COMMONWEALTH OF MASSACHUSETTS
SPECIAL EDUCATION APPEALS
In Re: Natick Public Schools
BSEA No. 09-7499
DECISION
This decision is issued pursuant to the Individuals with Disabilities Education Act (“IDEA”, 20 USC Sec. 1400 et seq.); Section 504 of the Rehabilitation Act of 1973 (29 USC Sec. 794); the Massachusetts special education statute or “Chapter 766,” (MGL c. 71B) and the Massachusetts Administrative Procedures Act (MGL c. 30A), as well as the regulations promulgated under these statutes.
The issue in this case is whether the transitional planning and services that the Natick Public Schools offered to Student for the 2008-2009 and 2009-2010 school years were appropriate for Student. If not, the parties dispute whether Natick must retroactively and prospectively fund the private residential school placement in which Parent unilaterally enrolled Student.
On June 21, 2009, Parent filed a request for a hearing at the Bureau of Special Education Appeals (BSEA) seeking an order directing the Natick Public Schools to reimburse her for the costs of Student’s unilateral placement at Riverview, a private residential school, as well as to fund Student’s placement there prospectively through the 2009 – 2010 school year. The BSEA originally assigned the case to hearing officer William Crane. After several postponements granted to address discovery disputes and other preliminary issues, final hearing dates were set, and the case was administratively transferred to the current hearing officer.
A hearing took place on October 29 and 30, November 3 and 4, and December 8, 2009 at the offices of the BSEA in Malden, MA. Both parties were represented by counsel and had the opportunity to examine and cross-examine witnesses, to introduce documentary evidence, and present oral and written arguments.
Those present for all or part of the proceeding were:
Student’s Mother
Student
Student’s Aunt
Family Friend
Dr. Lois Carra Private Neuropsychologist
Phoebe Adams Educational Specialist, Floating Hospital
Kathy Titus Director of Transitional Svcs., Riverview School
Adam Wannie Student’s advisor, Riverview School
Lauren Gilbert Director of Pupil Services, Natick Public Schools
Matthew LaCava Asst. Dir. of Pupil Services, Natick Public Schools
Thomas Brenneman Transition Coordinator, Natick Public Schools
Mary Lou Carey Special Ed. Dept. Head, Natick Public Schools
James Franciose Life Skills Teacher, Natick High School
Mark Miller Achieve Program, Natick Public Schools
Thomas Lamb Athletic Director, Natick High School
Michelle Moor, Esq. Attorney for Parent and Student,
Alisia St. Florian, Esq. Attorney for Natick Public Schools
Peter Fisher Legal Intern with Parent’s attorney
Ann Scannell, Esq. BSEA, Observer
Darlene Coppola Certified Court Reporter
The official record of the hearing consists of Parents’ Exhibits P-1 through P-143, School’s Exhibits S-I-21 and S-II-51, tape recorded testimony and argument, and six volumes of verbatim transcript created by the court reporter. The parties requested and were granted two postponements to file written closing arguments. Accordingly, the parties filed their written closing arguments on December 30, 2009, and the record closed on that day.
ISSUES PRESENTED
The issues presented for hearing are:
1. Whether the IEPs proposed by the Natick Public Schools (Natick) for the time periods March 12, 2008 to March 12, 2009 and April 7, 2009 to April 7, 2010 are reasonably calculated to provide Student with a free, appropriate public education in the least restrictive environment.
2. If not, whether the Parent should be reimbursed for the costs of Student’s unilateral placement in the Riverview School, retroactive to September 8, 2009.
3. If the IEP covering April 7, 2009 to April 7, 2010 is reasonably calculated to provide Student with a free, appropriate public education in the least restrictive environment from the date of this decision forward;
4. If not, whether this IEP can be modified to make it appropriate for the Student;
5. If the IEP is not appropriate and cannot be made appropriate, whether the GROW program at the Riverview School will meet the applicable standard.
POSITION OF PARENT
The Natick Public Schools failed to provide the Student with appropriate transitional services to address his substantial deficits in the areas of academics, vocational skills, self-care skills, and safety awareness, as well as the social isolation he experienced. ACHIEVE, which is the post-high school transition program that Natick offered to Student was hastily assembled, lacked structure, and would not address Student’s social isolation. ACHIEVE did not and does not offer Student the academic, vocational, social, or life-skills programming that he needs to progress towards independence. Further, the peer group at ACHIEVE was neither appropriate nor large enough to allow Student to develop his social and relationship skills.
Additionally, Natick failed to conduct appropriate transitional assessments while Student was still in high school, and, thus, deprived itself of objective information needed to design a program that could meet Student’s unique needs. Moreover, Natick failed to provide Parent with adequate or timely information about the ACHIEVE program. As a result, Parent was unable to make an informed decision about whether or not ACHIEVE would be an appropriate setting for Student. Under these circumstances, it was entirely reasonable for Parent to place Student in the GROW program at the Riverview School, which is specifically designed for individuals with needs similar to Student.
Finally, the residential program at Riverview is appropriate for Student, not only as a unilateral parental placement, but also prospectively. The program is Chapter 766-approved and well-established. It has a large enough group of similar peers to enable Student to develop appropriate social skills and establish friendships. Additionally, the program offers Student appropriate programming to develop his academic, social, pre-vocational, and independent living skills. Students will have opportunities to interact with non-disabled peers because GROW students take courses at a local community college. The residential portion is a necessary component of FAPE for Student, because without it, he cannot adequately develop and generalize the life skills needed for independence. Student has thrived and grown tremendously at Riverview, and Natick should fund the placement.
POSITION OF NATICK PUBLIC SCHOOLS
Contrary to Parent’s current assertions, she sought Student’s residential placement at Riverview not because she lacked timely information on Natick’s program, but because she wanted Student to have a college-like experience away from home after high school. Parent had ample and timely opportunities to learn about ACHIEVE, but she did not avail herself of them because she never intended to give ACHIEVE serious consideration.
In fact, ACHIEVE is very well suited to provide Student with FAPE, and would have done so had he attended. The program is based in the Natick community, and is designed to give its students highly individualized experience and instruction in functional academics, social, vocational, and life skills. The program staff members are skilled and experienced. The curriculum is specifically designed for young adults like Student, and Mother’s and Student’s witnesses concede that this curriculum would be appropriate. The peers have needs compatible with those of Student, and, in fact, were his classmates in the NHS Life Skills program. The testimony of Parents’ witnesses that ACHIEVE was inappropriate for Student lacks foundation and credibility.
Furthermore, the Riverview program is far too restrictive for Student. Student has never been educated outside of the Natick Public Schools, let alone in a residential setting. Indeed, neither Mother nor Natick sought any placement other than the public school setting during Student’s educational career, and there was no reason for them to do so. Student was happy and successful during his four years at Natick High School, both in the substantially-separate Life Skills program and within the larger school community. Moreover, Student was able to function fairly independently outside of school, and any deficits in that area could easily be addressed by the ACHIEVE program. As an individual who spent his entire educational career within the public schools, and generally was successful, Student certainly did not and does not need residential placement for educational reasons. Finally, while it is understandable that Parent wants Student to have an out-of-home, “college” experience, such an experience is not necessary for Student to receive FAPE, and Natick is not obligated to fund it.
FINDINGS OF FACT
1. Student is a nearly twenty-one-year-old young man who is a resident of Natick. Student’s eligibility for special education and related services from the Natick Public Schools is not in dispute, including his continuing eligibility until age 22. Student is his own guardian, but has delegated all educational decision-making authority to his mother (Mother or Parent). (P-2)
2. The parties do not have significant disputes over Student’s profile, although they differ on the effects of Student’s disabilities on his educational needs. Student has a well-documented, long-standing history of developmental delays and Attention Deficit Hyperactivity Disorder (ADHD). Since early childhood, Student’s disabilities have had a significant impact on his academic, social, and adaptive skills. The most recent psychological and neuropsychological testing, conducted in November 2007 and December 2008, respectively, measure Student’s general intellectual functioning in the below average range. These scores, coupled with Student’s below-average adaptive skills, have been deemed consistent with mild mental retardation. (P-2)
3. In the 2008 neuropsychological testing, as well as in earlier evaluations, Student showed relative strengths in the area of language and commonsense reasoning, which were generally in the borderline/low average range. He showed relative weaknesses in visual problem solving. (Carra, P-2). The 2007 psychological testing indicated that while he had deficits in his adaptive skills, they were stronger than would be expected in light of his cognitive weaknesses. These recent test results are fairly consistent with assessments that have been conducted over the course of Student’s educational career, as well as with Student’s general performance. In other words, Student is outgoing, conversational and articulate, but finds interpretation of non-verbal social cues to be challenging.
4. Notwithstanding his disabilities, there is no dispute that Student is a remarkable young man with many strengths and talents. Student is friendly, kind, compassionate, and capable of forming lasting friendships. His outlook and personality are generally positive and upbeat. Student can express himself well. He has done public speaking, which he usually enjoys. He has a good sense of humor and can be very witty. He is hardworking, punctual, and conscientious about understanding and fulfilling his obligations. (For example, Student rarely, if ever, complained about homework or failed to complete assignments promptly.) He is becoming a good self-advocate. Student has definite opinions and many interests, including sports, radio broadcasting, and music. He recently has been learning how to initiate and organize social activities with peers. Importantly, Student is willing and able to learn new skills and to implement suggestions. (Student, Mother, Franciose, Wannie, Carra, Lamb)
5. As will be discussed in more detail, Student has a keen interest in team sports generally and Natick High School (NHS) sports in particular, especially NHS football. Student was the manager of the NHS football team during his high school years,1 and developed skill both in handling his own responsibilities and in delegating tasks to others. (Student, Mother, Lamb) Student was well-known, liked and respected at NHS, and viewed himself as a member of the NHS community. (The parties dispute whether and to what extent Student’s peer relations at NHS were truly reciprocal, however. The School witnesses generally contend that the relationships were mutual. Mother asserts that the relationships were not truly reciprocal or equal, and did not generally extend beyond the walls of NHS)
6. Student first was identified as having special needs as a toddler. After exiting Early Intervention services, he attended a specialized preschool in another district for two years. In 1995, after completing kindergarten at a private school,2 Student enrolled in the Natick Public Schools (where he repeated kindergarten), and attended Natick schools, exclusively, through twelfth grade. Student exited Natick High School in June 2008. Student did not receive a high school diploma at that time, and his continuing eligibility for special education is not in dispute. (Mother)
7. Student received special education services from first grade forward. From kindergarten through Grade 4, Natick placed Student in full inclusion classrooms. (P-98) From fifth through eighth grade, Natick provided some or all of Student’s academic instruction in substantially separate language-based classrooms. Mother felt that he made little academic progress in the first four grades, somewhat more progress in Grade 5, and progressively fewer gains in Grades 6 through 8. (P-96) Eighth grade was particularly difficult for Student. His special education teacher regularly disciplined him for incomplete assignments by making him stand in a corner, and admitted that she did this to “teach him a lesson.” By spring, Student was failing all of his academic courses and was anxious and depressed about school for the first time. (Mother, P-97)
8. In August and September 2004, just before and shortly after Student started his freshman year at Natick High School, Dr. Lois Carra and Phoebe Adams, both from the Center for Children with Special Needs (CCSN), conducted updated neuropsychological and educational evaluations of Student. (Carra, Adams, P-96)
9. Dr. Carra had first evaluated Student in 1994 and 1995, and, as stated above, determined that he had developmental delays in the cognitive, language, and motor domains, attentional difficulties, and a significant discrepancy between his relatively stronger verbal skills and weaker visual and non-verbal skills. Dr. Carra recommended explicit language-based instruction as well as support with development of social skills. (Carra, P-98)
10. Dr. Carra’s 2004 evaluation revealed that Student’s basic profile had not really changed in the intervening ten years. Student continued to have verbal scores in the “borderline/slow learner” range and visual motor skills that were significantly lower. Dr. Carra found that Student’s expressive language skills and ability to do commonsense reasoning were relatively strong. On the other hand, although Student was friendly, outgoing and personable, he had difficulty picking up visual, non-verbal social cues; therefore, he tended to conduct monologues about his own interests rather than have reciprocal conversations. Additionally, Student had some weaknesses in executive functioning and organization, personal care, and community skills. (Carra; P-96)
11. Ms. Adams’ educational assessments revealed that at the start of ninth grade, Student had academic skills in the first grade to early third grade range. He had difficulties with decoding, reading fluency, spelling, and math reasoning, as well as with use or calculation of money, reading number patterns or reading a calendar. He was able to do basic addition of whole numbers and could write basic sentences. (Adams, P-96)
12. Dr. Carra and Ms. Adams made numerous specific recommendations for Student’s academic instruction, all geared towards preparation for adult life by promoting functional literacy, basic computation and time-management skills, language development, communication and social skills, pre-vocational and vocational skills, and adaptive functioning. Their report emphasized the importance of providing “concentrated work on social skills and certain adaptive skills” to prepare Student for the world of work. (P-96)
13. Student entered ninth grade at NHS in the fall of 2004 pursuant to an IEP calling for placement in the substantially separate Life Skills program located at the High School and taught by Mr. James Franciose. Student remained in the Life Skills class through twelfth grade. Mr. Franciose taught the class for all four years. (Mother, Franciose).
14. Mr. Franciose developed the NHS Life Skills program in 2001 and has been its lead teacher since that time. Mr. Franciose has a Masters degree in special education and is certified to teach students with mild, moderate and intensive special needs. Prior to coming to Natick, from 1993 to 2001, Mr. Franciose worked with 18 to 22 year old students at a private school for students on the autism spectrum, initially as a job coach and then as a vocational coordinator. In the latter capacity, Mr. Franciose helped students get jobs in the community, supervised job coaches, and networked in the community to develop job placements. (Franciose)
15. The NHS Life Skills program was and is a structured, substantially separate classroom designed for students who function significantly below grade level due to intellectual disabilities. Students receive academic and life skills instruction within the classroom. Additionally most Life Skills students also participate in regular education specials, such as computer labs, art, and gym, as well as in one or more academic classes as appropriate. During Student’s high school years, the enrollment in the Life Skills class ranged from approximately 6 to 11 or 12 students, depending on the year. (Franciose)
16. As a part of the 2004 evaluation referred to above, Phoebe Adams observed Student in his school program at the start of his freshman year. While she made a few suggestions, Ms. Adams concluded that the Life Skills program was appropriately addressing Student’s needs, combining both academic and functional/vocational instruction. Additionally, Student appeared to be “an integral part of his classroom and school community and his peer relationships extend[ed] beyond school.” (P-96)
17. Student enjoyed his time in Mr. Franciose’s class. He formed a close, mutually respectful relationship with this teacher, and continues to maintain contact with him. He got along with his classmates. He made academic and social progress in the Life Skills classroom, in his mainstream classes (including Foods/Nutrition, MS Office, Video Production, Art and Gym),3 and in the larger school community. His grades in both the special education and mainstream classes were mostly in the A-B range. He completed assignments and participated in class. Student was able to handle being in a large high school. For example, he was able to navigate crowded hallways and eat lunch in a cafeteria with some 400 other students with little or no assistance. (LaCava) Quarterly progress reports indicated that Student made progress towards meeting IEP goals. (S-26 – 29; Franciose)
18. Mother had some doubts about whether or not Student was acquiring sufficient skills to prepare him for adulthood, especially during grades 11 and 12. Despite her concerns, however, Mother accepted Student’s IEPs and placement for all four years of high school because Student was happy, loved NHS, and felt himself a part of the NHS community. In particular, Mother—and Student—felt that Mr. Franciose provided Student with a tremendous amount of support, encouragement, and guidance, which were of great benefit to Student. In addition, they felt that Student benefited from warm, positive relationships with other teachers and administrators. (Mother, Student, Carra, P-96)
19. As discussed above, it is undisputed that one major reason for Student’s enjoyment of high school was his involvement in the sports program. Beginning in elementary school, Student had a keen interest in sports, especially NHS football. When Student entered NHS, Mr. Franciose encouraged his enthusiasm for team sports. During his sophomore year, with Mr. Franciose’s encouragement, Student approached the football coach, Mr. Thomas Lamb, who was looking for students to manage the football team, and asked to be chosen for the position. (Mother, Student, Franciose, Lamb)
20. Student’s duties as manager of the football team included attending all practices and games, supplying players with water, and putting balls and practice equipment out on the field and picking them up. Because the team needed different types of practice equipment depending on the types of skills they were working on, Student learned how to make sure that the correct equipment was on the field for each particular drill. (Lamb, Tr. VI, pp. 80 – 89)
21. When Student first began as manager of the football team, Coach Lamb requested him to ask additional students to work as assistant managers. Student recruited two of his Life Skills classmates. According to Coach Lamb, Student was very skillful at delegating responsibility to his assistants, and overseeing their performance, although the assistants did not always cooperate with Student. (Lamb, Tr. VI, pp. 80-89)
22. During football season, Student attended every after-school practice session and game in his capacity as manager. He also attended all team pasta dinners held at the homes of team members on the nights before games. At Coach Lamb’s direction, players transported Student to and from these events. (Lamb, Tr. IV).
23. The team members liked Student and usually treated him respectfully. Student considered himself to be a part of the team. (Student, Franciose, Lamb)
24. Student became generally well-known and liked within NHS. He was gregarious with both staff and students, and was nicknamed “the Mayor” by some staff. (Miller, Franciose) During his senior year, Student was elected Prom King, and his picture appeared several times in the yearbook. (Student)
25. Despite his popularity in school, however, Student’s peer relationships outside of school were limited to non-existent. (Mother) Mother testified that Student made multiple phone calls to football team members, to the point that he was probably annoying them, but that the players frequently did not answer their phones and rarely initiated calls to Student. Several times, players promised to take Student out with them to movies or other events, or even, on one occasion, a weekend trip, but then either backed out at the last minute or simply failed to show up at Student’s house. Mother further testified that she would overhear Student having imaginary phone conversations with the school football players, in which he enacted both sides of the conversation.4 (Mother).
26. Additionally, Student rarely spent time outside of school with his Life Skills classmates. His relationships with them were cordial, but not close. He experienced some friction with two classmates who had been his assistant team managers because he felt that they failed to cooperate with him and shirked their responsibilities. Mother testified that Student invited the entire football team, the school secretaries, Mr. Franciose, and other staff to his graduation party, but did not invite any Life Skills classmates. (Franciose, Lamb, Student, Mother)
27. In September and October of 2005, at the start of Student’s sophomore year, Natick conducted a three-year re-evaluation of Student, consisting of an educational assessment, occupational and physical therapy evaluations, and an articulation assessment. (S-32 – 35) The resulting IEP called for continued placement in the Life Skills classroom for English, Math, Daily Living Skills, and “Vocational,” as well 30 minutes per cycle of speech/language therapy. The IEP also noted Student’s participation in regular education Foods, Art, and Gym. (S-9).
28. Attached to the IEP was a Transition Planning Chart, which had been created by Mr. Franciose. The “Desired Outcome” stated was for Student to ‘begin to explore possible trade school opportunities,” to “work in the community” after trade school, live at home while in trade school, and become more independent and expand functional living skills such as paying bills. The “Action Plan” on the chart for fall 2005 included having Student take high school courses to develop interest areas, receive counseling in school, and be referred to the Massachusetts Rehabilitation Commission (MRC) pursuant to Chapter 688. (S-9)
29. Mother accepted the 2005 – 2006 IEP in full on October 24, 2005, and Student attended NHS for that school year (tenth grade) pursuant to that IEP.
30. The IEP for 2006 – 2007 (eleventh grade), which Mother fully accepted in October 2006, essentially continued the services and placement contained in the prior two IEPs. An updated Transition Planning Chart was attached to this IEP. The Action Plan contained in this chart was updated to state that Student “will visit potential trade school opportunities” as well as “learn basics on how to identify, read, and calculate the various sections to a paycheck.” (S-8)
31. The instructions on the Transition Planning Chart form call for detailed statements of the student’s desired outcome, special education and related service needs in order to achieve that outcome, and expected time lines for accomplishing action steps. The completed charts contained no timelines or other specifics on Student’s planned visits to trade schools. The record contains no evidence that Student did, in fact visit trade schools during his time at NHS. (S-8, S-9)
32. During the summer of 2007, between Student’s junior and senior years at NHS, Mother and Student planned to assemble a portfolio of letters of recommendation from teachers who knew Student. Mother’s intent was to provide Student with character references to be used “when he’s ready to apply for jobs, to apply for school or a program or something…” (Mother).
33. On October 3, 2007, the TEAM convened to develop an IEP for Student’s senior year. As with the three prior IEPs, the 2007-2008 IEP continued Student in the Life Skills program. Student was to receive instruction in ELA, Math, Life Skills and “Vocational” in the separate classroom,5 and pull-out speech/language therapy 30 minutes per cycle. Additionally, as in the past, Student participated in regular education gym, foods, video production, and computer classes. (S-6)
34. Student’s primary goal for Language Arts was to improve his written language to the point of being able to write a composition of 8 to 10 sentences, using correct grammar. His math goal was to learn multiplication tables through 10, and multiply two- and three-digit numbers. (S-6)
35. Student’s goal for Daily Living Skills was to learn how to cash a paycheck at a bank (including counting his money), follow a personal budget, and shop for groceries wisely (using coupons, understanding sales, etc.). His vocational goal was to expand job skills and learn skills to keep a job. (S-6)
36. Attached to the 2007-2008 IEP was a “Transition Planning Form,” (TPF) which asked for the same information as the prior Transition Planning Charts, but was formatted differently. This form contained general statements to the effect that Student should improve academic, social, daily living and job preparation skills by following his IEP so that he could become more independent. (S-7)
37. Student’s TPFs for 2007, 2008, and, subsequently, for 2009 were virtually identical. Further, the TPFs for all seven (including Student) of the Life Skills students who were leaving NHS in 2008 and 2009 were identical to one another for one or more of the years 2007, 2008 and 2009. (Adams, P-127, 129, 131, 135, 137, and 241)
38. Mother accepted the 2007-2008 IEP in full on October 3, 2007.
39. Until the beginning of Student’s twelfth grade year, Mother had assumed that Student would transition to the Jet program at Keefe Technical School in Framingham after leaving NHS. This previously had been the case for many Life Skills students. (Mother, Franciose) Student’s Transition Planning Charts appear to reflect the same assumption on the part of the School, with their references to “trade school.” (Mother, S-8, S-9)
40. In fact, during 2005, Keefe ended its transitional program for post-high school students. (Gilbert). Mother learned of this development on or about October 3 or 4, 2007, after the October 3 TEAM meeting, while she was attending an open house in Mr. Franciose’s classroom. (Mother)
41. Mr. Franciose verified that Keefe was no longer available and advised her to start looking for post-NHS schools for Student, “the sooner the better.” (Mother, Franciose) Mother further testified that she asked Mr. Franciose for advice on what to do next. In response, he suggested that she check into a program in Ashland called “Passages,”6 and call Natick’s Director of Pupil Services, Lauren Gilbert, for further information. (Mother) Mother did call Ms. Gilbert, who told her to take her concerns back to the TEAM. Mother testified that she told Ms. Gilbert, “I already went to the team and discussed it. We discussed it and I went to my team. There was no discussion of it, that’s why I’m calling you.” (Mother) There is no further evidence on the record about this conversation.
42. At this point, Mother became very concerned about where Student would go for the 2008-2009 school year. She felt that he needed to improve his reading, writing and math, learn how to handle money, learn how to shop independently, and, generally, to live and function on his own, without a parent present. Mother also felt that Student needed to learn community safety skills. On one occasion, Mother received a call from a school employee who had seen Student walking on a busy, winding road that was dangerous for pedestrians; when she spoke to Student about it, he didn’t understand why there was a problem, since he had seen other people walking on the road. Mother also felt that Student was socially naïve and overly trusting, which could lead to dangerous situations in the community, and which, along with his difficulties with handling money, had led to a situation in which a student athlete had given Student four single dollar bills as change for five dollars, and Student had not noticed the “error.” (Mother)
43. Mother also was concerned about Student’s daily living skills. Student was independent with showering and dressing. He still had to be reminded to brush his teeth and hair, and on occasion his hygiene was not optimal. (Mother, Franciose) Fairly often, Mother had to work in the evenings, so that Student had to be home alone after team practice. On those evenings, upon arriving home at around 6:00 PM, Student was usually able to be by himself for a few hours. He was able to do homework, shower, and make a sandwich without parental supervision. He was not able to prepare a more complicated meal, however, and Mother worried that he would not have good judgment if a stranger rang the doorbell. (Mother)
44. Finally, Mother wanted Student to get training to work in a field that interested him, i.e., working “with people.” Mother testified that in her experience, young people with developmental disabilities were expected to go into the fields of “food, folding and filth,” i.e., food service, laundry work or menial clerical tasks, or janitorial work. Mother stated that while there was nothing wrong with these occupations, and she would support Student pursuing them if he were interested, he was not, in fact, interested, and wanted to work “with people.” (Mother)
45. At this point, Mother sought advice, first from the Federation for Children with Special Needs, and then from an advocate. Based on the date of June 2008 listed as the anticipated graduation date on Student’s 2007-2008 IEP, the Federation person informed Mother that Natick intended to end services to Student at that time. Mother was “shocked,” and thought that this explained Natick’s not mentioning a future placement at the October TEAM meeting. (Mother) In fact, there is no evidence that Natick ever planned to graduate Student in June 2008 and graduation is not an issue in dispute. However, at least initially, this statement heightened Mother’s concern. (Mother)
46. In addition to seeking advice, Mother began searching for possible schools for Student’s next placement, and settled upon the Thresholds program at Lesley University in Cambridge, as well as the GROW program located at the Riverview School in East Sandwich as possibly “appropriate for [Student] for the future if need be.” (Mother)
47. Both of these programs required current evaluation reports as part of the application process. In a letter dated October 9, 2007, Mother requested Natick to conduct educational and psychological testing “to help in planning [Student’s] post-secondary placement, as this is his fourth year at the high school.” (P-87)
48. On October 17, 2007, Mother also wrote letters to several of Student’s teachers and other staff at NHS, requesting the character references to include in Student’s “portfolio [referred to above] that will be submitted to prospective schools, college programs and organizations as we plan for his future.” (P-85) including Mr. Franciose, Mr. Zachary Galvin (NHS vice principal), Mr. John Hughes (NHS principal), and Mr. Douglas Scott (computer teacher). The letters, which were signed by Mother and Student were similar in wording. Each letter thanks the particular teacher for his support and assistance to Student, and refers to Student’s love and enthusiasm for NHS. The letters also contain language referring to Student making “lifelong friends” at NHS, and carrying over his skills and friendships to the community. (P-81 – 86) Mr. Franciose, Mr. Lamb and Mr. Scott each responded in a week with highly complimentary reference letters. Mr. Galvin and Mr. Hughes responded in December 2007. (P-62)
49. In November 2007, in response to Mother’s request, Natick conducted updated psychological and educational evaluations of Student. The psychological evaluation consisted of standardized tests and clinical assessments of Student’s cognitive and emotional functioning, as well as an assessment of his adaptive behavior. Cognitively, Student continued to score well below average, as he had in the past. His verbal and non-verbal abilities were evenly developed, reflecting an improvement in his non-verbal skills, according to the evaluator. (P-77)
50. Student’s adaptive functioning was “generally higher than his cognitive abilities, with scores ranging from low to adequate for his age.” In the category of “Personal Self-Sufficiency,” Student demonstrated overall average abilities for his age, but had some difficulty with personal hygiene and independent transportation. “Community Self Sufficiency” scores ranged from very poor (economic development) to below average (prevocational/vocational development, self-direction) Student had just learned how to make change up to one dollar. Tests of Student’s socialization abilities and social-emotional adjustment were generally average. The report concluded with the statement that Student continued to have an intellectual disability, and should be expected to remain in school until age 22, “with greater emphasis on vocational training in the coming years.” (P-77) The assessment contained no specific recommendations on how Student’s skill deficits should be remediated, or on how “vocational training” needs should be assessed or delivered.
51. The School’s educational assessment indicated that Student’s academic skills were in the very low range. However, Student had a “solid sight vocabulary” for reading, and could perform simple addition, subtraction, multiplication and division problems. Student was able to write a “logical, cohesive paragraph” of six simple sentences with “ample time and organizational assistance.” The evaluation recommended continued small group instruction in academic, vocational and life skills, along with such accommodations as graphic organizers, editing checklists, access to a calculator and computer, and the like. (P-76) The assessment contained no specific recommendations for linking academic instruction to transition planning. (P-76)
52. Natick did not conduct or arrange for any formal assessments of Student’s vocational interests or aptitudes, and did not formally assess Student’s job readiness. (Brenneman)
53. Mother completed the application for Riverview on November 25, 2007. (Mother, S-II-21) She testified that she did so because to her knowledge, based on what she had been told by Mr. Franciose, Natick had no program available for Student for 2008-2009. (Mother)
54. On February 14, 2008, the TEAM convened to develop an IEP for the 2008-2009 school year. At that meeting, Mother informed Natick TEAM members that she wanted Natick to fund a residential placement for Student at the Riverview School. In response, Mr. Thomas Brenneman, Natick’s then-TEAM chair (now transition coordinator), informed Mother that Natick was in the process of developing a transition program for the following year for students between 18 and 22. The program was to be located in an apartment in the Cedar Gardens senior housing development in Natick, with access to a separate room for classes and the gym at NHS. The program would be staffed by one lead teacher (Mr. Miller) and an aide. The intended students were Student along with his three current “graduating” classmates. (S-4, LaCava, Franciose, Miller, Mother)
55. Mr. LaCava, Assistant Director of Pupil Services, who attended the meeting, testified that TEAM members gave Mother information about Mr. Miller’s qualifications7 as well as the curriculum. (LaCava) According to Mr. LaCava, who has been involved with transition programs in other districts, it is not unusual to introduce the outlines of a proposed new program to parents in February or March of the year before the transition. (LaCava) On the other hand, Mother testified that at this meeting, she learned little or nothing concrete about the operation of the program in terms of staffing, scheduling, curriculum, budget, and similar information. (Mother)
56. The TEAM reconvened on March 12, 2008 to continue discussing Natick’s proposed new program, which had been given the name “ACHIEVE.” In attendance were Mother, Student, the family’s advocate, Mr. Franciose, Ms. Dalton-Thomas (NHS guidance counselor), Mr. Thomas Brenneman, Mr. LaCava, and Mr. Miller. (S-I-4)
57. Mr. Miller described the proposed curriculum, which would include academic instruction and real-life experience with cooking, apartment maintenance, community participation, and pre-vocational training. He informed Parents and Student that the ACHIEVE program would use a curriculum known as Life Centered Career Education (LCCE). Mother was given a list of possible “Activities/Lessons” to be covered, which included academics, ADL’s, computer use, community access, gym, shopping, volunteer opportunities and work. There was some discussion about possible practice job interviews. (P-61)
58. Mother expressed concern at the TEAM meeting that ACHIEVE would not meet Student’s needs, and reiterated that she felt he needed a residential placement. Natick staff members were surprised, because Student had functioned very well in the high school, and, in their view, was far more capable and independent than the typical student referred for residential placement. Moreover, Mother had never indicated any dissatisfaction with NHS, and, in fact, had seemed enthusiastic and supportive of Student’s experience there. (LaCava)
59. After the March 12 TEAM meeting, Natick proposed an IEP covering the period from March 12, 2008 to March 2009. This IEP called for Student’s continued placement in the Life Skills program for the remainder of 2007-2008. For the following school year, the N-1 form stated that Natick was proposing placement in a “community based transition program.” The N-1 form further stated that the “proposal [for a community based program] was being drafted…” and that the Mother’s request for residential placement had been considered and rejected because Student’s needs could be met in a day setting. (S-I-4)
60. This IEP contained goals in functional academics (reading, writing, math, English), communication (speech therapy), as well as vocational and daily living skills. Some specific objectives included teaching Student to read newspapers, magazines or novels as well as printed and on-line material regarding job opportunities. Additional objectives were improving his functional math skills, including learning to handle money and make and follow a budget; improving his personal hygiene and housekeeping skills; learning to do laundry; and learning the skills necessary to obtain and keep a job, i.e., identify interest areas, develop a resume, practice interviewing, and identify how to travel to and from work. All of the services listed on the service grid terminated in June 2008, with the exception of 5 x 7 hours/day of functional academics, which extended through March 2009. No other items on a service grid were provided for 2008-2009. (S-I-4)
61. Mother partially rejected the IEP of March 12, 2008 on April 14, 2008, stating that while she accepted the IEP objectives, she rejected the transition plans, which she stated were inappropriate. Mother also refused the placement (S-I-4)
62. During the spring of 2008, Student was accepted at the GROW program of Riverview School and rejected by the Thresholds program. On April 25, 2008, Mother paid a non-refundable deposit of $6500 to Riverview. Mother testified that as of that date, she feared Natick would not produce a program for Student because she had not seen a curriculum or schedules and had not received information on how the new program would implement Student’s IEP. (Mother)
63. In late April 2008, Parent requested a hearing at the BSEA, docketed as BSEA No. 08-6144. (P-56, 57) On or about May 20, 2008, as part of the resolution process, Natick offered some amendments to the March IEP. Mother rejected the proposed amendments.
64. After learning from the hearing officer assigned to that matter that she carried the burden of persuasion and would need expert testimony to prevail, Mother decided that she was not prepared to go forward at that time, and the matter was dismissed without prejudice on July 2, 2008. (P-47, Mother)
65. Meanwhile, Student finished his twelfth grade year at NHS. His progress report for June 2008 indicated that Student had met or nearly met his annual goals. Student enjoyed the activities of senior year. (Mother, Student, Franciose, P-5)
66. In late July 2008, Mother had Phoebe Adams re-evaluate Student to assess his academic achievement levels and assist with transition planning. Ms. Adams’ evaluation consisted of a review of prior records and a questionnaire completed by Mr. Franciose, interviews with Student and Mother, and formal educational testing with the reading portion of the WIAT. Ms. Adams concluded that despite Student’s many social successes at NHS and personal strengths, he still lacked social communication skills and common interests to sustain his high school friendships beyond high school or outside sports events. She further found that Student lacked the “adaptive vocational and academic skills necessary for independence and successful integration into the world of work and participation in social and leisure activities.” (Adams; P-46)
67. Ms. Adams endorsed Natick’s recommendation for a program addressing academic, vocational, and life skills instruction in a small group setting. She added, however, that this program “must be a 12-month, 24 hour program” to ensure that Student could receive specialized training and instruction in adaptive living and community awareness skills, as well as having an opportunity to participate in a community of like peers. (Adams; P-46)
68. In a letter dated August 16, 2008, Mother requested a copy of the curriculum, school year schedule, as well as “dates, times, teacher, and methods” for Student for the 2008-2009 school year. (P-47) Ms. Gilbert responded in a letter dated August 22, 2008, in which she stated that the ACHIEVE program would be using the LCCE curriculum, and the instructor would be Mark Miller. Ms. Gilbert invited Mother to meet with her to discuss the LCCE curriculum. (P-44)
69. Student entered the GROW program at Riverview for the start of the 2008-2009 school year. In letters dated October 14 and 15, 2008, Mother affirmed prior notification to Natick of her intent to place Student residentially at GROW for 2008-2009, and requested full reimbursement and prospective funding. Natick refused this request via a letter from Lauren Gilbert dated October 20, 2008. (P-39, 40)
70. Student attended Riverview as a residential student for the 2008-2009 school year, funded by Mother.
71. On December 1, 2008, Dr. Lois Carra conducted an updated neuropsychological evaluation of Student which included standardized testing, interviews, and reviews of reports from Riverview. (P-34) Testing revealed the same patterns of strengths and weaknesses as in prior evaluations. Within the context of scores that overall fell in the well below average range, Student had relative strengths in abstract and common sense language (in the nearly average range), as well as in understanding complex syntax. Rote memory was also strong. His language skills were weaker in the areas of vocabulary, social pragmatics and making inferences. His visuospatial and visual-motor functioning were “exceptionally weak,” and could be expected to interfere with concept formation, reading comprehension, auditory processing, writing, and math. Student also had weaknesses in attention and executive functioning. Student’s adaptive functioning was also generally low, despite Student’s pleasant personality. (P-34)
72. Dr. Carra recommended an educational program that would utilize repetition but also practice of communication and adaptive skills with an appropriate peer group of adequate size. She recommended an intensification of services and opportunities to practice skills in many settings to develop Student’s language, social/emotional skills, functional academics, community, recreational, and pre-vocational skills. Dr. Carra felt that Student needed a residential placement in order to have the consistency, and intensity of service needed to catch up in areas where he is lagging and to learn new skills, as well as the ability to practice skills in multiple settings. Dr. Carra felt that GROW was providing Student with the immersion experience that he needed to prepare for adulthood. (P-34, Carra)
73. In addition to the evaluations referred to above, Dr. Carra and Ms. Adams observed both ACHIEVE and GROW in January and February 2009. In sum, both concluded that the ACHIEVE program could not provide Student with the intensity of service in his areas of weakness, or sufficient opportunities for peer interaction, to enable him to become less socially isolated and to sufficiently improve his academic, vocational and adaptive skills. They found that, on the other hand, GROW met Student’s need for intensive group instruction in areas of weakness with like peers, together with ample opportunities for social interaction and practice of adaptive and independent living skills. (Adams, Carra, P-31, P-32)
74. Natick convened a TEAM meeting on April 7, 2009 to discuss the reports of Dr. Carra and Ms. Adams. Shortly thereafter, Natick issued an IEP for the period of April 7, 2009 to April 7, 2010 calling for placement at the ACHIEVE program in Natick. The IEP contained detailed goals and benchmarks in the areas of functional reading/writing, functional math, prevocational skills, daily living skills, and reading. Mother rejected this IEP on April 28, 2009 and requested this hearing shortly thereafter. (P-21)
PROGRAM PROPOSED BY NATICK
75. Natick took the initial steps to plan the ACHIEVE program in 2005 or 2006, shortly after Keefe Tech. had stopped accepting NHS Life Skills students. According to Lauren Gilbert, who has been Natick’s Director of Pupil Services since 2004, administrators decided that Natick should create its own program for post-Life Skills students, rather than send them out of the district (Gilbert)
76. In the ensuing years, Ms. Gilbert, together with Thomas Brenneman, Mr. Franciose, and Mark Miller, met on numerous occasions to plan the new program.8 The group decided to obtain, furnish, and equip an apartment and a separate classroom space to use as an instructional setting, to adopt the Life Centered Career Education (LCCE) curriculum, and to hire Mark Miller as the lead teacher. Ms. Gilbert had used this program model and curriculum in the past, when developing transition programs in New Mexico and Worcester. The group planned the new program with Student’s cohort at NHS in mind. The plan was to use the apartment and surrounding community for real-life transitional learning. (Gilbert)
77. Between December 2007 and January 2008, the School negotiated for and obtained a vacant, one-bedroom apartment and a classroom space in Cedar Gardens, a public elder housing complex in Natick. The apartment was renovated during the winter and spring of 2008. Mr. Miller furnished and equipped the apartment and classroom during the summer of 2008.
78. ACHIEVE opened its doors in September 2008 to three students from the Life Skills class. (Had Student been there, he would have been the fourth.) Mr. Miller and one assistant staffed the program during 2008 – 2009. Mr. Miller taught functional academics, taught and/or supervised student’s activities in the apartment and in the community, and was available to serve as job coach. (Gilbert, Miller, Brenneman)
79. During 2009-2010, six students were enrolled in ACHIEVE. An additional teaching assistant worked in the program, and a job coach had been offered a position but had not yet started work at the time of the hearing. Future plans for ACHIEVE include expansion of the physical space, development of job opportunities in the community, and development of a relationship with Framingham State College as a potential site for students to do food service and cleaning work. (Brenneman, Gilbert)
80. Natick did not involve any parents in planning the ACHIEVE program. Natick did hold an informational meeting for parents of incoming students on or about June 3, 2008. Parents of two students attended that meeting, but Mother did not. (Gilbert)
81. As stated above, ACHIEVE based most of its programming on the LCCE curriculum, and also used other curriculum packages for discrete areas of instruction. (For example, ACHIEVE used the “Circles” curriculum to instruct students about various types of relationships.) (Gilbert, Miller)
82. According to Ms. Gilbert, LCCE entails numerous specific competencies related to employment and independent living, to be taught in a natural, community-based setting. Students are pre- and post-tested on these competencies, and instruction is to be individualized based on the needs of students. The curriculum is very explicit, and relatively simple for teachers to implement. (Gilbert)
83. In addition to functional academic instruction, ACHIEVE offered students experience in shopping, meal preparation, housecleaning, and some travel training. Additionally, students had the opportunity for memberships in a local YMCA and a community recreation center. (Gilbert, Brenneman, Miller) It did not offer specific instruction in social pragmatics because this instruction was infused throughout the students’ daily activities. (Miller)
84. Natick did not provide Mother with schedule for ACHIEVE for 2008-2009 that specified the approximate amount of time per week or on any given day that Student would spend with classroom instruction and other types of services and activities. included in his IEP. (S-I-4, LaCava, Miller) According to Natick, pursuant to the LCCE curriculum, functional academics were embedded in daily activities, as was social skills instruction. Had Student been enrolled in the program, he would have received specific services “as needed.” (Miller, Carey, Gilbert)
85. The record does not indicate any specifics of how ACHIEVE would have implemented the LCCE curriculum, however. Other than Ms. Gilbert’s mention of pre- and post-testing, there is no evidence on how this testing would have been used in conjunction with Student’s IEP and transition plan, or what relationship it would have to the amount and nature of his instruction.
86. ACHIEVE had not yet developed any specific job placements during 2008-2009. Two of the three students enrolled in the program during that year had jobs, but both students had obtained these jobs prior to enrollment. (Miller, Carra)
87. The record does not indicate whether and how the ACHIEVE students engaged with the non-disabled community, other than casual encounters while shopping, etc, or in the context of pre-existing employment.
88. Dr. Lois Carra observed the ACHIEVE program during January 2009 at the request of Mother, who felt she had little sense of what Natick was offering to Student. (Carra). After a two-hour observation and discussions with Mr. Miller, Dr. Carra observed that the program was employment-driven. Specifically, employment was the goal for each student enrolled, and other activities and services were scheduled so as not to interfere with students’ work. (Carra, Miller) Students appeared to receive about five hours per week of academic instruction. Dr. Carra felt that this was an inadequate amount of time for Student to spend on functional academics. On the other hand, Dr. Carra testified that the LCCE curriculum would be appropriate, if properly implemented. (Carra) Phoebe Adams also visited ACHIEVE in October 2008 and January 2009, and reached essentially the same conclusions as Dr. Carra. (Adams)
89. Dr. Carra further felt that only one of the three peers was appropriate for Student. The other two students were lower-functioning than Student, both intellectually and socially; in fact, one student had difficulty interacting at all. (Carra)
90. Dr. Carra visited the program again, in September 2009, at the start of the 2009-2010 school year. At that time, there were six students enrolled in ACHIEVE, three more than during the prior year. Dr. Carra felt that two of the six peers would have been appropriate for Student. There had been some formal additions made to the program: sex education and instruction in social skills with the speech./language therapist. Additionally, Mr. Brenneman had been hired to develop relationships with possible employers in the community. At the time of Dr. Carra’s visits neither those relationships nor the relationship with Framingham State College had yet been developed. (Carra)
PROGRAM PROPOSED BY PARENT AND STUDENT
91. The Riverview School (Riverview) is a Chapter 766 approved private residential school that serves middle school, high school, and 18 – 22 year old students with significant learning difficulties and associated academic, social and vocational needs. (Wannie, Titus)
92. GROW is Riverview’s transition program for 18 to 22-year-olds. GROW is a three-year program designed to equip transitional students for personal independence as well as employment or further education. GROW is a ten-month program with a five-week summer component. Its enrollment is approximately 95 students. (Titus)
93. The program comprises approximately three hours per day, four days per week of academic instruction in reading, language arts, and consumer math, and one morning per week of travel training with a formal curriculum. (Titus)
94. In addition to the academic component, GROW provides prevocational activities, including classes in career exploration, resume-writing, and interviewing; on-campus jobs and community work experiences in the areas of office skills retail, customer service and elder care. (Titus)
95. GROW also has the Project Forward school to work program at Cape Cod Community College. This two-year program provides a career exploration phase in the first year, as well as employment-related life skills training and assessments of employment related skills, needs and interests, followed by a concentration for the second year. (Titus)
96. Social skills instruction is embedded in all aspects of the program. All staff members (including clerical and maintenance staff) undergo comprehensive orientation and training each year so that they can assist students with social skills. Students also practice personal budgeting, and learn how to plan outings and social events. Staff monitor and assess students’ skills on an ongoing basis. (Titus)
97. According to Adam Wannie, Student’s advisor at Riverview, Student has been a serious student at GROW, both on the Riverview campus and at Project Forward. He has evolved from being rule-bound and more comfortable with adults than with peers, to being much more confident and relaxed. Student has participated in all aspects of the program and seems to be benefiting both from the formal instruction and from the opportunities to interact with peers. Student arrived needing academic instruction as well as instruction and assistance with personal and daily living skills, and clearly has benefited from this instruction. Student’s peers, in general, had cognitive profiles similar to Students. (Wannie)
98. Among other things, Student also has learned how to organize outings and in-house social events (such as dorm parties to watch football or baseball games), has made friends, and has had an age-appropriate dating relationship. Student has made good use of staff resources to learn how to solve routine problems or concerns with peer interactions. (Wannie, Student)
99. Student himself enjoys Riverview. He feels that he has learned much about how to make friends and care for himself, and is exploring vocational possibilities, including retail, food service, and building maintenance. He plans to concentrate in mass communications, and already appears on and helps produce a 1970’s music and sports focused radio program on a community station. (Student)
100. During 2008 – 2009, Student’s morning comprised about two hours of academic instruction in ELA, math, and reading as well as in travel training (3 periods per week), sex education (4 periods per week) and banking (one period per week). Most classes were attended by approximately 10 to 15 students, who had been grouped by current ability. Afternoons were taken up with a variety of courses, including work/life skills and career exploration at Project Forward (e.g., in office skills, basic foods), recreational fitness, and vocational awareness, and on-campus courses such as wellness, math enrichment and environmental issues. The school day started at 8:15 am and ended at 3:00 PM. After school, Student followed the residential schedule consisting of dinner (including preparation and cleanup), personal fitness or intramurals, study hour, room organization and hygiene. Both during the week and on weekends, students planned and participated in a variety of outings and recreational activities. (P-17, 18)
101. Student’s peer group at Riverview consisted of approximately 18 students, who generally functioned cognitively in the below average to borderline/low average range. Some carried diagnoses of autism or Asperger’s disorder. None were non-verbal or unable to interact socially. (S-II-2 – 17).
102. Student’s second year at GROW has also been successful. (Student, Wannie, Titus)
FINDINGS AND CONCLUSIONS
The parties agree that Student is a person with disabilities who is entitled to a free appropriate public education (FAPE) as defined in federal and state law,9 in the form of a transitional special education program. The parties also agree that such a program should be tailored to Student’s unique needs, goals, and interests, and should focus on the skills he needs for independent living, employment, and/or further education or training.
At issue is whether the ACHIEVE program was and is an appropriate transitional program for Student during the periods in question or could be modified to be appropriate or, if not, whether the GROW program at the Riverview School was appropriate. Also at issue is whether Mother had so little advance information about the ACHIEVE program that she could not make an informed decision about whether or not to accept it for Student, for 2008 – 2009, and, therefore, was justified in unilaterally placing Student at GROW.
Legal Framework :
The central purpose of the IDEA is to “ensure that all children with disabilities have available to them a free and appropriate public education …designed to meet their unique needs and prepare them for further education, employment and independent living. 20 USC Sec. 1400(d)(1(A). Towards this end, school districts are required to provide transition planning and services to all students who are approaching adulthood, beginning at age 14 in Massachusetts. According to the IDEA:
The term “transition services” means a coordinated set of activities for a child with a disability that—
(A) is designed to be within a results-oriented process that is focused on improving the academic and functional achievement of the child with a disability to facilitate the child’s movement from school to post-school activities, including post-secondary education, vocational education, integrated employment…continuing and adult education, adult services, independent living, or community participation;
(B) is based on the individual child’s needs, taking into account the child’s strengths, preferences, and interests; and
(C) includes instruction, related services, community experiences, the development of employment and other post-school adult living objectives, and, when appropriate, acquisition of daily living skills and functional vocational evaluation.
20 USC Sec. 1401(34).
The corresponding federal regulations track the words of the statute, and further state that “[t]ransition services…may be special education…or a related service…” These regulations go on to state the following:
Beginning not later than the first IEP to be in effect when the child is 16 [14, in Massachusetts], and updated annually thereafter, the IEP TEAM must include the following within each IEP: (aa ) appropriate measurable postsecondary goals based upon age appropriate transition assessments relating to training, education, employment, and, where appropriate, independent living skills, and (bb) the transition services (including courses of study) needed to assist the child in reaching those goals.” 34 CFR Sec. 300.43 (aa) – (bb).
Appropriate transition services are a component of FAPE. As such, they should be evaluated “in the aggregate and in light of the child’s overall needs.” Lessard v. Wilton Lyndeborough Cooperative School District , 518 F.3d 18, 30 (1 st cir. 2008).10
Discussion
In the instant case, the Parent has established that for the 2008-2009 school year, Natick did not offer Student an appropriate educational program that was capable of meeting his unique needs. Rather, it offered a program that was still undeveloped, and missing key components that Student needed. My analysis follows.
There is no dispute that despite many successes during high school, Student still needed focused academic instruction, particularly in reading but also in math, after finishing the Life Skills program. Moreover, even though Student was and is friendly and outgoing, and certainly had many personal care and independence-related skills upon leaving high school, he also had significant gaps in social pragmatics, self-care, community safety, and travel skills. In particular, Student had little or no social life outside the confines of the school (and sports) day, and did not really know how to develop one.
Finally, Student left high school with a strong interest in sports and broadcasting, but had never undergone a comprehensive assessment of his vocational interests and skills. The need to develop such skills was acknowledged and well-known to Natick, based on its own evaluations of November 2007, the evaluations of Dr. Lois Carra and Phoebe Adams the previous summer, and, perhaps most significantly, Mr. Franciose’s solid understanding of Student, after four years of daily contact as his teacher.
In the spring of 2008 and thereafter, despite this wealth of knowledge about Student and his needs (including his need for further assessment), Natick failed to provide Mother with a concrete, coherent description of how the embryonic ACHIEVE program was going to meet them. Natick provided Mother and Student with little more than a program name, the name of a lead teacher, a location, and the name of the published curriculum to be used. However, Natick was persistently vague in demonstrating a link between Student’s unique needs and ACHIEVE. Indeed, the IEP for April 2008 – April 2009 seemed to apply only to the remainder of twelfth grade at NHS. The services listed in the grid all were to terminate in June 2008 with the exception of “functional academics.” (In this context, Natick’s generation of nearly identical TPFs for entering ACHIEVE students is particularly concerning.) While Mother was not entitled to advance, detailed information about Student’s daily schedule, she was entitled to more information than she did receive regarding how scheduling determinations would be made so that IEP objectives could be met.
Also problematic was the size and composition of Student’s peer group for 2008-2009. Three other students—two of whom were significantly more delayed than Student–was too small a group to enable Student to practice and generalize the peer skills that were identified by Mr. Franciose, in addition to Parents’ experts, as priorities for improvement. While it is true that all of these students were Student’s Life Skills classmates during high school, Student’s primary in-school interactions were not with these peers, but rather with the NHS student and staff population. This grouping would not have been available to Student on a regular basis at ACHIEVE.
A parent’s claim for reimbursement for the costs of a private placement is in the nature of an equitable remedy. Diaz-Fonseca v. Commonwealth of Puerto Rico , 451 F.3d. 13 (1 st Cir. 2006). It is appropriate, therefore, when considering reimbursement for past expenses, to address the balance of the equities. In the usual case, parents may be reimbursed for a unilateral placement when the school district has failed to offer or provide FAPE, and the placement selected by the parent is responsive to the child’s special needs. Florence County District Four, et al. v. Shannon Carter, et al ., 510 U.S. 103 (1993).
Under these circumstances of this case, Mother’s action in unilaterally placing Student at GROW for his first post-high school year was reasonable. The record establishes that during the period covered by the IEP for March 2008 to March 2009, the School’s placement would not have offered Student FAPE. The program simply did not yet have the structure to meet the needs set forth in Student’s IEP, nor could it provide the critical mass of compatible peers to enable Student to develop his social skills. Further, Mother lacked crucial advance information about ACHIEVE’s appropriateness to meet Student’s documented needs.
On the other hand, GROW clearly was appropriate for Student. It is an established, state-approved special education school designed to serve individuals similar to Student, and clearly capable of delivering the services he needed. Regardless of whether residential placement was appropriate prospectively,11 Mother’s choice of this program was reasonable at the time, and she should be reimbursed for Student’s placement from its commencement in 2008 until April 2009, when Natick offered an IEP for the following school year.
Contrary to what was the case in the spring of 2008, Natick’s IEP for April 2009 – April 2010 was and is appropriate for Student, and by the start of the 2009-2010 school year, the ACHIEVE program had developed into an appropriate placement.12 This most recent IEP took into account recent information about Student, including information from Dr. Carra’s and Ms. Adams’ recent evaluations, and contained detailed goals and objectives. Moreover, ACHIEVE itself had evolved, so that by the start of the 2009-2010 school year it had added three peers (leading Dr. Carra to conclude that the program now could offer Student two appropriate peers) as well as staff and course offerings in sex education and social pragmatics. These developments were acknowledged by Parents’ witnesses.
Finally, ACHIEVE would have been, and is, appropriate from the beginning of 2009-2010 forward, even though it did and does not provide residential services. While reimbursement for residential services may have been warranted when Natick had not offered an appropriate program in 2008, in light of GROW’s general responsiveness to Student’s special needs, the record simply does not support a conclusion that Student required residential services in order to receive FAPE or that Natick must provide such services outside of the confines of the reimbursement situation here. As the evidence amply demonstrates, Student functioned not perfectly, but very well, not only within the confines of a substantially separate classroom, but also within a large public high school. With a relatively low level of support, Student managed to function and learn in his mainstream classes, a crowded cafeteria, and hallways. He required little supervision to perform his team management duties, and, in fact, supervised other students.
Despite these successes, there is no dispute that Student had, and has, gaps in his personal, community, and social skills, and may need to learn to generalize those skills outside of the classroom. However, the record simply does not support a conclusion that Student needs a 24-hour setting to address these needs, or that he could not learn to generalize skills during the school day, either within the classroom or in the community. Even if Student needs to practice skills outside of the school day, there has been no showing that he could not do so via homework assignments, or even an extended school day or home component. The assertions to the contrary of Dr. Carra and Ms. Adams simply are not persuasive in light of the evidence. Unquestionably, Student has derived benefit from, and enjoyed his residential placement at GROW. This does not mean, however, that Natick was required to fund his placement there, after the start date of the IEP issued in April 2009.
CONCLUSION
For the foregoing reasons, Natick’s IEP for the period from March 2008 until April 2009, and the placement for the 2008-2009 school year were not reasonably calculated to provide Student with FAPE, such that Mother was justified in unilaterally placing Student in a private setting. Further, the GROW program at the Riverview School was an appropriate setting during the 2008-2009 school year. On the other hand, the IEP generated in April 2009 was appropriate, as is the ACHIEVE program for the 2009-2010 school year. Therefore, Natick is not required to reimburse Mother for the costs of GROW for the period from the start of the 2009-2010 school year to date, or to pay tuition prospectively for the remainder of this current school year.
ORDER
Upon receipt of appropriate documentation, Natick shall reimburse Mother for tuition payments made to the Riverview School for Student’s placement at the GROW program for the 2008 – 2009 school year, as well as for any transportation that Parent may have provided, at the rate established by regulation. See 603 CMR 20.07(6).
By the Hearing Officer:
____________________ _____________________________
Sara Berman
1
At various times, Student also managed or co-managed the hockey, lacrosse, basketball and baseball teams, but was most of the evidence on the record relates to the football team.
2
Parent provided outside speech, occupational, and physical therapy for Student while he was in private school. (P-98)
3
An aide accompanied Student to most of his regular education classes. (Franciose )
4
Mother’s testimony is seemingly contradicted by letters that she wrote to faculty members during the summer of 2007 when she was seeking letters of recommendation to place in a portfolio for Student’s use in seeking job or future school placements. (The details are set forth below). In those letters, Mother thanked faculty members for their assistance to Student and stated that Student was a part of NHS and the community, and had friends. (P-88) I find that these documents do not undermine Mother’s subsequent testimony regarding Student’s lack of friendships outside of school. The letters speak generically, and were designed to solicit assistance from their recipients. Mother’s subsequent testimony to the effect that Student was well-liked in school, felt himself to be a part of NHS, and viewed the football players as his friends is consistent with the letters. Further, neither this testimony nor the letters are inconsistent with her additional, detailed testimony about one-sided phone calls, broken promises to spend time with Student outside of school, absence of invitations to parties and the like. Taken as a whole, Mother’s testimony supports an inference that Student’s in-school peer relationships did not carry over into the community.
5
Student also studied current events and history in the Life Skills classroom. (S-6, Franciose)
6
The ACCEPT Collaborative opened the Passages program after Keefe became unavailable. A few Life Skills students from prior years transitioned to Passages. (Gilbert)
7
Mr. Miller is a certified special education teacher with close to 30 years of experience teaching students with a range of disabilities. He previously was employed by the same school for children with autism as Mr. Franciose, and taught, with Mr. Franciose, in that school’s transition program for older students. Mr. Miller knew Student casually from contact at NHS. (Miller)
8
Before coming to Natick Ms. Gilbert had been involved in developing special education programs, including transition programs, in New Mexico and in Worcester.
9
The IDEA defines FAPE as special education and related services that (A) are provided at public expense and under public control; (B) meet the standards of the state educational agency; (C) include an appropriate preschool, elementary, or secondary school education; and (D) are provided in conformity with a properly developed IEP. 20 USC Sec. 1401. The Massachusetts special education statute, G.L. c. 71B, Sec. 1 (“Chapter 766”) defines FAPE as special education and related services that conform to the IDEA and its regulations and also “meet the education standards established by statute or…by regulations promulgated by the Board of Education.” G.L. c. 71B, Sec.1. Relevant case law defines FAPE as, among other things, educational services that enable the eligible child to derive educational benefit, and make meaningful progress in the areas identified as special needs, in light of the child’s potential. See generally, Hendrick Hudson Bd. of Education v. Rowley , 458 U.S. 176, 188-9, 203 (1992); Burlington v. Mass. Dept. of Education , 736 F.2d 773, 788 (1 st Cir. 1984); Lenn v. Portland School Committee , 998 F.2d 1083 (1 st Cir. 1993).
10
A recent BSEA decision contains an exhaustive listing of pertinent cases; see, In Re Dracut Public Schools, supra, BSEA No. 08-5330 (Crane, 2009)
11
I note that unlike some residential schools, Riverview does not offer a day option. (Titus, Wannie)
12
It is reasonable to allow for reimbursement through the end of the 2008-2009 academic year, even though the IEP was changed before the end of the school year, especially since the increase in the size of the peer group and other changes to ACHIEVE came into effect in the fall of 2009.