter, at his/her own expense. Transcripts prepared by the party must then be submitted to the Bureau of Special Education Appeals with appropriate court reporter certification for final review and certification. A party unduly burdened by the cost of preparation of a written transcript of the sound recordings may petition the Bureau of Special Education Appeals for relief.
COMPLIANCE
A party contending that a decision of the BSEA is not being implemented may file a complaint with the Department, whose responsibility it shall be to investigate such complaint. 603 CMR s. 28.00, par. 407.0.
In addition, the party shall have the option of filing a motion with the Bureau of Special Education Appeals, requesting the Bureau to order compliance with the decision. The motion shall set out the specific area of alleged non-compliance. The Hearing Officer may convene a hearing at which the scope of inquiry will be limited to facts bearing on the issue of compliance, facts of such nature as to excuse performance and facts bearing on a remedy. Upon a finding of non-compliance, the Hearing Officer may fashion appropriate relief and refer the matter to the Legal Office of the Department of Education for enforcement.
CONFIDENTIALITY
In order to preserve the confidentiality of the child involved in these proceedings, when an appeal is taken to Superior Court or to Federal District Court, the parties are strongly urged to file the complaint without identifying the true name of the parents or the child, and to move that all exhibits, including the transcript of the hearing before the Bureau of Special Education Appeals, be impounded by the court. See, Webster Grove School District v. Pulitzer Publishing Company , 898 F.2d 1371 (8th Cir. 1990). If the appealing party does not seek to impound the documents, the Bureau of Special Education Appeals, through the Attorney General’s Office, may move to impound the documents.
NOTICE OF REVISED BUREAU PROCEDURES
ON RECONSIDERATION/REHEARING
The United States Department of Education, Office of Special Education Programs (OSEP) in its 1990 Monitoring Report, issued July 17, 1991, ordered the Bureau to amend its procedures to eliminate the availability of reconsideration or re-opening as post-decision procedures in the Bureau cases. Accordingly, parties are notified that the Bureau will not entertain motions for reconsideration or to re-open. Bureau decisions are final decisions subject only to judicial review.
In addition, parties should be aware that the federal Courts have ruled that the time period for filing a judicial appeal of a Bureau decision is thirty (30) days, as provided in the Massachusetts Administrative Procedures Act, MGL c.30A. See, Amann v. Town of Stow , 991 F.2d 929 (1 st Cir. 1993); Gertel v. School Committee of Brookline , 783 F. Supp. 701 (D. Mass. 1992). Therefore, an appeal of a Bureau decision to state superior court or to federal district court must be filed within thirty (30) days of receipt of the Bureau decision by the appealing party.
1
Exhibits S-156; P-43, Book 2.
2
Although these services are included within the IEP, Wachusett took the position that they were no longer needed and requested that the Hearing Officer specifically address this issue.
3
20 USC 1400 et seq .
4
MGL c. 71B. There is no dispute regarding Student’s eligibility for special education.
5
David D. v. Dartmouth School Committee , 775 F.2d 411, 423 (1 st Cir. 1985). Although the applicable legal standard changed to FAPE effective January 1, 2002, the “maximum possible educational development” standard was applicable at the time that the IEP was developed and proposed by Wachsuett (in calendar year 2001) and therefore is the standard by which the IEP will be judged.
6
Ms. Timmel also testified that Student has “characteristics of dyslexia” – for example, he does not have the ability to automatically decode nonsense words. However, there is no support for an actual diagnosis of dyslexia either in Ms. Timmel’s written evaluation or in the testimony and reports of other professionals.
7
I note that Caldwell has the “Explode the Code” program and the “Project Read/Framing Your Thoughts” program, both of which may help address Student’s phonological deficits. Testimony of Brady.
8
20 U.S.C. s. 1412(a)(5)(A). See also 34 C.F.R. s. 300.550. Similarly, the state special education regulations mandate that a school district ensure that special needs children are educated in the least restrictive environment consistent with meeting their educational needs:
Least restrictive environment (LRE) . The school district shall ensure that, to the maximum extent appropriate, children with disabilities are educated with children who do not have disabilities, and that special classes, separate schooling, or other removal of children with special needs from the general education program occurs only if the nature or severity of the disability is such that education in general education classes with the use of supplementary aids and services cannot be achieved satisfactorily.
603 CMR 28.06(2). See comparable federal regulatory language at 34 CFR 300.550. See also MGL c. 71B, ss. 2, 3 relative to Student’s right to receive services in the least restrictive setting.
9
E.g., Oberti v. Board of Education , 995 F.2d 1204 (3 rd Cir. 1993); DeVries v. Fairfax County School Board , 882 F2d 876, 878 (4 th Cir. 1989 ); Daniel R.R. v. State Board of Education , 874 F.2d 1036, 1044 (5 th Cir. 1989).
10
Roland v. Concord School Committee , 910 F.2d 983, 991 and 993 (1 st Cir. 1990); David D. v. Dartmouth School Committee , 775 F2d 411, 423 (1 st Cir. 1985).
11
Burlington v. DOE , 736 F.2d 773, 789 n. 19 (1 st Cir. 1984).
12
Mother may have concerns as to whether or not Student’s learning disabilities will be quickly and appropriately addressed at the Caldwell School, even after this Decision. Wachusett has sought to minimize Student’s weaknesses in this area, thereby possibly adding to Mother’s concern. It is recommended that Wachusett make it a priority to implement as soon as possible those aspects of this Decision relevant to Student’s learning disabilities.
13
Harvard Law Professor Roger Fisher and William Ury have explained it this way:
A basic fact about negotiation . . . is that you are dealing not with abstract representatives of the “other side,” but with human beings. . . . This human aspect of negotiation can either be helpful or disastrous. The process of working out an agreement may produce a psychological commitment to a mutually satisfactory outcome. . . . On the other hand, people get angry, depressed, fearful, hostile, frustrated, and offended. They have egos that are easily threatened. . . . Failing to deal with others sensitively as human beings prone to human reactions can be disastrous for a negotiation. . . .
Be hard on the problem, soft on the people. You can be just as hard in talking about your interest as any negotiator can be in talking about his position. In fact, it is usually advisable to be hard. . . . [But if the other side] feel[s] personally threatened by an attack on the problem, they may grow defensive and may cease to listen. This is why it is important to separate the people from the problem. Attack the problem without blaming the people. Go even further and be personally supportive: Listen to them with respect, show them courtesy, express your appreciation for their time and effort, emphasize your concern with meeting their basic needs, and so on. Show them that you are attacking the problem , not them. . . . Fighting hard on the substantive issues increases the pressure for an effective solution; giving support to the human beings on the other side tends to improve your relationship and to increase the likelihood of agreement. It is the combination of support and attack which works; either alone is likely to be insufficient.
Getting to Yes: Negotiating Agreement Without Giving In , (1981) at pages 19 and 55-57.
14
Exhibits S-156; P-43, Book 2.