Allan v Wayland Public Schools – BSEA # 07-2137
COMMONWEALTH OF MASSACHUSETTS
BUREAU OF SPECIAL EDUCATION APPEALS
IN RE: ALLAN1 v WAYLAND PUBLIC SCHOOLS
This decision is issued pursuant to M.G.L. c.71B and 30A, 20 U.S.C.§1401 et seq ., 29 U.S.C. §794, and the corresponding regulations. A hearing was held at the Bureau of Special Education Appeals in Malden, MA on December 4, 2006, December 5, 2006. The matter was continued until January 3 and 5, 2007 for additional days of hearing and continued to January 11, 2007 for a final day of hearing.
Those present for all or part of the hearing were:
Daniel Rosenn Psychopharmocologist for child
Edward Cohen Executive Director, Reed Academy
Raphael Castro Nueropsychologist for child
Michael Lehr Teacher, Wayland Middle School
Sally Fraser Adaptive Physical Education Teacher, Wayland Middle School
Gail Kruss . Special Needs Teacher, Wayland Middle School
Andrea Paine Teaching Assistant, Wayland Middle School
Stephen Farina Psychologist, Wayland Middle School
Doris Goldthwaite Director of Student Services, Wayland Middle School
Heather Gold Attorney for Parents
Regina Williams Tate Attorney, Wayland Public Schools
Maryellen Coughlin Court Report, Catougno Court Reporting Services
Joan Beron Hearing Officer, BSEA
The official record of the hearing consists of Parents’ Exhibits marked P1-P61 and School Exhibits marked S1-105 and approximately 4 ½ days of recorded oral testimony. The record closed on March 16, 20072 when written closing arguments were received from both Parties.
I. Does Wayland’s IEP amendment, developed at a TEAM meeting on February 25, 20063 , that amends the IEP of May 2005-May 2006, adding family counseling to a partial inclusion program for science, math and social studies4 provide Allan with a free appropriate public education (FAPE) in the least restrictive environment (LRE)?
II. Does Wayland’s subsequent IEP of May 2006-May 2007, which continues Allan’s program for 8 th grade, provide Allan with a FAPE in the LRE?
III. If not, does Student require a residential program to meet his educational needs?
III. If so, does the Reed Academy5 provide appropriate educational services to Allan, thus entitling Parents to reimbursement for their placement of Allan in this program?
FINDINGS OF FACT
1. Allan is a 13 ½ year old eighth grade likeable, polite, Wayland resident; see e.g. (Lehr, Paine, Kruss, Fraser, Farina). Parents adopted Allan when he was six days old. Allan currently lives in Wayland with Parents and Parents’ biological children, twin sisters ten years old (Father). Allan has been diagnosed with Asperger’s syndrome, Tourette’s syndrome and a Mood Disorder with Bipolar features; see (Castro, Rosenn). Allan also suffers from migraines exacerbated by stress; Id. Allan has attended a special education program at the Reed Academy in Framingham, MA since May 1, 2006 through private placement by Parents; Id.
2. Allan began receiving special education services in a small group specialized setting in Texas during preschool or kindergarten. He moved to Southborough MA during February of 1 st grade (1999) (Father, see also (S60). While in Texas Allan was diagnosed with Tourette’s Syndrome and migraine headaches. Allan also had a tentative diagnosis of Asperger’s Syndrome due to his social interaction deficits, language deficits and emotion regulation; Id. Allan continued on IEPs in Southborough to address social interaction deficits, organizational deficits and problems with transition6 (S73, S74, S71, S60).
3. Allan was formally diagnosed with Asperger’s Syndrome when he was eight years old7 (S72/P11, S71, S60, see also Father, Castro). During third grade (SY 01-02), despite increased special education services with a shared aide, social skills training, counseling and anger management training, speech/language services, increased Risperdal to control anxiety and rage,8 well thought out programs, (including behavior management programs and home based therapy), school and parent referrals to outside consultants, and good teachers with a high level of commitment, Allan displayed increasing violent behavior at home including temper tantrums, aggression (biting, kicking, punching and slamming doors), throwing objects and threats to his siblings at home (Father, Castro, Rosenn, see also (S72, S71, S63, S62, S59). These outbursts were triggered when demands were made on him but sometimes came without warning (Father, see also P16).
4. During 3 rd grade Allan began to display oppositional behaviors at school including increased anger, stubbornness and irritability, slowness in gaining trust in staff and slowness in transitioning between activities (S60). During October 2001, Allan had on two occasions, written threatening notes to peers, began wandering around the room talking about Scooby-Doo and would pretend to have discussions with an imaginary peer about blowing up the school. These behaviors decreased in late October 2001 when limits were set upon Allan’s threatening and aggressive verbalizations and medication was increased. As of January 2002 Allan was academically on par with his peers (S60). However in February 2002 Allan again became more irritable, angry and oppositional and verbally aggressive with adults. He also began to have trouble staying awake during academic time within the school especially when he wanted to avoid tasks. Southborough noted that despite invested parents and carryover of the school’s social skills training in the home environment, Allan’s behavior continued to deteriorate at home, Allan’s problems at home interfered with his concentration at school, and frustrations Allan experienced at school were often taken out on the family after school (S60, Father). By the end of the school year Allan lagged in his retention of math facts and began to have difficulty with the more abstract aspects of academics (S59).
5. Throughout 4 th grade Allan experienced marked fluctuation in his mood and emotional stability, was often irritable and resistant in the classroom, and had continued difficulty in social situations with peers and adults due to marked misunderstanding of social situations. Allan’s migraine headaches, tics and explosive behaviors at home and school increased (Father, P22). Southborough noted that Allan’s emotional state directly blocked his access to the curriculum (S55). Repeated and regular neuropsychological testing showed no growth or decline (Father, Castro, compare P12, P10, P9). Southborough’s special education director recommended to Parents that they look at residential programs and Dr. Castro and Dr. Rosenn also orally made this recommendation to Parents (Castro, Rosenn, see P22). Parents however did not want Allan placed residentially and on May 26, 2003 an IEP was developed and accepted for a public school program in Wayland9 with pull out for language, pragmatics and academic support along with consultation to the staff and family from a behavioral specialist (Father, Goldthwaite, see S55).
6. Allan attended a six-week summer program at Pegasus, a recreational day program in Wayland (Father, P22). During the first three weeks Parents spoke to Pegasus staff daily to address issues regarding non-compliance at camp, disrespect to female staff and verbal and/or physical aggression toward other campers including detailed and planned threats to seek revenge on a peer by chopping his head off, physical fights and an attempt to hit another peer in the head with an object and kicking and knocking over chairs and desks and running out of the camp (P22, Father). Wayland was made aware that Allan was reluctant to dress in front of the other campers and also was made aware of the incidents of aggression (Goldthwaite). Wayland gave Allan a 1:1 camp counselor, put him on a detailed behavior plan with a reward system and his behavior improved during the final three weeks of camp (P22).
7. However Parents remained concerned about Allan’s transition to Wayland (P22, Father). On August 7, 2003 Parents wrote to Wayland’s special education director Doris Goldthwaite to inform her of their concerns and asked that these concerns to be included in Parent concern section of the IEP. Specifically Parents wrote:
We are concerned about Allan’s inability to self-regulate his emotions and behaviors throughout his day both in school and at home. This deficit has impacted his ability to access the curriculum in an inclusion environment. It has had an even more severe impact on our family life. We are concerned that as the academic demands increase, Allan’s aggressions will become more prominent in school and will intensify in severity at home.
We are concerned that Allan’s increasing awareness of his differences and disabilities will adversely affect his self-esteem and cause depression. We are profoundly concerned about the impact of emotion regulation problems on Allan’s social acceptance. We are worried about the ramifications of behaviors that arise from Allan’s disabilities such as verbal threats and/or physical aggression both in school and at home. We are concerned about the ever-widening gap in Allan’s maturity and social development in comparison to his peers. We are concerned that given Allan’s issues he is not adequately following the curriculum frameworks and making appropriate academic progress.
We are concerned that the educational plan and school environment for Allan should be moving forward in academic, social, language and emotional/behavioral skills, not merely keeping him safe or contained throughout the school day. We are concerned that as Allan’s needs intensify at school and at home, we may need to seek an alternative placement such as a day school or residential setting. (P22, see also S55).
8. Allan was hospitalized at Franciscan Hospital on August 27, 2003 to address his rage towards his sisters and preoccupation with having them not live in the home, as well as Allan’s general continued impulsivity and mood problems. Hospitalization was also recommended to help stabilize10 Allan and keep him safe (P16, P22, Father, Rosenn). Fransiscan worked with Allan on appropriate behavior, understanding the consequences of his actions, gaining coping skills and a behavioral plan with consequences including return to the hospital for readmission. Fransiscan recommended that Allan be educated in a residential setting and recommended this to Parents (P16, Father). Dr. Rosenn also recommended to Parents that Allan be educated in a residential setting (Rosenn).
9. Parents requested an emergency TEAM meeting on September 2, 2003. Wayland felt that they could meet Allan’s needs with an in-district program11 (P16, Father, Goldthwaite). Parents, having just moved to Wayland, wanted to try the in-district program. Allan was discharged to Parents on September 10, 2003 with a discharge plan that included a referral of the family to family stabilization services, addition of Lithium to address his mood symptoms, a behavior plan and follow up with Allan’s psychiatrist and neurologist, and follow up with Wayland to address whether Allan may still need a residential program in the future (P16).
10. Allan began attending 5 th grade in a special education program at the Loker School in Wayland on Wednesday, September 11, 2003; see (P9). This program included pull out reading and math and pragmatics, daily in-class support in science and social studies, weekly in-class support in language and consultation from both the special education staff and a behavioral consultant (S55, see also Goldthwaite).12
11. Allan received updated neuropsychological testing from Dr. Castro on September 16, 2003, September 26, 2003 and October 20, 2003 (Castro, P9). Behavior problems at home continued despite the addition of Lithium to his Risperdal, Clonodine and Topomax regimen (Father, Rosenn, see (P9). Dr. Castro found that Allan’s most significant neuropsychological deficits occurred in organization, difficulty acquiring and retrieving new verbal and visual information and in visual-motor, graphomotor and fine-motor functioning (P9, Castro). Testing showed that at 11 years and 4 months Allan remained with verbal skills at an 8.5 year old level and that standard scores showed (with the exception of letter-number sequencing on the WISC-IV)13 no change or a decline in all of his standard scores on the WISC-IV since last tested in November 1999; see (P9), compare (P9, P10, P12).14 Academic skills as assessed on the WIAT-II also showed significant declines in reading and math; see (P9).15 Dr. Castro also found that Allan’s visual-spatial reasoning remained at the seven to eight year old level and that he had fallen further behind his same-age peers since last examined (P9). Similarly, Allan’s graphomotor speed had fallen from the 9 th to the 1 st percentile since last tested and his verbal fluency and language processing and recall had also declined from previous testing (P9). Although Dr. Castro noted that socially Allan seemed to be displaying improved peer functioning since transitioning to Wayland, and had some initial social interactions with other children in the community, he also noted that Allan’s cognitive, emotional and behavioral difficulties continued to significantly interfere with his ability to function academically and socially and that Allan may require greater intensity of services in the near future (P9).
Dr. Castro privately suggested that Parents consider out of district therapeutic placement for Allan (Castro, Father, see also Rosenn). However because Parents did not want Allan placed out of district, Dr. Castro recommended intensive psychiatric management and therapeutic support in school including: immediate reporting of behavioral problems between school and home, high structure in school and assistance in monitoring and managing Allan’s affect, opportunities to experience success in school, reinforcement of novel material, continuation of a 1:1 school aide when Allan was in the mainstream, continuation of an in-school social skills group, speech/language therapy, direct occupational therapy16 and consultation to address Allan’s fine-motor, grapho-motor and visual motor impairments (P9, see also Castro). Dr. Castro also recommended that Allan be reassessed in six months to determine if his school program was working (P9).
12. On November 7, 2003 Allan was seen for his periodic neurology consultation with Dr. Margaret Bauman; see (S51, Father). At the time of the evaluation Allan was receiving Topamax, Risperdal, Clonodine, and Lithium (Father, see S51, P21). He continued to have tantrums at home and was abusive to both of his sisters and to Mother (Father, S51). Allan also was self-abusive (S51). Despite an increase in Topamax,17 Allan’s migraines persisted since the last neurological evaluation (S51). Allan had five migraines in March 2003, one migraine in July 2003, one migraine in August 2003, six migraines in September 2003, two migraines in October 2003 and as of November 7, 2003 two more migraines (S51). Dr. Bauman and parents noted that Allan’s migraines were less frequent when social and academic stressors were reduced (S51, Father). Dr. Bauman recommended that Allan’s medications and behavior plan continue and that Allan receive an MRI scan. She also supported Parents seeking an alternative educational program for Allan.
13. On November 18, 2003 the TEAM reconvened to consider Wayland’s adaptive physical education (APE) evaluation conducted on October 9, 2003 see (S52, S50).18 The IEP was amended to include thirty minutes per week of adaptive physical education (S50). Family support from the behavioral consultant was removed from the IEP and substituted with one hour of parental support from the outside provider Parents were using (Human Relations Services or HRS). This IEP also added support during Allan’s special subjects and during recess, reduced the frequency of academic support in class by thirty minutes, added an hour per week of individual counseling for Allan from HRS, reduced pragmatic language instruction and academic support by special education staff by one thirty-minute session each and reduced the weekly consultation time between parents and special education staff; however, two thirty minute sessions of pull-out pragmatic language were added; see (S50/P28, compare S50, S55). Speech and language therapy services remained the same; Id. Goals and objectives were also added (P28). The IEP was accepted.
14. On December 19, 2003 Parents requested that Allan be assessed through the Collaborative Assessment Program (CAP) (P21). CAP is a jointly sponsored program of the Department of Social Services (DSS) and the Department of Mental Health (DMH) with some assistance from the Division of Medical Assistance (DMA). CAP services families of children who have serious emotional disturbance and are at risk of residential placement. CAP provides assessment, programming and, when appropriate, designation of an agency to help stabilize the child and divert children from inappropriate residential placements if possible; see (P17). Parents informed CAP that Allan was diagnosed with a Mood disorder, Aspergers and Tourettes syndrome,19 that Allan had been hospitalized in September 2003 due to emotional instability and explosive rage attacks, that Allan was now more stable but still exhibited many emotional and behavioral problems and that in spite of hospitalization and numerous years of intensive support services Allan’s behavior could still be unsafe and unpredictable. Father also told CAP that in addition to their concerns about the safety and stability of their family life they were also concerned that Allan’s school placement was not appropriate. He indicated that despite increasing interventions Allan’s neurological evaluation showed a disconcerting drop in intellectual ability and that they were concerned that Allan would not be able to make appropriate progress without more intensive, therapeutic services (P21). Parents requested that CAP help them find services to keep Allan safe at home and ensure that appropriate services were available to Allan at school; Id.
15. On January 7, 2004 CAP invited Parents, DSS, DMH and Wayland to a planning meeting for Allan to occur on January 27, 2004; see (P19, P20). On January 27, 2004, CAP recommended that Allan continue with home based services through Wayside Youth and Family; that Allan and his sisters continue with weekly individual therapy, that his sisters continue in their sibling group; that Parents continue working with their parent partner through Wayside Youth and Family and that Parents attend couples’ therapy and continue with the support group for parents with special needs children. CAP also recommended that Allan continue seeing Dr. Bauman and Dr. Rosenn and behaviorist as needed. CAP also recommended that Allan and his siblings continue in Tae Kwan Do and Special Olympics. CAP denied DMH eligibility20 and offered no additional services. They recommended that Allan attend a therapeutic day school through Wayland but if Allan were not to make progress at a therapeutic day school he would require more supports through a five day, extended year residential setting that would address his learning disorder, Asperger’s and social pragmatics issues.
16. Wayland received Dr. Castro’s report from Parents on or about January 22, 2004 (P22). Wayland issued a TEAM invitation on February 2, 2004 and a TEAM meeting occurred on February 5, 2004 (S49, S48). The purpose of the TEAM was to consider Dr. Castro’s September and October 2003 evaluation and Dr. Bauman’s November neurological evaluation that Wayland had just received (P27, Goldthwaite, Father). On February 9, 2004 Wayland sent Parents an amended IEP that provided for consultation between Wayland and Allan’s his outside providers to facilitate consistent teamwork and complimentary approaches to working with Allan; small group or 1:1 social skills training for Allan, and consultation between the speech/language pathologist and the alternative program staff to incorporate this social skills training with the pragmatic instruction Allan was already receiving from the speech/language pathologist and the social skills counseling group being implemented by the school psychologist. The amended IEP also provided for processing with Allan at the end of the day or during any incidents that were stressful for him. The teachers would also highlight Allan’s positive experiences so that Allan would leave school with a positive mindset (S48). The Parties also agreed that Wayland would conduct an OT evaluation to determine whether OT services were necessary; that Allan would not receive homework to lessen his stress; that Allan would be allowed to arrive early to lunch to get situated prior to the other students’ arrival and that the TEAM would convene in May. The TEAM agreed also agreed on extended year services but disagreed where these services would be implemented (S27, see also (P45)).21 Parents accepted the IEP (Father).22
17. Wayland conducted the OT evaluation on March 24, 25, and 30, 2004 (S43). The OT recommended that Allan receive OT consultation and that Allan incorporate keyboarding into his daily routine, receive supportive seating, frequent work breaks and frequent change of position to compensate for Allan’s diminished core muscle strength. The OT also recommended study guides, visual reminders and schedules attached to Allan’s desk to help him organize, aide in his visual memory and help alleviate his stress (S43).
18. The TEAM reconvened on May 26, 2004 for Allan’s annual review, to plan for his transition from 5 th to a 6 th grade Middle School program and review Wayland’s OT evaluation (S38).23 Allan had that year scored in the proficient range on the MCAS in science and technology (S40). Progress reports for 5 th grade show that Allan had made progress in completing his assignments and had made progress in reading comprehension and could at the end of the IEP period write 1-2 well organized paragraphs with teacher support 60% of the time. He also made good progress in APE (S41).
However, despite good effort in his pragmatics training Allan was not able to shift topics on a consistent basis and his progress was not sufficient to enable Allan to achieve his speech/language goals by the end of the IEP period. Allan was also not able to meet his social emotional goals and continued to require help to identify the feelings of others and needed modeling and cueing to maintain effective social and emotional coping (S41). Allan at times fell apart in class when his teacher talked a lot or too rapidly and did not like eating in the cafeteria with other children; see (S97).24 Allan continued to display anger and aggression at home (Father, see S36, Goldthwaite). However, TEAM members noted that in school Allan’s mood was stable since his arrival to the Loker School in September 2003 (S38). Allan did however have instances where he inappropriately touched or petted his sister(s) when he saw them in the hall or when they were in a shared Big Buddy/Little buddy activity together (Father).25
Allen’s progress report from Wayland at the end of 5 th grade shows that he was making excellent progress in his APE class and good progress in his academic subjects but continued to have trouble expressing his thoughts clearly in writing, making inferences, using abstract reasoning, and producing readable handwriting. Allan’s science and social studies teachers found that he did a good job of completing his assignments but had trouble transferring the information he learned to other settings (S37).
An IEP was developed for Wayland’s Language Alternative Program (LAP) where Allan would continue to receive pull-out speech therapy and pull-out APE, specialized instruction in reading, writing, social studies, study skills and social skills training, math and science and APE with typical peers that incorporated social skills training and continued family consultation and consultation from and between the special education staff, inclusion teachers and the guidance counselor and an additional consultation from the OT.
19. Parents accepted the IEP with the exception of the portion of the IEP that identified a summer program with a 1:1 aide at the Pegasus program. Parents told Dr. Goldthwaite that they were pleased with the progress that Allan had made during his first year at Wayland. However Parents were concerned that he had not made sufficient social/emotional progress and continued to have psychological instability despite ongoing adjustments to his medication regimen (P38, Father, Goldthwaite).
20. On or about June 30, 2004 Wayland received a progress report from Allan’s therapist Dr. Katkavich from HRS. Dr. Katkavich found that Allan had maintained a level of safety in regards to his hitting and punching but that he was concerned that in the last month (May 2004) Allan had increased irritability and rigidity and a preoccupation with people ruining or stealing his belongings that had a delusional quality26 (P36). Wayland did not reconvene the TEAM after receiving the report because it felt that it was addressing Dr. Kakavich’s recommendation for continued individual therapy in the IEP.
21. Per agreement of the Parties Allan attended Camp Sunshine during the summer of 2004; (Father, Goldthwaite, see (S38, S34, S98). Camp Sunshine is a six-week therapeutic day summer program through Reed Academy (Reed) that runs from 9:00 a.m. to 4 p.m. five days per week (Cohen). Camp Sunshine services students who attend Reed’s residential program during the year and other students with emotional, behavioral, and learning disabilities (Cohen, S98). He benefited from the group therapy sessions that focused on anger management, peer mediation, and positive social skills. He also enjoyed the adventure therapy and showed some appropriate regulation and conversational skills (S98). Progress reports from the summer of 2004 show that Allan did not often invite others to play, take turns or demonstrate affection or empathy or build relationships with peers (S98, Cohen). Allan also sometimes displayed aggressive behavior towards himself. He almost always demonstrated intense fears (S98). He often did not continue to try when something was difficult and often had migraines during the summer (S98, Cohen). Even though Allan’s IEP called for an extended school year program, Wayland never received these reports because Allan’s attendance at Camp Sunshine was through a settlement agreement whereby Wayland reimbursed Parents. Reed Academy was not aware of the agreement and Wayland never requested the reports from Parents (Goldthwaite, Cohen, Father).
22. Allan began attending the Wayland Middle School as a 6 th grader in September 2004 (SY 04-05) in the Language Alternative Program (LAP). Most students in the LAP program primarily have difficulties in reading, comprehension and writing skills, are generally are in the low to below average cognitive level and are two to four years below grade level academically (S65). Therefore most of the students in the LAP program have two periods of language arts instruction per day, one focusing on reading and the other on writing (Goldthwaite). Most students also have an additional period of academic, organizational and homework support (Goldthwaite). Many students in LAP also often have social/emotional needs including difficulty reading social cues and low self-esteem and may be on functional behavioral plans and behavioral reward programs to address social and behavioral goals (S65, Kruss). Allan, like most students in LAP, attended an inclusion homeroom, science and art (S65, Paine, Goldthwaite). Allan also attended an inclusion math class. Allan learned his schedule within two days and was able to find the location of his inclusion classes and the nurse’s office (Paine, see also Kruss). He also knew his routine often reminding his teachers of the arrival of his bus or to confirm that there was communication in his communication book (Paine). Although the LAP program is not listed as a therapeutic program, Allan received support from an experienced teaching assistant who helped him process situations in his inclusion classes, saw Dr. Farina in a Wednesday morning group (the TAG group) and a weekly lunch bunch group to address social issues and had access to him through the year (Goldthwaite, Farina).27 Like other LAP students Allan received his reading, writing, English, study skills and social skills training in the LAP classroom. He did not receive social studies in 6 th (or 7 th grade) so that he could concentrate on his language arts and pragmatic skills (Goldthwaite, see S65).28 Wayland also addressed some ADL issues such as allowing Alan an opportunity to change his clothes separately from the class (Father). Wayland also tried to address toileting because Allan’s teacher noted that Allan was taking twenty minutes to use the bathroom each time (Father). There were however other ADL issues that Allan was having at home such as keeping himself clean, washing his hair and brushing his teeth that were not addressed by Wayland because Parents did not inform them of these issues at that time as they were just trying to survive the day; (Father).29
23. As of October 2004 Wayland noted30 that Allan often had difficulty at lunch because it was noisy and often decided to be alone during this time (P48).31 His teacher opined that Allan was starting to perhaps show a bit of depression because he was not playing outside the house and didn’t want to go out for dinner (P48). Parents enrolled Allan in Wayland’s BASE after school program (BASE) to give him an opportunity to socialize with peers (Father). Subsequent to Allan’s enrollment Parents asked for consultation between the speech-language pathologist (SLP) and BASE to assist with socialization; however this did not occur.32
24. Allan’s progress report of November 2004 shows that he had made progress in APE (S31, see also Fraser). Allan often invited children to join him in this class and many classmates also asked him if they could participate (Fraser). Allan was also, after a time, able to explain the rules of games to others and made up his own game (Fraser). Allan also made progress completing his assignments and in his reading skills in LAP. He was beginning (in his speech/language sessions) to identify feelings in structured 1:1 tasks but was not able to read social cues through the body language or faces of others (S31). Similarly, Allan was able to use a graphic organizer in his writing assignments but was not able to generalize to using the organizer in his journal entries (S31). He showed improvement throughout the year in his study skills and in his reading and writing; compare (P29, P30, P31). He was on two occasions (one in late October and one on November 9, 2004) unresponsive in school, possibly related to seizures. An EEG performed at MGH on November 12, 2004 was abnormal (S96).33 ,34 Wayland did not note this as affecting Allan’s progress in school; see (S31).
25. In December 2004 Allan’s special education teacher (Gail Kruss) told other teachers that she was concerned that Allan was being teased and targeted for the food he ate (P50, Kruss). Allan reacted to this teasing by running off with a piece of equipment in his APE class (P50, see also Kruss). In January 2005 Allan wrote in his journal that two classmates teased him at lunch (P50).35 The special education teacher acknowledged that there was ongoing teasing from two and sometimes three boys at lunch and there was communication between Parents and Ms. Kruss about this (P50, see also Paine, Kruss). Ms. Kruss tried to address the teasing but was often not successful with stopping the behavior, despite putting the other students on a point system (P50).36 Wayland’s January 2005 progress report shows that Allan however was doing well in school; see e.g. (S30). Wayland’s notes of February 25, 2005, however, show that Allan was not engaging in homeroom, did not seem to have a lot in common with the other kids37 and during lunch preferred to be totally alone (P51). He also began to show a steady decline in his willingness to do any homework even when teachers and Parents believed he knew the material (Father, Paine, P22). Wayland responded by having Allan do his homework in school two days a week and this seemed to alleviate some of the pressure at home (Paine, see S103).
26. As of March 2005, Wayland reported in its progress report that Allan, while able to stay on topic and ask appropriate questions in structured settings addressing social skills, was not able to generalize these skills during spontaneous conversation and was inconsistent in responding to verbal cues outside the speech room. He also could read social cues when asked 75 % of the time but did not do so without prompting (P29). During this time Allan was also not as focused in class,38 had slowed down in the amount of work he was able to complete and was resistant to bringing math and science homework home to complete; see (S23). This was not noted in the progress report; compare (P29, S23).
27. In the spring of 6 th grade Allan perseverated for several days about seeking revenge on a child by killing him because Allan felt that that child was teasing him (Father). The school psychologist (Dr. Farina) was able to work with Allan and the other child and after a few days Allan was able, with his teachers help (as they had helped him with preservations on other occasions), to move on (Father, Farina).
28. Wayland conducted a three-year reevaluation of Allan during April 2005; see (S21-S27). The TEAM reconvened on May 12, 2005 to review the evaluations and develop an IEP for the rest of Allan’s 6 th grade and his 7 th grade year (S19). Testing showed intact language for word meaning and structure with weaknesses in comprehension of complex language, problem solving and inference (S22). On achievement testing (WJ-III) Allan in the 69 th percentile in letter-word identification, the 63 rd percentile in story recall, the 79 th percentile in spelling and the 53 rd percentile in passage comprehension; however Allan was in the 7 th percentile in his writing samples and writing fluency and the 13 th percentile in reading fluency, the 6 th percentile in math fluency and the 12 th percentile in math calculation skills (S23, S25, S26).39 These lower scores were probably because these subtests were timed and did not allow prompting or other accommodations (Kruss).40 On the MCAS Allan received a warning in math despite MCAS accommodations41 (S20).
At the TEAM meeting Allan’s therapist, Jonas Katkavich, told the TEAM that Allan needed emotional management, that he vented anger regarding his sisters, and was constantly abusive toward his sisters and has slammed doors, punched walls, pushed after limits were set and hated his parents and sisters; see (P52). Parents also expressed their concern about the lack of Allan’s social and emotional development and that the gap was widening between Allan and his typical peers.42 Parents told the TEAM that they were deeply concerned about the lack of social skills training offered to Allan; that Allan was becoming more aware of his differences and the amount of play dates and parties that his sisters go to and that he does not. Parents also indicated that they were concerned about Allan’s developing depression and his spending more time alone in his room when he was at home. Parents also informed the TEAM that they were concerned about Allan’s inability to self-regulate his emotions at school and at home and that they were worried about the emotional well being of Allan’s sisters. Parents additionally told Wayland that Allan’s inability to self-regulate his emotions have impacted his ability to access the curriculum in an inclusion environment and that he continued to refuse to do homework. They also informed Wayland of their concern about the amount of medication Allan required to attend the Middle School and live at home indicating that he may need more intensive services than could be offered in a public school setting (Father, P25, P22, but see S94)43 .
The TEAM proposed that Allan continue with his current program at the Wayland Middle School. Parents originally rejected the IEP in part because it did not include an extended school year program; however the Parties were able to mutually resolve the matter and the IEP was accepted (Father), see (S19).
29. Allan ended his sixth grade year with grades of A-‘s in Math, Language and Science, A’s in Art and Technical Education, a B+ in Music and a B in Reading (S16). Allan’s end of the year progress report in June 2005 showed that he was starting to show some independence in his study skills and was able to follow directions more quickly due to a behavior chart with rewards, but still required several prompts to follow instructions and still needed to be asked about what he needed to do in his organization class. He was using paragraphing automatically when typing on the computer but was not able to generalize this skill in his handwritten journal without reminders (S15, see also Kruss). When motivated Allan was beginning to initiate a conversation and take turns in conversation with teachers and peers, and would joke and laugh with peers, but could also ask inappropriate questions, take jokes to an extreme and miss nonverbal cues. Allan was starting to advocate for himself and was starting to explain his feelings to an adult. However, he did not often ask for assistance in social situations (S15).
30. Allan attended the Reed Academy summer program (Camp Sunshine) during the summer of 2005. During the few weeks before camp started Parents had difficulty getting Allan to come out of his room or engage in any family activities (S93). He was not able to engage in age appropriate interests and often reverted to playing with his “Play Skool” school buses (S93, Father). He willingly attended camp on most days, enjoyed some of the activities and liked spending his earned points at the camp store (S93). Allan showed a little bit of progress in managing his fears but while he almost never demonstrated aggressive behavior towards others the previous summer he sometimes did during that year; compare (S98, S99). He showed less flexibility than the previous summer; Id. Like the previous summer, Allan required an extra staff member to help him change from his clothes to swim suit and sit with him on many occasions when he would not participate in an activity. He would not eat the camp food requiring Parents to send food in, and on one occasion when an arts and crafts project did not come out as he liked threw the table (Cohen). He had many migraines during this summer (Cohen).
31. Allan returned to the LAP program in 7 th grade (Father, Kruss). On September 1, 2005 Mother emailed Allan’s special education teacher, Gail Kruss, to let her know about his summer so that the TEAM could be prepared and so that Allan could hopefully have a good start to 7 th grade (S93). Mother informed Ms. Kruss about Allan’s behavior prior to camp. She also informed Ms. Kruss that following the end of camp Allan again reverted to his room and became angrier, more non-compliant, moodier and more explosive. She also told Ms. Kruss that at other times Allan was extremely silly or “over the top” happy; that Allan’s maturity level had regressed often talking in baby voices or referring to himself in the third person (S93). Mother also informed Ms. Kruss that Allan’s frustration tolerance was very low being quick to explode when limits were set; that he was less tolerant of his sisters and that there were a number of incidents during the past month (August 2005) where he had physically pushed one of them (S93). Mother also informed Ms. Kruss that the day before school started Allan and one of his sisters had a disagreement about the rules of a board game they were playing and that when the sister left the room Allan followed her, continued yelling at her, punched the couch and kicked a hole in the wall (S93, Father, P47, Kruss).
32. Dr. Castro conducted an updated neuropsychological assessment on September 27, 2005, October 4, 2005 and October 11, 2005 (P8/S14, Castro). At the time of this evaluation Allan’s Lithium and Risperdal had been increased and Dr. Castro was not sure if this caused a slowing of Allan’s cognitive processes (P8, Castro)44 . Allan’s Topomax had also been increased due to several instances of blank staring/nonresponsiveness during the last year; (P8). At home Allan continued to become angry very quickly and was often verbally and physically aggressive to his sisters, slamming doors and on one occasion kicking a hole in the kitchen wall (Father, P8, Castro, see also Rosenn). His fantasies about hurting his sisters continued and, unlike in 2003, Allan’s fantasies also included hurting Mother (Castro, Father). Despite regular psychotherapy, Allan’s noncompliance with rules had increased. He also displayed moments of increased, inappropriate giggling at home as well as an inability to focus and exaggerated silliness; (P8). At age 13 ½, Allan still required constant reassurance to separate from his parents to the testing situation (Castro). He also remained reliant on his parents to help him brush his teeth, cut his food and help him wash his hands, tie his shoe laces, comb his hair and trim his nails. He could not manage buttons and snaps and only wore elastic sweat pants; (P8, Castro). He did not often check for cars before crossing the street and had variable attention to walk signals. While Allan could answer a phone call, he could not consistently take a message or provide information to the person calling. He was obsessed with playing with toy busses and only played with a kindergartener and a preschooler in the neighborhood, was no longer interested in activities he used to engage in resulting in a decline in friendships and a resentment of his sisters’ widening social circles. Allan often interacted with an imaginary pet that he believed was real and became angry when others suggested that his pet was imaginary. He also talked about himself in the third person and often inappropriately touched or petted his sisters or other people. (P8, Father, Castro, see also Rosenn).
At school Allan’s special education teacher reported45 that he was a polite, hard working and cooperative student but that his math, reading, writing and science skills were all below grade level and that he often preferred to be alone and withdrew from other people. She further reported that Allan was less mature46 than other children his age and had difficulty interacting effectively with his peers. She also reported that Allan often worried and demonstrated fear of certain situations and places, refusing to participate in field trips and demonstrated excessive concerns about science hazards (P8, see also Father, Paine, Kruss). Allan’s teacher also observed that he displayed nervous arm movements and head scratching and that when Allan misbehaved he often did not feel guilty about it (P8). She reported that Allan was often apathetic or unmotivated, often lacked energy, was often withdrawn or didn’t get involved with others and often worried (P29).47
Testing on the WISC-IV showed significant and consistent drops in almost all of Allan’s scores, with verbal abilities ranging from the mid seven year level to the early ten-year level; see (Castro, P8).48 Similarly, testing on the WIAT-II showed drops in his standard scores (SS’s) in Word Reading, Reading Comprehension, Numerical Operations and Math Reasoning, with reading remaining at a 6 th grade level since he was first tested, and reading comprehension and math skills (in 7 th grade), at a 4 th grade level (P8).49 Allan continued to display poor fine motor functioning and visual processing in the deficient range. He also displayed language recall problems (P8).50
Dr. Castro felt that Allan’s social and adaptive functioning were affecting his ability to learn; that he needed to be educated in a more restrictive therapeutic program to achieve a FAPE; and that if the therapeutic elements were not able to be put into place he would require a residential program in order to learn (Castro, see also Rosenn). However Parents were not ready to place Allan in a more restrictive setting, especially a residential setting (Father, Castro, Rosenn). Therefore Dr. Castro strongly recommended that in order for Allan to be able to remain in his home environment that Parents receive services through the joint DMR/DOE grant initiative that works on specified goals to maintain a consistent approach, possibly avoiding the need for a more restrictive environment (P8, Castro). Dr. Castro also strongly recommended that Allan should be educated in a substantially separate program for children with diagnoses in the upper end of the autism spectrum that would address socialization and behavior, and that would include therapeutic support and behavioral consultation. Dr. Castro also recommended that the program be one that could advance Allan’s academic skills and be able to provide the accommodations Allan required to address his learning disabilities and executive functioning deficits (i.e. study skills, note taking). Dr. Castro also recommended that Allan attend a social skills group led by a professional with appropriate expertise who would use an organized and consistent curriculum specifically developed for the advancement of pragmatic skills (P8). Dr. Castro went on to recommend that Allan be strongly encouraged to attend and participate in developmentally appropriate activities through which his social skills could be targeted and in both school and home should have direct coaching in social situations with explicit teaching, guidelines and reinforcement (P8). Finally, Dr. Castro recommended that Allan receive occupational therapy services to address his handwriting, processing speed and visual-motor deficits and that his academic setting provide direct instruction in self-care skills (P8, Castro). Dr. Castro also recommended an extended-day after-school program four to five days per week that would emphasize successful completion of homework and facilitation of social interaction with peers his own age.
33. Wayland issued a progress report on October 31, 2005 (S13). It had not received Dr. Castro’s evaluation at that time (Castro, Father, Goldthwaite). Wayland reported that Allan was not overwhelmed, upset or uncomfortable in his daily routine at school and could be redirected to work (S13). He continued to make steady progress in APE (S13, Father, Fraser). It also reported that Allan was able to take turns in conversation during structured settings but had difficulty asking follow-up questions consistently. The report also noted that Allan enjoyed being silly and required prompts to keep his responses on task and realistic (P13). His reading comprehension was improving but he continued to be challenged making inferences about words that were not actually in the text (P13). Allan continued to be able to indent when typing paragraphs but did not carry over this skill when writing a journal entry (P13, compare (P13, P15).
34. Wayland issued another progress report on January 18, 2006. It still had not received Dr. Castro’s report. Wayland continued to assert that Allan was not overwhelmed, upset or uncomfortable in his daily routine in school; see (P12).51 Wayland did however know, at least as of November 2, 2005, that Allan was worried about swearing in school and tried to address what situations at school would make Allan want to swear. Wayland also tried to address Allan’s stress about losing friendships (P54).52 Allan was also extremely concerned about an upcoming overnight science trip to Cape Cod. He told Dr. Rosenn that he hated school, was going to blow up the teacher (Rosenn). On or about January 10, 2006, Allan told Parents that he was going to hurt the teachers at school by smashing their brains and throwing the brains in the trash (P22). Allan also brought up his discomfort about the Cape Cod trip to school staff frequently (Father, Kruss, Paine).
35. On January 26, 2006, Allan, in response to a journal prompt about what he thought about being in school when most schools are closed wrote
“ I LIKE it BECAUSE I am the ONLY kid in the class. I LIKE it that way BECAUSE it is easier for me. There isn’t anyone to do anything like the examples listed below;
1. MAKE Rude noises/burping farting
2. distract me from trying to do my work.
3. stealing my milk money or another special items.
and other things that are driving me JUST PLAIN CRAZY!
NOW that I am the only one here I can finally get something done around here!” (P58).
36. On January 31, 2006, Allan, in response to a writing assignment wrote:
SHUT UP!!! and on following pages wrote:
STRIKE 1 !!!,
STRIKE 2 !!!,
YOU TO A
LEAVE ME ALONE,
BEAT YOU TO A
LEAVE ME ALONE,
BEAT YOU TO A
37. Also in late January 2006 Allan wrote in response to a writing template:
“ School issues and homework can be a Big deal.” The examples Allan used were: “In seventh grade, there have been a lot of school issues.
· There has been the 7 th grade trip to Cape Cod issue.
· There has been the MCAS issue
· There has been the homework in math and science, even on Fridays.
Allan also elaborated on the Cape Cod trip. In comparison to the former paragraph, Allan’s handwriting was much bigger and sloppier. He wrote “ It is very difficult being a teenager because you have to do things that you really don’t want to do · …Everybody thinks that I can go to the Cape because I’m 13”.
In response to a later prompt Allan again wrote about the Cape Cod assignment. This writing sample was barely readable containing no spacing, irregular lettering and sizes. It read:
“ I don’t want to go to CAPE Cod AT ALL! I REAlly Don’t want to do Any difficult dumb activities, I don’t want to stay in a St UPID
C A B in with
I don’t want to do A n Yt hing.” (P56).
The teacher wrote that this was not Allan’s usual well written work (P56).
38. On February 2, 2006 a meeting occurred with Parents and Wayland regarding Allan’s resistance in going to the Cape. The Parties learned that Allan was afraid to eat and only ate pasta with butter, doesn’t want to sleep in the cabins, had self-care issue especially regarding showering, had no parent as a safety net, and was uncomfortable doing things required of him. Wayland was told that Allan was getting migraines from worrying about this issue and was vomiting. Parents were concerned that the Cape trip was a big part of the curriculum. The Parties decided that they would ease the pressure and leave it up to Allan to go if he wanted to go53 but that there would continue to be work related to Cape Cod with rewards of hot chocolate for doing the work (P57, Father, Farina). Allan and his teachers formalized this agreement into a contract on February 7, 2005 (S105). Allan was able to take part in a Cape Cod preparation trip on February 15, 2006 and he was less anxious about the Cape Cod trip (Paine, Kruss).54
39. In February 2006, during an unsolicited hug from Allan, one of Allan’s sisters accidentally bent a corner of Allan’s book while trying to escape his hug (P47, see also Father). Allan became enraged and chased his sister down the stairs causing her to fall and break her foot (Father, P47). Parents at that point realized that they could no longer control Allan in the home and began to accept Dr. Castro’s and Dr. Rosenn’s recommendations for residential placement (Father). Father however did not want to send Allan to a residential placement (Father).
40. The TEAM reconvened on February 28, 2006 to consider Dr. Castro’s report that was received by Wayland on February 9, 2006 (Father, Goldthwaite, Kruss, S11, see P22). Dr. Castro attended the meeting at Parents’ request (Father, Castro). Prior to the meeting Parents told Dr. Castro about the incident with Allan and his sister (Father, Castro).55 Dr. Castro at that point felt that Allan needed to be educated in a residential program (Castro).
41. At Parents’ request Dr. Goldthwaite agreed to have the TEAM meeting notes typed so that Parents’ advocate could review them as she could not be present at the meeting (Father, Goldthwaite, S11). Parents relayed the incident that had occurred between Allan and his sister resulting in his sister’s broken foot however the incident was not reflected in Wayland’s typed notes given to Parents and their advocate (Father, Castro, Kruss, compare S11, S11A).56 The TEAM also discussed the discrepancy of scores between Dr. Castro’s report and Allan’s performance at school and his reevaluation testing results from the 6 th grade. Wayland felt that Allan’s work and testing scores showed that Allan’s reading comprehension was not below grade level and also that all his scores did not reflect what he could do with the modifications, specialized instruction, redirection, incentives and the other accommodations that Wayland provided during his school day (S11, Father, Castro, Goldthwaite, Farina, see also S14). Dr. Castro told Wayland that it should look at all the factors as to why Allan’s cognition may have suffered including Allan’s level of medications, his seizure activity and his emotional state (Castro). Wayland saw more appropriate social interaction in school than was reported at home. It also did not observe Allan touching or petting other people at school or aggressive tendencies.57 Wayland also believed that Dr. Castro improperly interpreted the teacher’s answers on the Achenbach checklist leading to an inaccurate conclusion that Allan’s fear and anxiety had increased in school (Goldthwaite, Paine, Kruss, Farina, Castro, Father, see ( S14), but see e.g. (P29, P48, P50, P51, P54, P56, P58).58 Even though Wayland disputed the findings, it did not ask to do its own testing because Allan had been repeatedly tested and Wayland did not necessarily disagree with the results but the interpretation of the results (Goldthwaite, Farina).
Dr. Castro also highlighted Allan’s deterioration in his self-care and coping skills and the decline in friendships with other students. Wayland however believed that Allan was interacting well in his social skills group, sitting with these students at lunch, that kids liked him and he engaged with these students when cued to do so by the teaching assistant (S11, Goldthwaite, Paine, but see P52, P53, P55, P56). Wayland also believed that Allan’s impulsivity, aggressiveness and mood instability were not seen in the school setting to any degree anywhere similar to that described by the parents in the home setting (S11).59 Allan’s teachers felt that he dressed within the range of dress of other middle school students; see e.g. (Lehr, Paine) The Wayland members of the TEAM also expressed that they did not see any self-care issues, aside from Allan’s inability to tie his shoes60 (S11, but see P57). Dr. Castro believed, but did not inform Wayland, that Wayland may not have not seen Allan’s emotional and ADL deficits in school, but felt that this was because the program was not designed to notice, assess or address them (Castro). Wayland did however offer to have the APE teacher work with Allan on walking safely to school and offered to assist with teeth brushing and perhaps showering (S11, see also Fraser). Parents did not believe that this would be enough to address the issues (Father, see also Castro).
The TEAM also discussed Dr. Castro’s recommendation for services from the DMR/DOE grant and were told that there was a wait list of a couple of years before the possibility of receiving services (S11, Father, Castro). The Parties also discussed increasing therapy services through HRS to provide parent support in helping Parents handle Allan’s aggressive behaviors at home. However Dr. Castro and Parents indicated that the family had received many hours of behaviorally based therapeutic support in the home for management of his behaviors and these behaviors still continued to manifest in the home (S11, Father, Goldthwaite). Wayland also offered to add family therapy; however Parents indicated that Allan’s sisters had been in counseling and that they did not believe that it would be helpful at this time (Father). Wayland did not pursue this further, however, if they had, Father would have told them that family therapy had been attempted and that Allan had refused to get into the car and go to the sessions (Father, see Goldthwaite). Dr. Castro also felt that there was nothing less restrictive than a residential program that would be appropriate for Allan (Castro). Dr. Castro however does not remember whether he specifically made this recommendation at that meeting (Castro). Dr. Castro then left the meeting.
After Dr. Castro left, Parents requested that Wayland provide Allan with a therapeutic residential placement that would address his social and emotional needs. Wayland was surprised at the request for residential because prior to this meeting it did not feel that it received any information from Parents (or their advocate or any of their providers) that Allan was a safety risk, or any request from Parents or Allan’s providers for any additional services (Goldthwaite). Wayland recommended that the IEP be amended to include family therapy and support, coordination with Allan’s current after school program to include more structured time if feasible, and Allan’s participation in Wayland’s spring track program and summer programming at the Reed Academy61 (S11, Father, Goldthwaite).
42. On March 3, 2006 Allan refused to attend any more sessions of homework club. This was prompted by the teachers asking him to participate in physical activities and reading because he had completed the homework in school (P22). Allan continued to attend the BASE after school program but did not form any friendships from his attendance there (Father).
43. On March 6, 2006 Allan typed a letter to his parents that informed them that he felt that he had been treated at home, “really, really, really, really, really, really, really, really, really, unfairly and badly” and that he wanted to run away because Parents treated his sisters like queens of the entire galaxy and him like crud that they do activities with his sisters and not him; see (P37). Allan ended the letter with “P.S. Mom and dad. If you are reading this, I just wanted to let you know that: YOU PUNKS COMPLETELY RUINED/WRECKED/DESTROYED MY WHOLE ENTIRE LIFE!!! I HATE YOU!! THERE’S NOTHIN YOU DUMB DUMBS CAN DO TO FIX IT. THIS IS ALL YOUR STUPID FAULT!!!!!!!!!!!!”
44. On March 8, 2006 Allan had an interview and an overnight at Reed (Father). Reed believed that Allan would be appropriate for their program due to his social and academic delays and the fact that he had a family that would work with Allan and the program (Cohen). However, even though Reed had served Allan in its summer program for two years it was not sure whether it could handle Allan because of his poor ADL skills and the amount of staff required to meet his needs (Cohen). The interview however went well and Allan was accepted into the Reed Academy Residential program in Framingham, MA on March 9, 2006 (P39, Father, Cohen). Parents informed Wayland that Allan had been accepted to Reed on March 15, 2006 (Father, P22).
45. On March 23, 2006 Wayland sent Parents an IEP amendment that added individual and family counseling at HRS. The IEP also added an objective that Allan would increase his independent living skills in the areas of learning to walk to school and to independently brush his teeth (P9). Parents did not think the IEP was appropriate but Father was not ready to put Allan in a residential program and wanted to keep him in Wayland if at all possible. Parents therefore asked Dr. Castro to observe Allan’s program (Father, Castro, see P22). Dr. Castro observed the program on March 25, 2006; see (P22).
46. Dr. Castro observed Allan in his program at Wayland on March 25, 2006 (Father). Dr. Castro told Parents that he observed Allan perseverating about his sisters in school and that he had not changed his mind about Allan requiring a residential program (Father).
47. Wayland issued another progress report on March 28, 2006. Wayland indicated that Allan had not been overwhelmed, upset or uncomfortable in school until knowing about a school change62 (S10, see also Farina, but see (P56, P58). Wayland indicated that Allan was verbally expressing his angry feelings and writing about it. The rest of the progress report indicates that Allan was making progress and meeting his goals and objectives (S10). He was, for example, able, by December, to independently organize himself in his modified pre-algebra math class63 and able to engage with his math partner and other students (Lehr, Paine). Although Allan’s pace was slow and his memorization of math facts not well developed, Allan could answer most of the questions (i.e., regarding fractions, multiplication and integers) correctly when called upon by the teacher (Lehr, Kruss, Paine). He also engaged in science and although he did not like the labs, participated in them (Paine). Allan experienced no teasing in math or science and was quiet but appeared to be liked by the other students (Lehr, Paine). As in other classes Allan appeared well groomed and wore clothes that did not stand out as inappropriate (Lehr, Paine).
48. On April 4, 2006 Wayland received a copy of correspondence sent to Parents by Dr. Castro regarding his observation of Allan’s program in Wayland on March 25, 2005 (P7). Dr. Castro reported that he had observed Allan with two other children. Allan was well behaved but slightly lethargic. During the observation Allan produced at least a two-page essay that utilized capitalization, punctuation and paragraphing. However, toward the end of the observation Allan was not able to focus on his work because he was agitated that “his sisters had gotten away with murder” during a function where they sat separately from Allan and Parents.64 Dr. Castro also observed that Allan, when responding to a MCAS65 writing prompt about how they would spend a million dollars in a charitable way, elected to give the money to the “First Student Bus Company” to buy a new building and busses and was not redirected by the teacher (P7). Dr. Castro felt that this was inappropriate because Allan perseverated on busses in his play (P7, Castro). However, while Wayland was aware that Allan often talked about busses at school and often chose to write about busses, it did not know that he perseverated with them at home and did not know to redirect him (Goldthwaite, Paine, Kruss). Dr. Castro also in his correspondence to Parents reiterated that the IEP, even with the addition of family therapy, was not appropriate because the family had already received both home and center based behavioral therapy and consultation, social skills training, post-hospitalization treatment plans and individual and family therapy that did not result in observable improvements in either Allan’s home based behavior or his emotional state (P7, Castro, see also Father). Dr. Castro also indicated that it was no longer prudent to see if services were available from the DMR/DOE initiative and that given Allan’s intensification on harming family members and his lack of progress, a residential program was warranted (P7, Castro). Parents sent Dr. Castro’s report to Dr. Goldthwaite that day and informed her that they were rejecting the IEP and would be unilaterally placing Allan at the Reed Academy and were seeking funding from Wayland (P22, Father, Goldthwaite, S9). Dr. Goldthwaite immediately sent the rejected IEP to the BSEA and sent a letter to Father the following day informing him that Wayland would not place Allan at Reed because Wayland felt that the addition of family counseling and Allan’s continued attendance at the LAP program addressed Dr. Castro’s concerns ( see S8, S7). Wayland did not reconvene the TEAM to discuss Dr. Castro’s observation because it does not reconvene a TEAM after receipt of correspondence and did not feel that the letter provided any information that would change the TEAM’s placement decision (Goldthwaite).
49. On April 13, 2006 Allan wrote that he had a “ really, really, REALLY, bad, terrible, HORRIBLE”, week” because his sister spilled pencil shavings on his carpet, on his desk chair and on his computer and did not get into trouble. He believed that his sister owed him a new computer.
In regards to school Allan also indicated that on Monday during gym class the team goalie hit him in the “nuts”, that this happened later in the day during basketball; that on Wednesday, Allan’s basketball got stuck and he couldn’t get it down; that on Thursday the bus was “ very, very, very late” and that his special education teacher lost a bag of potato chips and then produced the wrong kind, that he didn’t get a brownie and that a classmate got a birthday treat even though he did not think it was her birthday; see (P38).
50. In late April Allan was one of the four middle school groups66 that participated in a variety show in his after school program (the BASE program) (Father, Goldthwaite). Parents debated whether they should let Allan participate because they thought that other students would laugh at him (Father). Allan juggled two balls (Father, Goldthwaite). After Allan performed he invited Father and one of his sisters to join him on stage; Id. Father did not go on stage because he believed that this would be inappropriate and was embarrassed for Allan. Ms. Goldthwaite however believed that Allan’s participation was beneficial and that the audience enjoyed Allan’s performance (Goldthwaite).67
51. In later April Parents informed Reed that they wanted Allan to attend and signed a contract with Reed on April 23, 2006 (Father, Cohen). Allan began attending the Reed Academy (Reed) on May 1, 2006 (Father). Reed Academy is a five-day therapeutic residential 766 approved program that services about twenty-four boys between seven and eighteen years old68 (Cohen). Most of the students are academically and socially behind their peers and may require help with their activities of daily living (ADL) (Cohen). Reed consists of an academic program, an after-school program that focuses on social interaction and recreational skills and a residential program that teaches daily living, cooperation and family skills (P41, P42, Cohen). Reed also uses an incentive plan where students earn points, based on goals in their IEP. Points are also earned for interacting appropriately with peers and adults. Points are then turned in for privileges (P44, Cohen). All students at Reed participate in group therapy twice a week, and individual and family therapy each once per week. Students also attend a six-week summer program (Father, Cohen, P41, P42). Parents are also required to meet weekly with a member of the Family Support team and to attend parent meetings and social functions (P41, Cohen, Father). Students go home for the weekend on Friday at 12:30 p.m. and return between 6:30-7:30 p.m. on Sunday night during the school year so that students can practice the skills that they have learned during the week at home. Reed however does provide support to Parents and backup for Parents on the weekends or during the vacation periods if needed (Cohen). During the summer students remain for a 6-week period until Friday at 4:30 p.m. and return to the summer program on Monday at 9:00 a.m. (P42, Cohen).
52. When Allan first got to Reed as a residential student he refused to do tasks he did not want to do and threw a lot of tantrums when required to abide by a rule, often insisting on his own rules (Cohen). He refused to eat any foods that weren’t pasta and butter, peanut butter and white bread or potatoes; (Cohen, see also Father). He also would not cut his food although capable (Cohen, see also Father). Allan also would not cut or clean his nails or wash his hands after he went to the bathroom (Cohen). Allan couldn’t or wouldn’t buckle his pants or tie his shoes (Cohen). Although able, Allan also wouldn’t brush his teeth or shower and had such bad breath and body odor that it affected his relationships with peers (Cohen, see also Rosenn). When Reed required Allan to brush his teeth or wash his body or hair he would lie about doing so even when confronted with a dry toothbrush or dry hair. He would also, despite several choices, attempt to wear the same pull over shirt and pants each day and would fight with staff when they tried to vary his choices (Cohen). Therefore Reed instituted a chart system and step-by-step instruction along with a reward system that included peer praise and earning tokens to use at the school store (Cohen). Academically Allan was on a 5 th grade level in math, and although creative, his handwriting was on a third grade level. He had difficulty in science and was very frustrated in social studies because he did not know many of the states the class was discussing and acted up in that class (Cohen).
53. A TEAM meeting occurred on May 11, 2006 to plan for Allan’s 8 th grade year (S6, Kruss). Parents continued to request residential placement at Reed. At this meeting Mother told Wayland that all Allan did in the afternoon before he enrolled at Reed was to lie on the floor and push his busses around (Paine). Wayland knew that Allan was very interested in busses and had an affinity for the bus driver (Paine, Goldthwaite, Kruss, but see P8/S14). However Wayland did not know the extent of his preoccupation with busses (Paine). After discussion Wayland concluded that its IEP was appropriate feeling that Allan was progressing in his academics, had some good self care skills such as cutting brownies and using sanitizer before lunch and was beginning to make social strides such as initiating conversation in homeroom, playing board games with his peers in the LAP program, participating in lunch bunch and the TAG group, inviting students to join him in adaptive PE and participating with other science students (including trying food) during a Cape-Cod preparation trip; see (Paine, Fraser, Lehr, Farina, Kruss).69 Therefore it proposed the same IEP as in February 2006 (S6, Goldthwaite, Father). Parents rejected this IEP (S6, Father). Wayland immediately sent the rejected IEP to the BSEA (S3).
54. Allan continued at Reed Academy during the summer and 8 th grade (SY 06-07) (Father, Cohen). During the summer Allan learned to shower, brush his teeth and toilet independently and was successfully engaging in individual, group and family therapy as well as therapy to address issues regarding his adoption (P6, Cohen).
55. On August 4, 2006 Parents sent Dr. Goldthwaite a report from Dr. Bauman (P22). Dr. Bauman reported that she saw Allan on June 16, 2006 and that Allan was much less defensive than previous examinations, was excited about attending Reed and spoke about the friendships he developed; that he had lost over five pounds and has had no migraines since attending Reed. Dr. Bauman recommended that Allan remain at Reed (P13).
56. On September 7, 2006 Parents sent Dr. Goldthwaite a copy of Dr. Castro’s evaluation of Reed (P22). Parents informed Dr. Goldthwaite that the report indicated that Reed was meeting Allan’s needs and again asked Wayland to place Allan at Reed, but if there continued to be no agreement that Parents would continue the unilateral placement at Reed and seek reimbursement (P22, see P6).
57. On September 12, 2006 Parents sent Dr. Goldthwaite a September 7, 2006 report from Allan’s pediatrician, Dr. Gundersheimer (P22). Dr. Gundersheimer reported that he had seen Allan in the office in late May 2006 and felt as if he was meeting a new person because Allan was excited, animated and full of enthusiastic stories about Reed and his new teachers and friends. Allan reported that he had learned to tie his shoes, had hit a homerun in baseball and although still overweight was exercising more than he ever had (P14). Dr. Gundersheimer recommended that Allan remain at Reed (P14).
58. The TEAM reconvened on September 18, 2006 at Parents’ request (Father, S2/P23). At that time the TEAM considered Dr. Castro’s evaluation of Reed, Dr. Bauman’s report of June 26, 2006 and the report from Allan’s pediatrician; Id. Wayland noted that Allan was adjusting well at Reed but did not further amend the IEP because it felt that a more restrictive program was not necessary and that effective progress had been occurring70 and would continue to occur in the LAP program (S2, see also Kruss).
59. If Allan had remained in the LAP program for 8 th grade he would have continued to receive math (algebra), social studies and science71 in an inclusion setting with a teaching assistant; see (S1, Goldthwaite, Kruss). He would have continued to be paired with two other children with reading and writing skills two to four years below grade level (Goldthwaite). Neither of these students has Aspergers’ nor Bipolar diagnoses (Goldthwaite). He would also this year be paired with a sixth grade female diagnosed with Autism who has more severe behavior than he; Id. Wayland does not feel that residential for Allan is warranted because residential would only be appropriate if there was no indication of progress being made academically or behaviorally, if the behavior is observable across settings and if those behaviors are of such a severity that even with increased therapy or increased frequency of therapy and coordination between home and school there is no trend to the positive; see (Goldthwaite). Wayland believes that Allan has made social progress because he has actively played board games with students in the LAP program, interacts with students at lunch, has participated in new activities such as snowshoeing and rollerblading and had participated as a bingo caller at a nursing home in the community; see (Goldthwaite, Paine, Fraser). Wayland does not dispute that Allan is doing well at Reed but also feels that its proposed IEP provides Allan with the same hour per week each of individual, group therapy and family therapy that he is getting at Reed (Goldthwaite). Wayland also feels that it also, like Reed infuses pragmatics throughout the day and has and will continue to provide coordination between teachers, the homework club two days a week and coordination with HRS for individual and family therapy (Goldthwaite). It is also willing to intensify the family therapy if needed (Farina). Wayland feels that the work that it has done with Allan generalizes within the walls of the school and that this process helps him generalize outside of school (Farina). However Wayland has also admitted that when Allan had left Wayland he was not generalizing what he had learned in school into the home and that direct instruction was not taking place in the home setting (Goldthwaite, Kruss, Paine, Fraser). Wayland feels that Allan was making some progress in making relationships at the Middle School but also acknowledges that Allan has made friends at Reed and did not have these reciprocal relationships at Wayland (Farina, see also Kruss). Wayland also acknowledges that Allan was able to develop these friendships because he was living with these peers and thus is able to intensify the relationship and that no public school setting would be able to parallel that (Farina).
60. In November 2006 Parents sent Dr. Goldthwaite correspondence from Dr. Rosenn, the IEP developed at Reed and a report from Dr. Castro regarding his most recent visit to Reed (P22). Dr. Castro repeated his recommendation to develop an IEP for Allan for a residential program at Reed (Castro). Dr. Castro reported improvements in Allan’s adaptive functioning and observed him actively participating in class, less lethargic and more animated. Dr. Castro also was pleased that Allan was having get-togethers with same-age friends on the weekends and was complying with Reed’s request to vary his clothing from sweats (P5, Castro). Dr. Rosenn noted Allan’s marked improvement in his mental status and his interaction with his family on weekends since his enrollment at Reed, and recommended that he remain there (P15, Rosenn). Dr. Rosenn has consulted with Wayland on other matters and has made recommendations on behalf of both parents and schools (Rosenn). Allan has been diagnosed with Asperger’s Syndrome, Tourettes Syndrome and Bipolar disorder and also has migraines and on occasion seizures. Dr. Rosenn feels that students with these disorders can, and often are successfully educated in a public school setting. However, the combination of factors in this child and the exacerbation of Allan’s anxiety, obsessive thinking, jealousy and rage, his lack of abatement of his perserverations and his poor ADL skills and difficulty establishing friendships exhausts and distracts Allan and impedes on his ability to absorb information in a way that he can fluidly use what he is learning spontaneously and apply it to real life situations (Rosenn). Allan has not made adequate progress in these areas despite good services from Wayland and services provided in the home, including counseling and family counseling (Rosenn, Castro, see Father). Allan’s issues regarding his adoption as well as his difficulty generalizing from one environment to another and his difficulty with transition would make less restrictive options not appropriate72 (Rosenn, Castro, see Father). Therefore, residential placement is appropriate at this time (Rosenn, Castro, Father, see Cohen).
61. In November 2006 Dr Rosenn lowered Allan’s Risperdal (Rosenn).73 In December 2006, Dr. Bauman lowered Allan’s Topomax. Allan has not experienced migraines since that time (P59, Rosenn). As of January 9, 2007 Allan’s dosage of Risperdal has again dropped. Since Allan has been at Reed he no longer takes Clonodine and Benadryl because he is able to get to sleep without these medications (Rosenn).
62. Allan continues to make steady progress at Reed (Cohen). He continues to shower and brush his teeth, is now using toilet paper instead of wipes, is eating a variety of foods, including fruits and vegetables and no longer requires tokens to vary his dress (Cohen). Allan is grouped academically with four boys of similar age and profile and is participating in class. He no longer plays with his toy busses (Father). He is interacting better with his sisters and parents and uses some of his tokens to buy things for them in the school store (Cohen, Father). He continues to require step-by-step instruction to build his social interaction skills but is now participating in birthday parties, talks on the phone with boys from Reed, has gotten together with boys from Reed on the weekend and has on many occasions stated that he likes school (Cohen, Father, Castro, Rosenn). Although other students did sit with Allan at lunch when he attended the Wayland Middle School and would be nice to him, he did not expand his interactions with these students or other students at the Middle School despite social pragmatics instruction and a lunch bunch at Wayland (Father, Paine).
63. Reed, Parents and Allan’s providers are pleased with Allan’s progress. However, Allan has not made enough progress to leave Reed at this point because he still requires consistent and coordinated instruction along with therapy to address follow through with his ADL, behavior and social interaction skills (Cohen, see also Castro, Rosenn).
FINDINGS AND CONCLUSIONS
At issue is whether the program and services that Wayland offered to Allan through the LAP program, with the addition of family counseling provides Allan with a free appropriate public education (FAPE) in the least restrictive environment (LRE). A subsidiary issue is whether in the event Student does require residential services, whether those residential services are needed for educational reasons.
A. THE FAPE STANDARD
Under the federal FAPE standard, an educational program must be provided under an IEP that is tailored to the unique needs of the disabled child and meets all the child’s identified special education and related service requirements. This includes academic, physical, emotional and social needs; Lenn v Portland School Committee , 910 F. 2d 983 (1 st Cir. 1990), cert. Denied, 499 U.S. 912 (1991) and Burlington v Mass. Dept. of Education, 736 F. 2d 773, 788 (1 st Cir. 1984); see generally 34 C.F.R. s. 300.347. In addition, the IEP must be reasonably calculated to provide a student the opportunity to achieve meaningful educational progress. This means that the program must be reasonably calculated to provide effective results and demonstrable improvement in the various educational skills identified as special needs; Roland v Concord School Committee , 910 F. 2d 983 (1 st Cir. 1990).
B. LEAST RESTRICTIVE ENVIRONMENT (LRE)
In addition to meeting the above standard, special education and related services must be provided in the least restrictive environment. This means that to the extent appropriate, students with disabilities must be educated with children who do not have disabilities. Programs and services can only be implemented in separate settings when the nature and severity of the child’s special needs is such that the student can not make meaningful progress in a regular education setting even with the use accommodations and specialized services; see 20 U.S.C. 1412 (a)(5)(A). In Massachusetts, the IEP must also enable the student to progress effectively in the content areas of the general curriculum; 603 CMR 28.02 (17). Massachusetts has defined “progressing effectively in the general education program” as “mak[ing] documented growth in the acquisition of knowledge and skills, including social/emotional development, within the general education program, with or without accommodations, according to the chronological age and developmental expectations, the individual educational potential of the student and the learning standards set forth in the Massachusetts Curriculum Frameworks and the curriculum of the district”; Id.
C. THE REIMBURSEMENT STANDARD
Parents may be reimbursed for the costs of providing special education and related services for their eligible children if they demonstrate that the program and services offered by the school district are inappropriate, and that the program and services that they obtain privately are appropriate. School Committee of Town of Burlington , Mass. v. Dept. of Education of Mass ., 471 U.S. 359, 369-70 (1985).74 Reimbursement is an equitable remedy. The amount of reimbursement to be awarded is determined by balancing the equities; see e.g. Burlington (supra).
D. THE RESIDENTIAL STANDARD
An IEP designating a residential program is appropriate only if the severity of the student’s special needs is such that he cannot educationally progress effectively in a less restrictive environment, even with the use of supplementary aids and services; see 603 C.M.R. 28.06(f). The courts have approved residential educational placements, for example, for students who need a comprehensive, 24-hour, highly structured special education program that would address students’ social and behavioral needs in a consistent manner. David D. v. Dartmouth School Committee , 775 F.2d 411 (1st Cir. 1985).
The courts have also recognized that, in an appropriate situation, residential educational services may be provided by combining a day educational program with a group home, where the group home meets “specific educational criteria.” Abrahamson v. Hershman, 701 F.2d 223, 229 (1st Cir. 1983). The IDEA however does not require local school districts to finance foster care if the need for such care is solely noneducational in nature and a student can progress effectively in a less restrictive environment; see Abrahamson at 227-8. Wayland however, is not absolved of providing Allan with residential services if he needs them in order to learn simply because Allan may also need the same type of placement for safety or mental health reasons. See Abrahamson v. Hershman , 701 F.2d 273 (1983); David D. v. Dartmouth School Committee , 775 F2d 411 (1985), Mohawk Trail Regional School District v. Shaun D. , 35 F. Supp. 2d 34 (1999).
E. ALLAN’S NEED FOR A RESIDENTIAL PROGRAM
After careful review of the testimony and documents presented in this case the record is clear that Allan, at this time, requires a coordinated and highly structured therapeutic academic residential program that also addresses his deficits in social interaction and his anxiety, in order to make meaningful and effective educational progress.
There is no dispute that Allan is a student with special learning needs as defined by M.G.L. ch. 71B and 20 U.S.C. 1401 et seq. , and is thus entitled to receive a free, appropriate public education within the least restrictive environment. Allan has been diagnosed with several disabilities including, but not limited to, Asperger’s Syndrome (Asperger’s), Tourette’s Syndrome and a Mood Disorder with Bipolar features. He has learning difficulties such as deficits in organization and deficits in visual processing, fine motor and handwriting skills and language recall problems. Allan also has deficits in basic ADL such as tying his shoes and toileting and suffered from migraines caused by stress. Allan displays many of the features typical of children (and adults) with Asperger’s including difficulty in social situations because he does not always accurately perceive social cues or know how to interact in an age appropriate manner. Allan also perseverates on narrow interests such as busses, French fries and unfair treatment relating to his sisters, and has shown oppositional behavior and at times poor anger management. Allan also experiences anxiety in situations where he has to transition or when he experiences stress either at home or at school; see (Rosenn, Father, Castro). In addition, Allan has uncontrollable and disfiguring tics, attributable to his Tourette’s Syndrome as well as the accompanying obsessional thinking, perseveration, and at times odd social ideas (Rosenn). Allan also has a mood disorder that has resulted in paranoid and psychotic thinking, difficulty regulating his emotions and this has exacerbated his anxiety (Rosenn, see also Castro, Father). Allan also suffers from poor self-esteem that has led to concerns of depression. He also displays anxiety in response to his social and behavioral deficits both at home and at school and in response to academic deficits and stress at school. When this anxiety increases, Allan’s ability to think clearly declines and he is more prone to migraines, both of which decrease his ability to access the curriculum. Allan has displayed these difficulties in the special education classes in Wayland, in his inclusion classes, at the BASE after school program and in the community.
The Parties agree that Student requires a well-structured therapeutic program that addresses his social and behavioral deficits and also addresses his organizational and language recall difficulties. The Parties also agree that the current IEP should include an extended year program.75 Numerous less restrictive options have been tried by Wayland and/or Parents to attempt to keep Allan in his community. These have included (but are not limited to) a good therapeutic special education public school program staffed by well qualified and caring professionals, numerous accommodations, academic support, pragmatic instruction and social skills groups, individual therapy through school, consultation from the OT and speech/language pathologist, individual and family therapy, support groups, medical intervention, hospitalization, involvement of DMH through a CAP assessment, behavioral plans, ongoing written and verbal communication, involvement in community activities and after school programs and a therapeutic extended year program. However, despite all of these interventions, Allan showed no improvement in generalizing social skills at home, did not form meaningful reciprocal friendships and showed no improvement in the ADL skills that Wayland attempted to, and could address, in a public school setting. Wayland’s own progress reports show that academically, Allan was not able to generalize the use of his organizer in his journal assignments, showed a steady decline in his willingness to do homework, did not have a good grasp on his math facts despite above average intelligence and scores in the superior range three years prior, and declined in achievement levels.76 Therefore Allan requires a therapeutic residential program that can address his academic and social needs so that he can generalize what he has learned in a coordinated and consistent manner as required by David D. v. Dartmouth School Committee , 775 F.2d 411 (1985) and Mohawk Trail Regional School District v. Shaun D. , 35 F. Supp. 2d 34 (1999).77 Wayland shall immediately develop an IEP for a residential placement for Allan.
F. REIMBURSEMENT ISSUES
A parent may be reimbursed for the costs of a unilateral placement if that placement is “appropriately responsive to [a student’s] special needs;” i.e., so that the student can benefit educationally. Matthew J. , 27 IDELR at 344. After careful review of the record I find that the Reed Academy was, and will continue to be, appropriately responsive to Allan’s special needs.78 As such Parents should be reimbursed for Allan’s program there.
Parents shall be reimbursed for their unilateral placement of Allan at the Reed Academy from May 1, 2006. Wayland will develop an IEP for a residential program at Reed.
By the Hearing Officer,
Joan D. Beron
Date: March 23, 2007
Allan is a psuedonym used for confidentiality and classification purposes.
The Parties initially jointly requested that the record close on February 27, 2007 to allow for submission of written closing arguments. The date was extended to March 9, 2007 by mutual request of the Parties because three of the five days of transcripts had not been received. The School District’s request to extend the submission date to March 16, 2007 was granted, with no further extensions.
Father rejected this IEP on April 4, 2006 (S9).
The IEP mentions science twice and eliminates social studies; however this appears to be an error; compare (P24, P25).
Wayland does not dispute the appropriateness of Reed Academy if Wayland’s program is found to not provide a FAPE but maintains that Allan does not require a residential program for educational reasons.
Allan also received occupational therapy in elementary school to address handwriting issues. Allan’s handwriting is currently readable except when under stress (Father).
Allan was in second grade at that time. He repeated second grade with the same teacher (Father, see S72, S60).
Dr. Rosenn began seeing Allan in the spring of 2001. Allan had been on Rispridal since February 2000. He had also been on a number of serotonin blockers, antidepressants, mood stabilizers and Clonodine and Tenex to control his tics and impulsivity. Allan also had a brief trial of a psychostimulant to address attention issues (Rosenn). Dr. Rosenn began treating Allan with Risperdal, Depakote and Clonodine (Rosenn). Dr. Bauman also prescribed Topamax to treat Allan’s migraine headaches. Risperdal was discontinued in June 2001 (3 rd grade) due to weight gain and potential side effects such as diabetes and Tardive Dyskinsia (Rosenn). However Allan’s behavior was so out of control that he was put on Geodon in October or November 2001. He remained on Geodon for several months; however Allan, unlike most patients, developed a ravenous appetite and his mood, behavior and academic focus deteriorated (S60, Rosenn). Allan was taken off this medication. Allan then experienced a resurgence of his motor tics including shoulder rolling, growling, facial grimacing and eye blinking (Rosenn). Dr. Rosenn put Allan on Seroquel in February 2002 (Rosenn). Dr. Rosenn referred Allan to Yale for a psychopharmological consult. After consultation Allan was put back on 1.5 mg Risperdal in May 2002 (Rosenn).
The family informed Southborough that it was moving to Wayland in June. Wayland received educational information from Parents in April 2003 (P22). The IEP was developed with input from Southborough and Wayland (Father, see S55).
At the time of this admission Allan was receiving Risperdal (to treat anxiety), Topomax (for migraines and tics), Clonodine and Benadryl (P16, Rosenn ). During hospitalization Allan received Lithium to address mood lability.
Wayland also requested permission to conduct an adaptive physical education evaluation. Permission was given and an evaluation was completed on September 24, 2003 (Father, see S52, S54).
This IEP was partially rejected (S55/P28). The Parties were able to work out their differences (Father, see S55).
Even though Allan had improved in this subtest he remained almost four years behind in this area (P9).
Allan’s highest standard scores on the WISC-IV (absent the letter-number sequencing) occurred in September 1998; compare (P9, P10, P12).
Allan’s standard score (SS) in word reading in November 1999 was 118. In September 2003 Allan received a SS of 101. In Math reasoning Allan was a year behind grade level with SS’s falling from a 96 in November 1999 to an 80 in September 2003. WIAT scores achieved in October 2001 also show a decline, however Dr. Castro believed that Allan’s anxiety during testing might have prevented full assessment (P9).
Parents told Allan’s 5 th grade teachers that Allan was also having trouble with zippers and snaps and Wayland built in extra time to address this issue (Father). However, the issue was not resolved. It does not appear that Dr. Castro knew about Allan’s fine motor deficits when he made his recommendation for OT or that this issue was discussed at a TEAM meeting.
Allan’s dosage of Topamax was substantially increased since his September 10, 2003 discharge from Fransiscan Hospital; compare (P16, S51).
Wayland did not received Dr. Bauman’s November 2003 neurology report or Dr. Castro’s September and October 2003 evaluations until late January or early February 2004 (Goldthwaite, Father).
Tourette’s syndrome is a neurological disorder. Those with Tourette’s have intense moods and anxiety as well as disfiguring tics or other body movements often accompanied by obsessional thinking, perseveration and/or odd social ideas; (Rosenn). Often people with Tourettes also have accompanying low self-esteem or depression; Id.
The CAP plan does not indicate why Allan was denied eligibility.
Parents requested that Allan attend the Reed Academy summer program rather than Wayland’s Pegasus program. The Parties agreed to revisit this issue in May 2004 (Father).
Parents sent Wayland correspondence on March 15, 2004 informing them of omissions in the Parent’s concerns section of the IEP. Wayland admitted that they had made a clerical error and sent Parents the changes on March 19, 2004; see (S44).
The IEP meeting to review the OT evaluation was rescheduled on two occasions by mutual agreement; see (SS42, S44, S46).
Mother told Dr. Bauman in June 2004 that Allan fell apart occasionally in class, did not like to eat in the cafeteria and regressed after the Christmas and spring breaks. It does not appear that this was discussed at the TEAM meeting and Wayland received no reports from Dr. Bauman until 2006. Dr. Bauman has never observed Allan in any of his programs.
It does not appear that Allan’s inappropriate interaction with his sisters was discussed specifically at the TEAM meeting. It was however noted in the 5 th grade communication books; see (Kruss). These books were not passed on to Ms. Kruss (Kruss).
Allan’s behavior that had a delusional quality coincided with a decrease in Risperdal. In April 2004 Dr. Rosenn decreased Allan’s Risperdal due to the drug’s potential side effects (P36, Rosenn). Allan was more irritable and his mood was more labile (Rosenn). Allan’s lethargy also did not decrease because lethargy had become a learned behavior to alleviating stress (Rosenn). Allan’s Rispirdal was reelevated in approximately July 2004 (Rosenn).
The teaching assistant was Andrea (Andi) Paine. She does not have a teaching degree but does have college experience and has worked in the Wayland Public schools for 15 years. Ms. Paine also has raised four children, one of whom has special needs (Paine).
Wayland also has a behavioral alternative program that services children whose primary disabilities are social, emotional and behavioral and who struggle with behavioral problems in the home as well as school. This program targets specific behavioral goals and a reward system (S65). The TEAM did not discuss this program because Wayland felt that the students in that program had more behavioral challenges than Allan and were more academically behind (Goldthwaite, see S65).
Ms. Kruss indicated that if Wayland had known it might have been able to include some items such as teeth brushing but that it could not address teaching of showering or hair washing during the school day (Kruss).
Wayland reflected this through teacher notes that were shared with Parents during discovery.
Allan also had difficulty with almost any noise that occurred at home resulting in sleep difficulties and/or becoming upset (Father, see e.g. P22, S103 )
Wayland maintains that the SLP provided this consultation; however the TEAM did not reconvene to provide for this consultation, the IEP does not contain any consultation between the SLP and BASE, nor do any progress reports exist. No witness from Wayland could explain what the substance of this consultation was and the SLP and BASE did not attend the hearing. Therefore the Hearing Officer concludes that it is more likely than not that consultation did not occur.
It does not appear that Wayland reported these incidents. Dr. Bauman saw Allan on November 22, 2004. She concluded that 1/3 of individuals on the autism spectrum experience seizures at some point during their lives; however many children can have one or two events and never have another; see (S96). Allan had a five-minute seizure on June 15, 2005. Allan’s Topamax was increased. He has not had a seizure since that time (S94).
Dr. Bauman indicated that as of Allan’s November 22, 2004 visit he had a dramatic decrease in his migraines (about two per month), but was exhibiting a number of tics such as cracking his joints or moving his head and chin; see (S96). Wayland did not receive Dr. Bauman’s report until 2006. Dr. Bauman did not testify.
Allan would often perseverate about liking mashed potatoes (Paine).
Allan was also teased in reading group by two other boys in the LAP program. This did not occur in 7 th grade (Kruss).
An April 28, 2005 entry by Ms. Kruss in Allan’s 6 th grade communication book indicates that Allan received raised eyebrows and strange looks from the more mature kids in his special education class when he brought a turtle bean bag to school; see (S104). Allan was also interested in bringing in his Gymboree parachute to school and played with Playskool buses and bubbles; see (Father, P47)
Allan’s Risperdal was reduced on February 17, 2005 and then reduced again on March 4, 2005. Ms. Kruss speculated that Allan’s lack of focus might have been due to the reduction of Risperdal; however no one from Wayland contacted Dr. Rosenn to determine if this might be the case (Goldthwaite, Rosenn). Allan also had migraines during this time which made him tired (Father, see (S103, P22). When Allan had migraines the night before he was often tired for the first half of the day (Kruss).
Allan’s scores on previous achievement testing done in Southborough in 1992 show all scores in the average, above average and superior ranges; see (S64, S70). Southborough used the WIAT to assess language arts skills. Wayland did not repeat testing with the WIAT because Wayland had purchased the WJ-R (Goldwaithe).
Ms. Kruss noted in her report that Allan’s scores were lower on reading and spelling subtests because he worked slowly and methodically and did not finish the tests and that Allan’s focus was lower due to a .50mg decrease in Risperdal (S23).
The TEAM agreed in November 2004 to add MCAS accommodations; see (S32).
For example, Allan did go on a Museum of Science trip in 6 th grade but remained with Father and did not interact with peers (Father). It does not appear that the Wayland special education staff knew that Allan did not interact with other students on this trip; see (Paine).
On the day of the TEAM meeting Allan had an appointment with Dr. Bauman (S95). Dr. Bauman indicated that Allan continued to show substantial social immaturity; that Parents requested a 12-month program for him. Dr. Bauman recommended both that Allan should continue in his current program and that he required a five day/week, full day program; see (S95). Allan again went to see Dr. Bauman on July 1, 2005. Dr. Bauman indicated that he seems to be doing quite well and that he should go on to 7 th grade in Wayland Middle School as planned (S94). It is unclear whether Dr. Bauman was referring to Allan doing well with school or with his medication, or the source of Dr. Bauman’s information. Dr. Bauman did not testify.
Allan’s Risperdal had not been recently increased. Dr. Rosenn increased Allan’s Risperdal in April 2005. It had not been further increased and decreased after he left the LAP program (Rosenn).
Allan’s special education teacher completed the Achenbach Child Behavior checklist for Dr. Castro (P8).
For example Allan asked a middle school classmate to see Curious George and liked to play with busses and preschool games (Paine, Kruss). He believed in Santa Klaus until 7 th grade (Kruss).
The teacher ranked all of these behaviors with a “2” rating meaning that they were very true or very often happened; see (P29). There were also many criteria rated with a “1” (sometimes) rating. These behaviors include but not limited to, headaches, underachievement, getting teased, difficulty following directions, defiance and poor school work; see (P29).
On the WISC-IV Allan received a SS of 75 in verbal comprehension. His previous score two years prior (9/03) was an 85, with SS of 93 in October 2001 and 99 in September 1998. In Perceptual reasoning Allan received a SS of 61, with SS’s of 77 in September 2003, a SS of 82 in October 2001 and a 90 in September 1998. His working memory dropped from a SS of 91 in September 2003 to an 83 in September 2005. However, Allan’s processing speed score was a 62 in September 2005 and a 59 in September 2003. All of the WISC subtest scores (both verbal and nonverbal) were at their lowest with the exception of the Similarites subtest which was an 8 in September 2005 and a SS of 7 in September 2003. Allan’s SS in the Similarities subtest however had been a 10 in September 1998.
Allan’s SS in Word Reading in September 2005 were a 92, in September 2003 a 101, in October 2001 a 117 and in November 1999 a 118 (all results in November 1999 were from the WIAT-I). In Reading Comprehension Allan’s SS was a 70 in September 2005, an 88 in September 2003 and a 108 in November 1999. In Numerical Operations Allan’s SS was a 73 in September 2005 and a 77 in September 2003. In Math reasoning Allan’s SS’s were a 68 in September 2005, an 80 in September 2003, a 94 in October 2001 and a 96 in November 1999; see (P8).
Dr. Castro used the WRAMA Pegboard to assess fine-motor, the VML to assess visual processing and motor responding and the Rey-Osterreith Complex Figure subtest. Scores on the Rey-Osterreith were markedly diminished as compared to results obtained in 2003; see (P8). Dr. Castro used the WRAML Sentence Memory and WRAML Story Memory to assess language processing. Scores on language tests were in the low average to deficient range.
For example, on or about November 22, 2005 Allan’s family got a puppy that they had to immediately give up because one of the family members had allergies. Parents told Wayland that Allan was upset; however Allan was able to work through this effectively by having a stuffed puppy; see (S103, Kruss).
Wayland asserts that Allan was worried about his friend because he was having brain surgery (Goldthwaite, Paine). However, the friend was having brain surgery in late December 2005 (S103). Allan’s journal entry occurred on November 2, 2005 (P53). He indicated that he was worried that he and this other boy were not good friends anymore because this boy didn’t come to play very often and that it seemed liked that boy didn’t want to be Allan’s friend; see (P53). Ms. Kruss gave Allan strategies to address this; Id.
Wayland was hoping that Allan would be able to participate because he had, with staff encouragement, gone on a farm field trip earlier in the year that he didn’t want to go to and was successful. (Paine, Kruss, Farina). He also participated in a snow shoeing field trip and loved it (Fraser). He was also beginning to participate in a recycling program once a week (Kruss).
In the communication book there is one entry that Alan had a calm night on 2/3/06 and did not talk about Cape Cod (S103). Wayland maintains that the contract resolved the issue. No further evidence was presented from Parents regarding either escalation or lessening of Allan’s anxiety about the Cape trip.
Parents were concerned that Allan showed no remorse about breaking his sister’s foot. They did not share this with the TEAM (Father). There were other incidents between Allan and his sisters, however these were not reflected in the communication books (Paine, Kruss, see S102, S103). This was because Parents were trying to keep things upbeat or to just get Allan off to school (Father, see also Paine, Kruss). Concerns however were reflected in the Parents’ concerns statements of the IEPs; see e.g. (S19, see also S93).
Although Dr. Goldthwaite should have noticed that information was missing from her handwritten notes when she reviewed the typed version, it is likely that this information was not deliberately withheld. Dr. Goldthwaite’s handwriting is, respectfully, extremely difficult to read and is likely to be missed in transcription; see (S11A).
It does not appear that the TEAM discussed this; see (S11).
The Achenbach checklist asks teachers to make subjectively assess a student’s academic performance with four criteria: far below grade level, somewhat below grade level, at grade level, somewhat above grade level and far above grade level. It also asks teachers to assess how hard a student is working with criteria ranging from much less to much more. The meat of the assessment calls for the teachers to assess a number of behavioral criteria with a 0 rating for not true, a 1 rating for somewhat or sometimes true and a 2 rating from very true or often true (Kruss, Paine, see (P29). The teachers felt that they had to rate certain behaviors with a 1 rating even if they occurred only one time and did not know that they could comment on criteria except where the test asked them to give a description (Paine, Kruss). However, the teachers ranked many behaviors with a “2” rating.
In addition the communication log between home and school indicated that Allan had had many good weekends at home; see generally (S103). Wayland did not bring this up at the TEAM meetings.
Wayland at one point tried to address shoe tying with Allan but were not successful (Father). Shoe tying was not a primary focus of Allan’s program (Kruss, see also Paine).
However, neither the February 2006 IEP or subsequent IEPs include extended school year programming; (Goldthwaite, see (S9, S6).
The progress report does not indicate when Allan knew about possibly changing schools. Allan mentioned a new school in December 16, 2005; however Parents explained on December 19, 2005 that Allan had run into a camp mate that was going to a new school; see (S103). Ms. Paine believed that Allan might have been talking about attending another after school program (Paine). Parents told Wayland that a new school was something that they would explore but nothing more at that point. Allan went on an overnight at Reed in March 2006. It is more likely than not that Allan knew about a possible school change in March 2006; see (Kruss). Allan showed some anger in late April about going to Reed but also displayed some positive feelings about it (S103, Kruss).
This class had nine students, seven with special needs. There was also, in addition to Mr. Lehr, Ms. Paine or her job share partner Ms. DeSalvo, and one other adult in the room (Lehr, Paine). The pace in that class is slower with more use of manipulatives and concrete thinking (Lehr).
Ms. Paine also testified that Allan spoke a lot about his sisters, that they often annoyed him or that he wanted them to go away (Paine). Wayland worked on social stories around these and other issues (Paine, Kruss, Farina).
Allan passed the MCAS Language Arts section. Allan did not take the MCAS Math test because he was already at Reed (Goldthwaite).
Most of the participants were from the three elementary schools; see (S4).
Allan’s math teacher also went to see Allan at his Special Olympics basketball game. He did not see Allan play however Allan appeared to be comfortable with the team (Lehr).
Admission to Reed can occur at any time during the year; however boys can not be older than thirteen for admission (Cohen, see (P42).
The Parties talked generally about Allan’s progress however it is unclear whether these specific examples were discussed at the TEAM meeting.
For example Allan’s writing became more organized, his repertoire of reading expanded, he was beginning to make predictions in reading, was more tolerant of rule changes when playing board games, in 7 th grade did not sit alone at lunch and with assistance was expanding his topics of conversation beyond food (Kruss). Ms. Kruss testified to these occurrences during hearing. It does not appear that these items were specifically discussed at TEAM meetings.
The schedule Wayland produced in response to discovery did not include science; see (S1). Allan’s teacher indicated that the schedule was wrong and if she had looked at it, the schedule would have been corrected to reflect that Allan would be receiving one period of language arts and science would occur during the second language arts period (Kruss). The teacher was credible.
DMH services were explored. DMH has found Allan ineligible. Allan would not be successful in a foster or group home due his adoption issues and these placements could not provide the coordination Allan requires even if one were available (Rosenn, Castro).
Allan remains on Lithium (P61). This dosage has also been reduced (Rosenn).
To be deemed appropriate, so as to qualify parents for reimbursement, the parents’ chosen program need not be a state approved special education school, so long as it is does meet the federal FAPE standard; Matthew J. v. Mass. Dept. of Education , 989 F. Supp. at 387, 27 IDELR 339 at 343-344 (1998), citing Florence County School District Four v. Carter , 510 US 7, 13 (1993); Thus, a parent may be reimbursed for the costs of a unilateral placement if that placement is “appropriately responsive to [a student’s] special needs;” i.e., so that the student can benefit educationally. Matthew J. , 27 IDELR at 344. Reed however is a state approved special education school. Wayland agrees that if the Hearing Officer finds that Allan requires a residential program for educational reasons, Reed would provide appropriate services.
Extended year programming is not listed on the current IEP; however, Wayland has always offered this option through a day program in the past and indicated that it would continue to offer it.
Wayland asserts that Dr. Castro’s latest testing is not valid. However, even if the latest testing is not considered, comparison of Dr. Castro’s former testing and examination of Allan’s achievement levels in Southborough in 1 st and 3 rd grade and Wayland in 6 th grade, show a decline or lack of growth.
Both David D . and Shawn D. were decided under a maximum feasible analysis. However, the standard for a residential program has not changed. Allan requires a residential program under the FAPE standard.
Wayland also has agreed that if its program is found not to be appropriate that Reed does provide a FAPE for Allan in the LRE.