Boston Public Schools – BSEA# 98-1824

<br /> Special Education Appeals BSEA #98-1824<br />



Boston Public Schools – BSEA# 98-1824


This decision is issued pursuant to 20 U.S.C. 1401 et seq . (the “IDEA”); 29 U.S.C. 794; M.G.L. chs. 30A, 71B, and the Regulations promulgated under said statutes.

A pre-hearing conference was held in the above-noted matter on July 6, 1998. The hearing was thereafter convened on December 8, 9, 10, and 11, 19981 in Malden, MA, before Reece Erlichman, Hearing Officer.

Those present for all or part of the proceedings were:

Student’s Mother

Student’s Father

Michael Gillis Attorney for Student

David Hanifin Attorney, Boston Public Schools

Mary Daniels Advocate for Student

Ronda Goodale Assistant Program Director, Boston Public Schools

Eileen Nash Assistant Program Director, Boston Public Schools

Nan Coellner Assistant Program Director, Boston Public Schools

Gwendolyn Clark Assistant Program Director, Boston Public Schools

Graciela Hopkins Director, Early Learning Center

Maryann Molloy Early Childhood Special Needs Teacher, Early Learning Center

Ellen McCarthy Boston Public Schools

Jean Prescott Director, Pine Manor College Child Study Center

Jane Flanders Early Childhood Liaison, Boston Public Schools

Anne Eisengart Speech and Language Pathologist, Boston Public Schools

Mary Flinn Cunningham Speech and Language Pathologist, Boston Public Schools

Susan Chipchase Occupational Therapist

Mary Smith Occupational Therapist


Issue 1:

Are the IEPs proposed for Student by Boston Public Schools (hereafter BPS) for 1997-1998 and 1998-99, reasonably calculated to assure his maximum possible educational development in the least restrictive environment consistent with that goal?

Issue 2:

Are Parents entitled to retroactive reimbursement/prospective payment of tuition, transportation and therapy costs incurred as a result of Student’s unilateral placement at the Pine Manor College Child Study Center Program for academic 1997-98, summer 1998, and academic 1998-99?

Profile and History

Student is a five year old resident of Boston, Massachusetts. He presents with sensory processing, integration and discrimination deficits, delays in fine and gross motor skills, moderate receptive, expressive and pragmatic language disorders, poor oral motor planning skills and social deficits. (See, e.g., Exhs. P-5, 9, 11, 25, 33, 37, S-11,12; refer, e.g., to testimony of Ms. Prescott.)

Student attended the Riverside Early Intervention Program (in Needham) commencing in September 1996 (testimony Parent), and received speech therapy services through Massachusetts General Hospital (hereafter MGH). On March 6, 1997, prior to Student’s third birthday, a TEAM meeting was held and an IEP thereafter proposed by BPS, calling for Student’s placement in a 502.8 c prototype half day, segregated preschool program at the Mattahunt School, with occupational and speech therapies. This IEP was rejected by Parents in May 1997. (Testimony Parent; Exhs. S-1, P-14) In July 1997, BPS proposed another program for Student, covering the period March 1997-January 1998, this calling for his placement in an integrated preschool program at the North Zone Early Learning Center, housed at the Jackson Mann School. (Testimony Parent) During the summer of 1997, Parents privately placed Student in Little Pines, a summer camp program offered through Braintree Hospital Chestnut Hill Learning Center, on the grounds of Pine Manor College. (Testimony Mother, Ms. Prescott, Exh. P-28) During the summer of 1997 Parents notified BPS of their intention to place Student privately (testimony Mother), and in fact enrolled him in the Pine Manor College Child Study Center, a private, integrated preschool program for September 1997.

Pursuant to a mediation agreement reached on August 20, 1997 (Exh. S-18), Boston agreed to re-write Student’s IEP no later than September 5, 1997 to reflect changes identified by Parents. (Also pursuant to the August agreement, another mediation was scheduled for October 28, 1997.) This IEP, which was not actually sent to Parents until September 16, 1997 (testimony Parent, Ms. Nash), called for Student’s placement in the 502.8b integrated preschool program at the North Zone Early Learning Center, housed at the Jackson Mann School2, a school day/school year of unmodified duration, door to door transportation with a monitor, two thirty minute sessions weekly of occupational therapy outside of the classroom, four twenty minute sessions per week of speech and language therapy outside of the classroom setting, and one twenty minute session of speech services within the classroom. (Exh. S-2, P-14) This plan was likewise rejected by Parents.

Student commenced in attendance at the Pine Manor Child Study Program in September 1997, initially attending the program for three hours per day, and gradually increasing his time, so that by spring he attended until 2:30 P.M. (Exh. P-12)

The IEP proffered by BPS for the period June 19983 to June 1999 again proposed Student’s placement in a 502.8b prototype program at the North Zone Early Learning Center (hereafter NZELC), with door to door transportation with a monitor, a school day/school year of unmodified duration, three thirty minute sessions per week of language services within the classroom (delivered by the speech and language therapist) and two thirty minute sessions per week of occupational therapy delivered within the classroom by the occupational therapist (Exh. S-3).

Parents were offered the Condon Summer Program, a segregated program, for the summer of 1998. (Testimony Ms. Molloy, Parent) They did not access this offer, instead privately placing Student in the Pine Manor summer program for the 1998 session.

The TEAM reconvened in September of 1998 to consider additional evaluative materials not available at the June convening (independent speech evaluation and Pine Manor report). The IEP was not thereafter modified or amended. (Exh. P-14, S-4, testimony Nash)

The 1998-99 IEP was rejected by Parents, and Student has remained at Pine Manor to date in the academic 1998-99 academic year.


· Student was seen for an initial speech and language evaluation at MGH in June 1996 (Exh. P-24), and thereafter received weekly speech and language therapy at said facility. The June 1996 -August 1997 Progress Summary Report prepared by Ms. Rowse recommended speech and language therapy at least three times per week (30-45 minute sessions), including individual and small group settings, as well as continued occupational therapy. Further recommended was his placement in a full time, five day per week preschool program, offering a small, highly structured classroom with a low student/teacher ratio. A full year program or one with a summer component was also prescribed. (Exh. P-23)

· Student was seen at MGH for an occupational therapy evaluation in September 1996. He was found to present with diminished sensory modulation and discrimination, particularly of tactile, vestibular, and proprioceptive input. Recommended was twice weekly individual occupational therapy using a sensory integration framework, provided by a therapist trained in sensory integration techniques, in an environment with suspended equipment. It was further noted that he would benefit from a closed classroom providing a structured environment with minimal auditory and visual distractions. Quiet areas within the classroom were also recommended for his use when frustrated or overwhelmed. (Exh. P-34)

· Student was seen for a developmental assessment on January 6, 1997, at the Riverside Early Intervention Program, as part of his educational planning as he approached three years of age. (Exh. P-26) The report notes that Student benefits from routine and recommends a structured classroom setting that provides an environment with minimal visual and auditory distractions, for children with language, communication, and sensory issues. It is further recommended that quiet areas be provided for Student when overstimulated. Continued individual speech and language therapy outside of the classroom setting, as well as continued individual occupational therapy, utilizing a sensory integration approach, in an environment with suspended equipment is also recommended, as is consultation to classroom teachers and family for incorporating a sensory diet into his program.

· Student underwent a series of assessments as part of his initial BPS TEAM evaluation in the early months of 1997. Results of these evaluations are summarized, in pertinent part, as follows:4

School Psychological Evaluation (January and February 1997)-Licensed Educational Psychologist Jean Ms. Cristiani found Student to be friendly and affectionate, presenting with language delays and difficulties in the area of sensory integration. She recommended a very highly structured, small group setting, with ongoing opportunities for language related tasks and communication, and further that the speech and occupational therapists providing direct service collaborate with his classroom teacher. (Exh. P-5)

Special Education assessment (February, 1997)- The evaluator, Jane Flanders,
recommended that Student attend a substantially separate early childhood classroom for the balance of the year, and an integrated class in September 1997. (The evaluator, while acknowledging Student’s need for typical peers, noted concerns that the fifteen student integrated class, with students ranging in age from 3-5 would be overwhelming for him.) Continuing speech therapy (at least three times a week), consultation to teacher by therapist, activity oriented tasks, frequent change of activities and opportunities for imitation and practice were further recommended. (Exh. P-7, S-10)

Occupational Therapy Evaluation (January 1997)- Occupational therapist Susan Chipchase noted Student’s difficulties with sensory modulation and discrimination, and recommended occupational therapy two times per week, utilizing sensory integration techniques focusing on decreasing tactile defensiveness, improving body awareness, and improving motor planning. (Exh. P-33, S-12)

Speech and Language Evaluation (February, 1997)- Speech and language pathologist Julia Concannon found Student to present with a significant expressive language delay, compromised by oral motor planning difficulties and sensory integration issues. Recommended were speech and language therapy four times per week, delivered on both individual and small group bases, incorporating motor and play activity. It was further recommended that he be considered for enrollment in a small, structured language based class which would be sensitive to his needs. (Exh. P-25, S-11)

· Student has been regularly followed at MGH-Riverside by Drs. Katic (child psychiatrist) and Bauman (pediatric neurologist). The reports of their neurodevelopmental and neurological evaluations may be summarized as follows:

August 16, 1996 Neuropsychiatry Evaluation, performed by Dr. Katic:

The doctor recommended continued speech therapy, an occupational therapy evaluation, and further, that as Student approaches three years old, plans begin for a preschool program, which ideally should entail a highly structured, small classroom setting which is language based, with a high teacher/pupil ratio, in which he could receive pre-academic skill building and the opportunity for typical social development. (Exh. P-19)

January 17, 1997 Neurodevelopmental Evaluation, performed by Drs. Katic and Bauman: Recommended was a full day, five day per week, full year, small, highly structured, language based preschool classroom with a high teacher/pupil ratio (i.e. ten or fewer students to three staff would be best). Speech and language and sensory integration occupational therapies were also recommended. (Exh. P-18)

October 24, 1997 Neurology Evaluation performed by Drs. Bauman and Katic:

Recommendations included a five day per week, well structured language based educational program with a high teacher to pupil ratio, a summer component and continued extensive speech and language services. (It was noted that four hours per week of said therapy was ideal at that time, and that reduction would place Student at a high risk of possible regression or, at a minimum, failure to progress at his current rate.) (Exh. P-17)

April 17, 1998 Neurodevelopmental Evaluation performed by Dr. Katic and Dr. Bauman:

Based on reports of Student’s progress within his current academic setting, the recommendations offered by Drs. Katic and Bauman included continuation next academic year, “within either his current program or an identical program to that of Pine Manor, namely a small, highly structured, language based classroom with a high teacher to pupil ratio.” Continued speech and language and occupational therapy services at the same level were further recommended, and the importance of a highly structured language based program of 6-8 weeks duration for summer, with no decrease in therapeutic services, was also noted. (Exh. P-16) (See also Exh. P-10, April 21, 1998 letter from Dr. Katic, stating that it is imperative that Student continue to receive therapeutic and educational services during the summer in order to avoid regression.)

September 22, 1998 Neurodevelopmental evaluation performed by Dr. Katic:

Based on progress by report of mother and gradual progress on standardized assessments (cited were the Braintree Speech Evaluation and a February 1998 occupational therapy assessment), Dr Katic recommended Student’s continued placement in Pine Manor with the following language: “Any consideration for transferring him into another academic setting should only be pursued if an identical program to that of the Pine Manor School could be found, specifically a twelve month program, five days a week in a highly structured, language based classroom with intensive speech and language and occupational therapy services of six hours per week quantity.” (Exh. P-15)

· Student’s Mother, a certified special educator and teacher within the BPS system, presented testimony regarding her opinion of her son’s educational needs and the programs available to him both in Boston and at Pine Manor.

She stated that upon presentation of the initial IEP in the spring of 1997, she visited the Mattahunt Program, had significant concerns, and therefore rejected that IEP. The subsequent IEP, proposing placement in the Early Learning Center program at Jackson Mann was not offered until July, 1997. She explained that the ELC was not in operation over the summer as it was only an academic year program and that she therefore would have been unable to observe the program until after the school year had begun. She thus did not accept the proposal, notifying Boston instead, of her intention to place Student privately.

Parent testified that at the August 1997 mediation session, she was informed by Ms. Clark, a BPS staff person, that the hours of the ELC program were 7:30 AM to 3:20 PM, and that no mention was made that the length of the school day was negotiable. Parent indicated she had concerns regarding the length of the day given Student’s fatigue factor. She went on to state that the first time she became aware of flexibility with respect to the duration of the school day was in October 1997, pursuant to a conversation with Ms. McCarthy, then Director of the ELC.

Parent testified that she did observe the Jackson Mann program in October of 19975 (and then again in October of 1998), and articulated a series of concerns with such program, concerns which in her opinion rendered the program inappropriate for her son. Citing Student’s tendency to flee or seek out quiet space when he is over-stimulated and has a “melt-down”, Parent noted great concern regarding Student’s safety at the NZELC site, asserting that there were many unsecured doors/means of egress (to both the outside and to other sections of the building) in areas Student would use or pass through during the course of his day. (By way of example, to get to the occupational therapy room from the classroom would necessitate his passing exit doors which lead to a busy urban street) She noted other concerns with the physical plant vis a vis her son’s special needs, including the fact, e.g., that there is a stove and a kiln in community room adjacent to the cafeteria in which he would eat lunch, and Student lacks sensation of feeling dry heat. The noise level and the large open space of a 400 person school cafeteria were also noted by Parent as issues for Student given his sensory modulation deficits and his inability to handle noise and large open spaces. The number of physical transitions Student would be required to make in the Jackson Mann program were also cited as problematic by Parent. (She indicated that if he arrived at school for the early morning component, he would initially go to one classroom, then to the cafeteria for breakfast, then to his main classroom, and, if he remained for the after school program, to yet another classroom.) Parent further expressed serious concern over the fact that the classroom space was inadequate for Student, as he requires quiet “womb” space, given his sensory issues, and a designated area for rest as he fatigues easily because he uses so much energy for processing. She asserted that the ELC room did not offer either.

Parent further testified that the ELC was not appropriate for Student in that it utilized a teacher directed, as opposed to child or play directed approach. Moreover, the 1998-99 IEP called for all occupational therapy services to be delivered within the classroom, this in contravention of expert recommendations (even that of BPS’s own evaluator) for Student to receive sensory integration occupational therapy services, clearly requiring the use of specialized equipment not available in the classroom setting. Furthermore, the ELC did not offer a summer component. She testified that the only summer program offered Student by Boston staff was the Condon, a segregated program, and no door to door transportation was specifically offered for same. Parent testified that she observed the population at Condon, characterizing the students as much more severely disabled than her son, and hence an inappropriate peer group for him.

Parent went on to testify as to the factors which, in her opinion, render Pine Manor an appropriate placement for her son. She noted that the day runs from 8:45-2:30, that it is a play based curriculum, thus minimizing his need to have automatic language recall, that it offers an integrated summer component, and that it affords Student a safe and secure physical environment. (She described the plant as a converted home on a college campus, with a fenced in play area outside.) She further indicated that both the upstairs program, which Student attended during 1997-98, and the downstairs program (to which he moved for 1998-99), offer all services within a series of adjacent rooms, and provide designated quiet areas and rest space.

This witness further testified as to Student’s progress during his attendance at Pine Manor, indicating that he can now tolerate stimulation somewhat better, that his confidence and self-esteem have improved, that transitioning has become easier, and that his social and communication skills have evidenced positive gains.

With respect to therapies, Mother stated that the off-site component of Student’s therapies is delivered at the Chestnut Hill Learning Center (a satellite program of Braintree Rehabilitation Clinic), which is located less than a mile from Pine Manor. Student receives these services twice per week, at the end of his school day, on the way home from Pine Manor.

· Student’s father holds a masters degree in special education and is a special educator within the BPS system. He visited the Jackson Mann program in October 1997 and testified as to safety concerns with the ELC program. This witness cited, by way of example, an exit (which leads to a loading dock with a steep staircase) which is located near the ELC classroom; that students are required to cross a street during fire drills (Student has no judgement re: fear of cars); and that there are room changes which are required during the course of the day in the ELC program which could potentially be dangerous given Student’s tendency to try to flee. Father furthermore noted that the ELC classroom was small, cluttered and would contribute to Student’s sensory overloading.

This witness testified that Student has evidenced progress since at Pine Manor in social and interactive skills.

· Jane Prescott is the Director of the Pine Manor College Child Study Center, an integrated, developmental, clinical laboratory preschool program. Ms. Prescott holds a masters degree in early childhood education and is certified as a teacher of young children with special needs. (See resume, Exh. P-40.) She supervises the teachers at Pine Manor, observes and plans curriculum and is in each classroom for a portion of each morning. (She also served as a substitute teacher for two months in Student’s 1997-98 classroom.) She has known Student since the summer of 1997.

Ms. Prescott described the Pine Manor program as one with minimal transitions, which implements a “guided play” approach, and one which looks at each child individually. She contrasted this with a teacher directed group approach, which, in her opinion, is contraindicated for Student, as in the latter environment, he would be under pressure to perform and further that he would not be able to handle, e.g., sitting at a table with a large group of students for a teacher directed activity; rather, she stated, he would withdraw or retreat.

Ms. Prescott testified that during 1997-98, Student attended the program located in the upstairs portion of the converted house which serves as the site for the Child Study Center. Physically, the upstairs site consisted of a series of contiguous rooms with small areas available for quiet space. The class was a small,6 staff intensive, multi-age integrated setting. None of the staff was certified in special education7, however staff did have experience in special education or inclusion programs. In addition to full time staff, college students (approximately five in number) also worked in the program on a part-time basis. Student participated in the lunch and extended day components of the program (i.e., until 2:30 PM) for which he moved to the downstairs location. Currently (i.e., academic 1998-99), Student attends the downstairs class at the Child Study Center. Most of his friends from the upstairs program last year moved downstairs with him, as did one of his former teachers. Again it is an integrated setting, somewhat larger than last year’s program, with a maximum class population of 27 students. (Ms. Prescott indicated that groupings are always smaller.) There are four teachers, as well as student teacher(s) and approximately ten college students who work in the program part-time. Again, none of the teachers is certified in special education, but they do present with experience in inclusion programs. The space, larger than that of the upstairs class, consists of five contiguous rooms, divided into learning zones, which focus on everyday activities.

Student’s summer 1998 program consisted of an integrated program of seven weeks duration (there is no programming during the month of August), conducted primarily outdoors in the playground area, with a maximum of 21 students, many of whom also attended the academic year program at Pine Manor. At least one staff person from the upstairs program and one from the downstairs program (in addition to other staff and college students), staffed the summer program.

Ms. Prescott characterized the physical plant at Pine Manor as secure (noting, e.g., that there are fenced in areas, that door knobs are placed high so as to be out of the reach of children, etc.). She further stated that with the exception of gym, all services and activities (including occupational and speech/language therapies, delivered by staff from Chestnut Hill Learning Center8) take place within the one structure. Student walks to the gymnasium with close supervision. (She noted that Student held a teacher’s hand during 1997-98, but this year walks within arms length of a teacher.)

In assessing Student’s progress during the course of his participation in the Pine Manor program, Ms. Prescott testified that when she first met him in the summer of 1997, his speech was echolalic, he used his body or grunts to communicate, he manifested tactile defensiveness, he was perseverative, had no sense of pragmatic language, had social difficulty relating to other children and had great difficulty with transitions (i.e., when he couldn’t make the necessary shift, he would tantrum). When he became overwhelmed he would retreat, withdraw or hide. She indicated that since the summer of 1997 his speech has gradually improved, (i.e., he can now use 8-10 word utterances and use them functionally), he has started to reach out to other students and has more positive social relationships, his tantrumming has ceased, his ability to self-modulate has increased, and he has fewer periods of withdrawal/attempting to hide. She explained that he has learned to take himself out of over-stimulating situations when he needs to (i.e., when sensorially overloaded, he now will get up and go to a quiet space). In this witness’ opinion, it has taken Student a long time to build trust and relationships with peers and staff, ultimately leading to his progress in social and language skills. She expressed concern about the possibility of regression were he to change programs. She added that were Student to attend a summer program that was different from his academic year program, it would probably take him the entire course of the summer to make the transition and build trusting relationships with peers and staff.
(See also Exh. P-13, Pine Manor College Child Study Center Parent Handbook, describing the program in detail, and noting, in part, that it is a child centered learning environment, with a majority of the time spent by children working in small, self-selected groups. The handbook further indicates that the academic year morning program runs Monday-Friday from 8:45-11:45, followed by lunch bunch and extended day, 11:45-2:30 Monday through Thursday; that field trips, limited to walking trips on the Pine Manor campus, include visits to the gym, theater, library, mail room, dining hall, duck pond, pine grove and playing fields; and that the Child Study Center Summer Camp Program runs from mid June until the end of July, Monday-Thursday, and is held predominantly outdoors.)

· In April 1998, Leah Kosasky, M. Ed., (who had then served as Student’s teacher at Pine Manor for the summer 1997 and academic 1997-98 year programs) authored a letter, recommending his continued placement at Pine Manor. In this letter, she indicates that Student has progressed during his time at Pine Manor, and that moving him to another program would be detrimental as it would take a long time for him to rebuild the trust he shares with teachers and classmates. Ms. Kosasky’s letter further notes that when transitioning to the outdoors Student is watched very closely by Pine Manor staff, as he can be a flight risk if a new area is entered. The letter goes on to state that the whole college campus is used by students for exploration and large motor activity, but there is a favorable student to teacher ratio of 3:1. (Exh. P-12)

An August 1, 1998 progress report was prepared by Ms. Kosasky, using, in part, the Rides Checklist to compare Student’s progress from the summer of 1997 to the summer of 1998. (Note: by this point in time Ms. Kosasky had also been Student’s teacher for the 1998 summer program.) Results of this report may be summarized as follows:

Social/self-help Skills 8/97-15 month Mastery Level

8/98- beyond 48 Month mastery level

Fine motor/adaptive Skills 8/97- 12 month Mastery Level

8/98- 42 month Mastery Level

Receptive Language Skills 8/97- 9 month Mastery

8/98- 42 month Mastery

Expressive Language Skills Same as above

Gross Motor skills 8/97- 18 month level

8/98- 48 month level

Progress was also reported in emotional skills, conflict resolution and literacy development skills. (Exh. P-38)

· An April 28, 1998 letter from speech therapist Gilsenan of Chestnut Hill Language-Learning Center, who had then worked with Student for three months, noted marked gains, but indicated that Student continues to demonstrate a moderate disorder in receptive, expressive and pragmatic language. A full year program was recommended in order to ensure continued progress and avoid regression in language abilities. (Exh. P-11) Ms. Gilsenen’s October 1998 Speech and Language Therapy Progress Summary notes steady gains in receptive, expressive and pragmatic language abilities. Continued speech and language therapy was strongly recommended, given that Student continued to present with a moderate expressive, receptive, and pragmatic language disorder. (Exh. P-35)

· A June 1998 Speech and Language Assessment performed at the Center for Communication Disorders, Health South Braintree Hospital, recommended speech and language therapy (delivered on individual, group and co-treatment bases) totaling four one hour sessions per week, found that Student clearly benefits from “… a highly structured classroom environment with predictable routines,” and suggests inclusion in a twelve month program given the gains he had made in the past year and his history of regression when services are interrupted. (P-20)

· An undated (1998) letter from Student’s pediatrician, Mary Scott, indicates that he needs a full time summer program to prevent regression and maximize his development. (Exh. P-9, P-37)

· A March 1998 HealthSouth Braintree Rehabilitation Clinic Occupational Therapy Re-evaluation report, prepared by Elizabeth Churchill, OTR/L, found Student to present with moderate difficulty organizing sensory information, and resultant difficulties with motor planning, body awareness and coordination, and decreased proprioceptive and vestibular processing. The evaluator notes that Student benefits from utilization of a sensory approach in occupational therapy, and recommends one to two 45-60 minute sessions weekly of occupational therapy on an individual basis (including co-treatment with speech and language therapy), as well as classroom accommodations including availability of “womb” space (i.e., tent, beanbag chair in quiet corner) if over aroused and minimization of visual distractions. (Exh. P-31) Ms. Churchill’s October 15, 1998 occupational therapy report notes marked progress, however recommends continued occupational therapy, both within the classroom and out-patient settings, to address safety awareness, balance, eye-hand coordination, and overall gross and fine motor skills impairment, which are due, in part, to sensory processing difficulties. (Exh. P-39)

· Mary Daniels, M.Ed., is a former special education teacher and administrator, and holds additional certifications in areas including school psychology. (See resume, Exh. P-40.) She does not have particular expertise with respect to early childhood education. Ms Daniels testified that she has known Student’s family personally for a long period of time, but first became involved in his special education case in December 1996 (prior to the TEAM evaluation), pursuant to a call from his mother. Since that time she has attended his TEAMs as well as other meetings, has reviewed his assessments, has observed him in the home9 and in school. In October 1997 she had a walk-through at the Jackson Mann program site and also observed the targeted ELC classroom (during which time a literacy specialist was conducting a lesson). She characterized the lesson as very teacher directed, with students sitting and listening to the presentation. She further stated that she has reviewed the curriculum used in the ELC (Exh. P-8) and finds it to be very teacher directed. In Ms. Daniels’ opinion, Student is not ready for such a program, as his nervous system and sensory integration problems would not tolerate his being sedentary for long periods of time. She explained that if he were faced with such a learning environment, it could lead to melt-down and potentially inappropriate behaviors. She added that he still needs an opportunity to engage in imaginary play.

Ms. Daniels described the ELC classroom as windowless and very confined. She testified that Student needs space to get away, needs quiet time and further that he uses time looking out windows as a means for self-modulating and re-organizing. The ELC classroom environment did not allow for this. In this witness’ view, Student needs to be able to use his coping strategies and adaptations to deal with his environment, and if he is not able to do that, he will suffer negative consequences. She opined that while he is not currently a behavior problem, per se, placement in an inappropriate educational environment could result in his manifesting behaviors which could appear deviant. Ms. Daniels testified that at this point, Student needs a program which deals with his sensory integration issues, as they can’t be separated from the totality of his needs.

This witness further expressed safety concerns with the ELC program, reiterating issues raised by Parents (e.g., risk of flight when moving between classroom and occupational therapy room; potential danger of the exit door to loading dock near his classroom). She also noted that speech and language services were to be delivered within the classroom environment at ELC, while Student requires, in addition, delivery of individual services outside the classroom setting.

In addressing the Pine Manor program which she visited both last year and this year, Ms. Daniels testified that the facility was secure, there were both activity areas and quiet areas, the physical space was larger than ELC, thus allowing for more freedom of movement between areas/rooms, and further that while learning was indeed going on and there was an underlying structure to the program, it was not overtly directed but rather play oriented. She further noted that she has observed progress in Student during his time at Pine Manor, including greater ability to tolerate his environment and increased eye contact.

· Maryann Molloy is the teacher of the North Zone Early Learning Center Program, housed at the Jackson Mann Complex (which complex also houses an elementary school, a program for the deaf and a community center). She has taught at the Early Learning Center for ten years. She holds a BA in Early Childhood Education, a Masters degree in special education and is certified as a regular education teacher as well as a teacher of young children with special needs/moderate special needs. Ms. Molloy has reviewed Student’s records, has attended his TEAM meetings, and has observed him at the Pine Manor program.

Ms. Molloy described the Early Learning Center, which is comprised of six distinct classrooms, as a developmental program for students ages 3-6, incorporating play and structure. Her classroom, for three and four year old students, is the classroom which was targeted for Student pursuant to both the 1997-98 and 1998-99 IEPs. It is a small10, integrated, developmentally focused, language based classroom, staffed by herself, a full time aide, and a 1:1 aide assigned to a particular student. Therapies can be provided either within the classroom setting, or individually, outside of the classroom, based upon the needs of a given student. There is on-going collaboration between classroom staff and therapy providers.11 In addition, there are tutors from Boston University who come to work in the classroom, and work study college students who join the class in the afternoons. Typically there are three staff people in the room at any one time.

In describing the ELC’s physical space, Ms. Molloy testified that the classroom is housed in one large room, divided into centers (e.g., literacy, math, readiness, dramatic play) and a large space on the rug for meetings and motor activities. There is one bathroom in the room and one in the hallway. This witness indicated that she minimizes the visual distractions on the walls, however does post items which are educationally beneficial to the students.

Ms. Molloy testified that while there is no one area within her room specifically designated as “quiet space”, the ability to accommodate a student’s need for quiet space within the room does exist (e.g., literacy area could be utilized). She went on to explain that if Student became over-stimulated at any point during the day, he could, e.g., listen to tapes, retreat to a quiet space within the classroom or go for a walk outside of the room (in the hallway or outdoors) with a staff person, or otherwise use techniques/strategies learned in occupational therapy to deal with sensory issues.

This witness testified that she does follow a specific curriculum plan, however she incorporates the use of play throughout the curriculum activities. Attendantly, while she has a schedule for the classroom, there is flexibility within same to accommodate individual children, and adaptations are therefore made, as necessary, to meet the needs of the students. Ms. Molloy further indicated that it is only between the 9:00 AM-9:30 AM time slot that there would be a whole group teacher directed activity; other times of the day are devoted to small group (or individual, if necessary) child centered activities.12 She described a typical day as running between 8:30 AM and 2:30 PM13, and entailing child directed free play, meeting/circle time/sharing, followed by some type of movement-related activity; then students are divided into groups and move from one activity to another, which activities fulfill both curriculum and IEP goals as well as the desires of the children; students then go outside, accompanied by three BPS staff and one BU tutor; they thereafter have lunch in the cafeteria. Ms. Molloy testified that the students are accompanied to the cafeteria by three adults, they sit together as a group within the cafeteria, and lunch is brought to them. Adaptations can further be made, as necessary, with respect to lunch arrangements (e.g., a student could have lunch in the classroom with her).

After lunch there is flexible time within the schedule to either complete morning activities or to begin rest time early. Rest time for everyone then starts at one o’clock. If Student needed additional nap time, arrangements could be made so that alternative space (e.g., the Director’s office) could be used, and adult supervision would be provided. After rest time, students engage in free play, a child directed activity.
(Refer also to Exh. P-8, October 6, 1997 North Zone Early Learning Center Open House Literature, noting that school hours are between 8:30-2:30, with before school (7:30- 8:30 AM), and after school (2:30 – 600 PM) programming available as well, and describing staffing as well as a typical ELC schedule.)

In addressing the issue of transitions, this witness testified that Student would leave the room once per day for outdoor time, once per week for gym (which does not necessitate exiting the building) and daily to go to the cafeteria for lunch. Additional transitions would occur if it were necessary for Student to receive therapies outside the classroom setting. Furthermore, if there were a concern about over-stimulation when passing through the cafeteria, e.g., to get to the occupational therapy room, Student’s schedule could be arranged so that he would have occupational therapy in the morning when the cafeteria was not filled with students.

With respect to safety and security concerns raised by Parents, Ms. Molloy testified that she has had experience working with students who were at risk for running, and has always been able to meet their safety needs within the ELC structure. She added that there has been no incident she is aware of in her ten years at the program in which safety had not been insured for all students. She went on to explain that accommodations for safety have been made for other students and could be made for the Student herein. (She enumerated various methods, including setting up of a safety plan with the Director, staff, and parents; alerting building personnel; implementing a behavior plan to diminish flight if the Student’s profile were amenable to same.) She further indicated that were Student to attend the ELC, she would meet him at the door at drop-off in the morning, and escort him into the building. Ms. Molloy went on to say that if a risk of flight exists with respect to a particular student, that student could be paired with an adult during outside time and during all physical transitions (e.g., moving to and from outside, going to gymnasium, etc.). In addressing additional safety concerns raised by Parents, this witness indicated that: a) the kiln and stove referenced by Parents are not in use during the school day; and b) the outdoor play area is fenced in. (This witness acknowledged that the outside play space at Pine Manor was larger than that at ELC and further, that because of its location on a suburban college campus, it would appear to be more secure.)

Ms. Molloy observed Student at Pine Manor in October 1997 and again in October 1998, and offered testimony comparing that program to the ELC. She noted that the physical space of his 1997 program consisted of several rooms, and that the program did involve certain physical transitions (e.g., upstairs to downstairs; outdoors for play; off site for therapies after school, e.g.). She also observed that Student was permitted to be alone, at one activity (in this case play dough) for a very long period of time, without staff intervention (encouraging other students to join him, e.g.). She expressed the opinion that her 1997-98 program was more structured than what she observed at Pine Manor.

With respect to her 1998 observation, Ms. Molloy noted a larger physical space than the previous year, comprised of several rooms. There were 23 students and six adults present at the time, in her opinion, a very high number of people. The environment was, in her view, overwhelming and overstimulating, particularly as children moved from zone to zone (i.e. activity to activity) at their will. She testified that the environment was conducive to sensory overload, contrasting this with her classroom, which was smaller and more structured.

Ms. Molloy acknowledged that the fewer distractions in a learning environment, the more likely a child with sensory integration deficits would be to achieve his maximum feasible educational benefit; and, in her opinion, the ELC environment is not more distracting than that at Pine Manor, particularly given the management system inherent to her program, and the physical set up of the Pine Manor program (i.e., several rooms, movement among them by students, and the fact that students can travel around the space in a circular fashion).

This witness attested to observing Student open the lock to the Pine Manor kitchen (where the stove was being utilized), enter the room and walk around therein14.

In this witness’ opinion, the NZELC program would be conducive to assuring Student’s maximum feasible educational development, and would better serve him than the Pine Manor program.

In addressing the proposal for Student for summer 1998, Ms. Molloy testified that the Condon (or Lee) site summer program was offered, which she described as a segregated program15. She further indicated that students receive their related services over the summer months. This witness acknowledged that it would be more appropriate to continue Student in an integrated summer program, adding that for the summer of 1999, Camp Joy, an integrated program, would also be suggested.

· Ellen McCarthy was the Director of the Early Learning Center North from 1993 through June 1998. She has read the IEP proposed for Student for 1997-98, observed the Pine Manor program in October 1997 and has frequently been present in Ms. Molloy’s classroom. Ms. McCarthy described that program as an integrated language based program which is child centered and individualized. She testified that while Ms. Molloy’s class is more structured than the Pine Manor program, it is not a rigid, teacher directed setting; rather it is balanced, offering teacher direction in tandem with opportunities for choices. She contrasted this with the Pine Manor program which, according to a staff person with whom she spoke with during her visit, was characterized as 95% play based. Ms. McCarthy testified that this characterization was confirmed by her own personal observation, as the children appeared to be undirected. She further testified that she felt Student would have benefitted from a program which offered him more direction.

In addressing the capability of the ELC program to accommodate Student’s need for quiet space, this witness testified that such need could be met either within the room in other areas (e.g., the Director’s office), noting that this has been accomplished for other students in the past. She further testified that there have been other ELC students who posed a risk of flight, and effective safety plans/procedures were developed for them. She went on to state that in her five years at the program, there were no incidents in which a child exited the building unsupervised, that there were no safety incidents involving the cafeteria, the janitor’s space, the loading dock (she noted that deliveries are not made during school hours), the doorway which exits near Ms. Molloy’s classroom, the stove or kiln (operated only in the evening), or any other areas cited by Parents.

This witness further testified that on Parent’s initial visit to the ELC during academic 1997-98 (with Ms. Daniels), she was in Ms. Molloy’s classroom for less than ten minutes. When she visited on the second occasion, she did not go into the classroom at all. Ms. McCarthy added that during one of these visits she discussed program hours and transportation with Parent, indicating that most children attended the ELC from 7:30 AM to 3:20 PM, however if that did not work for her son, Parent could raise this issue with BPS staff to make adjustments, which adjustments could also include location of drop off point.

This witness testified that despite the extended hours of programming, the IEP per se is implemented within the 8:30 AM -2:30 PM time frame. She acknowledged that students who begin the day at 7:30 AM arrive at the other end of the building complex, and walk through the crossover to the ELC area, initially go to a room other than Ms. Molloy’s, then go to the cafeteria and then to Ms. Molloy’s classroom. She further noted that at the end of the day (i.e., 2:30) students typically go to another room for the last 40 minutes until dismissal at 3:20.

· Susan Chipchase, occupational therapist, BPS, conducted an occupational therapy evaluation of Student in May 1998, as part of his re-evaluation. She noted that Student presented with delayed fine and gross motor skills and motor planning difficulties, and recommended two forty-five minute sessions per week of occupational therapy, to improve sensory modulation/discrimination as well as fine and gross motor skills. Consultation, to assure carryover of activities into the classroom, was further recommended. The report also indicated that Student would benefit from a sensory diet, which should be incorporated into his daily routine as needed, to help with sensory modulation/discrimination, and should include activities such as massage, trampoline, swing, and the use of a quiet space. It was further noted in Ms. Chipchase’s report that the use of a weighted vest may be beneficial. (Exh. P-30, S-7)

· Mary Smith is a registered/licensed occupational therapist, specializing in sensory integration. She has reviewed Student’s occupational therapy records, and observed him both indoors and on the playground at Pine Manor in the fall of 1997. She noted that during her Pine Manor observation he manifested signs of over-arousal to activities.

Ms. Smith addressed parental concerns regarding Student’s risk of flight, indicating that she would attempt to ascertain the triggers for this behavior and make accommodations in order to avoid them. While acknowledging that the sensory integration equipment room is located in a different area of the complex than the ELC, she nonetheless noted that she has never had a problem with children moving from the ELC to the sensory integration room. She added that she has worked with other students who posed a risk for fleeing, but has never had one successfully leave her area.

In testifying with respect to Student’s tendency to become over-stimulated and the repercussions thereof, this witness stated that behaviors which result from over-stimulation are the end product of a student’s inability to process sensory information. Therefore, behavior modification techniques can be used to give individual students a structure within which they can learn to operate. She went on to say that no one factor (e.g. neither, overall size of space16, number of people, noise of a potential distractor) is a universal trigger for over-stimulation; that is, one child may be distracted by a bird chirping outdoors, while another child may be aroused or distracted by the sound of a fire engine. Furthermore, it is not universally true that minimizing transitions will necessarily inure to the benefit of a child with sensory integration deficits, as taking a walk from one place to another could be calming for some children. Ms. Smith did testify that any activity which required Student to sit for more than ten consecutive minutes would indeed be challenging for him, and that therefore a sensory diet (plan) would be set up for him, so that, e.g., following a sedentary activity he would move on to a movement task.

This witness, who attested to familiarity with Ms. Molloy’s class, testified that based upon her knowledge of Student’s sensory integration deficits, he could be effectively be served therein, adding that if he became over-stimulated, accommodations/strategies could be implemented within the classroom to enable him to modulate same. She explained that part of her role is to consult with teachers and furnish them strategies to utilize within the classroom setting. She went on to state that it is beneficial that she is housed on site, as she is thus available as needed for crisis intervention.

· Gwendolyn Clark, Assistant Program Director for Special Education (holds certifications in regular education as well as special education), participated in the August 1997 mediation session regarding Student. Ms. Clark testified that at said mediation, the issue of ELC program hours was discussed. She stated that she informed Parent that for special education students, the ELC school day ran from 8:30 AM to 2:30 PM, and that the extended component was not included unless and until a given student had attended for a certain period of time and it was determined that it was appropriate for the child to participate in same. At that time, transportation would be adjusted accordingly.

This witness went on to testify that prior to school opening in September 1997, BPS administration changed the hours of the ELC program for special education students so as to include the surround (extended) component, i.e., 7:30 AM – 3:20 PM. This information was sent, via mail, to the parents of students in the program, noting the attendant transportation adjustment. Ms. Clark testified that in order for a transportation notice to be triggered, there typically must be an accepted IEP. Since the IEP had not been accepted in the instant matter she could not state with certainty if such notice was or was not mailed to Parents in this case.

Ms. Clark added that Parents chose to visit the ELC program in October 1997, however BPS did not preclude them from visiting earlier in the academic year.

· Mary Cunningham, certified/licensed speech pathologist, BPS, reviewed Student’s records, is familiar with the ELC program, and performed a May 1998 speech and language assessment of Student, which included an observation at Pine Manor. (See assessment, Exh. P-21, S-6, which found Student to present with delays in receptive, expressive and pragmatic language skills, characterized by an atypical interactional style. Recommended was a small, structured, inclusive preschool setting; language therapy, preferably on site with in-class intervention and the opportunity for co-treatment from the various therapists involved; and consultation among teachers, therapists and parents. Accommodations to be used within classroom included the use of visuals, repetition of directions, wait time for recall, longer time for task completion, and multiple opportunities for peer/adult interaction. Ms. Cunningham testified that it was her recommendation that Student receive a minimum of three, 30 minute sessions per week of small group therapy, in conjunction with a language based program- i.e., a collaborative model, adding that the ELC program comports with this recommendation. She added that at this point she would rule out a diagnosis of verbal dyspraxia, given Student’s verbal development to date.

· Anne Eisengart is a licensed speech and language pathologist, and the speech/language provider for the ELC. She is assigned to said program three days per week. Ms. Eisengart has reviewed Student’s records, including both the 1997-98 and 1998-99 IEPs, and observed him at Pine Manor in October 1997. She testified that pursuant to the 1997-98 IEP (calling for four, 20 minute “pull-out” sessions per week), she would have provided three of said sessions and coordinated with another provider to furnish the fourth.17 Pursuant to the 1998-99 IEP, she would furnish Student the three, 30 minute sessions weekly within his classroom.

· Jane Flanders, Early Childhood Liaison, BPS, authored the February 1997 special education assessment ( supra ) as well as the June 1998 special education assessment. (See Exh. P-6, S-5 which finds Student to present with a disability in the areas of communication and social interaction, which disability interferes with his development. Recommended was Student’s placement in an early childhood special education program with a consistent structure and typically developing peers to serve as role models; and further that speech and language and occupational therapies should also be integrated in the classroom so he can learn to generalize these skills.)

Ms. Flanders (who has attended all Student’s TEAM meetings, has observed both the ELC and Pine Manor programs, and has had input with respect to the goals in both the 1997-98 and 1998-99 IEPs), testified that the designation of Mattahunt School in the 1997-98 502.8b prototype IEP written subsequent to the mediation session (Exh S-2),was simply a typographical error. The placement proposed was in fact the Jackson Mann ELC program, as reflected in the service delivery grid.

Ms. Flanders went on to state that she had no recollection of whether school hours or transportation was discussed at the TEAM meeting.

· Eileen Nash, Assistant Program Director for Special Education, BPS, is certified as a teacher of young children with special needs. Ms. Nash chaired Student’s June 1998 TEAM as well as the September 1998 re-convening. She testified that the issue of school hours and attendant hours of transportation was never raised at the 1998 TEAM meeting. (She added, however, that during a May 1998 visit to the ELC by Parent and her then advocate, the advocate addressed this matter with her subsequent to Parent’s departure, inquiring as to whether school hours could be condensed for a student if he couldn’t tolerate even the 8:30-2:30 school day.)


Student is an individual with a disability, falling within the purview of the IDEA and M.G.L. c. 71B. As such, he is entitled to a free, appropriate public education and an IEP which is reasonably calculated to assure his maximum feasible educational development in the least restrictive environment consistent with that goal. David D. V. Dartmouth School Committee , 775 F.2d 411 (1985). Neither his status nor entitlement is in dispute in this case. There is, furthermore, agreement between the Parties as to the nature and extent of his constellation of special needs. He is consistently described by experts for Parents and school alike as a child with sensory processing and integration deficits, receptive, expressive and pragmatic language delays, and related social deficits.

At issue in this proceeding is placement. Parents assert that the Pine Manor Child Study program is the appropriate program for Student, offering him a child centered educational environment in which his sensory and language needs can be met, and a physical setting in which he can be safe and secure. BPS argues that the more structured ELC program is better suited to meet the totality of his educational needs than the play-based Pine Manor program, and that Student’s physical safety can in fact be insured at the ELC.

It is my determination, based upon a preponderance of the evidence presented and consideration of applicable federal and state statutes, regulations, and case law, that the 1997-98 and 1998-99 IEPs, insofar as they propose Student’s placement at the NZELC program, are reasonably calculated to assure his maximum possible educational development in the least restrictive environment consistent with that goal. I make the attendant finding that the Pine Manor program does not meet said legal standard. I further find that Student required extended year programming in an integrated setting in order to prevent substantial regression over the summer months, and that BPS failed to offer him an IEP which made appropriate provision for same. BPS shall therefore reimburse Parents for tuition, transportation, and therapy costs incurred as a result of Student’s privately secured summer programming during the summer of 1998. Finally, I find that the speech and language therapy services as proposed in the 1997-98 and 1998-99 IEPs were appropriate for Student, given that they were to be delivered in conjunction with a language based program. However, while the occupational therapy services delineated in the 1997-98 IEP were appropriate to meet Student’s needs in this area, the occupational therapy services as delineated in the 1998-99 IEP, calling for therapy to be delivered exclusively within the classroom setting, did not appropriately address Student’s needs. Parents shall therefore be reimbursed for costs of the sensory integration component of the occupational therapy services privately furnished Student from September 1998 through the close of the current academic year. My reasoning follows.

From as early as 1996, when Student was first evaluated at MGH, educational recommendations from expert evaluators affiliated with said facility have been clear and consistent across disciplines, unequivocally endorsing a full day, five day per week, small, highly structured language based preschool program, with a high teacher to student ratio and a summer component. Consider first the series of evaluations conducted over time by child psychiatrist Dr. Katic and pediatric neurologist Dr. Bauman (commencing in August 1996, and followed by January 1997, October 1997, April 1998, and September 1998 evaluations, Exhs. P-19, 18, 17, 16, 15), each recommending, in addition to speech and occupational therapies, a small, full day, five day per week, highly structured, language based preschool program, offering a high teacher to pupil ratio.18 Consider further the MGH Speech Language Pathology Department Progress Summary Report for the period June 1996-August 1997, similarly recommending, in addition to continued speech and language therapy, Student’s placement in a full time, five day per week, preschool program offering a small, highly structured classroom with a low student to teacher ratio and an extended year component. (Exh. P-23) Then, in a September 1996 MGH occupational therapy evaluation report, it was again recommended that Student would benefit from a closed classroom, providing a structured environment. (Exh. P-34)

In addition to the mutually reinforcing recommendations of Parents’ experts from MGH are recommendations offered by experts affiliated with other facilities. The Riverside Early Intervention Program Developmental Assessment report of January 1997 notes that Student benefits from routine and recommends a structured classroom setting. (Exh. P-26) And, in a June 1998 Speech and Language Assessment performed at the Center for Communication Disorders, HealthSouth Braintree Hospital, it is noted that Student clearly benefits from a highly structured classroom environment with predictable routines. (Exh. P-20)

The opinions offered by Parents’ experts as to Student’s need for a small, highly structured, integrated language based program are echoed by BPS experts. (See, e.g., 1997 school psychological evaluation, Exh. P-5; see also Exhs. S-11 and S-6, BPS speech and language evaluations; and refer to testimony of Ms. Cunningham.)

The Pine Manor Child Study Center clearly does not hold itself out as such a program. By its own description (i.e., through its handbook, Exh. P-13, and the testimony of its Director, Ms. Prescott), Pine Manor is consistently portrayed as a child centered, guided-play based program. Nowhere is it described as highly structured, language based, or as a closed classroom setting. To the contrary, its physical configuration entails a series of contiguous rooms, and students are permitted to pass through these rooms at will, in order to participate in self-selected activities. Furthermore, the downstairs program in which Student currently participates (i.e., his academic 1998-99 program) is populated by 27 students, clearly not what was contemplated by Parents’ experts in recommending his placement in a “small”19 preschool classroom. Finally, according to the Pine Manor handbook, the program does not run on a full day, five day per week schedule, as the school day ends at 11:45 on Fridays.

Descriptions of Pine Manor offered by BPS experts who observed the program in 1997 and/or 1998 only reinforce the details of its self-characterization. Ms. Molloy testified that during one visit she observed Student alone at an activity of his choice for an inordinately long period of time without staff intervention, and that during another visit she observed students moving from room to room in circular fashion. In her opinion, the program was less structured than her classroom at the ELC. Ms. McCarthy testified that during her October 1997 observation of the Pine Manor program the children appeared to be undirected, and that she was informed by a staff person at said facility that the program was 95% play based. She too opined that it was less structured than the ELC program.

I am thus convinced by the record before me that the Pine Manor Child Study Center program does not comport in significant programmatic and structural respects with the educational recommendations of Parents’ own evaluators and BPS experts, as it does not offer critical elements consistently recommended for Student by such experts, to wit : a small, highly structured, language based, closed classroom preschool setting. In contrast, it is undisputed that the ELC program offers a five day per week, full day20, small, structured, language based closed classroom setting, with a high staff to student ratio, and the additional benefit (not present at Pine Manor) of a lead teacher who is certified as both a regular educator and a teacher of young children with special needs.

While reports of Student’s progress over the last two years are favorable, encouraging and undisputed (refer, e.g., to testimony of Ms. Prescott, Parents, Ms. Daniels; see Exh. P-35 and Ms. Kosasky’s reports, Exhs. P-12, 38), it cannot be inferred from the fact of such progress that he would not have made similar gains within the ELC program; nor can it be inferred from the gains he has made to date that his educational development has been maximized during his participation in the Pine Manor program. Indeed it is possible, if not probable, that his educational progress would have been enhanced had he participated in a program which met the structural and programmatic criteria consistently articulated by experts as necessary for Student, i.e., a full day, five day per week, small, structured, integrated language based class.

Certainly, in assessing whether the ELC is reasonably calculated to assure Student’s maximum possible educational development, the programmatic appropriateness of said program cannot be considered in a vacuum. The appropriateness of the physical environment as well as the safety of the facility must also be reviewed in light of Student’s specific needs21, particularly his sensory processing/integration deficits. While parental concern for the physical safety of a child who is at risk for fleeing is wholly understandable, the record is simply not convincing that the ELC program could not insure such safety for Student. BPS witnesses have attested to close adult supervision, a high staff to student ratio, flexibility with respect to logistical/scheduling modifications, and the capability of devising and implementing safety and/or behavior modification plans specifically geared to the unique needs of Student. (Ms. Molloy, Ms. McCarthy, Ms. Smith, e.g.) The foregoing would serve to minimize his risk of flight both by addressing the triggers for such behavior and by making the physical setting more secure. BPS staff has further attested to a blemish free safety record at the ELC, despite having dealt in the past with students who posed similar risks.

I further find that Student’s sensory processing and integration deficits can be appropriately accommodated within the ELC program. In this regard, I have not failed to consider the concerns expressed by Ms. Daniels and Parents regarding the size, “clutter” and lack of designated quiet space in the ELC room, given Student’s difficulty modulating sensory input and his need for quiet, womb space. However, I am persuaded that the inherent structure of the program would serve to inhibit extraneous sensory stimulation and thus mitigate the potential for sensory overload; this in contrast to the less structured, larger, open, multi-room setting of Pine Manor, where students are frequently moving from area to area, room to room. I am further persuaded by the testimony of experts in the field of occupational therapy as well as early childhood special education (Ms. Smith, Ms. Molloy), that Student’s need for quiet space (to rest, retreat, and/or self-modulate in the event he did experience over-arousal), can be accommodated in the ELC program. (Refer to testimony of Ms. Molloy and Ms. McCarthy attesting to flexibility with respect to securing quiet space and/or implementing calming activities, either within or outside of the classroom; refer also to testimony of Ms. Smith indicating that part of her role is to consult with classroom teachers to furnish strategies to utilize in the classroom.)

I next address the model proposed by BPS in the 1998-99 IEP for delivery of occupational therapy services to Student. Student’s need for occupational therapy utilizing a sensory integration focus is well documented and undisputed. (See, e.g., Exhs. S-7, S-12, P-31.) An integral part of the requisite sensory integration occupational therapy entails the use of specialized equipment, not available within a classroom setting. (Exhs. P-26, P-34, e.g.) While the 1997-98 IEP makes provision for Student to receive occupational therapy outside the classroom setting (Exh. S-2), the 1998-99 IEP calls for provision of all occupational therapy services within the classroom. Clearly, this is not an appropriate service delivery plan, as it would effectively preclude Student from receiving an integral component of the therapy he requires. It may well be that the TEAM contemplated implementation of something other than that which appears in the IEP, however there is nothing in the record to indicate that Parents were informed of this. BPS shall therefore bear financial responsibility for sensory integration occupational therapy services privately secured by Parents during the 1998-99 academic year.22

Finally, the issue of extended year programming will be considered. As with occupational therapy, Student’s need for a summer program, inclusive of therapies, is acknowledged by both Parties. (Refer, e.g., to Exhs. P-17; P-10; P-15; P-20; P-37; and IEP, Exh. S-3.) Parents have asserted that the summer component, just as the academic year program, should be integrated, allowing Student the opportunity to be educated with typical peers, and Boston has clearly endorsed the efficacy of integrated programming for Student during the academic year program. However, its only offer for extended year programming for the summer of 1998 was the segregated Condon program. This offer was neither procedurally nor substantively appropriate. First, the record does not evidence an IEP (or amendment thereto) which details, with any degree of specificity, the summer program, services, therapies or transportation which were to be provided Student pursuant to Boston’s proposal. The only written offer is imbedded within the Student Information section of the June 1998 IEP, and is general in nature. Substantively, Boston’s proposal for a segregated setting also fails, particularly in light of the testimony of Ms. Molloy, a BPS expert, who indicated that it would be more appropriate to maintain Student in an integrated summer program. Parents’ action in privately placing Student in the integrated Pine Manor summer program, in which program he did evidence progress, was reasonable and appropriate given the circumstances of the instant case. BPS shall therefore reimburse Parents for tuition, transportation and therapy costs incurred as a result of Student’s placement in the Pine Manor summer program for the 1998 summer session. Florence County School District, Four v. Carter , 510 U.S. 7 (1993); Doe v. West Boylston School Committee, et al. , 28 IDELR 1182 (1998).


BPS shall reimburse Parents for tuition, transportation and therapy costs incurred as a result of Student’s placement in the Pine Manor summer program for the summer of 1998. BPS shall furthermore bear financial responsibility for costs of sensory integration occupational therapy sessions privately secured by Parents for Student during the 1998-1999 academic year.

By the Hearing Officer,

Reece Erlichman

Dated: April 16, 1999


The record remained open for submission of closing argument through February 9, 1999.


Although the top right hand corner of the IEP, at page one, reads “Mattahunt”, it was acknowledged by the Parties that this was a typographical error. The entry rather should read “Jackson Mann”. The service delivery grid in fact reflects the Jackson Mann, North Zone Early Learning Center placement. (Testimony Ms. Flanders)


Note that although the prior IEP ran from March 1997-January 1998, Parents opted, in writing, to forego an annual review of Student’s IEP in January, 1998, noting their desire to postpone same until completion of the independent evaluation. (Exh. S-13)


Refer also to Profile, supra .


Parent indicated that she did not visit the program earlier in the school year because she thought it would be preferable to observe it once it had been in session for a while and students had been afforded ample opportunity to transition.


Note that the Pine Manor Parent Handbook, Exh. P-13, indicates that the upstairs morning nursery school program is populated by 12 students to two teachers; but note also Mother’s testimony indicating there were never more than 15 students in the program.


Note however that the resume of Ms. Kosasky, Student’s classroom teacher for 1997-98, reflects the following, “Teacher Certification, Elementary and Early Childhood (special needs).” (Exh. P-40)


Therapies Student received during his attendance at the Pine Manor Program were configured as follows: 1997-98, 1998-99:(a) after school, off-site at the Chestnut Hill Language Learning site of Braintree Rehabilitation Clinic)- individual speech/language and occupational therapy co-treatment sessions twice per week, one hour each session, using a sensory integrative approach; (b) twice weekly sessions, one hour per session, of speech/language therapy, delivered within the preschool classroom setting. As of 6/98 two, hour long sessions per week of school based occupational therapy within the classroom were added. (Exhs. P-36, 29, 22, 35, 39)


She testified that she observed him “bolt” from his home on one occasion.


During 1997-98 there were ten typical students and three students on IEPs, inclusive of Student herein; for 1998-99 there are twelve typical students and three on IEPS.


Ms. Molloy noted that the teacher, aide, and occupational therapist staffing the program were the same both last year and this year.


This witness noted that Ms. Daniels’ observation, approximately ten minutes in duration, was limited to the lesson given by the literacy specialist. Ms. Daniels never observed her (i.e., Ms. Molloy) teaching the class.


Ms. Molloy indicated that there is an early morning component which begins at 7:30 AM, and that there is also an opportunity for students to participate in an extended day component, which runs from 2:30-6:00 PM. She further indicated that the afternoon extended component is run by Boston University personnel, who arrive at the ELC program at 11:30 AM in order to insure carryover between the two components.


She stated that t here were a group of children and a student-teacher in the kitchen at that time.


See Exh. S-3, P-14, June 1998- June 1999 IEP which indicates that the length of the school year is not modified for Student, yet goes on to state, under Student Information , “Although [Student]’s parents have declined the BPS summer program that was offered on 4/16/98, the BPS summer program has again been recommended and offered for [Student].”


This witness stated that the student’s immediate space rather than the totality of the space around him may be the determinative factor.


Ms. Eisengart noted that pursuant to the model at Pine Manor during 1997-98, Student had similarly worked with different therapy providers (i.e., the provider on-site and the provider at Chestnut Hill.)


I note that the April 1998 report, Exh. P-16, recommends Student’s continued placement “within either his current program or an identical program to that of Pine Manor, namely a small, highly structured, language based classroom with a high teacher to pupil ratio”, this based on his progress to date. Similarly, based on reported progress, the September 1998 report states, “Any consideration for transferring him into another academic setting should only be pursued if an identical program to that of the Pine Manor School could be found, specifically a twelve month program, five days a week in a highly structured, language based classroom…” (Exh. P-15) Given the context of these recommendations, I do not afford evidentiary weight to that portion of same which endorses Student’s continued placement at Pine Manor. The very descriptors used by Drs. Bauman and Katic are not met by Pine Manor, and it can thus be inferred that the Doctors were not fully informed with respect to the nature of the Pine Manor program.


I note, e.g., that in attempting to further define their recommendation for a small class, Drs. Katic and Bauman suggested that ten or fewer students to three staff would be best. (Exh. P-18, January 1997 neurodevelopmental evaluation report.)


The record is inconclusive as to (a) if and when Parents were notified of the school system’s decision, made just prior to the start of the 1997-98 academic year, to extend the hours of the ELC for special needs students; and (b) when, if they were so notified, they were first informed that attendance during the newly extended components of the program was not mandatory, but rather flexible, based upon the needs of the given student. However, even if the facts on point are considered in the light most favorable to Parents, I do not find that this was a determinative issue with respect to Parents’ decision not to place Student at the ELC. I base this on the following: (a) Parent testified that she informed BPS of her intention to place Student at Pine Manor’s academic year program during the summer of 1997; (b) the language of the August 1997 mediation agreement confirms that it had already been decided by Parents that Student would be attending Pine Manor during the upcoming academic year; and (c) it is undisputed that by October, 1997, at the very latest, Parent was informed of the flexibility of the newly added hours.
(Refer to testimony of Mother, Ms. McCarthy, Ms. Clark; and see IEPs, Exh. P-14, noting that duration of regular school day was unmodified.)


It is noteworthy, in comparing safety features of the ELC and Pine Manor programs, that in the latter setting promoted by Parents, a safety incident occurred involving Student’s unsupervised entry into a room with a stove. (Refer to testimony of Ms. Molloy regarding her observation of this occurrence.) It is further noteworthy that the Pine Manor handbook indicates that students not only leave the main building for gym and recess, but participate in walking trips to various locations throughout the campus as well. (Exh. P-13)


The decision to order not only retroactive but prospective payment (i.e., from date of this decision through the end of the academic year) for therapy services, rather than ordering BPS to prospectively furnish appropriate sensory integration occupational therapy services to Student, is premised on the fact that it would neither be practical nor prudent for Student to change occupational therapy providers at this late date in the academic year, and Student should not be thus penalized for Boston’s omission.

Updated on December 23, 2014

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