COMMONWEALTH OF MASSACHUSETTS
BUREAU OF SPECIAL EDUCATION APPEALS
In Re: Boston Public Schools v. Samuel1
BSEA # 08-3552
DECISION
This decision is issued pursuant to the Individuals with Disabilities Education Act (20 USC 1400 et seq .), Section 504 of the Rehabilitation Act of 1973 (29 USC 794), the state special education law (MGL c. 71B), the state Administrative Procedure Act (MGL c. 30A), and the regulations promulgated under these statutes.
A hearing was held on March 18 and 20, 2008 in Malden, MA before William Crane, Hearing Officer. Those present for all or part of the proceedings (or who testified by speaker phone) were:
Student’s Mother
Student’s Aunt
Shaomin Xing Clinical Psychologist, South Shore Mental Health Center
Raul Mendez Guidance Counselor, Boston Latin School
Patricia Kenney School Nurse, Boston Latin School
Michael Haritos Teacher, Boston Latin School
Malcolm Flynn Assistant Head Master, Boston Latin School
Lynne Mooney Teta Head Master, Boston Latin School
Denise Duverge Teacher and Tutor, Boston Public Schools
Virginia Allen2 Tutor, Boston Public Schools
Angelina Cristiani School Psychologist, Boston Public Schools
Matthew Santmire Teacher, McKinley Middle School
Lynne Johnson Assistant Program Director, McKinley Middle School
Marjorie Jacobs Citywide ETF, Boston Public Schools
Hyacinth Loatmar Assistant Program Director, Boston Public Schools
Elizabeth Kurlan Program Director, Litigation, Boston Public Schools
Andrea Alves Thomas Attorney for Boston Public Schools
Marlies Spanjaard Attorney for Parent and Student, Education Law Project
Sarah Street Legal Intern, Education Law Project
Bryna Williams Attorney, Education Law Project
Jenny Chou Attorney, Education Law Project
Virginia Lam Interpreter
The official record of the hearing consists of documents submitted by the Boston Public Schools (Boston) and marked as exhibits S-A through S-X, and S-1 through S-11; documents submitted by Student’s mother (Parent) and marked as exhibits P-A through P-J; and approximately two days of recorded oral testimony and argument. Oral closing arguments were made on March 21, 2008, and the record closed on that date.
I. INTRODUCTION AND POSITIONS OF THE PARTIES
Boston initiated this proceeding by filing with the Bureau of Special Education Appeals (BSEA) a request for hearing, taking the position that maintaining Student’s current placement at the Boston Latin School (Boston Latin) would substantially likely result in injury to Student or others; the health and safety of Student and others would be endangered by delay; and the special education services accepted by Parent are inadequate to address Student’s needs.
Boston had developed a proposed IEP placing Student at McKinley Middle School (McKinley), which is a separate program only for children receiving special education services. Boston sought an order from the BSEA that its IEP is reasonably calculated to provide Student with a free appropriate public education in the least restrictive environment.
Through his attorney, Student filed his response, taking the position that he should be allowed to return to Boston Latin. Student argues that with appropriate support and accommodations, he may be educated appropriately at Boston Latin and that Boston’s proposed placement at McKinley is both inappropriate and unduly restrictive.
II. ISSUES
The issues to be decided in this case are the following:
1. Is the IEP most recently proposed by Boston (including Student’s placement at the McKinley Middle School) reasonably calculated to provide Student with a free appropriate public education in the least restrictive environment?
2. If not, what additions or other modifications should be made to the IEP in order to satisfy this standard?
3. Should Student be allowed to return to his placement at Boston Latin?
III. FACTS
A. Student profile .
Student lives with his mother, father, and older brother within the Boston school district. He is 12 years old. Student began the current school year as a 7 th grade, regular education student at Boston Latin. On September 25, 2007, Student attempted to choke another child at school. Following this incident, Student was hospitalized twice and suspended from school for three days. Testimony of Parent, Flynn; exhibits S-V, P-D (proposed IEP).
Student became eligible for special education services for the first time as a result of a November 15, 2007 IEP Team meeting. Boston proposed that Student attend the McKinley Middle School. Parent has declined to send her son to this placement. Since September 25, 2007, Student has not attended school but has received tutoring at home and at the Boston Public Library. Testimony of Parent; exhibits S-V, P-D.
Student is very bright, particularly in math, and has been successful academically, particularly in 1 st through 6 th grades. He works hard, has dignity, and maintains a positive attitude. At home, he enjoys watching TV, playing games, and doing crafts. Occasionally, he plays ball, swims, or rides his bike. Testimony of Parent.
Student has been diagnosed with depression and with pervasive developmental disability (not otherwise specified or NOS). Student also has deficits regarding social interactions and presents as withdrawn and introverted. His coping mechanism is to internalize negative things that occur to him, although when provoked and anxious, he can act out impulsively. However, Student is easily re-directed and is obedient by nature, and he has a good amount of inner control when he experiences mild to moderate anxiety. Testimony of Xing; exhibits S-V, S-G, S-H, S-I, P-D, P-G.
As a result of his PDD, NOS disability, Student occasionally exhibits stereotypical behavior such as making animal sounds in a loud voice at inappropriate times. This makes him vulnerable to teasing by Students and may result in a teacher attempting to reduce or eliminate this behavior if it occurs in the classroom. Testimony of Haritos, Xing.
B. April 2003 through the 2006-2007 school year .
A note in Student’s record, dated April 9, 2003, indicated that Student told his teacher that he would “kill himself.” A note from a physician at the South Cove Community Health Center, dated April 10, 2003, indicated that the physician then saw Student, that Student was safe to return to school, and that he would arrange an appointment for Student in the “next few weeks.” Student returned to school on April 11, 2003. Exhibits S-3, S-4.
Since 2004, Student has been in treatment at South Cove Community Health Center for depression. At this mental health center, he began receiving individual therapy twice per month from Shaomin Xing, Ph.D., a clinical psychologist, and he began being followed for psychopharmalogical management by Paul Yin, M.D., a child psychiatrist. Exhibits S-H, S-1.
Student attended Boston’s Harvard-Kent School during the 2004-2005 and 2005-2006 school years for 4 th and 5 th grades. A note in Student’s record from Boston to Parent, dated March 15, 2005, explained that Student “states that he wants to die to another student. He has a plan to wrap something around his head until his brains come out. He also bangs his head on this desk or the wall at times and has stated previously that he wanted to die. He cries very easily and at other times seems very hyper.” Student was then hospitalized in the inpatient psychiatric hospital unit at New England Medical Center. A note from a physician, dated March 28, 2005, indicated that Student “was stabilized on . . . Inpatient Unit” and was “safe to return to school.” Exhibits S-5, S-6.
A note in Student’s record from the school nurse to Parent, dated May 26, 2006, indicated that a number of students were teasing Student and throwing woodchips at him on the playground. Student refused to discuss what happened but kept saying things like: “I’m stupid. I deserve to die. I wish I got run over by a truck. I want to bang my head into the wall until I die.” Exhibit S-7.
A note in Student’s record to Boston signed by a psychologist, dated May 30, 2006, indicated that Student “was still pretty upset, and angry. He denied that he is suicidal or homicidal.” The note concluded that Student can return to school but the school “should provide necessary supervision, Check-in.” Exhibit S-8.
Student attended Boston’s Edison School for 6 th grade during the 2006-2007 school year.
A note in Student’s records indicates that on March 15¸ 2007, Boston staff were concerned that Student was posing a danger to himself and others. A Boston Health Services note, dated March 15, 2007, indicated increasing threats to harm self and others. A referral was made to South Cove Mental Health Center. Exhibits S-2, S-9.
Student’s records further indicate that a Boston Health Services note, dated March 16, 2007, indicated that “school staff remains very concern[ed] over verbal threats/statements re: hurting self & others.” Another note indicated that, on that same day, Boston staff was again concerned as Student was stating “I’ll strangle myself.” Boston referred Student for an evaluation, and after being seen by a physician on March 21, 2007, Student was determined “OK” to return to school. Exhibits S-2, S-10.
A note in Student’s record from Boston Health Services, dated April 13, 2007, stated that Student was demonstrating the following self-injurious behaviors: biting fingers, hands, and arms; banging head against the wall and desk; and picking skin off his lips. The form indicated that Student stated: “I’m a jackass, my life is a bitch, and why can’t I be dead?” These records indicate that Student’s agitation had increased, telephone number # 911 was called, and Student was taken to the New England Medical Center for evaluation. Exhibits S-2, S-11.
On April 13, 2007, Student was admitted to New England Medical Center “with major depressive episode.” Student was discharged on April 26, 2007. A note signed by a psychiatric resident, dated April 26, 2007, stated that Student can return to school “with full participation.” Student returned to school on April 30, 2007. Exhibits S-H, S-2, S-3.
Student’s final grades for 6 th grade for the 2006-2007 school year were as follows:
B- in Science
A in Visual Arts
B+ in History
C+ in French
B+ in English Language Arts
A in math.
Exhibit S-A
C. 2007-2008 school year .
Student was accepted to the Boston Latin School as a 7 th grade, regular education student for the current school year (2007-2008). Boston Latin is a public school for which a student may seek admission through application. Consideration is given to a student’s grades (grades from 5 th grade and part of 6 th grade are considered for a student seeking admission for 7 th grade), as well as the student’s score on an examination given to all applicants. Boston Latin includes grades 7 through 12 th , with admission considered only for the 7 th and 9 th grades. Boston Latin is generally considered to be a highly prestigious and competitive school serving only bright and gifted children. Nearly all graduating seniors attend a four-year college. Over the course of any school year, the work becomes more challenging and teachers’ expectations increase. Testimony of Haritos, Flynn, Teta; exhibit P-B.
Approximately 2400 students attend Boston Latin. An average classroom size in 7 th grade is 27 students, with a maximum of 28 students. 7 th grade students take their classes on the 2 nd floor of the building used by Boston Latin. Every 45 minutes, there is a transition, with students moving from one classroom or area to another. During these times, there would be approximately 750 students involved in a transition on the 2 nd floor. Testimony of Flynn, Teta.
On August 24, 2007, which was prior to the start of the school year, Parent and Student met with Ms. Kenney, a Boston Latin nurse. Parent explained that there were incidents during previous school years when her son became anxious and threatened to harm himself, resulting in Student’s being taken by ambulance to a hospital. Parent made clear that Student was currently seeing a psychologist (Dr. Xing) and psychiatrist (Dr. Yin), and Ms. Kenney requested a release so that she could communicate with them. Ms. Kenney noted during the meeting that Student was not on an IEP and therefore was not receiving special education services. Testimony of Kenney; exhibit S-C.
At this time, as had been the case since 2004, Student was privately seeing a clinical psychologist (Dr. Xing) for therapy. Dr. Xing wrote a letter “To Whom It May Concern” dated September 5, 2007 and received by Boston Latin on September 6, 2007. The letter referenced Student’s previous mental health treatment, indicated that Student has a diagnosis of depression, and explained that Student
would exhibit impulsive behavior when he gets upset. Historically, he had used profanity, often when he was provoked. Most likely, in such a situation, [Student] may use self-harm expression, e.g., “I will kill myself”. There is no self-harm behaviors reported, nor has he been physically aggressive toward others since I have known him.
Exhibit S-1.
In his September 5, 2007 letter, Dr. Xing further recommended as follows:
I highly suggested [sic] that [Student] receive “check-in” type of support counseling with staff in school periodically, more frequent at the beginning of the school year to assist his adjustment. Any type of social skill building related group would be greatly beneficial for him.
Mr. Mendez (a Boston Latin guidance counselor) was made aware of Student’s history and Parent’s concerns, but Student’s history and Parent’s concerns were not communicated to Student’s teachers. As a result, Student’s teachers were not aware of his diagnoses of depression or PDD, his previous emotional difficulties, or the recommendations of his therapist contained in the letter of September 5, 2007 (referenced above). During his brief time at Boston Latin, Student was not provided any support or services relative to his emotional needs. Testimony of Mendez, Kenney, Haritos.
Student began attending Boston Latin in September 2007. Over the next fourteen school days, his teachers noted that Student occasionally interrupted the class with bird noises (for example, a loud chirp) or other animal noise; Student occasionally slapped his head to make a noise or banged his head on his desk; Student often spoke in an unusually high-pitched voice that was not his normal speaking voice; and Student seemed withdrawn, was often disengaged, did not make eye-contact, and was at times non-responsive to a question or request. The teachers also found that Student would usually respond to their initiatives and direct interaction – for example, one teacher stood near Student’s desk and Student would then stop making the bird noises. Although Student did not raise his hand in class with a question, he would respond when called upon with an answer or with a request to “pass” as is allowed; and although he did not voluntarily interact with other students, he would join a group of other students when assigned to a group by the teacher. At other times, Student did not respond appropriately – for example, several teachers asked him to stop making bird noises, with the result that Student stopped for a period of time, but he then resumed making the noises occasionally. Testimony of Haritos, Mendez; exhibits S-J, S-K, S-L, S-M, S-N, S-O, S-P, S-Q, S-R.
During these fourteen school days, Student’s academic work was mixed. He received an 80 and a 70 on two quizzes in science, he demonstrated an ability to do the math work (which is a strength for Student), he was failing Latin (having received a grade of 0 on one quiz), and he demonstrated difficulty writing a sentence in English class. Student did not complete all of the assigned work in English and Latin. Testimony of Haritos; exhibits S-J, S-L.
Student was unable to access his school locker for a period of time. This made Student anxious because, as a result, he was not able to access one or more of his schoolbooks. Testimony of Mendez, Xing.
On September 25, 2007 during physical education class, the teacher observed that Student had become angry towards another child, Student placed his hands around the other child’s neck, and Student appeared to be attempting to choke the other child. Student was crying, gritting his teeth, and reiterating that he wanted to kill the other child. A teacher separated Student from the other child, and Student began banging his head against the wall. Student said that he would punish himself by killing himself. Testimony of Mendez, Flynn; exhibits S-D, S-E, S-F.
Student was then taken to the nurse’s office. Student appeared to be in crisis. He said that he tried to kill the other child. Student was crying, rocking in his chair, hitting himself, and speaking in a high-pitched voice. He said that he would be arrested and would have to kill himself. Staff called Parent who came to the nurse’s office. Testimony of Kenney, Flynn, Mendez; exhibit S-G.
The other child was also brought to the nurse’s office. The other child appeared to be upset and embarrassed, and had marks, including a scratch, on his neck. He was evaluated by the nurse, was determined to be okay, and did not need medical attention. Testimony of Kenney, Flynn.
Ms. Kenney testified that this incident was the only reported occurrence of aggressive or self-injurious behavior while Student attended Boston Latin. She explained that had there been any such additional behavior, she would likely have been aware of it. Testimony of Kenney.
Later in the day on September 25, 2007, Student was seen at the Children’s Hospital Boston Emergency Room and admitted to the Psychiatry Inpatient Service of Children’s Hospital Boston. Student was discharged on October 11, 2007. The Hospital’s Discharge Summary indicates that at the time of discharge, Student was improved and no longer actively aggressive, but he “continued to present as withdrawn and somewhat depressed.” Exhibit B-H.
On October 15, 2007, Student was admitted to the Boston Center, which is a day psychiatric hospital. According to the Boston Center Discharge Summary, Student maintained a flat affect, made little eye contact, and did not form personal relationships with peers or staff during his stay at the Boston Center. The Discharge Summary further explained that on his fourth day at the Boston Center, Student began banging his head on the table and wall; “he began expressing thoughts of suicide, asking staff to kill him and choking himself.” The Director of the Boston Center then decided to hospitalize Student. Exhibit S-I.
On October 19, 2007, Student was admitted to Carney Hospital. On that date, Dr. Byron Garcia (a psychiatrist) signed a Physician’s Statement for Temporary Home or Hospital Education, for the purpose of allowing Student to receive tutoring services. On November 6, 2007, Student was discharged from Carney Hospital. Exhibits S-R, P-E.
On November 6, 2007, a Boston Latin Assistant Head Master (Mr. Flynn) held a suspension hearing in his office at Boston Latin. Mr. Flynn suspended Student for three days and referred Student to the Counseling and Intervention Center. Testimony of Flynn.
On November 7, 2007, Student was seen by his psychiatrist (Dr. Yin) at the South Cove Community Health Center for purposes of a psychopharmalogical evaluation. In a note “To whom it may concern” of the same date, Dr. Yin wrote that Student is being treated for psychosis, NOS; Student “is not actively suicidal or homicidal now;” and he can return to school. Dr. Yin concluded by stating that Student “needs counseling in school too.” Exhibit P-G.
On November 13, 2007, Boston evaluator Rene Gauthier, M.Ed., administered the Woodcock Johnson III Tests of Achievement. In her evaluation report, Ms. Gauthier wrote that Student struggled to interact appropriately during the testing, leading Ms. Gauthier to question the validity of her testing. Exhibit S-U.
Ms. Allen testified that since January 2008, she has been tutoring Student at the Boston Public Library. Ms. Allen has seven years experience as a regular education and inclusion classroom teacher. Ms. Allen explained that twice each week (from noon to 2:00 PM on Thursdays and either 9:00 AM to 11:00 AM on Fridays or 10:00 AM to 1:00 PM on Fridays), she provides tutoring to Student in English and Latin. Student comes to tutoring on his own or with his mother.
Ms. Allen testified that, in general, it has been a struggle to get Student to do his school work, resulting in her cajoling and prodding him at times. Ms. Allen noted that it has been difficult for Student to focus on the task at hand – Student has demonstrated difficulty both focusing on the task at hand initially and then maintaining his focus on the task. Ms. Allen testified that Student’s difficult focusing likely is impairing or slowing down his ability to learn – for example, it took Student nearly one and one-half hours to learn ten new vocabulary words. Ms. Allen explained that she has been somewhat successful in engaging Student by focusing on small chunks of information at any one time and by utilizing graphics, videos, and pictures. Ms. Allen opined that Student’s difficulty focusing would likely impair his ability to learn in a regular education classroom because the distractions in such a classroom would make it difficult for Student to focus on his work.
Ms. Allen testified that during the tutoring sessions, Student has appeared sullen, detached, and humorless. Ms. Allen has found Student to be respectful towards her during the tutoring sessions, except for one incident when he muttered “damn you” under his breath.
Parent testified that none of the homework completed by Student has been returned to him with comments or corrections. Parent believes that this has negatively affected her son’s motivation to complete his homework.
D. Evaluation and testimony of Boston’s school psychologist .
On November 5, 2007, Angela Cristiani conducted a psychological evaluation of Student while he was a patient at Carney Hospital. Ms. Cristiani has a master’s of education degree in school guidance and a Certificate of Advanced Graduate Studies as a school psychologist. Since 1994, she has been employed by Boston as a school psychologist. Her principal responsibilities are conducting standardized testing (particularly for students referred for special education evaluation to determine eligibility and services), counseling students, participating in student support meetings, and crisis intervention. She provides her services to students at three Boston schools. Testimony of Cristiani, exhibits S-T, P-H.
For purposes of conducting a psychological evaluation of Student, Ms. Cristiani first reviewed certain school records (which are exhibits S-H, S-1, S-2, S-3, S-4, S-5, S-7, S-8, S-9, S-10, S-11), reviewed reports regarding the September 25, 2007 incident (discussed above), and spoke with Ms. Kenney (school nurse). She also had attended a student support meeting for Student, and she attended the evidentiary Hearing and heard testimony regarding Student prior to her own testimony on March 18, 2008. On November 5, 2007, Ms. Cristiani spent one and one-half hours with Student, observing him and administering a number of tests. Ms. Cristiani wrote her psychological evaluation on the basis of this information, observations, and testing. Testimony of Cristiani.
Ms. Cristiani testified (and her report indicates at page 7) that, through her evaluation of Student, she was not able to determine Student’s level of functioning, including his “ability, potential, or cognition,” but Ms. Cristiani opined that there was no question as to Student’s high level of intelligence. Testimony of Cristiani; exhibits S-T, P-H.
In her evaluation report, Ms. Cristiani concluded that Student requires “[t]herapeutic support within the educational setting;” that with this support, Student will be able “to re-engage in the learning process;” and that “with the appropriate integration of services, [Student] will be enabled to maximize his potential.” Specific recommendations made by Ms. Cristiani within her report included the following: (1) a highly structured classroom setting with a therapeutic component for the purpose of providing the social-emotional support required by Student; (2) use of auditory aids, cues, and manipulatives when new concepts are introduced or when current skills are reinforced; and (3) continuation and clarification of clinical therapeutic counseling services, together with a therapeutic treatment plan to be shared with Student’s Team members. Exhibits S-T, P-H.
Ms. Cristiani made clear in her testimony that she recommended placement of Student in a therapeutic learning environment where therapeutic staff are immediately available to support Student. She concluded that continued placement of Student in a regular education classroom is no longer appropriate at this time. Testimony of Cristiani.
E. Boston’s proposed IEP .
On November 15, 2007, a Boston IEP Team met, determined Student to be eligible to receive special education services, and developed a proposed IEP for Student for the period from November 2007 to November 2008. The IEP listed the following accommodations: small therapeutic group, behavior management, behavior contracts, opportunities for time out areas, preferential seating, frequent check-ins, check for understanding, consistent routine and expectations, positive reinforcement. The IEP called for the following specially designed instruction: behavior management contracts with reward system. The IEP included the following instructional modification: counseling, small structured therapeutic group, and “opportunities for one-to-one.” Exhibits S-V, P-D.
This proposed IEP also called for the following direct special education services:
· counseling services by a guidance advisor for 58 minutes, once per week;
· behavior/social-emotional services by a substantially separate teacher and guidance advisory for 25 minutes, five days per week;
· English, math, social studies, and science by a substantially separate teacher for 58 minutes, five days per week for English and math, three days per week for social studies, and two days per week for science;
· physical education by special education staff for 116 minutes, once per week;
· special projects by special education staff for 50 minutes, twice per week.
Exhibits S-V, P-D.
Boston’s Placement Consent Form indicated that Student is to be placed at a public, “separate day school,” and lists the location for services provision and dates as “11/2007 to 11/2008 Therapeutic Day School.” Exhibit S-X.
On December 17, 2007, Parent rejected the IEP, writing that she was rejecting any change of placement and was accepting only the counseling services to take place at Boston Latin. Parent also indicated that she did not agree with the IEP’s narrative of her son and would like it changed. On the same date, Parent refused Boston’s proposed placement as set forth on above-referenced Placement Consent Form. Exhibits S-X, P-D.
F. Placement at the McKinley Middle School .
Through the IEP Team meeting, Boston discussed and proposed that Student be placed at McKinley. Through its Hearing Request , Boston specifically has asked the BSEA to order this placement for Student.
All students admitted to the McKinley are special education students having a primary disability of an emotional or behavioral disorder. Some students have serious anxiety, an impulse disorder, or depression. Common deficits among the McKinley students also include language-based learning deficits, executive functioning deficits, and memory deficits. McKinley staff has experience working with students who have a diagnosis of depression or PDD. Maintaining discipline within the school is an important part of what is offered at McKinley. Testimony of Santmire.
McKinley has guidance advisors on staff, all of whom are licensed clinical social workers. The guidance advisors run social groups and spend time assisting in the classroom. McKinley also utilizes contracted services that include on-site counseling once each week for 45 minutes that is available to all students, as well as family therapy that is offered to all students. A psychiatrist is available to meet with McKinley students every other week. Testimony of Johnson.
In the 7 th grade classroom that Student would attend at McKinley, there are 12 students and 2 adults (one is a teacher and the other an assistant). The core subjects taught for 7 th grade are English language arts, math, science, and social studies. Within the 7 th grade classroom proposed for Student, the students range from 3 rd to 7 th grade reading level, with 3 or 4 students at the 4 th grade level, several in the middle ranges, and one student at the 7 th grade level. McKinley has the ability to adapt its curriculum to the individual academic level of a particular student, including students at a relatively high academic level. Transitions at McKinley are carefully structured and include staff escorts. Testimony of Santmire, Johnson.
Student’s therapist (Dr. Xing) has been seeing, in therapy, a student who currently attends McKinley Middle School, and Dr. Xing has learned of McKinley Middle School from his colleagues. On the basis of this knowledge and his work with Student over the past three years, Dr. Xing did not recommend McKinley Middle School as a placement for Student. Dr. Xing expressed concerns that a McKinley placement would expose Student to an environment that would be detrimental to Student, resulting in greater depression and lack of stability. Dr. Xing also expressed concerns that Student may adopt some of the aberrant behaviors of other students at McKinley. Finally, Dr. Xing noted that the academic expectations and standards at McKinley may be at too low a level for Student. Dr. Xing added that Student’s psychiatrist (Dr. Yin) also does not recommend McKinley as a placement for Student.
IV. DISCUSSION
A. Legal Framework
It is not disputed that Student is an individual with a disability, falling within the purview of the federal Individuals with Disabilities Education Act (IDEA)3 and the Massachusetts special education statute.4 The IDEA was enacted “to ensure that all children with disabilities have available to them a free appropriate public education [FAPE] that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living.”5 The Massachusetts special education statute also includes a FAPE requirement.6 FAPE must be provided in the least restrictive environment.7
The Supreme Court has described FAPE under the federal statute as “personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction.”8 FAPE is intended to allow a student meaningful access to public education9 rather than to maximize a student’s educational potential.10
In addition, FAPE is defined by the IDEA to include state educational standards.11 The Massachusetts educational standards are found within state statute and state education regulations.12 Massachusetts statutory and regulatory standards provide that special education services provided to a student must be designed to develop that student’s educational potential. For example, Massachusetts special education regulations identify the purpose of these regulations as “to ensure that eligible Massachusetts students receive special education services designed to develop the student’s individual educational potential.”13 Similarly, the Massachusetts special education statute defines the term “special education” to mean “educational programs and assignments including, special classes and programs or services designed to develop the educational potential of children with disabilities.”14 More broadly, the Massachusetts education reform statute sets forth the “paramount goal of the commonwealth to provide a public education system of sufficient quality to extend to all children the opportunity to reach their full potential.”15
In addition, Massachusetts and federal educational standards require that the IEP be designed to enable the student to make effective progress.16 Boston’s proposed IEP for Student is also framed in terms of his receiving specially designed instruction and accommodations “necessary for the student to make effective progress.” Exhibits S-V, P-D (page 2 of 11).
A student’s right to FAPE is assured through the development and implementation of each student’s individualized education program or IEP.17 The IEP must be custom tailored to meet the “unique” needs of the particular special education student so that he will receive sufficient educational benefit.18
The issue presented is whether the programming and specialized services embodied in Boston’s proposed IEP are reasonably calculated to provide an “appropriate” education, as that term is defined in the above-referenced federal and state standards, in the least restrictive environment.19 Boston has the burden of persuading me that its proposed IEP, including its proposed placement at McKinley, meets these standards. Parent seeks a return of her son to Boston Latin, and she bears the burden of persuasion regarding this part of the dispute.20
I will first consider what special education and related services are necessary to provide Student with FAPE in the least restrictive environment, and then will discuss the necessity of a transition plan. At the end of this analysis, I will explain why, in my opinion, Boston has failed to carry its burden of persuasion regarding its proposed IEP and placement.
B. Student’s Educational Services and Placement
Central to the instant dispute is the incident that occurred on September 25, 2007. As discussed in greater detail above (part IIIC of this Decision), Student attempted to choke another child and soon thereafter told a Boston Latin staff that he was trying to kill the child. This most serious incident precipitated Student’s immediately leaving school, being hospitalized twice, becoming eligible for special education, and not, as yet, returning to school. It is essential to understand the September 25 th episode, not only as to what occurred, but why it may have happened, and how it may be understood in the context of Student’s conduct and emotional well-being in general. Also central to a consideration of this incident is the likelihood of its re-occurring.
In answering these questions, I rely to a large extent on the testimony of Student’s private therapist (Dr. Xing). Dr. Xing has been seeing Student in therapy (usually once per week) for three years. Over the course of that time, Dr. Xing has developed an intimate understanding of Student, his behavior, and what causes it. Although there have been only minimal contacts between Dr. Xing and school staff, Dr. Xing has been in communication with Student’s treating psychiatrist and works closely with Parent. Dr. Xing testified in a professional, careful, candid, and reliable manner. Accordingly, I give substantial weight to his expert opinions regarding Student.21
At the outset, I note that the September 25 th incident was unique in the sense that on no other occasion from 1 st through 6 th grade has Student violated a school regulation or been disciplined for conduct at school, nor has there been any reported incident of Student’s being physically aggressive with another person over the past three years. Also, for the past year, Student has been attending a Saturday program with other children without incident. Testimony of Parent, Kenney, Xing; exhibit P-I.
Dr. Xing testified that he is familiar with the incident on September 25, 2007, as well as some of the events leading up to this incident. He noted that prior to September 25, 2007, Student had received a “0” on a quiz, which upset him. He was unable to access one or more of his textbooks that were in a locker that could not be opened for a period of time, which caused further stress. Dr. Xing also noted that Student was also likely feeling anxious because it was the beginning of the school year, because Student was in a school (Boston Latin) that was new to him, and because Boston Latin has high academic expectations. Dr. Xing believes that all of these stressors likely contributed to Student’s actions on September 25, 2007 when Student became angry at another child and began choking him.
Dr. Xing testified that although there is always the possibility that Student will attempt to do something similar to what occurred on September 25, 2007, Dr. Xing believes that Student does not now present a significant risk to self or others and that he should return to school. Dr. Xing stated that he believes the September 25, 2007 episode reflected a deterioration for Student because it was a serious attempt to physically injure another person and because over the three years that he has been providing therapy to Student, the September 25, 2007 episode was Student’s worst incident.
However, Dr. Xing explained that this incident occurred not because of a change in Student’s mental health, but rather it was situational – that is, the episode likely was caused by the stressors to Student that existed at Boston Latin at that particular time.
Dr. Xing noted that Student has benefited from the therapy with him, providing Student a place to discuss and understand situations that cause stress for Student and learning skills that can be used in these kinds of situations. Dr. Xing stated that there is no indication that were Student to see the child (whom Student began to choke at Boston Latin) that Student would seek to harm that child again. Dr. Xing also noted that with the greater understanding of Student that has emerged from this incident, there is a better opportunity to identify and put in place supports that would likely preclude this kind of incident from re-occurring.
In addition to the September 25 th incident, of concern regarding Student’s ability to attend school safely is his history of making statements such as “I want to die” or “I’ll strangle myself” or “I want to bang my head into the wall until I die.” Student has also occasionally banged his head against a wall or a desk. These kind of incidents, which have typically led to brief psychiatric hospitalizations, have occurred in April 2003, March 2005, May 2006, March 2007, and April 2007, and most recently during the September 25, 2007 incident. See parts IIIB and C of this Decision.
Dr. Xing testified persuasively that Student’s statements with regard to wanting to die are best understood not as an indication that Student is suicidal but rather as expressions of helplessness and depressed mood, and an attempt to seek help from others. Dr. Xing also explained that Student bangs his head occasionally against a wall or a desk not for the purpose of physically harming himself but rather reflecting frustration, disappointment, and an attempt to punish himself. In addition to his testimony in the present dispute, Dr. Xing made these opinions clear to Boston in a letter of September 5, 2007 that was shared at that time by Parent with Boston Latin staff. Testimony of Xing; exhibit S-1.
Dr. Xing testified that it will be important that supportive services be in place at school in order to minimize any risk of harm to Student or to others at school. Dr. Xing also pointed out that the more stressors (both academic and inter-personal) that Student experiences, the more support Student needs. Testimony of Xing.
In light of Dr. Xing’s understanding of the September 25 th incident and the above-described statements and conduct of Student, Dr. Xing was persuasive in his testimony (and his letters of September 5, 2007 and January 3, 2008) that to address Student’s mental health and behavioral needs, he requires a number of additional services and supports.
First, Dr. Xing recommended that Student receive a “check-in” type of support. Dr. Xing contemplated that Student would see, even if only for a few minutes, a school psychologist, adjustment counselor, or teacher (if the teacher had a good rapport with Student) for the purpose of determining how Student was doing at school on that particular day. This would give Student an opportunity to express any concerns or difficulties and to problem-solve with a school staff person to address any school difficulties (such as a lost text book or harassment from another student). The check-in person must know Student well enough to be able to communicate effectively with Student notwithstanding Student’s being introverted and his inclination to give one-word answers to general questions about himself. The check-in process is considered as a preventative (rather than therapeutic) approach for quickly identifying and then reducing any potential stress and anxiety for Student as a result of what is occurring in school. Checking-in would occur on a daily basis, and then less frequently as Student demonstrated that he was stable at school. Testimony of Xing; exhibits S-1, P-A
Second, Dr. Xing recommended that Student be provided regular counseling at school for the purpose of helping Student to address any inter-personal or academic difficulties at school and to help him learn how to interact appropriately with others. Boston has also recommended this related service as part of its proposed IEP for Student. Testimony of Xing; exhibits S-V, P-D.
Third, noting Student’s social skills deficits, Dr. Xing suggested a social skills group, anger management group, or similar opportunity would benefit Student by enhancing his social skills. Dr. Xing testified that this would therefore be a useful addition to Student’s other services. Testimony of Xing.
Fourth, Dr. Xing testified to the importance of on-going communication between Student’s private therapist (currently, Dr. Xing) and those people who are working with Student at school (including the check-in staff person and the person providing counseling to Student). This communication would be important to assist the private therapist to understand any difficulties that Student may be having at school, and for the private therapist to share with those at school any recommendations he might have as to how best to work with Student. The result, according to Dr. Xing, would be a significant improvement in treatment efficacy for Student. Testimony of Xing.
Dr. Xing’s testimony was persuasive that these accommodations and related services, which could be provided within a regular education classroom, would likely allow Student to attend school safely. Boston argued to the contrary. However, for reasons explained below in part IVD of this Decision, I find that Boston did not present persuasive evidence on this issue, and therefore did not carry its burden of persuasion that Student must be placed in a therapeutic, separate educational program in order to receive FAPE.
I now turn to the question of the particular school at which Student should be placed for purposes of attending a regular education classroom with the services and supports described above. Parent has taken the position that Boston Latin should be ordered as the appropriate educational placement for Student at this time. I now consider this claim.
Prior to considering the merits of Parent’s position, I note that Parent and Student share an intense desire that Student be allowed to return immediately to Boston Latin. Any other result may not only result in deep disappointment, but also to a sense of failure and frustration for Student.22
An IEP Team determines the specific location of the services to be provided to a particular student .23 This determination must be made so that the IEP can be implemented for purpose of providing FAPE in the least restrictive environment and so that other placement requirements found within the IDEA and Massachusetts law are satisfied.24 In addition, Section 504 of the Rehabilitation Act requires that a student not be precluded from attending a particular placement, to which he is otherwise qualified to attend, solely on the basis of his or her disability .25 None of these legal protections may result in a placement that would compromise the safety of Student or others.26
As discussed above in part IVA of this Decision, Parent has the burden of persuasion that the specific location where Student should receive his educational services is Boston Latin. Although Student’s eventual return to Boston Latin should be Boston’s goal, I am not persuaded that it would be safe and appropriate for Student to return to Boston Latin immediately as a full-time 7 th grade student. My reasoning follows.
As discussed in more detail below, all concerned, including the Boston Latin Head Master, appear to envision Student’s eventual return to Boston Latin. It seems likely that, with the related services and accommodations described above (and that will be required through this Decision), Student will be able to return safely to Boston Latin and hopefully will succeed academically notwithstanding the academic pressures and expectations of that learning environment.
However, for Student to return at this particular time would, in all likelihood, be difficult for Student academically and would place him under significant additional stressors. A Boston Latin teacher (Haritos) made clear that the demands and expectations placed upon 7 th graders increase over the course of the school year. Student has only had home tutoring for the purpose of continuing his education since September 25 th , and the effectiveness of this tutoring as a way for Student to keep up with the academic work of his Boston Latin peers is in doubt. The Boston Latin Head Master testified persuasively that the reports from the tutor indicate that Student is currently learning at a much slower rate than would be expected of a 7 th grader at Boston Latin at this point in time. An added hurdle in recommending an immediate return to Boston Latin is the uncertainty of how Student will immediately respond to his return to an academic environment, having been absent from school since September 2007. Finally, I note that Student’s private therapist (Dr. Xing) who was, in general, supportive of Parent’s positions and Student being safe to return to school, was cautious when asked where Student should be placed, declining to make an unequivocal recommendation that Student should immediately return to Boston Latin. Testimony of Allen, Haritos, Teta, Xing.
Given (1) the inevitable stressors of attending Boston Latin under the best of conditions, (2) the substantial additional difficulty for Student of a mid-year return to Boston Latin, (3) the uncertainty of how Student will respond having been out of the classroom for the past six months, and (4) the lack of unequivocal support of Dr. Xing, I am unable to conclude that Student’s immediate return to Boston Latin as a full-time 7 th grader would be a safe and appropriate placement.
Boston should consider and could choose to allow Student to return to Boston Latin immediately. Presumably, this would require Boston to alter the Boston Latin placement – perhaps, for example, by altering its academic expectations, allowing Student to receive alternate instruction through tutoring in those academic areas that are likely to present the most difficulty to him, and increasing the support beyond what has already been described in this Decision – in order to reduce sufficiently the stressors of returning mid-year and to increase the likelihood of Student’s academic success. Parent’s argument (which she has not actually made because she takes the position that Student should return to Boston Latin with the services and supports recommended by Dr. Xing) would be that Student is entitled to these adjustments as a reasonable accommodation under Section 504. However, I do not believe that Section 504 requires an accommodation to this extent. As a general rule, the courts have been clear that Section 504 neither requires a “fundamental” or “substantial” modification of a program, nor requires an educational program to lower its academic standards.27 Accordingly, I find that Boston could choose this approach, but is not required to do so.
In the event that Boston does not voluntarily choose to allow Student to return to Boston Latin at this time, as discussed above, Boston will need to identify immediately, through the IEP Team process, another specific Boston middle school for Student to attend a regular education classroom at this time. The particular middle school should be specifically identified by the IEP Team as Student’s placement after the Team’s determination that (1) the necessary supports and accommodations, discussed above, would be provided at that school and (2) the academic program at that school would likely develop Student’s educational potential.
The IEP Team should carefully consider Student’s strengths and weaknesses in determining Student’s particular educational placement. It would likely be highly beneficial for Student’s immediate 7 th grade placement to be a relatively small and supportive educational environment, designed to develop Student’s educational potential and at the same time be responsive to his individual emotional and behavioral needs.
C. Transition Plan
There is no reason to believe that Student should be permanently foreclosed from attending Boston Latin. In her testimony, the Boston Latin Head Master made clear her hope for Student to attend Boston Latin when he was able to do so safely and successfully after a period of time in another placement, and Boston’s attorney (in her closing argument) offered the possibility of a transition plan for the purpose of allowing Student to return to Boston Latin. The Head Master and Boston’s attorney made these remarks in the context of Student’s being first placed at McKinley and then transferring from McKinley to Boston Latin, but I suggest that the principle applies equally with respect to a transfer from a regular education middle school to Boston Latin.
Neither party has been clear as to what should occur prior to Student’s transferring to Boston Latin after a period of time in another educational placement. Presumably, a written transition plan for Student would need to describe what success Student must demonstrate in another middle school prior to returning to Boston Latin. It will be important for the plan to include specific criteria which, if satisfied, would allow Student to return to Boston Latin in order for the plan to be meaningful to Student and Boston. There should also be a clear process for reviewing Student’s progress towards meeting these specific criteria. As part of the transition plan, Boston Latin will need to have put in place the supports and services set forth within Student’s IEP prior to Student’s return.
The IEP Team is the appropriate vehicle for developing a transition plan for purpose of Student’s return to Boston Latin. The transition plan should be developed by the Team as quickly as possible (and no later than six weeks from the date of this Decision) in order that Student and Parent understand what he must do in order for Student to return to Boston Latin.
In addition, as part of this process, the IEP Team should consider the importance of obtaining more information regarding Student and his learning deficits. More specifically, the Team should consider the need for a neuropsychological evaluation, which should be done by someone with sufficient expertise and experience testing students diagnosed with PDD.
There is virtually no useful information in the record regarding Student’s PDD, or what, if any, educational services or accommodations are needed to address this deficit, and yet it seems likely that Student’s PDD is impacting his learning and functioning. Neither party has requested that a neuropsychological evaluation be conducted, and therefore I will not order it. However, in his testimony in response to a question from the Hearing Officer, Student’s private therapist (Dr. Xing) strongly endorsed obtaining a neuropsychological evaluation, and Boston (during closing arguments) to its credit indicated its willingness to fund an independent neuropsychological evaluation. It would likely be quite helpful to have the results of this evaluation prior to Student’s return to Boston Latin so that any needed additional accommodations or services can be identified and added to the IEP that would be implemented at Boston Latin. Testimony of Xing.
D. Boston’s Contrary Perspective: Student’s Need for a Therapeutic Placement at the McKinley Middle School
Through its proposed IEP, Boston would place Student in a separate, therapeutic program serving only students with special education needs. This is the most restrictive program offered by the Boston Public Schools.
As explained above in part IVA of this Decision, Student has the right to be placed in the least restrictive placement that can meet his educational needs. “Least restrictive” means that, to the maximum extent appropriate for Student, the educational services are to be provided with other students who do not have a disability. Boston has the burden of persuasion that Student requires the level of restrictiveness proposed within its IEP.
Boston presented only one witness (Ms. Cristiani) who supported the placement proposed in its IEP. There are no reports or other documents (other than the IEP itself and, to some extent, Ms. Cristiani’s written report) that call for the level of restrictiveness proposed by Boston.28
Ms. Cristiani is an experienced school psychologist. She testified candidly and sincerely. I have no doubt that she believes that her recommendations represented the least restrictive placement appropriate for Student and that her recommendations are in Student’s best interests. With all due respect to Ms. Cristiani, I find that her understanding of Student was not complete, with the result that she did not present reliable expert testimony regarding Student’s emotional deficits and how they should be met. Therefore, I discount her testimony.29 My reasoning follows.
Ms. Cristiani’s basic premise was that Student cannot be appropriately educated within the mainstream classroom and that the only appropriate placement for Student is a separate, therapeutic school. Her rationale for this opinion, as explained in her testimony, was that what has been happening (relative to Student’s education) has not been working for him and that he therefore needs “something different.” More specifically, Ms. Cristiani believes that Student’s frequency of emotional incidents has been increasing and that Student appears to be decompensating despite the mental health services that he has received, with the result that he can no longer be effectively educated within a regular education school environment. Ms. Cristiani further testified that placement in a therapeutic environment was necessary because when Student’s behavior manifests itself, he needs to have therapeutic staff immediately available to help him process what is occurring and to otherwise assist him. She stated that these kind of therapeutic supports are unavailable in any regular education middle school in Boston. Testimony of Cristiani.
Ms. Cristiani testified that going into her evaluation of Student, she had very little information regarding Student. Her psychological evaluation of Student is based upon a one and one-half hour, in-person evaluation, together with a review of limited documents indicating behavioral incidents and hospitalizations, and information from others at Boston Latin who knew him for only 14 school days. Ms. Cristiani did not have the benefit of speaking with others within the Boston Public Schools who have known Student (for example, teachers and staff from previous school years) and she did not speak to any clinicians or therapists (other than the Boston Latin school nurse) who have worked with or treated Student. As a result, she drew conclusions about Student’s clinical profile and behavioral history primarily on the basis of documents that contained limited information.
In her evaluation report and testimony, Ms. Cristiani herself recognized some of the limitations inherent in her role as school psychologist. Ms. Cristiani stated in her report that “[Student’s] manifesting behaviors are beyond the scope of a School Psychologist and are clearly clinical in nature.” In her testimony, Ms. Cristiani further explained that Student’s profile is beyond her training as a school psychologist and that she would not be an appropriate person to provide Student with counseling that would meet his needs. Testimony of Cristiani; exhibit S-T (page 7).
Nevertheless, Ms. Cristiani sought to utilize Student’s past behavior as bases for her own recommendations. In her report, Ms. Cristiani made reference to and appeared to rely on what she characterized as “a history of self-injurious intent dating back to April of 2003” and “[d]ocumentation [that] revealed suicidal behavior in April 2003, March 2005, May 2006, April 2007, and September 2007.” Ms. Cristiani’s characterizations of Student’s speech and conduct makes clear the inherent difficulty in a school psychologist’s seeking to understand a student’s emotional deficits from a record review and brief evaluation, without consultation with the treating therapist. Dr. Xing, who has seen Student in therapy for three years and who is much more familiar (than Ms. Cristiani) with Student’s intentions and behaviors during this time period, has a significantly different understanding of Student’s statements of wanting to die as well as Student head-banging episodes. Dr. Xing’s views, which are discussed above in part IVB of the Decision, undercut the reliability of Ms. Cristiani’s understanding of Student’s past speech and conduct.
Ms. Cristiani testified that at the time of her testimony (until it was pointed out to her on cross-examination) and when she wrote her report, she was not aware of any report or opinion concluding that Student was safe to return to school. As discussed above, subsequent to Ms. Cristiani’s testimony, Dr. Xing testified persuasively that Student is now safe to return to school, and there are several documents in the record reaching this same conclusion. Exhibits P-E, P-F, P-G.
In her testimony, Ms. Cristiani made reference to (and appeared to rely on) her belief that Student was psychotic. Similarly, in her report, she noted a diagnosis of psychosis. Ms. Cristiani is correct that on two occasions Student had been given a diagnosis of psychosis, and it is understandable why she would come to this conclusion. However, neither Dr. Xing nor Student’s treating psychiatrist considered Student to be psychotic. The testimony of Dr. Xing (who reviewed these previous diagnoses during this testimony) was persuasive that the weight of the evidence was that Student does not have a thought disorder and is not properly diagnosed as having psychosis. Testimony of Xing; exhibits S-G, S-H, S-I, P-G.
Most importantly, the evidentiary record (including Dr. Xing’s testimony) undercuts Ms. Cristiani’s opinion that Student’s frequency of emotional incidents has been increasing and that Student appears to be decompensating despite the mental health services that he has received, with the result what has been happening (relative to Student’s education) has not been working for him and that he therefore needs “something different,” which must be a separate, therapeutic educational program. As explained in detail above within section IVB of the Decision, the September 25, 2007 episode is best understood as an isolated incident principally caused by the particular circumstances and stressors to Student at that time, rather than as a change in Student’s mental health status.
In addition, there are specific supports and services (which would be put into place for the first time), as recommended by Dr. Xing, that would likely reduce significantly the likelihood of another physically aggressive act by Student. Also, the uncontroverted factual record makes clear that, apart from the September 25 th episode, Student has done quite well in school notwithstanding his occasional psychiatric hospitalizations and notwithstanding the fact that he has received no special education services or accommodations to date. Note, for example, the grades that Student received in 6 th grade (discussed above at the end of part IIIB of this Decision), as well his placement into Boston Latin for 7 th grade. Testimony of Xing; exhibit S-A.
I now consider Boston’s position that the McKinley Middle School, in particular, would provide an appropriate placement for Student. See the description of McKinley, above, in part IIIF of this Decision.
Mr. Santmire (who is a teacher at McKinley) and Ms. Johnson (who is an assistant program director at McKinley) were the only Boston witnesses who testified regarding McKinley and its appropriateness for Student. Both witnesses testified credibly with respect to McKinley, including its educational program and therapeutic/behavioral supports, but neither witness, when asked by Boston’s attorney, was able to make a specific recommendation regarding the appropriateness of McKinley for Student. These witnesses simply did not have sufficient knowledge of Student’s educational profile.
I also note that Ms. Johnson testified that few students come to McKinley directly from regular education – that is, the vast majority of the students have previously received special education services; and those who do come directly from regular education, either have gotten out of control very quickly, becoming very aggressive or harming themselves in ways that make them unsafe to be in a regular education classroom or have stopped attending school. Neither of these profiles fits Student. Testimony of Johnson. This evidence casts doubt on the appropriateness of Student’s going directly from regular education to a separate therapeutic placement such as McKinley.
In addition, as discussed above in part IVA of this Decision, Massachusetts statutory and regulatory standards provide that special education services provided to a student must be designed to develop that student’s educational potential. I find that the description of the academic levels of Student’s proposed 7 th grade peers, together with Dr. Xing’s testimony regarding McKinley (discussed above in part IVE of this Decision) and Student’s high intelligence and record of academic success in the regular education classroom, raise substantial doubts as to whether the McKinley academic program, even if modified to Student’s level, would likely develop Student’s educational potential in accordance with Massachusetts educational standards.
It is perhaps understandable why Boston proposed placement at McKinley, as Boston was following the recommendations of its school psychologist that Student requires a separate therapeutic placement, and Boston provides its students with such a placement at McKinley.
However, for the reasons explained above, I find that Boston did not meet its burden of persuasion with respect to its proposed IEP that Student be placed in a separate program and, specifically, the McKinley Middle School.
E. Conclusion
I find that the following special education and related services (as discussed in greater detail in part IVB above) must be provided Student in order for him to receive FAPE: (1) a “check-in” support service as described by Student’s private therapist (Dr. Xing); (2) counseling services once per week at school;30 and (3) ongoing coordination between Student’s private therapist and those school staff (including Student’s counselor and “check-in” staff). In addition, the IEP Team should meet and consider what services, if any, should be added to address Student’s social skills deficits.31 I further find that these services should be provided within the regular education environment, without the need for Student to attend a separate school, such as the McKinley Middle School.
I further find that in the event that Boston does not choose to allow Student to return immediately to Boston Latin, and as discussed in greater detail above in part IVB of this Decision, Boston should identify immediately, through the IEP Team process, another Boston middle school for Student to attend a regular education classroom at this time.
I further find that, as discussed in greater detail above in part IVC of this Decision, the IEP Team should develop a transition plan and should consider the need for a neuropsychological evaluation.
By the nature of this Decision, there remain important parts of Student’s education that will need to be discussed and decided by the IEP Team. Rather than retain jurisdiction, I prefer to render a final decision at this time; but, in the event that there remain disagreements that the parties are unable to resolve informally through the IEP Team process, one or both parties may file a new Hearing Request and ask that I be assigned to the dispute.
V. ORDER
Boston’s proposed IEP for Student, including Boston’ placement at the McKinley Middle School, is not reasonably calculated to provide Student with a free appropriate public education in the least restrictive environment.
As further explained in parts IVB, C, and E of this Decision, Boston shall amend its IEP for Student to provide placement within a regular education classroom with the following services and accommodations: (1) a “check-in” support service; (2) counseling services once per week at school, as currently described within Boston’s proposed IEP; and (3) ongoing coordination between Student’s private therapist and those school staff (including Student’s school counselor and “check-in” staff).
No later than two weeks from the date of this Decision, Boston shall convene an IEP Team meeting to do the following (as further explained within parts IVB, C, and E of this Decision):
1. amend Student’s IEP, as stated above;
2. determine what services, if any, should be added to Student’s IEP to address his social skills deficits;
3. determine the specific school to which Student will be placed consistent with this Decision;
4. consider the need for additional information regarding Student’s learning deficits, including but not limited to a neuropsychological evaluation; and
5. begin the process of drafting a transition plan for the purpose of allowing Student to return to Boston Latin. The transition plan shall be completed by the IEP Team as soon as possible, but in no event later than six weeks from the date of this Decision.
By the Hearing Officer,
William Crane
Dated: March 28, 2008
COMMONWEALTH OF MASSACHUSETTS
BUREAU OF SPECIAL EDUCATION APPEALS
THE BUREAU’S DECISION, INCLUDING RIGHTS OF APPEAL
Effect of the Decision
20 U.S.C. s. 1415(i)(1)(B) requires that a decision of the Bureau of Special Education Appeals be final and subject to no further agency review. Accordingly, the Bureau cannot permit motions to reconsider or to re-open a Bureau decision once it is issued. Bureau decisions are final decisions subject only to judicial review.
Except as set forth below, the final decision of the Bureau must be implemented immediately. Pursuant to M.G.L. c. 30A, s. 14(3), appeal of the decision does not operate as a stay. Rather, a party seeking to stay the decision of the Bureau must obtain such stay from the court having jurisdiction over the party’s appeal.
Under the provisions of 20 U.S.C. s. 1415(j), “unless the State or local education agency and the parents otherwise agree, the child shall remain in the then-current educational placement,” during the pendency of any judicial appeal of the Bureau decision, unless the child is seeking initial admission to a public school, in which case “with the consent of the parents, the child shall be placed in the public school program”. Therefore, where the Bureau has ordered the public school to place the child in a new placement, and the parents or guardian agree with that order, the public school shall immediately implement the placement ordered by the Bureau. School Committee of Burlington, v. Massachusetts Department of Education , 471 U.S. 359 (1985). Otherwise, a party seeking to change the child’s placement during the pendency of judicial proceedings must seek a preliminary injunction ordering such a change in placement from the court having jurisdiction over the appeal. Honig v. Doe , 484 U.S. 305 (1988); Doe v. Brookline , 722 F.2d 910 (1st Cir. 1983).
Compliance
A party contending that a Bureau of Special Education Appeals decision is not being implemented may file a motion with the Bureau contending that the decision is not being implemented and setting out the areas of non-compliance. The Hearing Officer may convene a hearing at which the scope of the inquiry shall be limited to the facts on the issue of compliance, facts of such a nature as to excuse performance, and facts bearing on a remedy. Upon a finding of non-compliance, the Hearing Officer may fashion appropriate relief, including referral of the matter to the Legal Office of the Department of Education or other office for appropriate enforcement action. 603 CMR 28.08(6)(b).
Rights of Appeal
Any party aggrieved by a decision of the Bureau of Special Education Appeals may file a complaint in the state court of competent jurisdiction or in the District Court of the United States for Massachusetts, for review of the Bureau decision. 20 U.S.C. s. 1415(i)(2).
An appeal of a Bureau decision to state superior court or to federal district court must be filed within ninety (90) days from the date of the decision. 20 U.S.C. s. 1415(i)(2)(B).
Confidentiality
In order to preserve the confidentiality of the student involved in these proceedings, when an appeal is taken to superior court or to federal district court, the parties are strongly urged to file the complaint without identifying the true name of the parents or the child, and to move that all exhibits, including the transcript of the hearing before the Bureau of Special Education Appeals, be impounded by the court. See Webster Grove School District v. Pulitzer Publishing Company , 898 F.2d 1371 (8th Cir. 1990). If the appealing party does not seek to impound the documents, the Bureau of Special Education Appeals, through the Attorney General’s Office, may move to impound the documents.
Record of the Hearing
The Bureau of Special Education Appeals will provide an electronic verbatim record of the hearing to any party, free of charge, upon receipt of a written request. Pursuant to federal law, upon receipt of a written request from any party, the Bureau of Special Education Appeals will arrange for and provide a certified written transcription of the entire proceedings by a certified court reporter, free of charge.
1
“Samuel” is a pseudonym chosen by the Hearing Officer to protect the privacy of the Student in publicly available documents.
2
Ms. Allen testified by speaker phone.
3
20 USC 1400 et seq .
4
MGL c. 71B.
5
20 USC 1400(d)(1)(A). See also 20 USC 1412(a)(1)(A).
6
MGL c. 71B, ss. 1, 2, 3.
7
The phrase “least restrictive environment” means that, to the maximum extent appropriate for the particular student, the educational services are to be provided with other students who do not have a disability. 20 USC 1400(d)(1)(A); 20 USC 1412(a)(1)(A); 20 USC 1412(a)(5)(A); MGL c. 71B, ss. 2, 3; 34 CFR 300.114(a)(2(i) ; 603 CMR 28.06(2)(c).
8
Bd. of Educ. of the Hendrick Hudson Central Sch. Dist. v. Rowley, 458 U.S. 176, 203 (1982).
9
Rowley, 458 U.S. at 192, 200 (“in seeking to provide such access to public education, Congress did not impose upon the States any greater substantive educational standard than would be necessary to make such access meaningful”); Frank G. v. Board of Educ. of Hyde Park, 459 F.3d 356, 364 (2 nd Cir. 2006) (“ While the IDEA does not require states to maximize the potential of handicapped children, it must provide such children with meaningful access to education”) ; A.B. ex rel. D.B. v. Lawson , 354 F.3d 315, 319 (4 th Cir. 2004) (“state must provide children with meaningful access to public education”); Alex R.. v. Forrestville Valley Community Unit School Dist. # 221, 375 F.3d 603, 612 (7 th Cir. 2004) (question presented is whether the school district appropriately addressed the student’s needs and provided him with a meaningful educational benefit), cert. denied , 543 U.S. 1009 (2004); Deal v. Hamilton County Board of Education, 392 F.3d 840 (6 th Cir. 2004); Shore Regional High School Bd. of Educ. v. P.S. , 381 F.3d 194, 198 (3d Cir. 2004); Houston Independent School District v. Bobby R ., 200 F.3d 341 (5 th Cir. 2000); Adams v. Oregon , 195 F.3d 1141, 1145 (9 th Cir. 1999); Town of Burlington v. Dep’t of Educ ., 736 F.2d 773, 789 (1st Cir. 1984) (“federal basic floor of meaningful, beneficial educational opportunity”), aff’d 471 U.S. 359 (1985).
10
Rowley , 458 U.S. at 197, n.21 (1982) (“ Whatever Congress meant by an ‘appropriate’ education, it is clear that it did not mean a potential-maximizing education”); 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”).
11
20 USC 1401(9)(b); Winkelman v. Parma City School Dist., 127 S.Ct. 1994, 2000-2001 (2007) (“education must … meet the standards of the State educational agency); Mr. I. v. Maine School Administrative District No. 55, 2007 WL 641988 (1 st Cir. 2007) (state may “ calibrate its own educational standards, provided it does not set them below the minimum level prescribed by the [IDEA]”). See also Philip T.K. Daniel & Jill Meinhardt, Valuing the Education of Students with Disabilities: Has Government Legislation Caused a Reinterpretation of a Free Appropriate Public Education?, 222 Educ. L. Rep. 515 (2007) ( language of the 2004 Reauthorization of the IDEA as well as the implementing Regulations “likely implies that FAPE now requires more than mere access to a basic floor of opportunity and should be aligned with the high expectations in state educational standards”).
12
MGL s. 71B, s.1 (definition of FAPE, describing Massachusetts educational standards as those “ established by statute or established by regulations promulgated by the board of education”).
13
603 CMR 28.01(3).
14
MGL c. 71B, s. 1.
15
MGL c. 69, s. 1. See also Mass. Department of Education’s Administrative Advisory SPED 2002-1: Guidance on the change in special education standard of service from “maximum possible development” to “free appropriate public education” (“FAPE”), Effective January 1, 2002 , 7 MSER Quarterly Reports 1 (2001) (appearing at www.doe.mass.edu/sped) (Massachusetts Education Reform Act “underscores the Commonwealth’s commitment to assist all students to reach their full educational potential”).
16
Massachusetts standards: 603 CMR 28.05(4)(b) (IEP must be “designed to enable the student to progress effectively in the content areas of the general curriculum”); 603 CMR 28.02(9) (defining “ eligible student” to mean a student who has a disability and as a “consequence is unable to progress effectively in the general education program without specially designed instruction or is unable to access the general curriculum without a related service”); 603 CMR 28.02(18) (defining Progress effectively in the general education program ). Federal standards: 20 USC 1400(d)(4) (purposes of this title are . . . to assess, and ensure the effectiveness of , efforts to educate children with disabilities” (emphasis added); Lenn v. Portland School Committee , 998 F.2d 1083, 1090 (1 st Cir. 1993); Roland v. Concord School Committee , 910 F.2d 983, 991 (1 st Cir. 1990) (“Congress indubitably desired ‘effective results’ and ‘demonstrable improvement’ for the Act’s beneficiaries”); North Reading School Committee v. Bureau of Special Education Appeals, 480 F.Supp.2d 479, 489 (D.Mass. 2007 ) (educational program “must be reasonably calculated to provide effective results and demonstrable improvement in the various educational and personal skills identified as special needs”).
17
20 USC 1414(d)(1)(A)(i)(I)-(III); Honig v. Doe, 484 U.S. 305, 311-12 (1988) ; Bd. of Educ. of the Hendrick Hudson Central Sch. Dist. v. Rowley , 458 U.S. 176, 182 (1982).
18
20 USC 1400(d)(1)(A) (IDEA enacted “to ensure that all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living”); 20 USC 1401(9), (29) ( “free appropriate public education” encompasses “special education and related services,” including “specially designed instruction, at no cost to parents, to meet the unique needs of a child with a disability”); Honig v. DOE , 484 U.S. 305, 311 (1988) (FAPE must be tailored “to each child’s unique needs”); Lessard v. Wilton Lyndeborough Cooperative School Dist. , 2008 WL 484042 (1 st Cir. 2008) (noting the school district’s “ obligation to devise a custom-tailored IEP”); Lenn v. Portland Sch. Comm., 998 F.2d 1083, 1086 (1st Cir.1993) ( FAPE requires that IEP be “custom tailored to address the handicapped child’s unique needs in a way reasonably calculated to enable the child to receive educational benefits”) (internal quotations and citations omitted).
19
Bd. of Educ. of the Hendrick Hudson Central Sch. Dist. v. Rowley , 458 U.S. 176, 207 (1982).
20
Schaffer v. Weast , 546 U.S. 49, 62(2005) (burden of persuasion in an administrative hearing challenging an IEP is placed upon the party seeking relief).
21
Shaomin Xing testified (and his resume reflects) that he holds a Ph.D. in counseling psychology, which he received in 1996. He has been licensed as a psychologist since 1997. Dr. Xing is employed as a supervising psychologist at the South Shore Mental Health Center and as a consulting psychologist at South Cove Community Mental Health Center. He also has a private practice. Testimony of Xing; exhibit P-J.
Dr. Xing first met Student when Student was referred to him on March 16, 2005 as a result of Student’s suicidal ideations. Dr. Xing referred Student for evaluation at the New England Medical Center where he was hospitalized. Upon discharge, Student began seeing Dr. Xing for therapy once each week although sometimes the therapy has been reduced to once every other week during the summers. At the same time that Student began seeking Dr. Xing for therapy, Student began seeing Paul Yin, M.D., who is a psychiatrist at South Shore Mental Health Center, for purposes of prescribing medication for Student. Student has continued to see Dr. Yin until recently when he began seeing a psychiatrist at Children’s Hospital Boston. (References within this Decision to Student’s psychiatrist refer to Dr. Yin.) Dr. Xing has communicated with Dr. Yin regarding Student. Testimony of Xing.
22
Parent testified that Student was happy and excited when he learned that he would be attending Boston Latin for 7 th grade. Student believes that he will be able to accomplish a great deal if he is able to attend Boston Latin. Parent also understands the value of Student’s being educated at Boston Latin. During the time that Student has been absent from Boston Latin since September 25, 2007, he has repeatedly asked about returning to Boston Latin. He would likely be disappointed, with a sense of his own failure, and would likely blame himself were he not to return to Boston Latin. Testimony of Parent, Xing.
23
The Massachusetts regulatory language, regulatory history, and a Massachusetts Department of Education Administrative Advisory make clear that the IEP Team’s placement decision includes a determination of the “specific program setting in which the services will be provided” including the proposed location of the educational program. 603 CMR 28.05(6); 603 CMR 28.06(2); 603 CMR 28.06(2)(d); In Re: Boston , BSEA # 04-2506, 10 MSER 311 (MA SEA 2004) (discussing the regulations, regulatory history, and state advisory relative to placement decisions by the IEP Team); Administrative Advisory SPED 2001-5: Updating of IEP Process Guide and IEP Form and Notices , dated June 11, 2001, found at: http://www.doe.mass.edu/sped/advisories/01_5.html
24
E.g., 34 CFR §300.116(c) (“Unless the IEP of a child with a disability requires some other arrangement, the child is educated in the school that he or she would attend if nondisabled”).
25
29 U.S.C.A. § 794(a). See also In Re: Boston , BSEA # 06-6508 (ruling), 12 MSER 221 (SEA MA 8/11/06) (analyzing Section 504 principles and concluding that Boston Latin must make a reasonable accommodation and re-admit student).
26
E.g., Lillbask v. Connecticut Department of Education , 397 F.3d 77 (2 nd Cir. 2005) (“Congress did not intend to exclude from consideration any subject matter–including safety concerns–that could interfere with a disabled child’s right to receive a free appropriate public education”).
27
See, e.g., Alexander v. Choate, 469 U.S. 287, 300 (1985) (“ grantee need not be required to make ‘fundamental’ or ‘substantial’ modifications to accommodate the handicapped”); Wynne v. Tufts Univ. School of Medicine, 932 F.2d 19, 27 (1 st Cir. 1991) (en banc) ( Section 504 does not require “lowering academic standards or … substantial program alteration”).
28
Although Ms. Cristiani’s written report is generally consistent with her testimony, her report did not explicitly conclude that the therapeutic support needed by Student must be provided within a separate educational placement, as compared to a regular education classroom. Rather, her report explained only that Student requires therapeutic support within the educational setting. She also recommended in her report that Student participate in a highly structured classroom setting, although the precise basis of this recommendation is unclear. Exhibits S-T, P-H.
29
See Daubert v. Merrell Dow Pharm., Inc ., 509 U.S. 579, 589 (1993) (expert testimony must not only be relevant, but also reliable).
30
Counseling services need not provide psychotherapy but should be provided by a person who can assist Student with both inter-personal and academic difficulties.
31
Services to address Student’s social skills deficits were recommended by Dr. Xing, and they are important for Student’s educational development. However, during oral closing argument, Parent’s attorney indicated that these services might be addressed by Parent in her community. Also, I note that Parent has apparently never actually requested these services. For these reasons, it seems appropriate that these services be considered and determined by the IEP Team rather than ordered by this Hearing Officer.