COMMONWEALTH OF MASSACHUSETTS
SPECIAL EDUCATION APPEALS
In Re: Fitchburg Public Schools
BSEA # 03-2424
DECISION
This decision is issued pursuant to 20 USC 1400 et seq . (Individuals with Disabilities Education Act), 29 USC 794 (Section 504 of the Rehabilitation Act), MGL chs. 30A (state administrative procedure act) and 71B (state special education law), and the regulations promulgated under said statutes.
A hearing was held on March 27, 2003 in Malden, MA, and April 1, May 23, May 30 and July 8, 2003 in Worcester, MA, before William Crane, Hearing Officer. Those present for all or part of the proceedings were:
Student’s Mother
Student’s Father
Lisa Shaw Clinical Psychologist, Private Practice
Melissa Maguire Seven Hills Family Services
Kathleen Raftery Director of Student Services/Special Education, Fitchburg Public Sch.
Gail Ann Fitton Evaluation Team Leader, Fitchburg Public Schools
Debra Roberts Inclusion Specialist, Fitchburg Public Schools
Steven Bicchieri FLLAC Program Supervisor
Jeanne Carguilo FLLAC Elementary School Teacher
Dorothy Madden FLLAC Middle School Teacher
Mary Ann McGinnis Attorney for Parents and Student
Amy DiDonna Attorney for Parents and Student
Mary Gallant Attorney for Fitchburg Public Schools
Rita Steinke Court Reporter
The official record of the hearing consists of documents submitted by the Parents and marked as exhibits 1 through 16 (hereafter, exhibit P-1, etc.); documents submitted by the Fitchburg Public Schools (hereafter, Fitchburg) and marked as exhibits 1 through 81 (hereafter, exhibit S-1, etc.); and five days of recorded oral testimony and argument. Written closing arguments were received by July 31, 2003, and the record closed on that date.
ISSUES PRESENTED
Is the School District’s most recently proposed IEP for the period 11/05/02 to 11/04/031 reasonably calculated to assure Student a free appropriate public education in the least restrictive environment? If the IEP does meet this standard, is Student appropriately placed at the elementary school or at the middle school? If the IEP does not meet this standard, does a placement at Seven Hills Academy meet this standard?
PROFILE AND HISTORY
Student is twelve years old (date of birth 9/25/90) and lives with his Parents in Fitchburg, Massachusetts. For the 2002-2003 school year, Student has been enrolled in an elementary school program of the FLLAC Educational Collaborative.2 The elementary school is located at the Page-Hilltop Elementary School in Ayer, MA. Testimony of Mother, Carguilo; exhibits P-13, S-1.
Student is a compassionate person who is aware of the needs of others and often is helpful to them. Student responds well to behavioral rewards and participates in the activities within his special education classroom. Student is also impulsive and easily distracted in ways that interfere with his ability to learn. Student has been diagnosed with Autistic Spectrum Disorder, Obsessive/Compulsive Disorder, Attentional Deficit Disorder with Hyperactivity, mild mental retardation, and severe frontal brain dysfunction. Testimony of Mother, Carguilo, Shaw; exhibits P-1, P-13, S-1, S-6.
Fitchburg’s most recently proposed IEP is for the period 11/05/02 to 11/04/03. The IEP was prepared as a result of a Team meeting on 10/15/02, which was attended by Parents and their attorney. The IEP proposes the following direct special education services within a separate environment: academics from school staff for 350 minutes each day; speech and language services from a speech pathologist for 30 minutes twice each week; and occupational therapy from an occupational therapist for 30 minutes three times each week. The IEP proposes no direct special education services within the general education classroom. The IEP proposes the following consultative special education services: speech and language consultative services from a speech pathologist for 30 minutes once each week; and occupational consultative services from an occupational therapist for 30 minutes once each week. The IEP proposes an extended school year. Exhibits P-13, S-1.
On 11/08/02, Parents rejected this IEP because they are seeking a private day placement, rather than continuing Student’s placement at the FLLAC Collaborative as proposed by Fitchburg. Parents also rejected Student’s promotion to middle school (at the FLLAC program at the Ayer Middle School in Ayer, MA), with the result that Student was retained in the elementary school program for the 2002-2003 school year. Although Parents have rejected the proposed placement, they have not rejected any of the services described within the IEP. Testimony of Mother; exhibits P-13, S-1.
STATEMENT OF THE EVIDENCE
· Mother testified that she lives in Fitchburg with her husband and three sons, the oldest of whom is the student in this dispute (Student). Mother explained that she has completed the 12 th grade of high school and currently is employed as a direct care relief worker, providing direct care and support to persons diagnosed with a developmental disability who are over the age of twenty-two years. She also noted that she has attended conferences relevant to her son’s disabilities.
Mother testified that her son’s personality is to be anxious “most of the time”, he can also be very pleasant, and he is very compassionate. She noted that he is a quick learner but has an inability to retain information without constant repetition. Mother explained her son’s significant difficulty of becoming over-stimulated and physically anxious, with resultant stereo-typical behavior (for example, hand-flapping and biting his hands) when he encounters more than eight people in a group. She further explained that when her son’s behavior escalates, he engages in self-injurious behavior such as head-banging, and that he can be destructive of property (for example, throwing things and smashing objects). She reported that she is aware of only one instance (when her son was five years old) at home or at school when this behavior resulted in someone’s needing medical care (her younger child needed stitches after Student threw a brick at him).
Mother testified that as a result of her concern regarding her son’s propensity to over-stimulate in groups of more than eight people, she has refused permission for her son to participate in any middle school activities as she believes that the middle school is significantly larger than the elementary school which Student currently attends.
Mother testified that her son has been diagnosed with Attentional Deficit/Hyperactivity Disorder (ADHD) (when approximately 7 years old), Asperger’s Syndrome and Obsessive/Compulsive Disorder (when he was approximately 9 years old) and mild mental retardation, autism and severe frontal brain dysfunction (most recently in October 2002). She noted that in addition to the special education and related services provided by Fitchburg, her son receives, at private expense, (1) sensory integration provided as needed by her and her husband, (2) music therapy provided weekly by a music therapist, and (3) family and individual counseling provided twice per month by a psychologist (Jay Ryan).
Mother testified as to the medications that her son takes for ADHD and his behavior related to his Obsessive/Compulsive Disorder, as well as medications to help him relax and go to sleep for the night. She explained that if he does not receive his medications, he is “completely unsafe” – for example, he “flies around the room” becoming increasingly agitated over small events, and loses control of his ability to verbalize. She noted that the last time he did not receive his medications was 3 or 4 years ago. She also explained that in the morning when he first wakes up and takes his medications, it takes about an hour for the medications to “kick in” and at night during the last hour before going to bed, the medications have worn off; during these times, he is generally unsafe and agitated, and needs to be continuously monitored. She also noted that even when her son is under the medications, he needs assistance throughout the day and typically almost every day has an incident which is unsafe. Mother noted, however, that with an increase in medications approximately 5 or 6 months ago and as a result of behavior management techniques at home and school, these behaviors and incidents have decreased, he has become more compliant, and he is more easily re-directed. Nevertheless, Mother emphasized that her son continues to have difficulties with his behaviors which need to be monitored and addressed by an adult.
Mother testified that she is not aware generally of what behaviors occur at school, but she noted two incidents over the past three years when he “bolted” from the classroom, once getting to the parking lot before being caught by a staff person and in the second incident, he was caught in the basement by staff. Mother noted, however, that she feels confident that school staff are able to attend to her son and control him.
Mother testified that her son has friends but that they all are diagnosed with disorders on the autism spectrum. She explained that when her son is with a friend, they engage mostly in parallel play with limited interaction between them, although he consistently shares toys with his friends. Mother testified that Student is a polite child who responds well to behavioral rewards with the result that he can be very helpful around the house, doing chores in exchange for a token reward.
Mother testified that her son has no patience, has no understanding of time, and seeks immediate gratification – for example, when he wants to speak, he speaks, without appropriate self-control. She noted that on most occasions, he can verbally express his emotions; and when he is not able to, he is likely on his way to a “meltdown”, reverting to his own world and becoming very anxious. She noted that he is usually not aware of his own body space and has spatial difficulties, so that he may not keep an appropriate distance from others.
Mother testified that her educational goal for her son is for him to reach his academic potential which she “guestimates” to be at or above peer level in certain areas such as landscaping and machinery, and one or two grade levels below his peers in most other areas. Mother explained that she has a younger son who is in the 2 nd grade and that he and Student read at the same approximate level, so that she assumes that Student is reading at the 2 nd or 3 rd grade level.
Mother testified that although she is, in most respects, satisfied with the educational program received by her son, she is concerned that he has not been meeting many of the goals and objectives in his IEP. She explained that, to her knowledge, he is able to add and subtract two-digit numbers without cueing, he cannot round numbers, he can occasionally make change, he can write sentences to get ideas across but needs cueing to write correctly (for example, using correct grammar), he is able to (but chooses not to) write paragraphs and is not asked to do so in his homework, he reads the same books at home that he has read since 2 nd grade (and which he has now memorized), he has difficulty pouring liquids (for example milk into a cereal bowl), and he can identify some fractions with respect to an object (for example, he could understand a half of a stick of butter).
Mother testified, after reviewing Ms. Carguilo’s April 2002 progress report (exhibit S-21), that in April 2002 he may have been able to count money to a dollar but can no longer do so consistently, and that in April 2002 he may have been able to answer in French but cannot now do so. She also noted that her son has significant difficulty going to “specials” – that is classes such as gym, art and music that are integrated with typical peers as he is not able to control his behavior in an integrated setting; and that currently the only special that he attends is music.
Mother testified that in her opinion, her son’s current teacher (Jeanne Carguilo) who has also been her son’s teacher the past two school years, is an “excellent” teacher; Mother recommended her for an award as a result of her teaching abilities and efforts. Exhibit S-19. Mother explained, in particular, that Ms. Carguilo did an excellent job with her son when she first became his teacher (in the 1999-2000 school year), helping with his behavior so that he could control himself.
Mother testified that she rejected her son’s proposed IEP placement after viewing the proposed middle school classroom. She explained her concerns that the classroom, which is on the 2 nd floor, had windows through which her son might try to escape and he might hurt himself running down the stairways; she was concerned about the time-out room space (for example, the partition might be knocked over) and the arrangement of the room (for example, the desks were too close together so that Student would bump into them); and she was concerned about the fluorescent lighting (her son tends to squint in this lighting and may have a mild seizure disorder). She further noted concerns regarding (1) the large size of the middle school (compared to the elementary school), (2) her son’s likely over-stimulation with larger groups of people (more than 8) and (3) the fact that the building is on a busy street. She explained that she requested that Fitchburg install alarms on the doors to alert the teachers if he left without being noticed, but Fitchburg refused.
Mother testified that her son becomes aroused (and bolts to the door to go outside) when he hears the sound of heavy machinery, such as an 18-wheeler truck, lawn mower or snow plow; but she did not recall her son ever climbing out of a window. She acknowledged that the middle and elementary schools are in adjacent buildings which are on the same street. She noted that at school every month or month-and-a-half, staff give her son his medications an hour or so late. She acknowledged that her son has never been injured as a result of time-out, although once he complained of a sore back after being restrained in a chair.
Mother explained that she has not observed any benefit from her son interacting with typical peers; rather she has seen negative results from these interactions as her son learns negative behaviors, and she has observed him being ostracized by typical peers.
Mother testified that she visited and observed Seven Hills Academy for approximately two or three hours in May 2002, talking to staff and teachers, and briefly (5 to 10 minutes) observing (through a doorway) the class which her son would attend; she also had a tour of the entire building including classrooms and time-out area. Mother explained that she thought the setting would be “perfect” for her son, and that he would be safe there (there are alarms on the building doors). She noted, in particular, that she was impressed that Seven Hills focused on the “whole child”, including his community involvement, home life, behavioral functioning and activities of daily living.
· Lisa Shaw testified that she is a pediatric neuropsychologist, in full-time private practice, performing approximately sixty neuropsychological evaluations each year. Her resume and testimony reflect the following: in 1983, she obtained her PhD; in July 1985 she completed a two-year post-doctoral clinical fellowship at the Neuropsychology Service of the Developmental Evaluation Clinic at Children’s Hospital in Boston, MA, where she specialized in working with children with developmental disabilities and also saw children with autism; from September 1985 to August 1988 she worked as a clinical psychologist within the Somerville Public School System; from September 1988 to November 1990, she worked as a staff psychologist conducting neuropsychological assessments at the Gaebler Children’s Unit where 90% of the children she assessed had a brain dysfunction; and from January 1994 to the present, she has been in private practice. Exhibit P-11 (resume).
Dr. Shaw testified that she is licensed as a psychologist, over the past fifteen years she has completed about a hundred neuropsychological evaluations of children who have one or more of the disabilities exhibited by Student and are in a similar age range, and she has completed approximately twenty to twenty-five neuropsychological evaluations of children with the same combination of disabilities that are exhibited by Student.
Dr. Shaw testified and her written report reflects that, at the Parents’ request, she performed a neuropsychological evaluation of Student, which evaluation included observing and testing Student on October 17, 2003, interviewing Parents and speaking with Student’s lead teacher (Jeanne Carguilo) by telephone for approximately ten minutes. Dr. Shaw indicated that as part of her assessment, she reviewed three psychological assessments, an educational evaluation, an occupational therapy evaluation, a speech-language evaluation and an IEP (although she could not be sure which IEP she reviewed). Dr. Shaw explained that she has no knowledge of Student’s current program or the program proposed by Fitchburg nor any knowledge of Parents’ proposed program at Seven Hills Academy. Exhibit P-1 (report of Dr. Shaw).
Dr. Shaw testified that during her evaluation, Student was at times pleasant but was also at times rude and oppositional, requiring a significant amount of effort by Dr. Shaw to keep him on task. She noted that he very quickly vacillated from one mood to another, and as the tasks became more challenging during the evaluation, he became more distracted and less focused. Dr. Shaw found that Student appears to be a highly impulsive child, with poorly developed social skills, who exhibits a significant degree of emotional and behavioral dyscontrol.
Dr. Shaw testified that these behavioral difficulties are attributable, in large part, to neurobehavioral dysfunction; and these difficulties include autistic behavioral features which limit Student’s ability to interact socially and develop relationships with others, inflexible and perseverative thinking and behavior, poor judgement, and difficulty tolerating and managing transitions and changes in routine. Dr. Shaw further noted that some of these difficulties occur, in part, because Student does not enlist predictive thought processes which are important for controlling impulses and behavior. Exhibit P-1 (report of Dr. Shaw).
Dr. Shaw’s evaluation and testimony concluded that the neuropsychological findings are consistent with the following:
1. Severe dysfunction of frontal brain systems involved in directing, organizing and regulating behavior as evident in motor disinhibition;
2. Difficulty directing, sustaining and shifting attentional focus, with problems managing transitions and changes in routine;
3. Hurried and impulsive responding and reduced self-monitoring or performance of tasks;
4. Reduced engagement with tasks, particularly as they become more challenging;
5. Perseverative responding;
6. Difficulty regulating graphomotor output;
7. Emotional lability and difficulty predicting or anticipating consequences of his behaviors, so that he exhibits a great deal of behavioral dyscontrol;
8. Failure to enlist predictive thought processes important for controlling behavior; and
9. Generalized difficulty organizing and directing behavioral repertoires to effectively learn recall and demonstrate knowledge.
Her report and testimony also concluded that Student exhibits behavioral features of autism, including reported stereotypical and repetitive motor mannerisms; inflexible adherence to specific routines and ritual; and abnormal, restricted patterns of interest. She also found that her evaluation results “suggest” that Student functions, overall, within the “mildly retarded” to “borderline” range of abilities. Exhibit P-1 (report of Dr. Shaw).
Dr. Shaw testified that these multiple, significant disabilities pose significant obstacles to adaptive functioning, social interaction and learning – because Student is so easily frustrated, he becomes emotionally aroused and upset, making it difficult for him to sustain attention and requiring a great deal of effort to re-direct his attention back to the educational task at hand. Dr. Shaw further noted that because of his disabilities, Student needs a great deal of external monitoring and support from adults in order to learn.
Dr. Shaw testified that Student’s disabilities negatively impact upon Student in social situations since his autistic features result in Student’s not being able to relate easily to others. Dr. Shaw noted that Parents reported that Student has been known to light fires, harm pets, throw furniture, for example, and during her evaluation, Dr. Shaw observed Student being angry, oppositional and rude. From this, Dr. Shaw concluded that Student’s ability to relate to others is further hampered by his impulsivity and aggressiveness.
With respect to the likelihood that Student may be able to learn from typical peers, Dr. Shaw’s evaluation report further states:
[Student] is not now, nor has he ever been, likely to benefit from educational placement with typically developing children. Given the autistic disorder and his pattern of neuropsychological dysfunction, it is highly unlikely that he will benefit from modeling of typical peers’ behavior. He is more likely to stand out as an extraordinarily different individual and to experience increasing isolation from peers. Exhibit P-1.
In her testimony regarding this part of her report, Dr. Shaw opined that it is “questionable” whether Student could model and then execute the behavior or social responses of typical peers. Dr. Shaw explained that his behavioral controls and attentional focus are limited so that he does not have the attention and interaction skills necessary to effectively learn from others; also, he does not have the requisite judgement and cognitive controls to observe the behavior and then carry it out. She noted that she reached these conclusions on the basis of her evaluation of Student and his disabilities, and not on the basis of any experience that she may have had with similarly disabled children interacting with typical peers. She also explained her concern that if Student is placed with typical peers even for part of his day, this is not a good use of his time and will take away from opportunities to learn with similarly disabled children.
Dr. Shaw testified as to the multitude and severity of Student’s needs and limitations that need to be addressed through his educational program. She explained that a minimally acceptable educational program for Student would address his most important needs and allow him to make progress in those areas – she listed those areas, in particular, as functional academic skills, safety awareness and (most importantly) behavioral controls, with the ultimate goal of Student’s being able to function independently as an adult. Dr. Shaw’s report concluded that in order for Student to make gains in functional academics, adaptive skills and behavioral functioning so that he will be able to function more independently and competently as he grows older, his educational program should include the following:
1. A “comprehensive and integrated” twelve-month educational program which provides a safe environment;
2. Behavior management programming which includes systematic and consistent behavioral strategies, along with a high degree of positive reinforcement;
3. Specialized instruction in “functional academics” and development of domestic, community vocational and safety skills;
4. Opportunities to expand upon self-awareness that Student currently exhibits on occasion;
5. An educational program with “similar peers who face the same challenges that he does”; and
6. A staff of educators trained and experienced in working with children with autistic disorders, intellectual limitations and neurobehavioral dysfunction who understand that Student’s low frustration tolerance, difficulty tolerating transitions and changes in routine, perseverative behavior, emotional lability and behavior dyscontrol are neurobehaviorally-based and do not necessarily reflect oppositional or defiant behavior. Exhibit P-1.
Dr. Shaw testified that the phrase “comprehensive and integrated”, as used in her report, means a program in which all of his needs (that is, his need for social skills, adaptive living skills, behavioral controls and functional academics) are addressed in each part of his program. She further explained that she uses the term “functional academics” to mean academics applied to everyday life – for example, reading signs, counting change and telling time. She noted that the “adaptive skills” that need to be learned by Student include socialization skills, communication skills and other skills necessary to function in daily living.
Dr. Shaw testified that Student needs a small classroom (probably five to seven children) and a great deal of adult individual attention, with an adult sitting along side him, guiding and reinforcing him so that he can learn. She further explained that Student should be with “similar peers” – that is, other children who require a great deal of individual support to lean effectively. She opined that all of Student’s disabilities should be represented within the classroom although no other child need have precisely the same range and degree of disabilities as Student.
· Melissa Maguire testified that she is currently employed at Seven Hills Family Services where she has been the Assistant Vice President for the past three years; and previously (for one year) was the Director of Seven Hills Academy which is located in Devens, MA. She explained that in her current position, she has responsibility for overseeing all academic programs, including Seven Hills Academy. She testified that she received a masters degree in rehabilitation counseling in 1992, and since then has been working either in a consultant or administrative capacity within human services and special education.
Ms. Maguire testified that Seven Hills Academy functions for 235 calendar days during the year, with 195 days during the school year and 40 days during the summer. She explained that the middle school (grades 4, 5 and 6) at the Academy currently has two teachers, two assistant teachers and eight students; although all middle school students are currently taught within one class, soon the students will be divided up into two classes of four children each. She explained that all teachers are certified in special education or are working towards certification and have a waiver. She also noted that Seven Hills has on staff a physical therapist, a speech-language therapist, a music therapist and, as of June 30, 2003, an occupational therapist.
Ms. Maguire testified that at the middle school, the doors are “sensored” so that an alarm will ring if opened from the inside. She also described the physical layout of the classroom area, as well as two time-out rooms that can be accessed by staff as necessary.
Ms. Maguire testified that the mission of the Seven Hills Academy is to (1) develop educational programs unique to each child’s needs (for example, each child is provided the opportunity to develop reading and math skills at his or her own individual level); (2) reunify the child with the home school district as soon as that is appropriate; (3) develop each child’s functional skills – that is, skills relevant to functional tasks necessary to participate independently as an adult in society, such as banking, shopping, making telephone calls, cooking, functional reading (e.g., reading signs, directions) and functional writing.
Ms. Maguire testified that several weeks ago, she met with Student and his parents when they visited Seven Hills Academy. She explained that she had an opportunity to observe Student with other Seven Hills children for five to ten minutes, and she spoke with the teachers regarding their observation of Student while he interacted with the other children. She explained that in addition to speaking with Student’s parents, she has reviewed his recent evaluations (including Dr. Shaw’s neuropsychological evaluation) and reviewed his 2001-2002 IEP. Ms. Maguire explained that, based on this information and her observation of Student, she believes that Student would be appropriate for placement at Seven Hills and would benefit from the middle school program at Seven Hills, although she explained that any final determination regarding placement would be deferred by Seven Hills until receipt of a referral packet from the public school and after discussion with Student’s teachers.
Ms. Maguire testified that she does not have sufficient knowledge of Student to be able to determine within which group of students at Seven Hills Student should be placed. She explained that this decision would be made by Student’s Team once it is determined that he would be attending Seven Hills.
· The Seven Hills Academy Student Handbook explains the Academy’s mission, philosophy, program description, school calendar, class size and grouping, and various rules and expectations for children attending Seven Hills. The Handbook emphasizes the educational philosophy of individualizing instruction, programming and strategies so that what is taught is appropriate to each child. The Academy seeks to ensure the development and application of students’ skills in “natural environments” and to enhance each child’s opportunities for growth and independence. Exhibit S-2.
Information regarding specialized educational methods at Seven Hills Academy references and briefly describes various educational programs. Exhibit S-3.
· Jeanne Carguilo testified that for the 2002-2003 school year as well as during the past two school years (and the past two summers except for one week each summer), she has been Student’s lead teacher at the FLLAC elementary school program where she is employed as a special needs teacher. She explained that she taught for seven years before assuming her current position with FLLAC in 1994; she has taken numerous workshops relevant to teaching special needs children; and she is certified in elementary education and moderate special needs. She also explained that she received her masters degree in special education in 1975. Exhibit S-77 (resume).
Ms. Carguilo testified that as Student’s lead teacher during the 2002-2003 school year, she has been assisted by three classroom assistants, one of whom is dedicated to helping another child and one of whom is assigned, for the most part, to help only Student and one other child. She explained that the classroom is divided by a “T” shaped partition, with Student doing his academic work (with one other child) in one corner of the T where it is more quiet than the principal part of the classroom.
Ms. Carguilo testified that each fall when the academic year begins and Student has had a two to three week break after the end of summer school, he needs some reminding (perhaps once) how to do something and then he can do it himself; however, Student does not need to be re-taught these skills at this time, and therefore she has not found any indication of regression as a result of the three week summer break. She also testified that during the summer sessions, Student receives the same occupational therapy and speech language services, and works on the same IEP goals, as during the academic year. She also explained that the summer activities include functional educational opportunities such as choosing and buying snacks, acting as the cashier, and cooking and making their own lunch.
Ms. Carguilo testified that she would describe Student’s personality as, overall, very delightful; he is beginning to develop a sense of humor; he enjoys talking to adults more than children; he is interested in doing the best that he can (especially if the result is that others are proud of him); he is interested in what you say; and he is a “really neat kid” whom she enjoys being with.
Ms. Carguilo testified that at no time during the day does Student go any place without an adult with him, or near by and observing him, out of concern that he might leave the building or go some other place that would not be appropriate. She explained that during this year and the previous two academic years, Student has never left the building when he should not have done so or gone some place that would be inappropriate; nor has he ever tried to leave the classroom through one of its windows.
Ms. Carguilo testified that Student’s behavior in the classroom currently is “quite good”. She explained that when Student exhibits an inappropriate behavior in the classroom, he can be verbally re-directed successfully approximately 90% of the time, and the other times he may get “huffy” or anxious and verbally oppositional but then can be worked with by placing a hand on his shoulder, for example, to re-direct him and change his behavior, or by sitting down and talking with him. She explained, for example, that there is another child whom Student is very fond of sitting next to and with whom he is overly helpful, but the teachers are able to explain to Student what limits are needed and move Student to a different seat as necessary. Ms. Carguilo also noted that on one occasion Student became upset and apparently knocked over a bookcase (Ms. Carguilo did not observe this but it was reported to her), but Student has not otherwise exhibited physically aggressive behavior (for example, no throwing things within the classroom, knocking over furniture or otherwise being unsafe or disruptive), nor has there been unsafe behavior on field trips outside of school (for example, field trips have involved taking the commuter train to a science museum in Acton, and eating at a restaurant).
Ms. Carguilo testified that certain behavior strategies are used by the teachers to help Student regarding his behavior. For example, Student is interested in machinery and vehicles that make noise (for example, a snowblower, fire engine, police car, riding lawn mower), and so the teachers have set up guidelines pursuant to which Student can spend a limited amount of time observing (for example, when a lawn mower appears outside) and then must return to the classroom activity. She explained that another example of a guideline that has been used to work with his behavior is to allow him to visit the school’s snowblower and to ask five questions of the person responsible for the snowblower, and then to return to the classroom. Ms. Carguilo explained that since October or November 2002, the teachers have been able to work effectively with Student using these kinds of guidelines that allow Student to do at least part of what he wants to do, but within appropriate classroom limits; the result is that he has been able to understand and accept appropriate limits to his perseverative behavior. Ms. Carguilo’s 2003 end of the year written progress report further described these and other strategies which have successfully been used to address Student’s behavior. Exhibit S-81.
Ms. Carguilo testified that additional behavioral strategies are successfully utilized to assist Student with transitions and to help him not to become overly aroused or stimulated – for example, the teachers use a “countdown” to help Student anticipate a change in activities, and ten or fifteen minutes of a calming, enjoyable activity is typically used between more demanding activities. She explained that now he understands and accepts a teacher’s instructions that he must stop (or take a few minutes to finish) what he is doing.
Ms. Carguilo testified that during his first year with her (the 2000-2001 school year), Student had “extreme” problems with transitions from one activity to another, sometimes simply being unable to stop doing an activity, even after verbal warnings, until a teacher physically stopped him from continuing with the activity.
Ms. Carguilo testified that she utilizes positive reinforcement of giving Student activities that he enjoys and can look forward to; the teachers limit the amount of these enjoyable activities if Student’s behavior is inappropriate; and this system, which Student understands, has become very effective in limiting Student’s inappropriate behavior.
Ms. Carguilo testified regarding improvements in the area of social skills. She explained that Student has been learning the art of compromise – for example, he recently took a toy from another boy without asking but after being told by the other boy that Student should not have done that, Student put the toy back, asked permission to play with it and the other boy gave him permission. She also noted that she has observed that Student has made improvements regarding taking turns with other students, negotiating with others to meet his needs, and generally being more aware of others.
Ms. Carguilo testified that since February 2003, Student has been able to initiate contact with her when he has “issues” or concerns, leading to Student’s explaining his concerns to Ms. Carguilo and then an opportunity for him to talk through his concerns with her. She explained that this indicates a new ability to use words, rather than becoming frustrated or upset, to address his concerns. She also noted an improved ability to interact with adults through questions – having learned this year to ask a question, wait for and listen to the answer, and then ask a follow-up question. She explained that this year Student has also learned to express his needs better – for example, telling a teacher when he needs brushing (part of his sensory diet) or other assistance. She explained that a sensory diet is used successfully to help Student with his anxiousness and/or a high state of arousal. She further noted that Student has gotten better this year at being able to relax himself through breaks.
Ms. Carguilo testified that Student is integrated with typical children during lunch in the cafeteria, during recess and in his “specials” (integrated classes and activities which include library, music and gym). She explained that Student can effectively participate in some of the activities in the specials but not others because some activities are too stimulating or too complicated for him to understand or are otherwise inappropriate; as a result, the teachers have Student attend the specials selectively or participate only in some of the activities. She noted that Student enjoys listening to stories in the library, typically is able to participate in most or all of gym and until recently was participating in part of the music class. She also noted that Student has not participated in art because the size of the class and the amount of art work in the room has been too stimulating for Student so that he had a very difficult time in the class.
Ms. Carguilo testified that Student appears to benefit from interactions with typical peers, and has shown improvement in his ability to relate to and act appropriately with them. She explained, for example, that ten or twelve times this academic year, she noticed that Student was playing (without adult supervision) with a typical peer during recess, and occasionally it would be the typical peer who would ask Student to play. Similarly, she noted that this year, for the first time, Student has been sitting with and acting appropriately with typical peers (for example, listening to and showing interest in what a typical peer is saying) in the cafeteria during lunch although Student does not usually interact with a typical peer during lunch.
Ms. Carguilo testified that when she first began working with Student during the 2000-2001 academic year, Student was not able to tolerate eating in the cafeteria because of the noise and distractions there. She further noted that during last year, Student was able to eat in the cafeteria but would often want to sit with an aide for part of lunch, and did not listen to as much or show as much interest in what the typical children were saying.
Ms. Carguilo testified that Student would similarly be able to participate with typical children in Ms. Madden’s class in the FLLAC middle school program – for example, the “panther pals” and baseball with typical children, as described in Ms. Madden’s testimony.
Ms. Carguilo testified that these kinds of interactions with typical peers – recess, lunch and specials (for example, library, gym, music) — appear to be meaningful for Student as he enjoys playing and interacting with others, is learning how to be in a larger group and has the opportunity to model the behavior of typical children.
Ms. Carguilo’s testimony and her end of the year written report (exhibit S-81) indicated that Student has made slow but steady progress in reading this school year, at the beginning reading “simple” stories and words with short vowels and progressing so that he can now read longer, more complex stories; he is able to sound out many multi-syllable words; he can answer more difficult, several-part questions about what he has read; and with respect to factual questions, he can usually find the answers in the book and write the answers independently. She also noted that sometimes Student is now able to answer inference questions – that is, a question related to what is inferred, but not actually said, in a story – with some assistance from the teacher (for example, talking about the question but not answering it directly).
Ms. Carguilo’s testimony and her end of the year written report (exhibit S-81) indicated that Student has similarly made slow but steady progress in writing this school year, so that while he used to be writing “rambling” thoughts and needed reminding to write answers in complete sentences, he now is able to write paragraphs with a beginning, middle and end; he has an improved ability to self-edit for punctuation; he is able to write longer and more detailed sentences; he is willing to write on a wide array of subjects; and he independently answers comprehension questions in complete sentences. As an example of his progress, Ms. Carguilo explained that in April 2002, Student wrote about “[Student’s] Marvelous Medicine” based on a story read in class and assisted by an outline given to Student to structure his writing; but several months ago, Student wrote about what happened with a friend, generating all of the ideas himself and without the need for an outline (Ms. Carguilo asked Student several general questions to prompt him).
Ms. Carguilo testified that another example of Student’s writing (Exhibit P-15) further illustrated his ability to respond to an open-ended assignment to write about a day at Disney – Student decided what to write about, the teacher asked that he add more detail, and then Student expanded upon the story, following his own outline. Ms. Carguilo concluded that within the context of Student’s cognitive abilities and his other limitations, Student is making good progress in reading and writing. Exhibit S-22, first page.
Ms. Carguilo’s testimony and her end of the year written report (exhibit S-81) indicated that Student has made some progress in math, but less than in reading and writing. Ms. Carguilo concluded that, overall, Student’s progress in math has been slow and inconsistent, at times actually forgetting, at least temporarily, how to perform certain math skills and needing to be refreshed. She explained that Student needs “continuous practice” in order to internalize and retain his math skills.
Ms. Carguilo testified that the concepts involved in counting change have been worked on with Student for a year to a year and a half, and that because math is hard for him, it is difficult for him, at the outset, to understand the concept and he then needs a great deal of repetition and structure to learn. Ms. Carguilo testified that her classroom provides repetition and structure (including using real money, simulating a store, and providing practical opportunities to practice this skill); Student is trying hard and paying attention; and he is making more consistent progress this year although progress is slow.
Ms. Carguilo testified in May 2003 that Student was able to count like coins but could not count mixed coins unless he is provided assistance. Her end of the year report (exhibit S-81) and testimony in July was that by the end of the school year, Student had improved “significantly” so that he can easily count bills, but has greater difficulty with change.
Ms. Carguilo testified that Student is now able to do addition independently with regrouping; he struggles more with subtraction; if not reminded to slow down, he sometimes works too quickly and makes mistakes; and as the problems become more difficult, he needs reminders and prompts from a teacher. But, in general, Ms. Carguilo explained that this year Student has learned to be more accurate in math. In addition, Ms. Carguilo explained that Student has learned how to tell time at minute intervals using an analog clock (a clock with hands), but Student may take a full minute to perform this task.
· A progress report by Jeanne Carguilo in February 2003 noted that Student can begin to see “equivalent fractions when he can see shaded fractions on an illustration. This is a beginning.” Ms. Carguilo further wrote that Student continues to work on telling time, he can count bills up to $10 but not change, he needs continual practice to make change from $1, he can multiply by 2, 5, and 10’s independently, and he knows the mechanics to regroup on subtraction through 1,000 but he does not do it consistently. Exhibit S-2.
In this progress report, Ms. Carguilo further states that Student’s reading is at a “slow pace but pretty accurate” and when questions are asked, he answers accurately although he continues to have trouble answering questions on paper if they have not been reviewed previously. Exhibit S-2.
· An educational assessment was performed by Jeanne Carguilo in September 2002. The assessment was done as part of Fitchburg’s three-year re-evaluation. Exhibit S-10, P-7.
Ms. Carguilo administered the Woodcock-Johnson III Tests of Achievements Form A over the course of several days in September 2002. A comparison of test scores with previous Woodcock-Johnson test scores from November 2001 was as follows:
November 2001 September 2002
Letter-word identification grade 2.8 grade 3.0
Word attack grade 1.0 grade 3.1
Reading vocabulary grade 2.4 grade 4.0
Passage comprehension grade 2.6 grade 3.7
Reading fluency grade 2.9 grade 3.0
A summary of the math section of the tests showed that Student’s broad math skills were at grade level 3.7, math calculations were at grade level 3.9, and math reasoning was at grade level 3.5 when tested in September 2002. Exhibits S-10, P-7.
An educational report by Jeanne Carguilo on November 14, 2001, found that in math Student was at grade 4.0 for basic concepts, grade 2.8 for operations and grade 3.3 for applications. Exhibits S-28, P-8.
· An “exit report” was completed by Jeanne Carguilo on June 14, 2002. Ms. Carguilo reported that with a structured program, limit setting, many rewards built into his day and help from home, Student has made progress in many areas. The report notes that Student “thrives best in structured setting without a lot of distractions” as a lot of noise and activity can make him overreact, and he does best on days that are routine and he knows what to expect. Ms. Carguilo noted that for Student, socializing is difficult, and he prefers the company of adults who are more willing to engage him in conversation. The teacher also noted that math “requires constant review for [Student] to keep it fresh in his mind.” For example, on some days he can count coins to $1.00 and on another day he forgets the value of each coin. Exhibit S-17.
· A report entitled “Educational Observations, Accommodations and Recommendations for [Student]” was completed by Jeanne Carguilo on April 28, 2002. In this report, Ms. Carguilo explains that Student has made significant progress over the past two years – for example, he has progressed from just starting to learn his long vowels in reading, to now learning how to divide words into syllables and learning many of the different vowel combinations; he has progressed from answering the easy comprehension questions to trying to figure out the more complex and inferential questions; he has learned to add and subtract with regrouping, to count money to a dollar and other math concepts.
In her report, Ms. Carguilo noted that math is “more difficult for [Student] and more elusive.” The report further described significant improvements in his behavior – at first he was not able to control a lot of his behaviors and frequently had to be removed from classroom activities, but now he participates in most group sessions for the full length of time; last year he was not able to eat in the lunchroom or go to many specials; he now goes to lunch and recess and to most specials with an adult. Ms. Carguilo further notes that Student continues to want to control group situations with typical peers, but he has “made some progress in trying to be a team player” and “it would be good for him to still have the opportunity of integration, of being with his peers under supervised conditions.” Exhibits S-21, P-10.
· Dorothy Madden testified that she has been employed by FLLAC as a middle school teacher since the fall of 2002. She explained that prior to coming to FLLAC, she worked as a teacher of 1 st and 2 nd grade students with emotional and behavioral disabilities in a self-contained program from November 2000 to June 2002; spent four years (until 2000) with the May Center working with children with autism and PDD (aged 3 through 19 years) and their parents; worked in early intervention for ten years (until 1996) providing individual therapy (including education to address cognitive and behavior issues); and was a day care center teacher for one year after receiving her BA degree in 1986. Ms. Madden also testified that she is currently certified to teach special education children up to the 3 rd grade, and is working on her masters degree (expecting to receive the degree in December 2004) which will result in certification for kindergarten to 12 th grade; she is currently certified in the use of restraints through the Crisis Prevention Institute and Applied Non-Violence. Exhibit S-77 (resume and employee verification).
Ms. Madden testified that this academic year (2002-2003) she has a total of six children (all boys) in her middle school class (grades 5 th through 8 th ) and is assisted by two paraprofessionals who have been with FLLAC for three and four years, respectively; her program is primarily for children with a diagnosis of autism or PDD; and next academic year, if Student were to join the class, she would expect to have eight children (all boys) and would be assisted by three paraprofessionals. She explained that next year, she expects to have the children in her class ranging in age from 12 to 14 years old. She further noted that this year and next, all children have a diagnosis of autism or PDD, the children are reading at the 3 rd to 4 th grade level, the children are working in math at the 1 st to 6 th grade level, the children are working in written expression at the 2 nd to 5 th grade level. She further explained that her students are reading chapter books, and the reading and math programs are individualized for the children — Student would continue to use the Spires reading program and the Touch Point math program.
Ms. Madden testified that the overall approach of her classroom is functional academics — that is, teaching students the skills that they need to function independently as adults; with the result that practical applications are emphasized, such as going to a restaurant in order to practice deciding what to order, determining the amount of the meal, etc. She explained that each subject taught in her classroom is aligned with the Massachusetts curriculum frameworks, with individual modifications. She also noted that a child’s therapies (such as speech-language and occupational therapy) follow an integrated model, so that with Student, for example, the therapist would join the activity going on within the classroom and Student would receive his therapies, as provided in his IEP, within the classroom itself. Ms. Madden explained that in her classroom next year, Student’s schedule would be similar to that followed for him this academic year (2002-2003). Exhibit S-75 (current schedule).
Ms. Madden testified that on the basis of her review of Student’s IEP, she believes that Student would fall within the middle range of her class academically and socially, that she could implement immediately all of the accommodations called for in Student’s current IEP, that she would be able immediately to teach Student so as to address all of the goals and objectives in his current IEP, that she could implement immediately the sensory diet described in his current IEP, and that all of the speech-language accommodations could be implemented immediately in her classroom. Exhibits S-1 (IEP), S-3 (sensory diet), S-4 (speech-language accommodations). Ms. Madden further explained that all of the children in her class this year and next (except for one child who has needed restraint and who will be leaving at the end of this academic year) have minimum behavior problems (principally violation of personal space – for example, standing too close to another person or verbally interrupting another); each child can be re-directed with verbal prompts, and the behavioral strategies currently being used with Student (for example, to address his perseverative behavior) could be continued next year in her classroom. Ms. Madden further explained that she seeks to incorporate social skills into all aspects of her classroom, and she monitors the children’s activities of daily living (such as personal hygiene).
Ms. Madden testified that her classroom is located on the second floor in the Ayer Middle School on a wing with 5 th grade regular education classrooms. She explained that the windows open but no more than 6 inches with a safety bar across the windows, and that it would be difficult if not impossible for a child to fit through this space and escape through a window. She noted that there is florescent lighting (every other bulb is lit – not “real bright”), wall-to-wall carpeting, and a quiet area towards the back of the room where children can go to calm down. She also explained that no child is left unattended at any time, and when a child goes out of the room (for example, to one of the “specials”), a teacher or paraprofessional accompanies the child.
Ms. Madden testified that there are the following opportunities to participate in activities with typical children: her students go to regular education “specials” (for example, art, music, gym) for the appropriate grade of the child unless it is determined that the particular special would not be appropriate for a child; her children can go to one or more regular education academic classes if appropriate for the child; lunch is in the cafeteria with typical students; one or more typical children occasionally come to her classroom for purposes of conversation with her students; all of her children attend with typical students all of the middle school assemblies (lasting about one hour and occurring approximately every other month); “Panther Pals” has offered an opportunity after school once a week for her children to do arts and crafts, games, etc. with typical 7 th grade students for 90 minutes; recently the “Panther Pals” switched to playing baseball with typical students from the high school; and occasionally during recess, the children go to and participate in a gym class with regular education students.
Ms. Madden testified that these opportunities for interaction with typical peers have provided an opportunity to have social interactions and to model appropriate behavior and social skills of typical children – for example, when playing baseball with typical peers, her children learn how to lose appropriately (for example, when called out when running to a base) and turn taking (for example, when taking one’s turn to hit the ball).
Ms. Madden testified that she teaches in the FLLAC summer school, which provides a continuation of the academics and therapies for the children in her middle school program.
· Steven Bicchieri testified that he is currently employed by FLLAC Educational Collaborative as a Program Supervisor and Team Leader and has been in this position since August 2000. He explained that his responsibilities include supervision and coordination of educational services to ten classrooms, including Ms. Madden’s middle school classroom and Ms. Carguilo’s elementary school classroom; seven of these ten classrooms serve children with autism or PDD. He noted that he also is responsible for attending and chairing Team meetings (including all of Student’s Team meetings), and determining which students need an out-of-district placement. Exhibit S-77 (resume and job description).
Mr. Bicchieri testified that from July 1999 to July 2000, he was employed as an administrative specialist for the Wachusett Regional School District; from September 1996 to July 1999, was director of day educational services for the Perkins School in Lancaster, MA; from August 1994 to August 1996, was the assistant principal of the Robert F. Kennedy School in Lancaster, MA, where he also served as senior supervising teacher (September 1989 to July 1994) and classroom teacher (September 1983 to August 1989). He noted that he received a masters degree in educational leadership in 1996. Exhibit S-77 (resume and job description).
Mr. Bicchieri testified that he has gotten to know Student by reviewing his IEP, attending all of his Team meetings, being in Ms. Carguilo’s classroom a minimum of two hours a week and occasionally interacting with Student during those times. He explained that he supervises this classroom and is responsible to ensure that Student’s IEP is implemented.
Mr. Bicchieri testified that, in his opinion, Student is not in need of a private, out-of-district placement which would be more restrictive than the current and proposed FLLAC placements. He explained that he has recommended such an out-of-district placement for other children who have more severe behavior needs, but that Student’s behavior needs are not significant and can continue to be addressed successfully within a FLLAC placement. He opined that an out-of-district placement would be unnecessary and overly restrictive for Student.
Mr. Bicchieri testified that both Ms. Carguilo’s classroom and Ms. Madden’s classroom use similar teaching methodologies and behavior strategies. He opined that in 6 th grade, the same behavior strategies would be used with Student in Ms. Madden’s classroom as have been used with him in Ms. Carguilo’s classroom. He also noted that the middle school class has a more intense focus on social skills in groups. Exhibit S-77 (descriptions of the two programs). However, he noted that because, by age, Student should be in Ms. Madden’s classroom this year, because Student has made gains socially and behaviorally, and because the children in Ms. Carguilo’s classroom (as compared to Ms. Madden’s classroom) have less severe autistic behaviors, he believes that Ms. Madden’s classroom would provide a more appropriate peer group for Student during this academic year (2002-2003) as well as the next academic year. He believes that Student has made effective progress within Ms. Carguilo’s classroom this year and would also have made effective progress in Ms. Madden’s classroom had he been placed there for this academic year.
Mr. Bicchieri testified that within Ms. Madden’s classroom there is an “L” shaped partition which is wall-mounted and cannot be pulled over by a student, that both Ms. Madden’s classroom and Ms. Carguilo’s classroom have fluorescent lighting with no significant difference in brightness between the two rooms, that the windows within Ms. Madden’s classroom cannot be opened more than 6 inches and that there are no alarms installed on any of the doors within the elementary or middle school because alarms are not necessary to ensure the safety of the children.
· Debra Roberts testified that for this past year she has been employed by Fitchburg as an inclusion specialist, and previously for 7 months was a consulting school psychologist for Fitchburg. See also her resume, Exhibit S-77 for further employment history and educational background.
Ms. Roberts testified that, on the basis of her psychological assessment of Student (exhibits S-6, P-6, discussed in more detail below) and her knowledge as an inclusion specialist, Student is benefiting and will likely continue to benefit from being integrated with typical peers during certain activities and specials (such as music, gym and library). She noted that benefits expected from children with Student’s disabilities include modeling how other children respond in social and academic circumstances, having a sense of belonging in a larger community that includes typical children and improving one’s abilities to function successfully within the community and work environments, especially when the student becomes an adult. Ms. Roberts also reviewed the results of Student’s achievement test (the Woodcock Johnson) in comparison to his cognitive abilities (as reflected in IQ scores) and concluded that Student’s achievement scores generally exceed what one would expect from a student with his cognitive abilities. Exhibits S-6, S-10, S-28, P-6, P-7, P-8.
· A psychological assessment was performed by Debra Roberts on October 8 and 10, 2002. The assessment was done as part of Fitchburg’s three-year re-evaluation of Student. Exhibit S-6, P-6.
Behavioral observations by Ms. Roberts indicated that during a language arts lesson, Student remained somewhat focused on tasks presented to him while needing verbal redirection, and he appeared to be motivated to complete his assignments using a behavior chart. Observation of a whole group activity indicated that Student needed “constant” redirection in order to stand in one spot in the group, and he seemed preoccupied with one of his classmates. During the evaluation, Student easily established rapport, maintained good eye contact, was very cooperative, was not distracted and appeared to put forth his best effort on all tests administered. Exhibit S-6, P-6.
The evaluation found that Student’s general cognitive functioning is within the intellectually deficient range, as measured by the Wechsler Intelligence Scale for Children – Third Edition. His overall reasoning abilities exceed those of approximately 2% of children his age, with a full-scale IQ of 68, with a significantly higher score on nonverbal or performance scale IQ of 75 as compared to a verbal IQ score of 64. Relative weakness was noted on tests involving verbal comprehension, abstract verbal reasoning, processing speed, and attention and concentration. Exhibits S-6, P-6.
The social and emotional tests (Student completed the Self-Report of Personality of the Behavioral Assessment System for Children) indicated that Student’s “feelings of tension and stress in social situations are not a problem for him” and that he feels comfortable with his ability to relate to others. Exhibits S-6, P-6.
· Kathleen Raftery testified that she is currently employed by Fitchburg as its Director of Student Services/Special Education, a position she has held for the past 6 years. She explained that also she has previously been a special education teacher for 12 years, teaching children with disabilities similar to Student’s disabilities, and she holds a masters degree in educational leadership (1994).
Ms. Raftery testified that through others’ testimony in this case and her review of Student’s progress reports, she is aware that others have concluded that Student’s progress in math over the past three academic years has been inconsistent and an area of relative weakness. She opined that for someone with Student’s disabilities, it may be helpful to learn practical math principles (such as counting money or telling time) within the context of experiences that are actually relevant to him within his school day, at home or in the community – for example, counting the amount of money that Student actually has or that he needs to have in order to buy something which he desires.
Ms. Raftery testified that it may be useful for Student to be assessed by someone with expertise in teaching math to a child with Student’s disabilities, for the purpose of proposing additional or different strategies for math instruction for Student. She explained that a consultant from the May Center, who currently is on contract with the FLLAC Educational Collaborative, would have the expertise to perform this evaluation.
FINDINGS AND CONCLUSIONS
A. Exclusion of Documents and Testimony as a Result of Alleged Discovery Violations
At the beginning of the first day of Hearing (March 26, 2003), the parties argued Fitchburg’s Motion in Limine , which sought to exclude certain documentary evidence and preclude Parents’ expert (Lisa Shaw) from testifying. The Motion was denied on March 26 th , and the parties were advised that the Hearing Officer would provide his rationale within this Decision.
Fitchburg’s principal argument in support of the Motion was that Parents had not provided documents in a timely manner in response to Fitchburg’s request for production of documents. The timeframes allegedly violated by Parents had not been set by order of the Hearing Officer, but rather reflected a date agreed upon by the parties in lieu of an earlier deadline pursuant to BSEA Hearing Rules.
Procedural rules governing BSEA proceedings explicitly authorize a Hearing Officer to preclude evidence from admission where a party has failed to provide discovery in a timely manner. However, the applicable procedural rule provides for these sanctions after a Hearing Officer issues a discovery order which is then violated by a party.3
Another BSEA Hearing Officer (Sandra Sherwood) has interpreted this procedural rule as requiring, first, a Hearing Officer’s order regarding production of discovery and, second, a violation of this order before the Hearing Officer may order sanctions for a discovery violation.4
I also note that Rule 37(b)(2) of the federal Rules of Civil Procedure includes language similar to that found in the above-quoted administrative rule (801 CMR 1.01(8)(i)). The decided cases (including a First Circuit Court of Appeals decision) and the commentators are consistent in the view that Rule 37(b)(2) requires two things as conditions precedent to a court considering sanctions: a court order must be in effect, and the order must be violated.5
For these reasons, I am persuaded that I may not order the requested evidentiary limitations absent a violation of an order of a BSEA Hearing Officer. Since no such order exists in the present dispute, Fitchburg’s Motion in Limine was denied.6
B. Right to a Free Appropriate Public Education
Student is an individual with a disability, falling within the purview of the Individuals with Disabilities Education Act7 and the state special education statute.8 As such, Student is entitled to a free appropriate public education (hereafter, FAPE).9 Neither his eligibility status nor his entitlement to FAPE is in dispute.
FAPE requires that the individualized education program (hereafter, IEP) be tailored to address a student’s unique needs in a way reasonably calculated to enable the student to make meaningful educational progress in the least restrictive environment.10 Massachusetts regulations also require that Student’s IEP be “ designed to enable the student to progress effectively in the content areas of the general curriculum.”11
The principal issue presented is whether the programming and specialized services embodied in the School District’s proposed IEP are consistent with this legal standard .
Parents take the position that the proposed IEP is inappropriate because the FLLAC placement set forth within the IEP denies Student FAPE. Parents assert that in order to make meaningful or effective educational progress, Student must be placed in a private, out-of-district school serving only students who have a disability, and more specifically, Parents seek placement at the Seven Hills Academy.
I will first consider whether Fitchburg’s current and proposed future placement at FLLAC, pursuant to the most recent IEP, is appropriate – that is, addresses Student’s unique needs in a way reasonably calculated to enable him to make meaningful and effective educational progress. I will then separately address the least restrictive environment mandate incorporated within state and federal special education law.
C. Appropriateness of the FLLAC Placement Pursuant to Fitchburg’s IEP
1. Student’s disabilities and their implications to his educational development .
Student has been diagnosed with a combination of significant disabilities. These include Autistic Spectrum Disorder, Obsessive/Compulsive Disorder, Attentional Deficit Disorder with Hyperactivity, and severe frontal brain dysfunction. He has been taking prescribed medications, including Metadate for attentional problems, Luvox for obsessive compulsive disorder symptoms and Clonidine for sleep. Testimony of Mother, Carguilo, Shaw; exhibits P-1, P-13, S-1, S-6.
Student was most recently seen for psychological assessment by the Fitchburg school psychologist (Debra Roberts) in October 2002. Student was administered the WISC III and scored, overall, in the upper boundary of the “mildly retarded” range of intellectual functioning (full scale IQ of 68, verbal IQ of 64 and performance IQ of 75). Testimony of Roberts; exhibits P-1, S-6.
Student’s neurobehavioral dysfunction, in interaction with autistic behavioral features, poses significant obstacles to adaptive functioning, social interaction and learning. Student can be impulsive, with poorly developed social skills, and he sometimes exhibits a significant degree of emotional and behavioral dyscontrol. His behavioral difficulties (attributable, in large part, to neurobehavioral dysfunction) include autistic behavioral features which limit his ability to interact socially and develop relationships with others, inflexible and perseverative thinking and behavior, poor judgement, and difficulty tolerating and managing transitions and changes in routine. Because he can be easily frustrated, he sometimes becomes emotionally aroused and upset, making it difficult for him to sustain attention and requiring assistance from others to re-direct his attention back to the educational task at hand. In addition to these functional impairments, Student is cognitively limited as reflected in his full scale IQ of 68 and diagnosis of mild retardation. Testimony of Mother, Carguilo, Roberts, Shaw; exhibits P-1, P-13, S-1, S-6.
In summary, Student’s array of disabilities impacts significantly upon his capacity both to act and function in ways that are socially appropriate and to make progress regarding academics. I now review what progress Student has made (and is likely to make pursuant to Fitchburg’s proposed IEP) in these areas, beginning with his academics, and consider whether this progress meets the FAPE standards.
2. Student’s progress regarding math .
Student has been taught basic math skills (such as addition and subtraction) and functional skills (such as counting money and telling time). The classroom has provided repetition and structure as well as practical opportunities to practice math skills (including using real money and simulating a store).
Overall, Student’s math progress has been slow and inconsistent. Math is not considered an area of strength for Student. He has needed “continuous practice” in order to internalize and retain his math skills. In certain areas, he has forgotten how to perform math skills and needed to be refreshed. This pattern of learning is likely to continue. Testimony of Carguilo, Mother; Exhibit S-21, S-81, P-10
For example, concepts involved in counting change have been worked on with Student for approximately a year and a half. By the end of the 2002-2003 school year, Student had improved so that he could easily count bills, but he continued to have difficulty with change. On some days he can count coins to $1.00 and on another day he forgets the value of each coin. Testimony of Carguilo; Exhibits S-8, S-17, S-81.
Student has learned how to tell time at minute intervals using an analog clock (a clock with hands), but he may take a full minute to perform this task. By the end of this school year, Student was able to do addition independently with regrouping, although he continued to struggle with subtraction. If not reminded to slow down, he sometimes works too quickly and makes mistakes; and as the problems become more difficult, he needs reminders and prompts from a teacher. Testimony of Carguilo; Exhibit S-81.
Mother’s testimony of her observations of Student was consistent with the school district’s evidence of inability to make steady progress in math concepts and applications. For example, Mother explained that in April 2002 Student may have been able to count money to a dollar but can now no longer do so consistently. Testimony of Mother.
A summary of the math section of the tests from September 2002 showed that Student’s broad math skills were at grade level 3.7, math calculations were at grade level 3.9, and math reasoning was at grade level 3.5. Exhibits S-10, P-7. An educational report from November 2001, found that in math Student was at grade 4.0 for basic concepts, grade 2.8 for operations and grade 3.3 for applications. Exhibits S-28, P-8.
Pursuant to Student’s proposed IEP, placement within the FLLAC middle school program next year (2003-2004) would provide continuation of what Student has been taught in math within the FLLAC elementary school program, and would use the same math program (Touch Point). Testimony of Madden, Bicchieri, Carguilo. It seems likely that progress in this area would be similar to what it has been during the 2002-2003 school year pursuant to Fitchburg’s proposed IEP.
3. Student’s progress regarding language arts .
Utilizing a phonics reading program that appears to be appropriate (the Spires reading program), Student has made slow but steady progress in reading this school year, so that he can now read longer, more complex stories; he is able to sound out many multi-syllable words; he can answer more difficult, several-part questions about what he has read; and with respect to factual questions, he can usually find the answers in the book and write the answers independently. Sometimes Student is now able to answer inference questions – that is, a question related to what is inferred, but not actually said, in a story – with some assistance from the teacher (for example, talking about the question but not answering it directly). Student had been able only to read “simple” stories and words with short vowels, answer only easy comprehension questions and not be able to respond to inferential questions. Student’s current reading program would be continued next school year at the FLLAC middle school program. Testimony of Carguilo, Madden; exhibits S-21, S-81, P-10.
Student has made similar progress in writing. While he used to be writing “rambling” thoughts and needed reminding to write answers in complete sentences, he now is able to write paragraphs with a beginning, middle and end, he has an improved ability to self-edit for punctuation, he is able to write longer and more detailed sentences, he is willing to write on a wide array of subjects, and he independently answers comprehension questions in complete sentences. As an example of his progress, his teacher explained that in April 2002, Student wrote about “[Student’s] Marvelous Medicine” based on a story read in class and assisted by an outline given to Student to structure his writing, while more recently Student wrote about what happened with a friend, generating all of the ideas himself and without the need for an outline (the teacher asked Student several general questions to prompt him). Testimony of Carguilo, Madden; exhibits S-22 (first page), S-81.
In general, progress within language arts, as reflected within Student’s classroom work, has been slow, with the above-described progress occurring over the course of one or several years, but the progress has nevertheless indicated a steady, meaningful improvement within the area of language arts, and it appears to be the result of an education program that addresses Student’s individual needs in this area.
Similarly, standardized testing revealed areas of significant progress in language arts. Administration of the Woodcock-Johnson III Tests of Achievements Form A in November 2001 and then again in September 2002 revealed significant improvement in word attack (improved from grade 1.0 to grade 3.1), in reading vocabulary (improved from grade 2.4 to grade 4.0), and in passage comprehension (improved from grade 2.6 to grade 3.7). Exhibits S-10, S-28, P-7, P-8.
Parents provided no credible evidence to rebut the testimony and documents presented by the School District with respect to the modest but steady progress regarding language arts. The only rebuttal evidence came from testimony from Mother. Mother explained that she has seen little progress in reading at home, but she also made it clear that she has little knowledge of Student’s academic work at school and that Student typically completes his homework before he arrives home from school. Testimony of Mother.
Pursuant to Student’s proposed IEP, placement within the FLLAC middle school program next year (2003-2004) would provide continuation of what Student has been taught in language arts within the FLLAC elementary school program, using the same reading program (Spires). Testimony of Madden, Bicchieri, Carguilo. It seems likely that progress in this area, pursuant to Fitchburg’s proposed IEP, would be similar to what it has been during the 2002-2003 school year.
For these reasons, I find that FLLAC’s program results in meaningful and effective progress in the area of language arts.
4. Student’s progress regarding his behavior and related social skills .
I note at the outset the importance of Student’s making progress regarding his behaviors and related social skills. As Parents’ expert persuasively testified, for Student’s educational program to be successful, it must teach him so that, eventually, he will be able to function independently as an adult. Of all of his various deficiencies, the ones that potentially place the most limits on his ability to become a functioning, independent adult within the larger community are his behavioral limitations and related social deficits. Testimony of Shaw, Carguilo; exhibit P-1.
The IDEA emphasizes the importance of special education assisting a student to function independently in the community, with the IDEA stating as one of its purposes:
to ensure that all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs and prepare them for employment and independent living . . . .12
Student is described as pleasant and compassionate towards others, and is generally a polite child who responds well to behavioral rewards with the result that he can be helpful around the house, doing chores in exchange for a token reward. Testimony of Mother.
At the same time, however, Student’s disabilities have significantly impacted upon his family and home environment. His Mother has found that he lacks patience, has little understanding of time, and seeks immediate gratification – for example, when he wants to speak, he speaks, without appropriate self-control. Student is usually not aware of his own body space and has spatial difficulties, so that he may not keep an appropriate distance from others. Testimony of Mother.
Mother also described Student’s personality as anxious “most of the time”, with occasions when he becomes over-stimulated and physically anxious — for example, when he encounters a group of people (eight or more) or is unable to express verbally his emotions. This has resulted in stereo-typical behavior (for example, hand-flapping and biting his hands). Student’s behavior occasionally escalates to the point of engaging in self-injurious behavior (such as head-banging) and destroying property (for example, throwing things and smashing objects in the home). Testimony of Mother.
Mother testified, however, that with an increase in medications approximately 5 or 6 months ago and as a result of behavior management techniques at home and school, these behaviors and incidents have decreased, her son has become more compliant, and he is more easily re-directed. Student’s proposed 6 th grade teacher (Ms. Madden) testified that she would be available to provide additional parent training to address behavior problems that may be occurring at home. Nevertheless, Student continues to have difficulties with his behaviors at home and in the community, so that he continues to need to be monitored, with behaviors addressed by an adult outside of the school environment. Testimony of Mother.
Just as Student has demonstrated significant behavior difficulties but has improved his behavior and social skills at home and with his family, Student has made noteworthy progress in these areas at school. For example, when Student first attended the FLLAC elementary school program during the 2000-2001 academic year, he was not able to tolerate eating in the cafeteria because of the noise and distractions. During the 2001-2002 academic year, Student was able to eat in the cafeteria but would often want to sit with an aide for part of lunch, although he often did not listen to or show interest in what the typical children were saying. During the 2002-2003 academic year, Student has been sitting independently with and acting appropriately with typical peers — for example, listening to and showing interest in what a typical peer is saying. Testimony of Carguilo; exhibits S-21, P-10.
During the 2000-2001 school year, Student had “extreme” problems with transitions from one activity to another, sometimes simply being unable to stop doing an activity, even after verbal warnings, until a teacher physically stopped him from continuing with the activity. By the 2002-2003 school year, behavioral strategies had been successfully utilized to assist Student with transitions and to help him not to become overly aroused or stimulated – for example, the teachers use a “countdown” to help Student anticipate a change in activities, and ten or fifteen minutes of a calming, enjoyable activity is typically used between more demanding activities. Now Student understands and accepts a teacher’s instructions that he must stop (or take a few minutes to finish) what he is doing, allowing transitions to proceed smoothly. Testimony of Carguilo.
During the beginning of the 2001-2002 school year, Student was not able to control his behaviors and frequently had to be removed from classroom activities, but by the end of that school year, he was participating in most group sessions for the full length of time.
At school this past year (2002-2003), Student has exhibited none of the extreme behavior difficulties which have occurred at home this year, such as self-injurious behavior, head-banging, and destruction of property (e.g., throwing things and smashing objects) nor has Student exhibited the stereotypical behaviors (e.g., hand-flapping and biting his hands) reported by Mother to have occurred at home. Testimony of Carguilo, Bicchieri; exhibits S-21, P-10.
Much of this success, particularly during the 2002-2003 school year, appears to be the result of behavioral guidelines, implemented since October or November 2002, to allow Student to do at least part of what he wants to do, but within appropriate classroom limits. The result is that Student has been able to understand and accept appropriate limits to his perseverative behavior. Testimony of Carguilo; exhibit S-81.
Success in addressing Student’s behavior has also been attributable to his learning how to address his concerns through words, rather than to express them through behavior. Since February 2003, Student has been able to initiate contact with his teacher when he has “issues” or concerns, leading to Student’s explaining his concerns to his teacher and then an opportunity for him to talk through his concerns with her. This indicates a new ability to use words to avoid becoming frustrated or upset. Testimony of Carguilo.
Student has made noteworthy progress at school in the area of social skills. In their closing argument Parents acknowledge these gains. Student has recently shown an improved ability to interact with adults through questions – having learned this year to ask a question, wait for and listen to the answer, and then ask a follow-up question. Also, this year for the first time, Student has been sitting with and acting appropriately with typical peers (for example, listening to and showing interest in what a typical peer is saying) in the cafeteria during lunch although Student does not usually interact with a typical peer during lunch. Testimony of Carguilo.
Student has been learning the art of compromise – for example, he recently took a toy from another boy without asking but after being told by the other boy that Student should not have done that, Student put the toy back, asked permission to play with it and the other boy gave him permission. Student has also made improvements regarding taking turns with other students, negotiating with others to meet his needs, and generally being more aware of others. Testimony of Carguilo.
Student has similarly made progress this year through development of self-advocacy and self-help strategies – for example, being able to relax himself through breaks, and initiating contact with his teacher and aides when he needs brushing (part of his sensory diet) or other adult attention. Testimony of Carguilo.
Fitchburg’s success in working with Student’s behavioral issues stems directly from the FLLAC teacher’s skillful employment of individualized behavioral strategies which would be continued next year at the FLLAC middle school program pursuant to the Fitchburg IEP. Mother has successfully adopted similar strategies at home, and FLLAC staff are available to continue to work with Parents to help them address behaviors at home. In addition, an individualized sensory diet (for example, brushing Student) has been used successfully to help Student with his anxiousness and/or a high state of arousal, and this sensory diet would similarly be implemented at the FLLAC middle school. Testimony of Mother, Carguilo, Madden, Bicchieri; exhibit S-73.
In sum, the credible and unrebutted testimony of the school witnesses was that within the classroom and other school contexts (including field trips to the community and school wide events such as assemblies), Student has made marked and consistent improvement with respect to his behavior and social skills, and that these improvements are likely to continue. For these reasons, I find that Fitchburg’s program at the FLLAC educational collaborative results in Student’s making meaningful and effective progress regarding his behavior and social skills, and that these gains are central to his overall educational progress.
5. Testimony and written report of Parents’ expert .
Parents provided one expert witness (Lisa Shaw). Dr. Shaw testified that she did not visit Student’s current program, Fitchburg’s proposed program or Parents’ proposed program. She also explained that she had no specific knowledge of Student’s current IEP nor did she have any discussions with FLLAC teachers or other staff (other than a ten minute telephone conversation with Student’s teacher, Ms. Carguilo). As a result, neither Dr. Shaw’s testimony nor her written report addressed the adequacy or appropriateness of the special education and related services or placement described in the most recently-proposed IEP. Similarly, Dr. Shaw made no comment upon the question of whether Student has made educational progress within the FLLAC placement. Testimony of Shaw; exhibit P-1.
Instead, Dr. Shaw evaluated Student’s strengths and weaknesses and made general recommendations (in her testimony and written report) regarding the kind of educational program that should be in place for Student (her recommendations are described above within the Statement of the Evidence section of this Decision). Since neither Dr. Shaw nor any other expert witness sought to apply her general criteria to Fitchburg’s most recently proposed IEP (including the FLLAC placement), it is not possible to know with any degree of certainty whether Dr. Shaw would find Student’s IEP to be appropriate.
However, it appears that, with one significant exception which will be discussed separately below in this Decision (see section entitled “Right to Special Education in the Least Restrictive Environment”), Student’s IEP (including placement) as proposed by Fitchburg, generally satisfies Dr. Shaw’s criteria. As explained in greater detail in other parts of this Decision, Fitchburg’s FLLAC placement for Student has provided (and continues to offer) him a safe, twelve-month educational program which addresses social skills, adaptive living skills, behavioral controls and functional academics. More specifically, Student’s behavior programming includes systematic and consistent behavioral strategies, along with a high degree of positive reinforcement; the program has opportunities to expand upon his self-awareness; Student is provided functional academics (for example, learning to count change and tell time); his placement is with similar peers (the proposed placement in the middle school offers more appropriate peers than the stay-put placement in the elementary school); and the FLLAC staff of educators are trained and experienced in working with children with Student’s disabilities. These are the principal criteria set forth by Dr. Shaw.
I also note that in the area of behavior controls (perceived by Dr. Shaw to be the most important area to be addressed for purposes of Student’s educational development and ability to function independently), Fitchburg has been particularly successful and Student has made significant gains, as discussed in detail above.
When looking to specific details of Dr. Shaw’s recommendations, it is possible to find differences between what she recommended and what is being provided (and proposed) pursuant to the school district’s IEP. For example, Dr. Shaw recommended a small classroom of “probably” five to seven children; whereas Fitchburg’s proposed classroom for next year has eight children. Dr. Shaw recommended that Student’s classroom have a group of “similar peers” – that is, other children who require a great deal of individual support to learn effectively with all of Student’s disabilities represented within the classroom; whereas Fitchburg’s proposed classroom has a group of peers who are similar to Student in their primary disability of autism or PDD and who require significant individual support, but it is not clear that they reflect all of Student’s disabilities. However, no evidence was proffered that would support the conclusion that these specific differences (between Dr. Shaw’s recommendations and the Fitchburg IEP) have educational significance.
I conclude that to the extent that there are differences between Dr. Shaw’s recommendations and Fitchburg’s proposed program, there is no evidentiary support for the proposition that these difference would have any significant impact on Student’s educational progress.
D. Right to Special Education in the Least Restrictive Environment
I now turn to the principal area of disagreement between the recommendations of Parents’ expert (Dr. Shaw) and the IEP proposed by Fitchburg.
The IDEA mandates that a free, appropriate education be available to all eligible special needs children. Within this general mandate, the IDEA provides a specific directive prescribing the environment within which children with special needs are to receive their education. The IDEA provides that each state must establish policies and procedures to assure that:
To the maximum extent appropriate, children with disabilities . . . are educated with children who are not disabled , and special classes, separate schooling , or other removal of children with disabilities from the regular educational environment occurs only when the nature or severity of the disability of the child is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily .13
As a result, a child’s special education must include participation as much as possible in the same activities as typical children so long as the child’s disability does not prevent him from benefiting educationally.14
Parents, in their closing argument, agree that Student should have the opportunity to participate in social situations with nondisabled peers, but they point out that these opportunities already occur within the community, outside of school. Parents argue that Student’s attending regular education classes (for example, in the areas of music, library or physical education) provides him no educational benefit and takes time away from learning with similar peers. Parents therefore take the position that Student should attend a school which is entirely segregated from typically developing children. With all due respect to Parents, I disagree for the following reasons.
The testimony of Student’s teacher (Ms. Carguilo) who has direct knowledge of Student within the classroom on a day-to-day basis was persuasive that Student has made notable progress in his ability to interact appropriately with typical peers, that Student has gained significant benefit from his exposure to typical children at his educational program, and that he is likely to continue to do so. For example, Ms. Carguilo testified as to how, during the 2002-2003 academic year, Student has been able to sit appropriately with typical children during lunch and listen to and indicate an interest in what is being said by the typical child. Ms. Carguilo also testified that ten or twelve times this academic year, she noticed that Student was playing (without adult supervision) with a typical peer during recess. Student appears to enjoy and, at times, seek out this contact with typical peers. It is apparent that Student’s social skills and behavior have improved to the point that he has been able to interact successfully with typical peers. Testimony of Carguilo.
I find that Student’s proposed program includes significant opportunities for Student to benefit from participation with typical peers within the middle school, which Student would likely be able to take advantage of both in social contexts (such as the cafeteria) as well as in some of the specials (for example, music). Benefits have been and would likely continue to include (1) modeling typical children; (2) learning how to interact and communicate successfully with typical children; and (3) being part of a larger and more integrated community. Testimony of Madden, Roberts, Carguilo. As explained in other administrative and judicial decisions, the development of social and communication skills as a result of interaction with and modeling of nondisabled peers are important benefits that a child may obtain from integrated activities and classes but are not available in a segregated school environment.15
Parents’ expert (Dr. Shaw) held a different perspective regarding this issue. In her written report (exhibit P-1) and testimony, Dr. Shaw unequivocally supported Parents’ position that Student would likely obtain no educational benefit from exposure to typical peers. Her written report provides, in relevant part:
[Student] is not now, nor has he ever been, likely to benefit from educational placement with typically developing children. Given the autistic disorder and his pattern of neuropsychological dysfunction, it is highly unlikely that he will benefit from modeling of typical peers’ behavior. He is more likely to stand out as an extraordinarily different individual and to experience increasing isolation from peers.
With all due respect to Dr. Shaw (whom I found, in general, to be a professional and credible witness), I find her opinion in this regard neither reliable nor persuasive for the following reasons.16
First, I do not find anything within Dr. Shaw’s testimony, written report (exhibit P-1) or resume (exhibit P-11) to indicate that she has any particular expertise regarding the mainstreaming of children with disabilities similar to those of Student.
Dr. Shaw testified that she could not recall any particular experience that she has had regarding mainstreaming of children with disabilities similar to that of Student. Dr. Shaw further testified that she reached the above-quoted conclusions on the basis of her evaluation of Student and his disabilities, rather than on the basis of any experience that she may have had with similar children interacting with typical peers.
For these reasons, I find that there has been no showing that Dr. Shaw’s expertise or experience extends to the mainstreaming of children with disabilities similar to those of Student.
Second, I find that Dr. Shaw reached the above-quoted conclusions on the basis of incomplete factual knowledge of Student’s strengths and weaknesses during the school day.
Dr. Shaw’s evaluation and her conclusions and recommendations were based on formal assessments (either performed or reviewed by Dr. Shaw), behavioral observations of Student during the evaluation, and an interview with Parents from which Dr. Shaw learned not only about Student’s history but also about his behavior. Dr. Shaw noted Student’s aggressive behavior (including fire setting, throwing furniture and other objects) as reported by Parents. She also found that Student does not carefully attend to the behavior of others apparently based, in large part, from information provided by Parents. In her report, Dr. Shaw wrote about Student’s difficulty socializing with peers, and explained in her testimony that this part of her report was based on Parents’ report to her. Dr. Shaw then concluded that Student’s behavior and lack of ability to focus without adult support interfere with social relationships with typical peers and further interfere with Student’s ability to model and learn from typical peers. Testimony of Shaw; exhibit P-1.
Dr. Shaw apparently had no understanding of how Student has behaved and interacted with peers at school, other than through Parents. Student’s teachers observed behavior and social skills at school, far different than what Mother reported to be her experiences with Student. Mother testified that she has little knowledge or information as to how Student behaves at school. The credible and unrebutted testimony of Student’s teacher was that Student has not exhibited at school the aggressive behaviors relied upon by Dr. Shaw. Testimony of Carguilo. For these reasons, I find that Dr. Shaw based her conclusions, in part, upon incomplete factual information regarding Student.
Third, I find that Dr. Shaw made assumptions in the above-quoted language from her report which are disproven by the overwhelming evidence in this case. Dr. Shaw believed that Student has not and never would likely benefit from modeling of typical peers’ behavior and is likely to stand out as an “extraordinarily different” individual and to experience increasing isolation from peers. As explained above, the unrebutted testimony was that Student has not experienced isolation as someone “extraordinarily different” from typical peers, but rather has interacted successfully with regular education students in a variety of ways, demonstrating an increased ability over the past several years to benefit from these interactions. Testimony of Carguilo.
I conclude that Dr. Shaw’s opinions on this issue are not based on demonstrated expertise or experience, rely upon incomplete factual information, and are disproven by what has actually occurred over the past school year. Accordingly, I find Dr. Shaw’s opinion on this issue to be unreliable and unpersuasive. Parents offered no other expert evidence in support of their position regarding this issue.
For these reasons, I find that the FLLAC placement provides the least restrictive placement appropriate for Student.
E. Parents’ Concerns Regarding the Middle School Placement
Student would normally have been in a 5 th grade classroom during this (2002-2003) academic year. The FLLAC transition program that he has attended since the 2000-2001 academic year ends at the 4 th grade, and children in this program then attend the FLLAC middle school program beginning in 5 th grade. However, prior to the beginning of this academic year, Parents had the opportunity to visit the FLLAC middle school classroom which Student would attend, and made a decision to reject placement into the middle school.
Although not agreeing with this decision, the School District accommodated Parents’ concerns and continued Student’s placement within the FLLAC elementary school program (with Ms. Carguilo continuing as his teacher) for the 2002-2003 school year. FLLAC adapted his academic program so that he could be considered a 5 th grader this academic year even though he was not in a 5 th grade classroom. However, FLLAC has always taken the position that Student is more appropriately placed in the middle school this year (2002-2003) as well as next year.
In Mother’s testimony and in their written closing argument, Parents made clear that their reasons for rejecting placement at the FLLAC middle school were two-fold. First, they had concerns regarding the physical environment of the middle school classroom and school building, believing it to be unsafe. Second, they believed that the larger size of the middle school would result in her son having behavior difficulties similar to what she has experienced with larger groups in the community.
I do not doubt the sincerity of Parents’ concerns regarding the FLLAC middle school program as a placement for their son. These concerns are based on an intimate knowledge of their son and a visit to the middle school classroom. I also do not doubt for a moment that Parents are devoted to their son’s best interests and that their significant efforts to avoid the FLLAC middle school program are motivated by their desire to have a safe, appropriate and effective educational environment for their son.
For these reasons, I take seriously Parents’ concerns regarding Fitchburg’s IEP and proposed placement at the middle school. Yet, with respect to each of their concerns, as set forth in Mother’s testimony and Parents’ written closing argument, I found the evidence to be credible and persuasive that Student’s safety, behavior and educational development would not be compromised at the middle school this year or next.
For example, Mother was concerned that since the middle school classroom is on the second floor, Student might injure himself trying to escape through a classroom window. The uncontroverted testimony was that the windows in the middle school classroom cannot be opened more that 6 inches, making them extremely difficult for a child to fit through, and that Student has never tried to exit a classroom through a window. Testimony of Mother, Carguilo, Madden, Bicchieri.
Mother expressed concern that Student might escape the middle school classroom, run down the stairs and leave the building. She was therefore concerned that the middle school classroom was on the second floor and that there were no alarms on the doors. The uncontroverted testimony was that Student has not and does not present such a risk at school. Testimony of Mother, Carguilo, Bicchieri.
Mother was concerned that there is a room divider within the middle school classroom which Student would likely pull down. The uncontroverted testimony was the divider is bolted to the wall, making it virtually impossible for it to be pulled over by a student. In addition, the uncontroverted testimony was that Student has rarely (if ever) engaged in this kind of behavior at school (there is an isolated incident of Student pulling over a bookcase at school). Testimony of Mother, Carguilo, Bicchieri.
Mother expressed concern that Student would have a negative reaction to the fluorescent lighting in the middle school classroom. The uncontroverted testimony was that the lighting in the middle school classroom is essentially the same as the lighting in Student’s existing classroom. Testimony of Mother, Carguilo.
Mother was concerned that the larger size of the middle school would exacerbate Student’s behavior. The uncontroverted testimony was that the middle school is not substantially larger than Student’s existing school, and that Student has behaved appropriately in large group settings at school, such as the school-wide assemblies. Testimony of Mother, Carguilo, Roberts.
Mother expressed concerns about her son’s progress regarding behavior, social skills and academics. These issues are addressed in detail elsewhere in this Decision. In summary, I have found that I share Mother’s concerns regarding math, but that Student is making slow but meaningful progress within language arts and is making significant progress regarding his behavior and social skills, and is likely to continue to do so at Fitchburg’s proposed placement within the FLLAC middle school program.
Finally, I note that Mother seemed convinced, on the basis of her experience with her son, that he has not and cannot benefit educationally from contact with children who do not have a disability. With all due respect to these beliefs, I have found (as explained in detail elsewhere in this Decision) that Student is appropriately placed in a program where he has contact with typical peers and that he has gained (and will likely continue to gain) significant benefit from these experiences.
F. Conclusions
When reviewing what progress Student has made and is likely to continue to make pursuant to his most recent IEP and when determining whether this progress is sufficient, I consider these issues not in a vacuum, but rather in the context of the potential of this particular Student to benefit from the educational services offered to him by the school district. As described above in part C1 of this Decision, Student has multiple and extensive disabilities which have a significant impact on his ability to learn.17
Within the context of Student’s particular disabilities and potential for making educational gains, I find that Fitchburg’s proposed IEP provides an educational program tailored to address Student’s unique needs. Pursuant to this IEP, Student has been making meaningful and effective progress regarding his behaviors and related social skills, as well as in language arts in the FLLAC elementary school placement; Student would likely have made comparable progress had he been placed in a 5 th grade FLLAC middle school placement this past academic year (Student also would have been with a more appropriate peer group in 5 th grade); and Student will likely continue to make comparable progress in a 6 th grade FLLAC middle school placement next academic year.
Student has been making inconsistent progress in math. The School District has proposed that Student’s current math program would be continued during the next academic year pursuant to its IEP. I conclude that within forty-five days of this Decision and subject to the consent of one or both Parents, the School District should provide an evaluation of Student by a person with expertise in Student’s difficulties regarding math, and that the IEP Team should then make any modifications (including modifications of teaching methodologies) in order to allow Student to make effective progress in math.18
Student has had more significant behavior difficulties at home than at school. Through its closing argument (page 5, footnote 2) and the testimony of Ms. Madden, Fitchburg has made clear the availability of additional parent training to address behavior problems that may be occurring at home. Fitchburg should advise Parents of the availability of this training.
With these additional requirements regarding math and parent training, I find that the School District’s most recently proposed IEP satisfies the requisite standards for the provision of FAPE.
I find that Student’s appropriate placement pursuant to the most recently proposed IEP, is the FLLAC middle school program.
Because I have found the school district’s proposed IEP to be appropriate, I need not consider the appropriateness of Parents’ proposed placement at the Seven Hills Academy and therefore decline to do so. However, without attempting to consider the appropriateness of the program as a whole, I express one particular area of concern regarding Seven Hills as a potential placement for Student.
Ms. Maguire testified as to the aggressive behaviors of many of the children who would likely share a classroom with Student were he to go to school there.19 Fitchburg’s witnesses testified persuasively that Student has not, for a significant period of time, exhibited similarly aggressive or stereotypical behavior at school. It is important not to under emphasize the significant influence of peers upon Student’s education, including his social and behavioral development which is essential to his achieving independent living skills. I suggest that from this perspective, Student’s peers were he to attend Seven Hills Academy would be a source of concern which should be carefully considered.
ORDER
The School District’s most recently proposed IEP for the period 11/05/02 to 11/04/0320 is reasonably calculated to assure Student a free appropriate public education (FAPE) in the least restrictive environment and is therefore upheld, with the following modifications.
Within forty-five days of this Decision and subject to consent by one or both Parents, the School District shall provide an evaluation of Student by a person with expertise in Student’s difficulties regarding math. The IEP Team shall then make any modifications (including modifications of teaching methodologies) in order to allow Student to make effective progress in math.
Within thirty days of this Decision, the School District shall advise Parents in writing of the availability of parent training to address behavior problems that may be occurring at home.
By the Hearing Officer,
William Crane
Dated: August 7, 2003
COMMONWEALTH OF MASSACHUSETTS
BUREAU OF SPECIAL EDUCATION APPEALS
EFFECT OF BUREAU DECISION AND RIGHTS OF APPEAL
Effect of the Decision
20 U.S.C. s. 1415(i)(1)(B) requires that a decision of the Bureau of Special Education Appeals be final and subject to no further agency review. Accordingly, the Bureau cannot permit motions to reconsider or to re-open a Bureau decision once it is issued. Bureau decisions are final decisions subject only to judicial review.
Except as set forth below, the final decision of the Bureau must be implemented immediately. Pursuant to M.G.L. c. 30A, s. 14(3), appeal of the decision does not operate as a stay. Rather, a party seeking to stay the decision of the Bureau must seek such stay from the court having jurisdiction over the party’s appeal.
Under the provisions of 20 U.S.C. s. 1415(j), “unless the State or local education agency and the parents otherwise agree, the child shall remain in the then-current educational placement,” during the pendency of any judicial appeal of the Bureau decision, unless the child is seeking initial admission to a public school, in which case “with the consent of the parents, the child shall be placed in the public school program”. Therefore, where the Bureau has ordered the public school to place the child in a new placement, and the parents or guardian agree with that order, the public school shall immediately implement the placement ordered by the Bureau. School Committee of Burlington, v. Massachusetts Department of Education , 471 U.S. 359 (1985). Otherwise, a party seeking to change the child’s placement during the pendency of judicial proceedings must seek a preliminary injunction ordering such a change in placement from the court having jurisdiction over the appeal. Honig v. Doe , 484 U.S. 305 (1988); Doe v. Brookline , 722 F.2d 910 (1st Cir. 1983).
Compliance
A party contending that a Bureau of Special Education Appeals decision is not being implemented may file a motion with the Bureau of Special Education Appeals contending that the decision is not being implemented and setting out the areas of non-compliance. The Hearing Officer may convene a hearing at which the scope of the inquiry shall be limited to the facts on the issue of compliance, facts of such a nature as to excuse performance, and facts bearing on a remedy. Upon a finding of non-compliance, the Hearing Officer may fashion appropriate relief, including referral of the matter to the Legal Office of the Department of Education or other office for appropriate enforcement action. 603 CMR 28.08(6)(b).
Rights of Appeal
Any party aggrieved by a decision of the Bureau of Special Education Appeals may file a complaint in the state superior court of competent jurisdiction or in the District Court of the United States for Massachusetts, for review of the Bureau decision. 20 U.S.C. s. 1415(i)(2).
Under Massachusetts General Laws, Chapter 30A, Section 14(1), appeal of a final Bureau decision to state superior court must be filed within thirty (30) days of receipt of the decision.
The federal courts have ruled that the time period for filing a judicial appeal of a Bureau decision in federal district court is also thirty (30) days of receipt of the decision, as provided in the Massachusetts Administrative Procedures Act, M.G.L. c.30A . Amann v. Town of Stow , 991 F.2d 929 (1 st Cir. 1993); Gertel v. School Committee of Brookline , 783 F. Supp. 701 (D. Mass. 1992).
Therefore, an appeal of a Bureau decision to state superior court or to federal district court must be filed within thirty (30) days of receipt of the Bureau decision by the appealing party.
Confidentiality
In order to preserve the confidentiality of the student involved in these proceedings, when an appeal is taken to superior court or to federal district court, the parties are strongly urged to file the complaint without identifying the true name of the parents or the child, and to move that all exhibits, including the transcript of the hearing before the Bureau of Special Education Appeals, be impounded by the court. See Webster Grove School District v. Pulitzer Publishing Company , 898 F.2d 1371 (8th Cir. 1990). If the appealing party does not seek to impound the documents, the Bureau of Special Education Appeals, through the Attorney General’s Office, may move to impound the documents.
Record of the Hearing
The Bureau of Special Education Appeals will provide an electronic verbatim record of the hearing to any party, free of charge, upon receipt of a written request. Pursuant to federal law, upon receipt of a written request from any party, the Bureau of Special Education Appeals will arrange for and provide a certified written transcription of the entire proceedings by a certified court reporter, free of charge.
1
Exhibits S-1, P-13.
2
The acronym “FLLAC” apparently derives from the names of several school districts within the collaborative, including Fitchburg, Leominster, Lunenburg, Ayer and Clinton.
3
The procedural rule states that if a party fails, “without good cause”, to obey a Hearing Officer’s order to provide or permit discovery, the Hearing Officer “may make orders in regard to the failure as are just, including one or more of the following:
(1) an order that designated factors shall be established adversely to the party failing to comply with the order; or
(2) an order refusing to allow the disobedient Party to support or oppose designated claims or defenses, or prohibiting him or her from introducing evidence on designated matters.” 801 CMR 1.01(8)(i), made applicable to BSEA proceedings pursuant to 603 CMR 28.08(5)(b).
4
In Re: Concord-Carlisle Regional School District , BSEA # 02-3458 (November 8, 2002).
5
E.g., R.W. Int’l Corp. v. Welch Foods, Inc., 937 F.2d 11, 19-20 & n.9 (1st Cir. 1991).
6
In addition, I note that certain of the requested documents are held by a private school (Seven Hills Academy) and Parents do not appear to have the legal right to obtain these documents. Parents’ attorney made good faith efforts to obtain these documents but was unsuccessful. See Strom v. American Honda Co ., Inc. 423 Mass. 330, 336 (1996) (discussion of obligation of attorney to make good faith effort to obtain documents not within party’s legal control).
7
20 USC 1400 et seq .
8
MGL c. 71B.
9
MGL c. 71B, ss. 1 (definition of FAPE), 2, 3.
10
For a more complete explanation of this standard and the legal authorities upon which it is based, see In re: Arlington , 37 IDELR 119, 8 MSER 187, 193-195 (SEA MA 2002).
11
603 CMR 28.05(4)(b). See also 603 CMR 28.02(18) (defining the phrase “ progress effectively in the general education program”).
12
20 USC 1400(d)(1)(A) (emphasis supplied).
13
20 USC 1412(5)(A) (emphasis supplied). Similarly, the Massachusetts special education statute requires that FAPE be provided in the least restrictive environment (MGL c. 71B, ss. 2, 3) and defines the term “least restrictive environment” consistent with the federal statutory language quoted above (MGL c. 71B, s. 1).
14
E.g., Burlington v. Mass. Department of Education , 471 US 359, 369 (1985) (federal statute “contemplates that such education will be provided where possible in regular public schools, with the child participating as much as possible in the same activities as nonhandicapped children”); T.R. v. Kingwood Township Bd. Educ., 205 F.3d 572, 578 (3d Cir. 2000) (IDEA’s mainstreaming requirement mandates education “in the least restrictive environment that will provide [the student] with a meaningful educational benefit.”); Board of Education of LaGrange School District No. 105 v. Illinois State Board of Education , 30 IDELR 891 (7 th Cir. 1999) (district’s placement proposal, which did not enable the student to share a classroom with typically developing children, did not satisfy LRE because evidence indicated that his disability and IEP did not prevent him from benefiting educationally in a more inclusive setting).
15
In Re: Harwich Public Schools , BSEA # 01-0627, 7 MSER 49, 72-73 (SEA MA 2001) (collecting cases).
16
The United States Supreme Court has explained that expert testimony must be both reliable and relevant. Kumho Tire Co., Ltd. v. Carmichael , 526 U.S. 137 (1999); Daubert v. Merrell Dow Pharm, Inc. , 509 U.S. 579, 589 (1993). See also Richland School District v. Thomas P ., 32 IDELR 233 (W.D. Wisc. 2000) (applying the Supreme Court’s standards to a special education dispute).
17
The courts and state regulations have recognized the importance of considering a student’s potential to learn. See, e.g., Houston Independent School District v. Bobby R ., 200 F.3d 341 (5 th Cir. 2000) (“disabled child’s development should be measured not by his relation to the rest of the class, but rather with respect to the individual student”); Ridgewood Board of Education v. NE , 172 F.3d 238 (3 rd Cir. 1999) (“quantum of educational benefit necessary to satisfy IDEA . . .requires a court to consider the potential of the particular disabled student before it”); Roland v. Concord School Committee , 910 F.2d 983 (1 st Cir. 1990) (“academic potential is one factor to be considered”); Kevin T. v. Elmhurst , 36 IDELR 153 (N.D. Ill. 2002) (“in determining whether a school district has provided a FAPE, the court must analyze the child’s intellectual potential and then assess the student’s academic progress”); 603 CMR 28.01(3) (purpose of the state special education regulations is “to ensure that eligible Massachusetts students receive special education services designed to develop the student’s individual educational potential”).
18
Fitchburg’s director of special education (Ms. Raftery) testified that such an evaluation of Student with respect to math may be useful in that it may lead to additional or different teaching strategies, such as making math problems more relevant to Student. Ms. Raftery also explained that Fitchburg has access to an expert, through an existing contract with the May Institute, who would likely be appropriate to perform this evaluation. In its written closing argument (pages 3 and 4), Fitchburg made clear that it has no objection to conducting such an evaluation.
19
Fitchburg’s closing argument (pages 11 and 12) provides a useful summary description of these aggressive behaviors.
20
Exhibits S-1, P-13.