Hamilton-Wenham Public Schools v. Student and the Department of Social Services – BSEA #04-1791 and 03-3932
COMMONWEALTH OF MASSACHUSETTS
SPECIAL EDUCATION APPEALS
In Re: Hamilton-Wenham Public Schools v. Student and the Department of Social Services BSEA # 03-3932 and # 04-1791
This decision is issued pursuant to 20 U.S.C. 1401 et seq. (the “IDEA”), 29 U.S.C.794, M.G.L. chs. 30A, 71B, and the regulations promulgated under those statutes.
An expedited hearing in the above-referenced matter was convened at the request of Hamilton-Wenham Public Schools (hereinafter, Hamilton-Wenham) on October 27, 2003, at the Bureau of Special Education Appeals (hereinafter, “BSEA”), 350 Main St., Malden, MA, before Rosa I. Figueroa, Hearing Officer.
The Record in this matter closed on October 29, 2003 upon receipt of the Parents’ Closing Argument.
Those present for all or part of the Hearing were:
Patricia Casey, Esq. Attorney for the Department of Social Services
Alanna G. Cline, Esq. Attorney for Student/Parents
Elizabeth Lombard Department of Social Services
Jessica Bellavante Department of Social Services, Intern
Adam Capen Department of Social Services, Social Worker
Richard Sullivan, Esq. Attorney for Hamilton-Wenham Public Schools
Deborah Ms. Frontierro Director of Special Education, Hamilton-Wenham Public Schools
Dr. Steven L. Nickman, M.D. Child Psychiatrist, Massachusetts General Hospital
School Exhibits 1 through 37 and Parents’ Exhibits 1 through 6 with the exception of the next to the last paragraph in PE-1, to which Hamilton-Wenham and the Department of Social Services (hereinafter, “DSS”) objected and which was stricken from the record, were admitted in evidence and were considered for the purpose of rendering this decision.
On October 17, 2003, I issued an Order Granting Hamilton-Wenham’s Motion for Consolidation of BSEA # 03-3932 and BSEA # 04-1791 and agreed to hear them concurrently on the automatic date for # 04-1791, October 27, 2003.
This matter first came into the BSEA on March 25, 2003, as Parents’ request for Hearing on the issue of placement for Student. At Hamilton-Wenham’s request, the matter was set for a Pre Hearing Conference on April 29, 2003. On April 28 th , the Parents requested not to proceed to Pre-Hearing and an Order to Show Cause was issued. The Parents responded on May 16 th requesting that the matter remain open. On May 16 th , the Parents requested that the matter be set for Hearing and a Hearing was scheduled for August 12 th preceded by a Pre-Hearing Conference on June 24, 2003, dates available to both Parties. Between the Pre-Hearing and the Hearing the Parties notified the BSEA of their intention to file a Motion to Join DSS, DSS voluntarily agreed to become involved in the matter and the Motion to Join was placed on hold at the request of the Parties. Also, during that time the Parties continued to work together towards finding an appropriate program for Student and placement was attempted in several programs.
On August 1, 2003, the Parties filed a joint request for postponement of the Hearing and again they were instructed to submit a written status report by September 1, 2003. Shortly thereafter, at their request, a telephone conference call was held on September 10 th . As a result of the conference call the Parties were convened on September 19, 2003, at the BSEA. At that time Hamilton-Wenham, DSS and Mother agreed that Student required residential placement but could not agree on the particular program. Student1 was present and expressed his desire to attend a day program but refused residential placement. The Parties requested a final opportunity to settle their dispute regarding the particular program and the matter was scheduled to proceed to Hearing on October 14 and 17, 2003. During a telephone conference call on October 9 th , the Parents’/Student’s advocate requested a postponement of the Hearing on the basis that the Parents wished to seek legal counsel. She also stated that she would be withdrawing her representation on behalf of the Parents/Student later that day and did so. The Hearing was again postponed and the record left open in an attempt to allow the Parents/Student to retain counsel. An appearance on behalf of the Parents/Student by attorney Cline was entered on October 27 th .
On October 15, 2003, Hamilton-Wenham filed a Request for Expedited Hearing on the basis that Student was not attending any educational program and Hamilton-Wenham and DSS had identified the Harbor School as an appropriate program for Student. The request for Expedited Hearing was granted and the matter was set to proceed to Hearing on October 27, 2003.
Simultaneous with the request for Hearing, Hamilton-Wenham filed a Motion to Consolidate BSEA # 03-3932 with its request for the Expedited Hearing for purpose of administrative efficiency and economy of resources as both matters involve the same issues. Hamilton-Wenham then filed an amendment of the original hearing request on October 20 th including DSS as a party, and on October 24 th , DSS stipulated to its joinder.
1. Whether the IEP proposed by Hamilton-Wenham for the 2003-2004 school year calling for placement of Student at the Harbor School under a cost-share agreement with DSS offers Student a Free Appropriate Public Education (hereinafter, “FAPE”) in the least restrictive environment appropriate to meet Student’s needs in accordance with state and federal special education law.
POSITION OF THE PARTIES
The Parties do not dispute Student’s entitlement to special education services but differ in their view regarding the degree of Student’s disability and the appropriate school/program to deliver services. The Parents assert that Student’s behavior is secondary to his learning disabilities, which is their primary concern, and hold Hamilton-Wenham responsible for Student’s difficulties.
They assert that Student does not wish to attend the Harbor School and request that he be placed at another school that provides a therapeutic approach. The Parents do not dispute Student’s need for residential placement but disagree with Hamilton-Wenham’s and DSS’ recommendation for placement at the Harbor School. On the date of Hearing, the Parents proposed that Student attend Swift River School if he is accepted.
Hamilton-Wenham assets that the Parents have attempted to undermine DSS’ and its own efforts to have Student accepted and enrolled in an appropriate program, thereby denying Student a FAPE. Hamilton-Wenham further asserts that Student’s substance abuse, chronic absenteeism, and defiance of typical parental requests combined with the Parents’ inability to enforce any consequences for Student’s inappropriate behaviors have caused Student to remain out of school for the majority of the 2002-2003 school year. Placement at several programs was attempted to no avail, as Student refused to attend after the first day. In order to successfully remain in an educational placement, Student requires residential placement at the designated program. The residential component however, is not required for educational reasons.
Department Of Social Services’ Position:
DSS agrees with Hamilton-Wenham that Student’s need for residential placement is to address non-educational issues. DSS has agreed to cost-share placement of Student at the Harbor School which it deems appropriate to meet Student’s non-educational needs, the portion for which it is responsible.
FINDINGS OF FACT:
1. Born on January 26, 1987, Student is a 16-year-old 9 th grader who resides in Hamilton-Wenham. (SE-21)
2. The Parents’ initial request for an educational evaluation was made on June 27, 1999, when Student was in the sixth grade. (SE-28) At that time they were concerned over Student’s difficulties staying focused and organized and challenges with his foreign language course. (SE-28) The initial educational testing showed that he had average to high average cognitive ability with no verbal discrepancy or indication of a specific language disability. (Id.; Testimony of Ms. Frontierro) Student however, obtained lower scores in applying verbal reasoning to social conventions and with retrieval of information and organization. (SE-28) Speech and Language evaluations showed that he possessed good expressive skills with a mild weakness in the ability to follow orally presented directions. Except for French, Student was progressing effectively in his classes. ( Id .)
3. Student’s Team met on November 2, 1999 to discuss the result of the evaluations and classrooms accommodations were recommended though he was found ineligible under the IDEA. (SE-28) The Parents requested independent evaluations, which were approved on January 24, 2000. (SE-28)
4. Testing by Doreen Karroll, MD, Developmental and Behavioral Pediatrics, Franciscan Children’s Hospital, in 2000, found Student to present with a specific learning disability affecting reading and math, with organizational and emotional difficulties. (PE-2) She recommended that Student receive services in those areas, and strongly recommended that Student begin individual and some family counseling. (PE-2) Social skills are an area of strength for him. (Testimony of Ms. Frontierro)
5. Dr. Kaaren Bekken, Ph.D., performed a neuropsychological evaluation of Student on April 11, 2000, finding that he presented with average levels of functioning according to the Differential Abilities Scale (DAS) but with some variability in skill levels. (PE-3) According to her, the affected areas included visuomotor integration, organization, memory, attentional difficulties and math. She diagnosed Student with dyslexia and dyscalculia but because her findings were so different from those previously obtained by Hamilton-Wenham, the Team did not rely on her findings and approved a new independent evaluation. (Testimony of Ms. Frontierro) Also, Dr. Bekken used the wrong date of birth for Student thereby compromising the results, which are calculated on statistical findings based on the student’s age. (SE-36) In a letter of December 12, 2002, Dr. Bekken stated that the mistake on page one of the report regarding Student’s age, had not been carried when calculating the scores in the evaluation where she had used Student’s correct age. (PE-4) In this and another letter of January 10, 2003, Dr. Bekken, supported Student’s placement in a therapeutic school setting that could address his learning disabilities and his emotional/behavioral issues. (PE-4; PE-5) In January of 2003, she found that most of Student’s cognitive abilities were intact with the exception of attention/concentration and organization skills. (PE-5) During the interview in January 2003, Student denied feeling anxiety, depression or having difficulties in math or reading, and stated that he preferred regular classes. Dr. Bekken observed him to present with “blunted affect, apathy, poor eye contact and general irritability.” (PE-5) His sleeping pattern was reported at approximately 13 hours per night (midnight to about 1:00 p.m.). Dr. Bekken recommended counseling and consideration of medication options under psychiatrist/psychologist care given his attention issues and the association documented between ADHD and drug use. (PE-5) Until such time as Student was enrolled in an appropriate program, she recommended tutoring to prevent regression. ( Id .)
6. Following completion of the independent evaluations at Massachusetts General Hospital and Franciscan Children’s Hospital, during April and May of 2000, Student’s Team convened on September 12, 2000 to discuss the results. (SE-28) Because of the discrepancies between Dr. Bekken’s evaluation results and those of the District, Hamilton-Wenham recommended that Student participate in an extended evaluation for reading, which the Parents declined on October 9, 2000. ( Id .)
7. On October 16, 2000, Hamilton-Wenham developed a 504 plan, which offered Student classroom accommodations and speech and language consultation to his teachers. (SE-28) Additional support was offered for English and math should Student require it. Student began to miss school a great deal during this period or was frequently tardy which began to hinder his school performance. (SE-28) Shortly after BSEA intervention, the Parents signed the 504 plan and it was agreed that student could drop the foreign language class. ( Id .) Additional accommodations were implemented in February 2001, following a meeting with Franciscan Children’s Hospital staff. (SE-28)
8. In March 2001, the Parents filed an initial request for voluntary services with DSS because Student presented out of control behaviors in the home. (Testimony of Mr. Capen) His behaviors included yelling, slamming doors, not meeting his curfew, not attending school, not being able to pass his classes, not following his Parents’ house rules. ( Id .) DSS provided a tracker, a person who checked with Student on a daily basis and keeps track of his accountability in following the rules, for three months. Some improvement in Student’s behavior was evidenced but the problem behaviors were not resolved. (Testimony of Mr. Capen)
9. On October 16, 2001, Robert Kemper, Ph.D., CCC-SLP, performed a psycholinguistic evaluation of Student at the request of the Parents. (PE-6) Test results placed Student in the average to low average range of functioning in almost all areas except that his comprehension skills were found to be mildly compromised, and also showed mild word retrieval difficulties. (SE-6) Dr. Kemper found Student to present with a “Specific Language Impairment (information processing deficit) that coexist[ed] with a unilateral hearing loss.” ( Id .) The information processing difficulty manifested in latencies in comprehension as well as in misinterpretation of information. (PE-6) He opined that it was likely that the hearing loss exacerbated the deficit in processing information where Student was exposed to high degrees of ambient noise such as in large classrooms. Dr. Kemper recommended that Student be provided with individual tutorial three times per week as well as a number of program modification and accommodations addressing use and processing of higher level linguistic information, self-advocacy skills, organizational skills, and written language expression skills. (PE-6) These included a multi-sensory approach, rehearsal, chunking, visual imagery, graphic organizers, development of debating skills, organization, study and test taking skills/strategies, additional time to provide a response, review, pre-teaching, clear and short directions, clear closing of activities, repetition, paraphrasing, periodic checking for processing and comprehension, and other techniques and strategies for teaching. (PE-6)
10. An evaluation by Reena Slovin, M.Ed., C.A.G.S., psycho-educational diagnostician, and Jerome J. Schultz, Ph.D., Director and clinical neuropsychologist at the Lesley Learning Lab, was performed on October 31 and November 7, 2001. (SE-37) Student was described as appearing tired and disinterested during the first session and more animated during the second session. He was, however, cooperative during both sessions and complied with the tasks. (SE-37) He was administered the Woodcock Johnson- Revised; Tests of Achievement, the Gray Oral Reading Test- 3, the Survey of Problem Solving and Educational Skills; Spelling subtest, and the Test of Written Expression; Essay. The evaluation found Student’s reading scores for word attack, word identification, passage comprehension, reading vocabulary, reading rate and accuracy to be solidly within the average range and commensurate with his cognitive ability level. (SE-37; SE-35) Math scores regarding calculation, applied problems, and quantitative concepts also fell within the average range. However, it was recommended that Student receive support in the area of written language, both in isolation and in all subject areas, where he was found to present with significant difficulties in written expression and basic writing skills. These involved simple and complex sentence production. (SE-37) He scored two years below grade level showing weaknesses in sentence grammar, use of higher-level punctuation, capitalization, spelling, paragraphing, word usage and subject/verb as well as noun/ adjective agreement. (SE-37; SE-35) Organizational supports were also recommended as well as counseling and continuation of implementation of the audiological supports. (SE-37)
11. On February 10, 11 and 12, 2003, Student underwent a functional behavioral assessment by James M. Cornacchio, M.Ed., C.A.G.S., in Hamilton-Wenham. (SE-36; Testimony of Ms. Frontierro) At that time he was receiving accommodations under a 504 plan, as a result of a “…severe sensorineural loss in the left ear in the low and mid-frequencies rising to a mild loss in the high frequency” as per a North Shore Ear, Nose and Throat Associates, P.C., report of November 15, 1999. (SE-36) Teacher input showed that when prepared and invested Student performed well, but that he rarely completed any homework, seldom appeared for class with pens or a notebook and when confronted he could be “…argumentative and manipulative.” All of his teachers voiced frustration with his “inability to work beyond classroom time.” (SE-36) During the interview with the Student, Student reported that he had no difficulties with the School’s behavioral rules or expectations, that he “was always tardy, absent and did no homework, [he could] do the work…just never [found] the time to do it, …and when [he got home had] no idea what to do.” (SE-36) Mr. Cornacchio found that Student required a plan that provided “structure and consistent communication among all professionals working with [Student], as well as parents. [Student] appears to be very adept at splitting systems to avoid accountability.” Additionally, he recommended a number of self-organizational strategies for Student as well as individual and family counseling. Mr. Cornacchio stressed the Parents’ role in assuring Student’s attendance and promptness. (SE-36)
12. Student was first found eligible to receive special education services in February 2002. (SE-26; SE-34; Testimony of Ms. Frontierro) Following school testing and additional evaluations preformed by Massachusetts General Hospital, Franciscan Children Hospital, Dr. Karen Bekken, Dr. Robert Kemper, and Lesley Learning Lab., he was diagnosed with a unilateral hearing loss and a mild learning disability affecting written language. (SE-26; SE-34) The Team met on February 27 th and recommended that he receive academic support in English as a direct service in the general classroom three times per week for 58 minutes, and academic support in other settings also three times per week for 58 minutes. (SE-34) This IEP, which covered the period from February 2002 through February 2003, was forwarded to the Parents on March 11 th . (SE-34) On March 18, 2002 the Parents rejected the IEP in part because 1) Student required more services than had been granted; 2) the FM device should not be on Student’s desk; and 3) a meeting was requested after the independent functional behavioral assessment was completed to re-assess the proposed program and placement. (SE-34; Testimony of Mother)
13. On April 23 and May 1, 2002, Tina Dimas completed an independent program review/functional behavioral assessment regarding Student. (SE-32; Testimony of Ms. Frontierro) It consisted of evaluation reviews, a school observation of Student in two classes (because Student cut the remainder of his classes and was at whereabouts unknown), interviews with school personnel and a home visit/interview with the parents for which Student did not show up. (SE-32) At this time the Student was taking 10 mg bid Adderall (inconsistently) to address his ADHD. (SE-32) The school personnel raised concerns that Student lacked insight into his own behaviors and socialized with older boys which got him in trouble. They noted that he seemed frustrated and depressed, was frequently absent or late, did not do any work outside class and took no responsibility for it, etc. (SE-32) They stated that Student was well liked by them and by his peers. (SE-32; Testimony of Ms. Frontierro) They also reported that there was poor communication between the family and the school, and as a result, little trust. The Parents reported that Student’s difficulties had begun in the sixth grade, that in the eighth grade other students raised concerns about his claims that he would attempt suicide, that he withdrew from family activities, had no patience, overslept, was obsessive about his belongings being extremely neat and changed his clothes and showered several times per day. (SE-32; Testimony of Mother)
14. In the ninth grade he began to stay out frequently at night and was off with friends and slept at their houses during the weekends. His allowance was terminated when the Parents suspected that he was using it to buy drugs. (SE-32; Testimony of Mother) On the date of Ms. Demis’ home visit, Student had negotiated with the Parents that if he was allowed to miss school and the Father brought him new clothes he would meet with Ms. Demis. The Parents agreed and in the afternoon Student left to meet friends and never came back for the interview. (SE-32) Student had never been grounded or punished by his Parents who also did not want to push him too far because they were afraid of Student’s response. Also, the Parents could not agree on their philosophy regarding structure for Student. (SE-32)
15. Ms. Demis concluded that Student lacked consistency in both the home and the school environment and while people were all motivated to help Student the result was that they were enabling his bad behavior. There were no meaningful consequences for skipping school or rewards to encourage his attendance. The consequence was suspension, which is what Student was looking for, and at home there were no consequences at all. (SE-32) Similarly, there was no accountability for Student, as he was not expected to follow the same rules as others in school or at home. Student often negotiated with his Parents but did not hold true to his end of the bargain and the Parents did not impose consequences. (SE-32) Ms. Demis recommended provision of a structured environment at home and in school with rules that were clear and consistently applied across all settings and she stressed the need for improved communication between the home and the school. She stated that the family should receive training and support in implementing the plan and made other suggestions regarding supervision and accountability in school. Questions regarding a mood disorder should be ruled out. (SE-32)
16. Hamilton-Wenham’s and Tina Demis’ functional behavioral assessments showed that “having no consequences for his behavior at home and no accountability on [Student’s] part for his behavior have negatively impacted [Student’s] school performance because of extensive absences and frequent tardiness.” Other than tardiness and absences, Student had displayed no other negative behaviors in Hamilton-Wenham. (SE-26; Testimony of Ms. Frontierro)
17. On July 1, 2002, Ms. Frontierro wrote to the Parents summarizing the results of the assessments performed at the Lesley Learning Lab and acknowledging the Team’s recommendation for services under an IEP. (SE-35) Ms. Frontierro raised concerns that given Student’s 48 absences and 55 instances of tardiness during the 2001-2002 school year, he had been unable to keep up with the school demands and had not accessed assistance as intended by Hamilton-Wenham. (SE-35) She recommended that Student attend summer school to begin to partially make-up the credits he missed and stated that remedial services in writing would be provided three times per week for one hour each by a certified special education teacher. As an alternative, she offered to provide the tutorial services at the Commonwealth Learning Center. (SE-35) The Parents requested summer school services at either Danvers or Beverly High Schools on July 17 th , two weeks after the summer session had begun in both schools. (SE-33) While it was too late to for him to enroll in summer school, Ms. Frontierro agreed that Student should receive up to nine hours of writing tutorials between July and August. (SE-33) On August 2 nd Hamilton-Wenham confirmed approval to fund the six hours of writing tutorial Student had already received at the Commonwealth Learning Center and agreed to pay for nine more hours in August. (SE-31) A Team meeting would then be convened to discuss the results of Student’s independent functional behavioral assessment. (SE-31)
18. In September 2002 Hamilton-Wenham received a letter from Dr. Nickman, Student’s psychiatrist at Massachusetts General Hospital, stating that Student presented with a combination of emotional difficulties and mild learning disabilities, but that the behavioral problems displayed in the home were sufficient to warrant residential placement. (SE-26)
19. Student’s Team met on September 18, 2002 to review the Parents’ rejection of the previous IEP, discuss the result of independent evaluations, and develop a new IEP. (SE-30) Under direct services in the general education classroom the plan offered Student the following services during a four-day cycle: academic support/history three times 58 minutes by the regular/special education staff; academic support/English three times 58 minutes by the regular/special education staff; academic support/math three times 58 minutes by the regular/special education staff. (SE-30) Student would also receive direct academic support three times 58 minutes per cycle in other settings. ( Id .) The IEP mentioned that diagnoses of “Obsessive compulsive disorder and a convergence excess (eye teaming problem) and ocular motor dysfunction (eye tracking problem) [had] been referenced in outside evaluations”, but Hamilton-Wenham had not received any documentation regarding these diagnoses. (SE-30) On October 10, 2002, the Parents rejected the IEP’s proposed placement and requested that Student be in a residential placement. (SE-30)
20. Student’s team met on November 18, 2002, to develop and amend Student’s previous IEP. (SE-29) This IEP called for placement of Student in the Hamilton-Wenham Regional High School. (SE-29) The amendment called for placement of a Lightspeed 500 Soundfield Classroom System in Student’s English, history and math classrooms. In May 2001, Jane Driscoll of Soundworks recommended that Hamilton-Wenham use either the desktop or room model Soundfield FM system. (SE-29) After the school purchased the desktop version and made it available to Student in September 2001, he refused to utilize the equipment. During the fall of 2002 Hamilton-Wenham acquired three room systems which would “improve the signal-noise ratio… and allowed [Student] to hear equally well regardless of where” he positioned himself in the classroom. (SE-29) The IEP amendment was forwarded to the Parents on or about November 25, 2002. The Parents accepted this amendment on December 16 th with respect to sound panel only. The Parent stated: “I accept the sound field panels being placed within the history, math and English classes – I am not sure why science class wasn’t included – we asked for this to take place in writing last November 2001 – thanks for finally considering the sound panel instead of the FM desk amplifier which could easily get lost by my son who has a history of disorganization.” (SE-29) During this time Student was placed on a behavioral contract in which it was accorded that if he did not meet the attendance requirements, a CHINS petition would be filed. (Testimony of Ms. Frontierro)
21. In November 2002, custody of the Student was transferred to DSS when a CHINS was opened for truancy. (Testimony of Mr. Capen) The CHINS expired after a short time on Student’s 16 th birthday. (Testimony of Mr. Capen; Testimony of Ms. Frontierro) Parents were advised that they could file another one if Student was a stubborn child or a runaway, but the Parents thought that Student had complied enough with the house rules and was doing better. (Testimony of Mr. Capen)
22. In January 2003, Hamilton-Wenham agreed to fund a therapeutic day program for Student that could address his behavioral difficulties, as a result of the Team’s finding that Student’s absenteeism and behavioral difficulties at home were not related to his disabilities. (SE-26) Therefore, Hamilton-Wenham would not support residential placement. Ms. Frontierro, sent referrals to several private day schools including Crossroads. (Testimony of Ms. Frontierro)
23. Following a Team meeting on February 27, 2003, Ms. Frontierro provided a narrative description of Hamilton-Wenham’s proposed amendment to Student’s IEP. (SE-27) Student’s goals and objectives would be extended through April 15, 2003, and Student’s placement would be changed to the Crossroads School in Danvers, a therapeutic day program. (SE-27)
24. On April 1, 2003 Ms. Frontierro wrote to her attorney and notified him of the referral packets she had sent on behalf of Student and their status to that date. (SE-25) Beacon H.S. and Broccoli Hall had rejected Student, and while Solstice, Coastal Alternative, the Victor School, and Crossroads had openings, Student had refused placement at the first three. (SE-25) After attending Crossroads for one day, Student decided he would not attend that program either. ( Id .; Testimony of Ms. Frontierro)
25. In April of 2003, the Parents filed another CHINS petition and Student’s custody was transferred to DSS. (Testimony of Mr. Capen) Student was placed at ACCESS, a shelter, for forty-five days, in an attempt to stabilize him with an appropriate daily routine so that he could be successful within the structure of a school program. (Testimony of Mr. Capen) Again, he had not been attending school or complying with the house rules. At ACCESS, Student received educational services without any indication that he was not able to participate or had difficulties accessing the curriculum. ( Id .) Student was not sure why he had to be in ACCESS as he saw himself different from the population there. (Testimony of the Parent) DSS, Hamilton –Wenham and the Parents agreed that Student required residential placement. During this period of time, Student spoke to his DSS social worker, Al Capen, daily and they met twice. During this time DSS addressed concerns regarding Student’s drug abuse. Student admitted to having been smoking marijuana daily. While at ACCESS, Student failed to return to the program at the agreed time on two occasions. Both times his Parents returned him a day later. (Testimony of Mr. Capen, Father) Student remained at ACCESS from April through June 2003. (Testimony of Mr. Capen) During this time, the Parents applied for Student to participate in the day program of the Chamberlain School. (SE-24; SE-23; Testimony of Ms. Frontierro) Student was accepted to the Chamberlain School on April 21, 2003, and on April 28 th the Parents notified Ms. Frontierro. (SE-24; SE-23) By then, Student had been out of school since November 2002. (SE-23)
26. On April 28, 2003, Ms. Frontierro confirmed Hamilton-Wenham’s agreement to fund a day school placement for Student that could meet his behavioral and academic needs. (SE-22) Concerned that the Parents had selected a program that required a three-hour drive each day, Ms. Frontierro listed some programs in the North Shore area and in Boston that could meet Students’ needs. (SE-22) She however, agreed to place Student at the Chamberlain School, in Middleborough, MA, and to arrange for transportation. (SE-22; Testimony of Ms. Frontierro)
27. On May 6, 2003, Hamilton-Wenham convened the Team and amended Student’s IEP to place him in the day program at the Chamberlain School. (SE-21) The IEP covered the period from February 26, 2003 through February 25, 2004, but all the services would begin on May 8, 2003 and would end June 30, 2003. ( Id .) This IEP offered Student academic support 5 x 402 minutes per cycle; individual therapy by the school psychologist one times forty five minutes per cycle, and group counseling one times 45 minutes per cycle also with the school’s psychologist. (SE-21) The school followed a 5-day cycle. The IEP was forwarded to the Parents on May 6, 2003 and the Parent accepted it as a temporary IEP on May 7, 2003. (Id.) Student attended one day but decided that it was not a good match for him because the ride took too long (one and a half-hours each way) and the other students were not like him. (Testimony of Mr. Capen, Mother)
28. On June 13, 2003, Ms. Frontierro confirmed Hamilton-Wenham’s willingness to support provision of tutorial services for Student at the Commonwealth Learning Center during the 2003 summer, as requested by the Parents on June 12 th . (SE-17; SE-18; Testimony of Ms. Frontierro) Since Student had been out of school for such a long period of time, the Parents wanted the tutorials to focus on his oral and written comprehension skills and provide writing and grammar programs. (SE-18) Additionally the Parents requested Student’s participation in Project Read. (SE-18) Hamilton-Wenham approved tutorial work in language skills 3 x per week for one hour and twice per week tutorial in math, totaling one-hour daily tutorial sessions. (SE-17) According to Ms. Frontierro, Student’s break in education during the 2002-2003 year resulted from his difficulty with attendance at both of the schools that accepted him. (SE-17)
29. Hamilton-Wenham and the Parents met on June 28, 2003, to discuss Student’s participation in summer school. (SE-33)
30. Over the 2003 summer, Student continued to defy parental rules, did not attend school, was not going to therapy, stayed up until 2:00 or 3:00 a.m., slept until noon, and continued to abuse substances. (Testimony of Mr. Capen, Father, Mother) It was Mr. Capen’s opinion that Student required residential placement that offered a great deal of structure, had a therapeutic component, could address Student’s substance abuse and kept Student away from the neighborhood “kids”. (Testimony of Mr. Capen) Mr. Capen and Ms. Lombard from DSS collaborated in this process with Ms. Frontierro from Hamilton-Wenham. (Testimony of Mr. Capen, Ms. Lombard, Ms. Frontierro)
31. Ms. Elizabeth Lombard, DSS area resource coordinator and child abuse investigator, testified that DSS approved the Student for residential placement on August 1, 2003. (SE-16; Testimony of Ms. Lombard) At that time, eight referrals were made by Hamilton-Wenham to potential residential schools. (Testimony of Mr. Capen; Ms. Frontierro; Ms. Lombard) The referrals went to RFK Children’s Action Corps, Harbor School, Alpha-Omega, Brandon, Pilgrim School, The Children’s Study Home, Deveraux and St. Vincent’s, all of which were thought to be appropriate recommendations DSS as well as Hamilton-Wenham.2 (SE-2; Testimony of Ms. Lombard, Ms. Frontierro) Student was rejected from all of the schools except the Harbor School based on feedback received from the Mother that Student presented a more significantly complex educational profile than was supported by the majority of the evaluation reports. (SE-2; SE-11; SE-12; SE-13; SE-15; Testimony of Ms. Lombard, Ms. Frontierro)
32. Via letter of August 22, 2003, Ms. Frontierro, explained to the Parents the Department of Education’s policy and preference for placement in Chapter 766 approved schools before a school district could consider an unapproved program. (SE-10) Hamilton-Wenham recognized Student’s need for participation in a therapeutic day program and DSS recognized Student’s need for alternative living arrangements, thus agreeing to fund the residential portion of Student’s placement. (SE-10; SE-16)
33. On August 25, 2003, Ms. Frontierro wrote to the Parents requesting their permission to send a referral packet on behalf of Student to Karen Goldberg at the Department of Education. (SE-9) Ms. Goldberg was the person in charge of private school placement and would be in a position to make suggestions in possible placement for Student that could meet his emotional and education disabilities. (SE-9)
34. On September 2, 2003, the Parents wrote to Ms. Ms. Frontierro requesting that she forward a packet and application on behalf of Student to the DeSisto School and that Student be placed there immediately. (SE-7) Ms. Frontierro wrote back to the Parents sharing her concerns regarding the status of the DeSisto School as unapproved by the Department of Education because of past, legal and civil rights violations. (SE-5) Ongoing concerns regarding the DeSisto School included no routine health care, violation of medication policy and physical plan issues. (SE-5) Furthermore, DSS would also deny placement of Student at that school. (SE-5; SE-14) Ms. Frontierro again requested Parent’s permission to forward Student’s referral packet to the Department of Education for assistance in identifying possible private school placements. (SE-5)
35. On September 3, 2003 the Mother wrote to Ms. Frontierro requesting a meeting to discuss Student’s placement in an appropriate school program. (SE-4) In her letter she confirmed her understanding that Pilgrim Center, RFK Children’s Action Corps., and St. Vincent’s could not address Students needs or did not have an opening for the 2003-2004 school year. (SE-4)
36. On September 14, 2003 Ms. Frontierro, Director of Special Education at Hamilton-Wenham, wrote to Karen Goldberg, in the Department of Education, seeking her assistance in identifying possible appropriate schools for Student. (SE-2) In her letter Ms. Frontierro expressed DSS’ and Hamilton-Wenham’s wish to cost share the residential placement for Student because of his combined learning disabilities and behavioral difficulties. (SE-2; SE-3; SE-14) Ms. Frontierro also relayed the Parents’ desire to have Student placed at the DeSisto School, placement that neither Hamilton-Wenham nor DSS supported given the Department of Education’s Office for Child Care Services ongoing compliance issues regarding said school. (SE-2; SE-14) At the time of this communication, RFK Children’s Action Corps, Pilgrims Center for Boys, St. Vincent’s, Deveraux, Brandon and the Children’s Study Home had all rejected Student. (SE-2; SE-6; SE-8; SE-11; SE-12; SE-13; SE-15)
37. The Harbor School’s residential program offers students a very structured therapeutic environment that can address behavioral issues. (Testimony of Mr. Capen) It is a Massachusetts Chapter 766 approved school located in Newbury, MA. (Testimony of Ms.Lombard) The school combines a behavioral-structured component, educational services, focuses on skills for independent living, provides treatment regarding substance abuse and family work, provides individual counseling, and offers an anger management program. It services students who are behaviorally disordered, present with emotional issues, have learning disabilities, are court involved because of juvenile offenses, etc. ( Id. ) The Harbor School implements a behavior modification program in the form of a daily point sheet and students may participate in extra-curricular activities if they maintain the point level expected of them. (SE-1; Testimony of Ms. Frontierro) It is a coed school that services students ages 13 to 18. There are up to 22 students in the Newbury campus at any given time. (Testimony of Ms. Lombard) The nighttime student staff ratio is three to one. (Id.) A psychiatrist is available to address issues that arise at night. (Testimony of Ms. Frontierro) The Harbor School follows the Massachusetts Curriculum Frameworks and its special education and regular education teachers are certified. (Testimony of Ms. Frontierro) There are approximately 6 to 8 students per class. ( Id .) The program also offers substance abuse counseling. (Testimony of Ms. Frontierro) Student has been accepted to attend the Harbor School on a residential basis. (Testimony of Mr. Capen) The school is located close to the Parents’ home. (Testimony of Ms. Lombard)
38. Mr. Capen discussed the Harbor School and the possibility of attending with Student but Student was not interested in entertaining any placement other than the home. Student stated that he wanted to be in school and go to college. (Testimony of Mr. Capen) The Parents do not support placement of Student at the Harbor School. (Testimony of Mr. Capen, Mother, Father) Mr. Capen opined that Student differed from other students at Harbor in that he seemed more intelligent, possessed better social skills, was more mature, and had parents who loved and were involved with him. ( Id .) However, in Mr. Capen’s, Ms. Lombard’s and Ms. Frontierro’s opinion, the Harbor School was an appropriate placement for Student as it could meet Student’s treatment, therapeutic and behavioral issues, which have gone unmanaged for three years as well as meet his educational needs. (Testimony of Mr. Capen, Ms. Lombard, Ms. Frontierro)
39. On September 16, 2003, Mr. Capen accompanied Student and the Parent to an interview at the Harbor School. Student showed very little investment in the interview and was not interested in learning about the different components of the program or the living arrangements. (Testimony of Mr. Capen, Mother) According to the Mother, Student knew another student who had been to the Harbor School and did not think that the rest of the students were like him or had the same issues. (Testimony of Mother)
40. On October 6, 2003, Hamilton-Wenham forwarded a proposed IEP to Student’s advocate and to the Parents/Student, following a Team meeting held on October 3, 2003. (SE-1) According to Hamilton-Wenham, the mother did not want the meeting to take place on said date as she claimed that she had not received sufficient notice. Additionally, Hamilton-Wenham scheduled an appointment for the Parents to meet with a representative from the Harbor School on October 15, 2003. (SE-1) However, the interview meeting at the Harbor School took place on October 16 th . (Testimony of Ms. Lombard)
41. The IEP drafted on October 3, 2003, called for placement of Student at the Harbor School’s day program for his ninth grade. (SE-1) The IEP states that Student presents with sensory, neurological and emotional disabilities as well as weaknesses in processing speed which impact his ability to efficiently and effectively finish assignments, especially writing assignments. (SE-1) This IEP, which covers the period from October 2003 through October 2004, offers Student direct academic support in other settings five times 300 minutes per five day cycle with a special program staff, and individual counseling with the therapist one time sixty minutes per cycle with a therapist. (SE-1) Student’s academic schedule at the Harbor School would include science, computers, English, math, history, culinary arts and physical education. (SE-1)
42. On October 24, 2003, Dr. Steven L. Nickman, child psychiatrist at Massachusetts General Hospital, wrote a letter on behalf of Student whom he evaluated on October 3 rd . (PE-1; Testimony of Dr. Nickman) Dr. Nickman has seen Student on approximately five to six occasions over the past two years, four times between the fall of 2001and the fall of 2002, and once or twice thereafter with the most recent appointment having taken place on October 3 rd . (Testimony of Dr. Nickman) In the past, he diagnosed Student with Attention Deficit Hyperactivity Disorder and a chronic depression with some anxiety for which he does not take medication. (Testimony of Dr. Nickman) Dr. Nickman recommended Student’s participation in a program that addressed his behavioral and emotional difficulties as well as his learning disabilities. He considered Student’s behavioral/psycho-emotional issues to be secondary. ( Id .) He concluded that an appropriate program should be able to remediate Student’s learning disabilities, offer therapy and provide a structured environment. (PE-1) He testified that Attorney Cline suggested Swift River School for Student. (Testimony of Dr. Nickman)
43. Student admitted to Mr. Capen that he was using marijuana a couple of days per week, and was continuing to do so at the time this hearing took place, but did not think that this constituted a problem for him. (Testimony of Mr. Capen) Also, in the past when he was taking medication, he shared his pills with friends. According to the Parents, he was depressed and had suicidal ideation in the past. (Testimony of Mr. Capen, Father, Mother) Three years ago Student was arrested when he was found in a car with an open container of alcohol with friends older than he. (Testimony of Father) Student’s drastic behavioral changes occurred when he was in the seventh and eighth grade. (Testimony of the Mother) Now, Student sleeps until approximately 1:00 p.m., and goes out with friends from 3:00 p.m. to approximately 11:00 p.m. (Testimony of Father, Mother) The Parents did not know Student’s friends well or did not know them at all. ( Id .)
44. On the date of hearing, the Parent requested that Student be placed at Swift River School, an unapproved program in Massachusetts with which DSS does not have a contract. (Testimony of Ms. Lombard) In order for DSS to approve such a placement, all other approved programs would have to be found inappropriate for Student. Parents were waiting to hear whether Student would be accepted to Swift River School. The Father testified that he is not willing to support Student’s placement at the Harbor School but could not state the features of a program he thought would be appropriate for Student. (Testimony of Father)
CONCLUSIONS OF LAW:
No dispute exists between the parties that Student has disabilities that fall within the purview of 20 U.S.C. § 1401 et seq . and M.G.L. 71B. Furthermore, the Parties agree that Student requires a residential placement to address his educational, emotional and behavioral needs. (Testimony of Mr. Frontierro, Mr. Capen, Ms. Lombard, the Mother) The Parties however, disagree as to the nature and degree of Student’s disability, as well as the appropriate location for delivery of services. (Testimony of Ms. Lombard, Ms. Frontierro, Parents) Since the Parties all agree that Student requires residential placement3 , it is only the question of which residential placement is appropriate for Student. Furthermore, DSS does not contest its share of the responsibility for funding the residential portion of Student’s placement. Similarly, Hamilton-Wenham does not contest its responsibility to cover the day program portion of the placement and has written an IEP to this effect.
Student presents with a specific language impairment, which coexists with his hearing loss. His written language scores are discrepant with his cognitive ability. (SE-37; PE-6; Testimony of Ms. Frontierro, Mother) He also has organizational and attentional issues. (PE-6; SE-19; SE-37; Testimony of Ms. Frontierro, Mother) In one evaluation, he demonstrated difficulties with math. (PE- 3; Testimony of Mother) Student has been diagnosed with Attention Deficit Hyperactivity Disorder and a Chronic Depression, and while in the past he was placed on Adderall with apparent positive results, he does not currently take any medication. (SE-32; Testimony of Dr. Nickman) Additionally, Student has a substance abuse problem, is defiant of parental rules and presents with other behavioral issues for which he is currently the subject of a CHINS petition. (Testimony of Mr. Capen, Ms.Lombard, Ms. Frontierro, Mother, Father)
The Parents hold Hamilton-Wenham responsible for Student’s current behavioral, educational and emotional issues. They, however, fail to see that in trying to be supportive their own inability to set an appropriate structure for Student in the home, by negotiating, excusing and or rewarding Student’s misbehavior, they have established a policy of laissez faire that contributed to Student’s present out-of control condition. (SE-32; SE-36) At the time of the evaluation by Ms. Demis, the Parents had never grounded or punished Student, allowed him to stay home when he did not wish to attend school; supported Student’s desire not to follow through with placements they chose, eg., Chamberlain, Crossroads, Commonwealth Learning Center; negotiated with him and implemented no consequences when Student did not meet keep his promise, etc. (SE-20; SE-25; SE-26; SE-31; SE-33; SE-35; Testimony of Ms. Frontierro, Mother)
Similarly, in an attempt to get the Student involved in an educational setting, Hamilton-Wenham has allowed Student and the Parent to successfully sabotage every reasonable educational opportunity. (SE-32) The evidence is persuasive that the Parents and Hamilton-Wenham acted in good faith, but the lack of consistency and accountability in both the school and home environments, as well as the breakdown in communication, impacted on Student negatively. (SE-32) The result is that both enabled Student to manipulate the adults into giving him control of the situation. Student is in desperate need of a very structured environment, with clear and consistent rules across all settings, where consequences are implemented for choosing inappropriate action and rewards are built in for proper response. (SE-32) Student has stated to the Parents that he wants to go to school with other students like him. (Testimony of Father, Mr. Capen) Student’s perception of himself and denial of his multiple issues prevent him from realistically assessing programs that may be appropriate for him. Student dismisses the impact that his chronic absenteeism, substance abuse, inability to commit to himself and others, increased defiance of adults’ rules and diminished motivation have had in the aggravation of his difficulties, regarding the impact of a hearing loss, writing issues, organizational, attentional and emotional issues. (Testimony of Ms. Frontierro, Mr. Capen, Mother) He needs a structure that he cannot receive at home but which he can receive through a therapeutic/behavioral residential program. (PE-5; Testimony of Ms. Lombard)
At this point Student requires the structure that only a therapeutic residential setting can offer. This is the only way to address his learning disabilities regarding a written language disorder, his attentional and organizational issues, to offer the level of remedial work he will need at this point to catch up, accommodate his hearing loss, as well as address the non-educational needs relating to the behavioral/emotional issues and substance abuse. (PE-5; Testimony of Mr. Capen, Ms. Frontierro, Ms. Lombard, Parents) The evidence is persuasive that Student needs a program that meets the recommendations made by Mr. Cornacchio, Ms. Demis, Dr. Kemper, Ms. Slovin and Dr. Schultz on whose reports and recommendations, as described in Findings of Fact #4, #8, #9, #10, #11, #13, #16, I rely. (PE-6; SE-32; SE-36; SE-37; SE-26)
The evidence as described in Findings of Fact #22, #23, #24, #25, #26, #27, #28, #30, #31, #32, #33, #34, #35, #36, shows that Hamilton-Wenham and DSS have worked arduously and cooperatively to provide Student appropriate educational opportunities over the past year. (SE-2; SE-11; SE-12; SE-13; SE-15; SE-23; SE-25; Testimony of Ms. Frontierro, Ms. Lombard, Mr. Capen) DSS and Hamilton-Wenham have agreed to cost share the residential placement and there is agreement among the Parties that this is what Student requires. Therefore, I turn to the appropriateness of the program proposed by DSS and Hamilton-Wenham, the Harbor School.
As stated before, the sole issue before me is whether the Harbor School constitutes an appropriate day and residential placement for Student where he can receive a FAPE while addressing other non-educational issues.
The Harbor School is a Massachusetts approved program located in Newbury, MA. which is two towns north of Hamilton-Wenham. (Testimony of Ms. Lombard) DSS has a contract to place students in this program residentially when warranted. (Testimony of Ms. Lombard) The Harbor School services students who are behaviorally disordered, present with emotional issues, have learning disabilities, or are court involved because of juvenile offenses. (Testimony of Ms. Lombard) The academic portion of the program follows the Massachusetts Curriculum Frameworks and has both certified special and regular education teachers on staff. (Testimony of Ms. Frontierro) The classes are comprised of approximately 6 to 8 students who function similarly. ( Id .) There are up to 22 students, ages 13 to 18, in the Newbury campus at any given time. (Testimony of Ms. Lombard) This is the campus that is being recommended for Student. The school combines a behavioral-structured component, educational services, focuses on skills for independent living, provides treatment regarding substance abuse and family work, provides individual counseling, and offers an anger management program. (Testimony of Ms. Lombard) The Harbor School implements a behavior modification program in the form of a daily point sheet and students may participate in extra-curricular activities if they maintain the point level expected of them. (SE-1; Testimony of Ms. Frontierro) The program also offers substance abuse counseling. (Testimony of Ms. Frontierro)
The IEP of October 3, 2003, calling for placement of Student at the Harbor School’s day program for his ninth grade, for the period from October 2003 through October 2004, offers Student direct academic support in other settings five times 300 minutes per five day cycle with a special program staff, and individual counseling with the therapist one time sixty minutes per cycle with a therapist. (SE-1) Student’s academic schedule at the Harbor School would include science, computers, English, math, history, culinary arts and physical education. (SE-1)
The residential portion of the program, which DSS has agreed to fund, offers students a very structured therapeutic environment where behavioral issues can be addressed consistently. (Testimony of Mr. Capen) The nighttime student staff ratio is three to one. (Id.) A psychiatrist is available to address issues that arise at night. (Testimony of Ms. Frontierro) Student has been accepted to attend the Harbor School’s residential program. (Testimony of Mr. Capen)
Student has stated that he does not wish to attend the Harbor School because students there are not like him. (Testimony of Mr. Capen, Mother) While it is true that his IQ may be higher than most other students at the Harbor School, when looking at his overall issues it is clear that he fits the description of the majority of the students there; he is out of control behaviorally, has learning disabilities, emotional issues, abuses illegal substances, and is court involved. (See fact # 11, 13, 14, 15,16, 25, 43; SE-1; SE-9; SE-32; SE-36; Testimony of Mr. Capen; Ms. Lombard) Only he and his Parents seem to be in denial as to the seriousness of his difficulties and he dismisses the fact that this may be his last opportunity to build a better future for himself.
As discussed in In Re: Southampton Public Schools District , BSEA # 03-0542, September 8, 2003,
“ In Massachusetts, the IEP proposed by the school district must offer Student a Free Appropriate Public Education that meets state educational standards4 . M.G.L. c. 71 B §1,2,3; see also 603 CMR 28.01 & 28.02 (21) In accordance with the federal law, Student must also have access to full participation in the general curriculum, to the maximum extent possible. Lastly, Student is entitled to be educated in the least restrictive environment appropriate to meet his/her individual needs.5 20 USC §1414(d)(1)(A)(iii); 34 CFR 300.347(a)(2)(i) and (a)(3)(ii); 64 Fed. Reg. No. 48, page 12595, column 1; MGL c. 71B § 1; 603 CMR 28.02 (12). See In re: Worcester Public Schools , BSEA # 00-0912, 6 MSER 194 (SEA MA 2000) and In re: Gill-Montague Public Schools District , BSEA # 02-1776, August 28, 2002. Removal from the regular education environment “occurs only when the nature and severity of the special needs is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily.” 603 CMR 28.118.0.”
The IDEA defines FAPE as “special education and related services that:
(A) have been provided at public expense, under public supervision and direction, and without charge;
(B) meet the standards of the State educational agency;
(C) include an appropriate preschool, elementary, or secondary school education in the State involved; and
(D) are provided in conformity with the individualized education program required under section 614 (d).6
In this regard, the First Circuit Court of Appeals asserted that the “school district is responsible to offer students meaningful access to an education through an IEP that provides “significant learning” and confers “meaningful benefit” to the student7 , through “personalized instruction with sufficient support services …”8 . The requirements of the law assure the student access to a public education rather than an education that maximizes the student’s individual potential. Lenn v. Portland School Committee , 998 F.2d 1083 (1 st Cir. 1993); GD v. Westmoreland School District , 930 F.2d 942 (1 st Cir. 1991).” In Re: Southampton Public Schools District , BSEA # 03-0542, September 8, 2003.
Student’s IEP must yield “effective results” and “demonstrable improvement” in the “various educational and personal skills identified as special needs”9 , according to the particular student’s individual potential.10
Consistent with the IDEA and the First Circuit, “the Massachusetts special education statute defines “special education” as “educational programs and assignments . . . designed to develop the educational potential of children with disabilities . . .” which permit a student to make meaningful educational progress .11 MGL c. 71B § 1, the special education statute in Massachusetts, requires that eligible students receive special education services designed to develop the student’s individual educational potential”12 consistent with the interpretation provided by other courts. Achievement of the measurable goals embodied in the student’s IEP determine whether the student has made educational progress.13 See also, In Re: Arlington Public Schools , BSEA # 02-1327, issued on July 23, 2002.” In Re: Southampton Public Schools District , BSEA # 03-0542, September 8, 2003. Under the federal and state standards in order the student is receiving a FAPE if he can make meaningful educational progress. DOE v. Board of Education of Tullahoma City Schools , 9 F.3d 455 (6 th Cir. 1993)
Upon careful consideration of the evidence, I find the IEP proposed for Student as described supra , in which Hamilton-Wenham offers to cover the day program portion of Student’s placement, and DSS agrees to cover the residential portion, is reasonably calculated to offer Student a Free Appropriate Public Education consistent with Federal and State law. (SE-1; SE-11; SE-26; SE-32; SE-34) At this time, the evidence is convincing that day placement with the residential component to address the non-educational issues, constitutes the least restrictive setting appropriate to meet Student’s current needs. I further find that the Harbor School’s residential program in Newburyport as described above, can address Student’s educational and non-educational issues.
Furthermore, the special education regulations in Massachusetts, mandate that students be placed in approved day or residential out of district placements when such an appropriate placement is available. 603 CMR 28:06 :(3 )(d) This regulation states in pertinent part:
Preference to approved programs : The school district shall, in all circumstances, first seek to place a student in a program approved by the Department pursuant to the requirements of 603 CMR 28.09… When an approved program is available to provide the services on the IEP, the district shall make such placement in the approved program in preference to any program not approved by the Department.
Having otherwise established the appropriateness of the Harbor School to meet the Student’s needs, since the Harbor School is an approved program under 603 CMR 28:09, and since DSS has a contract for services with said school, Hamilton-Wenham, together with DSS, must place Student at the Harbor School.
The regulations further establish an unequivocal preference for placements that are close to the Parents’ home. 603 CMR 28:06(2)(f)2. This regulation forbids looking for day or residential placements outside the city, town, or school district where the student resides unless it has first established that no suitable program exists in the student’s district. ( Id .) While located two towns north of Hamilton-Wenham, the Harbor School, located in Newbury, MA is the closest appropriate and available program to Student.
In the Parents’ Motion to Reopen the Evidence, denied, on October 29 th , the Parents state that Student refuses to attend the Harbor School and that he wished to attend the Academy of Swift River, a program unapproved by both DSS and DOE. While no evidence was presented on this unapproved program, this does not alter the final outcome of this case given that the Harbor School program, proposed by Hamilton-Wenham and DSS, was found appropriate. Parents’ argument that Student’s needs are unusual and therefore, call for an unusual placement is contrary to the evidence. (SE-32; Testimony of Mr. Capen, Ms. Lombard, Ms. Frontierro)
Given that the Harbor School has been deemed the appropriate program to meet Student’s needs, no further analysis of other programs need proceed. Due to my concern over the length of time that has lapsed since Student attended an educational program consistently, I order Hamilton-Wenham to work together with the staff at the Harbor School, and any other evaluator deemed appropriate, to re-evaluate Student once he has been stabilized in his new environment, so as to ascertain his current needs. Lastly, it is crucial that the differences between Hamilton-Wenham, DSS and the Parents be reconciled if this placement is to work for Student.
Hamilton-Wenham is ordered to place Student at the Harbor School and to cost-share the residential portion of this placement with DSS. DSS has agreed to cost-share said placement. Hamilton-Wenham is further ordered to conduct a full evaluation of Student inclusive of a psychological evaluation and projective testing to ascertain present levels of functioning. Additionally, Hamilton-Wenham shall collaborate with the Harbor School to offer the Parents training in effective discipline methods and behavior modification techniques to ensure consistency of structure across all settings. Finally, DSS and Hamilton-Wenham should seek implementation of this Decision if necessary in a Court with pertinent jurisdiction. Should the Harbor School not be available to Student, then Hamilton-Wenham and DSS must locate an equivalent program consistent with this decision.
By the Hearing Officer,
Rosa I. Figueroa
Dated: November 3, 2003
November 3, 2003
It should be noted that one of the concerns in this matter was Student’s chronic tardiness and/or absences from school. His mother arrived to the Pre-Hearing Conference on time but Student and the Father arrived 45 minutes late.
Following the Pre-Hearing Conference of September 19, 2003, new referral packets were sent to some of these schools at the request of the Hearing Officer, as well as to the Penekese Island program, at the request of Student’s Advocate. Some of the Programs agreed to reconsider, but the Parents did not follow through with the interviews. (Testimony of Ms. Frontierro)
Hamilton-Wenham, DSS, Mother and Father agree that Student requires residential placement but Student, who is 17 years of age wants to be in a private day program. Participation in at least three different private day programs has been attempted unsuccessfully during the past year.
In Massachusetts, State educational standards include those established by statute, MGL c. 71B §1, or established by regulations promulgated by the board of education including the Massachusetts State Curriculum Frameworks. See the Mass. Department of Education’s Administrative Advisory SPED 2002-1: Guidance on the change in special education standard of service from “maximum possible development” to “free appropriate public education” (“FAPE”), Effective January 1, 2002 (hereafter Mass . FAPE Advisory ), 7 MSER Quarterly Reports 1 (2001).
20 USC 1412(5)(A); 603 CMR 28.
33 USC 1401(8). The federal regulations adopted pursuant to the IDEA include a similar definition of FAPE. 34 CFR 300.13.
For a discussion of FAPE see Hendrick Hudson Bd. Of Education v. Rowley , 458 U.S. 176, 188-189 (2992); Cedar Rapids Community School District v. Garret F., 526 U.S. 66 (1999); Burlington v. Department of Education , 736 F. 2d 773 (1 st Cir. 1984). Houston Independent School District v. Bobby R ., 200 F.3d 341 (5 th Cir. 2000); Stockton by Stockton v. Barbour County Bd. of Educ ., 25 IDELR 1076 (4 th Cir. 1997); MC v. Central Regional School District , 81 F.3d 389 (3 rd Cir. 1996), cert. denied 519 US 866 (1966); Ridgewood Board of Education v. NE , 30 IDELR 41 (3 rd Cir. 1999). See also GD v. Westmoreland School District , 930 F.3d 942 (1 st Cir. 1991).
Board of Education of Hendrick Hudson Central School District v. Rowley, 458 U.S. 176, 203, 102 S.Ct. 3034, 3049 (1982).
Lenn v. Portland School Committee , 998 F.2d 1083 (1 st Cir. 1993) (program must be “reasonably calculated to provide ‘effective results’ and ‘demonstrable improvement’ in the various ‘educational and personal skills identified as special needs’”); Roland v. Concord School Committee , 910 F.2d 983 (1 st Cir. 1990); Burlington v. Department of Education , 736 F.2d 773, 788 (1 st Cir. 1984).
Houston Independent School District v. Bobby R ., 200 F.3d 341 (5 th Cir. 2000) (a disabled child’s development must be measured with respect to the individual student, not by his relation to the rest of the class, as declining percentile scores may represent the student’s inability to maintain the same level of academic progress achieved by regular peers and not necessarily a lack of educational benefit); Ridgewood Board of Education v. NE , 172 F.3d 238 (3 rd Cir. 1999); MC v. Central Regional School District , 81 F.3d 389 (3 rd Cir. 1996), cert. denied 519 US 866 (1996); Roland v. Concord School Committee , 910 F.2d 983 ( 1 st Cir. 1990); Kevin T. v. Elmhurst , 36 IDELR 153 (N.D. Ill. 2002).
The Massachusetts Department of Education (DOE) stated that the “FAPE standard . . . requires the school district to provide personalized instruction tailored to the student’s needs, with sufficient support services to permit the student to make meaningful educational progress .” Mass . FAPE Advisory (see footnote 8 above for full title and citation of Advisory) (emphasis supplied).
603 CMR 28.01(3). The Massachusetts Department of Education has also noted that the Massachusetts Education Reform Act “underscores the Commonwealth’s commitment to assist all students to reach their full educational potential.” Mass . FAPE Advisory (see footnote 8 above for full title and citation of the Advisory). MGL c. 69, §1 states in part that a paramount goal of the commonwealth is “to provide a public education system of sufficient quality to extend to all children the opportunity to reach their full potential.”
County of San Diego v. California Special Educ. Hearing Office, 93 F.3d 1458 (9th Cir. 1996) (the correct standard for measuring educational benefit under the IDEA is whether the child makes progress toward the goals set forth in IEP and not just whether the placement is reasonably calculated to provide the student educational benefits.); Evans v. Board of Education of the Rhinebeck Central School District , 930 F.Supp. 83 (S.D. N.Y. 1996) (the IEP must include measurable criteria to assess the student’s progress).