COMMONWEALTH OF MASSACHUSETTS
DIVISION OF ADMINISTRATIVE LAW APPEALS
BUREAU OF SPECIAL EDUCATION APPEALS
In re: Brad1
BSEA# 10-5067
DECISION
This decision is rendered pursuant to M.G.L. Chapters 30A and 71B; 20 U.S.C. §1400 et seq.; 29 U.S.C. §794; and the regulations promulgated under these statutes.
A hearing in the above-entitled matter was held on April 7; June 7; July 7; and July 25, 2011 at Catuogno Court Reporting in Springfield, MA. The record remained open for receipt of written transcripts, stipulations and closing arguments until August 22, 2011.
Those in attendance for all or part of the hearing were:
Student
Mother
Sandra Fitzpatrick Family Advocate
Deborah Palmer Clinical Social Worker
Matthew Engel Attorney for Student
Jo Ann Smith Interim Director of Student Services,
Amherst-Pelham Regional School District (Amherst)
Jeanne Miller White Student Services Director, Amherst
Diane Chamberlain Assistant Principal, Amherst Regional High School
Kimberly DiBona Special Education Teacher, Amherst
Fran Kelly Psychologist, Amherst
Sherry Smith Special Education Coordinator, Collaborative for Educational Services
Regina Williams Tate Attorney for Amherst
Brenda Ginisi Court Reporter
Kristen Edwards Court Reporter
Raymond Oliver Hearing Officer, Bureau of Special Education Appeals
The evidence consisted of Student Exhibits labeled S-1 through S-6; Amherst Exhibits labeled A-1 through A-58; a Joint Stipulation of Facts Regarding Chronology (SOF) numbers 1-25; and approximately 6 ½ hours of oral testimony.
HISTORY/STATEMENT OF THE CASE
Brad is seventeen year old young man who lives with his family in Amherst MA. Brad has attended schools in the Amherst Public Schools and the Amherst-Pelham Regional School District (Amherst). Brad is a special education student and functions under an Individual Education Plan (IEP).
Brad began at Amherst-Pelham Regional High School (APRHS) in September 2008 as a 9 th grade student. Brad’s first three IEPs at APRHS, covering 6/08-6/09, 10/08-10/09, and 3/09 to 3/10 (A-26, 27, 28), were all essentially full inclusion with special education support within regular education classes, in addition to some pull out special education support services. All of these IEPs/placements were accepted by Mother.
However, in September 2009, in the beginning of Brad’s 10 th grade year, he suffered a traumatic incident at APRHS. As a result, Brad has never returned to APRHS, that is, he is unable to/never wants to/will not return to APRHS. (See SOF #2; Stipulation during Brad’s testimony, Day #2; testimony Brad; S-1, 3, 4, 5; A-42, 55.)
On September 23, 2009 Brad’s pediatrician requested a home/hospital placement (home tutoring for more than 14 days). Amherst approved such home tutoring for 3 months and home tutoring began on October 5, 2009 (SOF 3, 4; A-30). A team meeting was held on October 27, 2009 and a new IEP was promulgated for Brad covering 10/09 to 10/10 which proposed placing him in a separate public day school at either the South Amherst Campus (SAC) or East Street Alternative High (ESAH). Both SAC and ESAH are APRHS alternative high school placements. Neither is attached to nor on the grounds of APRHS. (See SOF 5, 6; A-32; testimony, Chamberlain; White.)
On November 24, 2009 Brad’s psychiatrist, Dr. Aponte-Slater, wrote to Amherst requesting a tutorial program for Brad until the end of the school year, i.e., June 2010 (A-33). On December 11, 2009, Amherst’s Student Services Director, Ms. White, responded to Dr. Aponte-Slater with a copy of the Physician’s Statement for Temporary Home or Hospital Education form to be completed, plus a copy of the regulatory language governing such home/hospital placements (A-36). Dr. Aponte-Slater filed the appropriate forms on December 12, 2009, again requesting home tutoring for the rest of the school year (A-38A). On January 13, 2010 Ms. White again responded, stating, in part, that Amherst was:
Unable to support home hospital services based upon the lack of sufficient information that specifically identifies what aspects of [Brad’s] medical condition indicate that he is confined to the home and cannot be educated in a school setting….We respectfully request additional medical clarification from you if it is available. (A-38B; SOF #7, 8).
No further information was received by Amherst from any physician relative to Brad from December 2009 to the present time. Brad was not tutored from December 23, 2009 until March 2011 (SOF #13).
In December 2009 the team reconvened. Amherst again offered SAC or ESAH. Mother rejected the placements of SAC and ESAH but accepted the services of the IEP (S-32; SOF #9). However, Brad never returned to Amherst (SOF #2).
On February 16, 2010 Parent, acting pro se, filed a Request for Hearing with the BSEA regarding Amherst’s cessation of tutoring services and Parent’s rejection of the SAC and ESAH placements. On March 30, 2010 Brad’s attorney filed an Amended Hearing Request (SOF #14).
For the next eight months the parties engaged in extensive negotiations in an effort to reach resolution. The parties participated in a BSEA settlement conference. They explored the possibility of dual enrollment program for Brad at Holyoke Community College (HCC), but discovered that Brad needed junior (11 th grade) status and he had no credits for 10 th grade. (See SOF #15; testimony, Fitzpatrick; White.) In the fall of 2010 Mother gave consent and Amherst sent referral packets to nearby school districts regarding tuitioning Brad into another school district. Referral packets were sent to five school districts. By November 2010 none of the five districts would accept Brad. (See SOF #17, 18, 19, 20, 21; testimony, Fitzpatrick; White.) Other public schools were suggested by Parent’s advocate and Amherst, but Amherst received no further parental consent. (See SOF #21; testimony, Fitzpatrick; White.)
On December 10, 2010 another team meeting was held and Amherst proposed an extended evaluation for Brad at the Hampshire Educational Collaborative (HEC) via HEC’s special education high school, HEC Academy.2 This IEP was never accepted by Mother (A-51; SOF #22; testimony, Mother).
On January 14, 2011 Amherst requested a postponement of the hearing which was scheduled for March 8, 9 and 10, 2011. As a result of an agreement by the parties, in exchange for the postponement, Amherst agreed to reinstate tutoring until the hearing was concluded (SOF #23). Tutoring began on March 3, 2011 for 1 ½ hours per day, which increased to 2 hours per day from March 8, 2011 until the end of the 2010-2011 school year (SOF #24, 25).
Parent’s hearing request was again amended on March 16, 2011 to request Brad’s placement at the Greenfield Public Schools’ Virtual Academy (GVA) which had not yet been approved by the Massachusetts Department of Elementary and Secondary Education (MDESE) at the high school level. This was Parent’s request when the hearing began and through the first two days of hearing. MDESE did not ultimately approve GVA at the high school level. Parent now requests that Amherst be ordered to send referral packets to all school districts within a 25 mile radius of Amherst; and that Amherst continue home tutoring until Brad is placed in a public school.
ISSUES IN DISPUTE
1) Is an extended evaluation appropriate for Brad at this time?
2) Does Amherst’s proposed extended evaluation at HEC Academy (S-51) address Brad’s special education needs so as to provide him with a free and appropriate public education (FAPE) in the least restrictive education environment for the eight week period that the extended evaluation is taking place?
3) If not, should Brad continue to be home tutored while Amherst sends out referral packets for Brad to additional public school districts?
STATEMENT OF POSITIONS
Amherst’s position is that its proposed extended evaluation for Brad at HEC Academy is appropriate and necessary based upon the circumstances of this case. Amherst contends that given the disparity of views between Parent and Amherst regarding Brad’s functioning abilities; and given that Brad has not been in school for almost two years; that an extended evaluation comprised of testing and observational data over an extended period of time can provide the most accurate and complete picture of Brad’s current status.
Parent’s position is that Brad can receive special education services in a regular education setting and that he does not require the more restrictive separate special education setting. Parent contends that Amherst should send out more referrals to all the school districts within a 25 mile radius of Amherst and that Amherst should provide Brad with home tutoring until he is enrolled in a public school.
BRIEF PROFILE OF STUDENT
Brad has received screenings and evaluations since he was in kindergarten. (See A-4, 5, 6, 7, 8, 9, 13 & 14.) In November 2006 when Brad was 12 years old and in 7 th grade he underwent a psychoeducational evaluation (A-20) which was followed by a neuropsychological evaluation (A-19) in February 2007. Both evaluations were performed by Patricia Schumm, Ph.D., a clinical neuropsychologist. Dr. Schumm diagnosed Brad with a Nonverbal Learning Disorder (NVLD) and an Attention Deficit Hyperactivity Disorder (ADHD).3 Dr. Schumm noted:
Nonverbal communication is estimated to involve about 65 percent of all human communication. Therefore, persons with nonverbal learning disability are vulnerable to misperceptions in social situations, in reading, and in learning. Over sensitivity and over reactivity are common for persons with nonverbal learning disorders, as they misunderstand and have trouble organizing their emotional and behavioral reactions. (A-19)
Dr. Schumm’s first three recommendations were as follows:
It is recommended that [Brad’s] Special Education team change his primary learning disability diagnosis from ADHD to Nonverbal Learning Disability, with ADHD as a secondary disability. Nonverbal Learning Disability can be thought of as an umbrella for related issues, including an attention deficit disorder and emotion dysregulation.
Continuation of supportive counseling is recommended, to teach [Brad] the skills he needs for emotion regulation and distress tolerance.
Instruction in communication skills, to improve peer relations, and to let adults know when he is experiencing difficulty, so they can help him. He needs help with problem-solving in new situations, as he tends to hold onto ways of thinking and/or doing which are not always useful. He also tends to quickly become emotionally aroused, which interferes with utilizing support from others. He needs to have well-learned scripts for handling situations readily, to circumvent problem-solving at these times.
(See A-19.)
Dr. Schumm found Brad’s intellectual ability to be within the average range. However, she found his reading comprehension and writing mechanics to be at a 4.0 grade level, well below his cognitive level and actual 7 th grade placement. Brad’s math skills were assessed to be at a 6 th grade level. (See A-20.)
On September 13, 2007, Brad’s psychiatrist, Dr. Aponte-Slater, wrote the following “to whom it may concern” note (A-23):
Patient [Brad] suffers from hyperactivity, impulsivity and mood swings. Pt. is on a mood stabilizer to help control his impulsivity and his mood swings.
Diagnostic Impression:
Bi-Polar Disorder
Headaches and diff. sleeping
Meds: Depakote
Amitriptyline
Clonidine
Imitrex
Dr. Schumm performed a psychological evaluation of Brad in December 2009 (S-35) several months after the traumatic incident in September 2009. Dr. Schumm noted that his IEP delineated three educational disabilities: 1) Neurological (nonverbal learning disorder): 2) Health (ADHD and Bi Polar Disorder); and 3) Specific learning disability (Reading and Writing). Dr. Schumm conducted a clinical interview with Brad and assessed him with various projective test instruments. Dr. Schumm’s summary and recommendations are set out below (S-35):
[Brad’s] projective protocol is consistent with his history of a nonverbal learning disorder and depression. He is more vulnerable to problems in everyday living than most, especially in interpersonal situations. His decisions and behaviors may not be based on accurate data, due to notable misperceptions of reality.
[Brad] requires a highly structured environment for learning, in a small setting.
He needs much supervision and guidance with problem solving as new or difficult problems arise. Additional and more effective coping skills should be developed to address his sense of helplessness.
[Brad] may benefit from help with analyzing, organizing, and integrating complexities into meaningful and manageable parts. Try to keep him from getting lost in minor details and promote more integrated and broader views of his situation.
[Brad] needs help learning and implementing effective interpersonal and social behaviors.
Treatment goals should provide support, reduce stress, and build coping skills.
Updated psychiatric evaluation.
It is essential that [Brad] returns to a full school day with his peers as soon as possible to minimize his sense of loss and sadness, as well as his anxiety about falling behind.
SCHOOL’S PROPOSED PROGRAM
Amherst proposes that Brad undergo an eight week extended evaluation at HEC Academy located in Northampton, MA. (See S-51.)
Sherry Smith is the Special Education Coordinator at CES/HEC. She testified regarding HEC Academy which is an alternative learning center, special education school. The three high school homerooms function as a mini high school. The focus of HEC Academy is on students who present with learning disabilities, social-emotional disorders, or a combination of both. Students have average IQs. The program is academically focused for students to pass MCAS and meet requirements for graduation. There is a high degree of support with a student to staff ratio of 2:1. There are a maximum of 36 students at HEC Academy and 18 Staff. All of the teachers are certified in special education. Additionally there is a learning disabilities specialist whose role is to provide formalized reading instruction for those students who require it, along with extra organizational support. There is flexibility in the class schedule. The special education teachers are not actually teaching classes every period so they are able to oversee what is going on in the school and are available to students outside of class.
The clinical staff consists of a licensed clinical psychologist and other therapists who are either licensed mental health counselors or licensed social workers. Every HEC Academy student receives counseling for at least one hour per week. All HEC Academy students have issues with social skills, including understanding appropriate social skills, how to work within friendships, and how to deal with students they don’t like.
Ms. Smith testified that she spoke with Ms. White of Amherst in December 2010 and February 2011 and received redacted information and an IEP regarding Brad. On February 3, 2011 she sent an e-mail to Ms. White (S-52) which stated:
I am writing to let you know that based upon our conversations (12/10 and 2/3/11), and the information I have to date regarding your student, the Collaborative will reserve a placement slot at HEC Academy for your student’s potential enrollment, as it appears that he may be a match for our program.
Upon receipt of formal referral and packet of information, we will complete the screening process with the student and parent(s), and schedule the two-day visit required of all potential students. I will keep you informed of our progress.
I am attaching a referral form for your convenience; please feel free to call if you have any additional questions.
Ms. Smith testified that HEC Academy could do the extended evaluation for Brad and has done extended evaluations for students in the past (approximately 3-4 over the last two years). Ms. Smith testified that a slot is still reserved for Brad.
(See testimony, Smith; S-52.)
FINDINGS AND CONCLUSIONS
It is undisputed by the parties and confined by the evidence presented that Brad is a student with special education needs as defined under state and federal statutes and regulations. The fundamental issues in dispute are listed under ISSUES IN DISPUTE , above.
Pursuant to Schaffer v. Weast 126 S. Ct. 528 (2005) the United States Supreme Court has placed the burden of proof in special education administrative hearings upon the party seeking relief. Therefore, in the instant case, Parent bears the burden of proof in demonstrating that Amherst’s proposed extended evaluation of Brad is not appropriate to address his special education needs so as to provide him FAPE in the least restrictive educational environment; and that continued home tutoring while Amherst sends out referral packets to all school districts within a 25 mile radius to place Brad in another public school is appropriate.
Based upon the oral testimony, exhibits, and stipulations introduced into evidence and a review of the applicable law, I conclude that Amherst’s proposed extended evaluation is both necessary for Brad at this time and appropriate to address his special education needs so as to provide him FAPE over the eight week diagnostic period.
My analysis follows.
For his 9 th grade year at APRHS Brad’s IEPs (A-27, 28) had provided him with one hour per week of emotional/academic support in the student support program (SSP) from the SSP teacher, Ms. DiBona, and ½ hour of counseling from the school psychologist. (See A-27, 28 – C – Special Education and Related Services in Other Settings.) All of Brads’ academic and other classes were the regular education setting – therefore, Brad’s IEP was considered a full inclusion IEP.
However, within his regular education classes of English, math, science and social studies, Brad had a special education paraprofessional with him at all times. (See A-27, 28 – Grid B – Special Education and Related Services in General Education Classroom; see also testimony, DiBona; White.) Brad required this 1:1 support to assist him with most tasks, help him with his work, prompt him, redirect him, keep him focused, keep him in class, and accompany him to the SSP/Ms. DiBona when he was he was unable to remain in the regular education class. (See testimony, DiBona.) Ms. DiBona expressed her concern about the frequency with which Brad came out of regular education classes to access her/the SSP, as well as the frequency of his visits to the nurse. Ms. DiBona characterized these incidents as raising a red flag regarding the appropriateness of this placement for Brad. (See testimony, DiBona.) Team meeting notes in S-28, Brad’s last accepted IEP from 3/09-3/10, reflect the opinion of the school psychologist and the school nurse that Brad required an alternative placement. Even the 6/08-6/09 IEP (S-26) contained a team meeting note that Brad may be a student for SAC or ESAH and representatives of SAC and ESAH attended that team meeting. (See S-26, 28; testimony, DiBona; White; Chamberlain.)
Further, according to both the tutor Brad had from September-December 2009 (Eric Sol) as well as the tutor Brad had from March-June 2011 (Sara Talbot), while Brad would do well in tutoring sessions on a 1:1 basis, he did very little on his own and was quite disorganized, which affected his progress. (See testimony, DiBona; White; Chamberlain.)
Ms. DiBona was Brad’s SSP teacher for the entire 2008-2009 school year and in September 2009 until Brad refused to return to school. The SSP is a therapeutic class at APRHS which is designed to service students with primary emotional disabilities including students diagnosed with bi-polar disorder, depression, and anxiety. Ms. DiBona testified that Brad frequently utilized the SSP beyond his scheduled times; that Brad was missing big chunks of the academic curriculum; and that his attendance was a huge challenge. (See also S-54.) In fact, in October 2008, Brad had missed so much time from his world civilization academic class that he dropped world civilization and went to the SSP for a minimum of two periods everyday. (See testimony, DiBona.)
Deborah Palmer is a licensed independent clinical social worker (LICSW) who has been working intermittently with Brad’s family since 2002. In a letter to Brad’s psychiatrist, Dr. Aponte-Slater, in August 2007 (A-22) Ms. Palmer expressed a number of concerns regarding Brad including: extreme, rapid shifts in mood; very little impulse control at times; organizational problems; very little ability to self-soothe when at school or upset; trouble transitioning from one activity to another; and emotions very close to the surface/easily becoming flooded. (See A-22.)
Ms. Palmer testified that she and Brad have worked on these issues and progress has been made but that the mood shifts and organizational issues are still issues (testimony Palmer). Ms. Palmer visited HEC Academy and did not think that it would be appropriate for Brad. However she also testified that she is not an educator, has never done a formal evaluation of Brad, is not familiar with NVLD and has never observed Brad in a classroom. (See testimony, Palmer.)
Ms. Palmer testified that in early 2011 there was an incident at home in which Brad started a fire; that she recommended an evaluation by Emergency Services; that Emergency Services recommended that Brad be placed in the hospital; but that Mother took Brad home. (See testimony, Palmer.)
Dr. Francis Kelly is a licensed psychologist and is a clinical/school psychologist for Amherst. He has worked with students who present with bipolar disorder, NVLD, and who have a history of fire starting. Dr. Kelly has reviewed all of Dr. Schumm’s evaluations of Brad (S-19, 20 & 35) and Brad’s complete educational file. Dr. Kelly attended the December 10, 2010 team meeting for Brad. Dr. Kelly was also present for Ms. Palmer’s testimony. Dr. Kelly testified that fire setting is considered a very severe symptom and a true psychiatric emergency of childhood adolescence. Dr. Kelly testified that for most psychiatrists, psychologists, clinical social workers and educators, fire setting is considered a very serious behavior that warrants immediate evaluation as to what the dynamics or factors involved may be. (See testimony, Kelly.)
Based upon the above, I find that Brad’s last agreed upon IEP (A-28) which was implemented during Brad’s 9 th grade and last full year at APRHS did not provide him with FAPE. Ms. DiBona and Ms.White testified that it is very uncommon for a student to have 1:1 paraprofessional assistance in all regular education high school classes and such is considered a high level of service. Even with this extensive 1:1 support in all of his academic classes, plus one period per day of emotional and learning support from the SSP/Ms. DiBona, Brad’s grades were all C’s and D’s. Additionally, as stated above, Brad often left his regular education classes to go to the SSP. Further, during this 2008-2009 school year, Brad was absent for 37 days. (See A-54; testimony, DiBona;White.)
Parent has presented no expert testimony or documentary evidence regarding Brad’s educational functioning. The most recent Amherst evaluation is the December 2009 psychological evaluation (S-35) and in that evaluation Dr. Schumm clearly recommends a highly structured environment for learning in a small setting . (Emphasis added.) A review of Dr. Schumm’s summary and recommendations, cited above, clearly demonstrates Brad’s need for more substantial special education programming in December 2009. To date, there have been no further psychoeducational or neuropsychological evaluations of Brad.4
In summary, the record demonstrates, and I so find, the following facts: 1) Brad has multiple disabilities and he takes multiple medications for these disabilities; 2) Brad did not make effective progress during the last year that he attended APRHS under an extremely intensive inclusionary IEP; 3) Brad has not been in school for the last 2 years; 4) he is unable to return to APRHS in any type of setting; 5) Parent rejects placement in SAC or ESAH i.e., any Amherst Public School substantially separate setting, even if not connected to/on the ground of APRHS;5 6) all Amherst referrals to other public schools which Parent has allowed to be sent have rejected Brad; 7) Brad is not eligible for the HCC dual program; and 8) the GVA which Parent/Brad requested has not been approved by MDESE.
Based upon the facts of the instant case, I conclude that an extended evaluation is entirely appropriate for Brad and is an essential step in comprehensively evaluating him through both testing and intensive observation over time, to determine the current extent of his disabilities and how they affect his social, emotional and academic functioning. Updated assessments are necessary to ascertain Brad’s current cognitive, achievement and emotional status in order to formulate an appropriate IEP. Extended observational data is necessary to more precisely determine how Brad best learns and to best address his NVLD, emotional issues, specific learning disabilities and organizational deficits. Such an extended evaluation will allow Amherst and Parent to have the most accurate and valid information about Brad’s special education needs and the manifestation of those needs as they currently exist.
Based upon the testimony of CES/HEC Special Education Coordinator Smith, I conclude that HEC Academy is an appropriate placement to conduct the eight week extended evaluation for Brad. (See SCHOOL PROPOSED PROGRAM , above.) I find that HEC Academy will be able to perform this extended evaluation in a nearby community, close to but not within Amherst, within a small, structured therapeutic environment with an extensive support system.
I note that a psychiatric evaluation is not specifically stated on the proposed extended evaluation (S-51). Based upon the testimony of Ms. Palmer and Dr. Kelly regarding Brad’s fire setting and the seriousness of such behavior; and based upon the recommendation of Dr. Schumm (S-35), I order that a psychiatric evaluation be included in Brad’s extended evaluation.
ORDER
1) An extended evaluation for Brad is appropriate and necessary at this time.
2) Amherst’s proposed extended evaluation at HEC Academy is appropriate for Brad with the addition of a psychiatric evaluation.
3) HEC Academy is appropriate to provide Brad FAPE while this extended evaluation is taking place.
By the Hearing Officer
__________________________
Dated: September 22, 2011
Raymond Oliver
1
Brad is a pseudonym chosen by the Hearing Officer to protect the privacy of the student in publicly available documents.
2
HEC has been renamed the Collaborative for Educational Services (CES) but the Academy retains the name HEC Academy (testimony, Smith).
3
Brad had been diagnosed with ADHD and headaches by his pediatrician and was being medicated for these conditions. Mood swings had also been noticed by February 2006. (See A-15, 16.)
4
I note that more testing of Brad was planned in the fall of 2009, but given the traumatic incident and Brad’s reluctance to be tested in any Amherst schools, Dr. Schumm’s psychological evaluation was the only evaluation that could be completed. (See testimony, DiBona; Chamberlain; S-35.)
5
SAC and ESAH have now been combined into one placement call the Southeast Campus, located at the SAC Campus (testimony, DiBona).