Burlington Public Schools – BSEA #01-4513



<br /> Burlington Public Schools – BSEA #01-4513<br />

COMMONWEALTH OF MASSACHUSETTS

SPECIAL EDUCATION APPEALS

In Re: Burlington Public Schools

BSEA# 01-4513

DECISION

This decision is issued pursuant to M.G.L.C. 71B and 30A, 20 U.S.C. 1401 et seq ., 29 U.S.C. 794 and the regulations promulgated thereunder. A hearing was held on May 24 and 30, 2001, at the Department of Education in Malden, MA., and on June 7, 2001, by telephone conference call. Those present and/or participating in the hearing were:

Parent

Parent

Hilary Chmielinski Psychologist

Linda Gillespie R.N., Cambridge Hospital

Xenia Johnson, M.D. Psychiatrist, Cambridge Hospital

Daniel Matthews, M.D. Director, Meridell Achievement Center

Alan Bachrach Case Manager, Department of Mental Health

Monica Curtin Supervisor of Attendance, Burlington Public Schools

Janet Gilmore Psychologist, Burlington Public Schools

Kevin Foley Director of Pupil Services, Burlington Public Schools

Lester Blumberg Attorney, Department of Mental Health

Richard Sullivan Attorney, Burlington Public Schools

Lisa Martin Attorney for Parents

Richard Ames Attorney for Parents

Lindsay Byrne Hearing Officer

The official record of the hearing consists of exhibits submitted by the Parents marked P-1 through P-65, exhibits submitted by the School marked S-1 through S-34, and approximately eleven hours of recorded testimony. The record closed on June 12, 2001, when written closing arguments were received from both parties. An Interim Decision outlining the factual findings and legal conclusions made based upon the evidence and arguments presented at the hearing was issued on June 14, 2001. The Interim decision ordered the immediate placement of the Student at the Meridell Achievement Center by the Burlington Public Schools.

Issue

Whether the Meridell Achievement Center in Texas offers the least restrictive, appropriate educational program in which the Student’s current IEP can be implemented?

Parent’s Position

The Burlington Public Schools has failed to implement, or locate a provider to implement, the Student’s Individualized Education Plan for more than seven months. This failure has caused the Student to be unnecessarily and inappropriately confined in an acute psychiatric hospital. The Parents have identified a residential educational program, the Meridell Achievement Center in Texas, that meets the programming recommendations of expert evaluators and can deliver the setting and services outlined in the Student’s current accepted IEP. The Parents request that Burlington immediately place the Student at the Meridell Achievement Center.

School’s Position

The Meridell Achievement Center is not an educational program. It provides targeted and monitored medical services designed to diagnose and treat specific brain disorders. Once the brain disorder has been identified and managed, primarily through administration of medication, the patient is discharged to pursue education in a less restrictive environment. Burlington will provide any necessary and appropriate educational services (eg. Tutoring) as an adjunct to the Student’s placement in a health care facility for medical reasons.

Findings of Fact

1. The Student is fourteen years old and has been receiving special education services since the age of three. She has been diagnosed with Nonverbal Learning Disability, Mood Disorder, Disruptive Disorder NOS, Borderline Systems Dynamics and Pervasive Developmental Disorder. All Evaluators agree that none of these diagnoses comprehensively and accurately describes the constellation of the Student’s needs, but that she consistently shows symptoms of right hemisphere brain dysfunction. These symptoms include: impaired executive functioning marked by difficulties in self-regulation, planning and organization of output, attention, and effort; difficulty maintaining and modulating behavior according to situational demands; poor impulse control; emotional dysregulation and significant difficulties with recaptive and expressive language (Chmielinski, Johnson; P-12, S-11, P-16, S-20, P-1). On standard measures of cognitive functioning the Student tests in the average range of intelligence. Academically she performs at approximately the second grade level. (P-16, P-1)

The Student has a lifelong history and a continuing pattern of serious and unpredictable aggressive, self-injurious, and health dangerous behaviors. The problematic behaviors include: tantrumming, yelling, swearing, throwing objects, assaulting peers and adults, disrobing, urinating on self, wiping body fluids on others, swallowing foreign objects, and suicidal gestures. The Student has a low frustration tolerance and is easily agitated and overwhelmed. She frequently requires physical intervention from adults to maintain her safety. The chronicity and severity of the Student’s behavioral difficulties have interfered with her acquisition of academic skills. (P-16, P-1)

When she is able to maintain behavioral control the Student is described as engaging, empathetic, warm, and funny with an excellent memory and a good fund of general information. (Parent, Gillespie; P-1, see in particular P-9)

2. The Student has had eleven psychiatric hospitalizations since the age of four. No interventions, treatments or medications have resulted in any long-term amelioration of the Student’s behavioral difficulties. (Chmielinski; P-12, S-16, P-38-54)

3. The Student attended highly structured, intensive day school programs until the age of ten. In the Spring of 1998, the Student was placed in the intensive therapeutic residential education program at the Walker School pursuant to a 502.6 IEP (P-2, S-26). In the Spring of 2000, the Team recommended that the Student be placed in a more “developmentally” oriented residential program (Parent, S-21). The IEP developed for the Student’s 24 hour, 365 day placement at Crotched Mountain Rehabilitation Center in New Hampshire was accepted by the Parent on March 15, 2000 (P-1, S-20). That IEP is still in effect. There are no evaluations, assessments or progress reports from Crotched Mountain in the record.

4. On September 15, 2000, the Student was transported to the Child Assessment Unit at Cambridge Hospital after stabbing a staff member at Crotched Mountain with a pen. The Child Assessment Unit is an acute, psychiatric, inpatient unit for children up to eleven years old. The expected length of stay is two weeks (Johnson).

5. The Student returned to Crotched Mountain on October 15, 2000. The staff was unable to manage the severity of her behaviors, and she was readmitted to the Child Assessment Unit on October 27, 2000. Crotched Mountain terminated the Student’s placement on October 31, 2000, citing emergency medical circumstances. In a report dated November 14, 2000, Crotched Mountain summarized the Student’s course of stay:

During the Student’s enrollment at CMRC, she demonstrated increased frequency and severity of a number of problematic behaviors, including, but not limited to, agitation, non-compliance, disrespectfulness, aggressive behaviors, self –injurious behavior (e.g., banging head on floor, scratching self, biting self, etc.), threats to kill herself, urinating and defecating on self, smearing feces, and making attempts to spread bodily fluids (e.g. feces, urine, blood) onto staff.

In general, the primary focus of interventions had been to keep [the Student] safe, and reduce the frequency and severity of these maladaptive behaviors. Initially, some of [the Student’s] milder behaviors (e.g. non-compliance) were responded to with wait-outs, processing the problem when she was compliant and reinforcing positive behavior through a formal reinforcement system. However, more restrictive measures were used as [the Student’s] behaviors became more severe. In June 2000, the use of the papoose board was initiated because it was felt that, while being held in a physical restraint seemed to help her calm down and become more organized, the physical closeness may have been contributing to longer restraints (i.e. sometimes over an hour) because it was somehow reinforcing. The use of the time-out booth was ruled out because she appeared to become more disorganized while in it. For example, on one occasion, while in the time-out booth for several hours, she stripped off all of her clothes, defecated and smeared feces around the booth.

Following the initial implementation of the papoose board, it appeared that there was a decrease in the frequency and severity of the behaviors. However, she also appeared to be motivated to find any inconsistencies in the implementation of the program. For example, she would often say the reason she acted out was because she wanted to ‘test out what would happen’ (i.e. would we keep her safe, how would a particular staff respond, etc.). At times, it also appeared that she had considerable control over her behavior. For example, she would immediately calm down when her father arrived to take her home, or when a preferred staff left the situation.

However, despite out attempts to implement her behavior program as consistently as possible, [the Student] continued to demonstrate significantly disruptive and dangerous behaviors. On 9/15/2000, [the Student] was hospitalized at Cambridge Hospital after a series of incidents the previous day. Specifically, she had been in the papoose board three times during the previous school day. While walking home from school, she had threatened to stab a staff person. Within a few minutes, she had used a concealed pen to stab that person in the arm, breaking the skin. Following this incident, she was restrained in the papoose board for the majority of the shift (8 hours) and remained agitated despite several PRN’s (i.e. Benadryl, two Ativans, and Thorazine). Surrounding this time, [the Student] had made several statements about wanting to go to the hospital, and had indicated that she was experiencing greater difficulty controlling her impulse and her emotions. It was felt, at that time, that [the Student] needed to be in the hospital in assist in stabilization, as well as to evaluate and adjust her medications in a safe setting.

[The Student] returned to CMRC on 10/15/2000. Attempts were made to implement the hospital’s recommendations. Specifically, in an effort to address her non-verbal learning disability, information was presented visually to her whenever possible (e.g., daily schedule, list of ways to help her calm down, calendar to help her keep track of three safe days to that she could get off closer supervision status, etc.). We were also in the process of adapting the point sheet she used at the hospital to one she could use at CMRC. However, despite these efforts, there appeared to be a number of factors that continued to be stressful for [the Student]: transitions, especially from school to the group home, changes in staff, and unpredictability in other student’s behaviors.

Over several weeks, following her return from the hospital, she required at least one papoose board restraint on a daily basis. She required PRN Thorazine (25 mg) nearly every day. During this time period, [the Student] made serious threats to harm herself and others (i.e. threatened to stab a staff person). On one occasion, she hit a pregnant staff person in the stomach. On 10/26/00, [the Student] demonstrated noncompliant and unsafe behavior, which required a prolonged papoose board restraint. She was administered two PRN Thorazine doses, but she continued to have difficulty calming down. She was eventually taken to a local emergency room for evaluation. The following morning, [the Student] was again admitted to Cambridge Hospital. She was medically discharged from CMRC because it was determined that she was at risk of hurting herself and others.
(P-37, S-16, 17; see also P-38, 39, S-19)

6. The Burlington Public Schools did not convene a Team meeting after the Student’s termination from the Crotched Mountain Rehabilitation Center (Mother, Foley).

7. The Student has remained at the Child Assessment Unit continuously since her admission on October 27, 2000, through the conclusion of the hearing (Mother, Johnson).

8. Xenia Johnson, the Student’s attending psychiatrist on the Child Assessment Unit, testified that the goal of the Child Assessment Unit is to provide immediate management and stabilization of a patient’s psychiatric illness while developing post discharge treatment plans for implementation in a long term setting. While on the Unit the Student has received assessment and planning services, individual and group therapy, medication management, and mechanical and chemical restraints when necessary.

Dr. Johnson began working with the Student in January 2001. She stated that her diagnostic impression of the Student has not changed over time; it includes a mood disorder, atypical bipolar disorder, oppositional defiant disorder, and non-verbal learning disability. The Student’s behavior is notable for pressured speech, lability, impulsivity, sucidality and grandiosity (P-56; P-55, S-12).

The interventions available through the Unit have become less effective for the Student due to her length of stay. Dr. Johnson testified that acute psychiatric hospitalization is no longer medically necessary for the Student. The Student has not required the acute services of the Child Assessment Unit since at least January 2001. Dr. Johnson testified that the Student needs a secure therapeutic residential treatment facility which offers behaviorally based management, psychological and psychiatric treatment, medication monitoring, restraints, and educational services geared towards nonverbal learning disabilities. The Student remains on the Unit solely because no appropriate alternate long-term facility has been identified for her. The Cambridge Hospital began proceedings to transfer the Student to the Adolescent Unit at Westborough State Hospital on May 2, 2001 (P-59). Dr. Johnson testified that she had never visited Westborough State Hospital and was unaware of the services available to the Student there (Johnson).

9. Tutoring and small group instruction is available to patients on the Child Assessment Unit. There is no reliable information on the record concerning the Student’s participation in educational services while on the Child Assessment Unit. There is no IEP in the record calling for in-hospital education services; nor are there any educational assessments or progress reports generated by educators associated with the Child Assessment Unit. (Gillespie, Foley, Gilmore)

10. In October 2001, the Parents applied to the Department of Mental Health for services for the Student. Alan Bachrach, case manager supervisor at the Department of Mental Health coordinated the Student’s eligibility request. The Department of Mental Health arranged for a comprehensive record review and individual evaluation by Kerim Munir, Director of Developmental Medicine at Children’s Hospital in Boston, MA. In a report dated April 30, 2001, Dr. Munir concluded that the Student has long standing and severe neurocognitive deficits associated with a Non Verbal Learning Disability and consistent with a right hemisphere disorder. To address the Student’s complex constellation of “developmentally based behavioral concerns” Dr. Munir suggested:

1. further diagnostic tests including an MRI and BEAM EEG;

2. alternate medication trials;

3. treatment in a sustainable, highly structured, safe, nurturing, low stimulation environment with a developmentally flexible educational program and consistent behavioral management strategies;

4. group based therapeutic activities and individual therapy;

5. familiar staff, few and prepared for transitions;

6. availability of preferred activities
(P-12, S-11)

Based on Dr. Munir’s report the Department of Mental Health notified the Parents on May 15, 2001, that the Student was not eligible for Department of Mental Health services as she did not have a “qualifying mental, behavioral or emotional disorder” (P-60, see also S-9). The finding of ineligibility noted that the diagnosis of Non Verbal Learning Disability accounted for the Student’s functional impairments, and that NVLD is not a recognized mental disorder.

Mr. Bachrach testified that a determination of eligibility for DMH services was not a necessary precondition for placement in a “continuing care bed”. The Student could be transferred from the Child Assessment Unit to the secure Adolescent Unit at Westborough State Hospital upon a judicial finding of “committability”. (Bachrach)

11. Monica Curtin, the out-of-district liaison for the Burlington Public Schools, was in charge of locating an appropriate educational program for the Student upon her discharge from the Child Assessment Unit. She did not meet the Student nor did she evaluate any of the potential programs for her. Ms. Curtin used the MAPS book program descriptions to attempt to locate an appropriate educational placement for the Student. She did not consult any other database or source of information. Ms. Curtin sent out “referral packets” to 17 potential residential programs between November 2000 and April 2001 .1 Only the Meridell Achievement Center unconditionally accepted the Student. (Curtin; P-65).

12. Janet Gilmore, Burlington Public Schools Psychologist, attended four treatment team meetings at the Child Assessment Unit between December, 2000 and May 2001. She testified that the participants did not discuss the Student’s educational characteristics, only her behavioral needs. The Team also discussed the availability of appropriate post-discharge programs. Ms. Gilmore testified that none of the potential placements seemed to be a good match for the Student. She also stated that residential schools in Massachusetts are not authorized to use mechanical l restraints, a key element of an appropriate program for the Student. Without the option to use safe mechanical restraints for the Student when necessary Ms. Gilmore could not support the Student’s placement in a particular program (Gilmore).

13. On March 27, 2001, Kevin Foley, Director of Pupil Services for the Burlington Public Schools, requested the assistance of the Massachusetts Department of Education in locating an appropriate educational plan for the Student (P-65, Foley). The Department did not have any additional information or resources to offer (Curtin).

14. The Burlington Public Schools did not conduct or arrange any evaluations or assessments of the Student between the date on her last accepted IEP on March 15, 2000, and the completion of the hearing in June, 2001. There are no educational progress reports in the record. A Team meeting was held on May 17, 2001, at the direction of the Hearing Officer. Mr. Foley testified that the Team did not develop an IEP at the meeting because no appropriate placement was available for the Student, she was not psychiatrically stable, and the goals and objectives set out in the last accepted IEP were still appropriate. He stated that Burlington would implement the existing IEP as soon as an appropriate facility had been located. (Foley)

15. Hilary Chmielinski, PhD., a licensed psychologist, was asked by the parents to give his expert opinion on the appropriate educational placement for the Student. Dr. Chmielinski specializes in the treatment of complex neurobehavioral disorders . In addition to individual prescriptive treatment he has managed neurobehavioral and behavioral treatment programs including a stint as director of dual-diagnosis program at Medfield State Hospital, as director of a residential educational treatment program for children and adults in Texas, and as Director of a post-acute brain injury rehabilitation program in New York (P-61, Chmielinski). Dr. Chmielinski reviewed the Student’s evaluation and treatment history, conducted a clinical interview of the Student and Parents, visited the Adolescent Unit at Westborough State Hospital, spoke to Daniel Matthews, Director of the Meridell Achievement Center, and reviewed descriptive materials provided by Meridell, and discussed the Student’s history and current status with the treatment team at the Children’s Assessment Unit. Dr. Chmielinski testified that the Student is clinically ready to transfer to a long-term treatment facility. Currently her ability to benefit from educational programming is limited by poor attention, distractibility and intermittent aggression. The Student needs a setting in which her behavioral outbursts can be diagnosed and controlled through an “ecobehavioral” approach combining a low-stimulation, responsive, structured environment, staff trained and experienced in appropriate behaviorally based interventions and data collection, highly structured and rewarding activities, and intensive medication management.

Dr. Chmielinski noted that the Student’s current environment at the Children’s Assessment Unit is overstimulating, precipitating undesirable brain activity and behavioral outbursts, and is psychodynamically based, a treatment approach which is inaccessible to the Student. He also pointed out that the environment at JREC is equally inappropriate as it is loud and active, does not include medication management and relies on contingent aversives.

Dr. Chmielinski toured the adolescent unit at Westborough State Hospital with the Medical Director, Phillip Hernandez. He concluded that it would be an inappropriate placement for the Student as the milieu is too stimulating and has too many transitions for the Student to handle. Treatment is psychodynamic, which is an inappropriate approach for the Student. There is no behavioral psychologist on staff and only limited behavioral treatment interventions. Educational activities are not integrated into the program but are delivered through tutorials, when available.

Dr. Chmielinski testified that the program available at the Meridell Achievement Center would be appropriate for the Student. It has the services and the approach that are most likely to be effective given the Student’s complex constellation of needs. It offers a minimally stimulating environment, staffed with people who are trained to take behavioral data including neurobehaviorists and neuropsychiatrists, scheduled activities that are educational and rewarding, intensive medication management, sophisticated diagnostics, all delivered with a consistent, positive, nurturing behavioral approach (Chmielinski).

16. Daniel Matthews, M.D., child and neoropsychiatrist, is the medical director for the Comprehensive Neurobehavioral Group at Universal Health Services and supervises the neurobehavioral program at Meridell Achievement Center. According to Dr. Matthews, Meridell is a unique, intensive, residential treatment and education center that focuses on the diagnosis and rehabilitation of children and adolescents with complex, seemingly intractable, brain/behavioral disorders. It offers an intensive, integrated system of medical, psychosocial, therapeutic, environmental and academic interventions twenty-four hours a day. A typical student entering Meridell displays: repetitive rage behavior, requiring seclusion or restraints; impulsivity, poor planning skills, short attention span, pathological aggression and abnormal neuropsychological testing, which have been treatment and education resistant. Often students are admitted to Meridell directly from an acute psychiatric hospital. New students first undergo an intense diagnostic period of up to two weeks in which Meridell uses the latest brain imaging technology, including BEAM and EEG, along with observations and evaluation by its multidisciplinary clinical treatment team, to develop targeted neurobehavioral, educational and medication services. The multidisciplinary team includes: neuropsychiatrists, neuropsychologists, behavioral specialists, clinical nurse specialists, special educators, physical and occupational therapists, and speech/language pathologists. The team develops an IEP and implements it over the course of the ensuing 6-8 week period of stabilization and evaluation. The team then meets again to assess results and begin discharge planning. All services and activities take place in a specialized neurobehavioral milieu which has been designed for students with neurocognitive/behavioral disorders. Aiming to improve each student’s cognitive functioning the environment is deliberately and consistently sensorily quiet with low noise levels, small groups, little visual stimulation, slow and structured transitions in activities. The staff is trained in non-confrontational redirection and close observation to avoid precipitating behavioral discontrol. The staff is also trained in Progressive Management of Aggressive Behaviors which includes: avoidance, physical holding, quiet rooms, locked door seclusion, and chemical restraint. This system is used consistently when students experience behavioral difficulties. Dr. Matthews testified that 95% of students achieve significant behavioral control during the course of a four to six month stay, allowing them first to benefit from comprehensive educational services at Meridell and then to return to a less restrictive educational program (Matthews; P-4; S-1-8, P-7).

The secure campus at Meridell consists of: locked residential treatment units, housing up to sixteen students, two to a bedroom, and five staff per shift (three overnight), the Charter School which offers a comprehensive, special education program leading to a high school diploma, as well as occupational and speech/language therapies, individual and group psychotherapies, music, art and other activities, a gymnasium and a pool.

Students attend the Meridell charter school about 4 hours per day (it operates from 9am to 3pm) and if not able to go to the school site, receive educational services at their residential units. Meridell’s special education teachers are in integral part of a multidisciplinary team providing therapy and education as a unified whole; teachers are trained in neurocognitive therapy to address students’ behavioral needs, including restraint, within the classroom; mental health technicians who work with the children on the residential units also work with that children at the charter school and have responsibility for providing consistent modeling and support for children in the school and on the unit. (Matthews)

Meridell is approved as a charter school by the Texas State Board of Education (P-5, 6). It is licensed as a residential treatment facility by the Texas Department of Regulatory and Protective Services. It is not licensed as a hospital by the Texas Department of Hospitals. Meridell is accredited by the Joint Commission on Accreditation of Healthcare Facilities as a residential treatment facility. It is not accredited as a hospital (Matthews, P-3-7).

Dr. Matthews reviewed educational, diagnostic and evaluative reports concerning the Student provided to him by Burlington and the parents. He testified that she presents the type of treatment resistant behavioral and educational profile that Meridell Achievement Center specializes in. He testified that she is an appropriate candidate for admission and that currently there is space available on the female adolescent unit should the School and Parents agree to enroll her. (Matthews)

17. The Student’s mother testified that she discovered the existence of the Meridell Achievement Center by searching herself for an appropriate educational placement using the internet after the Burlington Public Schools had been unable to locate an appropriate program by mid-winter 2001 (P-4, S-1-8). She gave all the information she gleaned from the Internet site to both Dr. Foley and the Child Assessment Unit. The treatment team on the Child Assessment Unit told her that it appeared to be an appropriate setting for the Student. Mr. Foley told her that Burlington would not support the Parent’s placement at Meridell because it was not an educational program. When the mother told the Child Assessment Unit treatment team that Burlington would not place the Student at Meridell, Cambridge Hospital immediately began civil commitment proceedings to transfer the student involuntarily to Westborough State Hospital (Mother, P-59).

Conclusions of Law

The Parties agree that the Student has special learning needs as defined by 20 U.S.C. 1401 et seq and M.G.L.c.71B and is thus entitled to receive a free, appropriate public education. The parties also generally agree on the characteristics of an appropriate educational program for the Student: a highly structured, secure, residential therapeutic educational program, with a supportive, behaviorally oriented treatment team including special educators, speech-language pathologists, occupational therapists, counselors and psychologists, medication supervision, and restraints. The only question before me is whether Meridell Achievement Center can provide the comprehensive, complicated educational services the Student requires? After careful consideration of all the evidence in the record, and of the arguments of counsel for both parties, it is my conclusion that the Meridell Achievement Center is the least restrictive, appropriate, available educational placement for the Student, and that the Burlington Public Schools is responsible for the Student’s placement there. My reasoning is set out below:

First, the Meridell Achievement Center is the only educational option about which there was evidence at the hearing. It was identified by the Parents. The admissions process was initiated and maintained by the Parents. Under other circumstances the Parents could have been expected to unilaterally enroll the Student in the program and to seek reimbursement from appropriate public agencies. Administrative and fiscal barriers have so far prevented that course of action. See : 20 U.S.C. 1412 12 (a); 34 CFR 300.2; Chapter 159 Section 62 of the Acts of 2000, amending MGL c. 71B. Yet the Parent’s proposed placement should be evaluated as if it were a self-help action as over the course of the past eight months Burlington offered no viable alternative to Meridell. Therefore even were Meridell Achievement Center not entirely appropriate for the Student, or not approved by Massachusetts or Texas educational authorities, the Parents would be entitled to the Student’s placement there as Burlington failed to arrange for any other educational program. Burlington v. Department of Education , 471 US, 359 (1985), 736 F.2d 773 (1 st Cir. 1984); Doe v. West Boylston School Committee , 28 IDELR 1182 (1998); Matthew J. v. Massachusetts Department of Education , 989 F. Supp. 380 (D. Mass. 1998).

Second, the evidence at the hearing established well beyond a preponderance of the evidence that the Meridell Achievement Center is an appropriate educational placement for the Student. It meets the current recommendations of both Dr. Chmielinski, who is familiar with Meridell, and Dr. Munir, who did not mention Meridell as a potential placement (P-10). It offers an intensive diagnostic workup focusing on the Student’s neurocognitive profile, as recommended by both Dr. Munir and Dr. Chmielinski. It provides a secure, nurturing, developmentally based, behaviorally oriented educational treatment program, as recommended by both Dr. Chmielinski and Dr. Munir. According to the uncontradicted evidentiary record, . Meridell has: staff trained to chart and implement behavioral programs; a low stimulation, predictable, structured environment; and a mix of therapeutic responses to behavioral discontrol ranging from pharmacologic to environmental, all of which have been recommended for the Student by both Dr. Munir and Dr. Chmielinski. There is no indication in the record that Meridell Achievement Center routinely provides any service or setting that is contraindicated for the Student. Similarly it appears that there is no educational service that has been recommended for the Student that Meridell cannot provide to her. The congruence of recommendations made by Dr. Chmielinski and Dr. Munir who evaluated the Student from different angles and with different fields of expertise, and the match between these recommendations and the services/environment offered by Meridell is striking. There are no expert recommendations in the record against the Student’s placement at Meridell.

It is important to not also that the Meridell Achievement Center is the only institution about which there was evidence at the hearing that provides the type of setting and services outlined in the Student’s last accepted IEP (P-1, S-20). Burlington is under a continuing obligation to ensure the delivery of the educational services accepted by the Parents on March, 2000 until a new IEP is agreed upon by the parties or ordered by the Bureau, neither of which has occurred. Therefore I find that Meridell Achievement Center meets the Student’s current educational programming needs.

The only other “placement” about which there was testimony at the hearing was Westborough State Hospital. It is without a doubt a hospital. No one characterized the adolescent unit there as an “educational placement”. There is no evidence that it is approved as an educational placement by the Commonwealth of Massachusetts. There is no evidence that any education would be provided to the Student were she to be transferred to Westborough State Hospital. There is compelling evidence, however, that the psychodynamic setting at Westborough with the attendant stimulation and confrontation, would be inappropriate and counterproductive for the Student. Indeed Westborough’s only asset for the Student is the availability of a bed.

Finally, the Meridell Achievement Center is the least restrictive placement about which there was evidence at the hearing. It provides a therapeutic educational milieu in which students with neurocognitive neurobehavioral difficulties similar to the Student are grouped together for learning, treatment and support. The setting, by definition and practice, is less restrictive than the acute hospital in which the Student now resides, as well as the chronic hospital setting at Westborough which is designed for adolescents with dissimilar and potentially antagonistic needs.

Burlington argues that Meridell Achievement Center is not an educational placement, but more akin to a hospital. As support for this position Burlington relies on Meridell’s accreditation by the Joint Commission on Accreditation of Health Care Facilities. Accreditation as a healthcare facility and as an educational program are not mutually exclusive, however. I note that at least two Massachusetts approved residential educational programs hold such dual approvals: Kolburne School and Meadowbrook . “Massachusetts Chapter 766 Approved In-State School and Programs that Serve Publicly Funded Special Education Students,” Massachusetts Department of Education, January 2000. Burlington Public Schools submitted referral packets on behalf of the Student to both of these programs.

More importantly, one must look to the approving state’s definitions in assessing the characterization of an institution as a hospital. Taylor v. Honig , 910 F. 2d 627 (9Th Cir. 1990). Here, Meridell is licensed as a residential treatment facility. It is not approved as a hospital and does not require a physician’s order for admission. Furthermore, Meridell is approved as an educational placement by the State of Texas through its University Charter School. The Charter School provides educational services only to students on the Meridell campus. The Student cannot access the appropriately tailored educational services available only through the Charter School without placement in the residential component of Meridell. It is an integrated system. Burlington offered no evidence to the contrary.

Burlington also argued that the services the Student would receive at Meridell are primarily medical in nature, and therefore not the responsibility of the Public School. Certainly the initial diagnostic period of up to two weeks, as described by Dr. Matthews, is heavily medical, involving EEG and BEAM studies, neuropsychiatric evaluations and pharmacologic trials, along with comprehensive behavioral, special education, language and occupational therapy assessments. I find, however, based on the recommendations of Dr. Chmielinski and Dr. Munir for further diagnostic evaluation of the Student and the description of Dr. Matthews of the diagnostic procedures and practices at Meridell, that the type of evaluations and procedures to be conducted initially at Meridell fall into the category of “related services” under the IDEA. Related services for which public schools may be held responsible include “medical services for diagnostic and evaluation purposes” 34 CFR 300.24. The type of studies and evaluations proposed for the Student during her first six to eight weeks at Meridell are clearly “diagnostic” in nature, as the results will form the basis for the individualized education plan to be developed after the diagnostic period. It is at this point unknown whether any medical services will be proposed for or delivered to the Student by Meridell staff after the initial diagnostic period. Therefore any future “medical services” cannot as yet be characterized, nor responsibility assigned.

Finally I note that the Parties did not address the issue of compensatory education at the hearing, focusing appropriately instead on the exigent and compelling nature of the Parents’ prospective placement request. Nevertheless the facts addressed at the hearing clearly support an award of compensatory education to the Student. She has been medically stable and ready for discharge to a less restrictive environment since at least mid-November 2000. Over the course of the subsequent seven months, Burlington made only standard, apparently desultory attempts to locate an appropriate educational program for the Student. When the Parents on their own identified the only available, appropriate educational program and requested Burlington’s assistance in securing the Student’s placement there, Burlington took almost two months to formally refuse the Meridell placement. Then still it did not offer an alternate educational program. Throughout the Student’s stay at the Children’s Assessment Unit Burlington did not monitor the educational services, if any, the student received. Nor did it develop an IEP which might have provided some structure and guidance to any in-hospital educator who might have been available to the Student. There are no progress reports, no educational assessments, no documentation of services, no indication that any information about the Student’s education was ever requested by or provided to Burlington Public Schools since her placement at the Crotched Mountain Rehabilitation Center on March 15, 2000. 603 CMR 28.06 (3), 28.04 (4). I find that the lack of appropriate oversight and evaluation contributed to a significant delay in providing an appropriate educational program to the Student. The procedural violations resulted in substantive educational harm to the Student by denying her timely access to a free, appropriate public education. See: Jefferson County Board of Education v. Breen , 864 F.2d 795 (11 th Cir 1988)

Order

The Meridell Achievement Center is the least restrictive, appropriate special education program for this Student. The Burlington Public Schools shall immediately arrange for the Student’s transportation to and placement in the Meridell Achievement Center. The Burlington Public Schools shall develop an IEP reflecting the Student’s placement at the Meridell Achievement Center within ten days of this decision. The Burlington Public Schools shall submit status reports to the Hearing Officer detailing the Student’s adaptation to, and educational programming in, The Meridell Achievement Center, as well as discharge planning efforts, on the first day of each month beginning September, 2001.

The Student is entitled to additional educational services to compensate for Burlington’s failure to monitor, provide, or locate appropriate educational programming services for the Student from November 2000 through June 2001. The parties shall submit either a plan for providing compensatory education to the Student or a request for assistance in developing such a plan, to the Hearing Officer by September 1, 2001. This Hearing Officer will retain jurisdiction of this matter to monitor compliance with this decision.

________________________ ______________________________

Date Lindsay Byrne, Hearing Officer


1

“Referral packets” contain evaluations and other educational information about a student. They function as admissions applications. The information is reviewed by the receiving school/facility which determines whether a student meets the criteria for admission to and benefit from the School’s program. Burlington Public Schools sent referral packets concerning the Student to the following facilities: On November 20, 2000, to Swansea Wood School, Judge Rotenberg Education Center, Devereux School (MA), Latham School, Dr. Franklin Perkins School, Melmark New England Health, and Kolburne School. All rejected the Student except Judge Rotenberg Educational Center (hereafter JREC).(P-65). The JREC admitted the Student conditioned upon the Parents agreement to cooperate with a substituted judgment process which would permit the use of physical aversive techniques with the Student. The parents declined. (Mother) On November 28, 2000, a referral packet was sent to Kennedy Hope Academy. On March 2, 2001, a referral packet was sent to the May Center (Chatham). On March 19, 2001, referral packets were sent to: Meridell Achievement Center, Meadowridge Behavioral Health Center, May Center (Randolph), and Evergreen Center. On March 27, 2001, referral packets were sent to New England Center for Children, and CNS Pathways Academy. On April 19, 2001, a referral packet was sent to Seven Hills Foundation. In Addition, Ms. Curtin spoke to the admissions Director at Deveraux Glen House in Connecticut about the Student. Only Meridell Achievement Center accepted the Student.


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