COMMONWEALTH OF MASSACHUSETTS
SPECIAL EDUCATION APPEALS
In Re: Dighton-Rehoboth Regional School District
BSEA #06-2145
DECISION
This decision is issued pursuant to the Individuals with Disabilities Education Act or IDEA (20 USC Sec. 1400 et seq.) as amended by P.L. 108-4461 , Section 504 of the Rehabilitation Act of 1973 (29 USC Sec. 794), the Massachusetts special education statute or “Chapter 766” (MGL c. 71B), the Massachusetts Administrative Procedures Act (MGL c. 30A), and the regulations promulgated under these statutes.
At issue here is whether the Student is eligible for special education within the meaning of federal and state law, and, if so, whether the school district must locate or create an appropriate placement for her outside of her neighborhood high school, or whether her needs can be met within the high school pursuant to a §504 plan. Also at issue is whether the district is liable for compensatory services related to delays in tutoring.
On October 31, 2005 the Parents filed a request for a hearing with the Bureau of Special Education Appeals (BSEA), and requested an order for home tutoring while Student awaited the TEAM’s decision on her eligibility for special education. On November 1, 2005 the BSEA issued a notice of a hearing to take place on December 5, 2005. By agreement of the parties, after a conference call between the Hearing Officer and counsel for both parties, the hearing was rescheduled for February 10 and 16, 2006. The hearing proceeded on those days as scheduled. Both parties were represented by counsel. Each party presented documentary evidence and examined and cross-examined witnesses. Counsel filed written closing arguments on February 24, 2006 and the record closed on that day.
Those present for all or part of the proceeding were:
Student’s mother
Student’s stepfather
Student
Michael Childs Director of Special Education, Dighton-Rehoboth Regional School District
Bill Wade School psychologist, SPED coordinator, Dighton-Rehoboth Regional High School
Leon Sibielski Director of Guidance, Dighton-Rehoboth Regional H.S.
Wynter Kelly Tutor (Testified by speaker phone)
Suzanne Riggs , M.D. Student’s treating physician (by speaker phone)
Michelle L. Rickerby, M.D. Student’s treating psychiatrist (by speaker phone)
Debra J. Moorhead, Ph.D. Student’s treating psychotherapist (by Speaker phone)
Robert Kraus, Esq. Attorney for Parent and Student
Michael Long, Esq. Attorney for Dighton-Rehoboth RSD
The official record of the hearing consists of Parent’s Exhibits P-1 through P-29 School’s Exhibits S-1 through S-22, approximately 5.5 hours of tape-recorded oral testimony and argument, and the parties’ written closing arguments.
ISSUES PRESENTED
The issues in this case are the following :
1. Whether Student is eligible for special education under the IDEA and Chapter 766;
2. Whether Dighton-Rehoboth failed to provide timely and/or adequate home tutoring to Student such that she is entitled to compensatory services;
3. Whether the School’s proposed §504 plan for accommodating Student within the high school is appropriate to meet her needs or,
4. Whether Dighton-Rehoboth must locate or create a different placement for Student.
POSITION OF PARENTS AND STUDENT
Student is eligible for special education services because she has a constellation of intertwined emotional and health related disabilities that interfere with her ability to make effective progress within the regular education setting. As a result of her disabilities, Student is physically and emotionally fragile, needs a tremendous amount of support to return gradually to any school setting, and to remain in that setting. She also needs a small, caring environment with various supports that are not available within Dighton-Rehoboth High School. Moreover, for various reasons, Student does not perceive Dighton-Rehoboth as a place where she could feel safe. For these reasons, the district should develop an IEP for Student and locate or create a program consistent with recommendations of Student’s evaluators and treating professionals.
POSITION OF SCHOOL
Student is ineligible for special education because she is making excellent progress in the regular curriculum without specialized instruction of any kind. Student’s health and emotional impairments do not interfere with her ability to make effective progress. These impairments do affect her school attendance; however, the School can meet Student’s needs in this regard with its proposed §504 plan. This plan includes the accommodations recommended by evaluators and Student’s treaters, all of whom believe that Student needs to return to a school setting as soon as possible. Student’s reported distrust of the High School arises from Parent’s animosity towards the district. The School is willing and able to work with Student to repair her relationship with the High School.
FINDINGS OF FACT
· Student is a seventeen-year-old young woman who lives with her family within the Dighton-Rehoboth Regional School District. (D-R or School) At all relevant times Student has been a regular education student, and has not had an IEP or §504 plan.2 It is undisputed that she has normal cognitive ability and is an excellent student. She is highly motivated, conscientious, engaged in the subject matter, does more work than is asked of her, and completes her work on time. (P-6, 9, 13; S-1, 21, Kelly) Her grades for her freshman (2003-04) and sophomore (2004-05) school years are nearly all As and Bs in regular education courses. (P-9, S-16) Student values education, and wants to finish high school and attend college. (Student) For reasons discussed below, however, Student has not attended school from March 2005 to the date of hearing, although she has received home tutoring for most of this period.
· During the summer of 2002, Student experienced mistreatment by her stepbrother, who is close to Student in age and was living with the family at the time. Although the stepbrother left the family home about six weeks after the incident, he continued to attend D-R schools. Beginning in the 2003-2004 school year, Student and stepbrother both attended D-R High School. High School staff agreed to Parents’ request to keep the two apart and they were not taking the same courses; however, they were scheduled for lunch in the cafeteria at least some of the time in the fall and early winter of 2004, and Student saw and/or encountered her stepbrother on one or more occasions. She experienced these encounters with him as very stressful and traumatic. She also felt that High School officials did not listen to her concerns about keeping the stepbrother away from her. (Student, Mother, Rickerby, Moorhead, P-2, P-3)
· On or about March 31, 2005, Student was hospitalized at Hasbro Children’s Hospital in Providence, RI with malnutrition and related medical problems stemming from extreme weight loss over the previous months. (P-6, Riggs, Rickerby, Mother) Student spent about a week as an inpatient at Hasbro where she was diagnosed with anorexia nervosa. In early April 2005, after her medical condition was stabilized, Student transferred to the Hasbro Partial Hospital Program for treatment of her eating disorder and related psychiatric issues. She remained in the partial hospital program until May 9, 2005. Student’s discharge diagnoses included anorexia nervosa, major depression (chronic, intermittent, moderate) and post-traumatic stress disorder (PTSD). Student’s treaters found that the situation with the stepbrother was a contributing factor to Student’s illness. (Other factors included Student’s anxiety about school generally and stress within her family.) (P-2, 5, 6, Riggs, Rickerby)
· Student continued to carry these diagnoses up to the time of hearing, although her eating disorder has stabilized. (Riggs, Rickerby, Moorhead, P-6, P-8). The parties do not dispute that Student continues to be emotionally fragile. She is prone to anxiety about school-related and other issues, subject to depressive symptoms, and at risk of a relapse in her eating disorder in the absence of adequate monitoring and support. (Id.) According to Leslie Feil, Ph.D., who evaluated Student in November 2005 at the request of the School, Student has a “severe and pervasive psychiatric disorder, which is impairing her ability to attend school.” (P-8) Dr. Feil’s report notes that in addition to the diagnoses referred to above, Student may also meet the criteria for agoraphobia and /or social phobia “due to her school avoidance and lack of peer social interaction.” (P-8)
· At present, Student is very isolated. As stated above, she does not attend school, but receives home tutoring. She spends a great deal of time at home, alone, or with family members, on whom she relies for social contact and activities. She generally does not leave her home without someone from her family. She no longer has much contact with friends, other than by email. Student is not employed and does not belong to any organizations (Student, Mother, P-8)
· Student has been receiving treatment continuously from the time of her discharge from Hasbro until the date of hearing. Student’s eating disorder and related health issues are monitored by Suzanne Riggs, M.D., who treated her at Hasbro and now sees her approximately monthly. (Student also sees a nutritionist). A psychiatrist, Michelle Rickerby, M.D., oversaw Student’s mental health treatment at Hasbro, and did an updated assessment in November 2005. Student receives weekly psychotherapy from a social worker, Debra J. Moorhead, Ph.D. Upon discharge from Hasbro, Student initially saw Susan Penza-Clyve for psychotherapy, then transferred to Dr. Moorhead in September 2005. (Riggs, Rickerby, Moorhead, P-6, 8, 25, 29
· Student did not receive any educational services during her hospitalization. The School did not conduct a Chapter 766 or Sec. 504 evaluation during this period, and no one made a referral for an evaluation. A discharge planning meeting was held on May 6, 2005 at Hasbro. The D-R Director of Special Education, Michael Childs, attended the meeting, where those present discussed providing home tutoring for Student. (Childs, Mother, P-1)
· Tutoring in Student’s tenth-grade courses began on or about June 22, 20053 and ran through approximately October 2005. During that period, Student completed all required work for her sophomore year. (P-12, Kelly, Student, Childs)
· Between August and October of 2005, Mother and Mr. Childs exchanged letters and emails regarding Student’s return to the high school, tutoring services, and scheduling of a §504 meeting. According to the documentary record, Mr. Childs sent letters to Parents on August 19 and September 8, 2005 in an attempt to schedule a §504 meeting; on June 30, September 8, and October 28, 2005 seeking medical documentation and certification for a §504 plan and home tutoring. (P-13, S-11, S-15, Childs, Wade) On the other hand, Mother sent a certified letter to Mr. Childs dated August 10, 2005 requesting a date for a §504 meeting, and an email dated August 23, 2005 stating that D-R had not responded to repeated telephone requests or the letter of August 10. (P-14) Finally, on September 13, 2005, Parent’s counsel responded to Mr. Childs’ letter of September 8, requesting to be contacted with dates for a “§504/TEAM meeting process.”
· On October 4, 2005, D-R conducted a meeting to discuss Student’s return to D-R High School. No §504 plan was proposed. D-R maintained that Student could be given assistance without a §504 plan or IEP such as an “individual student health plan” involving, for example, access to the school nurse and counseling from the guidance department and/or school psychologist. (Childs)
· Parents submitted letters from two of Student’s treaters either at or shortly before the meeting. In a letter dated September 19, 2005, Dr. Riggs, who monitors Student’s eating disorder, stated: “I’m writing …at the request of the family that [Student] be continued in her tutoring until she finishes her sophomore year, until the family settles their business with the school committee about where [she] should be placed in the future and until her 504 plan is developed.” (P-4) Dr. Moorhead, Student’s therapist, wrote in a letter dated October 4, 2005 that “They [the family] are requesting, and I concur, that she be allowed to continue with her tutoring for as long as it takes for her to be placed in a suitable situation. On October 31, 2005, Mother commenced the instant appeal, seeking (at that time) tutoring pending an eligibility determination. The School’s response indicated that Parents had not yet submitted the physician’s statement. Parents did so on or about November 7, 2005, and tutoring began approximately November 14. (P-7, 21)4
· The outcome of the October 4 meeting was an agreement by the parties to further assess Student for special education and/or §504 eligibility via a psychological evaluation by Dr. Leslie Feil, Ph.D., a private licensed psychologist, as well as an update of Student’s psychiatric status by Dr. Rickerby. (Childs)
· Dr. Rickerby submitted a report on November 3, 2005, after reviewing records and interviewing Student and Parents. Dr. Rickerby found that Student’s eating disorder was stable, with much family and therapeutic support; but that her depression and PTSD had worsened since September 2005. The report identifies as barriers to Student’s return to school her negative memories about encounters with her stepbrother at the high school, distrust of school staff, general anxiety regarding school and peers that is typical with her profile, and the Parents’ “profound sense of distrust” in the school’s recommendations. (P-8) Dr. Rickerby recommended a “hierarchical exposure model” to return to high school, that might start with tutoring outside of the home in a neutral location, and a move back into the high school by the second semester of 2005-06, with a “resource classroom” to use as a home base for moving gradually into the mainstream as well as using as a refuge. The report further recommends a female school-based counselor to coordinate with Student’s outside therapist; and continued outpatient therapy and medication. (P-6)
· Dr. Feil conducted her evaluation on November 9, 15, and 17, 2005. The evaluation consisted of a records review, interviews with Parents, Student, Drs. Rickerby and Moorhead, and standardized testing of Student’s cognitive and emotional functioning. Dr. Feil found that cognitively and academically, Student was functioning, respectively, in the low average and average ranges. Dr. Feil further concluded that Student continued to have anorexia nervosa, major depressive disorder (recurrent, moderate) and PTSD, and, as stated above, “a severe and pervasive psychiatric disorder which is impairing her ability to attend school.” Student was found to have “considerable anxiety” over conflict between her family and the school district and within her family; over her absence from school; and other issues. (P-8)
· Student reportedly told Dr. Feil initially that she wanted to return to D-R High School but was told by her parents and attorney not to. Later, Student indicated that it would be increasingly hard to return to school the longer she stayed away and got behind, and that she wanted tutoring. (P-8) At hearing, Student testified that her parents did not pressure her to stay away from school but simply supported her in not attending a situation where she did not feel safe. (Student)
· Parents told Dr. Feil that Student needed to be in a specific parochial high school, funded by D-R, because she could not trust D-R officials or feel safe in the High School. (P-8)
· Dr. Feil’s report essentially incorporates Dr. Rickerby’s “hierarchical exposure model” to return to high school. As for placement, Dr. Feil stated that D-R High School is theoretically safe, but may not be a viable alternative for Student because of the “animosity between [Student’s] family and school authorities.” The report states that “[a] decision regarding a specific school placement is beyond the realm of the present evaluation,” and that the “success of any placement will depend upon family support.” Further, Student is expected to have some problems adjusting to any school setting because she has been out of school for so long. (P-8)
· Finally, Dr. Feil’s report emphasizes that “[a]nxiety and ‘safety concerns’ do not constitute an appropriate rationale for long-term home tutoring” and will “further reinforce [Student’s] fears about peer contact, social contact outside of the family…and participation in a large, public environment. Avoidance of anxiety-provoking situations only serves to strengthen anxiety responses…” (Id.) Dr. Feil recommended family counseling to help the family relate in a more collaborative manner with the school and support Student’s return there. (Id.)
· The TEAM convened on December 16, 2005 to consider the reports of Drs. Feil and Rickerby. Parents proposed continued tutoring and placement at Foxborough Charter School or Sylvan Learning Center. D-R found Student ineligible for special education, essentially based on Dr. Feil’s finding that Student does not have a learning disability or any academic problems.5 The reasons for denying eligibility were, in essence, that according to Dr. Feil’s report, Student does not have a specific learning disability. The School further responded that it was “prepared to offer an individual health care plan to provide [Student] with the individual, female contact person at the high school on her re-entry for second semester and with ongoing and increasing tutorial services. This was an offer, and a recommendation that a 504 plan be developed were made by the District at the TEAM meeting and prior thereto.” (Administrative Record, School’s Response to Amended Hearing Request)
· In a letter to Mr. Childs dated January 19, 2006, Dr. Rickerby clarified that Student’s anorexia causes both medical and emotional impairment; that Student’s major depressive disorder and PTSD also cause Student serious emotional impairment, and all three diagnoses should be given equal weight and seriously interfere with Student’s ability to function in school. Dr. Rickerby also commented that the Sylvan Learning Center and Foxborough Regional Charter School, which had been proposed by the Parents, provide a smaller environment that may be conducive to the hierarchical exposure model recommended by Drs. Feil and Rickerby. (P-26)
· Subsequently, on January 27, 2006, the School made an “offer of judgment” to Parent’s attorney consisting of a “504 Accommodation Plan.” (Attachment to Brief of School) This plan essentially calls for tutoring in the high school library, after school, until Student and her teachers feel she can return full-time, consultation with Student’s therapist, and the use of the school nurse as a contact person for Student. (Id)
· The School elaborated on the proposed §504 plan through testimony at hearing. In general, Student’s program would be overseen by Mr. Leon Sibielski, the High School guidance director, and Mr. Wade, a school psychologist and the High School special education coordinator.6 Mr. Sibielski and Mr. Wade are aware of Student’s diagnoses and Dr. Feil’s recommendations for a gradual reintegration to a school setting, and have dealt with students who have eating disorders, PTSD and depression. They would coordinate a gradual return to classes, one course at a time, arrange for Student to have access to a female counselor and the school nurse, coordinate consultation with Student’s outside therapist, and conduct regular meetings during Student’s reintroduction. Mr. Sibielski recommends continued tutoring after re-entry, and would coordinate this service. (Wade, Sibielski) There is space within the school for Student to use as a refuge, although the actual resource rooms are used either for students who are struggling academically or are acting out. (Wade)
· Mr. Wade believes, based on Student’s performance with tutoring, that she is ready to make a gradual return to school even though she is emotionally fragile, and that D-R is equipped to address her needs, even though it is not a small environment. As for the reported lack of trust between Student, her family, and the D-R school district, Mr. Wade would set up meetings with the family as well as other appropriate individuals (such as Dr. Feil) to discuss the particular situation that triggered this problem and work towards repairing the relationship. (Wade)
· Drs. Rickerby, Riggs and Moorhead testified at hearing as to their recommendations for Student’s school placement. Dr. Rickerby testified that shehad not seen Student since November 2005. At that time, however, she found Student to still be very anxious and fragile, and in need of the gradual reintroduction to school outlined in her report. Dr. Rickerby testified that while a return to school is essential, she felt the breach between Student and D-R was irreparable, and that in any event, Student needed a smaller school setting. (Rickerby)
· Dr. Riggs testified that while she is a medical doctor and not qualified to make placement decisions, she does believe that Student needs a school setting where she feels safe and receives support for academics and for eating normally, although she should not rely on the school for management of her eating disorder. Dr. Riggs stated that an appropriate setting would be a small environment where the “level of understanding is high.” She did not testify as to whether D-R High School could provide such a setting. (Riggs)
· Dr. Moorhead, Student’s treating psychotherapist, testified that Student now feels that the High School does not really want her to come back, based on the delays in setting up tutorial services. Student also feels she does not belong at D-R High School and is afraid she would be singled out there. Student feels that the School did not respond to her requests to have her stepbrother kept away from her when he attended D-R, and that, therefore, she believes the School will not be supportive of her now. Dr. Moorhead believes that a return to a school environment is very important for Student’s well-being, but that she should return to a smaller setting. Dr. Moorhead would make herself available to consult with High School staff if Student were to return to the High School.(Moorhead)
· Currently, Student feels that she would not be emotionally safe at D-R High School, even though her stepbrother is no longer there. (Student) She feels that she has been penalized academically in the past for absences due to illness and that this would happen again. She is concerned about lagging behind her peers academically. Most of all, even though she had teachers and friends that she liked at D-R High School and did well in school, she believes that the principal, Mr. Danella, supported her stepbrother and, therefore, did not support her. Student feels that she cannot trust any other High School administrator because they all are subordinate to Mr. Danella and will, she believes, follow his direction. Student feels that at this point, there is nothing that School officials can do or say that will alleviate her distrust. Student states that her parents have supported her desire not to go to a situation where she feels unsafe, but have never pushed her not to attend D-R High School. (Student) Student wishes to return to a school setting that is small and caring. (Student)
· Parent and Student have suggested the Foxborough Charter School and the Sylvan Learning Center as alternative placements. They have not presented any evidence as to why either of these programs would be appropriate for Student, other than their small size. (Mother, Student) Parent and Student have not proposed any other placement or configuration of services. (Mother, Student)
· As stated above, tutoring in Student’s Grade 11 courses began in mid-November, 2005, and takes place in Student’s home. As of the hearing date, Student had substantially completed work for the first semester of 11 th grade, with recommended grades in the A range. Student was somewhat behind in geometry and chemistry lab, but is doing very well overall. (Kelly, Sibielski) Mr. Sibielski estimates that Student could be fully caught up with her junior year courses during the summer of 2006. (Sibielski)
FINDINGS AND CONCLUSIONS
After reviewing the testimony and documents on the record, I conclude that Student is a “child with a disability” within the meaning of the IDEA and Chapter 766 and, therefore, is eligible for an IEP. I further conclude that the D-R High School is not currently appropriate to meet Student’s needs and that D-R must locate or create an appropriate setting for Student. I further conclude that Student is not entitled to compensatory services as a result of delays in provision of tutoring. My reasoning follows.
Eligibility and Services
Pursuant to the IDEA at 20 USC §1402(3)(A), a student with a “serious emotional disturbance,” or “other health impairment” is eligible for special education and related services if, “by reason thereof,” he or she “needs special education or related services,” that is, “specially designed instruction…to meet the unique needs of the needs of a child with a disability.” Id., §1402(29). The pertinent regulation at 34 CFR §300.7 defines “serious emotional disturbance” as
(i) …a condition exhibiting one or more of the following characteristics over a long period of time and to a marked degree that adversely affects a child’s educational performance.
(A) An inability to learn that cannot be explained by intellectual, sensory, or health factors.
(B) An inability to build or maintain satisfactory interpersonal relationships with peers and teachers.
(C) Inappropriate types of behavior or feelings under normal circumstances.
(D) A general pervasive mood of unhappiness or depression.
(E) A tendency to develop physical symptoms or fears associated with personal or school problems.
(ii) The term includes schizophrenia. The term does not apply to children who are socially maladjusted, unless it is determined that they have an emotional disturbance.
34 CFR §300.7(c)(4)7
The IDEA defines “special education” as “specially designed instruction…to meet the unique needs of a child with a disability…” 20 USC §1403(29). The corresponding regulation states, among other things, that special education also includes “any…related service, if the service is considered special education rather than a related service under State standards.” 34 CFR §300.26.
The Massachusetts statute, G.L. c. 71B, and corresponding regulations, 603 CMR 28.00 et seq., provide that a student is eligible for special education if s/he has a disability as defined therein,8 and, by reason of this disability, 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(9); 28.05(2)(a)(1).
Here, there is no dispute that Student has a disability that fits within the definition of “serious emotional disturbance.” The record is clear that she has suffered “a general pervasive mood of unhappiness or depression,” and “physical symptoms or fears associated wit personal or school problems.”9 There is also no dispute that this disability has affected Student’s ability to attend school since she was hospitalized in March 2005. Additionally, Student has become tremendously isolated. She spends a great deal of time at home, by herself. She goes out only with family members. She no longer sees her friends and is in touch with them only by email. Not only does Student lack the day-to-day social contact of school, she does not have that contact from other source such as a job, or clubs and organizations. Clearly, Student’s disabilities have a tremendous impact on many aspects of her life, further underscoring that she has a “serious emotional disturbance as defined by the IDEA and Chapter 766.
The School contends, however, that because Student historically has been a good student, and has achieved good grades with grade level material in tutoring, her disabilities do not “adversely affect her educational performance.” 34 CFR 300.7©(4). Her work completion through tutoring, the school argues, indicates that Student is making “documented growth” in the acquisition of knowledge and skills,” and is, therefore, making “effective progress” as defined in 603 CMR 28.02.
Academic achievement within the tutoring context is not a complete measure of effective progress when the child, as a result of her disability, does not attend school, however. The ability to attend class on a daily basis, to behave appropriately, to participate in group learning and class discussions, and to interact with teachers and peers both in and outside of class are all skills that are fundamental to the educational experience, the purpose of which, for students with disabilities, is to “develop student’s individual educational potential,” 603 CMR 21.01(3), as well as to equip students with disabilities with the knowledge and skills to “be prepared to lead productive and independent adult lives, to the maximum extent possible.” 20 USC §682©(5)(A). Any or all of these skills may quite properly constitute an IEP goal or objective, and may be addressed by specialized instruction and/or a related service.
In the instant case, Student has made academic gains with tutoring, but her inability to attend school necessarily affects her progress towards independence as outlined above, and, necessarily, adversely affects her educational progress. Moreover, it is undisputed that in any educational setting, Student will need such related services as guidance support, possibly counseling, and consultation, and the services of the school nurse. This in itself renders Student eligible for special education pursuant to 603 CMR 28.02(9) and 28.05(2)(a)(1). As such, she is entitled to additional evaluation, if appropriate, as well as an IEP that addresses all areas identified as special needs, including but not limited to Student’s difficulties with school attendance.
The next question is what services and placement Student requires in order to receive a free, appropriate public education (FAPE). The parties agree that at a minimum, Student needs to expeditiously but gradually return to a school setting under the “hierarchical exposure” model proposed by Drs. Feil and Rickerby. She also needs access to a female school counselor and, possibly, the school nurse, and coordination between her outside therapist and the school counselor or other appropriate person. Finally, she needs a physical space that she can use both as a home base from which to expand her horizons into the larger school environment, and as a refuge when she is stressed. At issue is whether these services and accommodations can be provided within D-R High School. I conclude that at this time, they cannot, for two reasons. First, Student’s treaters and Dr. Feil recommended or supported a smaller educational setting. D-R is a large high school. There has been no evidence provided that there are smaller groupings of appropriate peers within the school with whom Student could be placed.
Second, Student testified that she still does not feel emotionally safe, or that she would be treated fairly at D-R High School. She has made this or similar statements to her treaters fairly consistently since March of 2005, but has also expressed some ambivalence about returning; this actually makes more credible her statements that she does not feel safe to return. Whether or not Student’s perceptions of the school are accurate, I am persuaded that they are sincere and are a barrier to her return to school. Mr. Wade has offered to work with Student and her family to repair the relationship with D-R high school. While such work would be very appropriate, it is not clear whether and when it would be successful in helping Student feel comfortable enough to attend the High School within a reasonable amount of time.
Parent has not proposed a placement other than Foxboro Charter School and the Sylvan Learning Center, and has not presented evidence tending to show that either of these is appropriate. Therefore, I decline to order either one of these placements. (I note, however, that the Foxborough Charter School is a public school, and nothing precludes Student from applying on her own to attend there).
Where the school’s current placement is inappropriate, I will order D-R to locate or create a suitable placement meeting all of the criteria set forth in the recommendations of Drs. Rickerby and Feil. I note here that Dr. Feil emphasized that the success of any placement will depend on family support, and recommended family counseling, which should be a component of Student’s IEP.
Compensatory Services Claim
Parent has requested compensatory relief “based upon the additional need of tutorial services in order to insure that she is up to date with her academic peers in the eleventh grade.” (Parent’s Closing Argument, p. 1) Parent has not developed this claim, however, and, more particularly, Parent has not shown any past deprivation of FAPE attributable to the school that would give rise to an entitlement to compensatory services. The record does show, on the other hand, that after some delays, Student completed her sophomore year with tutoring, completed most of her first semester of her junior year, and will be caught up with her peers by summer 2006. For these reasons, Parent’s request for compensatory services is DENIED.
ORDER
Upon receipt of this Decision, D-R Regional School District shall do the following:
1. Convene a TEAM meeting to develop an IEP that, at a minimum, incorporates the recommendations of Drs. Feil and Rickerby for Student’s return to school as well as accommodations and services within the school setting, including a gradual, structured return to school, a female counseling resource, a room to serve as a refuge and home base, access to nursing services, support for Student’s meal plan, if needed, and tutoring as needed to ensure that Student fully catches up with her peers in a reasonable time. Consistent with Dr. Feil’s recommendations, the IEP should also provide for family counseling or other appropriate parental participation to ensure that Student receives the full support of her family to attend school. If necessary or appropriate, the TEAM may arrange for additional evaluations, but these should not delay development of an initial IEP for Student.
2. Locate or create a placement that can provide a small, nurturing setting that can implement the IEP referred to above. This placement may be in a public or private setting, and may be a small grouping within a larger public high school other than D-R. Unless further evaluations dictate otherwise, this placement should be primarily with typically developing peers.
By the Hearing Officer:
____________________ _____________________________
Sara Berman
1
Individuals with Disabilities Improvement Act of 2004 or “IDEA-2004.”
2
From preschool through first grade, Student had an IEP calling for speech-language services. Special education services ended in first grade, with Mother’s agreement. (Mother, P-24)
3
The gap in services between the discharge planning meeting and the start of tutoring in June 2005 was the subject of Parents complaint to the Department of Education’s (DOE’s) Program Quality Assurance (PQA) unit. After investigation, PQA found the School out of compliance with applicable regulations on home/hospital services because it had not obtained the required doctor’s statement prior to providing services. (P-1)
4
Tutoring did not begin in all courses at the same time. Services were in place for all courses by December 2005.
5
The School did not issue the notice prescribed by 20 USC §1415(b)(3) and (c), or 603 CMR 28.05(2)(a)(2) when it found Student ineligible. Rather, the School’s reasons for denying eligibility were incorporated into its January 5, 2006 response to Parent’s December 22, 2005 Amended Hearing Request. The Parents do not claim to lack notice of the School’s basis for denying eligibility.
6
If Student receives an IEP, Mr. Wade would oversee her program. If she has a §504 plan or no plan, her program would be monitored by Mr. Sibielski.
7
This definition is from the regulations implementing IDEA-97, the predecessor to IDEA-2004. These regulations are in effect until new regulations are adopted for IDEA 2004, so long as they are consistent with the new statute. The corresponding proposed regulation, listed as 34 CFR §300.8©(4) in the Federal Register at 70 FR No. 118, is identical to the older regulation.
8
Massachusetts has adopted the federal definition of “serious emotional disturbance.”
9
Student’s anorexia may also qualify as a health impairment under 603 CMR 28,02(i), if her stable anorexia now affects her stamina or alertness.