Harwich Public Schools – BSEA #01-0627
COMMONWEALTH OF MASSACHUSETTS
SPECIAL EDUCATION APPEALS
In Re: Harwich Public Schools BSEA # 01-0627
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), M.G.L. chs. 30A (state administrative procedure act) and 71B (state special education law), and the regulations promulgated under said statutes.
A hearing was held before William Crane, Hearing Officer, on December 14 and 15, 2000 in Plymouth, MA, on December 18, 2000 in Malden, MA, on February 2, 2001 in Plymouth, MA, and on February 5 and 6, 2001 in Harwich, MA. Those present for all or part of the proceedings were:
Luray Wallace Attorney for Parents
Sam Schoenfeld Attorney for Parents
Roland Chaput Educational Advocate for Parents
Mary Gallant Attorney for Harwich Public Schools
Dena Sarke Attorney for Harwich Public Schools
Marsha Stevens Educational Consultant
James Hartley Administrator of Special Education, Harwich Public Schools
Russell Maguire Behavioral Consultant
Diane Turco Special Education Teacher, Harwich Public Schools
Jill Monast School Psychologist, Harwich Public Schools
Linda Ford Teacher, Harwich Public Schools
Joan Alvezi Teacher, Harwich Public Schools
Roberta Pulaski Director of Education, Cardinal Cushing School
Cheryl Clark Teacher, Cardinal Cushing School
Janet Coe Alternative Educational Assistant, Harwich Public Schools
Jacalyn Costello Speech/Language Pathologist, Harwich Public Schools
Leslie Chizek Speech/Language Pathologist, Harwich Public Schools
Linda Dillon Occupational Therapist, Cape Cod Collaborative
Wendy Wilcoxen Mental Health Clinician, Cardinal Cushing School
Andrea Giordani Behavior Specialist, Cardinal Cushing School
Yvette Ringuette Child Care Worker, Cardinal Cushing School
Kristine Duhamel Student Services Coordinator, Cardinal Cushing School
Kathryn Gianno Court Reporter
Linda Campagna-Fowler Court Reporter
The official record of the hearing includes documents submitted by Student’s parents (hereafter, Parents) and marked as Exhibits 1 through 54 (hereafter, Exhibit P-1, etc.); documents submitted by the Harwich Public Schools (HPS) and marked as Exhibits 1 through 35 (hereafter, Exhibit S-1, etc.); and six days of recorded oral testimony and argument. The hearing was transcribed by professional court reporters, and their written transcript constitutes the official record of the Hearing. Written closing arguments were initially due on March 16, 2001, the due date was extended to April 3, 2001 and the record closed on that date.
Is the IEP for the period 2/1/00 to 2/1/01 (Exhibits S-1, P-9) proposed for Student by Harwich Public Schools reasonably calculated to assure her maximum possible educational development in the least restrictive environment consistent with that goal? If not, does Student’s program at the Cardinal Cushing School (where Parents have unilaterally placed Student) meet the federal standard of an appropriate educational placement and if so, are Parents entitled to reimbursement for expenses associated with this placement?
PROFILE AND HISTORY
Student is a twelve-year-old child (date of birth 2/1/89) with a diagnosis of global developmental delay, cerebral palsy and seizure disorder. Student received early intervention services until age three when she was accepted into the Harwich Pre-School program. She has attended public school in Harwich through 4 th grade (the 1999-2000 academic year). Testimony of Student’s mother (hereafter, Mother), Turco, Stevens, Maguire.
Student’s IEP for the period 1/1/97 to 1/1/98 (1 st into 2 nd grades) provides for a half hour, three times per day of special education services; a half hour, twice per week of speech/language therapy; and a half hour, twice per week of occupational therapy. The IEP further provides for ongoing special education support in the inclusion classes, and for special education consultation services of a half hour, once per week. This IEP was accepted by Parents. Exhibits S-20, P-6.
Student’s IEP for the period 1/30/98 to 1/30/99 (2 nd into 3 rd grades) provides for the same amount of services as the previous IEP. The IEP also provides for the same special education consultation services as the previous IEP, but adds one-quarter hour of consultation time each for speech/language and physical therapy. This IEP was also accepted by Parents. Exhibits S-17, P-7.
Student’s IEP for the period 2/1/99 to 2/1/00 (3 rd into 4 th grades) provides for the same amount of services and consultation as the previous IEP with the following adjustments. The special education services (now referred to as academic support) are all listed as pull-out services, the speech/language services are moved to a pull-out model, the academic support within the inclusion model is changed from ongoing to four and a half hours per day, and the one-quarter hour of consultation time regarding physical therapy was dropped. This IEP was also accepted by Parents. Exhibits S-15, P-8.
Student’s most recent IEP, which is proposed by Harwich Public Schools for the period 2/1/00 to 2/1/01 (4 th into 5 th grades), provides for the same services and consultation as in the previous IEP (for 3 rd into 4 th grades), except that the pull-out special education services (called academic support) have been increased by an hour each day and the inclusion special education services (academic support) has been changed to ongoing. The services in this IEP (Exhibits S-1, P-9) may be summarized as follows:
· pull-out services: two and a half hours each day of academic support; a half hour, twice per week of speech/language therapy; and a half hour, twice per week of occupational therapy;
· inclusion services: ongoing academic support of a 1:1 aide during regular education classes (amount of support varies as to subject of class); and
· consultation services: speech/language consultation of fifteen minutes once per week and academic support consultation of a half hour, once per week.
The IEP also described continuation of a therapeutic horseback riding program and swimming at the WYCA, and the opportunity to participate in after-school enrichment activities with support to provide practice for social interactions and leisure skills development. The IEP also notes that her educational program will incorporate life skills and prevocational activities, and describes modifications including but not limited to the following: breaking assignments into shorter, modified tasks; individualized worksheets; set a specific daily routine and schedule; use peer models and supports; provide books at Student’s level; and allow some freedom of movement during transition times. Exhibits S-1, P-9.
Parents rejected this most recent IEP on March 13, 2000, and on September 19, 2000, they privately placed their daughter in a residential program at the Cardinal Cushing School and Training Center (hereafter, Cardinal Cushing or Cardinal Cushing School) in Hanover, MA, which program Student has attended since that date. Testimony of Mother; Exhibits S-1, P-9.
STATEMENT OF THE EVIDENCE
Mother testified that Student is often loving, friendly and sweet. But, Mother noted that at other times, Student has significant behavioral problems which include relatively minor incidents (e.g., refusing to get into the car or refusing to sit down for dinner) as well as more significant behavioral incident which Mother characterized as “meltdowns.” She explained that the meltdown behavior incidents, occurring approximately three to five times per week, often include lying on the floor and screaming. Mother explained that, for example, Student has sometimes been disruptive in school by screaming in the hallway during transitioning from one activity to another. She noted that these meltdowns, which usually happen in a public setting, including school, are sometimes predictable and other times not, and last from several minutes to ten or twenty minutes. According to Mother, Student has had significant behavioral problems from before her first birthday through the present time; in general her behavior has remained a constant through the present time; but there has been some improvement in certain behaviors in that it is now possible to move Student more quickly out of the behavior problem. Mother explained that Student’s behavior is Mother’s biggest concern because the behavior incidents do not help her daughter with her social and academic development and, in effect, become the stopping point in her daughter’s development. Mother also noted her concern that her daughter gets to know strangers quite quickly, especially men.
Mother testified that her daughter rode the bus with other students during kindergarten through 4 th grade, and the bus driver had reported to her during 4 th grade that, at times, Student was disruptive on the bus — for example, screaming. Mother was also told that her daughter had difficulties staying in her seat, that she would sometimes hit other children and that sometimes she would be teased by the other children. Mother testified that these incidents were reported to her, and Mother often communicated these concerns to Ms. Turco (Student’s special education teacher) as well as the need for a bus monitor, but a monitor was never provided. Mother noted that Ms. Turco had recommended that Student sit in a first row seat on the bus where Student has done better in the past. Mother also testified that Student had difficulty transitioning off the bus in the morning — that is, she has refused to get off the bus and needed help from either school staff or her brother in order to transition off the bus.
Mother testified that Student had a behavior plan (Exhibits P-19, P-28, S-29) from kindergarten through 3 rd grade, and that Mother had worked with the school to try to address Student’s behaviors.
Mother testified that with respect to self-care and other activities of daily living, Student is not able to take care of herself as a typical student would be able to — for example, Student cannot shower independently, she does not have the capability to be safe in the community (especially near automobiles), she can dress herself except that she still cannot tie her shoes, and she knows what money is but cannot always identify a particular coin. Mother explained that she continually works with her daughter on personal care issues.
Mother testified that Student began attending Harwich Public Schools at age three in an integrated pre-school pre-kindergarten program when her developmental age was approximately the same as her chronological age. She noted that, at that time, there was very good communication between her and the school system, and she was generally satisfied with the educational services provided her daughter. Mother noted that she continued to be satisfied with the educational services that she was receiving from the public school system through 2 nd grade.
Mother testified that in 3 rd grade, she observed that Student began to have more difficulty keeping up with her typical peers in school as compared to previous years and she expressed concerns to her daughter’s teacher about how well her daughter was able to keep up academically in the regular education classroom. Mother also noted that outside of school, the gap between her daughter and her peers was growing in terms of interests, communication skills and other abilities.
Mother testified that at a meeting with school officials in June 1999, which was at the end of Students 3 rd grade year, she expressed concerns as to how Student would do at school next year, 4 th grade, as the academic work would be more challenging for her daughter. She noted that she also expressed concerns about her daughter’s behavioral issues and the impact of this behavior on Student as well as her classmates.
Mother met with Student’s regular education teacher (Ms. Ford) in September or October of Students 4 th grade year and asked how things were going. Mother remembers that Ms. Ford explained that Student was very frustrated at school and that the curriculum was very difficult for her, and Ms. Ford asked if Mother had considered a private special education school for her daughter. Mother testified that in 4 th grade, she visited Ms. Turco’s class as well as Ms. Ford’s class and observed in Ms. Ford’s class that her daughter wandered in the classroom rather than participating in the class activity.
Mother testified that in 4 th grade, she noted that her daughter was no longer invited by her peers to play (except one invitation from a typical peer) and that when friends came to her house to play, Student would be frustrated and could not keep up with their level of play.
Mother testified that during 4 th grade, she considered and made visits to various private special education schools, and at a February 2000 Team meeting with school officials, she explained to Harwich Public Schools staff that she and her husband were considering private placement at Cardinal Cushing School. Mother also testified that prior to the February 2000 meeting, she had advised Harwich Public Schools staff that her daughter had completed a four-day over-night evaluation period for purposes of admission application at Cardinal Cushing School.
Mother testified that she observed her daughter participate in adapted physical education at Cardinal Cushing school in the fall of 2000 and saw that her daughter was a very active participant in a variety of activities. Mother also testified that over the past three months at Cardinal Cushing, Student has made progress regarding her personal care — for example, her daughter has begun to wash her hands independently after using the toilet.
Mother testified that she considered a day program, as compared to a residential program, for her daughter at Cardinal Cushing but was told by Cardinal Cushing staff that the day students could not be involved in any after-school, or other organized extracurricular activities. Mother testified that at Cardinal Cushing, her daughter participates in extracurricular activities, including Girl Scouts, walking club, and outings to different places. She further explained that her daughter needs a very structured day, including an extended day beyond the normal academic period. She noted that Harwich Public Schools had indicated that for 5 th grade, her daughter would have an extended day program with extracurricular activities.
Mother testified that at the February 2000 Team meeting, the Harwich staff discussed the 5 th grade for her daughter. She noted that Mr. Hartley (HPS Director or Special Education) explained that Harwich was working on the staffing and the programming for a 5 th grade program for her daughter but that a specific program had not yet been developed to offer to her, and they (he and Parents) would talk further in May about a proposed program. Mother testified that there were no subsequent discussions with school staff regarding a proposed program for her daughter nor was there any other information provided from the school regarding a proposed 5 th grade program – that is, she was never told what kind of program the school was considering even though their advocate contacted school officials in June, requesting further information.
Father testified that in November 1999, he and his wife went to observe the Harwich Middle School that his daughter would attend if she continued to be at the public schools. He explained that he has, in general, many concerns about his daughter including her physical safety, who might tease her, whether she will get her medication on time, etc. He also noted that his daughter is very friendly with literally anyone, including strangers. He stated that he observed his daughter in gym class at Cardinal Cushing where each child is able to participate at his or her own level. He noted that his daughter comes home from Cardinal Cushing every weekend.
Student’s sister testified that she is fourteen years old and attends the 9 th grade at the Harwich High School. She explained that her sister is very friendly, she loves to introduce herself to other people, she says “hi” to almost anyone who might be walking by, and she frequently gives hugs.
Student’s sister testified that she has observed Student having a difficult time transitioning from one activity to another and when this occurs at home, everyone in the family helps with the situation. She explained that this sometimes occurs when her sister does not want to do what she is being asked to do, and she may then fall down on the floor and have a “fit.” She noted that when a lot of people are around her sister or commotion is occurring near her sister and there are distractions, it is sometimes difficult for her sister to do what is expected of her. She explained that at the Harwich Middle School in 5 th grade, changing classes would be somewhat difficult for Student but not as difficult as it would be in the 6 th , 7 th , and 8 th grades when the hallways would likely be more crowded with more distractions and therefore more difficult for Student to transition from one activity to another.
Student’s sister testified that she is very close to her sister and when her sister is home, she spends at least an hour a day with her. She also noted that she talks to her sister every night while she is at Cardinal Cushing. She further testified that Student has had a few friends from the HPS elementary school who are regular education students.
Roland Chaput testified that he has been Student’s educational advocate from 1 st grade through the present. He noted that he has attended some but not all of the meetings held between Parents and the public school staff including some of the team meetings and some of the transition meetings.
Mr. Chaput testified that he has a masters degree in education, that he has been an elementary and middle school teacher for approximately 10 years, and he has been an elementary school principal for 3 years. He noted also that he has received training as an educational advocate and, as part of this training, was taught to observe a child in his/her program. He further noted that as a principal, he occasionally observed a classroom.
Mr. Chaput testified that he observed Student in her classroom to see what services she was receiving. He explained that he observed Student for a full period of approximately 30 to 35 minutes during her regular education class in 3 rd grade. He noted that what the children were learning in the 3 rd grade appeared to be difficult for Student to understand; Student would appear to lose contact with the lesson being taught and was not given additional assistance so that she would be able to understand the academic materials. Mr. Chaput explained that he came to this conclusion on the basis of his observation and his understanding of Student’s cognitive level, as reflected on her standardized testing.
Mr. Chaput testified that he observed Student in her regular education 4 th grade class. However he explained that he did not request to see work assignments for Student or her peers. He also noted that he was not aware of whether there were any modifications in the curriculum for Student in this classroom.
Mr. Chaput testified that he observed Ms. Turco’s 4 th grade special education class in November 1999 for 20 to 30 minutes, and in his opinion, the pull-out services with Ms. Turco were working well although the transitioning from one class to another or one activity to another was difficult for Student at times.
Mr. Chaput testified that he observed a gym class in 4 th grade where Student was not part of any of the teams that were involved in the physical activities but instead Student had a ball off by herself and her aide was with her, trying to keep Student out of the way of the other children.
Mr. Chaput testified that, in his opinion, the gap is getting larger between the expectations for the regular education students and the capabilities of Student. Mr. Chaput explained that Student’s academic abilities have not been developing as quickly as those of her typical peers. Mr. Chaput based these opinions on his classroom observations of Student in November 1999 and the psychological testing of Student’s abilities as conducted by the Harwich Public Schools.
Mr. Chaput testified that in June 1999, he attended a transition meeting with school staff and at that time, he asked that (for next year, 4 th grade) Student be provided with less time in pullout and more time in inclusion classes, and he requested certain accommodations or modifications (for example advanced work papers for the aide) so that the curriculum would be more accessible to Student at her level. He explained that the school made no subsequent changes that were requested by him, that there was never an IEP meeting called to address changes in the IEP to reflect his recommendations, and that he did not request that the Team convene for this purpose.
Mr. Chaput testified that in October 1999, he explained to Mr. Stout (Harwich Public Schools Assistant Principal) that Parents were considering a private placement and at Mr. Stout’s suggestion, Mr. Chaput and Parents visited a 5 th grade inclusion program with pull-out services and talked with a 5 th grade teacher. Mr. Chaput explained that the teacher advised them that the program would likely be different next year (when Student would be in 5 th grade) since the program would depend on the number of children (and their disabilities) and the children would likely be different than this year.
Mr. Chaput testified that he next asked the school officials about these issues at the February 2000 Team meeting when the Harwich staff discussed 5 th grade for Student. He noted that the meeting included staff from the Middle School who explained 5 th grade in general (an inclusion program with pull-out services) but did not describe a particular program that would be available for Student. Mr. Chaput testified that the Harwich staff could give no specifics regarding the particular program that would be offered Student because no program yet existed for Student but instead stated that a program would be developed for her.
Mr. Chaput testified that he waited until the first week of June 2000 when, at that point, he had not heard back further from school officials regarding 5 th grade for Student, he called Mr. Stout to ask about a specific program for Student. He noted that when he talked to Mr. Stout, Parents were still looking for a 5 th grade program within the Harwich Public Schools and had not yet decided whether Student would attend Cardinal Cushing School. He explained that Mr. Stout told him that a program for Student was still being developed and therefore there was “nothing to see and nothing to talk about.” He testified that he then told Mr. Stout that because there was no specific program available for Parents to consider, Parents would be considering a private placement. Mr. Chaput testified that Mr. Stout did not explain when additional information would be available to the Parents or Mr. Chaput regarding a program at the Harwich Public Schools for Student.
Mr. Chaput testified that after this June 2000 telephone conversation, no further information was available from the school until a letter was sent to the Parents from Mr. Hartley, dated September 25, 2000. Exhibit P-40. The letter explained what would be provided in 5 th grade by way of an attached functional curriculum which would be used to develop a 5 th grade program and offered a meeting with Parents; but Mr. Chaput testified that, in his opinion, this letter and its attachment did not address the question as to what specific program would be offered Student and because Harwich still did not have a specific program to offer Student, he and the Parents declined to attend the proposed meeting.
Roberta Mahoney Pulaski testified that she is currently and has been since 1998 the Director of Education at Cardinal Cushing. She explained that she has been working at Cardinal Cushing since 1981. Ms. Pulaski testified that at Cardinal Cushing, the primary diagnosis of all children is mental retardation, and the programs work toward teaching children functional living skills. She explained that Cardinal Cushing is based on an integrating, trans-disciplinary model that involves all the departments at the school working in a coordinated manner.
Ms. Pulaski testified that for each student, the educational program is individualized, and each student is grouped with other students based on age, behavior, social development, emotional needs and academic testing.
Ms. Pulaski testified that, in each case, a prospective student visits Cardinal Cushing for evaluations to determine, in general, the appropriateness of Cardinal Cushing and, in particular, whether Cardinal Cushing can meet the student’s needs. She noted that during the evaluation period, there is an opportunity for staff to observe the student interacting in the educational program at Cardinal Cushing. She testified that the Cardinal Cushing Board of Admission then makes a decision whether or not to offer admission to that student.
Ms. Pulaski testified that Exhibit P-36 is the academic evaluation done by Cardinal Cushing for Student. She noted that Student has been assigned to the life skills 2 group, she noted that life skills 1 is the main entry level for children at her age, but Student has stronger academics than typically found in life skills 1, and therefore Cardinal Cushing concluded that Student would fit better into the life skills 2 group.
Ms. Pulaski testified that the day program at Cardinal Cushing begins at 8:15 AM and ends at 2:45 PM for both day and residential students. She noted that the program is language-based and is in line with the Massachusetts Curriculum Frameworks. She further explained that Cardinal Cushing has adapted physical education each day for students and that art, music and technology are provided once a week to each student. She further explained that speech and language therapy is integrated into the program. She noted that the after-school activities, which include continued teaching of daily living skills, take place in the residence after 2:45 PM.
Ms. Pulaski testified that at 2:45 PM, the students leave the school building and the residential students begin the residential component of the program, which includes taking care of personal hygiene and one’s room (and lessons by staff regarding these activities). She further explained that after 2:45 PM, there are also outings and other recreational activities, and the teachers and therapists at Cardinal Cushing are also involved in these extracurricular activities. She noted that there is no extended day program for day students at Cardinal Cushing.
Ms. Pulaski testified that there is face-to-face communication as well as a communication log between the day and residential staff in order to ensure a sharing of information between these staff people regarding activities, incidents and other issues.
Ms. Pulaski testified that in Student’s group, there are 6 children (including Student) with 2 full-time staff and an additional half-time staff as needed. Ms. Pulaski stated that, in her opinion, it is only with respect to reading that Student is above the academic or social levels of the other children in her group, and staff are considering whether to move Student to a higher reading group. She further explained that compared to the other children in the group, Student needs the most intensive support for her behavior. She explained that in the other areas, Student has similar interests and abilities.
Ms. Pulaski testified that Student’s behaviors are a concern. She explained the support that Student is receiving regarding her behavior, including prompts before transitioning as well as visual cues, and that sometime physical assistance is needed to move her from one activity to another. She noted that Student does not have a current individual behavior plan but one may be needed in the future.
Ms. Pulaski testified that Student is in a social skills program called circle skills, which teaches boundaries. She noted that social boundaries is an issue for Student as well as for many of her peers. Ms. Pulaski also testified that Cardinal Cushing has an educational component for children who are reaching puberty, and the program includes personal care as well as education regarding what is happening within one’s body.
Christian Duhamel testified that she is currently employed at the Cardinal Cushing School in a position of Student Services Coordinator, a position that she has held since September 1999. Her qualifications include a masters degree in social work and experience in the field since 1992, working with non-developmentally delayed children as well as developmentally delayed children. See her resume, Exhibit P-54. She noted that she is also a psychotherapist at Duxbury Counseling Services in Plymouth where she provides therapy services to children, adolescents and adults. She explained that presently at Cardinal Cushing, she is Student’s Services Coordinator, with responsibilities for drafting Student’s IEP, overseeing all of Student’s services, and acting as a liaison with Parents and the Student’s public school system.
Ms. Duhamel testified that she has observed Student on numerous occasions, typically at least once each day, and she has noticed that Student enjoys being with and interacting with her peers at Cardinal Cushing by playing with dolls and engaging in other fictional play. Ms. Duhamel explained that Student is well-liked at Cardinal Cushing and has developed “real” friendships. She further explained that Student would likely have little in common with age peers who are not developmentally delayed because it would be difficult for Student to relate to what most non-developmentally delayed children her age are interested in and would likely therefore feel left out and uncomfortable.
Ms. Duhamel testified that, based on her review of the evaluation performed by Sister Clarinda Zech (Exhibit P-36), she concluded that Student is functioning at the 5.5 to 6 year-old level.
Ms. Duhamel testified that classes started this academic year at Cardinal Cushing on September 5, 2000 but Student’s start date was September 19, 2000 which was the date that Cardinal Cushing’s placement agreement was signed by Parents. She explained that this agreement is what confirms a student’s attendance at Cardinal Cushing.
Ms. Duhamel testified that the residential services at Cardinal Cushing begin at 2:45 PM and extend until 8:00 AM the next morning. She noted that there are many activities during that time, including between 3:00 PM and 4:30 PM when each student typically has a chore to perform as well as being involved in structured activities, depending on the individual interests of the particular student. She further explained that at 4:30 PM there is a transition to dinner and usually at 6:00 PM there is a transition back to the dormitory and often then an opportunity for a further activity such as exercise. She noted that there is then an opportunity for showering, phone calls with family, human development and hygiene classes, and other activities until 9:00 PM; and from 9:00 PM until 6:30 AM the children are typically asleep.
Ms. Duhamel testified that the Cardinal Cushing draft IEP (Exhibit P-10) is not a complete document but does include four priority areas that Cardinal Cushing staff have seen as crucial to student’s development. She explained that Cardinal Cushing staff are therefore using these as target areas. She noted that three of the four priority areas are improving Student’s ability to transition from one activity or task to another, improving her ability to travel in a group and improving her ability to gain attention from others appropriately.
Ms. Duhamel testified that each of the priority goals is addressed in all program settings (residential as well as day) at Cardinal Cushing so that everyone working with Student reinforces the learning process. She explained, as an example, that Student has difficulty traveling places as she often does not stay with the group and is not aware of potentially dangerous situations; therefore all of the Cardinal Cushing staff, in all settings and at various times, work with Student through cueing and reminding her of how to stay with and travel with the group appropriately.
Ms. Duhamel testified that occupationally therapy, speech language therapy and physical therapy are provided to Student in a “natural” setting which is typically with other children; in other words, the special education services are brought into the setting that Student is in at that time. She explained, for example, that a specialist will go on an outing with Student or will go into the residence with Student so that the services do not require Student to be separated out from the activity or group that she is involved with. Therefore, she explained, there are no “pull-out” services for Student – that is, services that require Student to be pulled out of her educational activities.
Ms. Duhamel testified that Student participates in a program for young women who are approaching puberty; the purpose of the program is to teach students, at an appropriate developmentally-delayed level, regarding body changes and body care, including health and hygiene. Ms. Duhamel explained that this is done in a small group, usually 2 or 3 girls so that the girls gain some independence regarding these issues.
Ms. Duhamel testified that Student has had significant difficulties at Cardinal Cushing with transitions. She explained that Student has had instances of “extreme” noncompliance – for example, she has had episodes of shutting down, and she has had episodes of putting her self at risk (making herself extremely difficult to get out a building during a fire alarm and requiring two staff people to physically remove her from the building). She noted that Student also had episodes of trantrumming, including crying, kicking and screaming. She further noted that Student is not on an individual behavior plan but, instead, all staff follow Cardinal Cushing’s universal code of conduct with Student.
Ms. Duhamel testified that Student is grouped with children aged 13-16, who are at her developmental age.
Ms. Duhamel testified that there is a swimming program at Cardinal Cushing and that although Student does not currently participate in this program, she will have an opportunity to do so at a later date; and when she does, it will be every Friday for 1 ½ hours for 6 to 8 weeks. In addition, during the summer, she will have access to the pool on the grounds of Cardinal Cushing. Ms. Duhamel also testified that Cardinal Cushing has a horseback riding program and that Student will have an opportunity to participate in it. Ms. Duhamel also testified that Student is on the cheerleading squad at Cardinal Cushing.
Ms. Duhamel testified that Student is currently on a 281-day program, and goes home for 4 weeks during summer breaks as well as during school vacations and weekends.
Ms. Duhamel testified that Student needs specialized transportation services, including riding the bus with a monitor and using a seat belt.
Ms. Duhamel testified that there are no typically developing peers in Student’s day or residential program, but she noted that there are opportunities at Cardinal Cushing to learn age-appropriate skills, including activities in the community such as Girl Scout activities as well as community excursions. She also noted that team play teaches Student age appropriate skills. Ms. Duhamel testified, based on her observations, that Student continues to function on a kindergarten to first grade level, consistent with Sister Zech’s evaluation. She also noted that Student needs the most staff intensive support of all of those children in her group as result of her behavioral issues.
Ms. Duhamel testified that, in her opinion, in order for Student to obtain the maximum benefit from her educational services at Cardinal Cushing (including what she is learning in the areas of academic and vocational development as well as social, hygiene and other health issues), her education needs to be carried over into the residential part of the program since the residential program insures that students have the educational and related skills reinforced in the remaining parts of the day. Ms. Duhamel further noted that this is particularly true with Student because she needs repetition and reinforcement of the development of her skills in life situations, regarding her behavior as well as other areas that are currently being addressed by Cardinal Cushing. She further explained that the repetition and reinforcement occurs through the support and structure of the total teaching environment at Cardinal Cushing.
Cheryl Clark testified that she is employed at Cardinal Cushing as a classroom teacher and has held this position since August 1998. She also noted that she has been teaching for 9
years on a full-time basis. She explained that she is currently Student’s teacher.
Ms. Clark testified that, with respect to Student, she addresses science, social studies, reading and math. She further testified that in addition to these more traditional academic subjects, she works on social skills (including structured lessons in this area), health and hygiene, activities of daily living skills, behavioral skills, functional applied academics, and language development. She further explained that each day Student works on activities of daily living skills (for example, hygiene including toileting and hand-washing immediately following toileting) and that Student participates in a health curriculum (which is a part of the adapted physical education) once each week. She noted that Student came to Cardinal Cushing in the fall with some independent skills in these areas. She further noted that the academics at Cardinal Cushing have been aligned so that they follow the Massachusetts Frameworks Curriculum.
Ms. Clark testified that she has observed that Student gets along well with her classmates, often appearing happy, smiling, playing games with them, playing outside with them and interacting with them in other ways. Ms. Clark testified that behaviorally Student has experienced problems particularly with respect to transitioning from one activity or location to another. She explained that this usually happens approximately once out of the 3 (or occasionally 4) transitions each day. Ms. Clark noted that the behavior difficulties last anywhere from 2 to 3 minutes up to approximately 10 minutes (typically, 5 to 10 minutes), and that during these times, Student sometimes yells and slumps to the floor, shutting down and becoming noncompliant. Ms. Clark further testified that although she continues to have some of the same transition problems since arriving at Cardinal Cushing, Student has made significant gains with respect to transitioning to the lunchroom. Ms. Clark explained that it has been 4 weeks since Student has had any transitioning problems going to lunch and prior to that, for approximately 3 days a week there were transitioning problems regarding lunch and prior to that there were transitioning problems almost every day regarding lunch. Ms. Clark explained that staff work on transitioning by previewing with Student her schedule each day.
Ms. Clark testified that with respect to an outing to the New England Patriots’ football stadium, Student had a “meltdown” and needed a two-person transport to move her out of the way and as a result, Student was not able to participate in this outing. She also noted similarly with respect to each fire drill that has occurred, there has been a “meltdown” and Student required two persons to move her to a place outside of the building.
Ms. Clark testified that Student’s class participation has increased. She noted that when Student first arrived, she needed coaxing in order to participate but now volunteers to participate every day.
Ms. Clark testified that she takes her class into the community usually twice a week (for example, to a bakery or to a food store) and during these outing, she works with all of her students on safety skills, functional reading, staying with the group, and money skills. During these times she is also working with her students regarding their practical math skills — for example, when paying for items that they have purchased. When the outing is to a food store, she and her class return to Cardinal Cushing and cook the food, preparing it for the class to eat.
Ms. Clark testified that the speech and language teacher accompanies her class once a week in order to provide speech language services in the context of the activity.
Ms. Clark testified that there is ongoing contact everyday between the academic staff (which includes her) and the residential staff at Cardinal Cushing, using a communication log as well as face to face communication.
Ms. Clark testified that Student, during the entire time that she has been at Cardinal Cushing, has always been well-mannered and able to greet people, except for the times when she is involved in a behavioral incident. Ms. Clark also explained that she is not with Student in art, gym, and recess when her students leave the classroom.
Ms. Clark testified as to the makeup of the class of which Student is a member. She explained:
· One child is thirteen years old, has a seizure disability, is developmentally delayed, has expressive and receptive language needs, and is working academically at a five to six year old level.
· A fourteen-year-old child has a traumatic brain injury, her verbal skills are quite good, and her reading and math levels are at a five-year-old level.
· Another child is also fourteen years old, and she has Downs syndrome, is diagnosed with moderate mental retardation, has a hearing disability as well as speech language needs, and is developmentally working at the five to six year old level.
· A fifteen-year-old student has moderate mental retardation, has difficulties with expressive language, and is developmentally working at the four to six year old level.
· A sixteen year old student in the class has a seizure disorder, has attention deficit disorder, is considered moderately mentally retarded and is functioning at a five to six year old level.
· Student (who is the subject of this hearing) has a seizure disorder is considered globally developmentally delayed, has mild cerebral palsy and is generally working academically at a five to six year old level, including reading at the five to six year old level (but closer to the six year old level), and math at five to six year old level.
Ms. Clark testified that, in her opinion, Student fits in well with this group of students. She noted that she had talked with another teacher about the possibility of moving Student into a higher reading program but nevertheless feels confident that Student’s current reading program (in her present group) is working well for her at this time. She further noted that Student has always been at or close to the top of this group in terms of her reading skills.
Ms. Clark testified that she is using the objectives from the Cardinal Cushing partial draft of Student’s IEP. She noted that she is not formally using the academic goals and objectives from the most recently drafted IEP by the Harwich Public Schools. She further explained that she has additional, specific goals and objectives that she is working on but these goals and objectives are not written down.
Ms. Clark testified that because she has been able to work with Student and her behaviors without the need for additional assistance, an individual behavior plan has not been necessary. She further noted, however, that if she or members of Student’s team felt that they needed more help in terms of addressing Student’s behaviors, an individual behavior plan would be developed.
Yvette Ringuette testified that she is currently working as a child care specialist at Cardinal Cushing School. Her resume (Exhibit P-53) indicates additional experience working with developmentally delayed children. Ms. Ringuette testified that she has responsibility for three students (including Student who is the subject of these proceedings) from 2:45 PM to 9:00 PM Sunday through Wednesday of each week. She noted that Student has a daily chore of wiping counters. She explained that on Wednesdays, Student attends Girl Scouts from 3:15 PM to 4:20 PM as an extracurricular activity. Ms. Ringuette testified that after dinner, Student may be involved in an activity of arts and crafts or aerobics. She further noted that at least once a week, she takes the children into the community for an outing — for example, a shopping trip for food, and then returning to Cardinal Cushing to cook the food.
Ms. Ringuette testified that when Student arrived at Cardinal Cushing, she was at a low ability level regarding social and other activities of daily living. For example, Student was not able to wash her hands or hair, her personal boundaries were poor (for example she would often hug a complete stranger); but now Student is able to wash her hair and hands independently, she refrains from approaching a stranger too closely, and she also refrains from hugging people who are strangers. With respect to the development of the ability to approach strangers in an appropriate way, Ms. Ringuette explained that Student has had approximately 10 opportunities to hug a stranger in the recent past, and has not done so. She further explained that Student is now able to greet people in an appropriate way as compared to her previous behavior of sometimes yelling as a way of greeting people. Ms. Ringuette explained that with respect to all of these areas, she has worked with Student to make improvements; she noted that there is a social skills instructor who also works with Student.
Ms. Ringuette testified that she uses “incidental teaching” which means teaching done at the time the incident occurs. Ms. Ringuette testified that Student gets along “wonderfully” with her dormmates, appearing to be very happy with her peers. Ms. Ringuette explained that her peers respond well to her, and Student has been able to make friends at Cardinal Cushing from her first day.
Ms. Ringuette testified that transitioning has been a difficulty for Student but she has observed significant improvements in this area since Student came to Cardinal Cushing. She noted, however, that there are still problems with transitioning if Student enjoys an activity and may shutdown if asked to transition away from that activity. Ms. Ringuette testified that she is not documenting behavior difficulties except in the log book which describes the particular interventions that are used with Student when there is a behavior incident. She also noted that she has consulted with Andrea Giordani (the Cardinal Cushing behavior specialist) regarding Student’s behavior and how to address it.
Andrea Giordani testified that currently she is employed at Cardinal Cushing School as a behavior specialist. She noted that she will likely complete her PhD within the next month. Ms. Giordani explained that in her capacity as the behavior specialist at Cardinal Cushing, she receives referrals from and consults with staff with respect to interventions and plans needed for a particular student. She also noted that she teaches all staff at all levels at Cardinal Cushing regarding behavior modification, and she also informally observes students.
Ms. Giordani testified that she has not received a formal referral with respect to Student in order either to provide a formal consultation or to develop a behavior plan, but she has informally observed Student on three occasions — one occasion was at the health center when Student temporally refused to take medication, a second time was at her residence and a third was when Student had shut down and was taken by a crisis team to their office.
Ms. Giordani testified that all staff at Cardinal Cushing are trained to take certain steps in order to manage behavior. These steps include giving students space, redirection, verbal cues and prompts. Ms. Giordani explained that if a student is so out of control that these steps are not viable in terms of controlling the student’s behavior, a crisis team is called for intervention.
Ms. Giordani testified that she believes it is appropriate that Student does not currently have an individual behavior plan at Cardinal Cushing. She explained that Student’s behavior would have to be so severe as to limit her functioning and staff would not be able to address her behavioral needs through more routine behavioral interventions mentioned previously. Ms. Giordani explained that the program at Cardinal Cushing, which helps Student learn and appreciate personal boundaries, appears to be helpful to her; she also noted that the health and wellness class which is intended to teach about puberty issues is also appropriate for Student, allowing her to understand these issues prior to menstruation.
Ms. Giordani further testified that in her opinion it is quite important for this Student, in particular, to be in the residential program because the structure and continuous re-enforcing of appropriate behavior at Cardinal Cushing throughout the day, afternoon and evening helps to extinguish her negative behavior.
Marsha Stevens testified that she was contacted by Parents’ attorney to observe and evaluate Student’s programs. Her resume (Exhibit P-49) reflects that she has been an educational consultant since 1973, has been director of the Diagnostic Center at the Carroll School from 1971 to 1978, has been a consulting clinician at Kingsbury Center in Washington, D.C., has been a psychologist at Massachusetts General Hospital from 1971 to 1976 during the summers and part-time, and has other consulting and teaching experience. Her resume also reflects that she has a master’s degree in education from Harvard University, received in 1971. She also noted that subsequent to completing her masters degree, she took advanced courses at Harvard University in 1971 and 1972, which included reading theory and practice. She explained that she has worked with and/or evaluated over fifty students with a disability similar to Student’s disability of global developmental delay.
Ms. Stevens testified that she has reviewed Student’s records, including work samples of Student from Cardinal Cushing, has consulted with Mother, has had two consultations with Student’s special education teacher (Ms. Turco) at the Harwich Public Schools, has had consultation with a Harwich Middle School teacher, has had a consultation with Student’s teacher (Ms. Clark) at Cardinal Cushing, has had two observations of Student’s current program at Cardinal Cushing, and has observed the Harwich Public Schools 5 th grade program that Student would have attended had she continued to be enrolled there. With respect to the 5 th grade program at Harwich, Ms. Stevens explained that she observed a special needs class, lunch, language arts and health, and she reviewed a schedule of another special needs student with whom Student would have been grouped at Harwich had she attended Harwich Public Schools this year. Ms. Stevens further noted that she was advised by Ms. Turco that this other special needs student was functioning at a somewhat higher level than Student.
Ms. Stevens testified that, in her opinion, Student’s educational needs include significant cognitive limitations, occupation therapy needs, mobility issues with respect to gate and pace, language processing needs (Student takes in language differently then a typical 5 th grader) and behavioral needs. Ms. Stevens believes that Student is globally developmentally delayed with neurological features, and is functioning currently at the kindergarten to first grade level in some areas (reading and word recognition) and pre-kindergarten to kindergarten in other areas.
In other words, Ms. Stevens explained, Student is functioning academically at the equivalent to a 5 to 6 ½ year old regular education student. She noted, therefore, that in a 5 th grade “regular” education class where students would likely be 11 to 12 years old, Student would be approximately 6 years behind developmentally, compared to her chronological peers.
Ms. Stevens testified that the gap between Student’s learning level and the learning level of her chronological peers has widened, as she has grown older — that is, it is not that Student has become cognitively less able but rather that she has grown cognitively at a less rapid rate as compared to her typical peers. She noted, for example, that in first grade, Student was probably 1 to 2 years behind her chronological peers.
Ms. Stevens testified that Student is interested in activities appropriate for her developmental age — for example, cartoon characters, and other similar kinds of activities that would be of interest to a kindergartner or possibly a first grader. Ms. Stevens noted that Student’s interests are quite different than those of a typical 10, 11 or 12-year-old girl, and generally Student would not be interested in what they are interested in.
Ms. Stevens testified that there is value to Student’s spending time with her developmental peers so she can have shared interests, be competitive with and in some areas actually do better than the children with whom she is spending time. Ms. Stevens testified further that, in her opinion, there would be relatively minimal benefits from Student’s spending time or being grouped with typical 11 year olds because Student does little modeling at that level and would not likely comprehend their discussions or share their interests.
Ms. Stevens further testified that a regular 5 th grade class would not be appropriate for Student because she would not be able to follow the vocabulary, concepts or instructions. She further explained that Student, in this context, could be taught by rote but does not have the capacity to assimilate the information taught and therefore would not be able to utilize or benefit from the instruction.
Ms. Stevens testified that Ms. Turco, on two occasions, shared with Ms. Stevens a 5 th grade science curriculum which, in Ms. Stevens’ opinion, had been “nicely” modified for use by special needs children, but the instructions and concepts would be of little relevance to Student and would provide little, if any, long term benefit to her. Ms. Stevens compared this HPS modified 5 th grade science curriculum with an example of a science lesson used at Cardinal Cushing. She explained that the Cardinal Cushing science lesson was “hands on,” was at Student’s level, would be relevant to and of practical benefit for Student, and used concepts that were important for her to understand. Ms. Stevens testified that Cardinal Cushing is utilizing a combination of educational systems that include hands-on reading instruction and recognition of basic words that are needed for everyday reading. Ms. Stevens noted that the implications of this instruction are that at Cardinal Cushing, Student is learning to recognize words that are important to her so that she can participate in society and the world of work.
Ms. Stevens testified that this approach not only makes more sense for Student, but also Student’s entire class would be working on the same subject matter and the same lesson so that Student would be a genuine member and a full participant in her class. Ms. Stevens explained that at Cardinal Cushing there are many similar children, with the result that Student would not feel alone and would clearly be a member of a group. Ms. Stevens explained that in this context, Student can obtain a sense of mastery over the issues and activities that are being taught. Ms. Stevens also noted the importance of the pre-vocational skills that are being taught at Cardinal Cushing.
Ms. Stevens testified that she observed the residential component at Cardinal Cushing, in particular, for this Student and is also generally familiar with the residential programming at Cardinal Cushing through her other consultation work. She explained that the residential program is essential for Student at this stage of her development since she needs continuity, clear expectations, consistency, re-enforcement of cues between more formal and less formal instruction, and the development of the social skills necessary for her participation in society. Ms. Stevens further explained that Student needs to acquire appropriate use of leisure time, needs to relate to authority figures appropriately and in multiple contexts, and needs to acquire safety skills. She further noted that Student needs to learn to stay with the group, to shower, to wash hands in multiple contexts, to relate to peers in multiple contexts, and be part of a community in which she feels a genuine contributor.
Ms. Stevens testified that the only benefit to instruction regarding areas such as washing hands and showering is when it is taught while the activity is actually occurring. She explained that some of this can be taught at home but only with a professional. She further noted that teaching an activity such as showering only occasionally (for example, after swimming) is not sufficient for Student to learn in a way that learning would carry over into other contexts.
Ms. Stevens further testified that Student needs to learn the use of personal space, privacy, boundaries and relating to strangers. Ms. Stevens testified that she needs to be taught these areas in a specialized environment which is set up specially to address them. Ms. Stevens testified that in her opinion the life skills 2 group within which Student has been placed at Cardinal Cushing is appropriate for her. She further noted that this is an important time to teach Student issues related to puberty since Student will need to learn new social skills which are related to being an adolescent.
Ms. Stevens testified further regarding the importance of Student’s social development, noting that she learned from Ms. Turco that Student did not have any school-based friendships at HPS (there was contact only with one other student and this was prompted by Ms. Turco). Ms. Stevens explained that she was very concerned about Student’s need to develop a peer group and the importance of learning how to use her leisure time, and noted that Student needs an extensive program with guidance to develop in these areas. Ms. Stevens testified as to the importance of her social development – for example, if she can learn to share ideas, monitor herself and control her frustration, she will do better in employment.
Ms. Stevens testified that, with respect to therapeutic services, she saw only a pull-out for occupational therapy at Harwich Public Schools. At Cardinal Cushing, she observed the “push-in” model where speech language therapy and occupational therapy are taught in the classroom, residence or activity (such as a train ride) when a speech language therapist would accompany the students and teach the students in the context of the actual activity in which the students are participating. Ms. Stevens explained that this way of utilizing therapy (incorporated into the particular activity) is very useful to Student and has particular benefits for her.
During her observations of Student at Cardinal Cushing, Ms. Stevens noted a mild behavior incident of non-compliance that was skillfully addressed by staff so that it became a positive experience for Student; she also observed staff intervening successfully when Student became frustrated (and began escalating) when she had difficulty zipping up her jacket.
Ms. Stevens testified that the educational and related services proposed for Student by HPS for 5 th grade would expose her to academic materials but would not provide her with the skills necessary for her life in society and at work. She explained, more specifically, that the HPS curriculum does not include the capacity for hands-on, practical application and transfer of knowledge that is necessary for Student to develop the social skills, pre-vocational skills, vocational skills and independent living skills that she needs in order to function successfully in less structured settings outside of school.
Diane Turco testified that she is currently a special education teacher at the middle school at HPS and for the previous five years had been a special education teacher at the elementary school at HPS. She explained that she has worked her entire career with children with needs similar to those of Student, beginning in 1976; she is certified as a teacher of children with intensive needs, kindergarten through 12 th grade. See resume, Exhibit S-34.
Ms. Turco testified that she has been Student’s special education teacher in kindergarten, 1 st , 2 nd , 3 rd and 4 th grades at HPS. She explained that part of Student’s learning style is that she learns well from observing others in the classroom and social settings. She noted that from kindergarten through 4 th grade, Student’s educational needs have been the same – she has cerebral palsy, is developmentally delayed and is impaired cognitively.
Ms. Turco testified that Student has made significant progress from kindergarten through 4 th grade. She explained that in kindergarten, Student needed to learn words instead of using her behavior to express her wants and needs, and needed to be more compliant with requests made to her. She also noted that transitions were difficult for Student although there was not usually a meltdown. She explained that her main progress in kindergarten was that she learned to identify letters, used the computer and was able to attend in a group. She also noted that Student developed friendships and by the end of the year, was on a toilet schedule, needed support for activities requiring fine motor skills and needed verbal assistance with handwashing.
Ms. Turco testified that in 1 st grade, Student made progress reading site words, began memorizing text, showed progress in language development and started answering questions verbally; she also made social progress, making friends and learning to take turns. Ms. Turco noted that Student had behavior problems 3 to 5 times per week when she was non-compliant. However, she noted that often an escalation was tied to Student’s not feeling well, and there were fewer significant transitional issues in class this year.
Ms. Turco testified that Student continued to make progress in 2 nd grade, doing well in class and making friends. Exhibit S-22.
Ms. Turco testified that in 3 rd grade, Student continued with the same educational model as previous years – inclusion with modifications and support from a paraprofessional, and pull-out with Ms. Turco for part of the day with another special education student. She explained that the pull-out was for 90 minutes for special education in the areas of reading, writing and math.
Ms. Turco testified that Student continued to make progress in all areas during 3 rd grade – for example, reading more independently, writing letters (of the alphabet) that are clearer and a limited ability to add numbers.
Ms. Turco testified that in 3 rd grade, more modifications and accommodations were needed for Student as compared to previous grades. She explained that as with any child who has a developmental disability, even as she makes progress, the gap between her academic abilities and those of her typical peers continues to widen because her typical peers are developing at a faster rate. Also, she noted that in addition to this increasing gap, greater modifications and accommodations are needed for Student because of the increasing complexity of the academic material as she attends higher grades.
Ms. Turco testified that at the middle of 3 rd grade, academically Student was at the following levels: writing at the kindergarten level, reading at the early primer level and math at the kindergarten level.
Ms. Turco testified that during 4 th grade, Student continued in the same educational model (but with 105 minutes with Ms. Turco in the resource room to work on reading, writing and math). She explained that Student made significant progress in reading and use of language; for example, she was asking questions, commenting on past events and beginning to use descriptive language; and she improved her reading comprehension and site vocabulary (increased complexity of words). In Ms. Turco’s opinion, Student’s language skills benefited from exposure to typical peers, with her modeling their use of language. She also noted that there were no longer any difficulties with transitions although there were occasional behavior outbursts (but no meltdowns). She also noted that Student used regular peers as role models, made progress with activities of daily living (independent toileting and handwashing), and was participating and benefiting from horseback riding and swimming.
Ms. Turco explained that by the end of 4 th grade, academically Student was at the following levels: writing at the kindergarten level and reading at the first grade level (however, Ms. Turco testified inconsistently regarding her reading level: first stating early in her testimony that Student’s progress from kindergarten to the end of 4 th grade was to be able to read at the primer level, then stating later in her testimony that Student was at the upper 1 st grade level, and finally appearing to testify only that Student was at the 1 st grade level by the end of 4 th grade); Ms. Turco could not give an academic level for math.
Ms. Turco testified that during inclusion parts of her day, Student may be able to understand (and participate in) only part of what is being taught. She explained, for example, that in 3 rd grade the regular education teacher did a lesson on Scotland, teaching (at a 3 rd grade level) the students to understand different aspects of the country (e.g., history, culture and the people); Student would be able to understand that they were discussing a place called Scotland but would not understand the concept of a country and wound not be able to understand any of the details of the lesson.
Ms. Turco explained that similarly in 4 th grade, the regular education teacher did a lesson on Egypt, for example, during which the typical students would learn about some of the details of history, culture and the people. Ms. Turco stated that Student was able to attend and this showed progress, was able to understand and participate in a coloring project and puzzle that were related to Egypt but would not be able to understand other aspects of the lesson – for example, Student would not be able to understand that Egypt is a country. Ms. Turco explained that there are tasks “embedded” in the lesson – for example, attending to a task — that Student benefits from even when she understands none of the content.
Ms. Turco further testified that in 4 th grade, there was a lesson on plants that was given to the class, including Student, but it was modified for Student so that although Student and her classmates were receiving the same instruction, she was expected to learn that a plant had roots, a stem, a flower and petals, while the rest of the class was expected to learn much more sophisticated and detailed aspects of plants.
Ms. Turco testified that during 4 th grade, Student’s behavior improved so that there were only short-lived, incidental behavior issues and no major behavior problems – for example, Student might protest that she did not want to take off her hat, but she could be re-directed and this would resolve the issue. Ms. Turco noted that in 4 th grade, Student improved her ability to handle transitions, although she continued to have transition issues – for example, on occasion, Student would refuse to leave the resource room and would be allowed to remain there. Ms. Turco stated that Student was able to use the cafeteria independently in 4 th grade.
Ms. Turco testified that in 4 th grade, Student did well socially, asking to play with others, having peer relationships during unstructured time and having friendships with a mix of typical and special education children. She noted that Student’s social skills improved during this time – for example, learning to play games and raising her hand and then waiting to be recognized.
Ms. Turco testified that, in her opinion, Student benefits socially and behaviorally from participating in the inclusion model, and that she is likely to benefit in some way from the academic content, even though what Student may understand is far different than what the typical student is able to understand. She noted that as the academic material continues to become more complex in 5 th grade and beyond (through middle school and high school), she believes that Student will benefit from the inclusion model even when her understanding is at a completely different cognitive level than her classmates and regardless of the difficulty of the academic material; she added that Student will let us know through her words and behavior if she is not benefiting.
Ms. Turco testified that at the February 28, 2000 Team meeting, Parents said that they were “looking at” Cardinal Cushing. Ms. Turco explained that Student needed an ecological inventory which reviews future environments that Student would participate in; Student’s needs regarding pre-vocational skills would be assessed; a functional skills assessment would assess her needs regarding life skills; and that once these assessments were completed (probably by mid-October of her 5 th grade), the Team would have re-convened and an educational program would have been developed for Student that addresses these areas. Ms. Turco explained that at the February 2000 Team meeting, there was discussion of the need for Student to have these assessments but there was no discussion of what Student’s program would be like regarding these areas since the program would need to be individually developed after the assessments.
Ms. Turco testified that 5 th grade at HPS would be the same educational structure for Student as 4 th grade, but she noted that at the Team meeting, there was no discussion of what subjects would be addressed through pull-out and what subjects would be addressed through inclusion. Ms. Turco explained that she assumed that Student would be pulled out only for reading, writing and math, and this would utilize the one hour and a half per day of special education pull-out services on the IEP, as had occurred during 4 th grade and previous years. She noted that in the IEP, there is an additional hour per day of special education pull-out services, and this was included in the IEP so that it would be available, if needed, for pre-vocational and life skills instruction after assessments were complete and a program developed for Student regarding these areas.
Ms. Turco testified that at the February 2000 Team meeting, there was discussion of a continuation of Student’s therapeutic horseback riding program and her swimming program, as well as the after-school enrichment program each day (at parents’ discretion) with a paraprofessional who could continue to work with Student regarding skill development.
Ms. Turco testified that in the 5 th grade at HPS, Student would be able to participate in physical education that was adapted to her individual needs, similar to what was described for her at Cardinal Cushing.
Ms. Turco testified that there is one other child in Student’s grade at HPS who has comparable developmental delays. She explained that it has been helpful to Student to have this developmental peer in school – their instructional needs are similar and they support each other.
Ms. Turco testified that with respect to the spelling test observed by Ms. Stevens, it would have been distracting to Student had she been trying to take her own, silent reading test while the remainder of the class took an oral spelling test in the same room. She explained that after this incident, Ms. Turco corrected this practice with the 5 th grade teacher.
Ms. Turco testified that in a new school, until Student becomes familiar with the setting, she may be confused and have difficulties.
Linda Ford testified that she is employed by HPS as a 4 th grade teacher and is currently in her 14 th year in this position at HPS. She noted that she is a certified teacher.
Ms. Ford testified that she was Student’s 4 th grade teacher at HPS. She noted, however, that she understood from Student’s special education teacher (Ms. Turco) that Ms. Turco (rather than Ms. Ford) would be responsible for Student’s academic work in 4 th grade.
Ms. Ford testified that she would interact with Student verbally — for example, first thing in the day as with all students – and Student would be part of her class during language arts (for writing), science and home room, and Ms. Turco and her aide would be making decisions regarding modifications to Student’s schedule and assignments and would be working with Student individually at certain times during the day.
Ms. Ford testified that with respect to reading, Student’s aide would find a book appropriate to Student; Student would be able to participate by creating a poster or otherwise presenting to the class regarding what she had read. Ms. Ford explained that in other areas, Student would be doing a separate but related project – for example, creating a paper mache model of the sun and moon while the rest of the class was learning about tides, and the class would use Student’s models in their discussion of tides.
Ms. Ford testified that during most science lessons, part or all of the time would be involved with directed instruction to the class, including Student, and in Ms. Ford’s opinion, Student would not be able to understand the instruction. In Ms. Ford’s opinion, it was not possible to say if Student learned anything from this instruction or made progress as a result of the instruction, although Ms. Ford expressed hope that Student would remember some of the scientific language or terms that were used. Ms. Ford explained that there would be no way for her to measure what, if anything, Student learned in science.
Ms. Ford noted, however, that she believed that there was a social benefit to Student’s being part of the class, and she felt that Student was a true participant. She explained that Student seemed to benefit from interaction with her peers, particularly with respect to development of language and otherwise modeling the behavior of her peers in class. Ms. Ford testified that Student used more spoken language by the end of 4 th grade, and her reading and penmanship improved. She further explained that Student began using language to control her environment – for example, instead of screaming when she became frustrated, she would ask for something.
Ms. Ford was asked if, when studying plants, there was an opportunity to plant seeds and actually grow plants as part of the instruction. She responded by saying that there was not the opportunity to do this and, in fact, the more recent curriculum requirements for science resulted in her giving science lessons in which a significant amount of what was being taught is closer to the 6 th grade level in sophistication, as compared to the 4 th grade.
Ms. Ford testified that she did not notice any progress over the year regarding Student’s behavior – Student continued to have variable and unpredictable behavior problems, including “meltdowns.” She further explained that Student is a very social child, her social skills were already good when she started 4 th grade, and that there did not appear to be any noticeable change in this area. Ms. Ford explained that Student appeared to feel very comfortable with her classmates, and they were accepting of her.
Ms. Ford testified that she never noticed that Student seemed embarrassed or otherwise troubled as a result of being singled out in the classroom – for example, as a result of receiving different assistance or working on different material than the other children in the classroom.
Ms. Ford testified that it was difficult for Student to adapt to a new aide part way through the school year when Student’s aide was replaced by another person.
Ms. Ford testified that she believed Student was functioning at the kindergarten to first grade level in terms of her academic skills.
Jacalyn Costello testified that she is presently in her 4 th year as a speech/language therapist at HPS. She noted that she has over 20 years experience in this field, has a masters degree in communication skills and is licensed and certified as a speech/language therapist. See her resume, Exhibit S-35.
Ms. Costello testified that she worked with Student during her 2 nd , 3 rd and 4 th grade years. She explained that in 2 nd grade, Student could only use one or two word sentences and her speech was not always clear. At the end of 2 nd grade, Student had made progress, as reflected in her IEP progress report. Exhibit S-21. Ms. Costello explained that Student increased her expressive vocabulary and her sentences became longer and more complex.
Ms. Costello testified that in 3 rd grade, she began providing Student with pull-out services with another child, as well as consulting with other staff so that they could work on Student’s speech development in other settings. Student continued to make steady progress; her peers were beginning to understand her; and this was rewarding for Student. Exhibit P-8.
Ms. Costello testified that Student benefited from being with typical peers when she worked on speech/language skills – for example, Ms. Costello included Student in a group of typical 4 th graders with minor articulation deficits, and Student seemed to benefit in particular from working in this group of typical students, as compared to working only with another special needs student the previous year. She also explained that it seemed to help Student with transition issues if she was with typical peers. She noted that Student continued to make gains in 4 th grade, including greater clarity of speech and greater complexity of language. Exhibit P-9.
Ms. Costello testified that at the February 28, 2000 Team meeting, Mr. Chaput stated that Student had been accepted to attend Cardinal Cushing and that Parents were seriously considering her attending this program beginning in the fall of 2000 for 5 th grade. She further noted that at the Team meeting it was discussed that in 5 th grade, Student would receive the same educational model as Student had received in 3 rd and 4 th grades (inclusion with modifications and with support from a paraprofessional, and pull-out for certain instruction) and the same specialized services (occupational therapy and speech/language) in a pull-out model.
Ms. Costello testified that in 5 th grade, Student would receive speech/language services at HPS from a masters-level, certified speech/language therapist.
Ms. Costello testified that, in her opinion, speech/language is a top priority for Student because communications skills are needed to form relationships, work and otherwise integrate into society. She explained that it is crucial that Student receive assistance with communication in “natural” settings such as recess or a shopping trip. She noted, however, that ideally Student would also receive pull-out speech/language services. She explained that she did not know what speech/language services were actually being provided at Cardinal Cushing.
Leslie Chizek testified that she is employed as a speech/language therapist 2 days per week at HPS, and is also employed as a speech/language therapist at Managed Health Care Systems. She explained that she obtained her masters degree in speech/language therapy in 1980 and has approximately 20 years experience as a speech/language therapist, including experience working with hundreds of children with disabilities similar to those of Student.
Ms. Chizek testified that if Student were to attend the 5 th grade at HPS, she would be providing speech/language services to Student, but she noted that she has not met Student nor has she discussed Student with any of the teachers at HPS.
Linda Dillon testified that she is employed as clinical coordinator of therapy services and as an occupational therapist at Cape Cod Collaborative, where she has been employed since 1988. She noted that she is licensed as an occupational therapist and has been providing occupational therapy since 1981.
Ms. Dillon testified that she has provided occupational therapy to Student at HPS from pre-school through 4 th grade. She explained that over that period of time, Student made progress in a number of areas – for example, in the visual, perceptual realm, Student was able to work with a preferred activity (e.g., a computer) for an hour; regarding self help and fine motor skills, she developed dexterity in such areas as use of a zipper; she became independent with handwashing and toileting with occasional verbal cues; in the area of gross motor skills, she became functional in the school setting. She also noted that it would be appropriate for Student’s educational program to address certain areas such as shoe-tying, buttoning, snapping, showering, toothbrushing, and community safety skills.
Ms. Dillon testified that Student did well with her peers (both typical and special education peers) and benefited from exposure to them – for example, sometimes a friend would be helpful to her during a transition from one activity to another, and Student interacted with them well during unstructured times.
Ms. Dillon testified that it would be appropriate for Student to work on pre-vocational areas and functional skill areas in 5 th grade. She explained that pre-vocational goals would be developed after an ecological assessment in 5 th grade; some functional skills would be routinely addressed through home economics and shop in 5 th grade.
Joan Alvezi testified that she is employed as a 5 th grade teacher at HPS where she has taught for the past 28 years. She noted that she obtained a masters degree in reading in 1982 and is certified as a teacher. She explained that she was not familiar with Student or her IEP, but had Student attended HPS this year, she would have been in Ms. Alvezi’s 5 th grade class.
Ms. Alvezi testified that she currently has a developmentally delayed child in her class. Ms. Alvezi described some of the academic and other activities that her class in general and this developmentally delayed child in particular have engaged in over the course of this school year.
Jill Monast testified that she is employed by HPS as a middle school School Psychologist, and that she has a masters degree in education which she received in 1992. She noted that she has experience working with children with developmental delays as well as behavior difficulties.
Ms. Monast testified that she has reviewed all of the school records and all of the Exhibits in this case, and has listened to the testimony.
Ms. Monast testified that, in her opinion, the IQ score of 60 is generally accurate for Student, as reflected in Exhibit P-18, although her actual IQ may be somewhat higher since her cerebral palsy may have artificially lowered her abstract reasoning subtest scores. She explained that with an IQ of 60, a student generally can be expected to achieve a level of academic ability up to a 6 th grade education, and in her opinion, Student has been making progress commensurate with her IQ (she noted that for a child at Student’s age with her IQ, it would be expected that she would be performing in the kindergarten to 2 nd grade range). She further explained that she agreed with Dr. Libenson that an IQ test score of 40 for Student, which she received in 1996, was not representative of her intelligence.
Ms. Monast testified that the results of Student’s cerebral palsy are that she may need access to adaptive equipment and modifications in gym for fine and gross motor skills.
Ms. Monast testified that there is a social skills group in which Student would be able to participate during 5 th grade, and there would be other opportunities to learn skills during an extended day – for example community service opportunities that would provide Student with an opportunity to learn social skills and further develop her language skills.
Ms. Monast testified that Student’s peer group in her class at Cardinal Cushing is older than Student (they are 13 to 16 years of age), indicating that they may be more developmentally disabled than Student; and if her peers are not developing at the same level as Student, this may negatively effect her development.
Ms. Monast testified that pre-vocational and life skills would be available to Student in 5 th grade through cooking, industrial arts and sewing. She further explained Student’s academic development should not be compromised for the sake of pre-vocational and life skills development. She explained that the inclusion model provides the best opportunity for development of Student’s social and communication skills, which are critical for success in work and living in the community.
Russell Maguire testified that currently and for approximately the past three years, he has been the Director and Chief Clinician at the Lifeways School which serves developmentally and behaviorally disabled children; he obtained a PhD in experimental psychology in 1992. He further noted that for approximately 15 years he has taught at the Fitchburg Graduate School of Special Education (where he is a part-time professor) and for approximately 10 years has been a private consultant. Dr. Maguire outlined his employment over the past 20 years which includes a significant amount of educational and clinical experience working with developmentally delayed children (including a large number of children whose cognitive level is similar to Student’s) in a variety of settings; his work also includes the design of educational and community inclusion settings for developmentally delayed children such as Student.
Dr. Maguire testified that he has reviewed Student’s educational records, he observed her at Cardinal Cushing, he spoke with staff at Cardinal Cushing regarding Student, he observed the HPS program proposed for Student in 5 th grade, and he spoke with HPS staff regarding this program as well as Student. Dr. Maguire believes, on the basis of his record review (which includes an evaluation indicating an IQ of 60 – see Exhibit P-18), observation of Student and discussions with educational staff, that her IQ is approximately 60 (he later testified that she probably falls within the IQ range of 50 to 60). He noted that typically, a person with this IQ is able to live semi- or completely-independently in the community when older, as compared to a person with an IQ of 40 who would likely require substantial support for her entire life.
Dr. Maguire testified that what Student needs (and where he believes her education should become focused in the future) is adaptive life skills, community skills, safety training and vocational skills – in other words, practical skills needed to live and work in society. (He explained that, in his testimony, he was assuming that Student was functioning academically at the 1 st to 2 nd grade level, with social skills above her academic level. When asked how his testimony would change if she were functioning one grade lower academically, he explained that the only difference would be that Student may need to spend more time in a pull-out setting and may need more supports built into her educational program.)
Dr. Maguire testified that, in his opinion, the educational aspects of Cardinal Cushing seem appropriate for Student. Dr. Maguire explained that at Cardinal Cushing, her peers seem appropriate for her – that is, at her level developmentally. Moreover, he agreed that there are benefits to Student’s being with developmental peers – for example, communication is easier, recreationally Student can more easily do things with her classmates, academically Student and her peers can support each other since they are learning in the same way and at the same pace. However, he explained that the inherent limitation with Cardinal Cushing (or any other school serving only special needs children) is that the opportunities for skill development and social interaction that occur naturally in an inclusive or integrated setting are not available to Student. He explained that the educational program at HPS is therefore occurring in a setting where there are always going to be more opportunities for Student to learn.
Dr. Maguire testified that Student is not the kind of person who requires a restrictive setting of only special needs children and who would not benefit from an integrated school – for example, a mentally retarded child who is so cognitively disabled as not to be able to communicate and otherwise interact with typically developing children, or a child who cannot be maintained safely in an integrated public school setting. Rather, he testified that Student is precisely the kind of child who benefits from an inclusion setting (such as HPS) because she imitates good role models, especially in learning, has good social skills and likes being with her peers.
Dr. Maguire testified that the inclusion environment has advantages over the segregated model with respect to development of communication skills through modeling of typical peers. He explained that the mainstream will give her substantial practice with functional communication which in turn is critical to addressing her behavioral issues since with the use of language, she learns how to control her environment through talking instead of through behavior.
Dr. Maguire further testified that Student, in a mainstreamed setting, will be able to generalize from what she observes, thus allowing her to apply her learning to other contexts. Dr. Maguire noted that this is a principal advantage to learning in an integrated environment. He explained further that in the mainstream, she will have opportunities to learn from her typical peers (simply by being within the mainstream environment) and pick up skills that most of the rest of us take for granted – for example social conventions that will help her to socialize and recreate with others with whom she will ultimately be living and working in the community. He noted, in other words, that the closer Student’s learning environment is to the real world context for Student, the more she will be able to learn and what she does learn will be generalized to other contexts; thus the inclusion model has the advantages of learning and practicing in the context where these skills and behavior need to be applied. As a result, he explained, what she learns at HPS will help her to live and work in the community as an adult because she will have learned the social skills and behavior that will allow her to function competently within this environment. Conversely, he noted, mentally retarded persons who do not learn these skills and behaviors tend to “stick out” in the community and are stigmatized.
Dr. Maguire further testified that particularly with respect to employment in the community, what Student learns in the inclusion model at HPS will benefit her. He explained that what is most critical for developmentally delayed persons to be successful in the workplace is for the person to have good communication and social skills so that the person is able to interact appropriately with others, including peers and co-workers.
Similarly, he testified that in general it would be more beneficial for Student to live with her family in the community rather than in a segregated, residential setting since by living in the community, she will be better able to develop the skills needed to live in the community as an adult. (Dr. Maguire explained that he is assuming that Student will eventually live in the community as an adult.)
Dr. Maguire testified that as Student grows older, the cognitive gap between Student and her age-peers continues to widen, and as a result, Student’s academic program needs to include more modifications and more pull-out educational instruction, allowing Student to continue to participate in the mainstream wherever she is able to do so. When asked specifically about instruction in a science class regarding plants, and the possibility that Student would be expected to learn about the stem, flower, petal and roots while the typical children learn about more complex aspects of the plants, Dr. Maguire explained that it would not be so helpful for Student to be taught an explanation of the stem, etc. but rather what would be most beneficial to Student would be actually to plant seeds and have Student take care of the plants so that Student would be able to learn in a multi-sensory manner that is closer to a real-life context and therefore more engaging and more meaningful for Student. He also explained that learning about money in the context of a trip to a store would be another example of meaningful education for Student in a real-life context, as compared to learning about this in a classroom.
Dr. Maguire further testified that if Student were to return to HPS from Cardinal Cushing, in general it would be better for Student to return for the beginning of the new school year when there is a natural break, rather than during the middle of the school year.
A Behavior Treatment Plan for Student during kindergarten describes the target behaviors as yelling, screaming, throwing materials, refusal to complete activity, and slumping to floor from standing position or from a chair. The Behavior Treatment Plan uses least intrusive prompts beginning with verbal redirection, verbal directive, physical guidance with compliance activity, and finally time-out in the classroom as the last intervention as a means of gaining self-control. Exhibit P-19.
Three Behavior Plans, all dated February 5, 1998, describe certain behavior (noncompliance out of class, such as refusing to go where directed and slumping on the floor; crawling on the floor; non-compliance in class, such as yelling and refusing to work on assignment); the antecedents to the behavior; the proactive plan (redirection, praise, peer modeling and support, reminders, offering choices, etc.); and interventions (prompting with verbal cue, verbal directive, praise, block movement, physical assist and physical prompt to quiet area, etc.). Exhibit S-28.
A Report of Observation of Student’s classroom was performed by Jeanne Pacheco, MEd. The observation, on June 1, 1998, was at the request of Mother in order to give her “impressions as to how [Student’s] needs are currently being met.” Ms. Pacheco identifies herself in the Report as having been a “Special Educator” for eighteen years and currently the Director of Education at the Riverview School in East Sandwich. Exhibit S-30.
The Report explains that within the regular education classroom environment, the teacher has created many opportunities for developing Student’s skills in sharing, cooperative learning, etc., and during the observation, Student had several jobs which include her in the group. The Report noted that the teacher made many modifications in the assignments with Student; yet she was able to do this without distracting the others while simultaneously making Student feel that she had something worthwhile to contribute. However, the Report asks several questions (without answering them): “How much can be accomplished with [Student] in this setting? Is it distracting as the class works together on something different than [Student] and [her 1:1 aide]? Would the 1:1 be more effective or productive if they spent this time outside of the classroom?” The Report concluded by giving a “great deal of credit” for all that Student’s teachers have done to make her program work, and noting that their efforts are evident in the “remarkable growth that [Student] has made.” Exhibit S-30.
An Evaluation by Diane Turco, Student’s special education teacher, dated January 1998, found that Student enjoys interactions with her friends, reading books, writing and listening to stories. Student was found to be making strong gains in reading skills which are developing with a core set of 20 books. Student was described as leaning best in a small group or 1:1 setting with a specific routine, she works best with people who have an established relationship with her and she requires praise and encouragement from the classroom teacher. The Evaluation found that Student “greatly benefits from inclusion in a general education classroom. Modeling of her peers had provided [Student] with tremendous social supports for appropriate behaviors.” Exhibit S-18.
In a “Learner Profile,” dated February 10, 1999, Student’s teacher (Debbie Bock) describes Student’s strengths in 3 rd grade as using many more vocabulary words and consistently using words to get what she wants, leading to better interactions with her peers. She is described as participating in most lessons and following along with the group. Her learning style, as it applies to interactions with classmates, is described as follows:
[Student] learns by example and from watching others. Therefore, she needs good role models sitting with as she works. She wants to do what the other children are doing. She needs structure and consistency in routines and in expectations.
A letter from Cheryl Jones of Dameca Farm to Diane Turco, dated August 28, 1999, describes Student’s therapeutic horseback riding and her “tremendous advances” over the summer attributable to a switch to a cognitive approach to develop her ability to tolerate change and the use of typical peer models. Exhibit S-10.
A letter from the Cardinal Cushing Admissions Secretary to Parents, with a copy to the Director of Pupil Personnel Services (James Hartley) at Harwich Public Schools, dated December 16, 1999 confirmed Student’s interview at Cardinal Cushing on January 10, 2000 for purposes of possible placement there. Exhibits S-7, P-37.
A letter from the Executive Director of Cardinal Cushing to the Director of Pupil Personnel Services (James Hartley) at Harwich Public Schools dated February 11, 2000, informed Mr. Hartley that Student has been accepted at Cardinal Cushing, although the letter notes that Student will not be admitted until additional materials are completed, including admission paper work and a signed funding agreement. Exhibits S-4, P-37.
A letter from Director of Pupil Personnel Services (James Hartley) at Harwich Public Schools to Parents, dated September 25, 2000, states that a meeting has been scheduled for parents on October 2, 2000 “in order to make more specific recommendations for [Student’s] program.” The letter enclosed a tentative schedule and an outline of a functional curriculum. The enclosure explained that at the Harwich Middle School, “[Student] would still participate in the general education classroom with support for modified/parallel activities with friends, peer tutors, and models with implementation of a life skills curriculum according to the TEAM recommendations.” Exhibit P-40.
In a letter from Mark Libenson, MD, Director of Epilepsy, Floating Hospital for Children, and Assistant Professor of Pediatrics and Neurology, Tufts University School of Medicine, dated March 7, 2000, to James Hartley, Director of Pupil Personnel Services at Harwich Public Schools, Dr. Libenson writes that he is following Student in the Division of Pediatric Neurology at the Floating Hospital for Children at New England Medical Center for a seizure disorder and developmental delay. In the letter, Dr. Libenson notes that the Cardinal Cushing school is particularly well suited to offer Student a small classroom setting with students at similar academic backgrounds, as well as a program which focuses on life skills and on-site vocational training. He further explains that the after school program there encourages socialization with peers of similar abilities though that such as music, Girl Scouts, teams sports and Special Olympic training, which will be especially important for Student. The letter further explains that encompassed within all these programs there is a therapeutic behavior management approach, which is important in educating children with developmental disabilities of Student’s type. Finally Dr. Libenson notes that in a structured and consistent setting such as the Cardinal Cushing School, he is certain that Student will thrive and is in full support of Student’s placement in this school setting which, in his opinion, will allow her to develop to her maximum potential. Exhibit P-39.
An evaluation report of Student (date of evaluation January 10, 1999) was prepared by Sister Clarinda Zech, the school psychologist at Cardinal Cushing School. The report indicates that Student was given the Peabody Individual Achievement Test which reflected Student’s mathematics abilities at the grade equivalent level of less then 0.1, reading recognition at the grade equivalent level of 1.8 and spelling at the grade equivalent level of 0.7. The evaluation report further states that the Brigance Test results indicate that Student has pre-primer vocabulary, that she was able to count and identify numbers to twenty, that she failed adding 1 to numbers 1 to 9, and that she failed pointing to coins as requested. The evaluator recommended Student for class placement in life skills 1 and life skills 3 for reading. The evaluator further commented with respect to Student that she is cooperative and immature, has poor fine-motor coordination, and is weak regarding auditory processing and word retrieval. Exhibit P-36
An overview entitled “LIFE SKILLS 2” describes the classroom in which Student has been placed at Cardinal Cushing. The overview explains that the classroom is language-based with 6 developmental delayed students and a focus on improving daily communication skills (receptive and expressive) through using “boardmaker” materials such as picture vocabulary cards. The overview further explains that students in this classroom are cognitively working on a K-1 level and therefore will be working on beginning reading and writing; in addition, other academics in the classroom include science, social studies, health, cooking skills, social skills, technology (computer skills) and other applied academics. The overview also includes the daily schedule for students. Exhibit P-41.
An Academic Summary for Student, prepared by Student’s Cardinal Cushing teacher (Cheryl Clark) explains that Student is new to Cardinal Cushing as of September 2000. The Summary explains that Student’s classroom is language-based, utilizing verbal and picture modes of communication, with the goal to foster growth and expansion of the individual’s communications skills. The Summary further explains that Student is easily distractible during most lessons and activities presented in the classroom, requiring frequent cues to re-direct and re-focus her back on task but noted that since coming to Cardinal Cushing, Student has increased participation in classroom activities each week. Exhibit P-10.
FINDINGS AND CONCLUSIONS
Student is an individual with a disability, falling within the purview of the federal Individuals with Disabilities Education Act (IDEA), 20 U.S.C. s. 1400 et seq . and M.G.L. c. 71B. As such, she is entitled to a free, appropriate public education which is reasonably calculated to assure her maximum possible educational development in the least restrictive environment consistent with that goal. David D. v. Dartmouth School Committee , 775 F.2d 411, 423 (1 st Cir. 1985). Neither her status nor her entitlement is in dispute.
A. Special Education and Related Services Proposed by HPS in its Most Recent IEP
The first issue is whether the programming and specialized services embodied in Harwich’s most recently proposed IEP1 are consistent with said legal standard. Prior to reviewing the IEP in detail, it will be helpful to understand Student’s educational needs and how those needs have been met over the past several years.
1. Student’s educational needs and how those needs have been met by HPS.
There is no dispute that Student has global developmental delay, cerebral palsy and a seizure disorder. Testimony of Mother, Turco, Stevens, Maguire. By the end of the 4 th grade at HPS (and presumably at the beginning of the 5 th grade at Cardinal Cushing), she was functioning academically at the pre-kindergarten to 1 st grade level. For example, she was writing at the kindergarten level and reading at the 1 st grade level, and functioning at the pre-kindergarten to kindergarten level in other areas. Testimony of Turco, Stevens; Exhibit P-36. As a result, Student was at least four to five years behind her age peers academically during 4 th grade; and when she entered 5 th grade, she was judged by her Cardinal Cushing teacher to be five to six years behind. Testimony of Clark.
Student was not always so far behind her peers in school. As with nearly every developmentally delayed child, the gap widens as the child grows older, not because the disabled child becomes cognitively less able but rather because the child develops at a less rapid rate in comparison to her typical peers. Testimony of Turco, Stevens, Maguire. For example, when Student was in 1 st grade at the HPS, she was probably only one to two years academically behind her typical peers. Testimony of Stevens.
The HPS IEP for the second half of 1 st grade through the first half of 2 nd grade called for ninety minutes per day of special education services; a half hour, twice per week, of speech/language therapy; and a half hour, twice per week, of occupational therapy. The IEP further provided for ongoing special education support in the inclusion classes, and for special education consultation services of a half hour, once per week. Exhibits S-20, P-6.
By all accounts, Student did well in 1 st and 2 nd grades, and the Parents were satisfied with both the educational program and the gains made by Student. Testimony of Mother, Turco.
HPS’s IEPs for the succeeding years continued to call for essentially the same special education and related services. With two exceptions discussed below (part A2 of this Decision), each IEP from the second half of 1 st grade to the most recent IEP proposed (through the first half of 5 th grade) provided for the same basic educational structure of Student receiving ninety minutes per day of special education services, an hour per week of speech/language services, an hour per week of occupational therapy and ongoing support as needed by a special education paraprofessional during the times that Student was in the inclusion setting.2 Additionally, consultation regarding special education and speech/language services was provided each year.
2. HPS’s most recently-proposed IEP.
In the most recent IEP, which is for the second half of 4 th grade and first half of 5 th grade, there were only two substantive differences from what had been provided since 1 st grade. For the reasons explained below, neither difference impacts substantively on the analysis of the appropriateness of the IEP.
The first difference was an additional hour per day of special education. This was not to address reading, writing and math (Ms. Turco testified that the ninety minutes of special education would likely address these areas) or other academic areas, but rather was included in the IEP so that special education would be available to address pre-vocational and life skills instruction. However, as was made clear at the Team meeting that was used to develop this IEP, the pre-vocational and life skills instruction could not be discussed as anything more than a possibility at the time that the IEP was proposed to Parents since prior to deciding what, if any, pre-vocational and life skills instruction would be provided, Student would need to have an ecological inventory and a functional skills assessment that would not be initiated until the beginning of 5 th grade and would not likely be completed until early October of 5 th grade. After completion of the written reports from these evaluations, the Team would re-convene, goals and objectives would be written, and services would be planned that would be responsive to Student’s needs, as identified in the inventory and assessment, and that would presumably be agreed to by the Team. It would only be at that time that there would be any offer by HPS of specific prevocational and life skills training pursuant to this hour per day in the IEP. Therefore, for purposes of considering what was offered to Student within the most recent IEP, the relevance of the additional hour per day of special education is speculative and will not be given consideration.
The second difference was the reference in the most recent IEP to the opportunity that Student would have to participate in the after school enrichment program with support in order to provide practice for social interactions and leisure skills development. Exhibits S-1, P-9. This extended day program would likely be beneficial to Student’s educational development, yet this part of the IEP was vaguely written giving the Parents little concrete understanding of what is being offered and, for reasons that will become more clear in the discussion below, do not remedy the underlying deficiencies with HPS’s approach to Student’s education during the school day.
What is being offered Parents must be judged on the basis of the terms of the written IEP, and the Parties’ understanding at that time of what educational and related services HPS is offering pursuant to the IEP rather than subsequent documents or information that explain what HPS would have or could have provided.3 The IEP itself presumably reflects a continuation of the same special education services and the same educational model (pull-out for writing, reading and math, and inclusion in the remaining courses) as was provided during 4 th grade, as well as the earlier grades. Testimony of Turco, Mother, Chaput. No additional, timely information was given to the Parents regarding what would be provided in 5 th grade pursuant to the IEP.4 As a result, the IEP was arguably defective as lacking in sufficient detail in order for the Parents to evaluate the adequacy of the proposed program and make an informed choice. However, I will assume arguendo that the IEP at least described a continuation of the previous years’ programs and will evaluate the IEP on that basis. I therefore turn to a discussion of 4 th grade (and to a limited extent, 3 rd grade), as the most relevant experience from which one may judge whether what was being offered in the HPS IEP meets applicable legal standards.
3. 3 rd and 4 th grades.
In 3 rd and 4 th grade, there were a number of parts of the curriculum from which Student gained significant benefit. The time used for pull-out specialized services – ninety minutes per day for special education (addressing writing, reading and math), and an hour week each for speech/language services and occupational therapy — continued to go well in 4 th grade, as they had in previous years. Since 1 st grade, Student made effective progress in these areas. Testimony of Turco, Costello, Dillon; Exhibits S-8, S-9, S-11, S-12, S-13, S-14.
The parts of the school day that addressed social studies and science (as well as other academic subjects taught within the inclusion model), however, became of increasing concern to Parents and their advocate. Testimony of Mother, Chaput.
In 3 rd and 4 th grades, Student had a paraprofessional who was principally assigned to her and would accompany Student during her inclusion classes. And, to HPS’s credit, for most of 4 th grade, the paraprofessional was an aide who had the qualifications of a special education teacher. This person was able to work with Student in the inclusion setting and make modifications that were helpful. For example, if the class were reading a book in order to do a book report or were reading a book related to science or social studies, the paraprofessional would be able to find a book at Student’s level, and Student would be able to read the book or it would be read to her. Similarly, at other times, Student could leave the class with the paraprofessional and work on a separate project – for example, the creation of a paper mache sun and moon that would relate to the what the rest of the class was studying regarding tides. Testimony of Turco.
However, in these inclusion classes with a paraprofessional, even in 3 rd grade, it was not possible for Student to understand much of the content of the instruction from the teacher. For example, in 3 rd grade social studies, the class was studying Scotland, including the people, culture and history. Yet Student was not able even to understand the concept of a country, much less the details taught to the regular education students regarding the people who lived there, their culture and history. At best, Student could understand that pictures of what they were studying were referred to as Scotland. Testimony of Turco. The difficulties of understanding the content of what was being taught in 3 rd grade simply increased in 4 th grade as the material became more complex and the gap further widened between Student’s academic abilities and those of her typical peers; yet HPS continued with the same educational model.
Although Parents’ and HPS’s experts (Stevens and Maguire) disagreed regarding what setting would provide the most opportunity for Student to reach her maximum educational development, there was little disagreement as to what kind of instruction would be most beneficial to Student. Ms. Stevens explained that in addition to her significant cognitive limitations, Student has language processing needs – that is, Student takes in language differently than a typical 5 th grader. The testimony of both experts indicated the need for Student to be taught using vocabulary, concepts and instruction that are at her level, that incorporate “hands-on” lessons, and that are practical and relevant to Student and what she needs to learn to function and work independently in her community. Testimony of Stevens, Maguire. Yet, this is precisely what did not occur within the academic inclusion classes.
A particularly poignant example of the disconnect between the approach recommended both by Dr. Maguire and by Ms. Stevens and the instruction offered Student came to light at the Hearing when Dr. Maguire was asked specifically about instruction in a science class regarding plants, and the possibility that Student could learn about the stem, flower and roots while the typical children learn about more complex aspects of the plants. (There had been previous testimony that this is what had occurred in Student’s 4 th grade science class. Testimony of Turco.) Dr. Maguire responded by explaining that it would not be so helpful for Student to be taught an explanation of the stem, flower, and roots, but rather what would be beneficial to Student would be actually to plant seeds and take care of the plants so that Student would be able to learn in a multi-sensory manner that is closer to a real life context and therefore more engaging and more meaningful for Student. Testimony of Maguire. This kind of hands-on, practical and relevant teaching is what was envisioned by both Maguire and Stevens.
Yet, later in the Hearing, Student’s 4 th grade teacher (Ms. Ford) was asked if when studying plants, there was an opportunity for Student to plant seeds and actually grow plants as part of the instruction. She responded by saying that not only was there not the opportunity to do this, but the more recent curriculum requirements for science have resulted in her giving science lessons that were often closer to the 6 th grade level in sophistication, as compared to the 4 th grade. Testimony of Ford.
An even more basic difficulty for Student, however, was her inability to comprehend what was being taught during academic instruction at the 4 th grade level. As Ms. Ford (Student’s 4 th grade teacher) explained, during most science classes, Ms. Ford gave directed instruction to her class. Similarly, Ms. Ford would give directed instruction regarding writing skills to her homeroom. And, Student’s social studies teacher also gave directed instruction to her class at the 4 th grade level. As a result, for significant parts of a typical day, Student was receiving directed instruction from her regular education classroom teachers in social studies, science and language arts, and this instruction was at least three grade levels above the academic level at which Student was functioning. Testimony of Turco, Ford, Chaput.
Ms. Ford testified that, in her opinion, Student was not able to understand the directed instruction in science, and it was not possible to say if Student learned anything from this instruction or made any progress as a result. Ms. Ford further noted that there would be no way for her to measure what, if anything, Student learned in science. Ms. Ford only expressed “hope” that Student would remember some of the scientific language or terms that were used. Testimony of Ford. But, any learning of these terms would be by rote, making it virtually impossible for Student to assimilate and in any way make use of this new vocabulary. Testimony of Stevens.
Similarly, in 4 th grade social studies, one of the class lessons covered the subject of Egypt. Student was able to participate at the level of coloring a picture related to Egypt and helping with a puzzle related to Egypt, but was not expected to understand the content of the directed instruction that would address the details of such topics as history, culture and people. Testimony of Turco. As her chronological peers were understanding increasingly complex details of a country, Student in 4 th grade was still not able to understand even the concept of a country (just as she could not understand this concept in 3 rd grade when her class studied Scotland). Yet, Student continued to be instructed at 4 th grade level regarding social studies and science, and part of her language arts instruction. Testimony of Turco, Ford.
Instead of offering more pull-out services or sufficient modified instruction in these areas to allow Student to understand what was being taught in her inclusion academic courses as the gap widened between her level of understanding and that of her regular education peers, HPS offered essentially the same model of special education services from 1 st grade through 4 th grade, and then proposed that this model continue into 5 th grade. Student may have received additional accommodations and likely obtained certain collateral benefits from these inclusion classes (such as learning how to stay on task). But, overall, the implications to Student were that she received only marginal academic benefit from inclusion in these academic classes, and one may safely conclude that Student was not maximizing her educational development during the inclusion classes in the academic areas of science, social studies and language arts.
3. 5 th grade.
Ms. Stevens testified that Ms. Turco shared with Ms. Stevens a 5 th grade science curriculum which would have been used with Student had she attended 5 th grade at HPS. In Ms. Stevens’ opinion, the curriculum had been “nicely” modified for use by special needs children, but the instructions and concepts would be of little relevance to Student and would provide little, if any, long term benefit to her. Testimony of Stevens. I find this testimony persuasive that the same limitations to Student’s gaining benefit from science (as well as social studies and inclusion language arts) would continue (and perhaps be heightened given the increasing complexity of the material) from 4 th grade to 5 th grade because Student would be asked to participate in academics that would have little, if any, direct benefit to her and would in no way maximize her educational development.
I now turn to the observations of 5 th grade by Parents’ expert (Ms. Stevens). Ms. Stevens testified that she observed two examples of inclusion at the Harwich Middle School, including observation of the special needs student with whom Student would have been grouped in the inclusion model. In Ms. Stevens’ opinion, in the first example of inclusion (a music class), the instruction, which included multiple subject matter transitions, would have been very confusing for Student; and Student would not have been able to follow either the terminology or the instruction used in the classroom. She further explained that in the second example of inclusion (a language class during which the students were involved in an out-loud, group spelling test), the special needs child was taking a different spelling test, involving a separate list of words. Ms. Stevens explained that at the end of the test, there was an opportunity for peer correction and the typical peers passed their papers to the person next to them but the person next to the special needs student passed his or her paper around the special needs student so that the special needs student was neither able to participate in the group spelling test nor in the peer correction of the spelling test. Testimony of Stevens.
Ms. Stevens further explained that the special needs student had the distraction of the out-loud group spelling test going on while the special needs student was taking the different spelling test. Ms. Stevens concluded that the special needs student was not meaningfully included in the lesson and in fact was excluded in a way that may be hurtful because the exclusion highlighted the difference between the special needs student and the other students. Ms. Stevens concluded that at Harwich Public Schools, Student’s progress is not optimized because of the competing lessons which are occurring in the classroom and from which the Student would be excluded. Testimony of Stevens.
These observations further support the conclusion that the most recently-proposed HPS IEP is not reasonably calculated to maximize Student’s educational development.5
4. Testimony of the HPS inclusion expert.
The testimony of HPS’ own expert (Dr. Maguire) supports the conclusion that what was being offered for 5 th grade in HPS’s most recent IEP would not likely maximize Student’s educational development.
Dr. Maguire testified that as Student grows older, the cognitive gap between Student and her age-peers continues to widen, and as a result, Student’s academic program needs to include more modifications and more pull-out educational instruction. He explained that in order to maximize Student’s educational benefit, he assumed that all of her current instruction, including the time spent in inclusion, would be specialized (i.e., modified) so as to make best use of the time spent in each class.6
An addition, Dr. Maguire was asked to consider the most recently-proposed HPS IEP. Dr. Maguire testified that, in his opinion, this IEP would maximize Student’s educational potential in the least restrictive environment. However, he made it clear that he assumed, when answering this question, that Student (pursuant to the IEP) would be pulled out (rather than taught in the inclusion model) for all of her academic classes as well as gym.7
This testimony is inconsistent with the thesis argued by HPS that Student’s educational progress is developed to the maximum extent possible through inclusion of Student (and instruction at the 5 th grade level) in academic courses addressing science, social studies and language arts.
Dr. Maguire’s testimony described in footnote 7 above (as well as the testimony of others) also is inconsistent with HPS’s proposal to continue Student in an inclusion physical education program without adaptation.8
I find Dr. Maguire’s testimony particularly credible for two reasons. His testimony runs counter to the interests of the Party utilizing him, and Dr. Maguire was the most expert of all the witnesses regarding the question of how a school district can maximize a developmentally delayed child’s educational development in the least restrictive context.9I therefore find his testimony persuasive that the HPS proposed IEP would not maximize Student’s educational development.
Student’s skills have to be taught through different content and in a different manner; and the instruction is directed at producing a different group of skills, as compared to what her typical functioning peers are learning in academic subject areas in 4 th and 5 th grade. Accordingly, it is not sufficient to provide different work (for example, a different book to read or the use of the computer), nor is it enough to have modified assignments (for example, create a paper mache model) or modified expectations (for example, learn only about stems, flowers and roots of a plant) in, social studies, science and language arts. Rather, Student’s instructional needs dictate a curriculum whose content is fundamentally distinct and which needs to be taught in a different manner than the regular education curriculum being offered typical 4 th and 5 th grade children at HPS in academic courses.10
I conclude that by failing to propose special education and related services that would meet Student’s individual needs with respect to academic subjects such as social studies and science, as well as language arts instruction when it is offered to Student in the inclusion model, and by failing to offer an adapted physical education program, Student’s IEP does not meet the requisite legal standard of being reasonably calculated to maximize her educational development.
B. Parents’ Right to Reimbursement
1. Legal standard.
In order to receive reimbursement for private school placement, Parents must demonstrate both that HPS failed to offer an IEP that meets the appropriate legal standard (reasonably calculated to result in maximum feasible educational development), and that their own unilateral placement of the child in private school was proper. E.g., Cleveland Heights v. Boss , 144 F.3d 391, 399 (6th Cir. 1998), citing Florence County School District Four v. Carter , 510 US 7, 10 (1993). I have already found in part A of this Decision that Parents have satisfied the first part of this standard. I now turn to the second part.
In Florence County , the Supreme Court set forth the following standard for determining whether a unilateral placement into a private school is appropriate:
[W]hen a public school system has defaulted on its obligations under the Act, a private school placement is proper under the Act if education provided by the private school is reasonably calculated to enable the child to receive educational benefits. [Internal quotations and citations omitted.]
510 U.S. at 11.
In Massachusetts, a public school district must meet the maximum feasible development standard, which is higher than the federal standard of free appropriate public education (FAPE) referenced by the Supreme Court in Florence County . However, when it is the parents of a child who make placement after the school district fails to offer an appropriate IEP, the private school placement need not meet Massachusetts’ higher standard (maximum feasible development) in order to obtain reimbursement. Rather, private placement is assessed on the basis of the federal standard . Doe v. West Boylston School Committee , 4 MSER 149, 161 (D.Mass. September 14, 1998). I therefore now turn to the federal standard or FAPE.
The US Supreme Court has stated that a free appropriate public education standard “contemplates personalized instruction with sufficient support services to permit the child to benefit educationally.” Board of Education of Hendrick Hudson Central School District v. Rowley, 458 U.S. 176, 203-204, 102 S.Ct. 3034, 3049 (1982). Lower federal courts have further refined their understanding of the requisite benefit to the special needs child, often stating that the benefit must be meaningful or more than minimal. See, e.g., Houston Independent School District v. Bobby R ., 200 F.3d 341 (5 th Cir. 2000) (educational benefit must be “meaningful”); Stockton by Stockton v. Barbour County Bd. of Educ ., 25 IDELR 1076 (4 th Cir. 1997) (FAPE must produce more than “some minimal academic advancement”); Polk v. Central Susquehanna Intermediate Unit 16 , 853 F.2d 171, 182-184 (3d Cir. 1988) (IDEA requires IEP to provide “significant learning” and confer “meaningful benefit”); Burlington v. Department of Education , 736 F.2d 773, 788 (1 st Cir. 1984) (objective is “demonstrable improvements in the educational and personal skills identified as special needs”). See also discussion in GD v. Westmoreland School District , 930 F.3d 942 (1 st Cir. 1991).
In addition, federal courts have focused on the importance of addressing the individual nature of the particular child’s needs for special education and related services. See, e.g., JSK v. Hendry County School Board , 941 F.2d 1563 (11 th Cir. 1991) (“[a]dequacy must be determined on a case-by-case basis in light of the child’s individual needs”); Burlington v. Department of Education , 736 F.2d 773, 788 (1 st Cir. 1984) (educational instruction must be based on the “unique needs of the disabled child” with sufficient support services so that the child will benefit from that instruction). See also Ridgewood Board of Education v. N.E. and Stokley , 30 IDELR 41 (3d Cir. 1999) (requisite benefit “must be gauged in relation to the child’s potential;” when student displays considerable intellectual potential, IDEA requires “a great deal more than a negligible [benefit]”).11
For purposes of this analysis, I focus my inquiry on whether Cardinal Cushing is providing special education to Student, based on her unique needs, with sufficient support services so that she will derive meaningful benefit from the education and services. For the following reasons, I find that Parents presented persuasive evidence that Student’s placement at Cardinal Cushing meets or exceeds this standard.
2. Special education and related services provided to Student at Cardinal Cushing.
At Cardinal Cushing, the primary diagnosis of all children is mental retardation, and the educational programs work toward teaching children functional living skills. Cardinal Cushing is based on an integrating, trans-disciplinary model that involves all the departments at the school working in a coordinated manner. For each student, the educational program is individualized, and each student is grouped with other students based on age, behavior, social development, emotional needs and academic testing. Testimony of Pulaski.
Cardinal Cushing utilizes a combination of educational systems that include hands-on reading instruction and recognition of basic words that are needed for everyday reading. For example, a Cardinal Cushing science lesson described to Ms. Stevens was “hands on,” was at Student’s level, would be relevant to and of practical benefit for Student, and used concepts that were important for her to understand. At Cardinal Cushing, Student is learning language and skills that will allow her to participate more fully and more independently in society and in the world of work. Testimony of Stevens.
In Student’s group, there are 6 children (including Student) with 2 full-time staff and an additional half-time staff as needed. The children are between the ages of 12 and 14 or 15 years old who are at Student’s developmental level. It is only with respect to reading that Student is above the academic or social levels of the other children in her group, and even in the area of reading, Student’s group is appropriate for her, at least for the time being. Compared to the other children in the group, Student needs the most intensive support for her behavior; in the other areas, Student has similar interests and abilities. Testimony of Pulaski, Clark, Duhamel.
Student’s academic work addresses science, social studies, reading and math. The academics at Cardinal Cushing have been aligned so that they follow the Massachusetts Frameworks Curriculum. Testimony of Clark.
Student participates in a program for young women who are approaching puberty; the purpose of the program is to teach students, at an appropriate developmentally-delayed level, regarding body changes and body care, including health and hygiene. This is done in a small group, usually 2 or 3 girls so that they gain some independence regarding these issues. Now is an important time to teach Student issues related to puberty since Student will need to learn new social skills which are related to being an adolescent. Student is also in a social skills program called circle skills, which teaches boundaries. Testimony of Pulaski, Duhamel, Stevens.
In addition, instruction for Student addresses activities of daily living skills, behavioral skills, functional applied academics, and language development. Each day, Student works on activities of daily living skills related to hygiene. Cardinal Cushing has adapted physical education that is provided each day for Student, and art, music and technology are provided to her once a week. Testimony of Pulaski, Clark.
Occupationally therapy, speech language therapy and physical therapy are provided to Student in a “natural” setting which is typically with other children — for example, a specialist will go on an outing with Student or will go into the residence with Student so that the services do not require Student to be separated out from the activity or group that she is involved with. This way of utilizing therapy (incorporated into the particular activity) is useful to Student, with particular benefits for her. Testimony of Duhamel, Stevens
Cardinal Cushing does not have an after-school program per se; instead the residential part of the program, which begins at 2:45 PM, is the only opportunity for children at Cardinal Cushing to participate in extracurricular or additional activities beyond the academic day. The residential component includes taking care of personal hygiene and one’s room (and lessons by staff regarding these activities). Also, there are outings and other recreational activities; the teachers and therapists at Cardinal Cushing are also involved in these extracurricular activities. Testimony of Pulaski, Duhamel, Ringuette.
The residential component of the Cardinal Cushing program is beneficial for Student at this stage of her development since it addresses her needs for continuity, clear expectations, consistency, re-enforcement of cues between more formal and less formal instruction, and the development of the social skills necessary for her participation in society. The structure and continuous re-enforcing of appropriate behavior at Cardinal Cushing throughout the day, afternoon and evening helps to extinguish her negative behavior. Testimony of Stevens, Giordani, Pulaski, Duhamel.
There is a swimming program at Cardinal Cushing and although Student does not currently participate in this program, she will have an opportunity to do so at a later date. In addition, during the summer, she will have access to the pool on the grounds of Cardinal Cushing. Cardinal Cushing has a horseback riding program that Student will have an opportunity to participate in. Student is on the cheerleading squad at Cardinal Cushing. Testimony of Duhamel.
Student gets along well with her peers, and her peers respond well to her. Student has been able to make friends at Cardinal Cushing from her first day. Testimony of Ringuette.
When Student arrived at Cardinal Cushing, she was at a lower ability level regarding certain social and other activities of daily living. For example, Student was not able to wash her hands or hair independently, and her personal boundaries were poor (for example she would often hug a complete stranger). While at Cardinal Cushing, Student has learned to wash her hair and hands independently, she refrains from approaching a stranger too closely, and she also refrains from hugging people who are strangers. Testimony of Ringuette.
Transitioning has been a difficulty for Student, but Student has made significant improvements in this areas since coming to Cardinal Cushing. However, there are still problems with transitioning if Student enjoys an activity and may shutdown if asked to transition away from that activity. Testimony of Ringuette.
All staff at Cardinal Cushing are trained to take certain steps in order to manage behavior. These steps include giving student space, redirection, verbal cues and prompts. If a student is so out of control that these steps are not viable in terms of controlling the student’s behavior, a behavior plan would be written for Student. Testimony of Giordani.
The HPS expert (Dr. Maguire) testified that, in his opinion, the educational aspects of Cardinal Cushing seem appropriate for Student. He further agreed that at Cardinal Cushing her peers seem appropriate for her – that is, at her level developmentally. Moreover, Dr. Maguire agreed that there are benefits to Student being with her developmental peers. His concerns with Cardinal Cushing are with respect to the inherent limitation of any school serving only special needs children since the opportunities for skill development and social interaction that occur naturally in an inclusive or integrated setting are not available. Testimony of Maguire. In other words, except for the question of whether Student’s educational setting should be integrated with typically developing students, HPS own expert testified persuasively as to the appropriateness of Student’s placement at Cardinal Cushing.12
For all of these reasons, I conclude that Cardinal Cushing meets or exceeds the federal standard of providing individualized special education instruction, supported by sufficient related services, so that Student’s unique needs are addressed in a manner that results in meaningful benefit to her.13
3. Related issues.
An award of reimbursement may take into account whether Parents moved Student to a private placement after consultation with the school district and attempts by the Parents to achieve a negotiated compromise and agreement. Burlington v. Department of Education , 736 F2d 773, 798 (1 st Cir. 1984).
Parents as well as their educational advocate made considerable efforts to work with HPS to develop an acceptable program within the public school setting before ultimately deciding to place Student at Cardinal Cushing when it became clear that HPS would not be responding to Parents’ concerns. These efforts included meetings and many communications with HPS teachers during 4 th grade, attending the Team meeting on February 28, 2000, visiting the 5 th grade program at HPS early during the 4 th grade year, seeking additional details of the 5 th grade program as late as June 2000, and advising HPS on several occasions (as well as through correspondence) that Parents were unsatisfied with the HPS program and as a result, were considering a private placement. Although after viewing Cardinal Cushing, Parents were impressed with the program and became quite interested in the possibility of their daughter attending, they nevertheless continued to be open to working out an acceptable program for their daughter with the public school setting. Testimony of Mother, Father, Chaput, Ford, Turco; Exhibits P-3, P-4.
Finally, I note that I have found below (part C of this Decision) that Cardinal Cushing is not the least restrictive setting for Student. This determination does not preclude reimbursement to Parents. As already discussed, when a school district offers an IEP which does not comport with minimum legal standards regarding special education and related services, the parents are entitled to seek and then place their child into a private placement that will address their child’s special education needs.
It would be both unrealistic and contrary to the US Supreme Court’s analysis in Florence County to require Parents to locate an integrated , private school that meets Student’s special needs. Florence County School District Four v. Carter , 510 US 7(1993) (holding that requirements normally applicable to a school district’s placement of a child do not apply to placement by a parent).14 Therefore reimbursement may not be denied on this basis.
For these reasons, Parents are entitled to reimbursement by HPS for the costs associated with Student’s placement at Cardinal Cushing for the period encompassed in HPS’s most recent IEP (2/1/2000 to 2/1/2001).
C. Appropriateness of the Public School Setting; Developing a New IEP for Student
Although not necessary to resolve the narrow issues before me regarding adequacy of the most recently proposed IEP and reimbursement to Parents, I will address several additional, related issues in order to provide guidance to the Parties regarding future educational and related services for Student, with the hope that this guidance will assist the Parties to minimize further disagreement and litigation.15
Perhaps the most fundamental issue to be addressed relative to future services for Student is whether the Harwich Public Schools setting is the least restrictive environment, consistent with the goal of maximum possible educational development. This question must be resolved before it may be determined what future educational and related services HPS should offer Student.
1.Right to special education in the least restrictive environment.
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.
20 U.S.C. s. 1412(a)(5)(A). See also 34 C.F.R. s. 300.550.16 Numerous courts have recognized that with this statutory provision, Congress created a strong preference in favor of mainstreaming. E.g., Oberti v. Board of Education , 995 F.2d 1204 (3 rd Cir. 1993); DeVries v. Fairfax County School Board , 882 F2d 876, 878 (4 th Cir. 1989 ); Daniel R.R. v. State Board of Education , 874 F.2d 1036, 1044 (5 th Cir. 1989).
By creating a statutory preference for mainstreaming, Congress also created a tension between two provisions of the Act. School districts must both seek to mainstream special needs children and, at the same time, tailor each child’s educational placement and program to his or her special needs. Massachusetts law also includes the mandate regarding least restrictive setting and further requires that that a child’s educational needs be met in a way which will result in the maximum possible educational development of the child. Ultimately, the task is to balance competing requirements of the laws’ dual mandate for the individual student: the maximum possible educational development within the least restrictive environment. MGL c. 71B, ss. 2, 3; Roland v. Concord School Committee , 910 F.2d 983, 991 and 993 (1 st Cir. 1990); David D. v. Dartmouth School Committee , 775 F2d 411, 423 (1 st Cir. 1985).
2. Maximum educational development within the HPS setting.
I now turn to a discussion of the least restrictive setting, which is the HPS, and whether Student’s maximum educational development can occur within this setting. For the reasons explained below, I answer this question in the affirmative.
HPS and the Parents each presented an expert witness who testified as to which educational environment would most likely lead to Student’s maximum educational development. Although I found Parents’ expert (Ms. Stevens) to be credible and to make many valid and persuasive points when comparing the program offered by HPS with the program being provided by Cardinal Cushing, it was the HPS expert (Dr. Maguire) who testified more authoritatively regarding the general question of what educational environment would be best for Student’s educational development. Dr. Maguire, as compared to Ms. Stevens, has more extensive experience working as a clinician in educational contexts comparable to Cardinal Cushing as well as HPS. He is extremely well versed, practically as well as theoretically, with the dilemma of determining in which environment a developmentally delayed child is best educated, not only for purposes of immediate academic gains but also for purposes of learning skills and behavior that will assist the child to work and live independently in her community – the ultimate long-term goal shared both by Ms. Stevens and Dr. Maguire.17 Based on the testimony of many witnesses describing Student’s educational profile and needs, together with the expert testimony of Dr. Maguire, I am persuaded that Student is best served at the HPS Middle School, for the reasons described below.
Dr. Maguire testified persuasively that Student is precisely the kind of child who benefits from an inclusion setting (such as HPS) because she imitates good role models, especially in learning, has good social skills and likes being with her peers. For this kind of child, the mainstream offers educational advantages which cannot be duplicated within a segregated setting, particularly with respect to learning (through modeling) language, behavior and other social skills.
The development of language is critical to Student’s everyday learning and development, including the ability to form relationships, develop independent living and working skills, and otherwise integrate into society. The inclusion environment has advantages over the segregated model with respect to development of communication skills because of the language level of Student’s peers and her opportunity for modeling of this language in many different contexts, including the classroom and social settings. Testimony of Maguire, Costello.
Simply by attending school with regular education peers and living with her family, she will be learning how to communicate with and relate to those people with whom she will ultimately be living and working. In the mainstream, she will have opportunities to learn skills that most of the rest of us take for granted – for example social conventions necessary to participate fully in one’s community. Mentally retarded persons who do not learn these skills and behaviors tend to “stick out” in the community and become stigmatized. Testimony of Maguire.
Particularly with respect to employment in the community, what Student has the opportunity to learn in the inclusion model at HPS will benefit her since what is most critical for developmentally delayed persons to be successful in the workplace is for the person to have good communication and social skills so that the person with a disability is able to interact appropriately with others, including peers and co-workers. Testimony of Maguire.
The closer Student’s learning environment is to the real world context, the more she will be able to learn practical, useful skills, and what she does learn is more easily generalized (and therefore utilized) in other contexts. The inclusion model has the advantages of learning and practicing in the context where these skills and behavior need to be applied, and this is a principal advantage to learning in an integrated environment. For example, the mainstream gives Student substantial practice with functional, practical communication. Functional communication in turn is critical to addressing her behavioral issues since with the use of language, she learns how to control her environment through talking instead of through behavior. Testimony of Maguire.
Student’s ability to learn from her peers both in the classroom and in social settings has, for a number of years, been considered an important part of Student’s learning style; and the testimony was persuasive that Student has already significantly benefited from being with typical peers. For example, Student benefited from interaction with her peers, particularly with respect to development of language during her 4 th grade inclusion classes, and significant gains were attained in this area during the 4 th grade year. When Student was included in a group of typical 4 th graders with minor articulation deficits, Student derived greater benefit from the speech/language therapy, as compared to working only with another special needs student the previous year. When Student had serious behavior incidents (referred to as a “meltdown”), sometimes it would be a typical peer who would talk to Student and would be able to resolve the difficulty. Testimony of Ford, Turco, Dillon, Costello. See also letter from Cheryl Jones of Dameca Farm to Diane Turco, dated August 28, 1999, which describes Student’s therapeutic horseback riding and her “tremendous advances” over the summer as attributable to a switch to a cognitive approach to develop her ability to tolerate change and the use of typical peer models. Exhibit S-10.
The federal courts have similarly noted that the educational benefits of mainstreaming include the language and social models available from regular education children, that these language/social models may be helpful to the special needs child’s development, and that these benefits may not be available in a segregated setting. The 4 th Circuit Court of Appeals, in Oberti v. Board of Education , 995 F.2d 1204 (3 rd Cir. 1993), compared the educational benefits the child would receive in a regular classroom (with supplementary aids and services) and the benefits the child would receive in the segregated, special education setting:
[I]n making this comparison the court must pay special attention to those unique benefits the child may obtain from integration in a regular classroom which cannot be achieved in a segregated environment, i.e., the development of social and communication skills from interaction with nondisabled peers. See Daniel R.R. v. Sate Board of Education, 874 F.2d 1036, 1049 (5 th Cir. 1989) (“a child may be able to absorb only a minimal amount of the regular education program, but may benefit enormously from the language models that his nonhandicapped peers provide”); Greer v. Rome City School Dist., 950 F.2d 688, 697 (11th Cir. 1991) (language and role modeling from association with nondisabled peers are essential benefits of mainstreaming); Board of Educ. Sacramento City Unified School Dist. v. Holland, 786 F. Supp. 874, 882 (E.D. Cal. 1992) (benefits obtained by child with mental retardation as result of placement in a regular classroom include development of social and communications skills and generally improved self-esteem). [Footnote omitted.]
Taking the opposite perspective, Parents and their expert (Ms. Stevens) make essentially three arguments that Student’s educational development requires a segregated setting. First, they point out that Student benefits from a more restrictive setting because a setting (such as Cardinal Cushing) which has only mentally retarded students is the only place where she will be able to interact, both educationally and socially, with her developmental peers. HPS’s expert (Dr. Maguire) agreed with Parents’ expert (Ms. Stevens) that there are benefits to Student’s attending school with developmental peers. Children who are at the same cognitive level may be able to communicate more easily with each other, may have more of the same interests and therefore may develop stronger friendships, and may be able to support each other in the academic environment. Student may also benefit from being a full participant in a group of developmental peers. Testimony of Maguire, Stevens, Turco.
However, for reasons described above, I find that these benefits, although significant, are outweighed by opportunities that Student has had and would continue to have for growth and development in a mainstream setting (particularly regarding language, social skills and other skills related to independent living). These benefits of a mainstream setting are not available to Student at Cardinal Cushing or other segregated setting. I also note that there is another child at HPS who is at the same age and developmental level as Student. This other child and Student have been grouped at HPS for purposes of receiving special education, and would have been grouped at HPS for 5 th grade. They are friends and support each other. I further note how well Student has adapted to the inclusion setting at HPS, and how positively other children have related to Student. Testimony of Turco, Ford.
Second, Parents (and their expert) argue that Student will learn little from her chronological peers who are typical students. They believe that the developmental gap is so large that the interests and abilities of these typical students are not useful models for Student. Testimony of Mother, Stevens. As explained above, however, there is considerable evidence to the contrary, which leads me to discount this argument.
Finally, Parents (and their witnesses) point out that Student benefits from the consistent, 24-hour structure of a residential program in order to address Student’s behavior issues and to allow her learning to occur and then to be consistently reinforced at times outside the normal school day. Although Student has benefited from the residential components of Cardinal Cushing, these benefits can be replicated within the HPS setting. For example, the HPS’s most recently proposed IEP calls for participation in the after school enrichment program with support to provide positive practice for social interactions and leisure skills development. Exhibits S-1, P-9.
Furthermore, although Mother is legitimately concerned about Student’s behavior, I am persuaded that Student’s behavioral issues can be adequately managed and corrected through a continuation of the strategies and interventions utilized by HPS. HPS made progress addressing Student’s behavior issues to the point that in 4 th grade, Student’s behavior was not so severe as to limit in any significant way her educational development. Testimony of Turco, Ford. In 5 th grade at Cardinal Cushing, her behavior also improved, with fewer problems transitioning from one activity to another as the year progressed, and a behavior plan has not been needed. Testimony of Ringuette, Giordani. Moreover, through the continuing development of language in the mainstream setting, Student’s behavior difficulties are likely to be more easily resolved since it is the ability of the child to use language to obtain what she wants (rather than using her behavior) that becomes the critical ingredient to eliminating the serious behavior issues for her. Testimony of Maguire. I also note that occasionally it would be a typical peer at HPS who was most helpful to Student when she had a serious behavior incident. Testimony of Dillon.
I find that there are significant opportunities for educational benefits in a mainstream school environment, that those opportunities do not exist for Student within a segregated setting serving only children with disabilities (such as Cardinal Cushing), that these opportunities outweigh any benefits attributable to a placement that is only with developmental peers and that services to provide maximum educational development can be provided within this public schools setting.
At the same time, however, I am mindful of the fact that HPS has yet to propose educational and related services that would in fact maximize Student’s educational development at the Harwich Middle School, and it may take significant time, effort and expertise to do so. For example, careful, expert attention will be needed to create an educational program that addresses the shortcomings detailed in part A of this Decision. Moreover, HPS should consider seeking to replicate many of the aspects of the Cardinal Cushing curriculum that appear to be currently meeting Student’s needs – for example, health/hygiene/sexuality issues, daily living skills, vocational and pre-vocational skills, social/safety/life skills and boundary issues. Also, HPS will need time to provide an adequate level of details that were missing in its most recent IEP – for example, regarding after school activities and supervision/support during that time.
It is apparent that HPS would benefit significantly from consultation from an inclusion expert such as Dr. Maguire. In fact, with all due respect to the HPS staff, this Hearing Officer doubts whether HPS would be able to create a satisfactory educational program for Student without significant assistance from such an expert, including assistance with designing curriculum, training staff and monitoring implementation as necessary.
It is apparent that until HPS, through the Team process, offers Student an acceptable IEP, HPS has a responsibility to pay for Student’s placement at Cardinal Cushing. Moreover, even were HPS able to develop an acceptable IEP for Student within a short period of time, HPS should consider continuing to pay for Cardinal Cushing for the remainder of this school year in order to avoid potentially significant transition difficulties were Student moved back to HPS during the middle of the academic year. As Dr. Maguire testified, in general there are advantages to changing schools between school years rather than during the middle of a school year. In addition, Student has a well-documented history of significant behavior problems with transitions, and (as Ms. Turco explained) Student may have additional difficulties with a new environment until she becomes familiar with it. Ms. Ford also noted the transition difficulties when Student was given a new aide – a relatively minor transition compared to a change in schools. The Harwich Middle School would be a new and significantly different school environment for Student.
It therefore is recommended that, through the Team process (which includes significant participation of Parents) and with significant assistance from an inclusion consultant, HPS develop a new IEP for the purpose of returning Student to HPS for 6 th grade. It is further recommended that HPS pay for Student’s completion of her 5 th grade year at Cardinal Cushing.
HPS shall reimburse Parents for the tuition and transportation costs associated with Student’s placement at Cardinal Cushing for the period encompassed in HPS’s most recent IEP (2/1/2000 to 2/1/2001).18
By the Hearing Officer,
Dated: April 10, 2001
COMMONWEALTH OF MASSACHUSETTS
DEPARTMENT OF EDUCATION
BUREAU OF SPECIAL EDUCATION APPEALS
EFFECT OF BUREAU DECISION AND RIGHTS OF APPEAL
EFFECT OF DECISION AND RIGHTS OF APPEAL
The decision of the Bureau of Special Education Appeals is final and is not subject to further agency review. Because 20 U.S.C. s. 1415(i)(1)(B) requires the Bureau decision to be final and subject to no further agency review, the Bureau cannot permit motions to reconsider or to re-open a Bureau decision, once it is issued. Any party aggrieved by the Bureau decision may file a complaint in the 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 must be filed within 30 days of receipt of the decision.
Except as set forth below, the final decision of the Bureau must be implemented immediately. Under 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,” 20 U.S.C. s. 1415(j). 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. Doe v. Brookline , 722 F.2d 910 (1st Cir. 1983); Honig v. Doe , 484 U.S. 305 (1988).
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 M.G.L. c.30A, ss. 11(6) and 14(4), an appealing party seeking a certified written transcription of the entire proceedings, must arrange for the transcription, or portion thereof, by a certified court reporter, at his/her own expense. Transcripts prepared by the party must then be submitted to the Bureau of Special Education Appeals with appropriate court reporter certification for final review and certification. A party unduly burdened by the cost of preparation of a written transcript of the sound recordings may petition the Bureau of Special Education Appeals for relief.
A party contending that a decision of the BSEA is not being implemented may file a complaint with the Department, whose responsibility it shall be to investigate such complaint. 603 C.M.R. s. 28.00, par. 407.0.
In addition, the party shall have the option of filing a motion with the Bureau of Special Education Appeals, requesting the Bureau to order compliance with the decision. The motion shall set out the specific area of alleged non-compliance. The Hearing Officer may convene a hearing at which the scope of inquiry will be limited to facts bearing on the issue of compliance, facts of such nature as to excuse performance and facts bearing on a remedy. Upon a finding of non-compliance, the Hearing Officer may fashion appropriate relief and refer the matter to the Legal Office of the Department of Education for enforcement.
In order to preserve the confidentiality of the child 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.
NOTICE OF REVISED BUREAU PROCEDURES
The United States Department of Education, Office of Special Education Programs (OSEP) in its 1990 Monitoring Report, issued July 17, 1991, ordered the Bureau to amend its procedures to eliminate the availability of reconsideration or re-opening as post-decision procedures in the Bureau cases. Accordingly, parties are notified that the Bureau will not entertain motions for reconsideration or to re-open. Bureau decisions are final decisions subject only to judicial review.
In addition, parties should be aware that the federal Courts have ruled that the time period for filing a judicial appeal of a Bureau decision is thirty (30) days, as provided in the Massachusetts Administrative Procedures Act, M.G.L. c.30A. See, 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.
The IEP referenced is for the period 2/1/2000 to 2/1/2001. Exhibits S-1, P-9.
The ninety minutes of special education, the speech/language services and the occupational therapy began (partly or fully) in the inclusion model, but over time they all changed to a pull-out model so that Student received these services in a separate setting. The ninety minutes of special education addressed reading, writing and math.
A recent federal Circuit Court decision is particularly clear on this point:
we must limit our evaluation of Bexley’s proposed IEP to the terms of the document itself, as presented in writing to the Knables. . . . In discussing the importance of the formal written offer requirement, the Ninth Circuit has noted that the requirement is not merely technical, but rather serves the important purpose of creating a clear record of the educational placement and other services offered to the parents. The written offer not only helps to eliminate factual disputes between the school district and parents about proposed placements, but also greatly assists parents in presenting complaints with respect to any matter relating to the educational placement of the child. The written offer requirement should therefore be enforced rigorously…. The district court erred in relying on the IHO’s finding that Bexley had the capacity to offer Justin an appropriate program. The district court should have limited its assessment to the terms of the draft IEP document itself. Although there was evidence in the record indicating what could have been provided at Harding, only those services identified or described in the draft IEP should have been considered in evaluating the appropriateness of the program offered. [Internal citations and quotation marks omitted.]
Knable v. Bexley City School District , No. 99-4326/4394, 34 IDELR 1 (6 th Cir. 1/24/01).
When Parents sought more details as to the particular program that would be provided Student in 5 th grade – for example, through a visit to the 5 th grade by Parents and their educational advocate and through a follow-up call by their educational advocate in June 2000 – Parents were provided none. In fact, Parents were told that it was not possible to provide additional details because the program for Student had not yet been developed. Testimony of Mother, Chaput. The first time HPS offered additional details was in a September 25, 2000 letter to Parents, at which time the IEP had been rejected for many months and Student had already begun 5 th grade at Cardinal Cushing. Exhibit P-40. Clearly, this information was too late to be useful to Parents and is therefore not relevant.
The HPS 5 th grade teacher (Alvezi) testified regarding what educational instruction and activities she is providing this academic year. Much of what she describes would be beneficial to Student. Testimony of Alvezi. However, none of what she described changes the basic disconnect between the level of academic instruction in core academic areas and Student’s ability to understand and make use of this material.
MS. GALLANT: Do you know whether [Student] received any specialized instruction or are they proposed in the IEP for her?
DR. MAGUIRE: I assume all her instruction would be specialized given that it’s a special education program and she has an IEP and they are pullout components as well as inclusion activities.
HEARING OFFICER: I’m sorry, you’re assuming all of her instruction would be modified?
DR. MAGUIRE: Yes, it’s my understanding that even if one is in an inclusion setting, there’s still supervision and still instruction to maximize the social aspects. One does not just say, “Here, please go to art and have a good time.” It’s how do we maximize your time spent in art? What are our objectives? So even in the mainstream setting, I would assume that there would be that level of attention. Transcript 2/5/01, pages 292-293.
HEARING OFFICER: Let me ask you: What is your understanding of the program being offered by Harwich Public Schools for fifth grade for [Student]?
DR. MAGUIRE: It’s a segregation/inclusionary model. The segregation would be for pullouts for such things as academics, reading, math, the inclusionary components would be for more like specials and lunch and those kind of things. I would assume that the horseback riding and gym would also be considered a pullout. I don’t think that’s an inclusionary kind of program. . . .
MS GALLANT: Based on your record review and all of your conversations with staff at both facilities as well as your own observations in your professional opinion, Dr. Maguire, would the program that’s been proposed for [Student] at Harwich maximize her educational potential in the at least restrictive environment? . . . .
DR. MAGUIRE: Yes.
Transcript 2/5/01, pages 298-301.
MR. WALLACE: Maybe I missed something earlier. Looking at the IEP, when you say that, you mean Harwich’s proposed 2000 to 2001 IEP?
DR. MAGUIRE: Right, which has, if I remember it correctly — I’m old; I can forget — it has the pull-out programs for math and reading and academics and the inclusion for the specials, art, music, et cetera, with swimming and horseback riding, that plan would be better implemented at Harwich.
Transcript 2/5/01, at 346-347.
HPS’s proposed educational program for Student fails to address adequately physical education. Mr. Chaput testified that he observed a gym class in 4 th grade where Student was not part of any of the teams that were involved in the physical actives but instead Student had a ball off by herself and her aide was with her trying to keep Student out of the way of the other children. Also, Ms. Monast testified that Student needs accommodations regarding physical education equipment. Yet, the HPS most recent IEP does not call for adaptive physical education or otherwise address this issue in a way that would allow full participation by Student.
Dr. Maguire’s testimony is perhaps even more compelling than appears on the surface since he testified (mistakenly) that Student was functioning academically at the 1 st to 2 nd grade level — her actual academic functioning at the end of 4 th grade was pre-kindergarten to 1 st grade. See text supra for discussion at part A1 of this Decision.
For cases involving similar conclusions, see Hartman by Hartman v. Loudoun County Board of Education , 26 IDELR 167 (4 th Cir. 1997) (court rejected the possibility of mainstreaming a student in a regular education classroom where the student was found to need a completely different program); Jane Doe v. Arlington County School Board , 4 F.Supp. 599 (E.D. Va. 1999), affirmed 32 IDELR 58 (4 th Cir. 2000) (instructional needs require a curriculum which is fundamentally different both in pace and content from the regular curriculum). See also dicta in Daniel R.R. v. State Board of Education , 874 F.2d 1036, 1050 (5 th Cir. 1989): “mainstreaming would be pointless if we forced instructors to modify the regular education curriculum to the extent that the handicapped child is not required to learn any of the skills normally taught in regular education. . . . [T]he only advantage to such an arrangement would be that the child is sitting next to a nonhandicapped student.”
I do not attempt either to review all of the relevant case law regarding the federal standard or to determine the precise contours of FAPE; nor do I need to do so since the outcome of my analysis below would be unaffected.
See part B3, below, for a discussion of the issue of least restrictive setting as it relates to reimbursement.
HPS argues that Student has regressed educationally and behaviorally at Cardinal Cushing. There was evidence that would support the conclusion that with respect to certain specific skills and perhaps with respect to behavior during transitioning, Student may have started off at Cardinal Cushing behind where she left off at the end of 4 th grade at HPS. Yet, HPS’s own witnesses testified to the difficulty that Student has with transitions, whether it be with a new aide in 4 th grade (testimony of Ford) or a new environment (testimony of Turco). I conclude that any regression that Student may have exhibited when first attending Cardinal Cushing does not necessarily reflect negatively on the program there.
A decision by a federal Circuit Court recently addressed this precise issue:
Bexley contends that the Knables are not entitled to reimbursement because Grove School was not the “least restrictive” placement as required by the IDEA. See 20 U.S.C. § 1412(5); 34 C.F.R. § 300.550. We noted in Boss , however, that parents who have not been treated properly under the IDEA and who unilaterally withdraw their child from public school will commonly place their child in a private school that specializes in teaching children with disabilities. See 144 F.3d at 400 n.7. We would vitiate the right of parental placement recognized in Burlington and Florence County were we to find that such private school placements automatically violated the IDEA’s mainstreaming requirement. See id.
Knable v. Bexley City School District , No. 99-4326/4394, 34 IDELR 1 (6 th Cir. 1/24/01).
The Parties did not seek to have this Hearing Officer consider a subsequent IEP even though the Hearing schedule (as well as additional time needed for writing briefs and this Decision) extended beyond the time period of the disputed IEP.
Similarly, the state special education regulations mandate that a school district ensure that special needs children are educated in the least restrictive environment consistent with meeting their educational needs:
Least restrictive environment (LRE) . The school district shall ensure that, to the maximum extent appropriate, children with disabilities are educated with children who do not have disabilities, and that special classes, separate schooling, or other removal of children with special needs from the general education program occurs only if the nature or severity of the disability is such that education in general education classes with the use of supplementary aids and services cannot be achieved satisfactorily.
603 CMR 28.06(2). See comparable federal regulatory language at 34 CFR 300.550.
In passing the federal special education law, Congress recognized “the importance of teaching [disabled children] skills that would foster personal independence. . .[and] dignity for handicapped children.” Polk v. Central Susquehanna Intermediate Unit 16, 853 F.2d 171, 181 (3d Cir. 1988), cert. denied 488 U.S. 1030, 109 S. Ct. 838 (1989) (discussing Act’s legislative history).
This IEP is Exhibits S-1 and P-9.