COMMONWEALTH OF MASSACHUSETTS
Bureau of Special Education Appeals
In Re: North Adams Public Schools
BSEA#02-2554
DECISION
This decision is issued pursuant to M.G.L. c. 71B, ?, 30A, 20 U.S.C. § 1401 et seq ., 29 U.S.C. § 794 and the regulations promulgated thereunder. A hearing was held on the above-entitled matter on April 9 and 11, 2002, at the Springfield, MA., offices of Catuogno Court Reporting Services. Present for all or part of the proceeding were:
Parent
Mary Rowland Family Advocate
John Merselis Pine Cobble School
John Howland Psychiatrist
Dan Collyer Coordinator of Pupil Services,
North Adams
James Montepare Superintendent, North Adams
Donald Delmolino Counselor, Adams-Chesire
Regional School District
David Murphy Lawyer for Student
The official record of the hearing consists of: documents submitted by the Parent marked P-1 through P-13; documents submitted by North Adams marked S-1 through S-3; and approximately 8 hours of recorded oral testimony and argument. The Parties, through counsel, waived closing arguments on May 2, 2002, and the record closed on that date.
Summary of the Facts
The pertinent facts are not in dispute and may be briefly summarized:
1. The Student is a twelve year old seventh grader. In the spring of 2001, during her sixth grade year at Conte Middle School in North Adams, the Student began to experience significant psychological distress, including suicidal ideation. The Student was unable to focus on schoolwork or homework due to her feelings of anxiety, paranoia, and inadequacy. The Parent requested a special education evaluation in June, 2001. (Parent)
2. Throughout the Fall, 2001, the Student had substantial difficulty attending the 7 th grade at Conte Middle School. The special education director, Mr. Collyer, and the Parent, arranged modifications and supplements to the regular program to support the Student’s attendance, including: assigning the Student to one responsible adult; tutoring in school; a peer companion; staying in the classroom; and a flexible schedule. Nonetheless the Student was unable to go to or stay in school due to her own fears and preoccupations. She attended only 8 days of school during the Fall 2002 semester. (Parent; Collyer)
3. Jacqueline Stores, Ph.d., conducted a comprehensive psychoeducational evaluation of the Student in September and October, 2001, on behalf of the North Adams Public Schools. She found the Student to have both a learning disability and an emotional disability. To address the Student’s learning disability in the area of a scribe for note taking and test taking, a word processor, and direct remediation in the writing process. To address the Student’s emotional disability, Dr. Stores recommended placement in a new school with small classes and a small student body. That would minimize her contact with older and/or behaviorally disordered students. Dr. Stores noted that everyday stresses, particularly social stressors, triggered overwhelming, uncontrollable reactions for this Student that precipitated dangerous behaviors and departures from reality. (P-1) No other evaluations were conducted by the School. (Collyer)
4. In November, 2001, the Student experienced visual and auditory hallucinations and became increasingly difficult to manage. On November
3, 2001, the Student was hospitalized at the Child Stabilization Unit at Berkshire Medical Center. She was transferred to the secure latency age unit at Fransciscan Children’s Hospital where she remained until November 20, 2001. The Student’s treating psychiatrist at Fransciscan wrote that the Student had been diagnosed with Childhood Onset Bipolar Disorder and Attention Deficit Hyperactivity Disorder. He recommended that she be placed in a new school with a small student body and small class sizes, with little exposure to behaviorally disordered students, in order to promote her psychological health and ability to focus on learning. (P-2, 3; see also P-4)
5. John Howland, M.D., has been the Student’s community treating psychiatrist since the spring, 2001. He explained that the diagnosis of bipolar illness manifests in this Student, as a severe cluster of symptoms including; anxiety; worry; fragility; lability; immaturaty; aggression; suicidality; visual/auditory when not managed by medication, and visual/auditory hallucinations. He testified that the illness makes it difficult for the Student to attend, and to maintain focus. Because the mechanism for filtering, prioritizing, and modulating environmental stimuli is awry, trivial stimulus often precipitates significant reactions that are clearly out of proportion in the estimation of a reasonable person. The Student, for example, reacts to noise, movement and crowds with unremitting anxiety and uncontrollable mood shifts. Her illness prevents appropriate discrimination between real and perceived threats. Her reaction is the same. That reaction demands her complete attention and prevents learning.
Dr. Howland testified that, due to her psychological immaturity and impending adolescence, pyschotherapy is of little benefit at this time in managing the Student’s illness. Instead medication management and appropriate environment are the most significant aspects of her treatment. Dr. Howland stated that the setting, location, and size of school are therapeutic elements for the Student. She needs a small class in a small student body to minimize social and environmental stress. An appropriate educational placement would provide the Student with a controlled environment, consistency and stability of people, place and expectations. (Howland; P-11)
6. The Team first on November 19, 2001. The Team determined that the Student met the special education eligibility standards. The Team considered whether to return the Student to Conte Middle School, or to place her at CTP (an alternate school titled Community Treatment Program). The Parent thereafter observed CTP but found it to be inappropriate because the student body was mostly older males with behavioral issues and it offered only a half-day academic program. (Parent; Collyer) Dr. Stores had previously considered the CTP programs as a placement, but had rejected it for the same reasons. (see P-1)
7. The Team reconvened on November 26, 2001. The Team decided that neither CTP nor Conte Middle School would be appropriate for the Student. Mr. Collyer, the special education director, suggested enrollment in either the Florida or Clarksburg Elementary Schools. Both schools have small, self-contained grade level classes within a small elementary age rural, student body in close proximity to North Adams. The Parent agreed that either could be appropriate. The Team was rescheduled for December 4, 2001, to consider the Student’s application to both school districts. (Parent, Collyer)
8. On December 3, 2001, the Student began receiving one hour daily home tutoring services. (Collyer, Parent)
9. On December 4, 2001, Mr. Collyer telephoned the Parent to cancel the Team meeting and to relay the unwelcome news that neither Florida nor Clarksburg would accept the Student due to space issues. He suggested looking at Poet Seat, a temporary placement for students with significant emotional and behavioral disabilities located over one hour away in Greenfield. (Collyer,/Parent)
10. Mr. Collyer testified that he explored all possible educational options for the Student in November and December, 2001. After he had exhausted all the available alternative for small schools he turned to the Adams Memorial Middle School. He stated that Adams Memorial was a large public middle school in a large building with a 432 student population similar to the Conte Middle School in neighboring Adams, MA.
11. The December 14, 2001, Team included four teachers and the counselor from Adams Memorial. Other than the Parent, none of the Team members had met the Student. Mr. Collyer recalled that the Adams teachers expressed reservations about serving the Student, but stated that he would expect them to “step up” once she arrived in their classrooms. The Team discussed some modifications to the middle school program that might increase the chances for the Student to experience success. Among these were: sending an individual aide with the Student at all times, permitting early or late passing time between classrooms to avoid crowds; setting up a “check-in” system with the Student before she started; and placing her in small classes for some academics. The consensus of the team was that the Adams Memorial Middle School was the only placement available for the Student. (Parent, Collyer, Delmolino)
12. On December 14, 2001, the School proposed an IEP calling for the Student’s placement in a regular middle school program with a daily 45 minute period of academic support to address the Student’s written language needs. Although the IEP designates Conte as the middle school, the Parties agreed at the hearing that everyone understood the IEP to propose a placement at the Adams Memorial Middle School. (P-5, S-2) the IEP provides no services to address the Student’s emotional/psychological needs. The IEP does not indicate that the Student will be assigned an individual aide. Nor does it provide for scheduling, transitioning, or safety modifications. (P-5, S-2; Collyer) Mr. Collyer) Mr. Collyer testified that she was unable to convince the Student to even visit Adams. She rejected the proposed IEP on December 19, 2001. (Collyer; Parent; S-2, P-5)
13. Don Delmolino, the school adjustment counselor at Adams Memorial Middle School for thirty-three years, testified that Adams has approximately 420 students in grades 6, 7 and 8. The seventh grade moves between classes on one floor, and eats lunch all together in the cafeteria. Typically academic classes range in size from 20-24 students. Special education support classes have a 4 or 5 student to one teacher ratio. Students physically change classroom teachers and class groups every 45 minutes or so. There are three school adjustment counselors and three special education teachers on staff. There is no regular or scheduled therapeutic input for the Student, but she would be free to contact any counselor or teacher or nurse if she felt it necessary. The School has a paging system to summon help for the Student. Help in the regard would be the police or the crisis team. Mr. Delmolino testified that Adams Memorial could provide the Student with an inclusion program that would meet her educational “ and possibly” her psychological needs. (Delmolino)
14. Mr. Collyer testified that he agreed with the recommendations for small school and class size for the Student. His first choice placements for the Student were all quite small: CTP (27 students); Florida (14-17 students). He characterized the Adams Memorial School as a large middle school similar to Conte. He stated that although Adams Memorial was a much larger environment it could work for the Student with appropriate modifications such as scheduling to avoid crowded transitions, an individual aide, etc. He admitted that the IEP document itself does not contain any of the modifications suggested by the Team, and that Adams Memorial without modifications would not be the kind of therapeutic or nurturing environment the Student needed.
15. John Merselis, Head of the Upper School an Director of Admissions, described the program at the Pine Cobble School. Pine Cobble is an independent private school serving 149 students in preschool through 9 th grade. It is not a Massachusetts approved special education school. Although some of the teachers hold state certificates in special education, and some of the students have IEPs developed by their resident school district, Pine Cobble does not hold itself out as providing special education to any student.
Mr. Merselis testified that Pine Cobble is a small, supportive, nurturing, environment in which the students receive constant adult supervision and guidance. Each student gets individual attention from at least one teacher. All academic instruction is broken down into small, accomplishable, “check-affable” tasks. Though academic groupings are hetergenuous assignments and instructional techniques are modified for each student. There are no psychologists or adjustment counselors on staff.
The 7 th grade has 16 students. All take english, U.S. history, earth science, pre-algebra, foreign language, and study skills. The school eats lunch altogether at multi-age assigned tables with adult supervision. Sports is held after school, and participation is mandatory. Pine Cobble emphasizes growth in all aspects of the child: academic, physical, social, artistic, and ethical.
The Student visited Pine Cobble twice in December, 2001, before being considered for admission. She was admitted “diagnostically” to ensure that Pine Cobble could meet her needs. Her teacher’s report that though the Student has significant academic “gaps” she is an enthusiastic participant in school activities, keeps up with academic demands and fits in socially. There have been no behavioral incidents since she began school in January, 2002.
The Student follows a modified 7 th grade academic program instead of a foreign language. The Student receives daily academic support with two other students and a teacher with special education credentials to accommodate the Student’s dysgraphia. The Student is permitted extra time and oral responses on tests, the use of word processing and alpha smart programs, and modified assignments, e.g.. She was required to act in play instead of writing a script. No specific modifications have been made to accommodate the Student’s bipolar illness. Mr. Merselis believes the supportive environment and significant teacher involvement at Pine Cobble keep symptoms in check.
Mr. Merselis pointed out that the Student still has significant academic weaknesses due to her learning disability and prior nonattendance. He recommended that she attend summer school for remedial math and reading as well as structured social activities. (Merselis; see also Parent; P-8, 9, 10)
16. Mr. Collyer testified that Pine Cobble meets the Student’s current
educational needs. Were Pine Cobble an approved special education program, and therefore subject to IDEA responsibilities, Mr. Collyer would approve of the Student’s placement there. (Collyer)
Findings and Conclusions
There is no dispute that this Student has special learning needs and is entitled to a free, appropriate public education pursuant to U.S.C § 1401 et seq ., and M.G.L. c. 71B. The only issue is where that education may be delivered. The Parent argues that the student, because of her disability, requires a small, nurturing, educational environment in order to have access to any education. Pine Cobble is the only available school within reasonable geographic proximity that offers the small class size, small student body, recommended by all evaluators. The School, on the other hand, argues that it exhausted all available appropriate options eligible for public funding, and that Adams Memorial, while not ideal, could be appropriate for the Student. After careful consideration of all the evidence developed in this matter, and of the arguments of counsel for both parties, it is my determination that North Adams failed to offer the Student an IEP that was reasonably calculated to provide a free appropriate public education.1 I further find that Pine Cobble School offers the Student the type of small, supportive educational environment universally recommended by the Student’s evaluators and, therefore, that the Parent’s unilateral placement was justified. My reasoning is set out below:
Every evaluation of this Student recommended a small, nurturing educational environment. Every treating psychiatrist stated that the Student would be unlikely to participate in her education outside of a small, supportive environment. There were no contrary recommendations or observations in the record. North Adams, through its special education director, accepted the recommendations. Mr. Collyer testified that his first priority in looking for an appropriate school for the Student was size. Only when no public school meeting the size requirement could be located did Mr. Collyer turn to a “large” school. I find, based on the unrejected evidence in the record, that a small, nurturing environment, was the single most critical element of an appropriate educational placement for this Student. By designating the Adams Memorial Middle School, the IEP developed by North Adams does not offer this Student the type of environment recommended by all evaluators, service providers, the Student’s parents, and the special education director. The IEP is per se , therefore, inappropriate.
The IEP has other flaws. It was late. 603 (0) C.M.R 28.05. It was developed by an incomplete Team. 34 C.F.R 300.344 and 300. 552. It failed to properly reflect the Team discussion on modifications necessary to the regular program and environment at Adams Memorial to render the placement even minimally accessible to the Student. 34 C.F.R. 300.346, 347. (Parent, Collyer) It was written in advance of the Team meeting. (Collyer)
The testimony of all the witnesses at the hearing, in particular the Parent and Mr. Collyer, both of whom I found to be thoughtful and candid, demonstrated that this Student’s educational needs could not be addressed in the public programs available to North Adams in the Fall and Winter 2001-2002. The designation of the Adams Memorial Middle School as the Student’s educational placement was clearly made solely because it was nearby and had space available. Not one witness testified that Adams was an appropriate placement for Student, only that it could be. (Collyer, Delmolino, Parent)
On the contrary, the Pine Cobble School, though not approved as a special education site, provides the Student with exactly the type of instructional support and modifications in the type of small, nurturing environment recommended by the Student’s evaluators, service providers, and Parent. That it addresses the Student’s need for safety, security, and stability is apparent in assessing her behavioral and academic response to the program. Therefore, I am persuaded that the Parent took appropriate self-help action in locating an educational environment that met the special needs of her daughter as identified by the School, other expert evaluators, and securing the Student’s placement there. That Pine Cobble is not approved by the State to provide special education is not a bar to reimbursement of parental expenses associated with the Student’s placement there when the action is justified and results in appropriate educational services to the Student. Mathew J. v. Massachusetts Department of Education , 4 MSER 17 (1998); Doe v. West Boylston , 4 MSER 149 (1998).
Furthermore, I note that North Adams failed to adhere to regulatory time frames in developing an IEP and providing appropriate educational services for this Student. Despite an initial request for special education evaluation made in June 2001, and significant “truancy” in the Fall 2001, no IEP was proposed until December 14, 2001. By any count, the delay in service provision far exceeds the maximum allowable 45-day period. 603 C.M.R. 28.05(1). The undisputed evidence shows that the Student received little educational benefit from the home tutoring. (Collyer, Merselis, Parent) The effects of the extended absence and the lack of appropriate instruction on the Student’s existing learning disability has resulted in significant academic gaps which require prompt remediation. (Merselis)
These gaps are attributable, at least in part, to the failure of North Adams to adhere to appropriate time lines in the development of an IEP and the provision of home-based educational services. Therefore, I find that the Student is entitled to compensatory educational services to address those deficits. Murphy v. Timberlane Regional School District , 22 F.3d 1186 (1 st Cir. 1990); Roland M. v. Concord School Committee , 910 F.2d 983 (1 st Cir. 1990)
ORDER
The 2001-2002 IEP proposed by the North Adams Public Schools is not reasonably calculated to ensure that the Student receives a free, appropriate public education in the least restrictive setting. The Parent justifiably took self-help action in locating and securing an appropriate educational environment for the Student. The Pine Cobble School offers a program that is tailored to meet the unique educational needs of the Student in the type of environment recommended by all evaluators. There the School shall:
1. Reimburse the Parent for all expenses associated with the Student’s unilateral placement at the Pine Cobble School, beginning in February 2002;
2. Arrange for an appropriate summer learning program for the Student as compensatory services for its failure to adhere to the procedural requirements of M.G.L., c. 71B and 20 U.S.C. section 1401 et seq .
3. Convene a Team meeting prior to the end of 2001-2002 school year to develop an IEP reflecting this decision; and
4. Explore mechanisms for public funding of private schools as “sole source” options with the Department of Education.
By the Hearing Officer,
____________________________
Lindsay Byrne, Hearing Officer
1
Because the IEP at issue here was developed, and rejected, in 2001, the prior Massachusetts standard of “maximum feasible benefit” may be more applicable. Nonetheless, the parties argued the appropriateness of the school’s actions and the proposed IEP according to the federal (now state) standard of “FAPE”. Since I find that the proposed IEP did not mean the “lesser” FAPE standard, there is no need to engage in further analysis.