COMMONWEALTH OF MASSACHUSETTS
Division of Administrative Law Appeals
Bureau of Special Education Appeals
In Re: Douglas Public Schools
BSEA # 11-1312
DECISION
This decision is issued pursuant to the Individuals with Disabilities Education Act (20 USC 1400 et seq .), Section 504 of the Rehabilitation Act of 1973 (29 USC 794), the state special education law (MGL c. 71B), the state Administrative Procedure Act (MGL c. 30A), and the regulations promulgated under these statutes.
A hearing was held on October 28 and 29, 2010 at Catuogno Court Reporting offices, Worcester, MA before William Crane, Hearing Officer. Those present for all or part of the proceedings were:
Student’s Mother
Student’s Father
Lawrence Sauer Vice President for Student Programs and Services,
Cardinal Cushing Centers
Marilyn Engelman Educational Consultant
Barbara Russo Special Education Teacher, Douglas Public Schools (Douglas)
Jessica Hurley School Psychologist/Adjustment Counselor, Douglas
Shellie Wilson Director of Student Support Services, Douglas
Charles Vander Linden Attorney for Parents and Student
Alisia St. Florian Attorney for Douglas
Laurie Jordan Court Reporter
The official record of the hearing consists of documents submitted by the Parents and marked as exhibits P-1 through P-44, except P-28 and P-29; documents submitted by Douglas and marked as exhibits S-2 through S-33; and approximately two days of recorded oral testimony and argument. As agreed by the parties, oral closing argument occurred on November 3, 2010, and the record closed on that date.
I. INTRODUCTION
Because of his age (19.5 years old) and recent completion of 12 th grade, it is not disputed that a fundamental component of Student’s educational needs is services to facilitate his transition to post-secondary school activities. The central question to be addressed is whether Douglas’ program for older students is reasonably calculated to meet these educational needs; or, conversely, whether Student requires a residential placement to receive an appropriate education.
Throughout the course of the hearing, Parents made clear their admiration and respect for the Douglas staff who have taught and supported their son for many years with care and compassion. Parents fully accepted all IEPs through Student’s 12 th grade. Nevertheless, Parents now take the position that their son can gain no further meaningful benefit from a continuation in the Douglas Public Schools’ programs. They believe that he requires intensive, coordinated services tailored to his unique needs, that he must be provided the opportunity to learn social skills with an appropriate peer group, and that these opportunities are not available (and cannot be made available) within the Douglas Public Schools. Parents argue that their son can be appropriately served only through a residential placement and seek an order for placement at the Cardinal Cushing Centers’ residential program in Hanover, MA.
During the hearing, Douglas made clear its very high regard for Parents and their dedication to their son. Nonetheless, Douglas disagreed with Parents and took the position that its program established for older students, together with proposed additional services through the Horace Mann Educational Associates (HMEA), will appropriately educate Student by effectively providing him with all of the transition services recommended by Parents’ expert, Dr. Marilyn Engelman. These services would include functional academics, daily living skills instruction, vocational opportunities in the community, and home-based services. Douglas argues that these services are likely to allow Student to make substantial gains in areas critical to his successful transitioning from post secondary education to living and working in the community. Douglas further takes the position that even if Student requires an out-of-district program, there is insufficient basis to conclude that Student’s educational needs can only be served appropriately through residential services.
For reasons explained below, I have concluded that Student has unique educational needs that can only be addressed appropriately through residential services. I have further found that Cardinal Cushing’s residential program is an appropriate placement for Student.
Parents raised three compensatory claims pertaining to Douglas’ alleged failure to provide Student with what the IEP Team had purportedly agreed to or what was necessary to implement an agreed-upon IEP. For reasons explained below, I have found that Parents are not entitled to compensatory relief.
II. ISSUES
The prospective issues are the following:
1. Is the IEP most recently proposed by Douglas reasonably calculated to provide Student with a free appropriate public education in the least restrictive environment?
2. If not, can additions or other modifications be made to the IEP in order to satisfy this standard?
3. If not, would placement at the Cardinal Cushing Centers’ Hanover Residential Program satisfy this standard?
The compensatory issues are the following:
1. Did Douglas fail to implement agreed-upon vocational opportunities?
2. Did Douglas fail to ensure effective participation in an agreed-upon physical education program?
3. Did Douglas fail to effectively implement the last IEP when the primary instructor was absent for approximately six weeks near the end of the school year?
4. If so, are Parents entitled to compensatory relief; and if so, what compensatory relief should be ordered?
III. FACTS
A. Student’s Profile and Current Services
Student lives with his Mother and Father in Douglas, MA. He is 19 ½ years old and recently completed the 12 th grade at Douglas High School. He does not have any siblings. Student is under a court-appointed guardianship, with his Mother acting as guardian. Testimony of Mother, Father.
Student is happy, is good natured, almost never becomes discouraged, and will always keep trying. He loves to go to school, he loves his teacher from the past four school years (Ms. Russo), and he enjoys doing his homework. He particularly enjoys music in all forms, attends concerts (including country music concerts) with his Parents, and receives keyboard instruction. Testimony of Mother, Father.
Student has been diagnosed with substantial cognitive delays. The most recent cognitive testing (from 2007) found that Student’s full scale IQ was in the extremely low range, falling with the bottom 0.1 %ile when compared to his same-age peers although the evaluator noted that these scores were lower than prior evaluations and may not be accurate. Student has substantial language processing deficits, with extremely low auditory processing test scores. Student also has substantial attention deficits, frequently requiring monitoring by a teacher or staff person to remain focused. Student has a history of medical issues and has been diagnosed with a schizoaffective disorder that has required treatment with antipsychotic medications, although Student’s mental health issues appear to have stabilized over the past year or more. Testimony of Mother, Russo; exhibit P-9.
Taken together, Student’s impairments substantially affect his ability to learn. Specifically, these deficits make it difficult for Student to gain independence in academic and functional skills. He requires extensive amounts of review and repetition to gain mastery, and even then, Student may gain conceptual understanding of only the discrete task learned. For example, Student has made gains in spelling, but does not understand the meaning of many of the words he has learned to spell. Similarly, he has gained some understanding of the value of money, but continues to be unable to determine whether he is receiving the correct change when he purchases something. Student requires continuing reassurance and monitoring because of a lack of confidence and independence and because of his difficulty maintaining his attention on task. Testimony of Mother, Father, Russo, Engelman; exhibits P-9, P-24 through P-35 (except P-28, P-29), S-19 through S-28.
Student has severely limited social skills, particularly with peers. He enjoys being involved with people and participating in conversations and other social activities, but his social relations are almost entirely with adults. He understands neither how to start a conversation nor how to maintain it; all social situations are arranged by Parents. He has never had a friend his age; yet, more than anything he wants to have friends. Testimony of Mother, Father, Hurley, Engelman, Russo; exhibit P-9.
Student’s and Parents’ goals, as reflected within the most recent IEP, the most recent transition plan (included within the IEP for the period 5/17/10 to 5/15/11) and Parents’ testimony, is for Student to continue in school until his 22 nd birthday to work on life skills and to have vocational experiences both in the school setting and in the community. Parents would like their son to become as self-sufficient as possible, including living as independently as possible. Testimony of Father, Mother; exhibits S-8 (page 24 of 25), S-32 (page 3 of 25).
At the beginning of the current school year, Parents decided not to return Student to school and, instead, he has been accompanying his father in his landscaping business for several days each week and receiving instruction from a private occupational therapist at home. Parents made this decision because they believed that it would not be useful for their son to return to what they believe would be essentially the same educational program that he attended for each of his four years of high school. Testimony of Mother.
B. Most Recently-Proposed IEP
Student’s most recently-proposed IEP calls for him to attend Douglas’ Students Training and Reaching Success (STARS) program. STARS is designed specifically for older students, with a focus on developing vocational skills and teaching functional academics. Its stated purpose is to “provide a variety of experiences that will enhance each student’s academic, vocational and life skill needs in order to prepare the individual for successful and independent adult living in a community-based environment (supported employment and/or assisted living).” The classroom has been set up with equipment and materials appropriate for these purposes. Testimony of Russo; exhibit S-29.
During Student’s time in the STARS program, he would focus on current events through a review of the newspaper, and he would work on school jobs including supply delivery to classes, cleaning parts of the school, and office work if needed. There is also a designated “work module” for an hour each day. Each of the four quarters for this module would focus on a different vocational theme: office skills, culinary, janitorial responsibilities, and car care. There would also be an opportunity to work on activities of daily living skills, such as laundry, vacuuming, washing dishes, and an opportunity to work with the school janitor. As part of the curriculum, there is generic training in social skills in the workplace, including role play. There would also be opportunities for community trips—for example, to the mall, a hospital, and a pharmacy. Testimony of Russo; exhibits S-4, S-32.
The STARS program is designed to be flexible so that the individual needs of each student can be met, with the likelihood that Student’s time in the community would increase over time. It is anticipated that Student would participate in this program for two or three days per week, with the remainder of the week taken up by instruction through Horace Mann Educational Associates (HMEA), as discussed immediately below. Testimony of Russo.
Student’s IEP includes a likely contract with HMEA to provide transitional community services in the form of a job coach, accompanying Student to a series of employment sites in the community. The job coach would introduce the job and show Student what to do. The job coach would always be present with Student, working along with Student, facilitating communication, and teaching Student new skills once earlier skills are mastered. Communication between HMEA and Douglas would typically include a weekly e-mail from HMEA and quarterly reports, together with informal discussions when Student was picked up at school. HMEA would also provide home services to Student for the purpose of teaching him daily living skills in his own home—for example, light cooking, laundering, and buying food. Testimony of Crosby, Wilson, Russo; exhibit S-32.
C. Educational History
At the end of the last school year (2009-2010), Student completed 12 th grade. He participated in the high school graduation but did not receive a diploma. Testimony of Mother.
During his four years of high school, Student attended the same, substantially-separate classroom with the same teacher (Ms. Russo) for most of his instruction. Student has been very comfortable within this classroom and has developed an excellent rapport with Ms. Russo. Testimony of Mother, Father, Russo, Engelman.
Over the four high school years, Ms. Russo worked on basic academic skills, including language arts, history, science, and math (personal finance). Student generally made little progress and did not gain independent mastery in areas of study, except with respect to isolated skills such as spelling and computer word searches where he could rely upon rote memory. He also did well with certain discrete vocational tasks that were repeated many times, such as cleaning parts of the school building (wiping tables, trash disposal, sweeping), copying, and delivering notices and other papers to classrooms. Testimony of Russo; exhibits P-9, P-24 through P-35 (except P-28, P-29), S-19 through S-28.
During the last school year, Douglas’ school psychologist/adjustment counselor (Ms. Hurley) used a social skills curriculum to work with Student on his conversational skills. Ms. Hurley worked on such issues as tone of voice, appropriate space between people in the conversation, taking turns and how to interrupt appropriately. Ms. Hurley testified that with cuing and reminders, Student was able to demonstrate with other adults some of the skills he was learning, but he had difficulty generalizing these skills so as to be able to use them independently. This instruction was provided on a 1:1 basis. Testimony of Hurley.
Over the course of high school, there were a number of evaluations and an outside observation. In August 2007, Melinda Warner, EdD, conducted a neuropsychological evaluation that included standardized testing, review of school and medical records and an interview with Parents. This assessment noted Student’s substantial cognitive, language-processing, social and attentional deficits. The evaluator opined that Student “has not been in an educational setting that is set up to provide the level of support appropriate for a student with the degree and complexity of learning impairment with which he presents.” Exhibit P-9 (page 17).
In January, February and March 2008 as part of his three-year re-evaluation, Student’s special education teacher (Ms. Russo) conducted special education testing, focusing on academic achievement. Test results included test scores at 10 th percentile in basic reading skills, the 1 st percentile in reading comprehension, and the 0.1 percentile in mathematics reasoning. Exhibit S-19.
In April 2009, Easter Seals of Massachusetts conducted an evaluation to determine Student’s vocational strengths, limitations and interests for purposes of further vocational planning. The evaluation found that Student has a strength and appears to perform well on rote tasks when provided adequate structure and direction, he has some keyboarding skills and familiarity with computer functions, he has basic money skills, and he is polite, cooperative and persevering. With respect to weaknesses, the report concluded that Student “appears to have had limited exposure and preparation of a vocational nature, his language and processing deficits often result in misunderstanding, he is easily distracted, and his reading comprehension and arithmetic skills are “quite deficient”. The report recommended that Douglas place more emphasis on activities geared toward his vocational development and noted that continued development of vocational skills that will increase his independence should occur while Student remains in school. Exhibit P-11 (pages 11-13).
On March 17, 2010, Marilyn Engelman, PhD, Educational Consultant, observed Student in his special education classroom at Douglas High School for several hours. In addition, Dr. Engelman reviewed records, including previous evaluations and IEPs, and spoke with Student’s teacher, Ms. Russo. Dr. Engelman considered whether she should conduct further testing and determined that additional testing was not needed in light of Student’s disabilities and past assessments. Dr. Engelman prepared a written report that describes her record review, observation and educational recommendations. Testimony of Engelman; exhibit P-7.
Dr. Engelman testified that Student’s cognitive deficits combined with auditory processing difficulties resulted in his need for substantial amounts of review and repetition, with instruction consistently carried on throughout the day and evening. She also testified as to the importance of Student’s learning with a larger number of appropriate peers, both during the school day and during the evenings and weekends. Her testimony and written report called for Student to be placed in a residential educational program. Testimony of Engelman; exhibit P-7.
IV. DISCUSSION
A. Legal Standards Regarding FAPE and Transition Services
It is not disputed that Student is an individual with a disability, falling within the purview of the federal Individuals with Disabilities Education Act (IDEA)1 and the Massachusetts special education statute.2
The IDEA was enacted “to ensure that all children with disabilities have available to them a free appropriate public education [FAPE] ….”3 Under FAPE standards, proposed special education and related services must be “reasonably calculated to enable [Student] to receive educational benefits.”4
FAPE does not require a school district to provide special education and related services that will maximize Student’s educational potential.5 And, the educational services need not necessarily be “the only appropriate choice, or the choice of certain selected experts, or the child’s parents’ first choice, or even the best choice.”6
Rather, FAPE is intended to assure “meaningful access to the public schools”7 and to provide a “federal basic floor of meaningful, beneficial educational opportunity”.8 Student’s right to FAPE is assured through the development and implementation of an individualized education program or IEP.9 An IEP must be custom-tailored to address Student’s “unique” educational needs.10
FAPE is defined by the IDEA to include state educational standards,11 which may exceed the federal floor .12 Massachusetts standards require that Student’s IEP include special education and related services designed to allow him to make effective progress.13 The IDEA and First Circuit case law also reference an effectiveness standard.14 Federal case law clarifies that “levels of progress must be judged with respect to the potential of the particular child.”15 Massachusetts standards further require that special education services be “ designed to develop the [student’s] educational potential” .16
Because of Student’s age (19.5 years old) and his completion of 12 th grade, it is not disputed that I should also consider legal standards specifically relevant to Student’s right to services that will allow him to transition to post-secondary school activities.17
A principal purpose of the IDEA is “to ensure that all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to … prepare them for further education, employment, and independent living.”18 The Supreme Court has noted that in enacting the IDEA, Congress endeavored to enable disabled students to “achieve a reasonable degree of self-sufficiency” and “become productive citizens, contributing to society instead of being forced to remain burdens.”19
Within this context , Congress added a requirement to the IDEA that local school districts provide so-called “transition services” and “transition planning” to “improv[e] the academic and functional achievement of the [student] to facilitate [his or her] movement from school to post-school activities, including post-secondary education, vocational education, integrated employment (including supported employment), continuing and adult education, adult services, independent living, or community participation.”20
Transition services include “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.”21
Transition services must be “based on the individual child’s needs, taking into account the child’s strengths, preferences, and interests” and must be developed through a “results-oriented process.”22
A related Massachusetts regulation requires a school district to make services available to older special education students that “include continuing education; developing skills to access community services; developing independent living skills; developing skills for self-management of medical needs; and developing skills necessary for seeking, obtaining, and maintaining jobs. . . .23
In Lessard , the First Circuit considered transition services, concluding that FAPE principles apply in the determination of their appropriateness.24 The Court found that transition services must be considered “in the aggregate and in light of the child’s overall needs.”25 “The test is whether the IEP, taken in its entirety, is reasonably calculated to enable the particular child to garner educational benefits.”26
In Lessard , central to the Court’s determination that the transition services were appropriate was its finding that, as a result of receiving these transition services, “[student’s] transition skills were improving.”27 Similarly, Congress has noted the importance of providing “effective” services to allow for a student’s “successful” transition to postsecondary activities.28 Federal courts have affirmed the importance of transition services in allowing a student to have a meaningful or effective opportunity to become prepared for post-high school education, employment, and independent community living.29
In sum, Douglas must provide Student with transition services that are reasonably calculated to be effective “to facilitate [his] movement from school to post-school activities”.30 For this purpose, the transition services must be “based on [his] individual … needs, taking into account [his] strengths, preferences, and interests.”31 At the same time, transition services need not maximize Student’s potential; and they need not necessarily be the choice of certain selected experts, Parents’ first choice, or even the best choice.
Parents have the burden of persuasion on all issues.32
B. Appropriateness of Douglas’ Most Recent IEP
I first consider whether Douglas’ most recently-proposed IEP, which is for the period 8/31/10 to 5/16/11, is reasonably calculated to provide Student with FAPE, including appropriate transition services. Exhibit S-32.
It is undisputed that Student’s social skills for purposes of communicating and interacting with his peers are largely undeveloped and have remained at essentially the same level
over the course of his four years at Douglas High School, even though the development of reciprocal conversation skills has been an IEP goal since 2008. Parents explained the virtual inability of their son to relate on a social basis to others his age. Dr. Engelman testified how, during her observation of Student at school, Student had no meaningful discussions or interactions with any peer. Father, who has observed his son both in social situations and within the context of helping out in his business, persuasively testified that Student’s skills in this area have remained “flat”—that is, virtually undeveloped and without any improvement over the past number of years. This testimony was undisputed by Douglas. Testimony of Hurley, Russo, Father, Engelman.
It was undisputed that Student did not have a meaningful peer group at Douglas. Dr. Engelman testified that, at best, there were two other students who might be appropriate peers for Student last year at school. She explained that of the four students with whom Student was grouped at school, two did not have communication skills that would permit them to have meaningful communication with Student.
During the current school year, some or all of the four students from the previous year plus one additional student would be taught within the program proposed for Student. The language skills of that one additional student are at the 18 to 29 month level and her language communication is principally through single words, making it highly unlikely that she may be considered a peer for Student for purposes of having meaningful communication. Testimony of Russo; exhibit P-39.
Student has not developed a meaningful relationship with any students at school, nor has he developed a meaningful relationship with any peers outside of school, with the possible exception of one of his cousins, even though doing so is of very high importance to Student. Testimony of Mother, Russo.
To date, Student has relied entirely on adults—particularly, his classroom teacher (Ms. Russo) and his Mother—not only for learning but also for approval and support. He has not been given the opportunity to learn from peers, nor would he be provided this opportunity under Douglas’ most recently-proposed IEP simply because there is no appropriate peer group for Student at Douglas. Testimony of Engelman, Russo, Mother, Father.
Dr. Engelman testified persuasively that generally in order for Student to make effective progress in school, he must have an opportunity to learn from and with peers. In order for this to occur, he must have frequent opportunities to interact with his peers in a variety of settings—for example, during vocational activities, academic instruction as well as social situations—with learning occurring as situations arise on a daily basis. Testimony of Engelman.33
Dr. Engelman’s credible and largely-unrebutted testimony was that this is particularly true for social pragmatic skills. In order for Student to develop skills necessary for living and working in the community, it is essential that he develop social skills, particularly pragmatic skills needed to communicate and interact appropriately and meaningfully with his peers; and further that in order for Student to have the opportunity to develop these skills, it is imperative that he interact socially with and that he learn with a substantially larger group of peers than is available within the Douglas Public Schools. Thus, Douglas’ proposal of instruction with two peers in the classroom and participation in a possible social skills group with his peers is not sufficient. Testimony of Engelman.
Douglas’ proposed IEP’s shortcoming in this regard cannot be remedied within the school system because there are insufficient peers to form a meaningful peer group at Douglas. In addition, Douglas’ IEP calls for much of the instruction to occur without peers—for example, HMEA is structured so that all of its vocational work is done with Student working 1:1 with a job coach without peers. Douglas has no apparent ability to remedy these shortcomings. Testimony of Crosby.
Looking more broadly at Student’s educational and transition needs, Dr. Engelman testified and her report reflects (and it was not disputed by Douglas) that the focus of Student’s special education services should be the development of functional academics, vocational skills, self-care abilities, independence skills, and self-advocacy. Even where Douglas has focused on the development of a particular functional skill over a period of years, Student has made negligible progress in being able to perform the skill independently.
For example, as reflected within his IEPs going back to the 9 th grade, Student has had a goal or benchmark of using money to make purchases, including counting out the correct amount of money needed. Over the course of four years, the benchmark/goal has changed only with respect to the amount of money involved, with the result that Douglas continues to work with Student on the same skill of recognizing the amount of money needed for the purchase. Ms. Russo testified that with respect to these and other skills taught by Douglas regarding functional math and personal finance, Student has gained knowledge but not the ability to utilize the skill independently—he continues to require the presence of an adult to cue him to perform the task correctly. Similarly, Father testified that currently, Student cannot independently purchase an item in a store since he would not know if he had received the correct change. Testimony of Russo, Father; exhibits P-3 (page 10), P-35 (page 3.
Over the course of high school, Student has made sufficient progress to demonstrate a skill independently only with respect to certain isolated skills—for example, discrete vocational tasks. In a pre-vocational workshop setting, Student has been able to learn how to independently do certain discrete, isolated tasks after approximately six months of daily practice. This has been essentially rote learning that cannot be applied more generally and has not allowed him to know what to do when he has finished a task. Father testified to a similar experience when his son helps out in Father’s business—his son has been able to learn only discrete, isolated tasks, such as transporting dirt with a wheelbarrow, without understanding how this task relates to anything else. Similarly, Student has been able to gain independent mastery of more spelling words, demonstrating modest gains in this isolated rote skill area, without necessarily knowing the meaning of the word that he is spelling. In addition, Student has gained independent mastery regarding word searches on the computer. Ms. Russo testified that there were no other areas where he gained independent mastery during his four years of high school. Testimony of Engelman, Russo, Father; exhibit S-19.
Student’s course of study would change if he were to enter the STARS program because there would be a greater focus on functional academics and vocational skills. Nevertheless, a review of the relevant IEPs, together with the testimony from Ms. Russo, indicated that the teacher, classroom, peers, accommodations and teaching methodologies would remain largely the same. There is no basis for concluding that Student would make greater gains within the STARS program than he made during his high school years. Testimony of Russo, Engelman; exhibits P-3, S-32.
Dr. Engelman’s testimony was persuasive that in order for Student to make effective progress commensurate with his learning potential and move beyond the past learning only of isolated skills, Student requires an extensive amount of review and repetition, combined with consistency of teaching across the learning spectrum. Thus, for example, with respect to all of Student’s vocational and academic learning, the same vocabulary should be used, the same skills should be taught and reinforced, and the same teaching style should be utilized throughout the day. Dr. Engelman explained that because of Student’s combination of cognitive and auditory processing, such a systematic and coordinated approach is required to provide sufficient intensity, consistency and reinforcement of instruction in order for him to learn effectively.
Douglas has argued that its proposed program for Student offers many of the ingredients for teaching a student functional academics and vocational skills. This may be correct. But, what its program is missing is the integration of teaching sufficient to provide the review, repetition and consistency recommended by Dr. Engelman. If anything, the proposed IEP provides less integration than Student’s high school educational program. For example, the HMEA representative (Ms. Crosby) testified that the vocational services that would be provided to Student two days each week are an entirely separate learning experience that includes only minimal coordination and feedback with Douglas (for example, a daily e-mail from HMEA to Douglas and informal feedback). Of course, Douglas could seek to increase this through negotiations with HMEA, but Ms. Crosby’s testimony made clear that HMEA is structured as essentially a separate, stand-alone service. Without the level of integration recommended by Dr. Engelman, Student’s learning will likely continue at the same pace and with the same limitations as during the four high school years.
As discussed above in part IVA, Douglas has no responsibility to maximize Student’s educational progress or development, or to provide what is best for Student. Yet, as also discussed above in part IV A, Massachusetts and federal standards require that a proposed educational program be reasonably calculated to develop Student’s educational potential and to be reasonably calculated to result in effective educational progress in skills that facilitate his transition to the community.
Where Student’s progress over many years has been de minimis, and where a different educational structure, in combination with an appropriate peer group, is necessary to increase Student’s educational potential for learning so as to allow him to make effective progress, the above discussed Massachusetts and federal FAPE standards require Douglas to provide that different educational structure.
For these reasons, I find that Douglas’ proposed IEP is not reasonably calculated to provide Student with FAPE. I further find that the IEP cannot be made appropriate through additions or other modifications, with the result that Student requires an out-of-district placement in order to receive FAPE.
C. Need for Residential Services
I turn to the question of whether Student is entitled to receive educational services through a residential placement.
Under both federal and Massachusetts law, FAPE must be provided in the least restrictive environment. The phrase “least restrictive environment” means that, to the maximum extent appropriate for the particular student, the student is to be educated with other students who do not have a disability.34 A residential placement is properly considered more restrictive than a day program, even when the day program places Student in a substantially separate special education program.35 The appropriate standard, as reflected within several First Circuit decisions, is whether the educational benefits to which Student is entitled can only be provided through around-the-clock special education and related services, thus necessitating placement in an educational residential facility.36
As discussed above in part IVB, I am persuaded that Student requires an integrated, consistent educational program that includes substantial review and repetition. The remaining question is whether Student can develop his educational potential and make effective progress through the provision of such an educational model in a day program or whether this can only occur through residential services.
Educational services must be proposed for Student based upon his current level of deficits and his current circumstances. Over the past four years, Student has made minimal progress in developing his independence. As noted above, Student has been relying entirely on adults—particularly, his classroom teacher (Ms. Russo) and his Mother—not only for learning but also for approval and support. Student has become over-dependent on these two people, almost continually seeking their approval when he is working on something or doing a task at home or at school. He often seeks permission even to do routine things for which no permission is needed. Parents testified that, in this regard, Student appears to have become even more dependent on adults (and less independent) than he had been in the past. Student currently has virtually no ability to make independent decisions. Testimony of Mother, Father, Engelman, Wilson.
In this regard, Mother’s testimony is illustrative:
I’m finding in the past year anyhow, he constantly has to be reassured for everything. Something simple, he makes a phone call to request a song, did I do it right? Was that okay? Did I say it right? Or if he wants to do something, he will ask permission to do the same thing, to get up from the dinner table to go to the bathroom, to get a glass of milk. Just in the middle of the afternoon, he will ask permission to do everything. He doesn’t need to ask permission and he never use to. But for some reason this past year, his self-confidence or something has just not been there for some reason. [Transcript vol. I, p. 248.]
It is not disputed that in order for there to be any meaningful opportunity for Student to gain greater independence for purposes of post-secondary activities, he needs to become less dependent on his Parents.
Also as discussed above, Douglas has sought to develop Student’s skills and abilities during at least the past four years with very limited success. Student has developed almost no independent functional skills—for example, he cannot perform independently such basic tasks as buying something from a store. Similarly, Student has made virtually no progress learning to communicate appropriately with his peers—social pragmatic skills that are essential to his functioning more independently in a supported living environment and in employment. As a result, Student is at the very beginning stages of learning skills that he will need in order to have any degree of independence after his post-secondary education.
It is also relevant that Student is 19 ½ years old. Parents have fully accepted all previous IEPs and therefore do not make a claim for compensatory services for any failure to provide an appropriate IEP in the past. Nevertheless, one cannot ignore the simple truth that Student’s special education entitlement will end within 2 ½ years. Proposed educational services must take into account Student’s current level of abilities, his potential to make gains, and the relatively small window of opportunity for Student to make progress. In other words, there is no time to try out educational models that are not likely to succeed.
It was within this context that Dr. Engelman concluded that because of Student’s unique combination of disabilities (in particular, his cognitive limitations and auditory processing deficits) and his level of need and ability to develop appropriate skills, an around-the-clock level of continuity and carryover of instruction (including sufficient review and repetition) is critical for Student to make effective progress.
As Dr. Engelman made clear, Student has the potential to make substantially greater progress than has been demonstrated throughout his high school years. Dr. Engelman envisions Student learning to live independent of his Parents and believes that Student can learn independent work skills for purposes of future employment. For these purposes, Dr. Englander testified that Student needs (and is able) to learn more than the isolated, splinter skills that he has mastered so far, that would be of little practical usefulness to Student, and that have left him completely dependent on his Parents and teacher. More specifically, Dr. Englander explained that with appropriate residential educational services, Student can learn how to interact with his peers appropriately (including sharing, participating in recreational activities, and having a relationship with his peers), how to live with his peers appropriately in a supervised community residence, and how to work appropriately with his peers.37
Dr. Engelman made clear what would likely be lost if a less comprehensive education program were to be implemented, which is that there would be no effective opportunity for Student to generalize learned skills. She further explained that without the continuity and carry-over of a 24-hour educational program and without the opportunity to learn these skills in every part of the day (including at the residence and during the weekends), Student is unlikely to learn skills in a way that can be generalized to (and therefore be useful to him in) the home and community, including supported employment and assisted living.
Dr. Engelman’s written report further explained this point as follows:
Of even more importance is [Student’s] ability to be with peers during the school day, weekends and summers. He needs to have a peer group with whom he can relate and in which he can participate in a variety of activities. …
He needs to be part of a community environment where there are evening and weekend activities. He needs to learn independence through a structured 24-hour environment. He needs the continuity so that he can learn the skills to integrate these skills into his daily life, including vocational, daily living and recreational activities.
Exhibits P-7, S- (page 10). Douglas provided no effective rebuttal to Dr. Engelman in this regard.
I find that within the context of transition skills, where Student’s learned skills are only useful to him if they can be applied outside of the secondary school context, Dr. Engelman appropriately emphasized the importance of providing educational services that are reasonably calculated to help Student to generalize the skills that he learns.38 Douglas’ own program (STARS) description made clear the essential importance of learning skills that can be applied successfully in the community. See Exhibit S-29 (page 1) (“program was designed to provide a variety of experiences that will enhance each student’s academic, vocational and life skill needs in order to prepare the individual for successful and independent adult living in a community-based environment (supported employment and/or assisted living”). This is true particularly where, as here, the skills being addressed (such as social skills, pragmatic communication, basic independent living skills, and basic vocational skills) are critical to Student’s making effective progress towards having any degree of independence in the community.39
I find that generalization of skills is required in order for Student to make effective progress. I further find that residential services are both appropriate and necessary for this purpose. Several courts have similarly concluded.40
In sum, I conclude that the educational benefits to which Student is entitled can only be provided through around-the-clock special education and related services, thus necessitating placement in an educational residential facility.41
D. Appropriateness of Cardinal Cushing
Having concluded that Student must be educated within a residential placement, I consider whether Parents’ proposed placement of Cardinal Cushing is appropriate for this purpose.
Although Douglas has not conceded the appropriateness of Cardinal Cushing, there can be little serious debate regarding this issue. A residential placement at Cardinal Cushing would likely provide him with an opportunity to make effective progress socially, vocationally and academically by learning many skills that will be indispensable for his transition to post-secondary school activities. In sum, it seems highly likely that he will flourish at Cardinal Cushing. I reach these conclusions for the following reasons.
Student’s educational profile fits well within the student population at Cardinal Cushing where all of their 120 students have been diagnosed with cognitive delay. Within this student population, there would likely be a large number of students who would be appropriate peers. Both for purposes of school and for purposes of residential services, Student would be placed with other young adults with communication and functional abilities compatible with his abilities, thus allowing Student to attend school and socialize throughout the day and evenings with an appropriate peer group. He would be with six other peers in the classroom and with four or five other male peers in his residence. Testimony of Sauer; exhibits P-12, P-13, P-17.
Cardinal Cushing is structured to provide the level of integration of teaching, consistency, review and repetition required by Student to make effective progress. Cardinal Cushing provides intensive vocational and functional academic instruction in an integrated manner. Social skills, including social pragmatics, is taught within the classroom. Importantly, the social skills instruction (involving the entire range of social skills needed by someone of Student’s age) continues informally throughout the day and evening. In addition, during the evening and weekend hours, Student would receive instruction and supervision regarding all of the activities involved in a home, including grocery shopping, cooking, and recreational opportunities. All Cardinal Cushing staff are trained to use the same instructional language and teaching style in order to ensure consistency of instruction across all settings. Dr. Engelman, who has observed Cardinal Cushing with respect to other students, testified that it provides the level of consistency, continuity, and intensity of instruction required by Student. Testimony of Sauer; exhibits P-12, P-13, P-17, P-18.
Student has been accepted by Cardinal Cushing to attend its residential program. He also spent 2 ½ days on campus, participating in the residential program. This was a very positive experience for Student. Testimony of Sauer, Mother, Father; exhibits P-15, P-16.
For these reasons, I find Cardinal Cushing to be an appropriate residential placement for Student.
E. Compensatory Claims
Parents seek compensatory relief. Compensatory services are a discretionary remedy to make up for a student’s not receiving the special education and related services to which he is entitled.42
Parents’ first two compensatory claims are that Douglas failed to do what its IEP said it would do—that is, to implement agreed-upon vocational opportunities and to ensure effective participation in an agreed-upon physical education program. Parents do not allege that the IEP was inappropriate (Parents fully accepted the IEPs), nor do Parents allege that an agreed-upon IEP was not fully implemented. Rather, Parents seek to establish a right to services by an oral agreement of the Team where this agreement is reflected neither within the four corners of the IEP nor within any written agreement entered into between Parents and Douglas.
Parents argue that there must be some viable legal theory, perhaps through detrimental reliance, that permits Parents to force Douglas to compensate Student for not doing what was allegedly agreed upon by the IEP Team. I am not persuaded. My reasoning follows.
In other, unrelated disputes, I have concluded that I may consider an agreement between a school district and parents for purposes of determining the school district’s responsibilities and the parents’ entitlements regarding special education and related services for a student.43 Yet, in the present dispute, there is no agreement between Douglas and Parents.
At most, there is an oral agreement between Parents and the IEP Team members that occurred during an IEP Team meeting. Parents could have sought to insist that what was agreed upon orally be reflected within the written IEP so that the IEP could be enforced if necessary. But, Parents accepted the written IEPs in their entirety, notwithstanding that the IEPs did not reflect what Parents believed had been agreed upon. Therefore, Parents must look beyond the four corners of the IEP document to find their agreement.
There was no evidence that there were obvious gaps in any of the written IEPs or that an IEP was otherwise so incomplete as to support an argument that one should look to extrinsic evidence to determine its contents.44 There are many cases involving alleged failure of a school district to implement an IEP,45 but I am not aware of any case law that supports Parents’ contention that as a general rule, I may go beyond the four corners of the IEP to determine Douglas’ responsibilities to Student, and I decline to do so.46
The third and final compensatory claim is that Douglas failed to effectively implement the last IEP when the primary instructor was absent for approximately six weeks near the end of the school year. Parents failed to carry their burden of persuasion on this issue. Parents established that the classroom teacher (Ms. Russo) was absent during this period of time, but it is not disputed that Douglas assigned a substitute teacher, and Parents failed to show that Student’s IEP was not implemented by the substitute teacher during this time period. Testimony of Mother, Russo, Wilson.
For these reasons, I decline to order Douglas to provide any compensatory relief.
V. ORDER
The IEP most recently proposed by Douglas is not reasonably calculated (and the IEP cannot be modified so that it would be reasonably calculated) to provide Student with a free appropriate public education in the least restrictive environment.
Residential services are necessary to provide Student with a free appropriate public education in the least restrictive environment. Placement at the Cardinal Cushing Centers’ Hanover Residential Program is appropriate.
Douglas shall immediately (1) amend its most recently proposed IEP to provide for a residential placement at the Cardinal Cushing Centers’ Hanover Residential Program and (2) place Student at said Residential Program.
Parents are not entitled to any compensatory relief.
By the Hearing Officer,
William Crane
Dated: November 17, 2010
COMMONWEALTH OF MASSACHUSETTS
Division of Administrative Law Appeals
Bureau of Special Education Appeals
THE BUREAU’S DECISION, INCLUDING RIGHTS OF APPEAL
Effect of the Decision
20 U.S.C. s. 1415(i)(1)(B) requires that a decision of the Bureau of Special Education Appeals be final and subject to no further agency review. Accordingly, the Bureau cannot permit motions to reconsider or to re-open a Bureau decision once it is issued. Bureau decisions are final decisions subject only to judicial review.
Except as set forth below, the final decision of the Bureau must be implemented immediately. Pursuant to M.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 obtain 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”. 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. Honig v. Doe , 484 U.S. 305 (1988); Doe v. Brookline , 722 F.2d 910 (1st Cir. 1983).
Compliance
A party contending that a Bureau of Special Education Appeals decision is not being implemented may file a motion with the Bureau contending that the decision is not being implemented and setting out the areas of non-compliance. The Hearing Officer may convene a hearing at which the scope of the inquiry shall be limited to the facts on the issue of compliance, facts of such a nature as to excuse performance, and facts bearing on a remedy. Upon a finding of non-compliance, the Hearing Officer may fashion appropriate relief, including referral of the matter to the Legal Office of the Department of Education or other office for appropriate enforcement action. 603 CMR 28.08(6)(b).
Rights of Appeal
Any party aggrieved by a decision of the Bureau of Special Education Appeals may file a complaint in the state 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).
An appeal of a Bureau decision to state superior court or to federal district court must be filed within ninety (90) days from the date of the decision. 20 U.S.C. s. 1415(i)(2)(B).
Confidentiality
In order to preserve the confidentiality of the student 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.
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 federal law, upon receipt of a written request from any party, the Bureau of Special Education Appeals will arrange for and provide a certified written transcription of the entire proceedings by a certified court reporter, free of charge.
1
20 USC 1400 et seq .
2
MGL c. 71B.
3
20 USC 1400(d)(1)(A). See also 20 USC 1412(a)(1)(A).
4
Bd. of Educ. of the Hendrick Hudson Central Sch. Dist. v. Rowley, 458 U.S. 176, 207 (1982).
5
Rowley, 458 U.S. at 197, n.21 (“ Whatever Congress meant by an “appropriate” education, it is clear that it did not mean a potential-maximizing education.”).
6
G.D. v. Westmoreland Sch. Dist., 930 F.2d 942, 948 (1 st Cir. 1991). See also Lt. T.B. ex rel. N.B. v. Warwick Sch. Com., 361 F.3d 80, 83 (1 st Cir. 2004) (“IDEA does not require a public school to provide what is best for a special needs child, only that it provide an IEP that is ‘reasonably calculated’ to provide an ‘appropriate’ education as defined in federal and state law.”).
7
Cedar Rapids Community School Dist. v. Garret F. ex rel. Charlene F ., 526 U.S. 66, 79 (1999) (IDEA dispute “is about whether meaningful access to the public schools will be assured”). See also Irving Independent School District v. Tatro , 468 U.S. 883, 891 (1984) (“Congress sought primarily to make public education available to handicapped children and to make such access meaningful”) (internal quotations omitted ); Board of Ed. of Hendrick Hudson Central School Dist., Westchester Cty. v. Rowley, 458 U.S. 176, 192 (1982) (“in seeking to provide … access to public education, Congress did not impose upon the States any greater substantive educational standard than would be necessary to make such access meaningful”).
8
See Murphy v. Timberlane Regional School Dist . 22 F.3d 1186, 1196 (1 st Cir. 1994) (referencing IDEA standard of a “federal basic floor of meaningful, beneficial educational opportunity”) ; Town of Burlington v. Dep’t of Educ ., 736 F.2d 773, 789 (1st Cir. 1984) (same), aff’d 471 U.S. 359 (1985) ; DB v. Sutton, 07-cv-40191-FDS (D.Mass. 2009) ( “meaningful progress … is the hallmark of educational benefit under the [federal] statute”); Hunt v. Bureau of Special Education Appeals , 109 LRP 55771, CA No. 08-10790-RGS (D.Mass. 2009) (“ School districts provide a FAPE by designing and implementing an IEP ‘reasonably calculated’ to insure that the child receives meaningful ‘educational benefits’ consistent with the child’s learning potential” citing Rowley ) . A number of federal circuit courts have adopted a meaningful benefit standard. See, e.g., Houston Independent School Dist. v. V.P. ex rel. Juan P . 582 F.3d 576, 583 (5 th Cir. 2009); T.R. v. Kingwood Twp. Bd. of Educ., 205 F.3d 572, 577 (3d Cir.2000) (Alito, J.).
9
20 USC 1414(d)(1)(A)(i)(I)-(III); Honig v. Doe, 484 U.S. 305, 311-12 (1988) ; Bd. of Educ. of the Hendrick Hudson Central Sch. Dist. v. Rowley, 458 U.S. 176, 182 (1982).
10
20 USC 1400(d)(1)(A) (IDEA enacted “to ensure that all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living”); 20 USC 1401(9), (29) ( “free appropriate public education” encompasses “special education and related services,” including “specially designed instruction, at no cost to Parents, to meet the unique needs of a child with a disability”); Honig v. DOE , 484 U.S. 305, 311 (1988) (FAPE must be tailored “to each child’s unique needs”); Lessard v. Wilton Lyndeborough Cooperative School Dist. , 518 F.3d 18, 23 (1 st Cir. 2008) (noting the school district’s “ obligation to devise a custom-tailored IEP”); 603 CMR 28.02 (20) (“ Special education shall mean specially designed instruction to meet the unique needs of the eligible student or related services necessary to access the general curriculum and shall include the programs and services set forth in state and federal special education law.”).
11
20 USC 1401(9)(b); Winkelman v. Parma City School Dist., 127 S.Ct. 1994, 2000-2001 (2007) (“education must … meet the standards of the State educational agency”).
12
Mr. I. v. Maine School Administrative District No. 55, 480 F.3d 1 , 11 (1 st Cir. 2007) (state may “ calibrate its own educational standards, provided it does not set them below the minimum level prescribed by the [IDEA]”) .
13
See 603 CMR 28.05 (4) (a) and (b) (IEP must include “specially designed instruction to meet the needs of the individual student” and to include “specially designed instruction or related services … designed to enable the student to progress effectively in the content areas of the general curriculum.”). See also IEP form mandated for all Massachusetts school districts by the Massachusetts Department of Elementary and Secondary Education, at pages 2 of 8 and 3 of 8, which may be found at http://www.doe.mass.edu/sped/iep/forms/word/IEP1-8.doc (requiring each school district to include within the IEP the specially-designed instruction “necessary for the student to make effective progress” both in the general curriculum and in “other educational needs” including, communication, behavior, language, and social/emotional needs). See also exhibits P-2, P-3, P-4, P-5, P-6, S-7, S-11, S-14, S-17, S-32 (describing the specially-designed instruction proposed as “necessary for the student to make effective progress”).
14
See 20 USC 1400(d)(4) (purposes of this title are . . . to assess, and ensure the effectiveness of , efforts to educate children with disabilities” (emphasis added); North Reading School Committee v. Bureau of Special Education Appeals, 480 F.Supp.2d 479, 489 (D.Mass. 2007) (educational program “must be reasonably calculated to provide effective results and demonstrable improvement in the various educational and personal skills identified as special needs”), quoting Lenn v. Portland Sch. Comm., 998 F.2d 1083, 1090 (1 st Cir. 1993) and Town of Burlington v. Dep’t of Educ., 736 F.2d 773, 788 (1 st Cir. 1984), aff’d
471 U.S. 359, 105 S.Ct. 1996, 85 L.Ed.2d 385 (1985)
.
15
Lessard v. Wilton Lyndeborough Cooperative School Dist. , 518 F.3d 18, 29 (1 st Cir. 2008). See also Rowley , 458 U.S. at 202 ( “ benefits obtainable by children at one end of the spectrum will differ dramatically from those obtainable by children at the other end, with infinite variations in between ”).
16
MGL c. 71B, s. 1 ( term “special education” defined to mean “educational programs and assignments including, special classes and programs or services designed to develop the educational potential of children with disabilities.”). See also MGL c. 69, s. 1 (“paramount goal of the commonwealth to provide a public education system of sufficient quality to extend to all children the opportunity to reach their full potential ”); 603 CMR 28.01(3) (the stated purpose of Massachusetts special education regulations is “to ensure that eligible Massachusetts students receive special education services designed to develop the student’s individual educational potential.”).
17
Under the IDEA, the IEP must include transition services within each IEP beginning not later than the first IEP to be in effect when the student is 16, and updated annually thereafter. See 20 USC § 1414 (d)(1)(A)(i)(VIII; 34 CFR §300.320(b). By statute, Massachusetts lowered the age to 14 years old for beginning transition services. See MGL c. 71B, s. 2, as amended by Chapter 285 of the Acts of 2008.
18
20 U.S.C. § 1400(d)(1)(A) (the 2004 amendments to the IDEA added the phrase “further education”). See also 20 USC 1412(a)(1)(A).
19
Rowley , 458 U.S. at 201, n.23. See also Deal v. Hamilton County Bd. of Educ ., 392 F.3d 840, 864 (6th Cir. 2004) (“At the very least, the intent of Congress appears to have been to require a program providing a meaningful educational benefit towards the goal of self-sufficiency, especially where self-sufficiency is a realistic goal for a particular child.”).
20
See 20 U.S.C. § 1401(34), which provides the following definition of transition services:
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 (including supported 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.
See also 24 C.F.R. § 300.43 (providing a similar definition of transition services).
21
20 U.S.C. § 1401(34) (quoted in footnote above); 24 C.F.R. § 300.43.
22
20 U.S.C. § 1401(34); 24 C.F.R. § 300.43.
23
603 CMR 28.06(4).
24
Lessard v. Wilton Lyndeborough Cooperative School Dist . , 518 F.3d 18, 28-30 (1 st Cir. 2008).
25
Id . at 30.
26
Id .
27
Id . at 29-30.
28
20 USC § 1400(c)(14) (“providing effective transition services to promote successful post-school employment or education is an important measure of accountability for children with disabilities”).
29
See Yankton School Dist. v. Schramm , 93 F.3d 1369, n.6 (8 th Cir. 1996) (“ A very bright, disciplined, and determined student, Tracy appears to be headed for college. Preparing disabled students for postsecondary education is one of the reasons for transition services under the IDEA. Under the statute, her success in high school, due in part to the special education she receives, should not prevent her from receiving whatever transition services she may need to be equally successful in college.”); Dracut Sch. Com. v. BSEA , 2010 WL 3504012 (D. Mass. 2010) (using a meaningful education benefit standard to determine appropriateness of transition services); Elizabeth M. v. William S. Hart Union High School Dist . , 2003 WL 25514791, *4 ( C.D. Cal. 2003) (“adequate high school education is inextricably linked to a successful transition to post-secondary education”) ; Kevin T. v. Elmhurst Community School Dist. No. 205 , 2002 WL 433061, *12 ( N.D.Ill. 2002) (transition services are “[t]o ensure that disabled students can adequately function in society after graduation”); J.B. v. Killingly Board of Education, 990 F.Supp. 57 (D.CT 1997) (student “could receive instruction in community living and social skills, including daily living skills, appropriate behavior, socialization, and working skills, as part of his transition services”); Yankton School District v. Schramm , 900 F.Supp. 1182 (D.S.D. 1995) (“Transition services are ‘aimed at preparing students (soon to leave school) for employment, postsecondary education, vocational training, continuing and adult education, adult services, independent living, or community participation.’”) (emphasis in original), aff’d 93 F.3d 1369 (8 th Cir. 1996).
30
20 U.S.C. § 1401(34) (definition of transition services); 24 C.F.R. § 300.43 (same).
31
Id .
32
Schaffer v. Weast , 546 U.S. 49, 62 (2005) (burden of persuasion in an administrative hearing challenging an IEP is placed upon the party seeking relief; a party who has the burden of persuasion “ loses if the evidence is closely balanced” ).
33
The importance of Student’s having an appropriate group of peers with which to learn was noted as early as 2007 in a neuropsychological report. Exhibit P-2, page 6.
34
20 USC 1400(d)(1)(A); 20 USC 1412(a)(1)(A); 20 USC 1412(a)(5)(A); MGL c. 71B, ss. 2, 3; 34 CFR 300.114(a)(2(i) ; 603 CMR 28.06(2)(c).
35
Walczak v. Florida Union Free School Dist ., 142 F.3d 119 (2nd Cir. 1998).
36
Gonzalez v. Puerto Rico Department of Education , 254 F.3d 350 (1 st Cir. 2001); Abrahamson v. Hershman , 701 F.2d 223, 228 (1 st Cir. 1983).
37
I note that Student’s potential to learn may be demonstrated by the following additional factors: he has developed some ability to communicate meaningfully with adults, he is a very social person and has a very strong desire to have friends who are his peers, he loves to learn, he keeps trying to learn even in the midst of his many learning challenges, he has no behavioral issues, and when he learns a task, he performs it effectively. Testimony of Russo, Father, Mother, Engelman, Hurley; exhibit P-7.
38
See Dracut Sch. Com v. BSEA ., 2010 WL 3504012, 12 (D.Mass. 2010) (“ Hearing Officer … reasonably determined that the services were not reasonably calculated to supporting independent living outside of high school, such as maintaining self-hygiene and learning transportation skills. … Indeed, C.A.’s action plan for daily skills addresses only his independence in the school environment.”).
39
See Id. ( where the deficits “are a central component of his disability [and] affect his ability to transition from high school to other settings in a critical way, …. [IEP must be] reasonably calculated to confer … meaningful educational benefit in this critical area”).
40
See Ash v. Lake Oswego School Dist. No. 7J, 766 F.Supp. 852, 863 (D.Or. 1991) (Student must be able to “learn something at school and then take that learning home or into the community”); Mohawk Trail Regional School Dist. v. Shaun D. ex rel. Linda D . 35 F.Supp.2d 34, 43 (D.Mass. 1999) (residential services needed to “ give him the ability to generalize what he learns at school to the community”).
41
My resolution of the issues in this section IV C (and those in the previous section) of this Decision centered on the credibility and persuasiveness of Parents’ expert, Dr. Engelman. Douglas’ educators who testified in favor of Douglas’ proposed program have demonstrated expertise and experience. I have no doubt that they believe that they have proposed an appropriate program for Student. Nevertheless, their testimony did not provide the same level of expertise, insight and, ultimately, persuasiveness that Dr. Engelman brought to bear on the most important aspects of this case—namely, what educational services are minimally necessary for Student to make effective progress to facilitate his transition to post-secondary school activities. Dr. Engelman has 25 years of experience evaluating students (including children with profiles similar to Student’s), evaluating educational programs, and setting up programs for school districts. She testified credibly, candidly and with authority. Testimony of Engelman; exhibit P-8 (resume).
42
See C.G. ex rel. A.S. v. Five Town Community School Dist ., 513 F.3d 279, 290 (1 st Cir. 2008); Reid v. District of Columbia, 401 F.3d 516, 527 (D.C. Cir. 2005).
43
See, e.g., In Re: Longmeadow Public Schools , BSEA # 08-0673, 16 MSER 217 (6/30/10) (pp. 52-54 of slip opinion) (available on the BSEA website).
44
See C.G. ex rel. A.S. v. Five Town Cmty. Sch. Dist., 513 F.3d 279, 287 (1st Cir. 2008) (may consider evidence extrinsic to the written IEP when there are “obvious gaps” in the IEP).
45
See, e.g., Van Duyn ex rel. Van Duyn v. Baker School Dist. 5J, 481 F.3d 770, 778 (9 th Cir. 2007); Houston Independent School Dist. v. Bobby R ., 200 F.3d 341, 349 (5 th Cir. 2000). Van Duyn ex rel. Van Duyn v. Baker School Dist. 5J, 481 F.3d 770, 778 (9 th Cir. 2007).
46
For a different but related purpose—that is, to determine whether the IEP provides the requisite educational benefit in a given case—many courts limit their review to what is provided within the four corners of the IEP. See, e.g., County Sch. Bd. of Henrico v. Z.P., 399 F.3d 298, 306 n. 5 (4th Cir. 2005); Knable v. Bexley City Sch. Dist., 238 F.3d 755, 768 (6th Cir. 2001). For a useful discussion, see also Millay ex rel. YRM v. Surry School Dept . , 2010 WL 1634311 ( D.Me. 2010). Although the First Circuit has stated that it has yet to decide whether or not to adopt this so-called four corners rule, the Court noted that the purpose of the IEP is to present “a clear record of what placements and educational services were offered.” C.G. ex rel. A.S. v. Five Town Cmty. Sch. Dist., 513 F.3d 279, 285 (1st Cir. 2008). Similarly, in deciding why the court should limit its inquiry to the IEP itself, the Sixth Circuit explained that “the requirement … serves the important purpose of creating a clear record of the educational placement and other services offered to the parents. The written [IEP] not only helps to eliminate factual disputes between the school district and parents about proposed placements, but also greatly assists parents in presenting complaints with respect to any matter relating to the … educational placement of the child.” Knable ex rel. Knable v. Bexley City School Dist . 238 F.3d 755, 768 (6 th Cir. 2001) (internal citation and quotations omitted).