Amelia v. Boston Public Schools – BSEA # 06-3610
COMMONWEALTH OF MASSACHUSETTS
BUREAU OF SPECIAL EDUCATION APPEALS
In Re: Amelia1 v. Boston Public Schools
BSEA # 06-3610
This decision is issued pursuant to the Individuals with Disabilities Education Act (20 USC 1400 et seq .), Section 504 of the Rehabilitation Act of 1973 (29 USC 794), the state special education law (MGL ch. 71B), the state Administrative Procedure Act (MGL ch. 30A) and the regulations promulgated under these statutes.
A hearing was held on April 26, May 1, 2 and 3, 2006 in Malden, MA before William Crane, Hearing Officer. Those present for all or part of the proceedings were:
Jamie Hirsch Mental Health Counselor, Home for Little Wanderers
Mary-Ellen Effernen Consultant, Effernen and Whittle
David Urion Director, Learning Disabilities/Behavioral Neurology Program, Children’s Hospital, Boston
Myles McNamara Teacher, New Mission High School
Weddee Neufville Academic Support Teacher, New Mission High School
Theresa Maronna Speech and Language Pathologist, Boston Public Schools
David Perrigo Principal, New Mission High School
Nilsa Walker Assistant Program Director, Boston Public Schools
Kathryn Rucker Attorney for Student, Center for Public Representation
Erin Abrams Law Student, Center for Public Representation
Jill Murray Attorney for Boston Public Schools
Andrea Alves Thomas Attorney for Boston Public Schools
Alissa Ocasio Attorney for Boston Public Schools
Elizabeth Kurlan Senior Program Director, Litigation, Boston Public Schools
The official record of the hearing consists of documents submitted by the Student and marked as exhibits 1 through 44, except that exhibit 31 was not admitted; and approximately four days of recorded oral testimony and argument. As agreed by the parties, written closing arguments were due on May 16, 2006, and the record closed on that date.2
The issues to be decided in this case are the following:
1. Is the IEP most recently proposed by the Boston Public Schools (Boston) reasonably calculated to provide Student with a free appropriate public education in the least restrictive environment?
2. If not, can additions or other modifications be made to the IEP in order to satisfy this standard?
3. If not, would placement at a substantially separate day placement for children with Student’s profile satisfy this standard?
4. Has the most recently proposed IEP been implemented fully by Boston?
5. If not, are compensatory services owed Student and if so, what compensation is due?
SUMMARY OF THE DISPUTE
This is a dispute as to whether a freshman in high school, who has deficits regarding learning, language, social skills and emotional issues, should continue to receive her education within the inclusion setting of the New Mission High School in Boston, as recommended by the Boston teachers and staff who currently work with Student; or conversely whether she should be educated within a substantially separate educational program that would allow her to learn academically and socially with other children who have similar special education needs, as recommended by Parent and her expert witnesses.
For the reasons set forth within this Decision, I conclude that Student’s placement at New Mission is appropriate, but that additional services should be provided in order to provide Student with a free appropriate public education. I further conclude that Boston has failed to implement fully the current IEP, with the result that compensatory services are owed.
Student is a fifteen-year-old young woman (date of birth 11/19/90) who lives with her mother (Parent) and two siblings in Boston. Student is a 9 th grader at the New Mission High School, which is a regular education pilot school within the Boston school district. Testimony of Parent.
Student has many strengths. She is a charming young woman who loves to learn and who is highly motivated to do well academically in school. Student is friendly and gets along well with peers and teachers, she has an excellent sense of humor, and she very much wants to please others. Student likes to write and has a flair for the dramatic. Her intelligence is average or above. Testimony of Parent, Hirsch, McNamara, Effernen.
Student also has multiple deficits. These include significant semantic and pragmatic language deficits – semantic language referring to higher level integration and inference skills, understanding the intent of the author, and the overarching synthesis of the language; and pragmatic language referring to the skills necessary to socially interact appropriately, including the more subtle forms of communication such as body language and facial expressions. Testimony of Maronna, Effernen, Urion.
Student also has significant social limitations. Her social life is essentially limited to school, and yet she has never formed any meaningful friendships with any of her classmates. Her only friends have been her siblings, with the result that she has felt segregated from the outside world. Student assumes that everyone will be friendly to her, with the result that she does not recognize the potential safety concerns relevant to strangers. She also has significant other limitations regarding her community/independent living skills. Testimony of Parent, Hirsch, Effernen.
It is likely that Student has witnessed abuse in the family and may have been physically and/or sexually assaulted by one or more other students. She is considered to have a trauma history that has affected her within and outside of school. She has, at times, felt fearful, insecure and overwhelmed. At these times, she has very occasionally had outbursts but more often withdraws or has a “freezing spell.” She sometimes inhabits a fantasy world that she has created. Testimony of Parent, Hirsch.
EDUCATIONAL SERVICES BEING PROVIDED PURSUANT TO THE IEP
Student’s current individualized education program (IEP) has placed her within an inclusion setting at the New Mission High School. All of her classes are with a combination of regular and special education students – typically approximately five special education students and fifteen regular education students. A special education teacher participates with a regular education teacher in all of Student’s content area classes. Also, within the general education classroom, Student is to receive socialization skills from a psychologist for 30 minutes, once per week. Exhibit 3.
Student’s most recently proposed IEP further provides for direct services as follows: speech and language services for 30 minutes, three times each week, and academic remediation for 30 minutes, three times per week. Student also has been provided with a 1:1 aide. Summer services are to be provided under the IEP in order to address cognitive, social, and pragmatic needs. Exhibit 3.
SUMMARY OF THE EVIDENCE
Parent testified that her daughter (Student) has a long history of difficulty in her educational development. As early as age 4, developmental difficulties were noted by Parent when Student demonstrated a limited ability to speak and communicate. At age 5, Student was still not able ask for things. Parent had Student evaluated at a clinic at Children’s Hospital in Boston. Parent noted that what she was observing is reflected within a letter from Dr. Urion of Children’s Hospital, dated May 18, 1995, indicating that Student has significant speech and language problems and had several features suggestive of autism. Exhibit 21.
Parent testified that even in these early years, her evaluators/experts were recommending that her daughter attend a substantially separate school for children with a profile similar to her daughter. Parent noted that this recommendation has continued through the present.
Parent testified that she believes her daughter was physically beaten up and may have been sexually abused by one or more other students during the 2002-2003 school year. Parent believes this resulted in Student’s beginning to have fears and insecurities, feeling overwhelmed at times, as well as having outbursts.
Parent testified that at the beginning of the 2004-2005 school year, Student felt unsafe at school. As a result, Parent withdrew her from school, eventually sending her to Boston’s Young Achievers School in November 2004.3 At Young Achievers, a 1:1 dedicated aide was added to Student’s services to help ensure Student’s safety. Parent explained that at this inclusion placement, Student was provided with a social skills group that provided an avenue to express herself, and this was helpful.
Parent testified that because of her continuing concerns regarding her daughter’s educational progress and the appropriateness of the services being provided by Boston, she requested that Children’s Hospital re-evaluate her daughter. A multi-disciplinary evaluation occurred on February 17, 2005, with Dr. Urion as the case coordinator for the evaluation. The evaluation team recommended a substantially separate educational program to address Student’s multiple deficits. Exhibit 20.
Parent testified that during the summer of 2005, her daughter attended a camp in North Reading, paid for by Boston. She believes that the students there had deficits similar to those of her daughter, and that the camp helped her daughter to make friends and develop awareness regarding personal and social issues, and to improve her social skills.
Parent testified that for the 2005-2006 school year, which would be Student’s first year in high school, Boston recommended a placement that Parent found unacceptable. As an alternative, Boston proposed placement at the New Mission High School, which is a Boston pilot school. Parent explained that Boston represented to her that New Mission would be able to provide the services described within her daughter’s IEP either with existing resources or with services that would be added. Parent decided to send her daughter to New Mission, believing that it would be a better placement than the alternative offered by Boston.
Parent testified that at New Mission, her daughter gets along with her peers but has made no friends who interact with her outside of school. Parent believes that the educational services are inadequate at New Mission in that they do not address her daughter’s semantic and pragmatic language deficits, her social skills deficits, her lack of community and independent living skills, and her emotional deficits. She continues to believe that a substantially separate program, as recommended by her experts/evaluators, is necessary for her daughter to make significant progress and reach her potential so that she can succeed as an adult. She noted that she has looked at two private schools, Learning Prep and Clearways, which she likes and believes would meet her daughter’s educational needs.
Myles McNamara testified that currently he is a teacher at the New Mission School, teaching a course entitled “Humanities A.” He explained that he received his BA degree in 1997, taught for one year in a private school serving special education students, then was an instructor with Outward Bound until he returned to school and received his master’s degree in education in 2005. This is his first year teaching at New Mission. He noted that he is certified to teach students with mild/moderate disabilities and regular education students.
Mr. McNamara testified that he teaches Humanities to Student in a class that meets for three eighty-minute periods each week. The class includes fifteen regular education students and five students (one of whom is Student in this dispute) who have IEPs. He explained that he has established a routine and structure to the class that includes warm up, small group sharing, teaching a lesson to learn a skill, jam session to practice the skill, and reflection/synthesis regarding skill taught. He noted that as with all classes at New Mission, one or more visuals are always used in the classroom.
Mr. McNamara testified that within his classroom, the special education teacher (Ms. Neufville) works with Student – for example, using graphic organizers, staging topics being learned, clarifying instructions, etc. The special education teacher also helps Mr. McNamara monitor the room and plan the instruction.
Mr. McNamara testified that of the three 9 th grade Humanities classes that he teaches this year, the Beta class (that includes Student) is the strongest academically. He explained that in his classroom Student is an enthusiastic, engaged, and relatively independent learner, who appears entirely comfortable in the classroom setting. He noted that Student has been able to learn how to draw inferences from factual information, has made progress in her ability to determine the relative importance of different parts of a text, and is now able to make connections between a topic in one context and a topic in another context.
Mr. McNamara testified that at the beginning of the school year, Student was a passionate speaker and writer but often would lose focus on the topic at hand; he explained that over the course of the school year, she has made progress in this area although further improvement is needed. He has found that her reading comprehension is strong; she is able to determine meaning from text. He believes that Student’s language skills in general (and, in particular, her skills regarding pragmatic and semantic language) are developing at an appropriate rate. He concluded that as compared to her peers in his Humanities class (including the regular education students), Student is advanced academically, with the one exception that she is not as strong in being able to determine the relative importance of evidence or facts.
Mr. McNamara testified that five to seven times over the year, Student has not understood his instructions in class and, in all but two of these instances, Student asked him a question so that she would be able to understand the instructions. She often asks questions and volunteers answers during class, to the point that she is considered by her peers to be a leader in the classroom. He noted that because Student participates so frequently in class, her class participation provides a ready way for him to check to determine whether she understands the concepts or skills that are being taught.
Mr. McNamara testified that although Student started the year appearing shy and having difficulty making eye contact, she has developed into an outspoken participant in the classroom. She makes good eye contact and appears at ease with her peers and teachers. He explained that Student is very direct, sharing what she thinks and feels with her peers during class-time without apparent hesitation. However, a weakness appears to be that she speaks the same way regardless of the audience, apparently unable to alter her tone depending on whom she is speaking with.
Mr. McNamara testified that over the course of the school year, Student has “jelled” with her peers. He has observed her speaking with her peers in spontaneous communication, appearing to be responsive and natural as well as respectful of others’ physical boundaries, and her peers have come to respect her. He noted, however, that Student appears to have limited ability to understand the more subtle forms of communication of her peers – for example, body language or inferences. He explained that she is friendly with other students but he believes that she does not yet have meaningful social relationships with others at school and has not yet been able to form a true friendship with any of her peers.
Weddee Neufville testified that currently she is employed as an academic support teacher (or special education teacher) at New Mission High School. She explained that she received her BA degree in 1997 and her graduate certificate from Northeastern School of Education in 2004. She noted that since 1999, she has been working with youth in a variety of positions, including as a paraprofessional in a Boston school that serves students with disabilities.
Ms. Neufville testified that her responsibilities at New Mission include utilizing her special education expertise to assist the content teachers, with the ultimate objective of making the curriculum accessible to all students at the school. She participates in all of the content area classes in which Student is placed, supporting all of the students in the classroom but keeping an eye on the special education students in particular. She also runs an Advised Elective class for the 9 th grade, which class includes 6 to 8 special education students (including Student). During this class she works on organizational skills, breaks down assignments, does pre-teaching, utilizes graphic organizers, and helps students rehearse for presentations. She also co-leads the Advisory Period in which Student participates. This period serves the purpose of a homeroom and helps the students make their goals for the day.
Ms. Neufville testified that looking back on Student’s progress this academic year, up to this point in time, she believes that Student has come a long way. She explained that Student has adjusted to her environment, is engaged in what is going on and appears to serve as an intelligent and reliable resource to other students in the classroom. She noted, for example, that Student has come to feel comfortable and confident making oral presentations in the classroom, she frequently participates voluntarily in the classroom, she did an excellent job in her March 2006 portfolio review (eloquently presenting her work and answering questions), she demonstrates a thorough knowledge of material taught in the classroom, she is able to synthesize complex topics, she is able to make appropriate inferences, she is able to reflect appropriately on what has happened to her during the school day, and her peers are very supportive of her – in short, she is an involved and valued member of her learning community. Ms. Neufville added that 1:1 spontaneous communications occur with Student and her peers, and these interactions appear to be appropriate; she noted that Student has made progress in this area over the course of the year.
Ms. Neufville testified that in her opinion, New Mission is, “without a doubt”, an appropriate placement for Student. She believes that Student can continue to make significant progress at New Mission, and that she can graduate from, even achieving the honor roll at, this school.
Theresa Maronna testified that she is currently and has been for the past 28 years employed as a speech and language pathologist by the Boston Public Schools. She explained that she received a master’s degree in communications disorders in 1977 and is licensed in Massachusetts as a speech and language pathologist. She has significant experience working with students who have semantic and pragmatic deficits similar to those of Student.
Ms. Maronna testified that she has been working with Student at New Mission since the beginning of the current school year, providing her with speech and language services for thirty minutes, three times each week – two sessions are direct, individual services provided with Student and one other child (providing direct instruction regarding social skills), and one session (an Advisory period) is with a group of students. She also observes Student one class each week – Student’s Humanities class with Mr. McNamara.
Ms. Maronna testified that initially at school, Student presented as a charming girl who often did not make eye contact, spoke at a low volume and did not stay on topic in her speech. In the classroom, she sometimes made contributions that were off target, and her writing sometimes did not express her ideas clearly. She was able to make inferences occasionally with respect to the reading and what was happening in the classroom. She was always motivated to participate in group discussions.
Ms. Maronna testified that over the course of the school year, she has seen Student make a great deal of progress. Her profile now, according to Ms. Maronna, is that although she continues to have pragmatic/semantic language deficits (as she always will), Student has demonstrated significantly more functioning in these areas. There has been a marked improvement in her affect, social skills, and independence skills — for example, sitting down and getting to work, and using graphic organizers independently in almost all content areas. Student is now significantly more poised and confident, and is able to generalize some of the skills/knowledge learned from one setting to another, and has been able to integrate information. Her contributions to the group discussions have become much more on target and appropriate, and she speaks in an appropriate tone of voice. She has insight into her own functioning and sets realistic goals for herself. She is well liked by other students, with a lot of appropriate back and forth communication – including, for example, teasing and sharing information. She has improved in her ability to read the body language of others.
Ms. Maronna testified that Student continues to have difficulty performing consistently at a high level – that is, for example, sometimes she performs at a high level regarding integration skills and sometimes she does not, and when she is not able to function at a high level, she continues to need a great deal of support.
Ms. Maronna testified that she believes that Student is appropriately placed within an inclusion setting as compared to a substantially separate program that would be populated only by students with disabilities. She noted that Student has benefited from modeling the behavior of regular education students at New Mission. She also noted that language develops out of relationships with others, and that Student has now formed good relationships with her peers, which relationships will continue to support Student’s language development at New Mission.
Ms. Maronna testified that she supports the recommendation that Student have the social skills group that is reflected in her IEP (including speech and language services and counseling within this group), which group could not be implemented at New Mission.
David Perrigo testified that currently and for the past ten years he has been the principal of the New Mission High School. He explained that he received his master’s degree in education in 1990. He stated that he founded New Mission and has sought to maintain the school as a small learning community that provides an opportunity for strong peer and adult-student relations and a strong learning community. He noted that the school is portfolio-based, with the result that students are encouraged to describe and present what they have learned.
Mr. Perrigo testified that the core values of the school are to develop independent, self-directed learners who understand not just the facts but how to apply what they have learned in different contexts. He also noted the importance, within the school, of ensuring that education is personalized to each particular student.
Mr. Perrigo testified that the same group of students remain together for all four years of high school at New Mission, and that the special education students are intentionally assigned to a classroom with regular education students who are supportive and empathic. He explained that all students have a portfolio review three times each year, and also receive non-traditional grades and progress reports throughout the year. The portfolio reviews take at least an hour and require the student to identify key learning that has occurred as well as learning goals. Others listening to/watching the review (including other students) can ask questions during the review.
Mr. Perrigo testified that he has come to know Student through observations of her in class and during her Advisory, at other times at the school, and through discussions with her teachers. He explained that at the beginning of the school year, she appeared reserved, with little eye contact and was seemingly preoccupied rather than focusing on the topic at hand. He stated that at present, she appears, at least on the surface, to be indistinguishable from her peers – that is, for example, she participates, asks questions, gets her homework done, and completes her assignments. She appears to be organized, focused and poised, and appears to understand the concepts that are being taught without being overwhelmed or nervous. He noted that she has not come to his attention as someone who is falling through the cracks or has impediments to learning. He believes New Mission to be appropriate for her and would like to see her continue at this school through her high school career. He believes that she has made “enormous” progress since the fall, with little evidence that she is unable to function at a very successful level at New Mission.
Mr. Perrigo testified that there are no other students at New Mission who would be appropriate for a social skills peer group with Student, and therefore no social skills group has been established for her. He noted that the school has attempted to address Student’s social deficits in other ways – including her meeting with a psychologist for 30 minutes each week to address these issues. He also noted that the school has not addressed any of Student’s needs regarding independent/community living skill deficits. He stated that after receiving Ms. Effron’s report and speaking with her, it was not clear as to what specific skills needed to be addressed and how this would occur at New Mission. He also noted that it is preferable that a student not be pulled out (from any of the classes and other scheduled activities during the day) for the purpose of addressing other needs (such as community living skills) because of the importance of each student’s participating in the entire curriculum at New Mission.
Mr. Perrigo testified that he has had minimal contact with Student’s mental health counselor, and has had no substantive conversations with her.
Jamie Hirsch testified that currently she is employed as a clinical therapist by the Home for Little Wanderers. She explained that she received a BA degree, and then a master’s degree in counseling psychology approximately five years ago. Ms. Hirsch stated that she has been doing clinical work with children for the past ten years – many of whom have a history of trauma and/or neglect. She is licensed as a mental health counselor.
Ms. Hirsch testified that she began seeing Student in the fall of 2003 when Student started attending Young Achievers. Ms. Hirsch, through Home for Little Wanderers, works as a school-based therapist at Young Achievers, spending 25 to 30 hours per week at this school. At Young Achievers, Ms. Hirsch saw Student once each week, or twice a week if family therapy were provided. Ms. Hirsch also co-led a one-hour per week social group that Student attended. She also observed Student in class. This continued through Student’s two academic years at Young Achievers.
Ms. Hirsch testified that her involvement with Student this academic year at New Mission has changed. During the current year, as compared to her work with Student at Young Achievers, there is no treatment coordination or ability to integrate her treatment into the school day. Ms. Hirsch has no substantive contact with schoolteachers and staff regarding Student’s emotional needs and how they should be met. She sees Student once per week for therapy after school and observes Student occasionally after school, but she does not observe Student in school or otherwise participate in school activities at New Mission.
Ms. Hirsch testified that Student has significant fears and anxieties regarding school, with the result that Student’s concerns regarding school tend to take all or nearly all of the time of the weekly therapy sessions. Ms. Hirsch’s most recent treatment plan for Student (exhibit 27, last page) noted that Student continues to worry excessively and is hampered by the inability to manage everyday stress associated with academics and social interactions – she frequently feels overwhelmed but has no place, time, or person who can help her with this at school on a daily basis. Student tends to keep these fears and anxieties to herself. Student feels abandoned, with no person at New Mission whom she trusts. Ms. Hirsch noted that in her weekly hour-long therapy sessions, most of the time has been spent processing what has been happening at school, with little time left over to address Student’s trauma issues even though Ms. Hirsch believes that Student’s trauma history frequently interferes with Student’s thinking. Student is also undergoing change within the home, which may be stressful to her. Ms. Hirsch noted that there is virtually no opportunity for her to integrate her clinical concerns regarding Student with staff from New Mission.
Ms. Hirsch testified that Ms. Hirsch believes that Student attempts to socialize with other students but that her attempts are generally unsuccessful, and that without a social skills group, Student is left largely to her own devices. She stated that Student has been perseverating about her relationship with one particular male student, misunderstanding the other student’s intentions and what is appropriate, with the result that no meaningful interactions occur between Student and this boy. Ms. Hirsch noted that this is typical of Student’s confusion regarding what is appropriate with her peers. Student’s sense of self-worth is, to a large extent, dependent upon her being involved with others, and Student does not understand why her social relationships are not working. Ms. Hirsch opined that in 9 th grade, as compared to 8 th grade, the gap between Student’s social skills and what is expected of a typical student has widened.
Ms. Hirsch testified and her most recent treatment plan for Student (exhibit 27, last page) reflects that Student is afraid of having verbal interactions with her peers, and therefore resorts to text messaging. She is able to communicate in a meaningful way if an adult is present to cue her, but otherwise often does not understand. When the conversations of her peers turns to sex or boyfriends, she has little, if any, understanding of what is being discussed.
Ms. Hirsch testified that there are significant safety concerns as a result of Student’s limited social skills and independent living skills. Ms. Hirsch noted the limitations regarding Student’s independent living skills – for example, Student does not know enough to look both ways before crossing the street and has difficulty going independently to a nearby store in the community. Ms. Hirsch further noted that Student’s lack of fear of strangers results in her being unaware of the danger of getting into a stranger’s car, for instance. She noted that Student is not currently receiving any instruction regarding community or independent living skills, and without progress in this area, Student may not be able to live independently as an adult.
Ms. Hirsch testified that Student has made only very limited progress regarding the development of her social skills. This is because Student does not have a social skills group with one or more peers who have similar needs, and there is no follow-through of the social skills instruction into the classroom. She noted that Student requires repetition to learn. She noted that in order to make progress, Student requires an appropriate social skills group and the teaching in this area should be integrated into the other parts of her day. Ms. Hirsch noted that Student has the potential to make significant progress in this area if given appropriate instruction.
Mary-Ellen Effernen testified and her resume (exhibit 13) reflects that she received her BA degree in 1964 and her master’s degree in special education in 1966. Currently and since1998, she has been a consultant to parents and school districts, providing testing, observation, evaluation and recommendations regarding the educational needs of students with disabilities, with a particular focus on the needs of students with more intensive and complex disabilities.
From 1967 to 1998, Ms. Effernen worked at the Eunice Kennedy Shriver Center first as Supervisor in Education and then as Director of Education, and in these positions, she did research, trained professionals and graduate students and worked with a multi-disciplinary team of professionals to address the educational and related needs of disabled children. She noted that a guiding principle in this work was providing sufficient consultation and support to a local community and school in order to maintain the student in his/her home community and avoid institutionalization. She also noted more recent experience regarding both students with a history of trauma and those with social skills deficits. She explained that her current consulting work includes approximately 80 evaluations (which may or may not include testing) each year, with a significant number of these with children who have a profile similar to that of Student.
Ms. Effernen testified that she conducted an evaluation of Student on November 7, 2005, which included a review of approximately twenty documents (including evaluations since 1994 and IEPs since 2003) listed in her written report as well as more recent progress reports and the most recently-revised IEP. Exhibit 13, page 3. In addition, Ms. Effernen observed Student at school and spoke to teachers and staff at New Mission during a five-hour observation.
Ms. Effernen testified and her report reflects that her evaluation of Student indicated that Student has a long-standing history of a language-based learning disability requiring specialized instruction and small groups. Student has significant deficits regarding semantic and pragmatic language, organization, and integration of ideas. As a result, Student has difficulty understanding the big picture, understanding how a particular fact fits into a larger concept, relating or applying what she has learned in one area to another, and making inferences. Ms. Effernen explained that these difficulties show up in both the academic and social areas. She noted that these are pervasive disabilities and are likely to continue. Student also tends to have rigid thinking, difficulty with social judgments, and self-injurious behavior. She has anxiety, depression, and emotional vulnerability. Ms. Effernen explained that Student has shown progress with respect to math, decoding skills, and vocabulary, but less progress in the area of social skills and non-literal understanding of what is written or spoken. Exhibit 13.
Ms. Effernen testified that Student was tested in 7 th grade (March 2004) and her reading comprehension was found to be at the 5 th grade level. A year later she was tested again (2/17/05), and her reading comprehension had not improved relative to her peers.
Ms. Effernen testified that she observed Student having “remarkable” difficulty interacting with her peers at New Mission. Student had particular deficits regarding social cues and more subtle forms of social communication (for example, body language and intent of the speaker). She noted that the Children’s Hospital evaluation (in February 2005) found that Student’s ability to resolve social problems was at the level of 7 years, 11 months.
Ms. Effernen testified that in order for Student to learn, she needs to have visual aides. What she is learning should be made concrete and broken down into words and phrases that have meaning for her. She must also be taught strategies for interpreting information. Ms. Effernen observed that Student needed help from her teachers and aide at New Mission in “every step of the learning process.”
Ms. Effernen testified and her report reflects that, in her opinion, Student needs to be taught with peers who have similar learning deficits in a classroom designed for children with language-based learning disabilities so that the language of instruction from the teachers is understandable to Student, with the result that Student can learn directly from the teachers rather than require that the instruction and directions be further broken down or clarified (so that Student would be able to understand) through a third person. She noted that currently Student requires the assistance of a person (other than the content teacher) to understand what is being taught, thereby isolating her from the teaching and interactions that are occurring in the classroom. She needs to be taught strategies for becoming an independent learner, rather than continuing to be dependent upon others. Exhibit 13.
Ms. Effernen testified and her report reflects that currently Student has very significant deficits in the social skills area as well as community and independent living skills. This includes limited ability to interpret others’ behavior, little understanding of how her behavior relates to others, limited understanding of safety issues (for example, regarding strangers), limited ability to travel independently within the community (even for a short distance), and deficits regarding personal hygiene. Exhibit 13.
Ms. Effernen testified and her report reflects that from what she has read and observed, Student has not made progress regarding social skills and may actually have regressed regarding independent/community living skills. Ms. Effernen explained that because Student’s deficits are neurologically based, she requires explicit instruction to learn in the area of social skills and community/independent living skills, rather than being able to learn from her mistakes or by modeling the behavior of others. In Ms. Effernen’s opinion, Student requires peers with similar deficits (so that Student can learn with others in a social skills group) to make progress regarding her social skills. The social skills instruction should be curriculum-based and needs to be incorporated into and repeated during other parts of the school day in order to be effective. She noted that it would also help Student’s personal and social well being if she could see herself in the context of similar peers. She explained that at New Mission there is no social skills group for Student and no community/independent living skills instruction. She opined that without appropriate, explicit instruction in these areas, it is highly unlikely that Student will be able to learn to live independently. Ms. Effernen’s report emphasized that the lack of an effective social skills program is “[p]erhaps the greatest challenge to the current program” at New Mission. Exhibit 13.
Ms. Effernen testified that she found New Mission to be an exceptionally warm and caring school environment where Student is safe and protected. She opined that what is most critical to Student’s educational development is that she learn within a language-based classroom. She opined that in the event that such a classroom were in place at New Mission, the social skills instruction and community/independent living skills training could be added to what is currently being provided at the school.
David Urion , MD, testified that currently and since 1985, he has been the Director of (as well as a neurologist with) the Learning Disabilities/Behavioral Neurology Program at Children’s Hospital in Boston. He explained and his resume reflects that he is a neurologist by education, training and experience, but has also had significant experience regarding learning disabilities. This experience derives in part from the fact that the program that he directs evaluates approximately 250 to 300 children each year, and of these children, he is directly involved as a neurologist for approximately 67% of these children and he is the case coordinator of approximately 35 to 40% of these cases. Dr. Urion explained that since 1985 when he became Director (and actually for three years prior as part of his training), he has been serving as case coordinator for these evaluations. Exhibit 19 (resume).
Dr. Urion testified the majority of the children seen by his program have complex learning disabilities. He noted that approximately half of the children are referred for evaluation by school districts and half referred by parents. Dr. Urion also has been a volunteer teacher in Understanding Handicaps in the Newton Public Schools from 1989 to 1994. Exhibit 19 (resume).
Dr. Urion testified that he first saw Student for a nerologic evaluation on May 18, 1995. Student returned on February 17, 2005 for an evaluation by Dr. Urion’s program at Children’s Hospital; and for this evaluation, Dr. Urion served as the neurologist and case coordinator. Dr. Urion explained that, in the role of case coordinator, he coordinated the various multi-disciplinary evaluations of Student done in his program, he discussed with each of the other evaluators their observations, he synthesized the data from the various evaluations, he worked with the other evaluators to reach a consensus, he prepared the Case Coordination Summary document (exhibit 20), and he has served as the contact person for the family and Boston. He noted the significant amount of cross-fertilization of ideas among the evaluators during this process.
Dr. Urion testified that for purposes of this evaluation, he received a complete set of historical documents from Boston, as well as Student’s most recent IEP. He also noted that, as part of the evaluation process, various evaluators from his program submitted and received back completed questionnaires from Parent and Boston staff in order to obtain information necessary for the evaluations. He noted that neither he nor any of his evaluators have had any conversations with Boston staff regarding Student, nor has he or his evaluators observed any of the educational services provided Student by Boston.
Dr. Urion testified, and his Case Coordination Summary reflects, that Student has a significant neurobehavioral disorder that includes academic deficits, social skills deficits, and difficulties integrating and organizing complex information. He explained in more detail as follows. Academically, Student’s math skills were still quite good at addressing linear tasks, but she had significant difficulties with integration and organization of complex material. Student had substantial deficits in semantic and pragmatic language function, which in turn significantly compromised her ability in complex oral discourse, reading, and writing. With respect to written language, Student’s decoding was appropriate, but her passage reading was problematic so that even with a 6 th grade reading text, Student had difficulty gaining information from the text and answering questions. The evaluation concluded that Student’s ability to read with comprehension and mastery was “somewhere below the 6 th grade level.” (Student was tested by Dr. Urion’s program when she was in the 8 th grade.) There were similar difficulties in her written language. Exhibit 20.
Dr. Urion further testified regarding Student’s deficits. Student’s literal knowledge is well developed, but her ability to make inferences, her ability to synthesize or integrate complex information and her reflective ability are quite problematic. The Case Coordination Summary indicates that these difficulties occur regardless of the modality by which information is presented, compromising her ability to function effectively in a variety of educational settings, including oral discourse, reading, and writing.
Dr. Urion testified and the Case Coordination Summary reflects that Student’s cognitive potential is adequate but that she does not have the skills at present for appropriate educational growth. He noted that at Student’s age, learning is often from reading, with the result that her language deficits would likely make it difficult for her to keep up in a mainstream classroom, and her academic skill level would not support continued growth in school. Exhibit 20.
The oral and written language evaluation from Dr. Urion’s program (exhibit 20A) further elaborated:
her comprehension of the content of what she reads would be considered highly vulnerable even in sixth grade reading level material. As texts become longer, require more integration of individual pieces of information, and rely on more abstract and nonliteral language for interpretation of meaning as is typical in the high school curriculum [Student] is at high risk for reading comprehension difficulty.
Dr. Urion testified that the neuropsychological evaluation found the same deficits regarding integration and social and pragmatic language functions. This evaluation concluded that Student “can be expected to be bewildered and overwhelmed by the general education curriculum.” Exhibit 20B.
Dr. Urion testified that Student has deficits regarding her social abilities – for example, understanding the intent of what is being communicated in a social context. Her difficulty with the semantic and pragmatic aspects of language put her “at risk for increasing difficulty in social contexts in which the language interactions/repartee involves much nonliteral language use.” Exhibit 20A. He testified that in order to address this particular deficit, Student requires social skills training that is curriculum-based and provided in a small, controlled social group. He also opined that in order to make appropriate progress, Student must be taught social skills with peers who have similar needs.
Dr. Urion testified and the Psychological Assessment reflects that Student has signs of depression and anxiety, and that if Student becomes distressed or does not understand, she is likely to withdraw. Exhibit 20C.
Dr. Urion testified and the Case Coordination Summary and Oral and Written Language evaluation reflect that Student needs a substantially separate, self-contained intensive educational placement that is designed for children with
significant semantic and pragmatic as well as neuropsychologically mediated integration difficulties. While her school curriculum has done reasonably well in some domains it would seem that she needs a more intensive approach and more holistic one.
Similarly, the Written Language evaluation concluded:
[a]ny educational program which is developed for [Student] must be interdisciplinary rather than multidisciplinary in its focus. Her academic and social needs should be addressed in an integrated programmatic approach not as a series of support services.
Dr. Urion testified that this above-quoted language from exhibit 20A reflected the consensus of the evaluation team. He explained the reasons for this recommendation. Student’s oral language, reading, and writing deficits are all facets of the same problem, with the result that her deficits need to be understood from a “transdiscipline” perspective – that is, each of Student’s teachers needs to understand the nature of her disability and address her learning needs in a consistent and effective manner, both so that Student will understand what is being taught in each subject matter course and also so that each course is an opportunity to remediate Student’s language deficits. Dr. Urion explained that Student has islands where she can perform well, but her difficulties occur within the larger context of learning. He noted that each teacher would need to be constantly probing and assessing Student’s knowledge in order to see what actually is being learned. The neuropsychological evaluation emphasized this on-going probing and assessing as a “key element” of an appropriate program for Student. Exhibit 20B. Dr. Urion testified that in order for this approach to be effective in allowing Student to learn and in remediating her deficits, it needs to be integrated across all academic areas. He opined that this educational model would be necessary in order that Student become a responsible and independent person, as compared to having to continue to rely on an “outside agency.”
Dr. Urion testified that Student’s abilities in math, her decoding skills, and other isolated areas where she performs well all indicate that Student has the potential, with appropriate services and supports, to get to the average range regarding her language skills. He opined, however, that with inappropriate services (for example, if the educational remedial services are compartmentalized rather than integrated across all contexts), Student is likely to fall increasingly behind with respect to her language skills. He noted that at the time of his testing in February 2005 and in Student’s current IEP, she is offered remedial services in separate domains, often outside of the classroom, which will likely preclude her from making appropriate academic progress. He opined that this service delivery model could not be improved sufficiently simply by adding or changing services. Dr. Urion concluded that Student’s language and other deficits are long term difficulties that are not likely to be remedied by the educational services that Student has been receiving.
Student’s progress reports generally indicate that student is generally “meeting” or “exceeding” New Mission expectations this year. IEP progress reports indicate that Student is making academic progress and that her spontaneous interactions with peers have improved. Exhibits 4, 6, 7.
A. Legal Standard
Student is an individual with a disability, falling within the purview of the Individuals with Disabilities Education Act4 and the state special education statute.5 As such, Student is entitled to a free appropriate public education (FAPE).6 Neither her eligibility status nor her entitlement to FAPE is in dispute.
In general, FAPE is intended “to open the door of public education to handicapped children”7 rather than to require the “best” possible educational services for a student.8 More specifically under state and federal special education law, FAPE requires that a student’s individualized education program (IEP) be tailored to address the student’s unique needs in a way reasonably calculated to enable the student to make meaningful and effective educational progress in the least restrictive environment.9
The initial issue presented is whether the programming and specialized services embodied in Boston’s most recently proposed IEP are consistent with this legal standard . Parent has the burden of persuading me that the IEP does not meet this standard and that Student is entitled to the placement sought by Parent – that is, a substantially separate educational program.10
B. Student’s Special Education Needs, in General
The First Circuit has made clear, and the parties have not disputed, that a school district’s proposed IEP must address all of a student’s special education needs, whether they be academic, physical, emotional, or social.11 In the instant dispute, Student has a combination of academic, social, and emotional needs, all of which must be considered and addressed by Boston.
I am persuaded, in part on the basis of the testimony of Student’s expert, Ms. Effernen, that in the event that New Mission High School, where Student is currently placed, is not able to address Student’s language-based learning needs within the classroom, then she should be placed in a substantially separate program. Conversely, if these academic needs can be addressed satisfactorily at New Mission, then additional services may be added to the New Mission placement in order to address satisfactorily Student’s other deficits – for example, emotional and social needs.
In other words, my determination of the kind of educational placement that is needed to address Student’s academic deficits will likely determine whether Student can be appropriately placed at New Mission or, alternatively, whether she must be educated within a substantially separate placement with other students who have Student’s profile. For these reasons, I begin with a consideration of Student’s academic needs.
C. Student’s Academic Needs
Parent and Student’s attorney have correctly pointed out that experts who have evaluated and observed Student have recommended, over the course of several years, that Student be placed in a substantially separate, language-based classroom in order to address appropriately her significant language deficits. Two such experts (Dr. Urion and Ms. Effernen), who have impressive expertise and experience, testified to this effect. Their recommendations were strengthened by multi-disciplinary testing (by Dr. Urion’s program at Children’s Hospital in Boston) and by observation at New Mission and document review (by Dr. Effernen). Both were credible witnesses. Ms. Effernen, in particular, has very substantial experience working with children such as Student, and both have the added credibility of consulting for school districts as well as parents. Testimony of Effernen, Urion; exhibits 13, 20, 20A-20D, 26.
Ultimately, however, I do not find the recommendations of these experts to be persuasive regarding Student’s academic needs because subsequent to the evaluations and observations of Dr. Urion (date of evaluation: 2/17/05) and Ms. Effernen (date of evaluation: 11/7/05), Student has been making meaningful and effective academic progress within her current inclusion placement at New Mission.
As a general rule, the appropriateness of an IEP must be judged by “ what was, and was not, objectively reasonable when the snapshot was taken, that is, at the time the IEP was promulgated.”12 The IEP in controversy in the present dispute was most recently revised on December 13, 2005. A significant amount of evidence has been presented regarding Student’s progress since that date, and this progress has been referenced within the closing arguments of both parties. Neither party has indicated any concern or objection to my considering fully this evidence. In addition, I note that this makes sense in the present dispute since what the parties ultimately appear to be most concerned about is not whether Boston was correct when it proposed the current IEP but rather what are the appropriate prospective services for Student for the remainder of this school year and, in particular, for the next school year. For these reasons, I fully consider the evidence relevant to Student’s progress during the current school year.
The persuasive and uncontroverted evidence from Student’s Humanities teacher (Mr. McNamara), from Student’s special education teacher (Ms. Neufville), from Student’s speech and language pathologist (Ms. Maronna) and from the school principal (Mr. Perrigo) is that although Student continues to have areas of significant academic weaknesses, she has made impressive academic progress in many areas, including areas related to her language disabilities, and is generally considered to be thriving within the learning environment at New Mission.
These teachers and staff have a day-to-day understanding of Student, her deficits, her skill levels at the beginning of the academic year, and the progress that she has made so far this year. They testified with sufficient breadth and detail to demonstrate the thoroughness of their understanding of Student, including her continuing weaknesses. For these reasons, I fully credit the testimony of Mr. McNamara, Ms. Neufville, Ms. Maronna and Mr. Perrigo, as described within the Summary of the Evidence section of this Decision.
Their testimony, as previously summarized in this Decision, speaks for itself and need not be repeated here. However, I note four facts of particular significance.
First, of the three 9 th grade Humanities classes at New Mission, the Beta class (that includes Student) is the strongest academically. Within the Beta class, Student is considered by her teacher to be advanced academically, with the one exception that she is not as strong in being able to determine the relative importance of evidence or facts. She is also considered by her peers to be a leader in the classroom. Testimony of McNamara.
Second, even in those areas where Dr. Urion and Ms. Effernen testified that Student has pervasive, language-based deficits requiring explicit instruction, Student has made gains – for example, with respect to making inferences, making connections from one context to another, understanding the big picture, and reading comprehension. Testimony of McNamara, Neufville, Maronna.
Third, where Student continues to have weaknesses – for example, understanding the relative importance of evidence or facts – they do not appear to be precluding Student from accessing the curriculum or from being engaged in her learning environment. Testimony of McNamara, Neufville, Maronna; exhibits 4, 6, 7.
Finally, when considering Student’s progress within the classrooms as a whole, there can be little argument that Student has been making significant academic gains this school year, particularly during the past five months or so. Testimony of McNamara, Neufville, Maronna, Perrigo; exhibits 4, 6, 7.
Since Boston has persuasively demonstrated that pursuant to its IEP, Student is likely to make appropriate academic progress at New Mission, Boston has satisfied its obligations under special education law in this regard even though Parent has provided competing, expert opinions that a different educational model would better serve Student.13
I conclude that Boston’s most recently-proposed IEP is reasonably calculated to provide Student with a free appropriate public education in the least restrictive environment with respect to her academic needs . Student’s other special education needs (social, community/independent living and emotional deficits) are addressed below.14
D. Student’s Needs Regarding Social Skills and Community/Independent Living Skills
Student has well-documented (and uncontested) deficits in her social skills and community/independent living skills. Boston does not dispute its responsibility to address these needs appropriately through Student’s special education services. It is important not to minimize either the severity of Student’s deficits in these areas or the importance of addressing these deficits appropriately.
In a safe and protected environment, such as New Mission, Student can appear to be a relatively normal 9 th grader – with respect to her social interactions with other students as observed in the hallway by the principal, for example. Also, because she does not have behavioral issues, because she tends to withdraw if she becomes frustrated and because she has made academic progress, she generally does not attract the attention of others as a problem student. In addition, some progress has been noted over the school year in social skills – for example, better eye contact and less shyness with her peers as she has become more comfortable with the other students and the teachers at New Mission, and a progress report indicated improvement regarding spontaneous interactions with peers. Testimony of Perrigo, McNamara, Maronna; exhibit 7. For these reasons, it may be understandable that teachers and staff at New Mission have not focused extensively on Student’s social deficits.
However, the testimony from both Boston and Student witnesses revealed substantial, continuing deficits regarding social skills and community/independent living skills. For example, Student’s Humanities teacher (Mr. McNamara) testified that Student has limited ability to understand more subtle forms of communication of her peers – for example, body language or inferences. Ms. Effernen’s report and testimony, as well as Dr. Urion’s testimony, corroborate Student’s limited ability to interpret others’ behavior, her little understanding of how her behavior relates to others and her limited understanding of the intent of what is being communicated in a social context. Testimony of McNamara, Effernen, Parent; exhibit 13.
Ms. Effernen also explained that the Children’s Hospital evaluation found that Student’s ability to resolve social problems was at the level of 7 years, 11 months (she was fourteen years old at the time of the evaluation). The Children’s Hospital report further noted that Student’s difficulty with the semantic and pragmatic aspects of language put her “at risk for increasing difficulty in social contexts in which the language interactions/repartee involves much nonliteral language use.” Ms. Effernen’s report emphasized that the lack of an effective social skills program is “[p]erhaps the greatest challenge to the current program” at New Mission. Exhibits 13, 20A.
Student’s therapist (Ms. Hirsch) provided further insight into the consequences of Student’s social context deficits on a day-to-day basis as revealed through weekly therapy sessions with Student. Student attempts to socialize with other students but her attempts are generally unsuccessful – for example, she has been perseverating about her relationship with one particular male student, misunderstanding the other student’s intentions and what is appropriate, with the result that no meaningful interactions occur between Student and this boy. This is typical of Student’s confusion regarding what is appropriate with her peers. She is able to communicate in a meaningful way if an adult is present to cue her, but otherwise often does not understand what is being communicated (for example, regarding boyfriends) and does not understand why her social relationships are not successful. Testimony of Hirsch.
As a further consequence of her social skills deficits, Student does not have meaningful social relationships with others at school and has not yet been able to form a true friendship with any of her peers. As a result, she has likely suffered emotionally (see discussion below regarding Student’s emotional deficits). Testimony of Parent, Hirsch, McNamara.
Ms. Hirsch’s testimony also highlighted Student’s deficits regarding independent living skills – for example, Student does not know enough to look both ways before crossing the street and has difficulty going independently to a nearby store in the community. Student wants to be friends with everyone and has no fear of strangers. Accordingly, for example, Student is unaware of the danger of getting into a stranger’s car. Ms. Effernen’s report and testimony corroborate Student’s limited understanding of safety issues (for example, regarding strangers), limited ability to travel independently within the community (even for a short distance) and deficits regarding personal hygiene. The combination of Student’s limited social skills and independent living skills deficits raise safety concerns. Testimony of Hirsch, Effernen, Parent; exhibit 13.
Student has the potential to make significant progress in this area if given appropriate instruction. However, the uncontested evidence is that Student is making only very limited progress regarding the development of her social skills. It seems likely that this school year (in 9 th grade) the gap between Student’s social skills and what is expected of a typical student has widened, as compared to the gap that existed in 8 th grade. In addition, Student may actually have regressed regarding independent/community living skills. Testimony of Hirsch, Effernen.
Because Student’s deficits are neurologically based, she requires explicit instruction to learn in the area of social skills and community/independent living skills. Dr. Urion and Ms. Effernen were persuasive that in order for Student to make effective progress regarding her social skills, she must have peers with similar deficits so that Student can learn with others in a social skills group. The social skills instruction should be curriculum-based and needs to be incorporated into and repeated during other parts of the school day. Testimony of Effernen, Urion.
Boston’s speech and language pathologist (Ms. Maronna) concurred with the recommendation that Student have the social skills group that is reflected in her IEP (including speech and language services and counseling within this group). Mr. Perrigo explained that New Mission has not been able to provide Student with the social skills group written into Student’s IEP because there are no other children at New Mission who would be appropriate for such a group.
Mr. Perrigo also testified as to the apparent reason that no educational services have been provided regarding independent/community living skills apparently. He explained that the nature and extent of Student’s deficits in this area have not been clearly identified and no specific services have been recommended.
Ms. Hirsch and Ms. Effernen were persuasive that without significantly greater progress regarding social skills and community/independent living, Student may not be able to live independently as an adult.
The federal special education statute makes clear that Student is entitled to a “free appropriate public education [FAPE] that emphasizes special education and related services designed to meet [her] unique needs and prepare [her] for further education, employment and independent living .”15 Congress passed the IDEA, in part, so that students with disabilities could “achieve a reasonable degree of self-sufficiency” and “become a contributing part of our society.”16
For these reasons, I find that Student has significant and continuing unmet deficits regarding social skills and community/independent living skills, that these deficits impact negatively upon her learning and that Boston’s most-recently proposed IEP is not reasonably calculated to address these deficits appropriately.
1. Relief to be provided by Boston regarding social skills . The relief necessary to address Student’s social skills deficits has been clearly outlined by Parent’s experts and has either been supported by Boston’s witness (Ms. Maronna) or not disputed by Boston. This relief, which Boston must provide, is (a) curriculum-based, direct instruction regarding social skills, (b) a social skills group with peers similar to Student with respect to their need for social skills instruction, and (c) provision for carry-over of social skills instruction into the school day. Since no appropriate peer group is currently available at New Mission, Boston must create or locate this social skills group. Given Student’s schedule at New Mission and the school’s emphasis on each student’s fully participating in the entire school day, the social skills group will likely need to occur after the normal school day. The process of identifying/locating and putting into place this social skills instruction must occur expeditiously so as not to delay the implementation of these services for Student.
2. Relief to be provided by Boston as compensation . In addition, Boston has an obligation to provide compensatory services for its failure to provide a social skills group during the current school year.17 It may be that compensatory relief should result in more enhanced or more intensive social skills services than would otherwise be available to Student through prospective relief alone. These more enhanced/intensive services may appropriately include a therapeutic component since the testimony indicated that Student’s emotional well-being has likely been negatively impacted by her social difficulties. An IEP Team meeting must be convened for the purpose of considering and then deciding what compensatory services should be provided.18
3. Relief to be provided by Boston regarding community/independent living skills . The New Mission principal (Mr. Perrigo) noted correctly in his testimony that Student’s needs regarding community/independent living skills have not been described with sufficient detail or clarity, nor have sufficiently specific recommendations been made to address these needs. Accordingly, Boston must arrange for a consultant with appropriate experience and expertise to assess Student’s deficits in this area and to provide a written report with specific recommendations as to how those deficits should be addressed by Boston. Prior to determining who will provide this consultation and the nature/scope of the assessment, Boston must provide Parent with the opportunity for input into this determination. An IEP Team will need to meet to consider the recommendations and decide what services are to be provided. This process (selecting a consultant, with input from Parent, obtaining recommendations from the consultant and deciding what services should be provided) must occur expeditiously so as not to delay the implementation of these services for Student.
E. Emotional Deficits
Just as Student’s social abilities appear, to the casual observer at New Mission, to be relatively normal, so too Student has typically appeared to her teachers and staff to be relatively well-adjusted and happy at school this academic year. However, the testimony of Student’s therapist, Ms. Hirsch, painted a different picture.
Ms. Hirsch’s testimony and most recent treatment plan made clear that Student has significant fears and anxieties regarding school, she worries excessively, and she is hampered by the inability to manage everyday stress associated with academics and social interactions. At New Mission, Student frequently feels overwhelmed but has no place, time or person who can help her with this at school on a daily basis. As a result, Student tends to keep her fears and anxieties to herself. Testimony of Hirsch; exhibit 27, last page.
Ms. Hirsch has no substantive contact with teachers and staff regarding Student’s emotional needs and how they should be met. Consequently, there is no treatment coordination or ability to integrate Ms. Hirsch’s work with Student into the school day. Ms. Hirsch sees Student once per week for therapy after school and observes Student occasionally after school, but she does not observe Student in school or otherwise participate in school activities at New Mission.
For these reasons, I find that Student has significant and continuing unmet deficits regarding her emotional needs, that these deficits impact negatively upon her learning and that Boston’s most-recently proposed IEP is not reasonably calculated to address these deficits appropriately.
1. Relief to be provided by Boston regarding Student’s emotional deficits: designated person . Boston must designate an appropriate person to be readily available to Student at New Mission in the event that she would like to speak with someone within the school regarding her anxieties or stresses regarding school. Although it is not intended that this person become (or replace) Student’s therapist, the person must nevertheless offer a meaningful opportunity for Student’s anxieties and stresses to be understood and addressed on an as-needed basis when those anxieties/stresses impact upon her education.
2. Relief to be provided by Boston regarding Student’s emotional deficits: consultation . Boston must provide a mechanism to provide consultation, at least weekly (and more frequently in the event a crisis or emergency should occur) by Student’s therapist to New Mission, presumably to the designated New Mission person described immediately above. Boston must compensate Student’s therapist for this consultation time if this is necessary for the consultation to occur. The information provided by Student’s therapist must, when appropriate, be communicated in a timely manner to others at New Mission, and procedures or protocols must be in place to ensure that this occurs; provided, however, that any confidential information shall be communicated only with Parent’s consent.19
Boston’s most recently-proposed IEP is reasonably calculated to provide Student with a free appropriate public education in the least restrictive environment with respect to her academic needs.
Boston’s most recently-proposed IEP is not reasonably calculated to provide Student with a free appropriate public education in the least restrictive environment with respect to her social skills, her community/independent living skills, and her emotional needs. As explained more fully in parts D1, D2, D3, E1, E2 of the Discussion section of this Decision, Boston shall do the following in order to address these deficiencies in its IEP:
· provide Student with social skills instruction,
· compensate Student for failure to provide a social skills group (an IEP Team meeting shall be convened to address this issue),
· arrange for consultation regarding Student’s community/independent living skills,
· designate a person to be readily available at New Mission for Student to discuss Student’s anxieties and stresses regarding school, and
· arrange for weekly consultation to New Mission by Student’s therapist.
By the Hearing Officer,
Dated: June 6, 2006
COMMONWEALTH OF MASSACHUSETTS
BUREAU OF SPECIAL EDUCATION APPEALS
EFFECT OF BUREAU DECISION AND RIGHTS OF APPEAL
Effect of the Decision
20 U.S.C. s. 1415(i)(1)(B) requires that a decision of the Bureau of Special Education Appeals be final and subject to no further agency review. Accordingly, the Bureau cannot permit motions to reconsider or to re-open a Bureau decision once it is issued. Bureau decisions are final decisions subject only to judicial review.
Except as set forth below, the final decision of the Bureau must be implemented immediately. Pursuant to M.G.L. c. 30A, s. 14(3), appeal of the decision does not operate as a stay. Rather, a party seeking to stay the decision of the Bureau must obtain such stay from the court having jurisdiction over the party’s appeal.
Under the provisions of 20 U.S.C. s. 1415(j), “unless the State or local education agency and the parents otherwise agree, the child shall remain in the then-current educational placement,” during the pendency of any judicial appeal of the Bureau decision, unless the child is seeking initial admission to a public school, in which case “with the consent of the parents, the child shall be placed in the public school program.” Therefore, where the Bureau has ordered the public school to place the child in a new placement, and the parents or guardian agree with that order, the public school shall immediately implement the placement ordered by the Bureau. School Committee of Burlington, v. Massachusetts Department of Education , 471 U.S. 359 (1985). Otherwise, a party seeking to change the child’s placement during the pendency of judicial proceedings must seek a preliminary injunction ordering such a change in placement from the court having jurisdiction over the appeal. Honig v. Doe , 484 U.S. 305 (1988); Doe v. Brookline , 722 F.2d 910 (1st Cir. 1983).
A party contending that a Bureau of Special Education Appeals decision is not being implemented may file a motion with the Bureau of Special Education Appeals contending that the decision is not being implemented and setting out the areas of non-compliance. The Hearing Officer may convene a hearing at which the scope of the inquiry shall be limited to the facts on the issue of compliance, facts of such a nature as to excuse performance, and facts bearing on a remedy. Upon a finding of non-compliance, the Hearing Officer may fashion appropriate relief, including referral of the matter to the Legal Office of the Department of Education or other office for appropriate enforcement action. 603 CMR 28.08(6)(b).
Rights of Appeal
Any party aggrieved by a decision of the Bureau of Special Education Appeals may file a complaint in the state superior court of competent jurisdiction or in the District Court of the United States for Massachusetts, for review of the Bureau decision. 20 U.S.C. s. 1415(i)(2).
An appeal of a Bureau decision to state superior court or to federal district court must be filed within ninety (90) days from the date of the decision. 20 U.S.C. s. 1415(i)(2)(B).
In order to preserve the confidentiality of the student involved in these proceedings, when an appeal is taken to superior court or to federal district court, the parties are strongly urged to file the complaint without identifying the true name of the parents or the child, and to move that all exhibits, including the transcript of the hearing before the Bureau of Special Education Appeals, be impounded by the court. See Webster Grove School District v. Pulitzer Publishing Company , 898 F.2d 1371 (8th Cir. 1990). If the appealing party does not seek to impound the documents, the Bureau of Special Education Appeals, through the Attorney General’s Office, may move to impound the documents.
Record of the Hearing
The Bureau of Special Education Appeals will provide an electronic verbatim record of the hearing to any party, free of charge, upon receipt of a written request. Pursuant to federal law, upon receipt of a written request from any party, the Bureau of Special Education Appeals will arrange for and provide a certified written transcription of the entire proceedings by a certified court reporter, free of charge.
“Amelia” is a pseudonym chosen by the Hearing Officer to protect the privacy of the Student in publicly available documents.
Boston Public Schools did not submit documents and instead relied on some of the documents submitted by Student.
Although Mother’s memory was that her daughter began attending Young Achievers in November 2004, other documentary and oral evidence makes clear that her daughter actually began school there in November 2003.
20 USC 1400 et seq .
MGL c. 71B.
20 USC 1400(d)(1)(A); 20 USC 1412(a)(1)(A); MGL c. 71B, ss. 2, 3.
Board of Education of Hendrick Hudson Central School District v. Rowley , 458 U.S. 176, 192, 102 S.Ct. 3034, 3043 (1982).
E.g., Lt. T.B. ex rel. N.B. v. Warwick Sch. Com., 361 F.3d 80, 83 (1st Cir. 2004) (“IDEA does not require a public school to provide what is best for a special needs child, only that it provide an IEP that is ‘reasonably calculated’ to provide an ‘appropriate’ education as defined in federal and state law.”).
For an explanation of this standard and the legal authorities upon which it is based, see In re: Arlington , 37 IDELR 119, 8 MSER 187, 193-195 (SEA MA 2002). See also the following authorities not referenced in Arlington : 20 USC 1400(d)(4) (a purpose of the federal law is “ to assess, and ensure the effectiveness of, efforts to educate children with disabilities”); Board of Education of Hendrick Hudson Central School District v. Rowley, 458 U.S. 176, 192 (1982) (goal of Congress in passing IDEA was to make access to education “meaningful”); L.E. v. Ramsey Board of Education , 435 F.3d 384 (3 rd Cir. 2006) (education must confer meaningful benefit); Deal v. Hamilton County Board of Education, 392 F.3d 840 (6 th Cir. 2004) (“ IDEA requires an IEP to confer a ‘meaningful educational benefit’ gauged in relation to the potential of the child at issue”); Shore Regional High School Bd. of Educ. v. P.S. , 381 F.3d 194, 198 (3d Cir. 2004) (“IEP must be reasonably calculated to enable the child to receive meaningful educational benefits in light of the student’s intellectual potential”) (Alito, J.); 603 CMR 28.05(4)(b) (Student’s IEP must be “ designed to enable the student to progress effectively in the content areas of the general curriculum”); 603 CMR 28.02(9) (“ An eligible student shall have the right to receive special education and any related services that are necessary for the student to benefit from special education or that are necessary for the student to access the general curriculum.”); 603 CMR 28.02(18) (“ Progress effectively in the general education program shall mean to make documented growth in the acquisition of knowledge and skills, including social/emotional development, within the general education program, with or without accommodations, according to chronological age and developmental expectations, the individual educational potential of the child, and the learning standards set forth in the Massachusetts Curriculum Frameworks and the curriculum of the district.”).
Schaffer v. Weast , 126 S. Ct. 528, 163 L. Ed. 2d 387, 2005 U.S. LEXIS 8554, 74 U.S.L.W. 4009 (2005) (burden of persuasion in an administrative hearing challenging an IEP is placed upon the party seeking relief; a party who has the burden of persuasion “ loses if the evidence is closely balanced” ).
Lenn v. Portland School Committee , 998 F.2d 1083, 1089-1090 (1st Cir. 1993) (IEP must target “all of a child’s special needs, whether they be academic, physical, emotional, or social”). See also Zayas v. Commonwealth of Puerto Rico, 2005 U.S. App. LEXIS 28323, (1 st Cir. 2005) (student may have the right, under the IDEA, to “receive an education that is tailored to her social, psychological, and educational needs”).
Roland M. v. Concord Sch. Comm., 910 F.2d 983, 992 (1st Cir. 1990).
GD v. Westmoreland School District , 930 F.2d 942 (1 st Cir. 1991) (“FAPE may not be the only appropriate choice, or the choice of certain selected experts, or the child’s parents’ first choice, or even the best choice”).
I note that a significant part of Student’s academic success this year may be attributable to Student’s current teachers and staff, particularly those who testified at the BSEA Hearing – they clearly have made a connection with Student and have been able to work with her effectively. For example, Mr. McNamara is duly certified in regular and special education, and he has used this background to his advantage in providing instructional techniques that have been effective with Student. Because at issue before me is only the current IEP, which ends this month, I have no evidence to consider regarding Student’s teachers and staff for next year at New Mission. I note, however, that over the course of her stay at New Mission, Student is likely to continue to be with the same group of students, with whom Student has now apparently formed supportive relationships. These relationships are likely to serve her well in future years at New Mission.
20 USC 1400(d)(1)(A) (emphasis supplied). See also 20 USC 1412(a)(1)(A); Calloway v. Dist. of Columbia , 216 F.3d 1, 3 (D.C. Cir. 2000) .
Hendrick Hudson Dist. Bd. of Educ. v. Rowley , 458 U.S. 176, 201 n.23 (1982).
It is not disputed that pursuant to the IEP beginning in September 2005 (exhibit 12) and Parent’s stay put rights pursuant to that IEP when it was modified in December 2005 (exhibits 2, 3), Boston was required to provide Student with a social skills group, and this service was not provided.
Neither party, through testimony or argument, provided useful guidance as to what these compensatory services should consist of, perhaps in part because neither party knew how the dispute regarding prospective services would be resolved through this Decision, and compensatory services can only be understood properly in the context of adding to what a school district is otherwise required to provide.
Some of the relief ordered above is stated in terms of a process that is intended to lead to services for Student rather than in terms of an order that specifies the actual services to be provided – for example, the relief relative to compensatory services and the relief relative to community/independent living skills services. In the event that the parties are not able to agree regarding the nature and scope of the specific services, a new Hearing Request may be filed with the BSEA to address the dispute.