COMMONWEALTH OF MASSACHUSETTS
SPECIAL EDUCATION APPEALS
Re: Student v. Medford Public Schools District
BSEA # 02-0640
DECISION
This decision is issued pursuant to 20 U.S.C. 1401 et seq. (the “IDEA”), 29 U.S.C.794, M.G.L. chs. 30A, 71B, and the regulations promulgated under those statutes.
A Hearing in the above-referenced matter was convened on July 23, July 25, July 26, July 30, August 5 and August 12, 2002, at the Bureau of Special Education Appeals (hereafter, “BSEA”) 350 Main St., Malden, MA, before Rosa I. Figueroa, Hearing Officer. The Parent’s request for Hearing was received on August 1, 2001. Several requests for postponements were made by the Parent and by Medford Public Schools District (hereinafter, “Medford”) and granted thereafter.
On July 15, 2002, the Hearing Officer allowed the Parent’s Emergency Motion for Individualized Educational Program, Placement Form, Observation and Referral. Pursuant to the Order, Medford was sanctioned and only permitted to present a paper description of the program it offered the Student and Medford’s witnesses were not allowed to present any testimonial evidence regarding the day to day operation of said program. (See PE-1)
At the beginning of the Hearing it was established in accordance with previous BSEA rulings1 , that a three year statute of limitations was applicable in this matter regarding the Parent’s claim for compensatory services. Since the Hearing request was received on August 1, 2001 the Parent would be allowed to go back to the beginning of the 1998-1999 school year and the two following years for purposes of Student’s compensatory education claims.
The Parent’s written closing argument was received on September 4, 2002 and the School’s on September 6, 2002. The Record closed on September 6, 2002 upon receipt of the parties’ written closing arguments.
Those present for all or part of the Hearing were:
Student’s Mother
Student’s Grandfather
Heather Gold, Esq. Attorney for the Student/Parent
Roger F. Cohen, Ph.D. Neuropsychologist, Center for Developmental Neurology
Nichola Favorito, Esq. Attorney for Medford Public Schools
Mary Gallant, Esq. Attorney for Medford Public Schools
Kathleen Medaglio Team Chairperson, Medford Public Schools
Gail Bernstein Director of Pupil Services, Medford Public Schools
Daniel Rosennn, M.D. Consultant, Medford Public Schools
Joseph C. Aurelia, Ph.D. Speech Pathologist, Medford Public Schools
Mary Ann Almeida Student’s Home Tutor, Medford Public Schools
Nancy DeCristofaro Special Education Teacher, Medford Public Schools
Parent’s Exhibits 1 through 25 (with the exception of PE-21, PE-23B, and PE-23C) and School Exhibits 1 through 62 (with the exception SE-44 which was excluded and SE-37 which was withdrawn by Medford) were admitted in evidence and were considered for the purpose of rendering this decision. The exhibits offered during the Motion Session of July, 2002, were also admitted in evidence and are referred to as Motion Parent exhibits.
ISSUES PRESENTED
1. Whether the IEPs proposed by Medford Public Schools for the 1998-1999, 1999-2000, 2000-2001 and 2001-2002 school years offered the Student a Free Appropriate Public Education capable of maximizing the Student’s individual potential in the least restrictive environment appropriate to meet the Student’s needs in accordance with state and federal special education law.
2. Whether the IEP proposed by Medford Public Schools for the 2002-2003 school year offers the Student a Free Appropriate Public Education in the least restrictive environment appropriate to meet the Student’s needs in accordance with state and federal special education law. If not,
3. Whether the Student is entitled to a private residential placement at Medford’s expense, and;
4. Whether the Student is entitled to 3 years of compensatory education in the form of a private residential placement at Medford’s expense.
POSITION OF THE PARTIES
Parent’s Position:
The Parties do not dispute the Student’s entitlement to special education services or the areas of disability. Their disagreement stems from the services and programs offered the Student over the past four years and the program proposed by Medford for the 2002-2003 school year. According to the Parent, Medford failed to provide the Student a Free Appropriate Public Education (hereinafter, “FAPE”) capable of maximizing the Student’s individual potential between 1998 and 2002. Medford has consistently offered programs at the vocational school or the high school and has ignored the Parent’s request that the Student be placed out of district. Medford failed to evaluate the Student appropriately, and consistently violated his procedural due process rights. Furthermore, the program proposed for the 2002-2003 school year does not provide him with a FAPE.
As a result, the Parent asserts that the Student is entitled to residential placement and to compensatory education. Until such time as a slot is made available to him, the Student should receive appropriate interim services that can assure the Student’s safety.
School’s Position:
Medford denies violating the Student’s procedural due process rights and affirms that it has offered the Student appropriate programs from 1998 through the present. These programs and services maximized the Student’s potential in the least restrictive setting between 1998 and 2001. Medford has been flexible and has taken into account the Parent’s/Student’s wishes regarding placement. For instance, it agreed to change the Student’s placement from the vocational program to a program in the High School, during the fall of 2001, as requested by the Parent/Student. Medford asserts that it does not owe the Student any compensatory education and that it should not be penalized for periods of time when it offered the Student home/hospital bound instruction or during the time that the Student attended the League School.
For the 2002-2003 school year Medford has offered a program that can assure the Student a FAPE in Medford. In its closing brief, Medford supported placement in a private day school but maintained that a residential placement is overly restrictive and inappropriate for the Student.
FINDINGS OF FACT
· Born on May 16, 1985, Student is seventeen years old and has been receiving special educational services in the home as per a medical home/hospital bound instruction form since January 2002. (PE-22A) He presents with low average to average intellectual and cognitive ability and Asperger’s Syndrome. (PE-4; PE-5; PE-6; PE-7) These impairments severely compromise Student’s listening comprehension, learning and remembering what he hears and reads, reading comprehension, problem-solving and decision making. (PE-2) Neither the nature of Student’s disability nor his entitlement to special education services is being contested.
· The Student has received special education services at Medford since November 1992 with some interruptions during periods when he attended private day schools or received home instruction. (Testimony of the Parent) Initially, he attended the Roberts Middle School where, during the 1996-1997 school year, he was abused by other students. The Parent stated that the Student would come home from school with bruises and was doused with lighter fluid during the bus ride home. (Testimony of the Parent) According to the Student’s pediatrician, the stress caused by these incidents in school aggravated the Student’s “tics” and it was recommended that he be tutored at home until he could attend a different school. ( Id .; PE-22B) The Student received home instruction from March 1997 through September 1997. (Testimony of the Parent)
· Gretchen Felopulos, Ph.D., of Boston Psychological Associates, performed a Neuropsychological Evaluation of the Student on September 30, 1997. (PE-6; SE-43) The Student was referred for this evaluation due to concerns by the Parent and Dr. Botman that the Student was not receiving the extent of services required to address his complex learning and social needs or maximize his potential in Medford. The Parent therefore placed him at Learning Prep, in Newton, Massachusetts, where he was enrolled at the time of this evaluation. ( Id .) He was found to present with significant expressive and receptive language difficulties, and deficits in the areas of auditory processing, reading comprehension, sustained auditory and visual attention to complex information, written expression, organization and mental flexibility. (PE-6; SE-43) No significant progress was found when comparing the results of this evaluation to one conducted in November of 1995 and indeed a considerable decline was noted in math scores and visual-motor integration ability. It was noted that he continued to “need support in developing social skills, insight and means of emotional self-expression.” ( Id. ) Given the extent and complexity of his social and learning needs, Dr. Felopulos recommended that he continue to be placed in a private day program, such as Learning Prep, that is, an intensive language-based program that offers small class size, occupational therapy, social skills building, speech and language therapy, specialized intervention for his multiple learning disabilities and development disorder, and counseling. (PE-6; SE-43)
· In 1997 Medford and the Parent supported placement of the Student at Learning Prep for the 1997-1998 academic year. (PE-18; Testimony of Parent) This placement was not successful and at the end of the year, Learning Prep did not allow Student to return for a second year due to sexualized behavior, inappropriate body movements (such as touching himself sexually in front of other students), making rude comments or obscenities, persistent talking during inappropriate times and for painting on a classmate’s shirt. ( Id .) In a letter to the Parent dated June 8, 1998, Learning Prep recommended that Student receive outside therapy to work on issues regarding Student’s inappropriate sexualized behavior at school. (PE-18; Testimony of the Parent)
· The Student’s Team gathered on July 22, 1998, and Medford proposed that the Student return to the Hillside Fulton Street School in Medford under a 502.4 prototype IEP. (SE-9) Medford’s IEP offered the following special education services provided by an MSN teacher: Social Skills 5 x 42 minutes per five day cycle; Reading 3 x 42 minutes per five day cycle; Language Arts 5 x 42 minutes per five day cycle; Math 5 x 42 minutes per five day cycle; Science 5 x 42 minutes per five day cycle; and Social Studies 5 x 42 minutes per five day cycle. ( Id .) Medford further recommended that Student receive Occupational Therapy 1 x 42 minutes per five day cycle provided by the occupational therapist and Speech/ Language 1 x 42 minutes per five day cycle provided by the speech/language therapist at the Hillside Fulton Street School. ( Id .) This IEP did not offer the Student counseling or a behavioral plan to address the behaviors displayed at Learning Prep. (PE-16H; SE-9; Testimony of the Parent)
· On September 9, 1998, the Parent rejected Medford’s proposed IEP for the 1998-1999 school year. (PE-16H; SE-9)
· After the Parent rejected the proposed IEP, the Student was placed on home instruction pursuant to a Home Hospital Bound Instruction form issued by his pediatrician from September 1998 through March 1999. (Testimony of the Parent)
· During this time the Student underwent an evaluation in Medford. As part of it, Ms. Karen Walker, M.A., C.A.G.S., a certified School Psychologist, administered a Psychological Evaluation on October 19, 1998. (PE-11; SE-42) Although Student was pleasant and cooperative during the testing session, he did not initiate conversation, nor did he make eye contact with the examiner. As measured by the WISC-III, Student’s Full Scale IQ score was 75, Student’s Verbal IQ score was 73 and Student’s Performance IQ score was 80. Ms. Walker explained that these scores fall within the Borderline range of ability. ( Id. ) Ms. Walker noted that the Behavior Assessment System for Children results indicate that Student was experiencing significant difficulties sustaining attention, interacting with peers, and completing school assignments. She added that these difficulties might impact Student’s ability to function productively at both school and home. ( Id. ) Ms. Walker recommended that Student’s educational program include structured routines, consultation with therapists, participation in structured academic and social activities to help Student feel more comfortable with peers. (PE-11; SE-42)
· On October 22 and 29, 1998, Diane Hall, M.S., O.T.R./L. performed an Occupational Therapy evaluation. (PE-13) Ms. Hall believes that Student’s test results were lower than his actual abilities. Student displayed adequate tactile discrimination skills, body awareness, motor planning abilities, and fine motor function, as measured by portions of the Southern California Sensory Integration Test. ( Id .) Ms. Hall explained that Student performed within the average range on the Visual Perception/Visual Motor Integration test but rushed through the evaluation. The evaluator concluded that occupational therapy services were not necessary for Student. ( Id .)
· On October 27, 1998, Ginny Borkowski, M.Ed. conducted an Educational Assessment of Student. (PE-10) The evaluator did not directly observe Student within the classroom setting. ( Id .) The Woodcock-Johnson Reading Achievement Tests and the Supplemental Word Attack Test were administered. Student’s performance on those evaluations indicated strengths in Word Attack and Word Identification and weaknesses in Reading Comprehension. ( Id .) To assess Student’s ability in mathematics, the Woodcock-Johnson Math Achievement Tests in Calculations and Applied Problems were implemented. ( Id .) Student’s skills as measured by these tests indicate that his math skills were in the low range when compared with peers. Ms. Borkowski evaluated Student’s knowledge of Science, Social Studies and Humanities by administering the Knowledge Tests in those areas. She found that Student’s knowledge in these areas was low for a student his age. ( Id .) Ms. Borkowski recommended that Student’s educational program include a strong language based structure. ( Id .)
· On March 16, 1999, Medford sent the League School a copy of Student’s proposed IEP, which covered the period from March 1999 through March 2000. (PE-16G; SE-8) Medford recommended placement of the Student at the League School, a Massachusetts “Chapter 766” approved private day school in Newtonville, MA, under a 502.9 prototype diagnostic IEP. (SE-8)
· Following a Team meeting on April 9, 1999, the Student was accepted and Medford agreed to the diagnostic evaluation at the League School. (SE-20) During the three-month period of this placement, the Student’s social, behavioral, academic and communication levels were informally evaluated. (PE-16F; SE-26) Medford later amended the Student’s IEP whereby Student received extended year services at the League School until August 30, 1999. (SE-6; Testimony of the Parent, Ms. Bernstein)
· Upon Student’s arrival at the League School, Student was enrolled in the C.A.T. program where he did well academically but showed deficits in logical reasoning skills and comprehension of written materials. (PE-16E, SE-7) Beginning on July 9, 1999, Student was enrolled in the Asperger Program at the League School where he remained through September 1999. (Id.)
· Medford’s Team met on July 12, 1999 and prepared an IEP covering the period from July 1999 to July 2000. (PE-16E, SE-7) Medford proposed a 502.4 prototype at Medford Vocational Technical High School (hereinafter, “MVTHS”) where the following services would be provided to Student: Vocational Instruction 10 x 39 minutes per five day cycle; Social and Behavioral support throughout the entire school day provided by Behavioral Specialist; Speech/Language Instruction 2 x 55 minutes per five day cycle provided by Speech/Language Therapist; and Academic support 36 x 47 minutes per five day cycle provided by a SPED staff member. ( Id .) The IEP provided that Student would be mainstreamed for non-academic subjects as appropriate, including adaptive physical education. ( Id .) According to the Team, the Student required a “low stimulus, low teacher to student ratio in all work environments. … Student has demonstrated a limited attention span, and an environment that fosters (1:2, 1:3) academic independence and ability to focus on one specific task is needed.” ( Id .) Medford forwarded this IEP to Parent on July 27, 1999. The Parent rejected this IEP in full on August 27, 1999 and requested an independent evaluation. ( Id .)
· On August 5, 1999, Medford informed the Parent of a progress meeting which would be held at the League School to discuss the Student’s performance and progress during his placement at that school. (SE-60)
· The Parent requested via mail a Team meeting to discuss Student’s IEP (PE-16E) and educational program on September 14, 1999. (PE-16D) That same date Medford wrote to the Parent conveying Medford’s desire to convene the Team and discuss the Student’s IEP. (SE-59) The Team convened on September 23, 1999 but no resolution was reached at that time. (SE-6)
· Medford’s Team convened again on October 28, 1999 to continue to discuss the IEP and an amendment to the IEP covering the period from July 1999 to July 2000. (PE-16D; SE-5; SE-6) The amendment proposed that the Student participate weekly in a social pragmatics class taught by the speech and language therapist and that a behavioral specialist would be available weekly to consult with the Student’s classroom teachers. (PE-16D; SE-5) The IEP was forwarded to Parent on or about October 29, 1999. The Parent accepted Medford’s amended IEP in full on November 2, 1999. ( Id .)
· Pursuant to this IEP, the Student entered a substantially separate program under a 502.4 prototype at the Medford Vocational Technical High School (hereinafter, “MVTHS”) starting in November 1999. (PE-5) The classroom was taught by Ms. Nancy DeCristofaro, a certified special education teacher, and one classroom aide. ( Id .) The student to staff ratio at MVTHS was 11:2 or 6:2 depending upon the week. ( Id .) The Student was the only student with Asperger’s Syndrome in this classroom at MVTHS. ( Id .; Testimony of Ms. De Cristofaro)
· As a result of Parent’s acceptance of this IEP, the Student returned to Medford and attended the MVTHS during his freshman and sophomore years, where he was educated in a substantially separate special needs class taught by Ms. Nancy DeCristofaro. (PE-5)
· Robert Sedgwick, Ed.D. conducted a Neuropsychological Reevaluation of the Student on December 29, 1999, in response to the Parent’s request of August 27, 1999, for an independent evaluation. (PE-3) Dr. Sedgwick had previously evaluated the Student in September 1996, at which time, he was of the opinion that the Student’s initial presentation was consistent with Asperger’s Syndrome. (PE-3) When he Reevaluated the Student in 1999, Dr. Sedgwick stated in his report that the Student’s Global Performance was in the average range, as measured by the Full Scale IQ score in the WISC-III (FSIQ -81; Verbal IQ -83; Performance IQ -82). ( Id .) Student’s performance on several measures of the Conners’ Continuous Performance Test was consistent with Attention Deficit/Hyperactivity Disorder and suggested an impulsive response style. (Id.) Dr. Sedgwick noted that Student continued to struggle with sequential organization. During the academic screening in which the WRAT-3 was administered, Dr. Sedgwick observed that Student’s reading comprehension and mathematical abilities were severely impaired. Student scored at the fifth (5 th ) grade level in spelling; at the seventh (7 th ) grade level in word recognition; and at the fifth (5 th ) grade level in written arithmetic. (PE-3) In addition, Student answered 25% of the reading comprehension questions correctly. ( Id .)
· Dr. Sedgwick noted that Student discussed social and emotional issues with more ease during this evaluation than he had three years prior. (PE-3) In the evaluator’s opinion, Student’s responses reflected “a high level of personal anxiety, particularly when talking about situations that were frightening to him.” Specifically, Student mentioned the incidents when he saw students smoking in the MVTHS bathroom and when he found a syringe when sweeping an area as part of his shop program. ( Id .) The evaluator stated that he was not sure how the staff at Medford High intervened in order to help Student cope with these feelings. (PE-3) Dr. Sedgwick also stated in his report that the Parent believed that the anxiety provoking events occurred less frequently when Student was at the League School and Learning Prep. ( Id .)
· Dr. Sedgwick further recommended that Student be placed in a therapeutic setting where individuals trained in working with students with Asperger’s Syndrome will establish a program for Student that will help him develop appropriate coping skills in distressing social situations. (SE-3)
· Ms. Susan Lunn, M.S., an Educational Consultant, observed Student at the MVTHS program where he was receiving educational services during the 1999-2000 school year, spoke with Student’s teacher, Ms. DeCristofaro, and interviewed both Student and Parent on several occasions during December 1999 and January 2000. (PE-5) Ms. Lunn stated in her report that Ms. DeCristofaro said that she had neither seen nor received a copy of Dr. Sedgwick’s report (PE-3). (PE-5) Based upon her observations, Ms. Lunn recommended that Student receive therapeutic intervention to address his social and emotional needs, regardless of where he attended school. ( Id .) She further explained that the individual who assumes the therapeutic role must possess a clear understanding of Asperger’s Syndrome. ( Id .) Ms. Lunn opined that Student should continue working with Dr. Aurelia, Medford’s speech pathologist, on a more frequent basis. She noted that Student appeared to be doing better during her second observation. ( Id .) Ms. Lunn recommended a more therapeutic setting if the suggested changes could not be accomplished at MVTHS, although she “would weigh carefully another transition at this time.” ( Id .) In addition, she found that Student would benefit from a summer component to maintain his academic growth. ( Id .)
· The Student’s Team met on May 19, 2000 and drafted an IEP, covering the period from June 2000 through June 2001. (PE-16C, SE-4) This IEP was rejected in full by Parent on March 15, 2001. ( Id .) Medford proposed a 502.3 prototype program at MVTHS and the following special education services: English to be provided by a MSN teacher 5 x 56 minutes per five day cycle; Math to be provided by a MSN teacher 5 x 56 minutes per five day cycle; Social Studies to be provided by a MSN teacher 5 x 56 minutes per five day cycle; Science to be provided by a MSN teacher 5 x 56 minutes per five day cycle; Speech Therapy to be provided by a Speech Therapist 1 x 56 minutes per five day cycle; Social/Behavior Pragmatics to be provided by a Behavioral Specialist 1 x 56 minutes per five day cycle; and Vocational Training to be provided by a shop specialist 5 x 10 during a five day cycle. ( Id .) The plan also proposed Counseling Consultation 5 x 15 minutes per five day cycle to be provided by an adjustment counselor and Vocational Consultation 1 x 30 minutes per five day cycle. ( Id .) Medford also offered the Student a summer program for five weeks (4 hours a day) to prevent regression. ( Id .) The Parent did not respond to this IEP until March 15, 2001 when she rejected this IEP in full. (SE-4)
· During the 2000-2001 school year Medford educated the Student at the MVTHS. The 1999-2000 IEP was the educational program and placement last accepted by the Parent. (Testimony of the Parent)
· Lisa Harnell, M.S., an Occupational Therapist at Health South Braintree Rehabilitation Hospital, also observed the Student as part of the independent evaluation. (PE-4) Her notes of April 26, 2001 described the Student as a delightful person who clearly demonstrated difficulties in sensory integration, which severely impaired his functioning at home and school. (Id.) The evaluator recommended Occupational Therapy to be provided to Student in school once a week for forty-five (45) minutes. Ms. Harnell’s recommendation differs significantly from those made by Ms. Hall, an occupational therapist at Medford Public Schools. (PE-13) In late 1998, Ms. Hall suggested that Student no longer needed Occupational Therapy services. ( Id .)
· On May 3, 2001, Richard Peterson conducted an Educational Assessment on behalf of Medford. (SE-40) Mr. Peterson observed that Student seemed initially shy and mumbled as he worked on tasks. The examiner administered the Kaufman Test of Educational Achievement (“K-TEA”). Student’s strengths on the K-TEA were evidenced in Reading Decoding (grade equivalent of >12.9), and Spelling (grade equivalent of 7.6). He exhibited weaknesses in Math Computation (grade equivalent of 7.0), Math Applications (grade equivalent of 5.9), and Reading Comprehension (grade equivalent of 6.5). According to Mr. Peterson, the Student’s overall performance on the K-TEA was below average (grade equivalent of 7.2). ( Id .)
· Joseph C. Aurelia, Ph.D., conducted a Speech/Language Reevaluation on May 17, 2001. (PE-12A, SE-41) Dr. Aurelia administered the Comprehensive Evaluation of Language Fundamentals (CELF-3) and reported that Student’s adjusted scores ranged in the low average to below average range in all areas of concept usage, word structure, sentence structure, oral directions, semantic relationship, and sentence assembly. ( Id .) Student exhibited decreased receptive auditory processing with decreased receptive and expressive language skills compounded by decreased attention at times. ( Id .) Dr. Aurelia did not note any significant progress from the time he last evaluated Student on October 23, 1998. (PE-12B)
· On May 23, 2001, Pamela H. Peckinpaugh, certified school psychologist, administered a Psychological Evaluation using the following tests: WAIS-III, Stroop, Rosner Test of Auditory Analysis Skills, Illinois Test of Psycholinguistic Ability, Spencer McGrady Memory for Sentences, Bender Gestalt Test for Young Children, and Connors-Wells’ Self-Report Scale (S). (PE-9) She noted that consistent with previous test behavior, Student failed to show initiative. Although cooperative, Student did not ask for assistance nor let the examiner know when he had completed a task. ( Id .) Student’s testing on the WAIS-III suggested overall intellectual functioning within the Borderline range. There were no significant discrepancies noted between overall Verbal and Performance IQs (76 and 75 respectively) as well as Verbal Comprehension and Perceptual Organization (80 and 76 respectively). ( Id .)
· On June 15, 2001, on behalf of Medford, Jan Hollenbeck, M.S., OTR/L, conducted an Occupational Therapy Evaluation. (SE-39) Information was obtained through discussion with Student and Student’s current teachers as well as through reviewing Student’s record and the Health South Occupational Therapy Evaluation. The Student was cooperative during the evaluation but displayed no direct eye contact with the evaluator and instead looked in the opposite direction when speaking or when he was spoken to. (SE-39) The examiner observed that Student reported some sensory-based problems including sensitivity to smell, which may contribute to his distractibility. The Student reported having trouble staying awake in class and being fidgety or experiencing anxiety (“feeling ‘boxed in’ or like ‘I can’t breathe’ ”) in class. Ms. Hollenbeck noted that Student’s inability to sustain an even level of arousal/alertness in school might contribute to his school difficulties. The evaluator recommended that Student engage in regular movement activities on a daily basis. ( Id .)
· On August 20, 2001, H.I. Botman, Ph.D. conducted a comprehensive psychological evaluation. (PE-7) Dr. Botman observed Student at MVTHS and administered the following tests: Word Definitions, Similarities, Design Construction, and Matrices of the Differential Abilities Scale; Boston Naming Test; Syntactic Comprehension Test; Rey-Osterrieth Complex Figure Test; Verbal Fluency Test; Picture Locations, Facts, Stories and Word Lists of the Children’s Memory Scale; Trail-Making Test; Phonological Processing and Tower of a Developmental Neuropsychological Assessment; Auditory Attention Test; Cancellation Test; Wisconsin Card Sorting Test; Alternating Motor Programs; Repeated Patterns Test; Grooved Pegboard test; Rorschach Inkblot Test; Incomplete Sentences Inventory; and Youth Self Report. ( Id .)
· During Dr. Botman’s evaluation, Student presented as a pleasant adolescent who was ready and willing to participate in the testing. (PE-7) Among Student’s strengths, as noted by Dr. Botman, were semantic fluency, basic conceptualization, retention after multi-trial rote learning, and basic executive motor control. ( Id .) Student demonstrated extreme deficits in expressive vocabulary, nonverbal reasoning, auditory attention, and flexible problem solving. ( Id .) The evaluator recommended an educational program with low student-to-teacher ratios, continuous supervision, systematic behavior management, and direct instruction. ( Id .) Dr. Botman further recommended individual psychotherapy and family therapy. ( Id .) Medford forwarded Dr. Botman’s report to the Parent on October 2, 2001. (SE-55)
· Following a Team meeting on June 20 or June 252 , 2001, Medford promulgated an IEP, which covered the period from June 30, 2001 to June 30, 2002. (PE-16B; SE-3) Under this plan, Medford proposed that Student be educated in a substantially separate classroom at MVTHS and receive the following special education services: ELA to be provided by a MSN teacher 5 x 56 minutes per ten day cycle; Math to be provided by a MSN teacher 5 x 56 minutes per ten day cycle; Social Studies to be provided by a MSN teacher 5 x 56 minutes per ten day cycle; Speech & Language Therapy to be provided by a Speech/Language Therapist 1 x 56 minutes per ten day cycle; and Language/Social Pragmatics to be provided by a Speech/Language Therapist 1 x 56 minutes per ten day cycle. Under section A, Consultation, Behavioral/Stress Management would be provided by Ms. Eileen Buckley 1 x 30 minutes per ten day cycle. ( Id .) Medford offered an extended school year program as well. A draft of this IEP was presented to the Parent on or about June 25 th , but the actual IEP was forwarded on or about September 4, 2001. The Parent did not respond to this IEP. (SE-58; SE-3)
· On June 26, 2001, Alan H. Levy, Assistant Director in Medford, wrote to the Parent to verify whether the Student would participate in a summer program as described in the draft IEP presented to the Parent at the June 25, 2001 meeting. (SE-58) Additionally, Medford offered that Dr. Aurelia meet with the Student on a one-to-one basis during the summer. ( Id .) The Parent did not accept the summer program. (Testimony of Dr. Aurelia)
· At the beginning of the 2001-2002 school year the Parent/Student requested that the Student be allowed to attend the High School program as opposed to the Vocational School program. (Testimony of Dr. Aurelia, Parent, Ms. Bernstein) According to the Parent, the Student wanted to be able to participate in gym, which was not available at the Vocational School. (Testimony of Parent, Ms. DeCristofaro) On September 28, 2001, Dr. Joseph Aurelia forwarded to the Parent a copy of the Student’s proposed schedule in the High School. (SE-56) Dr. Aurelia stated that the schedule would be in effect for a one-week trial after which the decision of whether to allow the Student to remain in that setting would be made. Dr. Aurelia would meet with the new teachers the following Monday for training. (SE-56)
· The Student’s Team convened again on August 15, September 13, November 16 (or 9 th ) and December 12, 2001 in attempts to amend the 2001-2002 IEP, to accommodate the Student’s request to be educated at Medford High School instead of MVTHS and to review his progress at the High School. (Testimony of Dr. Aurelia, Parent; SE-54; SE-57)
· On October 6, 2001, the Parent signed and accepted the Educational Plan Addendum for Therapy which proposed that the Student participate in individual therapy, as recommended by Dr. Botman in the report issued by him and forwarded to the Parent on October 2, 2001. (PE-7; SE-55) Individual therapy was provided by the Wediko Children’s Services, at a rate of one period a week for forty-five minutes from October 2001 through June 30, 2001. (SE-27) In accordance with this Addendum, Ramon Ruiz, M.Ed., C.A.G.S., provided the Student with individual psychotherapy and monthly consultation since October 4, 2001. (SE-34) Their sessions focused on the Student’s ability to learn and practice steps for effective problem solving, to learn and practice the skills of reciprocal social interactions and to develop the ability to listen and learn from feedback offered by others. Progress was noted in these areas for the period between October 2001 and January 2002. (SE-34) A report by Katherine Patton, LCSW, of Wediko Children’s Services, for the period covering September to January 2002, indicates that at the Parent’s request, family therapy services and monthly consultation would begin in January 2002. (SE-33)
· In November of 2001, Dr. Aurelia reported that he was meeting with the Student three times per week to work on speech and language skills and social pragmatics. (SE-35) According to Dr. Aurelia, the “language program was designed to increase focusing, increase auditory processing, increase auditory recall, increase critical thinking and increase integration skills to facilitate improved verbal expression within a pragmatic framework in cooperation with the academic teacher.” (SE-35) Dr. Aurelia reported that effective progress was evidenced at the time. ( Id .) In a report of January 2000, Susan Lunn, Educational Consultant, remarked on the positive relationship she had observed between Dr. Aurelia and the Student. (PE-5)
· At Medford’s request, Gail A. Colozzi, Ed.D., performed a Behavioral Assessment on December 17, 2001. (PE-8) During the evaluation, Student was affable and polite. ( Id .) Student reported that he found school difficult but did not specify why. Dr. Colozzi was of the opinion that because Student demonstrated improvement in his academic program and behavior and in light of the Student’s need for stability, the Medford program appeared to be an appropriate educational placement. ( Id .) Dr. Colozzi recommended that the Team modify Student’s English class as he had not been successful and had a tendency to demonstrate behavioral regression in situations that were aversive to him. ( Id .) The Parent rejected the findings and recommendations made by Dr. Collozi on February 5, 2002. (Testimony of the Parent)
· Dr. Donald P. Delollis, M.D., ordered that Student receive Home/Hospital Bound Instruction on January 7, 2002 because Student had become “reclusive at school and refused to attend class.” (PE-22A) Pursuant to Dr. Delollis’s statement, Student would be able to return to school when an appropriate placement that addressed Student’s educational needs was located. ( Id .) Ms. Almeida has been providing the student with 2 and a half hours per day of educational services since the end of January. (Testimony of Ms. Almeida, Ms. Bernstein) The Student’s Team did not meet to design an IEP that delineated the services that the Student would receive during the time he received home instruction as per the Physician’s Statement. (Testimony of the Parent, Ms. Bernstein)
· Speech language and social pragmatics services did not begin until April 2002, following the Parent’s request that these services be provided outside Medford High School on or about March 14, 2002. (SE-47; SE-48)
· The Team convened on February 5, 2002 to discuss Student’s educational services through the next academic year. On February 26, 2002 Medford promulgated an IEP for the 2002-2003 school year. (PE-15, SE-2) A copy of this IEP was mailed to Parent on March 13, 2002. ( Id .) Medford offered Student the following special education services: ELA to be provided by a MSN teacher 6 x 56 minutes per six day cycle; Math to be provided by a MSN teacher 6 x 56 minutes per six day cycle; Science to be provided by a MSN teacher 6 x 56 minutes per six day cycle; Social Studies to be provided by a MSN teacher 6 x 56 minutes per six day cycle; Reading to be provided by a MSN teacher 5 x 56 minutes per six day cycle; Study Skills to be provided by a MSN teacher 2 x 56 minutes per six day cycle; Speech/Social/ Pragmatics to be provided by a Speech/Language Therapist 3 x 56 minutes per six day cycle; Counseling to be provided by a Wediko counselor 1 x 56 minutes per six day cycle; and School to Work to be provided by a MSN teacher on an on-going basis. ( Id .) Services would be provided to Student in a substantially separate program at Medford High School. ( Id .) Medford did not offer an extended year program. (SE-2) The Parent did not respond to this IEP until May 31, 2002 when she rejected it via letter to Medford. (PE-17)
· On February 14, 2002, the Parent wrote to Medford consenting to its request that the Student be evaluated by Dr. Daniel Rosennn, a psychiatrist who specialized in Asperger’s Syndrome. (SE-49; SE-51; SE-61) Medford had requested in December 2001 and in January 2002 that the Parent consent to said evaluation. (SE-50; SE-51)
· An independent neuropsychological evaluation was conducted by Roger F. Cohen, Ph.D., on February 26 and 28 and March 26, 2002. (PE-2) At the time of the evaluation, Student was taking Clonidine to help him sleep at night. ( Id .) Dr. Cohen conducted a clinical interview of Student and testing on four separate occasions, for a total of about 7.5 hours of direct evaluation. Parent was interviewed on two occasions regarding Student’s current status and history. (PE-2)
· Dr. Cohen administered the following tests: Peabody Picture Vocabulary Test- III (Form B); the Wechsler Adult Intelligence Scale – III (WAIS-III); Matrix Reasoning subtest; Nonverbal Sequencing Span Test; Auditory-Verbal Sequencing Span Test; Verbal Primary Memory with Interference Test (Form A); Spreen-Benton Sentence Repetition Test (Form A); Prose Paragraph Immediate Report (Form A); Wisconsin Card Sorting Test; Plan of Search Test; Porteus Maze Test (Vineland Revision); Rule-Governed Drawing Test; Delis-Kaplan Executive Functioning System (D-KEFS) Verbal Fluency, Color-Word Interference, Twenty Questions, Word Contexts, and Proverbs Tests; Boston Diagnostic Aphasia Examination (BDAE) Written Fluency measure; Visual Design (copy); Prose Paragraph Recall (Form A); and Visual Design I. (PE-2)
· The results of Dr. Cohen’s evaluation indicate that Student is a person of at least low average to average intellectual and cognitive functioning ability. (PE-2.) Dr. Cohen noted that Student did not appear anxious or depressed during testing. ( Id .) The evaluator believed that the most appropriate diagnosis of Student is Mixed Developmental Disorder, marked by impairments of his attentional abilities, by impairment of his ability to understand the grammatical features of language, and by impairment of some aspects of his cognitive self-regulatory abilities. ( Id .) These impairments are compromising Student’s ability to function effectively in an academic setting and get an education that will prepare Student to live independently. ( Id .) Dr. Cohen was of the opinion that unless Student “has the benefit of a highly coordinated, comprehensive program of intervention, Student’s prognosis is quite poor—increasingly untenable isolation at home, institutional care, or incarceration.” ( Id .)
· Dr. Cohen further recommended that Student be placed in a residential program that has both a daytime academic program and extends to complement that educational program. (PE-2) The evaluator reported that Student’s teachers at the residential program should be trained and experienced in working with children with severe impairments of their attentional abilities and severe impairments of their executive functioning. ( Id .) In Dr. Cohen’s professional opinion, the residential program should provide the following components: ongoing opportunities for Student to continue aspects of the skill-building work by offering structured support for homework, and a context and a deliberately designed set of opportunities for Student to develop skills for interacting effectively with others. ( Id. ) In addition, the evaluator noted that the ratio of teacher to student should be no greater than one to six. ( Id .) Dr. Cohen believes that the residential program should begin as soon as possible and be year round and “be expected to require at least three to five years of full-time attendance for Student to build the cognitive skills, the academic skills, and the cognitively-based and academically-based skills for independent living that will make it possible for him to function safely and effectively…in society.” ( Id .)
· On May 14, 2002, Parent accepted only the portion of the IEP addressing Medford’s district-wide assessment. The Student would be able to participate in the MCAS with listed accommodations as described therein. Parent, however, did not accept the rest of the IEP covering the period from February 2002 through February 2003. (SE-2)
· The following pertinent findings of fact from a Ruling issued in this matter on July 2002 are incorporated and relied on in issuing this decision:
1. A Hearing Officer initiated telephone conference call took place on June 5, 2002 at the request of the Parent. The Parent’s counsel informed the Hearing Officer and counsel for Medford that Dr. Cohen, the Parent’s selected independent evaluator, had completed his report and that it had been made available to Medford. She further stated that a Team meeting was being scheduled and requested that the proposed placement be discussed at the Team meeting. She stressed that if the Team did not agree with Dr. Cohen’s recommendations then the Parent requested an observation of the proposed program. It was also mentioned that the Student had been evaluated by Dr. Rosenn, Medford’s evaluator, and that they were still awaiting the report. Counsel for the Parent requested that a date for the Team meeting be finalized and that it combine discussion and production of an IEP and placement form. She also stated that the Parent had visited the Ivy Street School and requested that a referral packet be sent by Medford for both the day and residential programs. Medford stated that they were not recommending placement outside the public school at that point but agreed to send the packet as per the Parent’s request without Medford’s endorsement.
2. In that same Telephone Conference the Parties were instructed to communicate with each other over the next few days to confirm dates for the Team meeting and possible observation by Dr. Cohen. The Parties agreed that the Team would produce an IEP and identify the proposed placement so that an observation could be scheduled immediately. The Parties were further instructed to set aside June 10, 2002 at 12:30 p.m. for a follow-up telephone conference call to confirm that the aforementioned requests had been complied with and to finalize dates for the Team meeting and possible observation. During an earlier telephone conference call on May 28, 2002, the Parent’s counsel had notified School’s counsel and the Hearing Officer that Dr. Cohen’s report would be available that week and that an observation of the proposed placement for the Student would be necessary.
3. A second Hearing Officer initiated telephone conference call was necessary on June 10, 2002 as the Parent had concerns that Medford had not responded to her requests. … counsel for the Parent expressed her concern of how late in the school year the Team would be convened and its possible impact on the independent evaluator’s ability to observe the proposed program. She again requested an earlier day for the Team meeting but was told that the only available dates would be the 11 th or the 17 th of June. She agreed to the Team convening on the 17 th of June. Counsel for the Parent stressed the importance of an IEP as well as the form identifying the proposed placement, being made available to the Parent immediately after the Team meeting so that the Parent’s independent evaluator could observe the proposed program before the end of the school year. … During that same telephone conference call, Medford agreed that it would promptly send a referral packet to the Ivy Street School, as requested by the Parents, and asserted that sending the packet should not be construed as an admission, on Medford’s part, that the placement was warranted for the student. As a result of that telephone conference call it was understood by all that: the Team would convene on June 17 th , an IEP would be provided immediately thereafter as well as a placement identification form, an observation would take place when Dr. Cohen was available, possibly on the 18 th or 19 th of June, depending on availability of the IEP and placement form, the observation would be of a typical day in the program proposed, and that a referral to the Ivy Street program would be forwarded that week.
4. On June 14, 2002 the Parent wrote to Ms. Bernstein, Director of Pupil Services and Special Education Administrator in Medford, as a follow-up to her phone call earlier that day requesting that Medford fund Dr. Cohen’s observation of any school placement proposed by Medford for the student. She further asked that Ms. Bernstein ensure that an IEP would be developed at the Team meeting of June 17 th and that a placement decision be made. (Motion PE-2)
5. On Friday June 14 th Ms. Bernstein wrote to the Parent. She stated that she was in receipt of the Parent’s request to have Dr. Cohen observe the proposed program on June 19 th but that said date was two days before the end of the school year, and that a final exam and early release had been scheduled. Since it was an atypical day it would not give a true picture of the proposed educational program for the Student. (PE-A, also labeled PE-4) She further stated that any concerns should be discussed at the Team meeting scheduled for June 17, 2002. ( Id .; Testimony of Ms. Bernstein)
6. Ms. Medaglio, the Student’s Team leader in Medford, was informed by Medford’s counsel that the team should be scheduled for June 17 th and she issued a notice stating that the meeting would be held on that day at 9:00 a.m. (Testimony of Ms. Medaglio)
7. The Team met on June 17 th and discussed the Student’s progress, as well as the results of Dr. Cohen’s report and drafted the grid of the program proposed for the Student. The meeting started approximately 15 or 30 minutes late because the Parent had an emergency with another one of her children. (Testimony of Ms. Medaglio, Ms. DeCristofaro and the Parent) The Parent had called Ms. Medaglio and informed her that she would be late. (Testimony of Ms. Medaglio) According to Medford, the meeting ended early because the Parent or the Parent’s advocate had to leave early. (Testimony of Ms. Medaglio, Ms. DeCristofaro) After the Medford personnel began exiting the room at approximately 10:20 or 10:30 a.m., when the school bell rang, the Parent, the advocate, the Wadiko counselor and Ms. Medaglio stayed in the room and a service grid was handed to the Parent. (Testimony of Ms. Medaglio, Ms. DeCristofaro and the Parent) According to the Parent, she and the advocate left at approximately 11:00 a.m.
8. At the conclusion of the Team meeting, the Parent was not given an IEP nor was she given a placement form identifying what program and setting were being proposed for the student. Ms. Medaglio testified that her understanding was that the Team would meet to discuss Dr. Cohen’s report but that she did not know that she was supposed to issue an IEP the same date or identify the proposed placement. Since the Team had ended early because the Parent or her advocate had to leave, the Team did not have time to finalize the IEP and discuss placement. The Team was not gathered again and she was ultimately able to issue an IEP and placement form on June 25, 2002. She stated that she had been very busy that week and that in her opinion issuance of the IEP on June 25 th had been prompt. (Testimony of Ms. Medaglio)
9. The only placement discussed as an option for the Student at the Team was placement in Medford. No other placements were considered by the Team, including the residential placement recommended by Dr. Cohen, because no one else had made this recommendation before. (Testimony of Ms. Medaglio, Ms. DeCristofaro) Dr. Cohen was not invited to participate in the Team to discuss his recommendations by Medford nor did the Parent request that he be included, therefore, he was not a participant. (Testimony of Ms. Bernstein) According to Ms. DeCristofaro, the student’s liaison, the Parent knew at the conclusion of the Team meeting that a placement in Medford would be offered.
10. At the Team meeting, Medford also stated that while it would send a packet to the Ivy Street School, it had not yet done so. The cover letter on Medford’s referral packet to the Ivy Street School states that the packet was prepared on June 14, 2002. (SE-1) The letter stated in pertinent part that it had been sent at the request of the Parent and that the “school district had not developed an IEP requiring a private or residential program placement.” (Motion SE-1)
11. The only days available to Dr. Cohen to observe the proposed program by Medford following the Team meeting were June 18 th or 19 th . The Parent had requested that the IEP and proposed placement form be prepared prior to Dr. Cohen’s observation. Since the IEP and placement form were not promulgated before the end of the school year, Dr. Cohen did not observe the proposed program. (Testimony of the Parent) Ms. Medaglio and Ms. Bernstein were aware that the Parent wanted Dr. Cohen to observe the proposed placement and it was Ms. Medaglio who informed Ms. Bernstein on June 14 that June 19 th would not be a good day for an observation because the students were scheduled to take an exam and it was an early release day. (Testimony of Ms. Medaglio and Ms. Bernstein) No other attempts were made by Medford to facilitate an observation by Dr. Cohen.
12. The last day of classes in the Medford school district for the 2001-2002 school year was Friday, June 21, 2002. (Testimony of Ms. Medaglio, Ms. DeCristofaro)
13. Medford promulgated an IEP for the 2002-2003 school year on June 25, 2002. (PE-53 ) This IEP covered the period from June 2002 through June 2003. Under this IEP, the Student will receive services to address social emotional and communication skills issues in a substantially separate classroom in Medford High School. ( Id .)
14. At the time this IEP was sent to the Parent, classes had ended for the 2001-2002 school year and the Parent’s chosen independent evaluator was not able to observe the proposed program. (Testimony of the Parent, Ms. DeCristofaro)
· While Dr. Cohen and Dr. Rosenn (on behalf of Medford) had evaluated the Student, only Dr. Cohen’s report was available to the Team for review. (SE-1)
· The IEP promulgated after the June 2002 Team meeting was effective from June 17, 2002 until June 17, 2003. ( Id .) Under this IEP Medford, offered the Student special education services in a substantially separate program at Medford High School. ( Id .) The following special education services were offered: Language Arts to be provided by a special education teacher 6 x 56 minutes per six day cycle; Math to be provided by a special education teacher 6 x 56 minutes per six day cycle; Science to be provided by a special education teacher 6 x 56 minutes per six day cycle; Social Studies to be provided by a special education teacher 6 x 56 minutes per six day cycle; Reading to be provided by a special education teacher 5 x 56 minutes per six day cycle; Study Skills to be provided by a special education teacher 2 x 56 minutes per six day cycle; Speech/Social Pragmatic to be provided by a Speech/Language Therapist 3 x 56 minutes per six day cycle; Counseling to be provided by a Wediko counselor 1 x 56 per six day cycle; and School to Work to be provided by a special education teacher on an on-going basis. ( Id .) In addition, Medford offered Consultation Services to be provided for Speech/Language Pragmatics by the Speech and Language Therapist 15 minutes per cycle and Counseling by the Wediko Counselor 15 minutes per cycle. ( Id .) Medford offered Student an extended day program. ( Id .) Medford proposed that Student receive assistance from a job coach to help him maintain his employment when school was not in session. ( Id .) Although the Parent had requested that the proposed IEP and placement be made available to her before the end of the school year, so that Dr. Cohen could observe the proposed program, the plan was not promulgated by Medford until June 25, 2002. ( Id .) As a result, Dr. Cohen was not able to observe the program proposed by Medford. ( Id .)
· Dr. Cohen was not invited to participate in the June 2002 Team meeting. (Testimony of the Parent, Dr. Cohen, Ms. Medaglio) Ms. Almeida, the Student’s tutor since February of 2002, was invited to attend the meeting but no information was elicited from her. (Testimony of Ms. Almeida)
· The Comments section of the invitation to participate in the Team meeting of June 17, 2002 states that the Student did well in home instruction and obtained a B-. (SE-28; See also SE-29, SE-30 & SE-31 the teachers progress notes for the period between January and June when the Student was on home instruction) On July 9, 2002, the Student was informed that he had made honor roll while on home instruction. (PE-24)
· On July 19, 2002, Melmark notified the Parent that the Student had been accepted to the residential program at Melmark New England (hereinafter, “Melmark”) located in Woburn, MA. (PE-25; Testimony of Dr. Cohen) An admission date could not be determined at that time as no immediate openings were available. (PE-25) Melmark is a “Chapter 766” approved school in Massachusetts that serves students with Asperger’s Disorder, Autism spectrum Disorders, Acquired Brain Injury, Traumatic Brain Injury (TBI) and Neurologically Based Disorders that result in neurobehavioral challenges. (PE-22) The co-ed population ranges in ages between 5 and 21 years. It is open 12 months a year and offers a comprehensive special education and clinical treatment facility whose staff provide a variety of educational, health, physical and neurobehavioral services.4 The school operates from 8:30 a.m. to 3:00 p.m., Monday through Fridays 242 days per year. (PE-22)
· Dr. Cohen visited Melmark in July 2002. (Testimony of Dr. Cohen) He testified that the staff is either certified or trained in Applied Behavioral Analysis (hereinafter, “ABA”) and has an understanding of brain injuries and neurological impairments. The teacher to student ratio is two teachers to one student and there is additional staff available and students are grouped by ability. In the residential portion there are approximately five to seven students per three to four staff grouped by a combination of age and ability. A nurse is available on campus as is a physical therapist, an occupational therapist, speech and language therapist and teachers. The program is completely individualized for each student. (Testimony of Dr. Cohen) The program also provides vocational opportunities for students. ( Id .)
· Dr. Cohen fully supported and recommended that the Student attend Melmark on a residential basis. According to him, most day placements will not be able to handle the Student because of the complexity of his disabilities. The amount of skill building needed by this 16 year old in order to function as a member of our society requires a highly articulated, structured, systematic skill building approach implemented throughout waking hours for a long period of time, by people capable of doing so. (Testimony of Dr. Cohen) Participation in a day program would be insufficient for the Student to function independently as he does not possess the ability to generalize to other settings, lacks the ability to compensate and cannot make up what he has missed. The Student is not able to apply what he learns in the abstract, on his own.
RULINGS OF LAW
No dispute exists that the Student presents with disabilities which fall within the purview of the IDEA and M.G.L. c. 71B, entitling him to special education services. The nature of his disability, in general, is also not disputed. The Student presents with significant learning delays in all major academic areas especially in reading comprehension, math, and writing skills including grammar. (PE-6) He has difficulties in his ability to abstract meaning from written information, apply math skills to daily life and articulate ideas in a coherent, organized manner. His language skills show deficits in visual-motor/visual-spatial skills and executive function, including attentional issues. ( Id .) He also presents significant social emotional difficulties. ( Id .) He has been diagnosed with Asperger’s Syndrome and Attention Deficit. Most recently, Dr. Cohen diagnosed him as suffering of Mixed Developmental Disorder (ICD9-CM315.5). (PE-2) Some disagreement exists regarding his intellectual functioning which Medford sees as low average/borderline while the Parent’s expert, Dr. Cohen, sees it as average. (Testimony of Dr. Aurelia, DeCristofaro, Bernstein, Dr. Cohen)
Because of the disabilities discussed in the paragraph above, the Student requires a very structured therapeutic environment that can address distressing social situations, impulse control and attentional issues. The Student needs clear expectations, a low student/teacher ratio, systematic behavior management, continuous supervision, cognitive behavioral treatment, direct instruction and individual feedback. (PE-7) His “classes should feature predictable routines, hands-on exercises, guided practice, repeated exposure to new information and contingent reinforcement schedules.” ( Id .) To ensure consistency, there should be ongoing communication between home and school. The program’s approach should be language-based to address his specific learning disabilities as well as provide opportunities for vocational development. (PE-3; PE-5; PE-6; Testimony of Dr. Cohen) Dr. Botman warns that disruptions in the daily schedule and routines would have a deleterious effect on the Student’s ability to develop new skills. (PE-7)
The disagreement stems from the Parties view as to the appropriateness of the services offered by Medford to the Student during the 1998-1999, 1999-2000, 2000-2001, 2001-2002 and 2002-2003. The Parent asserts that Medford’s programs failed to meet the legal standards required by law and seeks residential placement for the Student at Melmark and compensatory services. Careful review of the evidence before me supports the Parent’s/Student’s position.
I. Legal Standards :
A. Maximum Feasible Development:
Until January 1, 2002, Massachusetts required that Students be educated in a program that offered students a free appropriate public education (hereinafter, “FAPE”) inclusive of special education and related services, that met state educational standards, provided in accordance with an IEP that met the requirements of the “Chapter 766” Regulations, at the preschool, elementary or secondary education level. 603 CMR 28.110.0 Additionally, a FAPE in Massachusetts assured development of the Student’s maximum potential consistent with David D. v. Dartmouth School Committee , 775 F.2d 411 (1 st Cir. 1985). Consistent with the federal standard, Massachusetts also required that the student be placed in the least restrictive environment appropriate to meet his/her individual needs. 603 CMR 28.118.0.5
B. FAPE:
Effective January 1, 2002 Massachusetts adopted the federal standard requiring that the IEP proposed by the school district offer the student a Free Appropriate Public Education that meets state educational standards. MGL c. 71 B § 1, 2, 3; See also 603 CMR 28.01 & 28.02 (21) Additionally, the federal law requires that the student have access to full participation in the general curriculum, to the maximum extent possible. Also, the student’s education must be offered in the least restrictive environment appropriate to meet his/her individual needs6 . 20 USC §1414(d)(1)(A)(iii); 34 CFR 300.347(a)(2)(i) and (a)(3)(ii); 64 Fed. Reg. No. 48, page 12595, column 1; MGL c. 71B § 1; 603 CMR 28.02 (12). See In re: Worcester Public Schools , BSEA # 00-0912, 6 MSER 194 (SEA MA 2000) and In re: Gill-Montague Public Schools District , BSEA # 02-1776, August 28, 2002.
As previously discussed in In re: Gill- Montague , “the Massachusetts statute defines FAPE as “special education and related services as consistent with the provisions set forth in 20 U.S.C. 1400 et seq. [the IDEA], its accompanying regulations, and which meet the education standards established by statute or established by regulations promulgated by the board of education”7 , including the Massachusetts state curriculum frameworks.8 The IDEA in turn defines FAPE as “special education and related services that: (A) have been provided at public expense, under public supervision and direction, and without charge;
(B) meet the standards of the State educational agency;
(C) include an appropriate preschool, elementary, or secondary school education in the State involved; and
(D) are provided in conformity with the individualized education program required under section 614 (d).9
As stated by the United States Courts, the LEA is responsible to offer students meaningful access to an education through an IEP that provides “significant learning” and confers “meaningful benefit” to the student10 , through “personalized instruction with sufficient support services …”11 . The requirements of the law assure the student access to a public education rather than an education that maximizes the student’s individual potential. Lenn v. Portland School Committee , 998 F.2d 1083 (1 st Cir. 1993); GD v. Westmoreland School District , 930 F.2d 942 (1 st Cir. 1991).
The First Circuit Court of Appeals interpreted minimally acceptable standards of educational progress require that the IEP yield “effective results” and “demonstrable improvement” in the “various educational and personal skills identified as special needs”12 , in the context of the potential of the particular student.13
Similarly, the Massachusetts special education statute defines “special education” to mean “educational programs and assignments . . . designed to develop the educational potential of children with disabilities . . .” which permit a student to make meaningful educational progress.14 MGL c. 71B § 1, the special education statute in Massachusetts, requires that eligible students receive special education services designed to develop the student’s individual educational potential”15 consistent with the interpretation provided by other Courts. The IEP is the road map that defines the services to be offered and the measurable goals embodied therein determine whether the student has made educational progress.16 See also, In Re: Arlington Public Schools , BSEA # 02-1327, issued on July 23, 2002.
II. Medford’s Proposed Programs :
As stated earlier in the introduction, a 3-year statute of limitation, similar to that applicable in civil rights actions is being applied here.17 Therefore, the Parent’s compensatory claim is considered starting with the 1998-1999 school year, three years before the date upon which the Hearing request was received at the BSEA.18
In analyzing the appropriateness of the programs and services for the 1998-1999, 1999-2000, 2000-2001, 2001-2002 school years, I am applying the maximum feasible potential standard in effect in Massachusetts through 2001. For the 2002-2003 school year a FAPE standard is used consistent with state and federal law.
1998-1999 School Year :
During the 1997-1998 school year the Student attended Learning Prep but was not invited to return the following year due to inappropriate behaviors. In a letter of June 8, 1998 to the Parent, Learning Prep recommended that Student receive outside therapy to work on the behavioral issues. (PE-18; Testimony of the Parent) Medford convened the Team on July 22, 1998. In spite of Learning Prep’s termination of the Student from that school, and concerning statements regarding inappropriate sexualized behaviors, Medford proposed that the Student return to the district’s Hillside Fulton Street School under a 502.4 prototype IEP. (SE-9) When this placement was offered Medford had not Reevaluated the Student. Medford’s proposed IEP offered the Student the following special education services: Social Skills 5 x 42 minutes per five day cycle; Reading 3 x 42 minutes per five day cycle; Language Arts 5 x 42 minutes per five day cycle; Math 5 x 42 minutes per five day cycle; Science 5 x 42 minutes per five day cycle; and Social Studies 5 x 42 minutes per five day cycle provided by an MSN teacher. ( Id .) Medford further recommended that Student receive Occupational Therapy 1 x 42 minutes per five day cycle provided by the occupational therapist and Speech/Language 1 x 42 minutes per five day cycle provided by the speech/language therapist. Special transportation was also proposed. ( Id .) This IEP did not offer the Student counseling or a behavioral plan to address the behaviors displayed at Learning Prep. (Testimony of the Parent) Also, Medford did not reevaluate the Student prior to providing this less restrictive setting and before mainstreaming him for non-academic subjects. Its IEP stated as a goal that Student would work towards more inclusion. (PE-16H) Under federal and state regulations, Parents must be notified in writing before a Student’s placement can be changed and the Parent must also consent to said change in placement. 34 CFR 300.503 (a) (1) (i); 603 CMR 28.02 (13) & 603 CMR 28.07 (a) Thereafter, the Team, inclusive of the Parent, is charged with the responsibility to determine the appropriate placement in light of available information on the Student. 603 CMR 28.05 & 28.06 et seq . Medford was responsible to follow these mandates before it could change the Student’s placement to a less restrictive one. See also 603 CMR 28.02(13) Also, Medford failed to address the safety issues that caused the pediatrician to recommend home-bound instruction a year prior and did not offer special transportation. (Id.)
When Medford proposed to return the Student to an in-district school, the only information available to the Team was the joint report by Dr. Felopulos and Dr. Collette recommending that the Student be placed out of district , in a program such as Learning Prep. (PE-6; SE-43) The Team also had the letter from Learning Prep alerting providers as to the Student’s inappropriate behaviors which Learning Prep was unable to address in that setting. (PE-18) The Student required, among other services, a small, very structured setting, provision of OT, speech and language, individual therapy, social skills training, a language based approach that could address expressive and receptive language difficulties, reading comprehension, sustained auditory and visual attention to complex information, written expression, organization and mental flexibility. A variety of day-to-day accomodations to address the Student’s complex learning needs was required, as well as specialized interventions for his multiple learning disabilities and developmental disorder. (PE-6; SE-43) As stated supra , Medford offered a program in district that was insufficient to meet the Student’s needs.
On September 9, 1998, Parent rejected Medford’s proposed IEP for the 1998-1999 school year and the Student remained on Home Hospital Bound Instruction until April 1999 pursuant to a physician’s recommendation for home instruction. (PE-16H; SE-9) Given the amount of time that the Student remained at home, over 60 days, he was eligible for a 603 CMR 28.502.7 (b) (Type B) prototype program. See 603 CMR 28.502.7, 28.502.7(b) and 28.502.7(c)) As such, Medford had to convene the Team to develop the IEP. ( Id .) The evidence shows that Medford’s Team was not convened to develop the Student’s IEP and decide the services that should be offered during the home instruction period. The Student was, however, evaluated by Medford in October 1998 consistent with 603 CMR 28.502.7(b)(ii), the regulation in effect at the time.
In April of 1999, Medford agreed to place the Student at the League School, a “Chapter 766” approved school that offered a language-based program, under a 502.9 prototype IEP. (PE-16F; SE-8; SE-20; SE-25; SE-26; Testimony of the Parent, Bernstein, DeCristofaro) While the Student entered the League School under a diagnostic IEP, his placement was extended through August 30, 1999. The Parent supported placement at the League School, and testified that the Student had made gains at said placement. (Testimony of the Parent; Bernstein)
The program offered by Medford for the period between September 1998 and April 1999 was insufficient to meet the Student’s needs and maximize his potential. The Parent testified that the Student received home tutoring for academic subjects. (Testimony of the Parent) Ms. Bernstein testified that the tutoring was offered pursuant to a physician’s note. (Testimony of the Ms. Bernstein) Neither side produced a physician’s note recommending the home tutorial for this period of time, nor was an IEP issued describing the proposed and accepted services. Therefore, the Student is entitled to compensatory services for the period between September 1998 and April 1999.
1999-2000 School Year:
The Student’s Team, including representatives from the League School, met on July 12, 1999 and prepared the IEP covering the period from July 1999 through July 2000. (PE-16D; PE-16E; SE-6; SE-7; SE-18; SE-59) According to Medford, the Student was ready to engage in a less restrictive environment. (Testimony of the Parent, Ms. DeCristofaro, Ms. Bernstein) No placement other than in-district placements were considered for the Student.
Medford proposed a 502.4 prototype IEP at Medford Vocational Technical High School where the following services would be provided to the Student: Vocational Instruction 10 x 39 minutes per five day cycle; Social and Behavioral support throughout the entire school day provided by Behavioral Specialist; Speech/Language Instruction 2 x 55 minutes per five day cycle provided by Speech/Language Therapist; and Academic support 36 x 47 minutes per five day cycle and 1 x 53 provided by a SPED staff member. (PE-16D; PE-16E; SE-6; SE-7) Under this IEP the Student was referred to Wediko Children’s Services for counseling.19 The IEP stated that Student would be mainstreamed for non-academic subjects as appropriate, including adaptive physical education. ( Id .) Medford forwarded this IEP to the Parent on July 27, 1999. On August 27, 1999, the Parent rejected this IEP in full and requested an independent evaluation. ( Id .)
The Student’s Team re-convened on September 23, 1999 (SE-6) and again on October 28, 1999 to continue to discuss the proposed services under this IEP and to work on an amendment. (PE-16D; SE-5; SE-6) The amendment provided that the Student would participate weekly in a social pragmatics class taught by the speech and language therapist and that a behavioral specialist would be available weekly to consult with the Student’s classroom teachers. (PE-16D; SE-5)
The IEP and amendment were forwarded to the Parent on or about October 29, 1999. On November 2, 1999, the Parent accepted the Student’s amended IEP in full. (PE-5; PE-16D)
As a result, the Student returned to Medford and attended the Medford Vocational Technical High School during his freshman and sophomore years. The Student entered a substantially separate program under a 502.4 prototype at MVTHS starting in November 1999. (PE-5) The classroom was taught by Ms. Nancy DeCristofaro, a certified special education teacher, and one classroom aide. ( Id .) The Student was the only student with Asperger’s Syndrome in this classroom at MVTHS. (Id.; Testimony of Ms. DeCristofaro)
The student to staff ratio at MVTHS was 11:2 or 6:2 depending upon the week. ( Id .) In this program, the Student missed more than 20 days of school in the first quarter due to stress. (Testimony of Ms. DeCristofaro) Consultation between Ms. DeCristofaro and the behavioral consultant occurred twice a week during the first month and once a week thereafter, ending altogether during the second semester as the Student did not like working with her. (Testimony of Ms. DeCristofaro) The Student did not participate in extracurricular activities or gym during the 1999-2000 or the 2000-2001 school years. (Testimony of the Parent, DeCristofaro) According to Ms. DeCristofaro, students in the vocational program did not receive gym. While Ms. DeCristofaro testified that the Student developed socially during that year, the Student was unable to form any friendships that carried over outside Medford. (Testimony of the Parent, Ms. DeCristofaro) No services were offered during the summer of 2000.
In a report of January 30, 2000, Ms. Lunn, the Educational Consultant who observed the Student at the MVTHS between December 1999 and January 2000, commented on Medford’s lack of insight as to the Student’s issues. She related the shop teacher’s comments that he found the Student’s behavior odd, thought he was trying to be a “wise guy” during a conversation and interpreted the Student’s lack of eye contact as disinterest in the class. (PE-5) She further commented that the teachers were unaware of the content of Dr. Sedgwick’s report of December 29, 1999. ( Id .) Specifically, Ms. Lunn, stated that Ms. DeCristofaro acknowledged not having seen nor having received a copy of PE-3, Dr. Sedgwick’s report. (PE-5) Ms. Lunn recommended that Student receive therapeutic intervention to address his social and emotional needs, regardless of where he attended school, by an individual who possessed a clear understanding of Asperger’s Syndrome. ( Id .) Ms. Lunn opined that Student should continue working with Dr. Aurelia on a more frequent basis. She noted that Student appeared to be doing better during her second observation. ( Id .) Ms. Lunn recommended a more therapeutic setting if the suggested changes could not be accomplished at MVTHS, although she “would weigh carefully another transition at [the] time.” (Id.) In addition, Student would benefit from a summer component to maintain his academic growth. ( Id .)
Robert Sedgwick, Ed.D. conducted a Neuropsychological Reevaluation of the Student on December 29, 1999. (PE-3) It was Dr. Sedgwick’s opinion that the Student presented with Asperger’s Syndrome and Attention Deficit/Hyperactivity Disorder and suggested an impulsive response style. (PE-3) Dr. Sedgwick noted that Student continued to struggle with sequential organization and that the Student’s reading comprehension and mathematical abilities were severely impaired. Student scored at the fifth (5 th ) grade level in spelling; at the seventh (7 th ) grade level in word recognition; and at the fifth (5 th ) grade level in written arithmetic. (PE-3) In addition, Student answered 25% of the reading comprehension questions correctly. ( Id .) He noted that the Student discussed social and emotional issues with more ease during this evaluation than he had three years prior, but that the Student’s responses reflected “a high level of personal anxiety, particularly when talking about situations that were frightening to him” such as when he saw students smoking in the MVTHS bathroom and when he found a syringe when sweeping an area as part of his shop program. (PE-3) The evaluator was unsure as to the response offered by Medford’s staff in helping the Student cope with these feelings. (PE-3) Dr. Sedgwick also noted the Parent’s belief that the anxiety provoking events occurred less frequently when Student was at the League School and Learning Prep. ( Id .) Dr. Sedgwick recommended that Student be placed in a therapeutic setting where individuals trained in working with students with Asperger’s Syndrome established a program that would help the Student develop appropriate coping skills in distressing social situations. (SE-3)
Since the Parent knowingly and willingly accepted the amended IEP and placement for the 1999-2000 school year in November 1999, after having had an opportunity to participate in the Team meeting, she is barred from requesting a compensatory equitable remedy for that time period. Between September and November 1999 the Parent kept the Student at home. During this two month period, the services offered by Medford were insufficient to meet the Student’s needs. Therefore, he is entitled to compensatory services for the period of approximately two months.
2000-2001 School Year:
The Student’s Team met on May 19, 2000 and drafted an IEP, covering the period from June 2000 through June 2001. (PE-16C, SE-4) By this time the Team had available to it the report of Dr. Sedgwick of December 1999, recommending placement in a therapeutic setting with service providers trained in servicing students with Asperger’s Syndrome as well as Ms. Lunn’s report. (PE-3; PE-5) Medford proposed a 502.3 prototype program at MVTHS and the following special education services: English to be provided by a MSN teacher 5 x 56 minutes per five day cycle; Math to be provided by a MSN teacher 5 x 56 minutes per five day cycle; Social Studies to be provided by a MSN teacher 5 x 56 minutes per five day cycle; Science to be provided by a MSN teacher 5 x 56 minutes per five day cycle; Speech Therapy to be provided by a Speech Therapist 1 x 56 minutes per five day cycle; Social/Behavior Pragmatics to be provided by a Behavioral Specialist 1 x 56 minutes per five day cycle; and Vocational training to be provided by a shop specialist 5 x 10 during a five day cycle. ( Id .) The plan also proposed Counseling Consultation 5 x 15 minutes per five day cycle to be provided by an adjustment counselor, and Vocational Consultation 1 x 30 minutes per five day cycle. ( Id .) Medford also offered the Student a summer program for five weeks (4 hours a day) to prevent regression. ( Id .) The Parent did not accept this IEP and on March 15, 2001 formally rejected it in full. (SE-4)
The program offered by Medford for the 2000-2001 school year was similar to that offered the previous year. (Testimony of the Parent, Ms. DeCristofaro) This IEP does not reflect the recommendations made by Dr. Sedgwick. Between September 2000 and June 2001 the Student attended the MVTHS under the last agreed upon IEP, the 1999-2000 IEP.
The Parent did not respond to this IEP until March 15, 2001 when she rejected this IEP in full.20 (SE-4; Testimony of the Parent) Therefore, under “Stay Put” Medford was obligated to educate the Student as per the 1999-2000 IEP.
During this school year, the Student did not participate in physical education, had no behavioral plan implemented and did not participate in extracurricular activities. (Testimony of the Parent, Ms. De Cristofaro) According to Ms. DeCristofaro, gym was not available to the Students in the vocational program because it conflicted with shop. (Testimony of Ms. DeCristofaro) Even though the Student was participating in a social pragmatics group with Dr. Aurelia the Student continued to make inappropriate statements. One such statement to a classmate during shop caused the classmate to become upset and punch the Student in the chest. (Testimony of the Parent, Mr. Aurelia) At that point the Parent became aware that the Student had no specialist assigned to the Student in shop. (Testimony of the Parent)
Lisa Harnell, M.S., an Occupational Therapist at Health South Braintree Rehabilitation Hospital, who had observed the Student as part of the independent evaluation, on April 26, 2001, recommended that the Student receive Occupational Therapy once a week for forty-five (45) minutes to address sensory integration difficulties that impaired the Student’s functioning across all settings. (PE-4) Ms. Harnell’s recommendation differs significantly from those made previously by Ms. Hall, Medford Public Schools O.T. evaluator. (PE-13) Two months after Ms. Harnell’s evaluation, Jan Hollenbeck, M.S., OTR/L, of Medford also conducted an Occupational Therapy Evaluation, on June 15, 2001. (SE-39) Of note during this evaluation is the fact that the Student displayed no direct eye contact with the evaluator and instead looked in the opposite direction when speaking or when he was spoken to. (SE-39) Student reported some sensory-based problems including sensitivity to smell, which may contribute to his distractibility. The Student reported having trouble staying awake in class and being fidgety or experiencing anxiety (“feeling ‘boxed in’ or like ‘I can’t breathe’ ”) in class. Ms. Hollenbeck noted that Student’s inability to sustain an even level of arousal/alertness in school might contribute to his difficulties with school. The evaluator recommended that Student engage in regular movement activities on a daily basis. ( Id .)
On May 1, 2001, the Parent consented to an updated evaluation of the Student by Medford. (PE-17)
Richard Peterson, who conducted an Educational Assessment on May 3, 2001, found the Student to present weaknesses in Math Computation (grade equivalent of 7.0), Math Application (grade equivalent of 5.9), and Reading Comprehension (grade equivalent of 6.5) with overall performance below average (grade equivalent of 7.2) as per the K-TEA. (SE-40) The Student’s areas of strength were evidenced in Reading Decoding (grade equivalent of >12.9), and Spelling (grade equivalent of 7.6).
Joseph C. Aurelia, Ph.D., Speech/Language Reevaluation of May 17, 2001 as per the CELF-3 adjusted scores placed the Student’s performance in the low average to below average range in all areas of concept usage, word structure, sentence structure, oral directions, semantic relationship, and sentence assembly, decreased receptive auditory processing with decreased receptive and expressive language skills compounded by decreased attention at times. ( Id .) Dr. Aurelia did not note any significant progress from the time he last evaluated the Student on October 23, 1998. (PE-12B; SE-41)
Pamela H. Peckinpaugh, who performed the Psychological Evaluation on May 23, 2001, noted that consistent with previous test behavior, Student failed to show initiative, did not ask for assistance or let the examiner know when he had completed a task. (PE-9) On the WAIS-III the Student’s score was found to be within the Borderline range of overall intellectual functioning, with no significant discrepancies between overall Verbal and Performance IQs (76 and 75 respectively) and Verbal Comprehension and Perceptual Organization (80 and 76 respectively). (PE-9) Dr. Botman also conducted a psychological evaluation in August of 2001 and recommended that the Student’s educational program include low student/teacher ratios, continuous supervision, systematic behavior management, direct instruction, and also recommended that the Student receive individual psychotherapy for the Student and family counseling. (PE-7)
The program and services offered by Medford to the Student for this school year, under the 502.3 prototype IEP, were insufficient to provide the Student with a FAPE designed to maximize his potential. This program was essentially the same as the one provided the year before in which the Student experienced difficulties. (Testimony of the Parent) The Parent did not accept the proposed IEP for that school year. The Student is entitled to compensatory services as Medford should have offered him placement in a program such as the one described by Dr. Sedgwick in December 1999 and inclusive of the recommendations made by Dr. Botman, Ms. Peckinpaug, Ms. Lunn, Ms. Hollenbeck and Ms. Harnell as described supra .
2001-2002 School Year:
The IEP covering the period from June 30, 2001 to June 30, 2002 was discussed at a Team meeting held on June 20, 2001. (PE-16B, SE-3) The plan proposed by Medford offered the Student services in a substantially separate classroom at MVTHS. It specifically proposed that the Student receive: ELA to be provided by a MSN teacher 5 x 56 minutes per ten day cycle; Math to be provided by a MSN teacher 5 x 56 minutes per ten-day cycle; Social Studies to be provided by a MSN teacher 5 x 56 minutes per ten-day cycle; Speech & Language Therapy to be provided by a Speech/Language Therapist 1 x 56 minutes per ten-day cycle; and Language/Social Pragmatics to be provided by a Speech/Language Therapist 1 x 56 minutes per ten-day cycle. Under section A, Consultation, Behavioral/Stress Management would be provided by Ms. Eileen Buckley 1 x 30 minutes per ten-day cycle. ( Id .) Medford offered an extended school year program as well. The IEP was forwarded to the Parent on or about September 4, 2001. ( Id .)
Alan H. Levy, of Medford, wrote to the Parent on June 26, 2001, to verify whether the Student would participate in a summer program as described in the draft IEP and inclusive of one-to-one meetings between Dr. Aurelia and the Student during the summer, presented to the Parent at the Team meeting of June 25, 2001. (SE-58) The program would offer the Student language and pragmatic therapy with Dr. Aurelia, including participation in community visits and field trips, and would run approximately three hours per day, in a small group with four other boys. (Testimony of Dr. Aurelia)
The Parent refused said proposal and the Student did not participate in a summer program during 2001. (Testimony of Dr. Aurelia)
Medford’s Team did not discuss any placement for the Student other than programs at MVTHS and the High School. Frustrated by the previous experiences at MVTHS, and presented with no other alternatives, the Parent/ Student requested that the special education program be provided at Medford High School. (Testimony of the Parent, Dr. Aurelia, Ms. DeCristofaro) The Student was interested in attending gym, something he had not been able to do at MVTHS and was also interested in a part time job at Burger King. (Testimony of the Parent, Mr. Aurelia) While Medford’s service providers supported the MVTHS placement instead, they agreed to allow the Student to attend the high school program. ( Id .) In October 2001, Student began attending special education classes at Medford High School on a trial basis. (Testimony of the Parent, Mr. Aurelia, Ms. Medaglio) The Student was overwhelmed by the new setting and academic demands. There were conflicts in his schedule between speech/language and Math class of which Medford did not become aware for some weeks. (Testimony of the Parent, Ms. Medaglio, Dr. Aurelia) As a result, the Student did not attend his assigned Math course for approximately six weeks between October and November 2001 and had fallen so far behind the rest of the class that he was unable to follow the class. (Testimony of the Parent, Ms. DeCristofaro) Between October and December 2001, unbeknown to Medford at the time of the events, the Student began roaming the halls, went swimming in the High School pool unsupervised during school hours and at least on one occasion spent time on the roof of the school. (Testimony of Parent, Dr. Aurelia)
The Student’s Team convened again on August 15, September 13, the first half of November 2001 and December 12, 2001 in an attempt to amend the 2001-2002 IEP and to accommodate the Student in his request to be educated at Medford High School instead of MVTHS. (Testimony of Dr. Aurelia, the Parent, Ms. Medaglio; SE-54; SE-57)
On October 6, 2001, the Parent accepted an addendum to the Student’s proposed IEP, agreeing to have the Student participate in individual therapy consistent with the recommendations made by Dr. Botman, which the Parent received on October 2, 2001. (SE-27; SE-34; SE-55) Dr. Botman’s report was later reviewed at the Team meeting of November 16, 2001. (SE-13) Ramon Ruiz of Wediko Children’s Services was the Student’s therapist. (SE-27; SE-34) Family therapy services were later scheduled to begin in January of 2002 with Katherine Patton of Wediko. (SE-33)
Dr. Gail Colozzi, a behavioral specialist, also evaluated the Student in December 2001. (PE-8) Since her report was based on a great deal of misinformation regarding the Student, his placements and the history of this case, it is not being given weight. Her report was discussed during the February 5, 2002 Team meeting and her findings were formally rejected by the Parent. (Testimony of the Parent)
In general, the program offered by Medford lacked a coordinated, systematic skills building approach and did not promote generalization of skills across all settings. (Testimony of Dr. Cohen, the Parent) Student did not participate in gym or socialize with classmates outside Medford. (Testimony of the Parent)
According to the Parent, placement at the High School did not go well and on January 7, 2002 the Student’s pediatrician prescribed home instruction until an appropriate placement was located. In the Physician’s Statement for Home Hospital Placement, the pediatrician stated that the Student had become reclusive in school and refused to attend classes. (PE-22A)
The Team was not convened by Medford to work on the services that should be offered to the Student during the time he received home instruction in contravention of 603 CMR 28.04(4)21 , even though he was in home placement between January and June 2002. (Testimony of Ms. Almeida, Ms. DeCristofaro, Dr. Aurelia) Ms. DeCristofaro testified that Medford did not expect the Student to return to the District during that semester. Instead, Medford convened the Team in February 2002 to discuss the services and placement that were proposed to be implemented between February 2002 and February 2003. (PE-15; SE-2) This plan was rejected by the Parent on or about May 31, 2002. (PE-17; Testimony of the Parent) It was superseded by the IEP drafted in June 2002. (SE-1)
Ms. Almeida of Medford provided the Student tutoring through June 2002. While Ms. Almeida is not certified in special education or in grades nine through twelve, she had a good relationship with the Student and tried to help him. While she was allowed to view the Student’s IEP before commencing the tutorials, she was not given a copy of the IEP. She testified that the teachers gave her the assignments and she would work on the material with the Student. She testified that the Student did not ask questions when he did not understand something but rather, she would have to observe him closely and question him when she thought that he was not following her. (Testimony of Ms. Almeida) Ms. Almeida did not receive consistent supervision but when she had questions as to how to explain an assignment to the Student, she consulted with Ms. DeCristofaro. She never met with Dr. Aurelia to discuss the Student even when he was designated the school’s consultant for the Student and had previously offered training and orientation to the High School regarding the Student’s disabilities. (Testimony of Ms. Almeida, Dr. Aurelia) The Student did not receive social pragmatics or speech and language between January and late April 2002.
During the 2001-2002 school year, the program offered by Medford in the High School both failed to provide the Student with a FAPE that could have assured his maximum feasible development and raised concerns regarding the Student’s safety. The Student is also entitled to receive compensatory services for the interruptions in speech and language and social pragmatics services between January and the end of April 2002. Medford further violated the Student’s procedural due process rights when it did not convene the Team to determine what services the Student should receive while on home bound instruction.
Compensatory Education :
Careful review of the evidence warrants a finding entitling the Student to compensatory services for the inappropriateness of the programs offered to him in Medford for several years.
The First Circuit Court of Appeals has long recognized the right of a student to receive compensatory education as a form of relief to remedy previous deprivations due to a deficient IEP. Pihl v. Massachusesetts Department of Education , 9 F. 3d 184 (1 st Cir. 1993). Where a denial of essential special education services or a significant interruption in the provision of those services has occurred during the period of the Student’s entitlement22 to special education, compensatory services may be awarded. Stock v. Massachussetts Hospital School , 467 NE. 2d 448, 392 Mass. 205 (1985). In Massachusetts, the BSEA is authorized to review the evidence and when appropriate, award compensatory services in special education cases. Murphy v. Timberlane , 973 F.2d 13 (1 st Cir. 1994); 603 CMR 28.08 et seq . In determining whether said form of relief should be granted, several factors, such as the conduct of the parties, the specific period of time during which the specific service was denied, the appropriateness of the services offered to the student and the type and extent of harm caused to the student as a result of any denial of a FAPE must be weighed. In deciding whether this form of relief is appropriate, the hearing officer must also take into account the parent’s actions. If a Parent is found to have been given a real opportunity to participate in the team meeting, and if thereafter, the parent knowingly and voluntarily accepted the IEP, then compensatory education should not be considered for that period. W.B. v. Matula , 67 F. 3d. 484 (3 rd Cir. 1995). A parent’s refusal to allow the student to access services deemed to be appropriate, or rejection of services that would otherwise render an IEP appropriate for the student, would also bar the student’s claim as to those periods. In Re: Taunton Public Schools , BSEA # 01-0462 (2001); In Re: Silver Lake Regional School District , BSEA # 01-1370 (2001); In Re: Sharon Public Schools , BSEA # 02-1490 (2002). Massachusetts has recognized the following standard in determining whether an IEP was implemented: “1) failure to implement an IEP must not be a complete failure, 2) the variance from special education and related services specified in the IEP must not deprive the student of FAPE; and 3) the provision of special education and related services must make ‘progress’ toward the achievement of the goals stated in the IEP.” Ross v. Framingham , 44 F. Supp 2d 104 (D. Mass. 1999). Where the elements described infra favor the Student’s claim, then compensatory services is an acceptable form of relief to be awarded by the BSEA. See Murphy v. Timberlane , 973 F.2d 13 (1 st Cir. 1994).
In determining whether the Student in the instant case is entitled to compensatory education for the years at issue, the programs and services offered by Medford must be reviewed in light of the information available to the Team at the time the IEP was drafted, inclusive of the Student’s performance, and the recommendations of evaluators and service providers. Any interruption in the provision of services offered through the IEP, as well as a determination of the appropriateness of the type of service and placement offered must be examined. The Parent’s actions, vis a vis acceptance or accessing of such services, must also be weighed when determining the Student’s entitlement to compensation. Medford argues that if any award of compensatory services is made, it should not encompass the entire period of time from 1998 through the present. To this extent, careful review supports Medford’s contention.
The evidence is persuasive that the programs offered by Medford to the Student during the 1998-1999, 1999-2000, 2000-2001 and 2001-2002 failed to provide him with a FAPE designed to meet the Student’s individual maximum potential consistent with state and federal law. David D. v. Dartmouth School Committee , 775 F.2d 411 (1 st Cir. 1985). However, because some of the IEPs offered to the Student were accepted by the Parent and because Medford offered services in the home pursuant to Physician Statements for Home Hospital Placement, the Student is not entitled to four years of compensatory education. Additionally, since the services I will be ordering in accordance with this decision are to be implemented in a residential setting, a highly restrictive and intensive program, a “ quid pro quo ” order, in terms of years would be inappropriate.
Medford also ignored the Parent’s requests for out of district placement, such as appear in her letters of May 17, 200123 and February 1, 2002. (PE- 17; Testimony of the Parent) Except for Dr. Colozzi, whose evaluation I do not credit due to the amount of misinformation and inaccuracies on which she relied in reaching her conclusions, since 1997 through the present, Dr. Felopulos, Dr. Collette, Dr. Sedgwick, Susan Lunn, and even Dr. Rosennn, Medford’s evaluator, recommended increased services, therapeutic settings and out of district placements. (PE-3; PE-5; PE-8; SE-43; Testimony of Dr. Rosennn, Bernstein, Parent) In 2002, Dr. Cohen, whose testimony I credit, was of the opinion that so much precious time had been wasted in inappropriate settings that the Student now required residential placement in order to acquire the types of skills he required, and was capable of achieving, so that he could live a productive independent life. (Testimony of Dr. Cohen) The Parent specifically notified Medford that she disagreed with Dr. Colozzi’s report and while it was it contravened all other independent evaluations throughout the years, Medford chose to rely on this report and that of its staff to support continued placement of the Student at the inappropriate programs in Medford. (Testimony of Ms. Bernstein) Medford should have given due weight to the wealth of information confirming the Parent’s concerns that the programs at Medford were insufficient to provide the Student a FAPE.
Also, it must be taken into account that previous recommendations by the credible experts who evaluated the Student between 1997 and 2001 supported placement of the Student in private day programs, not residential. (PE-3; PE-6) Beginning in 1997, Dr. Felopulos alerted the Parties that the Student had not progressed in intellectual development at a rate commensurate with same age peers and that he presented with significant deficits in expressive and receptive language. He strongly recommended placement outside Medford. (PE-6) During the periods of time at issue, Medford consistently failed to include professionals with an expertise in the Student’s areas of disability at Team meetings. As a result, the evidence shows that during the years in dispute, Medford’s Team failed to give proper weight to the findings in the evaluations and to the recommendations made by the independent evaluators, thereby drafting IEPs that offered inadequate services to meet the Student’s needs. 603 CMR 28. 328.4 & 603 CMR 28.04(5)(f).
Medford however, should not be penalized for the period from November 1999 through June 2000 when the Parent accepted the IEP and the Student attended the program in Medford.
Also, Medford is partially correct in its argument that it should not be penalized for the periods of time during which the Student received Home/Hospital Instruction pursuant to a Physician’s Note. 603 CMR 28.03(3)(c) states that:
c) Educational services in home or hospital . Upon receipt of a physician’s written order verifying that any student enrolled in a public school or placed by the public school in a private setting must remain at home or in a hospital on a day or overnight basis, or any combination of both, for medical reasons and for a period of not less than fourteen school days in any school year, the principal shall arrange for provision of educational services in the home or hospital. Such services shall be provided with sufficient frequency to allow the student to continue his or her educational program, as long as such services do not interfere with the medical needs of the student. The principal shall coordinate such services with the Administrator for Special Education for eligible students. Such educational services shall not be considered special education unless the student has been determined eligible for such services, and the services include services on the student’s IEP. 603 CMR 28.03(3)(c).
In In Re: Lowell Public Schools , BSEA # 02-1497 (10/24/2001), I previously explained that “this language is unequivocal and does not leave the provision of educational services in the home to the discretion of the school principal or the special education administrator where the requisite medical order is issued for medical reasons and the home placement is required for at least 14 days. The regulation sets out the process that must be initiated upon receipt of the appropriate physician’s order.” Upon receipt of the Physician’s order, Medford was responsible to arrange for services in the home.
Such documentation was provided for March 1997 and for the period beginning on January 7, 2002. (PE-22A and B) Both times, Medford offered services and the tutor was Ms. Almeida. (Testimony of Ms. Almeida, Ms. Bernstein) Ms. Almeida is not a special education teacher but her initiative and desire to help the Student is commendable. Her testimony was persuasive that she was in tune with the Student, alert to his needs, checked frequently for comprehension and sought alternative ways of presenting information to ensure that the Student comprehended the material presented. (Testimony of Ms. Almeida) The evidence is, however, persuasive that at least in 2002 these services were inadequate and Medford should be responsible for the interruption in the Speech and Language and Social Pragmatics services which were not offered until late April 2002. (Testimony of the Parent, Ms. Bernstein, Dr. Aurelia) Medford also violated the Student’s procedural due process rights under applicable law when it failed to convene the Team to determine what services should be offered to the Student while he remained in home bound instruction. 603 CMR 28.04(4) addressing unscheduled evaluations for medical reasons further requires that:
If, in the opinion of the student’s physician, an eligible student is likely to remain at home, in a hospital, or in a pediatric nursing home for medical reasons and for more than sixty (60) school days in any school year, the Administrator of Special Education shall, without undue delay, convene a Team to consider evaluation needs and, if appropriate, to amend the existing IEP or develop a new IEP suited to the student’s unique circumstances. 603 CMR 28.04(4)
Neither the Parent nor Medford could set forth the specific number of hours or days when the Student missed services. (Testimony of the Parent, Ms. Medaglio, Ms. Bernstein) Nevertheless, Ms. Bernstein testified that Medford would only owe the Student the actual number of hours of services he had missed. While compensatory education attempts to make the Student whole with respect to services that were not provided or interruptions in provision of identified services, such a detailed analysis is not possible here, nor would it yield the appropriate result. To some extent the Student has already missed the window of opportunity within which he could have taken full advantage of educational services to develop his skills to his maximum potential. (Testimony of Dr. Rosennn, Dr. Cohen)
In the past, the Student was unsuccessful in a private day placement (Learning Prep) as well as in the programs offered in Medford. At 17 years of age, time is of the essence and he requires a more restrictive placement. Thus, as a result of the inadequacy of programs provided, procedural due process violations and interruptions in provision of services as explained thus far, I find that the Student is entitled to receive compensatory services from Medford. Such services amount to one full year of residential placement for the Student.
2002-2003 School Year:
On or about June 5, 2002, the Parent requested that the Team meet promptly and that the proposed IEP and placement for the 2002-2003 school year be made available to her before the end of the school year, so that Dr. Cohen could observe the proposed program.
Medford’s Team convened on June 17 th to discuss the result of Dr. Cohen’s evaluation and his recommendations, and to prepare an IEP for the following school year.
Dr. Cohen’s evaluation had been performed in February and March 2002. (PE-2) At the time, Ms. Bernstein approved only a few hours for the evaluation as, in her opinion, the Student had been evaluated extensively in the past. Hence, there was no need for evaluating him further. (Testimony of Dr. Cohen) Dr. Rosennn, Medford’s expert witness, testified that the tests administered by Dr. Cohen were appropriate and the results consistent with previous testing. (Testimony of Dr. Rosennn) After extensive evaluation, he concluded that the Student was of at least low average intelligence, possibly average. In his opinion, it was difficult to obtain a true assessment of the Student’s intellectual capacity because of interference caused by his severe attentional and cognitive self-regulatory difficulties. Regarding the Student’s language capabilities, Dr. Cohen noted that both attentional capabilities as well as the ability to understand grammatical features of language, and verbal organization were impaired. These issues impacted negatively on the Student’s ability to integrate verbal information contributing to his overall problems with listening comprehension and causing his difficulties regarding the consequences of his behavior and its impact on others. ( Id .) He explained that while the Student’s ability to retain information that he had learned was intact, the ability to initially process and understand the information was impaired. Therefore, the Student could remember what he had initially been able to process. The problem is that the attentional impairments and selective attention interfere with his ability to process and understand the meaning of what is being said, and he loses so much of what is being said, “and continues to do so from one moment to the next, that he is left with an extraordinarily meager and distorted representation of the information being presented to him.” (PE-2; Testimony of Dr. Cohen) Using the international classification system24 , Dr. Cohen concluded that the Student presented with Mixed Developmental Disorder (ICD9-CM 315.5). (PE-2; Testimony of Dr. Cohen, Dr. Rosennn) Dr. Cohen warned that if the Student failed to receive intervention in a highly coordinated program, his prognosis was quite poor. The Student was at risk of becoming a recluse in his home, require institutional care or worse could end up being incarcerated. ( Id .) With appropriate intervention, he could learn to “function safely and effectively as a productive member of society.” ( Id .) Dr. Cohen recommended placement in a residential facility. ( Id .) While the Parent was initially conflicted over this recommendation, on or about May 31, 2002, the Parent requested that Medford offer the Student a residential placement. (PE-17)
The IEP promulgated by Medford after the June 2002 Team meeting covered the period from June 17, 2002 through June 17, 2003, and ignored the recommendations offered by Dr. Cohen. (SE-1; Testimony of the Parent) Under this IEP, Medford offered the Student special education services in a substantially separate program at Medford High School. (SE-1) Although the IEP does not state so, Medford was willing to offer a combination of services between the high school and the vocational school. (Testimony of Dr. Aurelia) The following special education services were offered: Language Arts to be provided by a special education teacher 6 x 56 minutes per six day cycle; Math to be provided by a special education teacher 6 x 56 minutes per six day cycle; Science to be provided by a special education teacher 6 x 56 minutes per six day cycle; Social Studies to be provided by a special education teacher 6 x 56 minutes per six day cycle; Reading to be provided by a special education teacher 5 x 56 minutes per six day cycle; Study Skills to be provided by a special education teacher 2 x 56 minutes per six day cycle; Speech/Social Pragmatics to be provided by a Speech/Language Therapist 3 x 56 minutes per six day cycle; Counseling to be provided by a Wediko counselor 1 x 56 per six day cycle; and School to Work to be provided by a special education teacher on an on-going basis. (SE-1) In addition, Medford offered Consultation Services to be provided for Speech/Language Pragmatics by the Speech and Language Therapist 15 minutes per cycle and Counseling by the Wediko Counselor 15 minutes per cycle. ( Id .)
Also, under this IEP, Medford offered the Student participation in an extended day program. (SE-1) Medford also proposed that the Student receive assistance from a job coach to help him maintain his employment when school was not in session. ( Id .)
In drafting this IEP, Medford did not elicit information from Ms. Almeida, the Student’s home tutor since January 2002. (Testimony of Ms. Almeida)
The Parent’s request to have the Team meeting convened and the IEP available before the end of the school year was truncated by Medford when it did not convene the Team until June 17 th , and then did not promulgate an IEP with the proposed placement until after the school year ended. (Testimony of the Parent. Ms. Medaglio) As a result, Dr. Cohen was not able to observe the program proposed by Medford. ( Id .) In doing so, Medford violated the Student’s procedural due process rights. 603 CMR 8.07(1)(a)(3) A Ruling issued on July 15, 2002 sanctioned Medford for its actions.25
At the team meeting, the only expert opinion available to the Team was Dr. Cohen’s which supported residential placement. His testimony is credible and persuasive that the Student requires residential placement for educational reasons in order to receive a FAPE. Again, Medford failed to properly weigh the recommendations of the only independent evaluator available to them. 603 CMR 28.04(5)(f). Once the recommendation for residential placement was made, Medford should not have disregarded it on the basis that no other evaluator had made such a recommendation before. (Testimony of Ms. Medaglio) Ms. Medaglio’s testimony in this regard was surprising in light of the previous recommendations made by Dr. Felopulos, Dr. Collette, and Dr. Sedgwick and shows a lack of appreciation for the specific elements of a program required by the Student as described by Dr. Botman, Ms. Lunn, Ms. Harnell and Ms. Hollenbeck. (PE-3; PE-5; PE-6; PE-7; SE-39; SE-43) Once the Team reached the only appropriate decision it could have reached, to place the Student outside the district, Medford was responsible to investigate possible appropriate placements. 603 CMR 28.06(2)(c).
As with the previous IEPs, analysis of Medford’s program demonstrates that it cannot assure that the Student can make effective progress. (Testimony of Dr. Cohen) An example of this was the lack of significant progress made by the Student in Math. At the beginning of the Student’s ninth grade in Medford he was performing at the fourth grade level in Math and was able to increase his performance to a fifth/sixth grade level by the end of that school year. (Testimony of Ms. DeCristofaro) According to Ms. DeCristofaro, two years later, by the end of the eleventh grade, he was still performing at the sixth grade level. Also, as with previous programs in Medford, the proposed 2002-2003 school year program raised questions as to the quality of the alleged opportunities for meaningful social interactions and maintaining the Student’s safety. (Testimony of the Parent, Dr. Cohen)
While I recognize the positive relationship that exists between the Student and some of the staff at Medford, such as Dr. Aurelia, I find their testimony regarding the ability of said programs to meet the Student’s needs not credible. The evidence shows that contrary to their assertions, the Student developed no friendships with peers that carried over outside Medford, skipped classes, was unable to follow his schedule in the high school, was not given meaningful opportunities to engage in physical activities that were interesting and appropriate for him, and failed to receive sufficient services to allow him to make effective progress. Dr. Aurelia did not believe that the Student’s wandering the halls, going to the roof or going swimming on several occasions during school hours presented a safety concern. (Testimony of Dr. Aurelia) To him, the fact that the Student stopped going to the pool and roof after they had a conversation in December 2001 or January 2002, and the Student promised to stop doing this, took care of the safety issues. ( Id .) There seemed to be little effort put forth by Medford to address the reasons why the Student was engaging in these behaviors. Moreover, if Medford knew that the Student wanted to participate in gym, liked swimming and considered recommendations that he partake in physical activity (as recommended for example by Ms. Hollenbeck), Medford could have offered the Student swimming as physical education.
Also, Dr. Aurelia testified that the Student had made great strides through social pragmatics and speech and language. He testified that the Student’s ability to make eye contact when interacting with other people had greatly improved. This, however, was not evidenced by the evaluators or even the Student’s teachers who commented on the Student’s inability to maintain eye contact. (PE-2; PE-5; PE-6; PE-7; Testimony of Dr. Cohen; Ms. DeCristsofaro) Progress may have been made but said progress is a “far cry” from the progress that should have been expected of the Student given his aptitude, had the programs offered by Medford as a whole had been appropriate. Difficulty in establishing eye contact is one more indication of the Student’s inability to generalize skills across all settings, and to do it consistently. Also, the Student may have been able to apply some social pragmatics within the context of the school building in Medford, as testified by Dr. Aurelia, but he was unable to generalize it to other settings. (Testimony of Dr. Aurelia, Dr. Cohen) The written sample provided by Dr. Aurelia as an example of the Student’s grammatical accomplishments may denote improvement but was full of grammatical errors. (SE-62) For these reasons, Dr. Aurelia’s testimony offers little assistance in determining an appropriate program for the Student. Medford simply raised a low educational bar for the Student which failed to comply with the requirements of the IDEA, and then used its own praise of the Student’s alleged academic achievement in support of the appropriateness of its program. The IEP for the 2002-2003 offers more of the same services under which the Student has been unsuccessful. The placement offered by Medford is inappropriate and cannot be modified to make it appropriate. (Testimony of Dr. Cohen)
Dr. Rosennn opined that residential placement was not appropriate but supported a private day placement for the Student. (Testimony of Dr. Rosennn) He agreed with Dr. Cohen that the Student presented with language and communication disabilities, social interaction and reciprocity difficulties and that he presented with atypical behavior, presentation and functioning in all settings. Dr. Rosennn relied on the reports and findings made by Dr. Collette, Dr. Sedgwick, Dr. Botman and Dr. Cohen to support his diagnosis of Pervasive Developmental Disorder Not Otherwise Specified (PDD NOS). He testified that in his opinion a more correct diagnosis for the Student was High Functioning Autism (HFA). Children with this diagnosis are less high functioning than children diagnosed with Asperger’s Syndrome. They present with average or near average cognitive functioning with little discrepancy between visual and performance skills, have significant social deficits, and severe delays in language acquisition and functioning. These characteristics best describe the Student. ( Id .) He also diagnosed the Student with Attention Deficit Hyperactivity Disorder (ADHD), a language based disability, a non-verbal learning disability, gross and fine motor delays and with difficulty regulating and expressing emotions. Dr. Rosennn was of the opinion that the Student was severely impaired in his ability to integrate information and see the big picture. Dr. Rosennn opined that this impairment in integration was the major cause of the Student’s maladaptive behaviors, rather than the attentional issues discussed by Dr. Cohen. (Testimony of Dr. Rosennn) He stated that community involvement, pre-vocational and life skills training, with daily repetition and practice in application of skills, were important considerations in selecting the Student’s placement. Contrary to what Medford’s Team offered the Student, Dr. Rosennn recommended that the Student be placed in a private day program that could focus on the above. Dr. Rosennn’s own findings as per his evaluation of the Student in the spring of 2002 were never reduced to writing, and were not available to the Team for discussion.
Dr. Cohen testified that none of the Student’s IEPs (including the one for 2002-2003) could meet the Student’s needs, even if all of the services in the IEPs had been delivered. Neither Dr. Rosennn nor Dr. Cohen supported placement of the Student in Medford.
Given that the Student is 17 years of age, that his entitlement to special education may run until his 22 nd birthday, and in light of the amount of services he missed due to inappropriate placements offered by Medford, the weight of the evidence tilts in favor of Dr. Cohen’s recommendation for residential placement.
The evidence is persuasive that the Student requires residential placement at this juncture. He has demonstrated that he does not have the ability to generalize skills across all settings and thus far day programs have been insufficient to allow him to achieve this. He must be taught in a systematic fashion and the material must be consistently presented and reinforced through all his waking hours in an environment where he can learn appropriate social skills. (Testimony of Dr. Cohen)
Dr. Cohen’s testimony is persuasive that Melmark is an appropriate placement capable of meeting the Student’s needs. It is a “Chapter 766” approved school which caters to a population that presents with diagnoses similar to those of Student. It offers a highly individualized, comprehensive, consistent program that can address all of the Student’s areas of disability and where the Student will have an opportunity to learn to generalize skills to a variety of settings. The staff at Melmark understands the Student’s disability and has the ability to coordinate and carry it through the day to the residential portion of the Student’s placement. (Testimony of Dr. Cohen) At Melmark the Student can also be exposed to vocational opportunities with a functional approach. He will be able to receive the compensatory and skill-building approaches he requires. ( Id .) The Student has been accepted at Melmark and an opening is expected within the next six months. (PE-25; Testimony of Dr. Cohen)
A FAPE must offer the Student an opportunity for meaningful educational progress or benefit in accordance with the federal standards embodied in the IDEA.26 The evidence is persuasive that the program offered by Medford as described supra does not meet this standard. The Student requires a residential placement at Melmark in order to receive a FAPE. Analysis of the Student’s intellectual potential and abilities as explained by the Parent’s independent evaluators, most especially Dr. Cohen, when comparing it with the actual academic progress made by the Student confirms that Medford’s proposed program for the 2002-2003 school year cannot assure the academic progress one should be able to expect from the Student. (See 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”)) Medford’s own expert witness, Dr. Rosennn, supported a program outside Medford during the first day in which he testified. (Testimony of Dr. Rosennn) Therefore, the Student is entitled to a residential placement outside Medford for the 2002-2003 school year, which shall be made available as soon as it becomes available at Melmark. Medford’s support of a private day program for the Student in its closing brief (when up to that point it never discussed that option or made it available to the Parent through IEPs) amounts proverbially to “too little too late”. Until such time as that placement is assured, the Student must continue to receive educational services in the home.
Dr. Cohen warned that spending time at home or in a traditional school even with a special education program would be detrimental to the Student who already wonders what is wrong with him and is becoming increasingly depressed. (Testimony of Dr. Cohen) Dr. Cohen testified that the Student shared that he felt lonely and isolated, wondered what others thought of him and why they wanted nothing to do with him. ( Id .) Should an opening not be made available to the Student at Melmark within a reasonable period of time (six months), then an appropriate alternative placement, such as Riverview, should be considered by the Team for the first year. (Testimony of Dr. Cohen) Dr. Cohen should be invited to participate in the Team and his recommendations taken into account. Should he be unavailable, then Dr. Rosennn should be invited in his stead.
ORDER
Medford is ordered to convene the Team forthwith and draft an IEP placing the Student at Melmark on a residential basis for the 2002-2003 school year. The Student is entitled to an additional year in residential placement at Melmark, for a total of two calendar years in residential placement. Until such time as said placement is available to the Student, Medford will draft an IEP reflecting appropriate home instruction inclusive of speech and language services, social pragmatics, OT, and individual and family therapy. Should placement at Melmark not become available to the Student within the next six months, the Team, inclusive of Dr. Cohen, whose recommendations shall be afforded due weight, will propose an alternative setting. Should the Team not agree to the alternative placement, the Parties’ right to bring the proposed residential placement issue before the BSEA is preserved.
So ordered by the Hearing Officer,
Rosa I. Figueroa
Dated: November 1, 2002
I would like to express my gratitude to Beth Leopold Ross, BSEA Law Clerk, for her valuable contributions to this decision.
Addendum
COMMONWEALTH OF MASSACHUSETTS
SPECIAL EDUCATION APPEALS
In Re : Mark B. v. BSEA # 02-0640
Medford Public Schools District
Ruling on the School’s Request that its Expert Witness be Allowed to Testify out of Order and the Parent’s Opposition
On July 17, 2002 the Medford Public School’s (hereinafter, “Medford”) requested that the BSEA conduct a Telephone Conference Call on July 19 th or July 20 th , to allow Dr. Rosenn, its Expert Witness, to testify out of order. Via letter of July 16, 2002, the Parent had notified Medford that she objected to accommodating Dr. Rosenn at the time requested because it was the first day of Hearing and it was anticipated that the Parent’s own expert witness, Dr. Cohen, would be testifying during that time. The Parent further reserved her right to object to Dr. Rosenn testifying at all.
Due to unavailability of the Hearing Officer, on July 19 th and July 20 th the Parties were heard regarding their concerns in the morning of the first day of Hearing, July 23, 2002. Medford argued that it had listed Dr. Rosenn as one of its witnesses and that he was only available to testify on the morning of July 23, 2002 or on August 5, 2002. According to Medford, the Parent had previously agreed to Dr. Rosenn evaluating the Student earlier this school year. Dr. Rosenn was expected to offer testimony regarding his thoughts and impressions about the Student, his programmatic recommendations regarding services, and also, to comment on Dr. Cohen’s evaluation report, findings and recommendations. Medford asked that he be allowed to testify and that he do so out of order.
The Parent objected to Dr. Rosenn being allowed to testify at all because his recommendations were not available to the Team to discuss, he never prepared a report which the Parent requested on numerous occasions, and he did not speak with Medford’s personnel or the Parent regarding his recommendations. Therefore, the Parent states that relevance of his testimony is highly questionable. The Parent further argues that the Hearing was scheduled a long time ago and Medford had an opportunity to make arrangements with its own witness in a timely fashion. According to the Parent, to continue the hearing from July 26 until August, because of Medford’s witness’ unavailability, is not reasonable and is prejudicial to the Parent. The Parent also requested an opportunity to ask Dr. Cohen questions regarding Dr. Rosenn so that Dr. Cohen would not have to return to the BSEA after Dr. Rosenn testified if he were allowed to do so.
Upon review and consideration of the arguments offered by both sides I hereby GRANT Medford’s request IN PART. Medford’s expert will be allowed to testify no later than the morning of August 5 th . His testimony, however, will be limited to his comments on Dr. Cohen’s report.
When Medford asked Dr. Rosenn to evaluate the Student it had a responsibility to ensure that his report and recommendations were available in a timely fashion. It was further responsible to have made those findings and recommendations available to the Team, inclusive of the Parent, so that the Team would have been in a position to consider Dr. Rosenn’s recommendations when planning the services for the Student. None of this happened. At minimum, Medford should have provided Dr. Rosenn’s report to the Parents when it submitted its documents on July 18 th , five business days before the Hearing27 . 34 CFR §300.509 (a)(3); see also, Hearing Rules for Special Education Appeals, Rule 8. A. To date, Dr. Rosenn’s report is not available. To allow Medford this late in the process to have Dr. Rosenn provide the information he should have made available through his report, through testimony would be unfair and prejudicial to the Parent. Therefore, he will not be allowed to testify regarding his own findings. His testimony will be limited to his comments on the findings and recommendations made by Dr. Cohen.
According to Medford, he is available to testify on August 5, 2002, therefore, this is the last day that he will be allowed to testify in this Hearing. Medford has known since June 3, 2002, via BSEA order issued, that this Hearing was going forward on July 23, 25 and 26, 2002. It should have contacted its own expert witness at that time to ascertain his availability for the days in which it could have reasonably expected to present its case. The Parent’s right to re-call Dr. Cohen to provide rebuttal testimony is reserved and if necessary, Medford will be responsible to cover the expenses associated with this.
So Ordered By the Hearing Officer,
______________________________________
Rosa I. Figueroa
Hearing Officer
Dated: July 24, 2002
1
See In Re: Fall River Public Schools , 5 MSER 183 (1999) (borrowing a three year statute of limitation, applicable in civil rights actions, and making it applicable to BSEA and §504 claims ); Murphy v. Timberlane Regional School District , 22 F.3d 1186, 1194 (1 st Cir. 1994) (IDEA claims accrue when the parents know, or have reason to know, of the injury or event that caused their claim ); Strawn v. Missouri State Board of Education , 210 F.3d 954 (8 th Cir. 2000) (“Children protected by the IDEA benefit greatly from quick resolution of disputes because lost education is a substantial harm, and that harm is exactly what the IDEA was meant to prevent.”); Livingston School District No. 4 v. Keenan , 82 F.3d 912 (1996); In Re: Bourne Public Schools , BSEA #02-3804, 9/18/2002.
2
Documents in the record conflict as to whether the Team meeting convened on the 20 th or the 25 th of June or whether the Team met twice during that period. (See PE-16B, SE-3 and SE-58)
3
The Parent requested that this IEP be considered for the purpose of issuing the Ruling. While it was admitted in evidence, it was not given an exhibit number at the time of the Motion session but was marked as Parent Exhibit 5 for purposes of issuing the Ruling.
4
See PE-23 the curriculum vitae of the staff at Melmark.
5
“Least restrictive environment- the program and placement which ensures that, to the maximum extent appropriate, a child in need of special education, including children in public or private institutions or other care facilities, is educated with children who are not in need of special education and that special, classes, separate schooling or other removal of a child in need of special education from the regular education environment occurs only when the nature or severity of the special needs is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily.” 603 CMR 28.118.0.
6
20 USC 1412(5)(A); 603 CMR 28.02(12)
7
MGL c. 71B, §1.
8
See the Mass. Department of Education’s Administrative Advisory SPED 2002-1: Guidance on the change in special education standard of service from “maximum possible development” to “free appropriate public education” (“FAPE”), Effective January 1, 2002 (hereafter Mass . FAPE Advisory ), 7 MSER Quarterly Reports 1 (2001).
9
33 USC 1401(8). The federal regulations adopted pursuant to the IDEA include a similar definition of FAPE. 34 CFR 300.13.
10
For a discussion of FAPE see Hendrick Hudson Bd. Of Education v. Rowley , 458 U.S. 176, 188-189 (1992); Cedar Rapids Community School District v. Garret F., 526 U.S. 66 (1999); Burlington v. Department of Educatio n , 736 F. 2d 773 (1 st Cir. 1984). Houston Independent School District v. Bobby R ., 200 F.3d 341 (5 th Cir. 2000); Stockton by Stockton v. Barbour County Bd. of Educ., 25 IDELR 1076 (4 th Cir. 1997); MC v. Central Regional School District , 81 F.3d 389 (3 rd Cir. 1996), cert. denied 519 US 866 (1966); Ridgewood Board of Education v. NE , 30 IDELR 41 (3 rd Cir. 1999). See also GD v. Westmoreland School District , 930 F.3d 942 (1 st Cir. 1991).
11
Board of Education of Hendrick Hudson Central School District v. Rowley, 458 U.S. 176, 203, 102 S.Ct. 3034, 3049 (1982).
12
Lenn v. Portland School Committee , 998 F.2d 1083 (1 st Cir. 1993) (program must be “reasonably calculated to provide ‘effective results’ and ‘demonstrable improvement’ in the various ‘educational and personal skills identified as special needs’”); Roland v. Concord School Committee , 910 F.2d 983 (1 st Cir. 1990); Burlington v. Department of Education , 736 F.2d 773, 788 (1 st Cir. 1984).
13
Houston Independent School District v. Bobby R ., 200 F.3d 341 (5 th Cir. 2000) (a disabled child’s development must be measured with respect to the individual student, not by his relation to the rest of the class, as declining percentile scores may represent the student’s inability to maintain the same level of academic progress achieved by regular peers and not necessarily a lack of educational benefit); Ridgewood Board of Education v. NE , 172 F.3d 238 (3 rd Cir. 1999); MC v. Central Regional School District , 81 F.3d 389 (3 rd Cir. 1996), cert. denied 519 US 866 (1996); Roland v. Concord School Committee , 910 F.2d 983 (1 st Cir. 1990); Kevin T. v. Elmhurst , 36 IDELR 153 (N.D. Ill. 2002).
14
The Massachusetts Department of Education (DOE) stated that the “FAPE standard . . . requires the school district to provide personalized instruction tailored to the student’s needs, with sufficient support services to permit the student to make meaningful educational progress .” Mass. FAPE Advisory (see footnote 8 above for full title and citation of Advisory) (emphasis supplied).
15
603 CMR 28.01(3). The Massachusetts Department of Education has also noted that the Massachusetts Education Reform Act “underscores the Commonwealth’s commitment to assist all students to reach their full educational potential.” Mass. FAPE Advisory (see footnote 8 above for full title and citation of the Advisory). M.G.L. c. 69, §1 states in part that a paramount goal of the commonwealth is “to provide a public education system of sufficient quality to extend to all children the opportunity to reach their full potential.”
16
County of San Diego v. California Special Educ. Hearing Office, 93 F.3d 1458 (9th Cir. 1996) (the correct standard for measuring educational benefit under the IDEA is whether the child makes progress toward the goals set forth in IEP and not just whether the placement is reasonably calculated to provide the student educational benefits.); Evans v. Board of Education of the Rhinebeck Central School District , 930 F.Supp. 83 (S.D. N.Y. 1996) (the IEP must include measurable criteria to assess the student’s progress).
17
See In Re: Bourne Public Schools , BSEA #02-3804, 9/18/2002; In Re: Fall River Public Schools , 5 MSER 183 (1999); Murphy v. Timberlane Regional School District , 22 F.3d 1186, 1194 (1 st Cir. 1994); Strawn v. Missouri State Board of Education , 210 F.3d 954 (8 th Cir. 2000); Livingston School District No. 4 v. Keenan , 82 F.3d 912 (1996).
18
The Parent’s Hearing request was received at the BSEA on August 1, 2001.
19
The Parent did not accept counseling services from Wediko Children’s Services for the Student until October 6, 2001. (SE-23)
20
Medford argued that the Parent had accepted this IEP because her husband at the time had accepted the IEP. The Parent denied that her husband was her designee and in rebuttal specifically stated that he lacked authority to have acted on the Student’s behalf. He is not the Student’s biological father and is not the student’s legal guardian. (Testimony of the Parent) He, therefore, may not be considered the Student’s “Parent” as that term is defined in 603 CMR 28.121.0 and 603 CMR 28.02 (15).
21
“ Unscheduled evaluations for medical reasons . If, in the opinion of the student’s physician, an eligible student is likely to remain at home, in a hospital, or in a pediatric nursing home for medical reasons and for more than sixty (60) school days in any school year, the Administrator of Special Education shall, without delay, convene a Team to consider evaluation needs and if appropriate, to amend the existing IEP or develop a new IEP suited to the student’s unique circumstances.” 603 CMR 28.04(4)
22
See M.G.L. c. 71B §1 establishing that the disabled student’s period of entitlement runs from the time s/he is 3 years of age until s/he attains a high school diploma (or its equivalent), or the day of the student’s twenty second birthday, whichever comes first. 603 CMR 28.02 (9).
23
“…Are you really surprised that not following his IEP all year and watching him slowly regress we are at the point we are now? I refuse to believe you are not making the connections to his disability related presentation and the lack of compliance I have been addressing. The team in its entirety has expressed their inability to establish the social pragmatics across the milieu, which he needs [and is in his IEP] in order to access the curriculum. Now you want to move him out to yet another setting so the current placement doesn’t have to deal with the regression it has created? Please consider a more appropriate placement out of district or in.” (PE-17, excerpt from a May 23, 2001 letter)
24
Dr. Rosennn testified that while the international classification system is a valid means of classifying psychiatric disorders, it is used infrequently in the United States. In his opinion, the Mixed Developmental Disorder diagnosis was somewhat vague when compared with the DSM-IV. (Testimony of Dr. Rosennn)
25
“ The Parent requested on June 5, 2002 that the Team be convened and that a placement decision be made by Medford so that an observation by Dr. Cohen could be scheduled before the end of the school year. Dr. Cohen’s evaluation was made available to Medford on or about May 31, 2002. Thereafter the school had 10 school days within which it was obligated to convene the Team as mandated under 603 CMR 28.04 (5) (f) The operative word embodied in this regulation is within . This word sets out the intent of the regulation that certain timelines be followed. Nothing in this regulation encourages the district to wait until the last possible day to hold a Team meeting, or encourages that it be held on the 11 th day. The Student’s Team was convened on June 17, 2002. Under a different set of facts a one-day delay might be de minimis but here, time was of the essence. In waiting until the last moment to convene the Team, knowing that school ended four days later, Medford violated the intent of the regulation.
The Parent requested an earlier date than June 17 th for the IEP meeting and stated her concern that given how close these dates were to the end of the school year the date for an observation following the meeting would have to be identified.
Because no IEP or a placement form identifying a placement for the Student was promulgated before the end of the school year, and since Medford did not offer any other available dates for an observation after notifying the Parent that the 19 th of June would not work, Medford in effect prevented the Parent from adequately evaluating the program which Medford ultimately offered the Student. The program ultimately offered to the Student in the IEP of June 25, 2002, was operated by Medford and as such was within their control and could have been made available to the Parent or its expert to observe.
A Parent’s right to observe a program is explicitly embodied in the Massachusetts Regulations at 603 CMR 28:07:(1)(a)(3). Said Regulation sets out the Parent’s “ right to observe any program(s) proposed for their child if the child is identified as eligible for special education services.” Nothing in the State or Federal Regulations precludes the parent from delegating the responsibility for an observation to an expert who has evaluated the child and possesses knowledge of him/her, especially where as in the case at bar, the child presents with multiple disabilities. As in In Re: Bourne Public Schools , BSEA #00-1471, issued October 25, 1999, I find no support in the federal or state Regulations for a school to refuse, not facilitate or otherwise prevent an observation of an educational program proposed for a student which is operated by that school. Similarly, the school district has no authority to prevent the Parent from designating a representative to conduct such observation. Additionally in the case at hand, the school agreed that an observation could happen. By their inaction, Medford prevented the observation from occurring.
As such, the Parent’s request to sanction Medford for preventing the Parent from having an opportunity to adequately evaluate the program offered by Medford for the Student’s 2002-2003 school year is warranted.
Therefore, Medford will not be allowed to present anything other than a paper description of the program it offered the Student. Its witnesses will not be allowed to present any testimonial evidence regarding the day to day operation of said program.” Ruling on the Parent’s Emergency Motion for Individualized Educational Program, Placement Form, Observation and Referral and Medford Public Schools District’s Response to said Motion , BSEA # 02-0640 issued on July 15, 2002.
26
Weixel v. Board of Education of the City of New York , 287 F.3d 138 (2 nd Cir. 2002 ); Houston Independent School District v. Bobby R. , 200 F.3d 341 (5 th Cir. 2000); Ridgewood Board of Education v. NE for ME , 172 F.3d 238 (3 rd Cir. 1999); Walczak v. Florida Union Free School District , 142 F.3d 119 (2 nd Cir. 1998); Stockton by Stockton v. Barbour County Bd. of Educ., 25 IDELR 1076 (4 th Cir. 1997); MC v. Central Regional School District , 81 F.3d 389 (3 rd Cir. 1996), cert. denied 519 US 866 (1996). These cases are consistent with the IDEA requirement that the IEP confer meaningful benefit for the student and provide significant learning.
27
“(a) Any party to a hearing conducted pursuant to §§ 300.507 or 300.520-300.528, or an appeal conducted pursuant to § 300.510. has the right to-…Prohibit the introduction of any evidence at the hearing that has not been disclosed to that party at least 5 business days before the hearing.” 34 CFR § 300.509(a) (3).