COMMONWEALTH OF MASSACHUSETTS
BUREAU OF SPECIAL EDUCATION APPEALS
In Re: Lunenburg Public Schools and the Mass. Department of Mental Health
BSEA # 05-0799
DECISION
This decision is issued pursuant to the Individuals with Disabilities Education Act (20 USC 1400 et seq .), Section 504 of the Rehabilitation Act of 1973 (29 USC 794), the state special education law (MGL ch. 71B), the state Administrative Procedure Act (MGL ch. 30A) and the regulations promulgated under these statutes.
A hearing was held on November 16, 2004 in Worcester, MA and November 18, 2004 in Lunenburg, MA before William Crane, Hearing Officer. Those present for all or part of the proceedings were:
Student’s Mother
Lee Anne Englert Clinical Social Worker, Franklin Perkins School
Sharon Lowry Director of Day Treatment, Franklin Perkins School
Thomas O’Neil Director of Children’s Services, Franklin Perkins School
Karen Benson Clinician, Wetzel Center
Robert Dingman Clinical Director, Wetzel Center
Simon Lucas Case Manager, Mass. Department of Mental Health (DMH)
Richard Breault Child/Adolescent Area Director, DMH
John Backman Psychiatrist, Consultant to DMH
Elaine Blaisdell Student Services Coordinator, Lunenburg Public Schools
Audrey LaBelle Advocate for Parents
Tim Norris Attorney for Lunenburg Public Schools
Kathleen Kugelmann Attorney for DMH
The official record of the hearing consists of documents submitted by the Parents and marked as exhibits P-1 and P-3 through P-5; documents submitted by the Lunenburg Public Schools (Lunenburg) and marked as exhibits S-1 through S-31; and recorded oral testimony and argument during the two hearing days.
The previous Hearing Officer (Lindsay Byrne) denied a Motion of the Mass. Department of Mental Health (DMH) to dismiss itself as a party to this appeal. This case was assigned to the present Hearing Officer on November 15, 2004. Written closing arguments were due on November 22, 2004, and the record closed on that date.
In order to apprise the parties in a timely manner of my findings and conclusions in this case, an Order was issued on November 24, 2004, in advance of the full text of this Decision. See Appendix A.
ISSUES
The issues to be decided in this case are the following:
1. Is Student’s most recent IEP (proposed by Lunenburg for the 2004-2005 school year) reasonably calculated to provide Student with a free appropriate public education in the least restrictive environment?
2. If not, is Student entitled to receive a residential placement for educational reasons?
3. If not, is DMH responsible for providing Student with residential services?
FACTS
Profile of Student and Most Recent IEP .
1. Student is a twelve-year-old boy who is presently in the 6 th grade. Student’s parents reside in Lunenburg. Student is a bright, friendly and curious boy who is genuinely liked by many of the professional staff working with him. Student has been diagnosed with Bipolar Disorder, attention deficit hyperactivity disorder, oppositional defiant disorder, vision disturbance and Asperger’s Syndrome. Testimony of Lowry,1 Dingman,2 Backman,3 Englert,4 Benson;5 exhibits S-1 and P-4 (Clinical Summaries), S-9 (IEP).
2. Student’s most recent IEP (for the time period 1/07/04 to 1/07/05) was prepared pursuant to a Team meeting on January 7, 2004 that was attended by Parent, Parent’s advocate and Perkins staff. The IEP was originally agreed to, in full. The IEP calls for Student to attend the Franklin Perkins School (Perkins) as a day student. Perkins is a private school located in Lancaster, Mass. Testimony of Blaisdell;6 exhibits S-9 (IEP).
3. Pursuant to a request by Parents, the IEP Team reconvened on June 15, 2004. Parents requested that Student be provided a residential placement. Lunenburg’s Student Services Coordinator (Ms. Blaisdell) testified that the Parents were seeking this placement because of safety concerns within the home – concerns regarding Student’s out-of-control behaviors and his potentially harming himself and/or his family members. Lunenburg disagreed, and Parents then rejected the most recent IEP. Testimony of Blaisdell; exhibit S-22 (letter indicating rejection of IEP by Parents).
4. Student’s most recent IEP describes his disabilities as attention deficit hyperactivity disorder, oppositional defiant disorder, R/O Bipolar Disorder, and vision disturbance. Exhibit S-9, page 2 of 10.
5. Under the heading “Student Strengths and Key Evaluation Results Summary”, Student’s IEP first makes the following observations: Student has made academic gains within the structure and consistency of a small classroom environment; he is able to complete assignments independently as well as be an active participant within a small group; he is working at grade level in all academic areas with minimal modifications; he requires additional support and guidance in math as it is his least preferred subject; he has improved his writing abilities through an explicit, systematic writing instructional approach; and he requires frequent cues and redirections while participating in class activities to remain focused on task. Exhibit S-9, page 1 of 10.
6. This part of the IEP (“Student Strengths and Key Evaluation Results Summary”) then continues as follows to address Student’s behavior deficits:
He has difficulty ignoring the negative behaviors of others as well as from refraining from commenting on the issues of others. [Student] struggles to manage his frustration. With teacher support and use of coping strategies, he has increased the time spent in the class refraining from walking out when overwhelmed or frustrated. In times of frustration he continues to display disruptive behaviors including verbal disruption, destroying his work and refusing to participate requiring behavioral interventions outside of the classroom. [Student] has difficulty requesting assistance in an appropriate manner often resulting in increased frustration and the need for behavioral intervention. [Student] has identified coping strategies that he is able to access within the classroom setting but continues to need cues to utilize them appropriately and in a timely manner before his behavior escalates.
7. In response to the question “How does the disability(ies) affect progress in the indicated area(s) of other educational needs?”, the IEP further describes Student’s behavior deficits:
[Student’s] disabilities [listing of disabilities] impact his ability to maintain appropriate classroom behaviors. [Student] requires a small group setting with a behavioral component to provide him with consistent expectations and consequences. [Student] at times requires more intensive behavioral interventions due to his difficulty in effectively managing his emotional response to frustration. [Student] requires constant monitoring and feedback when interacting with peers to insure appropriateness of interactions. [Exhibit S-9, page 3 of 10.]
8. In response to the question “What type(s) of accommodation, if any, is necessary for the student to make effective progress?, the IEP states, in part:
-Rules expectations and consequences must be clear, concise and consistent.…
-Behavioral Management Program…. [Exhibit S-9, pages 2 and 3 of 10.]
9. The IEP includes six goals, listed as 1) Social Skills, 2) Attending Skills, 3) Frustration Tolerance, 4) Written Language, 5) Math Skills, and 6) Occupational Therapy. Under goal # 2 (Social Skills), his current performance includes the following deficits: attempting to engage in inappropriate conversations with peers, continuing to have difficulty ignoring the negative behaviors of others, and making comments that tend to escalate the situation. Exhibit S-9, page 4 of 10.
10. Under goal # 3 (Frustration Tolerance), his current performance level is described as follows:
[Student] has the ability to acknowledge to staff when he is feeling frustrated, but continues to have behaviors around his anger, anxiety, and frustration. [Student] has shown a decrease in walking out of class and is now able to refocus within the classroom more often but this requires many cues. When [Student] becomes frustrated or angry he is not always able to recognize the need to utilize his coping skills before he starts his behaviors of yelling out, poor peer interactions, ripping up work, or refusing to do an assignment. [Student] continues to become involved in the negative behavior of others. [Exhibit S-9, page 5 of 10.]
11. Under the heading “Service Delivery”, the IEP calls for 5 hours per week of services from “Teacher/Staff” to address goals ## 1, 2 and 3 through “Social/Emotional” services. Exhibit S-9, page 7 of 10.
History of Services .
12. Student has been at Perkins, as a day student, since December 2002. Perkins operates both day and residential educational programs. Student was first placed at Perkins by the town of Maynard. Testimony of Blaisdell.
13. In March 2004, Lunenburg was introduced to Student when its Student Services Coordinator (Ms. Blaisdell) was notified by the town of Maynard that Student and his family were moving to the town of Lunenburg. After reviewing Student’s records, including progress reports, and after considering input from Student’s teachers and Parents at a meeting on March 22, 2004, a consensus was reached by the individualized education program (IEP) Team that Student’s IEP, including the services and placement as well as the goals and objectives as described within the IEP, were appropriate. Lunenburg therefore adopted and continued to implement Student’s IEP, without any change from what had been developed by Maynard. Student continued to receive all of his special education services at Perkins pursuant to the IEP, which covers the period 1/7/04 to 1/7/05. Testimony of Blaisdell; exhibits S-9 (IEP), S-27 (meeting notes).
14. From October 2003 to the present, Student’s stay at Perkins was interrupted by five psychiatric hospitalizations. Student’s second most recent hospitalization was in May 2004, after which he returned briefly to Perkins before being hospitalized at the Lowell Youth Treatment due to a reported increase in suicide ideation and aggressive behaviors. Upon leaving Lowell Youth Treatment on June 9, 2004, Student was placed at the Wetzel Center (Wetzel), an acute residential treatment center, as a “step-down” from the psychiatric hospitalization. Testimony of Lowry, Benson, Englert; exhibits S-1, P-4.
15. Student has resided at Wetzel from his admission on June 9, 2004 to the present. Student received his academic services at the Wetzel Center from June 9, 2004 until October 6, 2004 when Student returned to Perkins to receive his academic services there. He continued at Perkins as a day student from October 6, 2004 until November 3, 2004. Testimony of Blaisdell, Benson.
16. On November 3, 2004, Student pulled a fire alarm and, as a result, was suspended. Immediately following this incident, Student was pushing and kicking staff, was held by staff for 21 minutes, and was moved to a time-out room where he exhibited self-destructive behavior. He was transported by ambulance back to Wetzel during the school day on November 3 rd . Testimony of Blaisdell, Benson, Englert.
17. Perkins’ suspension of Student was for three days, after which Perkins allowed Student to return. However, Student has not yet returned to Perkins. As of the date that Wetzel staff testified (November 16, 2004), Wetzel staff did not yet believe that Student was ready to return to Perkins for school but were scheduled to review his status the next day. Testimony of Lowry, Englert, Dingman.
Progress Reports, Grades and Assessments .
18. Student’s quarterly progress reports from 1/03 to 12/03 were prepared by Student’s teachers at Perkins, and were reviewed and signed by Ms. Lowry. These progress reports address the five annual goals in the IEP for the period 1/27/03 to 1/27/04. The reports generally reflect some slippage in skills during the course of the year (particularly in the fall), but the reports nevertheless indicate that Student was generally making progress when comparing his skill level at the first quarter with his skills in the last quarter, with respect to many of the five goals on his IEP. Testimony of Blaisdell, Lowry; exhibit S-28 (quarterly reports).
19. Specifically with respect to the IEP goal that addresses his behavior difficulties (goal # 3, entitled “Frustration Tolerance”), Student improved from the first quarter to the fourth quarter with respect to being able to ignore the negative behaviors of others (increasing from 50% of the time to 65% of the time) but regressed with respect to his ability to acknowledge to staff that he is feeling frustrated (decreasing from 3 out of 5 times to 2 out of 5 times) and stayed the same with respect to number of verbal cues required by staff during periods of frustration, anxiety and anger (remaining at 3 or more verbal cues). Exhibit S-28 (quarterly reports). The IEP for this time period states as the annual goal relevant to goal # 3: “Given that [Student] is frustrated, he will be able to respond to cues without becoming disruptive and verbally aggressive 80% of the time.” Exhibit S-10 (IEP).
20. Student’s quarterly progress reports from 1/04 to 6/04 were similarly prepared by Student’s teachers at Perkins, and were reviewed and signed by Ms. Lowry. The progress reports include two quarters of the IEP year and address the five annual goals in the IEP for the period 1/07/04 to 1/07/05. The progress reports generally indicate a continuation of the progress reported during the previous IEP year. Ms. Lowry testified that she has consistently seen a decline in Student during the fall (October and November). Testimony of Blaisdell, Lowry; exhibit S-17 (quarterly reports).
21. Specifically with respect to the IEP goal that addresses his behavior difficulties (goal # 3, entitled “Frustration Tolerance”), the first quarter report indicates that he is able to refocus and de-escalate 74% of the time, is able to use his coping strategies appropriately 2 out of 4 times and uses his emotion chart to explain his feelings 1 out of 5 times. The second quarter report for this goal indicates that Student is able to “take space” 3 out of 5 times with 2 or fewer prompts, he has not wanted to utilize his feelings chart, but he is “able to calmly process with staff after all incidents and follow through with any new expectations or consequences for his behavior or involvement in peer issues.” Exhibit S-17 (quarterly reports). The IEP for this time period states as the annual goal relevant to goal # 3: “Given that [Student] is frustrated, he will utilize coping strategies to prevent escalation in 3 out of 5 opportunities when provided with one verbal prompt.” Exhibit S-9 (IEP).
22. Student’s report card for the 2003-2004 school year reflects grades of B (indicating good achievement) or S (indicating satisfactory progress) in all areas. Testimony of Blaisdell, Lowry; exhibit S-20 (grades).
23. Ms. Blaisdell testified that when she compared Student’s educational evaluation completed by Perkins staff on 12/2/03 with Student’s cognitive assessment completed on 5/13/02, she found that Student was making progress in math, which is Student’s greatest area of academic need. Ms. Blaisdell relied on a comparison of information contained within the 2002 cognitive assessment with information in a 1999 cognitive assessment. This evaluation indicates that Student’s cognitive level is in the average range of intellectual ability (full scale IQ of 101). Testimony of Blaisdell; exhibits S-2 (educational evaluation), S-4 and P-5 (cognitive testing in 2002), S-8 (cognitive testing in 1999).
24. A Team meeting occurred on September 9, 2004, during which Student’s extended absences (from the last school year) were discussed. At the meeting, concern was expressed as to whether it would be appropriate to retain Student rather than promoting him to the 6 th grade. Ms. Blaisdell testified that as a result of further consideration by Perkins staff, including assessment of Student, Perkins staff determined that he would be able to do 6 th grade work and recommended that he be promoted to the 6 th grade for the 2004-2005 school year, and Student was so promoted. Testimony of Blaisdell, Lowry; exhibit S-18.
25. Ms. Blaisdell and Ms. Lowry agreed in their testimony that from their review of Student’s records, including progress reports and assessments, he has had a meaningful education as a day student at Perkins.
Behavior at Perkins .
26. Ms. Lowry testified generally regarding Student’s behavioral difficulties at Perkins. She explained that from December 2002 when Student arrived at Perkins through the end of that school year, there were written reports indicating ten therapeutic holds; during the 2002-2003 school year (during which Student was absent for 53 days because of psychiatric hospitalizations) there were written reports of four therapeutic holds; and from October 6, 2004 until November 3, 2004 there were written reports of four therapeutic holds. Ms. Lowry testified that as compared to other students in the day program at Perkins, Student did not present as one of the more behaviorally challenging students even though, at times, he has required intensive behavioral interventions. She noted that Student’s behavior episodes have not been lengthy and Student has been able to respond appropriately to staff at these times. Testimony of Lowry.
27. The Lunenburg Student Services Coordinator (Ms. Blaisdell) testified that she understood from Perkins staff that when the relatively few behavior interventions were necessary at Perkins, staff was able to work with Student so that he was able to make up any missed schoolwork and that Student continued to make academic progress notwithstanding his behavioral difficulties. When comparing Student’s behavior prior to attending Perkins, with Student’s behavior while attending Perkins, Ms. Blaisdell concluded that Student was making progress regarding his behavioral difficulties.
28. Greater detail regarding Student’s behavior at Perkins was provided through the testimony of a Perkins clinical social worker (Ms. Englert) whose responsibilities included working directly with Student as his case manager and providing crisis management to him – for example, she was called to support Student whenever any significant behavior difficulties occurred. Ms. Englert began her employment at Perkins in February 2004 and she began working with Student at that time. Testimony of Englert.
29. In March 2004, Ms. Englert found Student to be a kind and gentle boy who was able to talk with Ms. Englert about difficulties at home. Student was able to concentrate on his education, and he was generally able to have conversations and process what was happening within him. At this time, Student’s behavior was “manageable”, without behavioral crises. Testimony of Englert.
30. Student’s family moved from Maynard to Lunenburg in the spring of 2004 and apparently as a result of that move, Student began demonstrating significant behavior difficulties. There was “incident after incident” at school, he could “not get his bearing back” and he was generally on a “downward decline”. Testimony of Englert.
31. In May 2004, Student’s stay at Perkins was interrupted by two psychiatric hospitalizations. Student returned to Perkins on October 6, 2004 and continued his schooling there until November 3, 2004. During this time at Perkins, Student appeared more troubled than before. In class, when he had difficulty understanding what was being taught or when he was not clear on something, he would not be able to ask for help; instead, he would “explode” or run out of the room. On these and other occasions, Student would need to go into the intervention room where he would be hostile and aggressive, including assaulting staff. These incidents ranged from 20 minutes to 90 minutes before he was able to return to the classroom. These incidents (resulting in going into the intervention room) occurred on a daily basis for a period of time (approximately seven days) and then he would have “good” days (for two to four days) before the behavior problems began again. During this time, Ms. Englert typically had contact with Student twice a day and usually both times would be related to a behavior crisis. Testimony of Englert.
32. Student’s time in the classroom during this time was interrupted by these behavior difficulties since Student would remove himself from the classroom or was removed by others to the intervention room. However, Student was able to complete his schoolwork by using free time to catch up on what had been missed. Testimony of Englert.
Behavior at Wetzel .
33. After Student was initially placed at Wetzel on June 9, 2004, he did relatively well at first. However, shortly thereafter, Student decompensated, and since mid-July 2004 he has demonstrated increased threatening and assaultive behavior towards staff. Typically, he is able to maintain control for several days, and then he has multiple outbursts requiring physical management by staff. Testimony of Benson.
34. Immediately prior to returning to Perkins on October 6, 2004 to resume classes there, he was able to maintain himself without behavioral difficulties for seven days and was determined by Wetzel staff to be able to return to Perkins. Student has been at the Wetzel Center from June 9, 2004 through the present, and during that time has been at the Perkins Center to attend classes during the day from October 6, 2004 to November 3, 2004. Testimony of Benson.
35. At Wetzel, Student has had numerous behavioral difficulties, resulting in staff using physical restraints. Approximately 60% of these behavior difficulties have occurred at times after the school day (late afternoon and evening), and approximately 40% have occurred during the school day. The severity of these episodes has not varied between the school day and after school. These difficulties usually begin with Student’s refusal to comply with staff, and Student then escalates to going to an intervention room where he often is aggressive and destructive – for example, pushing into staff’s face, punching and kicking staff, and spitting on staff. Testimony of Benson, Dingman.
36. When these difficulties have occurred after school, the amount of time out and processing of the difficulty with staff typically takes several hours. “For the most part”, Student has been able to complete his schoolwork even when he has had behavioral difficulties – exceptions would be, for example, where the behavioral difficulties occurred for most of the evening so that he was not able to complete his homework; this has typically happened two or three times per week. Testimony of Benson.
37. In two documents entitled “Clinical Summary” prepared by Ms. Benson and dated 9/22/-04 and 10/27/04 indicate that Student has had continuing behavioral difficulties at Wetzel, including threatening staff and peers, testing limits, refusing to follow routine, and disruptive behaviors. Exhibits S-1, P-4.
Bus Transportation between Perkins and Wetzel .
38. There were incidents on the bus, on a daily basis, when Student was being transported between Wetzel and Perkins, as reported by the bus driver, Student and other children. Other children on the bus were disruptive and occasionally assaultive. This resulted in Student’s not feeling safe and caused significant stress on Student. Student had difficulty talking about these incidents – for example, he was stabbed on the bus by a pencil and instead of being able to talk about it, he stabbed himself; he did not reveal his pencil wound until a number of days after the incident. Testimony of Englert, Benson.
39. When Student feels that he is not in a safe environment, he is not able to contain himself, and he acts out behaviorally. Previous to his two most recent hospitalizations, he would be able to talk about the incidents on the bus. Testimony of Englert, Benson.
40. Ms. Blaisdell testified that the bus ride from Student’s current residence (Wetzel Center) to Perkins is problematic for Student because of the length of the trip (approximately one hour each way) and because of the large number of other students on the bus. She explained that she has attempted to locate other bus companies to provide transportation but has been unsuccessful. She stated that she has requested that the bus company provide a bus monitor, but the bus company responded that it has been having difficulty finding bus monitors and there are six monitor requests ahead of Ms. Blaisdell’s request. It is therefore not possible to predict when the request for a bus monitor will be met.
Need for a Residential Placement .
41. The Lunenburg Coordinator of Student Services (Ms. Blaisdell) testified that, in general, in order for residential services to be warranted for a student, it would need to be demonstrated that the student is not making progress in a less restrictive setting (for example a day placement). She believes that Student has been making progress at the day placement at Perkins and therefore a residential placement is not needed for educational reasons.
42. Ms. Blaisdell testified, however, that she did “not necessarily disagree” that Student requires a residential placement, but the placement would be needed because of safety concerns in the home. Ms. Blaisdell stated that in the event that the IEP Team were to conclude that a residential placement was necessary as a result of safety concerns pertaining to the home, Lunenburg would be willing to cost-share a residential placement at Perkins but it would not be Lunenburg’s responsibility to fund the entire placement. Ms. Blaisdell further explained that she is familiar with Asperger’s Syndrome, and that the social skills training that is typically needed to address this disability can be provided during the school day, without the need for residential services.
43. In her testimony, the director of the Perkins day program (Ms. Lowry) first agreed with Ms. Blaisdell that since Student has been making progress at Perkins, a residential placement is not warranted for educational reasons. Ms. Lowry further explained that when a residential placement is needed for a day student at Perkins, typically it is because the daytime special education and related services are not sufficient in order to manage Student’s behavior during the day and the student therefore requires a higher level of services. She noted that Perkins has been able to manage successfully Student’s behavioral difficulties during the school day. On further questioning, however, Ms. Lowry agreed that if someone with Student’s behavior during the day exhibited these same kinds of behaviors after school and evening hours so that trained staff would be necessary during those times in order to respond to Student’s behavior, then a residential placement would be needed to address these behaviors.
44. Student’s case manager at Perkins (Ms. Englert) testified that while Student was living at home, Student’s stress was in the home environment (rather than at school). She reported that the weekends at home were upsetting to him and brought up “difficult issues” for Student. Ms. Englert opined that it has been the home environment that is the primary reason that Student requires a residential placement.
45. Ms. Englert testified that in order for others to work effectively with him, Student must be in a stable environment where he feels safe and where he can trust people. She believes that such an environment would allow him to share with others what is happening within him and to address these issues without acting out behaviorally. She testified that she believes that an integrated residential placement, where Student would both live and go to school, is needed currently because the increased containment, structure and safety of such an environment would likely help Student address his behavioral and emotional difficulties, with the result that he would be able to make effective educational progress.
46. Ms. Englert testified that Student’s mental health needs are at the forefront of his difficulties and that he needs to be able to come to school and feel safe. She opined that if these needs are not addressed adequately, Student is not able to learn.
47. Student’s clinician at Wetzel (Ms. Benson) testified that because of Student’s increased aggression and unsafe behavior and because there do not appear to be any precipitants to his behavior, it would not be safe for Student to be living in his home. She also believes that Student feels somewhat overwhelmed and afraid at home. She further explained that, in her opinion, Student’s “presentation”, aggression towards others and his lack of control make it impossible for Student’s emotional and behavioral issues to be addressed appropriately in any community setting outside of a residential placement.
48. Ms. Benson testified that Student “feeds off of inconsistency” and is aware when staff use different approaches. She opined that changes in routine result in behavior de-compensation. She explained that in order for a program to address successfully his emotional and behavioral needs, the program must provide Student with structured routines, minimal transitions, an environment that he trusts, and significant individual and family therapy. She explained that these services and this environment can be effectively provided to Student only in a residential setting.
49. Ms. Benson testified that Student’s social and emotional difficulties impact upon his entire life, including his education.
50. Wetzel’s Clinical Director (Dr. Dingman) testified that over a period of several months, the Wetzel staff has witnessed a cycling of eruptions of unstable mood states that bring with them a high level of aggression, some of which appears to be intentional and unpredictable. He further noted that Student is currently and has been in a period of acute de-stabilization since the incidents of November 3, 2004, and has returned to a pattern of highly variable mood states, intense irritability and proclivity towards aggression that is “alarming”.
51. Dr. Dingman testified that Student has a combination of disabilities, which includes childhood onset Bipolar Disorder, as well as Asperger’s Syndrome. He explained that as a result of Student’s Bipolar affective disorder, he struggles with self-regulation and therefore requires external assistance, through a therapeutic environment.
52. Dr. Dingman testified that Asperger’s Syndrome reflects a barrier to appropriate interactions and relationships with others, thus posing a difficulty to forming a therapeutic relationship that is typically necessary to provide Student with therapy. He explained that because of the combination of his disabilities, it is very difficult to work successfully with Student.
53. Dr. Dingman testified generally that when a child is in a state of emotional and behavioral crisis, he or she is not, at that particular moment, going to be able to learn very much. He stated that, episodically, Student has been in a state of emotional and behavioral crisis. From his discussions with staff at Wetzel, he believes that on those days or evenings when he is in an agitated state, which can last for hours, Student is not in a position to do his homework and is not able to handle bus transportation to Perkins.
54. Dr. Dingman testified that he believes that as a result of Student’s emotional and behavioral difficulties, Student currently needs a placement with twenty-four hour care. He explained that it is quite unlikely that Student could be “successful” outside of a residential placement (for example, at home or a foster setting), because of the need for trained clinical staff and, perhaps most importantly, trained milieu staff available twenty-four hours per day, who are able to respond to and manage appropriately Student’s aggression.
55. Dr. Dingman testified that, apart from the school component, the services that Student would need in a residential program in order for him to make effective educational progress would be the following: (1) close psychiatric monitoring of medication (once per month or more frequently as needed), (2) psychotherapy services from a person with particular expertise regarding Student’s combination of disabilities (once per week for an hour, or more as needed) and (3) a therapeutic milieu to help Student learn and integrate skills regarding social interaction, physical safety and self-regulation — this milieu should include trained staff who are able to manage a behavioral crisis (sometimes to take him off the unit) and who are trained both in verbal de-escalation and in a behavioral management program.
56. Dr. Dingman testified that Student needs an environment with sufficient predictability, consistency and routine. He explained that because of the acuteness of Student’s disabilities and his high rate of acting out, it would be “extremely important” (in order to be able to work with Student effectively) that there be consistency and continuity between the approach and interventions of staff during the school day and staff during other times of the day and evening. Dr. Dingman noted that consistency/continuity is provided to a much greater degree through an integrated residential setting (as compared to a placement where the residence and school day are split) since all staff (both day and evening) are collaborating with each other and implementing the same behavior interventions with Student.
57. Dr. Dingman testified that the residential services (which he has described) are principally to address Student’s social, emotional and behaviorally needs, although appropriately addressing these needs would have an indirect effect on Student’s ability to learn.
58. The DMH consulting psychiatrist (Dr. Backman) testified that, in his opinion, Student has been correctly diagnosed as having Bipolar Disorder and Asperger’s Syndrome, as well as attention deficit hyperactivity disorder. He explained that typically a student with Asperger’s has relatively brief incidents of explosiveness and may become sad upon occasion but can recover with support; however, when Asperger’s is combined with a Bipolar disability, the moods do not bounce back and one can have extremely hard stretches that can last for weeks. He explained that in these ways, the two disabilities exacerbate each other.
59. Dr. Backman testified that he recommended that Student be placed in an integrated residential setting. He explained that such a setting is needed because Student requires a placement that can supervise him and intervene as necessary on a twenty-four hour basis. He further noted the importance of a setting where the day portion (school) is integrated with the after school and residential parts because Student often does not report to staff, in a timely manner, events which are important to him – for example, a stressful or difficult situation which may cause him to “melt down”. Dr. Backman opined that because staff cannot rely on Student to self-report, it becomes critical that all staff working with Student has the same knowledge of what is happening to him, and this would only occur in an integrated residential setting where staff in all settings are communicating, collaborating and working consistently together.
60. Dr. Backman testified that residential services are needed primarily to address Student’s emotional and behavioral needs, but also indirectly to address his academic needs since it is difficult for a child to learn unless the child is stable emotionally and behaviorally. He also noted that he was recommending residential services because of the impracticality of managing Student’s behavioral difficulties in specialized foster care or other home environment.
61. The Perkins director of children’s services (Thomas O’Neil) testified that if a child is demonstrating aggressive physical acts (such as hitting others) and as a result requires behavioral interventions from trained staff both during the school day and late afternoon and evening hours, it is important (for most children) that the child be served in an integrated residential setting. He explained that it is important because of the need for all staff to understand the child in the same way (including having current information regarding the child’s behavior) and how to respond to the child in a consistent manner, with the result that the child knows what to expect and feels safe in that environment. Mr. O’Neil explained that he is not familiar with Student or his special education needs.
62. A letter “To Whom It May Concern” dated October 26, 2004 and signed by Kristin Edson-Shouse, MEd, Assistant Director of Y.O.U. Inc. Family Stabilization Services, wrote that the Family Stabilization Services Program worked with Student and his family from 4/12/04 to 5/23/04, when services ended due to DMH becoming involved and providing services. The letter states that during this time period, “[Student’s] behaviors worsened. [Student] would not respond to any type of crisis plan, behavior modification plan, or utilize anger management or relations techniques that were taught to him. The letter further stated:
It is the recommendation of the Family Stabilization Team that [Student] not return to [his] family home. [Student] would truly benefit from a highly structured residential environment that would assist in helping him to control his behaviors. . . . At the time services with Family Stabilization ended it was evident that [Student] needed a higher level of care than he was receiving at the time.
Exhibit P-1.
Therapeutic and Behavioral Services at Perkins .
63. At Perkins, the behavior of all students (whether day or residential) is addressed through a points (rewards) and levels system, with teachers providing prompting and cuing in order to seek to address potential behavioral difficulties at the earliest possible time and in order to intervene in the least intrusive way possible. There is a continuum of interventions, which ultimately includes use of time-out space and therapeutic holds (physical restraint) by staff. The broad, global behavioral approaches used at Perkins with all students are further adapted and individualized for each student. These behavioral interventions have been provided to Student while a day student at Perkins. All staff is trained to apply these behavioral interventions in a consistent manner for a particular student. A strength of Perkins is to work with intense emotional and behavioral issues of students. Testimony of Lowry, O’Neil.
64. Residential students at Perkins (as compared to day students at Perkins) receive a greater intensity of behavioral and therapeutic services, greater oversight by staff, and more immediate intervention through therapeutic/behavioral supports. Residential students receive therapeutic services (for example, horseback riding, sporting events, interactions with dogs), individual therapy (at least once each week), group therapy (twice each week for all students who have a family), psychiatric services (for purposes of medication management), and behavior interventions, as described above, with each student having an individual behavior plan. In contrast to residential students, day students (as has been the case with Student) generally receive their therapeutic and psychiatric services from persons outside of Perkins. The Perkins residential program is an integrated placement where communication and collaboration occurs among all service providers for a particular student. Testimony of Lowry, Englert, O’Neil.
Services Provided by DMH .
65. Student’s DMH case manager (Simon Lucas) and the DMH Central Mass. Area Director for Child/Adolescent Services (Richard Breault) testified regarding services that may be provided by DMH. Mr. Lucas explained that he has been Student’s case manager since May 1, 2004 when Student was hospitalized.
66. Student has been determined to be eligible for DMH child/adolescent services. DMH staff discussed the possibility of providing home support services to Student’s family (in the form of respite care and other services) when Student was discharged from the hospital. A bed is available for Student in a DMH-funded residential program in Worcester called the School House program. This program has six beds (all funded by DMH), with students aged 6 to 12 years old. There is one teacher at the program, with one aide. School House has a program director, a clinical director, a nurse for medication management and a therapist on-site during the day. The program also includes two overnight awake staff, and is generally staffed to respond appropriately should a child have a crisis at any time. DMH is prepared to place Student into the School House program. Testimony of Lucas, Breault.
67. There is a DMH state-wide (apparently unwritten) policy that if a DMH area office has a program under contract (such as the School House program) that it believes to be appropriate for a child, the area office will not place the child in any other program. There is a “very small” amount of money available to the Central Mass. Area Office to fund services and programs in addition to those programs already under contract with DMH, but this money is intended, for example, to add services for a particular child in an existing program under DMH contract (for example, the School House program) so that the program can meet that child’s unique needs. DMH does not have a contract with Perkins. Testimony of Lucas, Breault.
DISCUSSION
A. Introduction and Legal Standard .
Student is an individual with a disability, falling within the purview of the Individuals with Disabilities Education Act7 and the state special education statute.8 As such, Student is entitled to a free appropriate public education (FAPE).9 Neither his eligibility status nor his entitlement to FAPE is in dispute.
FAPE requires that the individualized education program (IEP) be tailored to address Student’s needs in a way reasonably calculated to enable him to make meaningful and effective educational progress in the least restrictive environment.10
The issue presented is whether the day placement at Perkins (and the programming and specialized services provided there) as reflected in Lunenburg’s proposed IEP are consistent with this legal standard or, conversely, whether Student requires a residential placement for educational reasons.
Special education law provides that an appropriate educational program must be designed to meet the particular student’s unique needs for special education and related services.11 These needs may be academic, physical, emotional, social or behavioral.12 Occasionally, a student’s social, emotional and/or behavioral deficits can be addressed appropriately only within a residential placement.13
The appropriate standard, as reflected within several First Circuit Court of Appeals decisions, for determining whether a residential placement should be ordered is whether the educational benefits to which the student is entitled can be obtained in a day program alone, or conversely whether these educational benefits can only be provided through round-the-clock special education (and/or related) services, thus necessitating placement in a residential facility.14
B. Student’s Disabilities and Special Education Needs .
It is not disputed that Student has a substantial emotional disability (Bipolar Disorder). This emotional disability is aggravated by Student’s deficits regarding social skills – for example, understanding and participating in appropriate social interactions with others. Fact section of this Decision (Facts), pars. 1, 4, 58.15
The severity of Student’s emotional disability is reflected in the fact that from October 2003 to the present, Student has been psychiatrically hospitalized five times. During the 2003-2004 school year, Student missed 53 school days as a result of his psychiatric hospitalizations. Facts, pars. 14, 26.
Several expert witnesses who have evaluated or provided clinical services or oversight to Student persuasively testified regarding the disabling impact of Student’s disabilities. Student’s severe emotional disability, combined with his social deficits, have resulted in significant behavioral difficulties. Facts, pars. 30, 33, 35, 47, 50, 58.
The necessity of addressing Student’s behavioral needs, as part of his special education services, is reflected throughout Student’s IEP. The part of an IEP setting forth “Student Strengths and Key Evaluation Results”, describes both a student’s strengths as well as the student’s disabilities and special education needs. For Student, this part of the IEP first explains his academic and other gains, and then sets forth, in some detail, Student’s significant behavior difficulties and their negative impact upon his schooling – for example, destroying his work, refusing to participate and walking out of the classroom. Facts, pars. 5, 6.
Other parts of the IEP further describe Student’s behavioral disability and the importance of addressing this deficit. For example, where the IEP explicitly asks the question how Student’s disabilities affect his educational progress, the IEP describes Student’s behavioral difficulties as well as the interventions, structure, monitoring and feedback necessary to address these behavioral difficulties. Facts, par. 7.
One of the six special education goals in his IEP (goal # 3 “Frustration Tolerance”) describes Student’s behavior difficulties and then provides a goal and several benchmark/objectives for addressing this area of need. Facts, pars. 9, 10. In addition, when describing what accommodations Student requires in order to make effective progress, Student’s IEP includes a behavior management program. Facts, par. 8.
Although Student’s most recent IEP was prepared by the town of Maynard (Parents and Student lived in Maynard at that time), Lunenburg and its IEP Team considered and explicitly adopted the IEP, in full, subsequent to Student and his family moving to Lunenburg. Facts, par. 13.
Student’s special education services, as actually provided during the day at Perkins pursuant to Lunenburg’s IEP, include a points (rewards) and levels system, with teachers providing prompting and cuing in order to seek to address his potential behavior difficulties at the earliest possible time and thereby intervene in the least intrusive way possible. Perkins provides Student with a continuum of interventions, which ultimately include use of time-out space and therapeutic holds (physical restraint) by staff in order to address his behavioral difficulties. Perkins has a particular strength in working with students who have significant emotional and/or behavioral difficulties. Facts, par. 63.
I find that Student’s special education needs include, but are not limited to, significant social, emotional and behavioral difficulties which Lunenburg has sought to address through its IEP for Student.
C. Progress Regarding Student’s Special Education Needs .
Student has generally made progress in academic areas. For a period of time, Student also appeared to be making progress regarding his social, emotional and behavioral deficits. In March 2004, Student was described as a kind and gentle boy who was able to talk with his clinical social worker at Perkins (Ms. Englert) about difficulties at home, he was able to concentrate on his education, and he was generally able to have conversations and process what was happening within him. His behavior was described as “manageable”, without behavioral crises. Facts, pars. 18, 20, 26, 27, 28, 29.
Soon thereafter, however, Student’s family moved from Maynard to Lunenburg and apparently as a result of that move, Student began demonstrating significant behavior difficulties that have continued through the present. At Perkins, there was “incident after incident”, he could “not get his bearing back” and he was reported to be generally on a “downward decline”. Facts, par. 30.
In early May 2004, Student’s emotional and behavioral difficulties became so severe as to require psychiatric hospitalization. He was discharged from the hospital, returned to Perkins briefly, and was hospitalized again. Then, on June 9, 2004, Student was discharged to an intensive residential treatment center (Wetzel) where he received both day and residential academic and therapeutic services. He has continued to reside at Wetzel through the present, but attended his day program at Perkins from October 6, 2004 until November 3, 2004. Facts, par. 31.
Soon after his admission to Wetzel, Student demonstrated increased threatening and assaultive behavior towards staff. These difficulties usually begin with Student’s refusal to comply with staff, and escalate to going to an intervention room where Student often is aggressive and destructive – for example, pushing into staff’s face, punching and kicking staff, and spitting on staff. At Wetzel, approximately 60% of these behavior difficulties have occurred at times after the school day (late afternoon and evening), and approximately 40% have occurred during the school day. The severity of behavior difficulties at Wetzel is consistent between the school day and after school. Facts, pars. 33, 35, 37.
When Student attended his day program at Perkins from October 6, 2004 until November 3, 2004, he appeared more troubled than before. In class, when he had difficulty understanding what was being taught or was not clear on something, he would not be able to ask for help; he would “explode” or run out of the room. Student would need to go into the intervention room where he would be hostile and aggressive, including assaulting staff. Facts, par. 31.
I find that Lunenburg’s IEP services of a day placement at Perkins have failed to result in Student’s making progress regarding his emotional and behavioral special education needs. Not only has Student’s behavior at Perkins regressed substantially since the spring of 2004, but he has also demonstrated similarly severe behavior and emotional difficulties during the school day as well as after school (afternoons and evenings) at his placement at the Wetzel Center since his placement there on June 9, 2004.
Effective educational progress for Student must be measured in relationship to his potential to learn.16 I further find that the evidence is persuasive that Student’s severe emotional and behavioral deficits, which manifest themselves during the day, afternoon and evening hours, have a significant negative impact upon his potential ability to learn in the classroom, because of both the amount of time which he is unavailable for learning or study, as well as the overall negative impact of his unmet emotional and behavioral needs upon his academic achievement (for example, ripping up his work, refusing to do an assignment or being in acute psychological distress). Facts, pars. 7, 10, 31, 32, 36, 46, 49, 57, 60.
I also note that even if I were to find that Lunenburg had been able to address effectively Student’s daytime emotional and behavioral issues while at Perkins, Lunenburg cannot ignore these same deficits in the home and community. Case law is clear regarding the importance of generalizing learned skills and behavior into the community.17
Successfully addressing emotional and behavioral deficits is particularly important since these deficits jeopardize Student’s ability to live in the community. Until such time as Student can learn to behave safely and appropriately within the community, an essential purpose of the IDEA will not be realized — that is to prepare Student for independent living.18 Congress passed the IDEA, in part, so that students with disabilities could “achieve a reasonable degree of self-sufficiency” and “become a contributing part of our society.”19 Student has no hope of achieving these goals unless his severe emotional and behavioral deficits within the community are appropriately addressed.
D. Services Needed to Address Student’s Emotional and Behavioral Deficits .
The most credible expert witness regarding Student’s emotional and behavioral needs was the Wetzel clinical director (Dr. Dingman). Dr. Dingman has extensive clinical experience as a psychologist. Through his position as Wetzel, he has had daily supervisory involvement with Student since Student’s admission on June 9, 2004. Dr. Dingman’s testimony was candid, careful, intelligent and thorough. Dr. Dingman testified persuasively that Student requires a residential placement to address effectively Student’s emotional and behavioral needs. See footnote 2, above; Facts, pars. 54, 56.
Dr. Dingman persuasively explained that it is unlikely, given the severity of Student’s emotional and behavioral needs, that he can be successfully provided services outside of a placement with twenty-four care because he needs trained clinical staff, together with trained milieu staff available twenty-four hours per day, who are able to respond to Student’s aggression. He opined that to effectively address Student’s emotional and behavioral deficits, the program must have consistency and continuity between the approach and interventions of staff during school day and staff during other times of the day and evening. For this reason, he recommended an integrated residential placement where staff would be collaborating and implementing the same behavior interventions with Student throughout the day and evening. Facts, pars. 51, 52, 53, 54, 55, 56.
The next most persuasive expert witness regarding Student’s emotional and behavioral needs, was the DMH consulting psychiatrist, Dr. Backman. Dr. Backman has extensive experience treating and recommending services for children such as Student. He evaluated Student for purposes of making a recommendation regarding what services would be necessary to address his emotional and behavioral needs. See footnote 3, above.
Dr. Backman testified that he recommended that Student be placed in an integrated residential setting. He explained that such a setting is needed because Student requires a placement that can supervise him and intervene as necessary on a twenty-four hour basis. He explained that Student’s behavioral needs are so great as to preclude his being able to be provided services in a specialized foster care or home environment. Facts, pars. 59, 60.
Dr. Backman noted the importance of a setting where the day portion (school) is integrated with the after school and residential parts because Student often does not report to staff, in a timely manner, events which are important to him – for example, a stressful or difficult situation which may cause him to “melt down”. Because staff cannot rely on Student to self-report, it becomes critical that all staff working with Student has the same knowledge of what is happening to him, and this would occur in an integrated residential setting where staff in all settings are communicating, collaborating and working consistently together. Facts, pars. 59, 60.
The need for a residential placement to address Student’s emotional and behavioral needs was further supported by the testimony of Student’s clinician at Wetzel (Ms. Benson) and the testimony of Student’s case manager at Perkins (Ms. Englert). A letter from the Assistant Director of Y.O.U. Inc. Family Stabilization Services Kristin Edson-Shouse (Kristin Edson-Shouse) also supported residential placement. Facts, pars. 45, 47, 48, 62.
The only testimony in opposition to a residential placement was from the Lunenburg Coordinator of Student Services (Ms. Blaisdell) who opined that since Student has been making progress at Perkins, a residential placement is not warranted for educational reasons. With all due respect to Ms. Blaisdell, I do not believe that she is able to provide expert testimony regarding the placement needed to address Student’s emotional and behavioral deficits. Ms. Blaisdell does not have first-hand knowledge of Student, and she made clear, during her testimony, that she does not have clinical expertise to make a recommendation as to how Student’s emotional needs may be met. For these reasons, I do not credit her testimony regarding this issue. See footnote 6, supra; Facts, par. 41.
The Perkins director of its day program (Ms. Lowry) supported Ms. Blaisdell’s opinion in that she testified that when a residential placement is needed for a day student at Perkins, typically it is because the services are not sufficient in order to manage Student’s behavior during the day and the student therefore requires a higher level of services. She opined that Perkins has been able to manage successfully Student’s behavior difficulties during the day. Facts, par. 43.
On further questioning, however, Ms. Lowry agreed that if someone with Student’s behavior during the day exhibited these same kinds of behaviors after school and the evening so that trained staff would be necessary during those times in order to respond to Student’s behavior, then a residential placement would be needed. Facts, par. 43. I find that Ms. Lowry’s testimony further supports the need for a residential placement for Student at this time, based on the evidence of Student’s severe behavior difficulties during after school hours and the professional staff needed to address those behaviors.
I find that the overwhelming weight of the evidence is that Student requires a residential placement in order to address his emotional and behavioral needs. There was further persuasive testimony, and I so find, that the day and residential components of the program should be integrated.20
E. Lunenburg’s Position Regarding Student’s Need for a Residential Placement .
Lunenburg’s position has been extremely well presented by its attorney (including a comprehensive written argument provided to the Hearing Officer on short notice). I also feel certain that the Lunenburg Coordinator of Student Services (Ms. Blaisdell) has taken a position that she believes is consistent with Lunenburg’s legal obligations to Student and his Parents. I take this opportunity to describe Lunenburg’s position and to explain, more specifically, why I have not found its arguments persuasive.
Through the testimony of Ms. Blaisdell and through its written closing argument, Lunenburg does not dispute that Student is now unable to return to his home. Lunenburg recognizes that, at present, a home placement would not be safe for Student and/or others in the home, and does not necessarily dispute that Student requires residential services. Facts, par. 42. However, Lunenburg makes the following arguments in opposition to its being responsible for such residential services:
Legal standard: The IDEA does not impose upon a school district the responsibility to provide a residential placement “merely to enhance an otherwise sufficient day program”.21 A residential placement is only required when necessary to allow Student to make the requisite educational progress.
Demonstrable educational progress: Student has made demonstrable educational progress in his day placement at Perkins during the 2003 calendar year and during the first half of the 2004 calendar year. These gains have occurred in all academic areas, as well as socially and behaviorally. The gains are reflected within Student’s progress reports, assessments and grades. Lunenburg also points out that Student has advanced from grade to grade, and that his behavior at Perkins has been less aggressive than his behavior in his previous placement. This progress has occurred notwithstanding Student’s behavioral difficulties.
Basis of Student’s need for residential services: The only basis for Student’s need for residential placement is that he is unable to return home to live with his family due to safety concerns. These safety concerns are related to Student’s home and his interactions with family members. Since the safety concerns are unrelated to his educational needs, the School District bears no responsibility to address them. The lack of any educational basis for residential placement is underscored by the fact that Student does not require any educational services after school or during the evening hours.
Conclusion: Since Student has made demonstrable educational progress during his day placement at Perkins and since residential services are needed only to remedy the home situation, a residential placement is unnecessary for educational reasons and therefore not the responsibility of Lunenburg.
Lunenburg seeks to minimize the relevance of Student’s emotional and behavioral deficits. Although Student’s Bipolar Disorder is only one of several special education disabilities, the testimony was persuasive that this disorder, in combination with his social deficits, has resulted in severe behavior dysfunction, and that this behavior dysfunction impacts significantly upon all aspects of Student’s life. Facts, pars. 46, 49, 55, 51, 52, 57.
Lunenburg’s IEP further undermines Lunenburg’s position as the IEP not only describes Student’s behavioral difficulties as part of Student’s special education needs, but also makes clear that it is the behavioral difficulties, more than any other special education needs, which pose significant challenges to Student’s educational progress. Facts, pars. 6, 7, 10.
Lunenburg points out, correctly, that notwithstanding Student’s behavioral episodes, Student has usually been able to complete his school work and make academic gains. Facts, pars. 18, 20, 24, 32, 36. For this particular Student, however, academic gains are not the most meaningful measure of his progress regarding his special education needs. As noted earlier in this Decision, Lunenburg has responsibility to address all of Student’s demonstrated needs, particularly those special education needs which are most severe – in this case, his emotional and behavioral deficits. See footnotes 11 and 12, and accompanying text.
From these facts and analysis, it is apparent that Student’s emotional and behavioral needs during the school day (as well as after school hours) must be addressed through his special education and related services.
Lunenburg argues that Student has made behavioral progress at Perkins and therefore no further services are necessary to address this area of concern. I find no credible evidentiary in support of this position. Lunenburg cites generally to the progress notes in evidence, but a close reading of the progress reports specifically relevant to Student’s behavior do not support Lunenburg on this point. Facts, pars. 19, 21. Lunenburg further relies on the general testimony of its Coordinator of Student Services and director of the Perkins day program. However, these witnesses had little, if any, direct knowledge of Student’s behavior, and relied principally on written reports of others. Moreover, they testified only in broad and general terms. Facts, pars. 26, 27. The credible testimony of Student’s case manager (Ms. Englert) who has been responsible to work directly with Student any time there have been behavioral difficulties, provided detailed and persuasive evidence that Student’s more recent behaviors at Perkins have regressed significantly. Facts, pars. 28, 29, 30, 31.
Lunenburg correctly points out that while Student was living at home, it was often difficulties at home that triggered behavioral and emotional problems. Facts, pars. 42, 44. However, Student has been having severe emotional and behavioral difficulties, requiring the intervention of trained staff, during the afternoon and evening hours. Facts, pars. 33, 35, 50. Student has also had significant difficulties utilizing transportation to and from Perkins. Facts, pars. 38, 39. It simply does not comport with the evidentiary record to conclude that Student’s emotional and behavioral difficulties outside of school can be remedied merely through a better or different home environment without the need for special education or related services. Facts, pars. 54, 55, 60.
Lunenburg argues that the services that would be needed in a residential placement are not educational in nature. Yet, Lunenburg’s IEP presently calls for a behavioral management program and behavioral strategies to be implemented by Perkins during the school day. If provided a residential placement at Perkins, these same strategies and interventions would be provided after the school day, as well as therapeutic services, most likely from a clinical social worker or psychologist. Facts, pars. 8, 63. Therapeutic services may be provided as related services pursuant to special education law.22
Finally, I note that the expert testimony was consistent that Student’s emotional and behavioral deficits cannot be effectively responded to on a piece-meal basis. Those witnesses with the most expertise and credibility regarding this issue were persuasive that in order for the services to be effective for Student, both day and residential components must be provided and they must be provided with a very high degree of communication, collaboration and (ultimately) consistency. Facts, pars. 45, 56, 59.
For these reasons, I find Lunenburg’s arguments unpersuasive that a residential placement is necessary merely to remedy safety concerns in the home or merely to enhance an otherwise sufficient day program.23
F. Appropriateness of Perkins as a Residential Placement .
There is no dispute that Perkins is an appropriate placement for Student with respect to his school day. There also appears to be no significant dispute that a residential placement at Perkins would appropriately address Student’s special education needs.
Dr. Dingman testified persuasively that, apart from the school component, the services that Student would need in an integrated residential program in order for him to make effective educational progress would be the following: (1) close psychiatric monitoring of medication (once per month or more frequently as needed), (2) psychotherapy services from a person with particular expertise regarding Student’s combination of disabilities (once per week for an hour, or more as needed) and (3) a therapeutic milieu to help Student learn and integrate his skills regarding social interaction, physical safety and self-regulation. Facts, pars. 55, 56.
A strength of Perkins is to work with intense emotional and behavioral issues of students. At Perkins, each student’s behavior is addressed through comprehensive behavior management. Residential students at Perkins receive significant oversight by staff, and immediate intervention, as needed, through therapeutic/behavioral supports. Residential students receive therapeutic services (for example, horseback riding, sporting events, interactions with dogs), individual therapy (at least once each week), group therapy (twice each week for all students who have a family), psychiatric services (for purposes of medication management), and behavior interventions, as described above, with each student having an individual behavior plan. Perkins’ residential services are integrated with the day services, and all interventions and strategies are consistently applied in all settings (day and residential). Facts, pars. 63, 64.
The only question left unanswered is whether Perkins has a clinical staff person or consultant with expertise in Student’s particular combination of disabilities. This was an important part of Dr. Dingman’s recommendations for Student.
G. Services to be Provided by DMH .
DMH takes the position, through its written argument, that neither an administrative hearing officer nor a judge has the authority to order DMH to fund a particular program, such as Perkins.24 Relying on the statutory language quoted below, DMH also takes the position that its own internal, statewide policies would preclude using its limited unallocated funds to pay for residential services at Perkins where it already has a residential program funded within the Worcester area to provide services to children such as Student.
DMH made it clear that it is willing and able to place Student at the School House program in Worcester – a private residential program that is entirely funded by DMH. Lunenburg has not taken a position regarding the appropriateness of this placement for purposes of Student’s special education needs, nor was there sufficient evidence for me to make a determination in this regard.
The authority of a BSEA Hearing Officer to o rder a state agency (for example, DMH) to provide services in an appropriate case is found within the following statutory language:
The [BSEA] hearing officer may determine, in accordance with the rules, regulations and policies of the respective agencies , that services shall be provided by the department of social services, the department of mental retardation, the department of mental health, the department of public health, or any other state agency or program, in addition to the program and related services to be provided by the school committee .25
The “in addition to” language contemplates that a state agency such as DMH may be found responsible only for services over and above what a BSEA Hearing Officer finds to be the responsibility of the school district under state and federal special education law. Since I have found that Lunenburg is responsible for providing Student with a residential placement for educational reasons, I need make no findings regarding DMH’s responsibility in this regard, and I decline to do so.
ORDER
Lunenburg Public Schools (Lunenburg) shall immediately arrange for a residential placement of Student at the Franklin Perkins School (Perkins). Lunenburg shall amend its IEP to reflect this placement.
Lunenburg shall ensure that Perkins has or obtains a clinical staff person (or a consultant who can work with Perkins clinical staff) with expertise in working therapeutically with children who have disabilities similar to Student, including a Bipolar Disorder in combination with difficulties socially interacting appropriately with others.
By the Hearing Officer,
William Crane
Dated: December 3, 2004
APPENDIX A
COMMONWEALTH OF MASSACHUSETTS
BUREAU OF SPECIAL EDUCATION APPEALS
In Re: Lunenburg Public Schools and BSEA # 05-0799
the Mass. Department of Mental Health
ORDER
In order to apprise the parties in a timely manner of my findings and conclusions in the case, this Order is issued today, in advance of the full Decision, which I expect will be issued no later than December 13, 2004.
A hearing was held on November 16, 2004 in Worcester, MA and November 18, 2004 in Lunenburg, MA before William Crane, Hearing Officer. The official record consists of documents submitted by the Parents and marked as exhibits P-1 and P-3 through P-5; documents submitted by the Lunenburg Public Schools (Lunenburg) and marked as exhibits S-1 through S-31; and recorded oral testimony and argument during the two hearing days. Written closing arguments were due November 22, 2004, and the record closed on that date.
The issues to be decided in this case are the following:
1. Is Student’s most recent IEP (proposed by Lunenburg for the 2004-2005 school year) reasonably calculated to provide Student with a free appropriate public education in the least restrictive environment?
2. If not, is Student entitled to receive a residential placement for educational reasons?
3. If not, is DMH responsible for providing Student with residential services?
After careful consideration of the evidence and arguments, I make the following findings:
1. The IEP proposed by Lunenburg is not reasonably calculated to provide Student with a free appropriate public education in the least restrictive environment.
2. Student is entitled to receive a residential placement for educational reasons.
3. Residential placement at the Franklin Perkins School (Perkins) satisfies Student’s need for a residential placement for educational reasons.
4. I make no findings regarding DMH’s responsibilities to provide services to Student.
Accordingly, Lunenburg shall immediately arrange for a residential placement of Student at Perkins. Lunenburg shall amend its IEP to reflect this placement.
By the Hearing Officer,
William Crane
Dated: November 24, 2004
COMMONWEALTH OF MASSACHUSETTS
BUREAU OF SPECIAL EDUCATION APPEALS
EFFECT OF BUREAU DECISION AND RIGHTS OF APPEAL
Effect of the Decision
20 U.S.C. s. 1415(i)(1)(B) requires that a decision of the Bureau of Special Education Appeals be final and subject to no further agency review. Accordingly, the Bureau cannot permit motions to reconsider or to re-open a Bureau decision once it is issued. Bureau decisions are final decisions subject only to judicial review.
Except as set forth below, the final decision of the Bureau must be implemented immediately. Pursuant to M.G.L. c. 30A, s. 14(3), appeal of the decision does not operate as a stay. Rather, a party seeking to stay the decision of the Bureau must obtain such stay from the court having jurisdiction over the party’s appeal.
Under the provisions of 20 U.S.C. s. 1415(j), “unless the State or local education agency and the parents otherwise agree, the child shall remain in the then-current educational placement,” during the pendency of any judicial appeal of the Bureau decision, unless the child is seeking initial admission to a public school, in which case “with the consent of the parents, the child shall be placed in the public school program”. Therefore, where the Bureau has ordered the public school to place the child in a new placement, and the parents or guardian agree with that order, the public school shall immediately implement the placement ordered by the Bureau. School Committee of Burlington, v. Massachusetts Department of Education , 471 U.S. 359 (1985). Otherwise, a party seeking to change the child’s placement during the pendency of judicial proceedings must seek a preliminary injunction ordering such a change in placement from the court having jurisdiction over the appeal. Honig v. Doe , 484 U.S. 305 (1988); Doe v. Brookline , 722 F.2d 910 (1st Cir. 1983).
Compliance
A party contending that a Bureau of Special Education Appeals decision is not being implemented may file a motion with the Bureau of Special Education Appeals contending that the decision is not being implemented and setting out the areas of non-compliance. The Hearing Officer may convene a hearing at which the scope of the inquiry shall be limited to the facts on the issue of compliance, facts of such a nature as to excuse performance, and facts bearing on a remedy. Upon a finding of non-compliance, the Hearing Officer may fashion appropriate relief, including referral of the matter to the Legal Office of the Department of Education or other office for appropriate enforcement action. 603 CMR 28.08(6)(b).
Rights of Appeal
Any party aggrieved by a decision of the Bureau of Special Education Appeals may file a complaint in the state superior court of competent jurisdiction or in the District Court of the United States for Massachusetts, for review of the Bureau decision. 20 U.S.C. s. 1415(i)(2).
Under Massachusetts General Laws, Chapter 30A, Section 14(1), appeal of a final Bureau decision to state superior court must be filed within thirty (30) days of receipt of the decision.
The federal courts have ruled that the time period for filing a judicial appeal of a Bureau decision in federal district court is also thirty (30) days of receipt of the decision, as provided in the Massachusetts Administrative Procedures Act, M.G.L. c.30A . Amann v. Town of Stow , 991 F.2d 929 (1 st Cir. 1993); Gertel v. School Committee of Brookline , 783 F. Supp. 701 (D. Mass. 1992).
Therefore, an appeal of a Bureau decision to state superior court or to federal district court must be filed within thirty (30) days of receipt of the Bureau decision by the appealing party.
Confidentiality
In order to preserve the confidentiality of the student involved in these proceedings, when an appeal is taken to superior court or to federal district court, the parties are strongly urged to file the complaint without identifying the true name of the parents or the child, and to move that all exhibits, including the transcript of the hearing before the Bureau of Special Education Appeals, be impounded by the court. See Webster Grove School District v. Pulitzer Publishing Company , 898 F.2d 1371 (8th Cir. 1990). If the appealing party does not seek to impound the documents, the Bureau of Special Education Appeals, through the Attorney General’s Office, may move to impound the documents.
Record of the Hearing
The Bureau of Special Education Appeals will provide an electronic verbatim record of the hearing to any party, free of charge, upon receipt of a written request. Pursuant to federal law, upon receipt of a written request from any party, the Bureau of Special Education Appeals will arrange for and provide a certified written transcription of the entire proceedings by a certified court reporter, free of charge.
1
Sharon Lowry is the director of the Perkins day program. She testified that she has held this position for the past five years and previously was a clinical social worker employed in the Perkins day program. She explained that in her current position she is responsible to oversee all aspects (including educational and clinical) of the Perkins day program that currently serves 61 students in grades kindergarten through 12 th . She testified that she has been aware of Student’s course of education since he first came to Perkins in December 2002, has observed Student on several occasions and, for a period of time, supervised his clinical social worker.
2
Robert Dingman is the Clinical Director at the Wetzel Center (Wetzel). He testified that he does not provide services directly to Student but on a daily basis speaks with clinicians, milieu staff and supervisors at Wetzel about Student and his clinical care, and he generally oversees Student’s clinical care at Wetzel. Prior to assuming his present responsibilities at Wetzel in May 2004, Dr. Dingman was employed as the director of the Couples and Family Center at Cambridge Hospital from 2000 to May 2004 and concurrently was both a clinical instructor at Harvard Medical School and in private practice as a psychologist. Dr. Dingman has practiced as a psychologist (with a primary focus on children and families) since receiving his doctorate degree (EdD) in 1992.
3
John Backman is a psychiatrist employed by the University of Massachusetts to provide services (under contract) to the DMH Central Mass. Area. Dr. Backman testified that he received his medical degree in 1961 and that approximately 70% of his psychiatric practice has focused on children and adolescents. He explained that he conducted a “level of care consultation” regarding Student on October 28, 2004 by reviewing various records held by DMH and Wetzel, speaking with Student’s treating psychiatrist at Wetzel, and interviewing Student at Wetzel. He noted that the purpose of such a consultation is to advise DMH as to what psychiatric services are needed by Student.
4
Lee Anne Englert is a clinical social worker who has been employed as Student’s case manager at Perkins since February 2004. She testified that for two years previous to her employment at Perkins she worked for youth programs. She received her master’s degree in social work in 2000.
5
Karen Benson is the Program Director of the Latency Unit at the Wetzel Center and is also a clinician there. She testified that she is assigned as Student’s clinician at Wetzel.
6
Elaine Blaisdell currently and for the past two years has been the Student Services Coordinator for Lunenburg. She testified that her duties include coordination and oversight of special education services both within and outside the school district. Previously she taught as a special education teacher for 21 years. She stated that she received a master’s degree in special education in 1991.
7
20 USC 1400 et seq .
8
MGL c. 71B.
9
MGL c. 71B, ss. 1 (definition of FAPE), 2, 3.
10
For a more complete explanation of this standard and the legal authorities upon which it is based, see In re: Arlington , 37 IDELR 119, 8 MSER 187, 193-195 (SEA MA 2002). See also the following regulatory provisions not referenced in Arlington : 603 CMR 28.05(4)(b) (Student’s IEP must be “ designed to enable the student to progress effectively in the content areas of the general curriculum”); 603 CMR 28.02(9) (“ An eligible student shall have the right to receive special education and any related services that are necessary for the student to benefit from special education or that are necessary for the student to access the general curriculum.”); 603 CMR 28.02(18) (“ Progress effectively in the general education program shall mean to make documented growth in the acquisition of knowledge and skills, including social/emotional development, within the general education program, with or without accommodations, according to chronological age and developmental expectations, the individual educational potential of the child, and the learning standards set forth in the Massachusetts Curriculum Frameworks and the curriculum of the district.”).
11
20 USC 1400(d)(1)(A) (purpose of the federal law is to ensure that children with disabilities have FAPE that “emphasizes special education and related services designed to meet their unique needs . . . .”); 20 USC 1401(25)(“special education” defined to mean “specially designed instruction . . . to meet the unique needs of a child with a disability . . .”); Honig v. DOE , 484 U.S. 305, 311 (1988) (FAPE must be tailored “to each child’s unique needs”); Burlington School Committee v. Mass. Dept. of Ed. , 471 US 359, 361 (1985) (federal law entitles eligible student “to receive at public expense specially designed instruction to meet his unique needs”); Lenn v. Portland School Committee , 998 F.2d 1083 (1 st Cir. 1993) (“appropriateness requires that the instructional plan be custom tailored to address the handicapped child’s ‘unique needs’”); 34 CFR 300.300(a)(3)(ii) (“services and placement needed by each child with a disability to receive FAPE must be based on the child’s unique needs and not on the child’s disability”); 603 CMR 28.02 (21) (“ special education shall mean specially designed instruction to meet the unique needs of the eligible student . . .”).
12
Lenn v. Portland School Committee , 998 F.2d 1083 (1 st Cir. 1993) (The IEP “must target all of a child’s special needs, whether they be academic, physical, emotional, or social”) (internal quotations and citations omitted); 34 CFR 300.300(a)(3)(i) (special education services must “address all of the child’s identified special education and related services needs . . . .”). Courts have noted the importance of addressing behavior issues that impact upon educational progress. E.g. Independent School District No. 284 v. A.C ., 258 F.2d 769 (8 th Cir. 2001) (“record here does not permit the conclusion that A.C.’s behavior problems are separable from the learning process”). The federal special education regulations make clear the importance of addressing behavior that impedes a child’s learning. 34 CFR 300.346(2)(i).
13
E.g., Independent School District No. 284 v. A.C ., 258 F.2d 769 (8 th Cir. 2001); Mrs. B. v. Milford Bd. of Educ. , 103 F.3d 1114, 1122 (2d Cir. 1997); David D. v. Dartmouth School Committee , 775 F.2d 411 (1 st Cir. 1985).
14
Gonzalez v. Puerto Rico Department of Education , 254 F.3d 350 (1 st Cir. 2001); Abrahamson v. Hershman , 701 F.2d 223, 228 (1 st Cir. 1983).
15
Student’s social deficits have been diagnosed as Asperger’s Syndrome, and there is support for this diagnosis in the record. Lunenburg disputes this diagnosis but recognizes, within its IEP, Student’s substantial limitations in this area. The diagnosis is less important than the common understanding of Student’s social deficits.
16
HW and JW v. Highland Park Board of Education , 104 LRP 40799 (3 rd Cir. 2004) (“IDEA demands an Individualized Education Program that will result in some measurable benefit. The benefit must be gauged in relation to the child’s potential.”); Houston Independent School District v. Bobby R ., 200 F.3d 341 (5 th Cir. 2000) (“disabled child’s development should be measured not by his relation to the rest of the class, but rather with respect to the individual student, as declining percentile scores do not necessarily represent a lack of educational benefit, but only a child’s inability to maintain the same level of academic progress achieved by his nondisabled peers”); T.R. ex rel. N.R. v. Kingwood Twp. Bd. of Educ., 205 F.3d 572, 578 (3d Cir. 2000) (assessment of what constitutes free appropriate education made in light of “individual needs and potential”); Ridgewood Board of Education v. NE , 172 F.3d 238 (3 rd Cir. 1999) (“quantum of educational benefit necessary to satisfy IDEA . . .requires a court to consider the potential of the particular disabled student before it”); Mrs. B. v. Milford Board of Ed. , 103 F.3d 1114, 1122 (2d Cir. 1997) (“child’s academic progress must be viewed in light of the limitations imposed by the child’s disability”); MC v. Central Regional School District , 81 F.3d 389 (3 rd Cir. 1996), cert. denied 519 US 866 (1996) (child’s untapped potential was appropriate basis for residential placement); Roland v. Concord School Committee , 910 F.2d 983 (1 st Cir. 1990) (“academic potential is one factor to be considered”); Kevin T. v. Elmhurst , 36 IDELR 153 (N.D. Ill. 2002) (“in determining whether a school district has provided a FAPE, the court must analyze the child’s intellectual potential and then assess the student’s academic progress”); MGL c. 69, s. 1 (“paramount goal of the commonwealth to provide a public education system of sufficient quality to extend to all children the opportunity to reach their full potential ”); MGL c. 71B, s. 1 ( “special education” defined to mean “educational programs and assignments . . . designed to develop the educational potential of children with disabilities . . . .”); 603 CMR 28.01(3) (identifying the purpose of the state special education regulations as “to ensure that eligible Massachusetts students receive special education services designed to develop the student’s individual educational potential”).
17
E.g., Appleton Area School District v. Benson, 32 IDELR 91 (E.D.Wisc. 2000) (student’s ability to generalize learning from school environment to the community was “the lynchpin” of whether IEP provides FAPE); Mohawk Trail Regional School District v. Shaun D ., 29 IDELR 885 (D.Mass. 1999) (school district responsible for remediating inappropriate behavior which threatened student’s ability to be successful in the community); Ash v. Lake Oswego School District No. 7J, 766 F.Supp. 852 (D.Or. 1991) (inability of student to generalize learning from school to the home or community leads court to order residential placement); David D. v. Dartmouth School Committee , 515 F.Supp. 639, 647 (D.Mass. 1984), aff’d. 775 F.2d 411 (1 st Cir. 1985) (residential services needed to address student’s behavioral difficulties in the community even though the student had made gains in the classroom); San Rafael City School District , 40 IDELR 174 (CA SEA 2003) (student’s IEP must allow him to learn to generalize appropriate behaviors into the home and community); Andover Public Schools, 25 IDELR 385 (MA SEA 1997) (skills must be taught in the home so that student will be able to generalize what he is learning in school); Mohawk Trail Regional Schools, 25 IDELR 902 (MA SEA 1997) (student’s inability to generalize positive behaviors in less structured settings than school resulted in an order for a residential placement).
18
The IDEA is intended “to ensure that all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs and prepare them for employment and independent living.” 20 USC 1400(d)(1)(A).
19
Hendrick Hudson Dist. Bd. of Educ. v. Rowley , 458 U.S. 176, 201 n.23 (1982).
20
Courts have required a residential setting where a student’s special education needs can be appropriately addressed only through integrated day and evening services. E.g., MC v. Central Regional School District , 81 F.3d 389 (3d Cir.1996) (“ any attempts to reduce J.C.’s severe self-stimulatory behavior or improve his toileting, eating, and communication skills would succeed only in the intense atmosphere of a round-the-clock residential setting where a consistent educational program could be enforced throughout all of J.C.’s waking hours”).
21
Abrahamson v. Hershman , 701 F.2d 223, 227 (1 st Cir. 1983).
22
The federal regulations define “related services” to mean supportive services as are required to assist a student to benefit from special education, including psychological and social work services. 34 CFR 300.24. I also note that the federal special education regulations define a “child with a disability” to include “emotional disturbance” which is further defined to include “inappropriate types of behavior” over a long period of time and to a marked degree that adversely affects a child’s educational performance. 34 CFR 300.7(c)(4).
23
Compare, for example, In Re: Medford , 7 MSER 775 (SEA MA 2001) where I determined that residential services were the responsibility of the Department of Mental Retardation, rather than the School District, because Student was not able to return home for safety reasons and the day placement was appropriate.
24
In support of this position, DMH cites to Matter of McKnight , 406 Mass. 787 (1990); Northampton State Hospital v. Moore , 54 Mass. App. Dec. 157, aff’d , 369 Mass. 957 (1974). DMH also points to decisions concluding that a court is without authority to require the state Department of Social Services to make a particular placement decision. Care and Protection of Isaac , 419 Mass. 602 (1995); Care and Protection of Jeremy , 419 Mass. 616 (1995).
25
Chapter 159, section 162 of the Acts of 2000, amending MGL c. 71B, s. 3 (emphasis supplied).