COMMONWEALTH OF MASSACHUSETTS
SPECIAL EDUCATION APPEALS
In Re: Northbridge Public Schools
BSEA #02-3722
DECISION
This decision1 is issued pursuant to Individuals with Disabilities Education Act (IDEA), 20 USC Sec. 1400 et seq ., Section 504 of the Rehabilitation Act, 29 USC Sec. 794; the Massachusetts special education statute “Chapter 766”; MGL c. 71B; the Massachusetts Administrative Procedures Act, MGL c. 30A; and the regulations promulgated under these statutes.
On April 9, 2002, Parents filed a hearing request with the Bureau of Special Education Appeals (BSEA). The BSEA assigned an automatic hearing date of April 30, 2002, which was postponed at the joint request of the parties. Telephone conferences with the parties and Hearing Officer were held on May 10 and May 14, 2002. A hearing was held on June 3, 4, 5 and 7, 2002 at the BSEA in Malden, MA before Sara Berman, Hearing Officer. Written closing arguments and responses thereto were filed on July 22, 2002, and the record closed on that date. Those present for all or part of the proceeding were:
Student’s mother
Beth Gonyea Northbridge Public Schools (Northbridge or School)
Pamela Sanderson Director of Special Education, Northbridge
Diane Isabelle Student’s first grade aide, Northbridge
Elizabeth Abbondanza Student’s first grade teacher, Northbridge
Dr. Deborah Plaud Behavioral specialist, Northbridge
Sarah Gauthier* Student’s regular education teacher, Grade 2 inclusion class
Cynthia Cioffi * Student’s special education teacher, grade 2 inclusion class
Sandra Phillips Director, Whitin Community Center Child Care Center
Karen Bresnahan, M.D. Developmental/Behavioral Pediatrician, Center for Children with Special Needs (CCSN)
Lois Carra, Ph.D.* Neuropsychologist, CCSN
Janine Solomon, Esq. Attorney for Parent
Luisa Rosen-Artze, Esq. Attorney for Parent
Rosann DiPietro, Esq. Attorney for Northbridge Public Schools
Maryellen Coughlin Court Reporter, Catuogno Court Reporting Services
*Testified by speaker telephone
The official record of the hearing consists of Joint Exhibits J-1 through J-39; Parents’ Exhibits P-1 through P-14; and School’s Exhibits S-1 through S-25, and approximately 13 hours of oral testimony and argument that was recorded both by audiotape and by a certified court reporter/stenographer. The parties filed written closing arguments and responses on or before July 22, 2002, and the record closed on that day.
ISSUES PRESENTED
· Did the Northbridge Public Schools (Northbridge) deny Student a free, appropriate public education in the least restrictive environment (FAPE) during the school years 1999-2000, 2000-01, and 2001-02, because it did not provide him with extended school (ESD) services?
· Did Northbridge deny Student FAPE by not providing Student with extended school year (ESY) services during the summers of 2001 and 2002?
· Did Northbridge deny Student FAPE by not guaranteeing the presence of a 1:1 aide in his IEP for 2001-2002?
· If so, is Parent is entitled to compensatory relief?
POSITION OF PARENT
Student has a complex combination of disabilities including ADHD, bipolar disorder, and Asperger’s Syndrome which lead to serious social and behavioral problems. Student’s behavior in school has improved somewhat over the past three years in that he can function there with much structure and support. Some of this improvement is due to medication. In addition, the school is able to manage and contain Student’s behavior with close supervision and structure. However, Student has not received the intense instruction and practice he needs to generalize social and behavioral skills. As a result, he still is unable to function behaviorally outside of school without tight supervision and structure, demonstrating that he has not made appropriate progress in this area. Because Student has not learned to generalize behavioral and social skills, his access to community settings (including child care programs), his ability to have friends, and his progress to independence are limited.
The CCSN, which has evaluated and treated Student since approximately 1998, has consistently recommended ESD and ESY for instruction and practice in generalizing social skills. However, Northbridge has refused to provide Student with ESD and ESY services, and thereby has deprived Student of FAPE such that he is entitled to compensatory services. Finally, for 2001-2002, Northbridge has deprived Student of FAPE with an IEP that provides for an aide “as needed” instead of guaranteeing a 1:1 aide.
POSITION OF NORTHBRIDGE PUBLIC SCHOOLS
At all relevant times, Northbridge has provided Student with a FAPE. Student has received intense, individualized services to address his social and behavioral deficits, including a co-taught inclusion classroom, a 1:1 aide, OT, a behavior intervention plan, structured peer interaction, social skills instruction, daily home-school communication, and behavioral consultation to Mother. These services have enabled Student to be educated in an inclusion classroom, with full access to the regular curriculum. Student has benefited from Northbridge’s program. Academically he functions at grade level or better. Additionally, he has made steady progress in the social, emotional and behavioral domains, meeting or progressing towards agreed-upon IEP goals, all without an ESD or ESY program. In any event, Student would be overstressed by additional structured programming. Contrary to Mother’s assertion, Student is not simply being “managed” in school but is being taught positive social and behavioral skills. He recently has started to use these skills independently. Further, Student has not regressed during school year or summer vacation breaks or weekends, and so he has no entitlement to ESY services. In any event, Student had problems in childcare placements because Parent chose inappropriate settings for a child with Student’s profile, but not because student requires ESD or ESY services. Finally, Mother’s claim for 1999-2000 is time-barred. Also, Mother accepted the IEP for SY 2000-2001, and, therefore, is not entitled to compensatory services for that time period.
FINDINGS OF FACT
Based on the testimony of witnesses at the hearing and the documents received as exhibits, I make the following findings of fact:
· Student is nine years old (DOB 6/20/94) and lives with his mother in Whitinsville, MA, which is within the Northbridge school district. At all relevant times, Student has been enrolled in the Northbridge Primary School. (Mother, T-42, 43.)
· Student is a bright, verbal, likeable child, who functions at least at grade level academically, reads very well, and loves science. Student has disabilities that interfere with his ability to function behaviorally and socially, both in and out of school. Student’s diagnoses, which have evolved since he was about three years old, now include ADHD, Asperger’s disorder,2 and bipolar disorder, and some features of oppositional-defiant disorder (ODD). Student also has sensory-motor problems, although these are not the primary focus of this appeal. Student is sensitive to noise, and sometimes becomes tense when other children are near him, e.g. , in a crowded lunch line. He has problems with affective regulation, i.e. , he may react more intensely than a typical child to a situation. Student has trouble perceiving and carrying out social interactions even though he has strong language skills. Student sometimes becomes overfocused on another child or perseverates on a topic or activity and has problems changing agendas or following another person’s agenda instead of his own. Student has been treated with medications for the past several years, which have helped regulate his mood and reduce his impulsivity and edginess. He also has responded positively to behavior interventions, but still has behavioral and social difficulties, especially in less structured situations. (Mother, Tr. I, pp. 42-47; Bresnahan, Tr. III, pp. 173-177; Carra, Tr. II, pp. 168-170; Plaud, Tr. III, pp. 80-81; 163-168; Cioffi, Tr. IV, p.p. 69-73; Ex. P-1—3; S-1—4)
· As a result of his disabilities, Student has long history of significant behavioral problems. These include hyperactive and impulsive behavior, noncompliance with instructions, difficulty staying on task, mood problems ( e.g. , tantrums, crying and screaming) and, at times, self-injurious and aggressive behavior, including hitting or banging his own, throwing objects at, threatening, hitting or kicking others, especially when he is frustrated. ( Id. also, see, e.g. , Ex. P-1—3, 5, 7, 8, 9; S-1—4, 15—18, 20) Student has reduced social skills, and problems understanding and carrying out social interactions. Student wants friends, but his behavior alienates other children. Student is significantly calmer, better able to control himself, and more responsive to adult efforts to help him manage his behavior than he was when he was younger and is beginning to apply behavioral skills he has learned. (Plaud, Tr. III, pp. 94-101; Gauthier, Tr. IV., pp. 43-47) The parties agree, however, that Student still needs special education services to address behavioral and social needs.
· Student has always done very well academically, and academics are not at issue in this appeal.3 However, the behavioral and social issues stemming from Student’s disabilities continue to require intervention at school and significantly impair his functioning at home, and in the community. His behavior alienates other children in both in and out of school, and has made it difficult for Mother to arrange social interaction with other children in the community. (Mother, Tr. I, pp. 56-57) His tantrums, shouting, crying, disruption and sometimes aggressive behavior have led to his being thrown out of numerous day care and after school programs. (Mother, Tr. I, pp. 64-70;
· The record demonstrates that Northbridge and Mother, usually working as a team, have provided or obtained many services and accommodations for Student, including medication and medical monitoring, school-based and private evaluations, individualized instruction, behavioral intervention, related services (OT, speech/language), parent consultation and communication, and opportunities for structured social activities within school and at home. The record also shows, and the parties do not dispute, that Student has responded positively to these interventions over the years, and has made social and behavioral progress, but that he continues to have significant needs in this area.4
· Before Student started in public school, Parent placed him in several childcare settings, mostly family daycare programs. However, providers repeatedly asked Parent to remove him because they could not manage his behavior. In 1997, when Student was three years old, he briefly attended Cherub’s Haven, a small day-care center. In June 1997, Cherub’s Haven terminated Student because he was repeatedly hitting and kicking other children, as well as hitting and banging his own head when frustrated. (Mother, Tr. I, p. 67; P-6) Mother had previously removed him from several family day care and babysitting situations because Student seemed unhappy, even when he was an infant. Id.
· After Student left Cherub’s Haven, Mother placed him in a family day care setting, where he was asked to leave after a few months because of his behavior, and then to childcare program at the Whitin Community Center Child-Care Center in Whitinsville (WCC Center). (Mother, Tr. I, pp. 29-31) The WCC Center which provides daycare, preschool, and after-school programs to children from 2.9 years old through fifth grade. Student was enrolled in a program for three and four year olds. The staff-child ratio is approximately 5 to 40. This program was based on a “centers” model, i.e. , small groups of children play at activity centers that are set up around the classroom. A child’s day consists of play at the center of his/her choice, interspersed with larger group activities. The Whitin Center has chosen this program design because it is similar to that of the Northbridge kindergarten programs that children will enter after “graduating” from the Center. (Phillips, Tr. III, pp. 14-17)
· While enrolled at the WCC Center as a three-year-old, Student presented as a very likeable and verbal child, who was also easily frustrated and needed much individual attention. When frustrated, Student had severe tantrums, and would bang or hit his own head, or, if angry with another child, would hit or kick the child. He spent much time calming down in the office of the director, Ms. Sandra Phillips. (Phillips, Tr. III, pp. 22-23; P-1)
· The WCC Center determined that its program was too large for Student. (He was in a class of 20 with two teachers) and that Student needed to be in a 1:1 caregiver situation. (P-7) In a letter dated October 29, 1997, the WCC Center terminated Student effective November 26, 1997. The termination letter described some behavioral incidents and urged Mother to find an in-home, 1:1 caregiver. (P-7; Phillips, Tr. III, p. 22-23)
· Around this time, (late fall 1997) Mother and the WCC Center referred Student to Northbridge for a Chapter 766 evaluation. One concern leading to the referral was that Student had been asked to leave Cherub’s Haven and WCC Center because of his behavior. (P-1, P-7, Phillips; Tr. III, p. 19) (Neither party submitted Northbridge’s assessments.)
· In the spring of 1998,5 when Student was just under four years old, his parents had him evaluated at the Center for Children with Special Needs at the Floating Hospital for Children, New England Medical Center (CCSN) because of concerns about behavior, high activity level, impulsivity and temper tantrums. Student was assessed by a developmental/behavioral pediatrician (Karen Bresnahan, M.D.) and a neuropsychologist (Lois Carra, Ph.D). (P-1, P-2) At that time, Drs. Bresnahan and Carra described Student as a bright child, with stronger linguistic than visual-spatial skills. At hearing, both testified that Student’s mood was very changeable and “disregulated.” (Carra, Tr. II, p. 169; Bresnahan, Tr. III., p. 173-174) Dr. Bresnahan diagnosed him with ADHD, oppositional-defiant disorder, and a possible mood disorder, and began treating him with medication. (P-2; Bresnahan, Tr. III, pp. 174-176) She and Dr. Carra also recommended including a full-day, 12 month placement in a small, structured classroom with a strong behavior management program, a consistent and therapeutic environment, on-site crisis management, regular consultation between staff, behavioral consultant and parents, and staff with experience teaching children with emotional and behavioral disorders. (P-1, P-2) The purpose of the program would be to start early to “work on his skills for interacting with other children and with controlling his behavior. (Carra, Tr. II, p. 172)
· Dr. Carra’s 1998 report stated that Student would regress if this programming did not continue over the summer. (P-2) When asked about this statement at the hearing, Dr. Carra testified that Student reverted to uncontrolled behavior when he went home from preschool at the end of the day, and stated “…I consider it regression, going back to less functional behavior, and we thought that would happen even more so if he wasn’t in a structured program over the summer.” (Carra, Tr. II, p. 173)
· In September 1998, Northbridge placed Student diagnostically in a full day integrated preschool. (P-1, Mother, Tr. I, p. 73-81) While there, Student received behavioral consultation from the Groden Center, a 1:1 aide, a structured behavior program, and a relaxation program in addition to his classroom placement. ( Id. ) Student began taking medication after the school year started. (P-1, Bresnahan, Tr. III, p. 174)
· In November 1998, at the end of the diagnostic period, the Northbridge TEAM issued an IEP for November 1998-June 1999. The IEP provided for mornings in the same integrated preschool and afternoons in a developmental language class, and recommended continuing the behavioral plan and consultation services that had been in place during the diagnostic period. (J-1) The social and behavioral goals in this IEP were to use more appropriate behavior, act appropriately during school time, demonstrate effective interpersonal relationships, and follow class rules. ( Id. )
· This IEP did not call for an extended school day or year, but did provide for a May 1999 TEAM meeting “to discuss [Student’s] summer program…” (J-1) Parent accepted this IEP in full on January 19, 1999, and Student attended the program for the rest of the 1998-99 school year. (J-1, Mother, Tr. I, pp. 74-75)
· Student initially had severe behavioral problems in the preschool, including hitting and fighting, inability to sit or focus, running around the room, yelling, etc. (P-1; S-1, 2) Once he began taking medication, and especially after his medication regimen had been properly adjusted, he was calmer and his behavior improved so that he was able to participate in the program. (S-1, S-2) (J-1, S-1, 2)
· During summer 1999, Student started attending a summer program where most of the children with disabilities brought aides with them6 According to Mother, the summer program “didn’t keep him because he didn’t have an aid[e] and they couldn’t handle him.” (Mother, Tr. II., p. 76) Instead, Student was at home with various family members caring for him while Mother worked. Mother felt that Student’s behavior was “very, very bad” during that time. (Mother, Tr. II., p. 77)
· During 1999-2000, Student attended a Northbridge inclusion kindergarten under an IEP first issued in June 1999 and amended in December 1999. (J-1, J-2) Services included an aide and behavioral plan, which is discussed in more detail below. The kindergarten IEP issued in December 1999 listed essentially the same areas of need as the prior IEP, i.e. , “delays in interpersonal relationships, emotional developmental delay, difficulty with receptive language and motor planning, behavior is unpredictable, sensory processing, difficulty controlling behavior, can become physically and verbally aggressive.” (J-2) This IEP also contained similar social/behavioral goals as the previous IEP, i.e. , “Given social support by teacher, school [counselor] and home, [Student] will learn and generalize appropriate behavior in varying situations…learn to use his receptive language to maintain behavior and interpersonal relationships.” Id. The IEP modified the discipline code, stating “due to [Student’s] diagnosis and extreme behavioral disabilities, he is assisted by an aide and follows a scheduled day with agreed upon contingencies and reinforcements.” Id. In January 2000, on the IEP signature page, Mother checked the response box indicating that she accepted the IEP in full and also wrote a note on the signature page stating . “…I would like to discuss [Student’s] summer program to avoid summer delay. Part of the 12 mths. School year.” (J-2; Mother, Tr. I, p. 82)
· Student had behavior problems in kindergarten, including non-compliance and aggression. (Plaud, Tr. II, p. 66-68; S-20). In around February 2000, Dr. Deborah Plaud, Northbridge’s behavioral specialist, conducted a functional behavioral assessment consisting of classroom observations and teacher interviews. ( Id. ) On February 29, 2000, Dr. Plaud issued a report stating that Student used inappropriate behavior (non-compliance, inappropriate social interaction, a tantrum and self-injury) when he was required to perform a non-preferred task, to make transitions, when a request was denied, when he had to wait, or was redirected. The report further stated:
[I]t is critical that intervention directed at decreasing problem behaviors be initiated at this time. [Student’s] pattern of interaction with others needs to be gradually altered. This will likely need to occur both at home as well as at school. The focus of intervention should be on gradually shaping more appropriate behavior and increasing compliance…Firm limits will need to be placed on [Student’s] behavior. It is to be expected that Student will initially react with protest…[M]uch patience will be needed to give this approach a fair opportunity to be successful…This is not likely to be an easy process and will require well trained staff willing to take on the challenge of implementing a detailed behavior management plan.” (S-20). Dr. Plaud recommended a comprehensive behavior management plan with frequent reinforcement for absence of problem behaviors and presence of desired alternatives, planned strategies for responding to problem behaviors, and clear expectations. Dr. Plaud stated that an expert in behavior management should develop and monitor the plan, which would need to be developed with trial and error. (S-20) The report also recommended teaching strategies for stress reduction, compliance training, relaxation training, holding Student accountable for his behavior, frequent choices, compliance training, more detailed assessment of Student’s social skills and anger management deficits. Finally, the report recommended a one-to-one aide and consistent follow- through at home. (S-20)
· On March 8, 2000, pursuant to the recommendations referred to above, Dr. Plaud developed a behavior intervention plan. (J-38) The problem behaviors targeted were noncompliance (failure to comply with adult’s request after a reminder and count to 3), inappropriate socials (rude comments, sticking out tongue, raising his voice angrily, verbally disrupting a group and inappropriate noises; sometimes with a strong emotional affect), 3) aggression (purposeful hitting, kicking, punching, or throwing objects, or threats and attempts to do so) and 4) self-injurious behavior (hitting himself in the head-described as mild in intensity). (J-38) Desired alternative behaviors included taking a deep breath to relax, using positive coping self-statements, asking for a break, and learning self-monitoring, appropriate skills, and anger management. Interventions to achieve these behaviors included structured relaxation training, cognitive picture rehearsal, behavior rule cards, social skills instruction, and “hassle logs.” The plan described strategies to reinforce desired behaviors as well as to prevent and respond to targeted behaviors. All staff were to be responsible for implementing the plan, and the family could contact Dr. Plaud for consultation. Dr. Plaud offered to consult with Mother twice monthly on helping Student generalize new skills. (Plaud, Tr. III, p. 69-71) Dr. Plaud met with Mother approximately 4 or 5 times between March 2000 and the end of the 2000-01 kindergarten school year. ( Id. , p. 72).
· Dr. Plaud’s general approach was to identify antecedents to problem behavior and teach Student alternatives. The strategy was to manage behavior, then but then to address the skill deficits that led to the behavior via social skills training, anger management training, and compliance training. ( Id. , p. 69)
· On May 31, 2000, Northbridge amended the 1999-2000 IEP by adding a summer program consisting of four half-days per week for 5 weeks, “to ensure continued progress in social and behavioral skills.” (J-3) Student attended this program, which was housed at the Aldrich School, accompanied by a 1:1 aide. Id. Neither party submitted records of Student’s time in the Aldrich summer program. Mother believed that Student was getting some of what he needed at the summer program (although she felt that the other children were less verbal than Student and thus not ideal language models), and was calmer when he came home because of the time in the structured setting. He had mixed success during the day, according to Mother. (Mother, Tr. I 90-92; P-13) In an August 30, 2000 note to Diane Isabelle, Student’s classroom aide for the 2000-01, Mother stated: “[h]e had a really good summer lots of hard work and plenty social contact… (J-10)
· On June 2, 2000, also as a result of the May 31 meeting, Northbridge issued an IEP for first grade (SY 2000-01) that identified the same areas of need and continued the social/behavioral goals and inclusion classroom placement of the preschool and kindergarten IEPs. (J-4) The first grade IEP also provided for ongoing consultation by Dr. Plaud to Student’s teachers and Parent consultation upon request. Student continued to have an aide and agreed-upon contingency behavioral plan reflected as a modification of the discipline code. ( Id. ) The 2000-01 first grade IEP did not provide for an extended school day or year. Mother accepted this IEP in full on June 13, 2001. (J-4) Mother testified that she accepted the IEP because she thought that the TEAM had assured her that Student would have a summer program that would continue his regular school year programming. (Mother, Tr. I, p. 92-93) The record contains no further testimony on what if anything Northbridge had said to Mother on ESY or ESD programming for 2000-01. There is no record evidence that Northbridge issued a written notice that it was discontinuing summer programming.
· The first grade inclusion class was co-taught by Ms. Abbondanza (special education) and Ms. Juges (regular education). Ms. Abbondanza was responsible for implementing Student’s social/behavioral goals and objectives either herself or via the aide, Dianne Isabelle. For academics, Student was grouped with the regular education students taught by Ms. Juges and his aide, Ms. Isabelle, assisted him with focusing on his work and staying on task. (Abbondanza, Tr. III, p.138-140; Isabelle, Tr. II, p. 113 ) Ms Abbondanza and the aide used a rule card to record desired behavior in targeted areas (“kind words and gestures, keeping safe hands and following instructions”) at 30 minute intervals, and Ms. Abbondanza provided daily one-on-one instruction in social skills using topics that Dr. Plaud had suggested. (Abbondanza, Tr. II, p. 140—142, 145)
· In September 2000, at the start of first grade, Dr. Plaud updated the March 2000 behavior plan. (J-8) The updated plan was similar to the previous one, but eliminated self-injury as a targeted behavior and added stress inoculation training and compliance training to the list of interventions. This plan also offered parent consultation and in-home training. Mother accepted this behavior plan (J-8)
· In September 2000, Mother found that Student’s behavior had improved enough that she could take him to a Bible study class and sometimes send him to a children’s session. Previously, she and Student’s father had to keep Student with them during Bible study, and could not send him to the children’s class, or could not bring him at all. (J-10; Mother, Tr. II, pp. 93-94 )
· Student also seemed to do well in school in October 2000. His aide went everywhere with him in school. (J-9, J-10) According to notes in the home-school communication log at this time, Student spent brief periods with a babysitter before and after school. In mid-October, Mother reported to the school that Student had had a friend to watch a video, closely supervised by Mother. (J-10) and that he continued to attend Bible study with Mother about once per week. (J-10)
· During October 2000 Student sometimes played T-ball. He had mixed success with that activity in that he sometimes did well and other times cried when he could not hit the ball. (J-10) In a communication note dated 11/14/00, Mother stated: “I am quite concern[ed] that [Student] is excluded from all the extended social and sport activities held at the school due to his disability. I have tried to reach Dr. Plaud all last week and was unsuccessful…The T Ball that [Student] attended last session was so difficult for him at the beginning and he did very well at the end. I would think it would have been supported since he does not have much peer social activities after 3PM.” (J-10).
· On November 28, 2000, the TEAM met because Student was having outbursts and sometimes refused to work. (P-12). The TEAM discussed an ESD for Student and decided he did not need one. (P-12; Mother, Tr. I, p. 102) There is no record evidence of the basis for the TEAM’s decision.
· On December 4, 2000, at Mother’s request, Dr. Bresnahan wrote a letter, which Mother gave to the TEAM, stating that Student had bipolar disorder and ADHD, and presented with “perseverative behaviors, pragmatic language delays, and social interaction difficulties that are suggestive of…Asperger’s disorder.” In this letter, Dr. Bresnahan recommended a full-day, full-year therapeutic program to “promote the development of social interaction skills, behavioral self-regulation and academic skills…” as well as “a structured, supervised, and therapeutic after school program that provides adult facilitation of peer interactions and addresses the development of age appropriate social and play skills.” (P-5) The TEAM did not reconvene after receiving this letter.
· Also on December 4, 2000 Mother wrote a letter to Dr. Plaud, that stated: “At the November 28, 2000 meeting [an] extended Day Program was discussed…You and I had discussed an extended day program and other alternatives because we agreed he needed it.” (P-12)
· On December 5, 2000, Mother wrote a letter to the TEAM chairperson, Catherine Robinson, reiterating her request for a therapeutic extended day program:
An Extended Day Program with a trained Aide in Behavioral Management technique…who would be implementing social goals from his IEP and with age appropriate peers and activities should be paid for by the school and implemented in his IEP. (P-13)
This letter also stated that stating that while Mother was willing to pay for daycare, she wanted Northbridge to be responsible for providing an extended day program with an aide trained in behavioral management. (P-13, Mother, Tr. I., p. 104)
· On January 5, 2001, the TEAM amended the IEP by adding behavioral data collection by teachers and a home-school communication log.7 On February 8, 2001 Mother partially rejected the amendment, in writing, stating “…summer program for Year 2001 discussed during the last Team Meeting was not mentioned or included in the IEP Amendment,” and “…[Student’s] school day ends at approximately 5 p.m. (varies with scheduled activities). A supervised, structured, after school program is needed with the support of the Northbridge Public School to help coordinate, and address Social Skills and other behavioral issues.” (J-5).
· In January 2001, the communication log reflects behavioral problems. In a note dated January 8, 2001, the aide stated “…like Dr. Deb [Plaud] said the behavior is probably because of the vacation and lack of routine…” (J-10) On January 9, the aide explained, in response to Mother’s query, “I was referring to the transition back to school after a week vacation…” On January 11, Mother wrote “…I am talking with [Student] about respecting adults and following rules. I was very firm with him last night regarding that kind of behavior. I will continue to talk with him and I will be meeting with Dr. Deb next Wednesday …[for] ideas on this continuing behavior. I’m concerned with the tone of this behavior and I want him to follow the rules and be respectful to his teachers…” On January 18, Student was rude to his aide. On January 22, 2001, Student complained about his day-care provider. (J-10)
· On the whole, Ms. Abbondanza and Ms. Isabelle felt that Student made progress managing his behavior in school over the course of first grade. For example, Ms. Abbondanza found that at the beginning of the year, Student was frequently off task, had crying sessions, often was non-compliant, shouted, was demanding. (Abbondanza, Tr. II, p. 147) Over the year, Student’s self-management skills improved, and by the end of first grade, he was getting almost no time-outs and would stop off-task behavior if a teacher or aide called his name or raised one finger. Additionally, Student improved his ability to relate to peers. (Tr. II, pp. 146-148) Ms. Abbondanza did not observe Student outside of school, and, at the time of hearing, did not recall much information from Mother on his behavior outside of school. (Tr. II, p. 155-156)
· Despite his improvement in school during 2000-01, Student’s behavioral issues impaired his ability to function outside of that setting. Parent placed him in approximately three different after-school family day care homes during the first months of the 2000-01 school year. Each provider asked Mother to remove Student because he was posing a danger to other children, or required too much attention, and they could not handle his behavior. Between day care placements, Student was at home while Mother worked, with relatives coming in to supervise him. The relatives found it hard to manage Student. (Mother, Tr. I, p. 94).
· In February 2001, Mother enrolled Student at the WCC Center’s after school program and also arranged for him to enter its summer program when school ended for the year. (As discussed above, Student had attended the WCC Center’s childcare program when he was three, and had been thrown out for unmanageable behavior.) Mother re-enrolled Student even though he had been asked to leave before (1) because she inferred from the TEAM’s conclusion that Student did not need ESD or ESY services that therefore he could function in a typical summer program with support; and (2) she hoped that WCC could work with the school to make some accommodations for Student. When speaking with the program director at the WCC Center, Ms. Sandra Phillips, Mother indicated that Student might be ready to return to the WCC Center because of the progress he had made with medication and various interventions. (Phillips, Tr. III, p. 24; Mother, Tr. I, pp. 110-113)
· WCC Center accepted Student with the understanding that Mother would not contest a termination letter if the Center decide that it could not handle Student. (Phillips, TR. III, p. 25)
· Initially, Ms. Phillips observed that Student’s behavior had improved from when he was at the WCC Center as a three -year-old. For example, if Student was sent to time-out, he seemed to understand that he had misbehaved, and would apologize. When he first began at the Center, Student tended to stay by himself. After a while, however, Student made more efforts to play with other children and this seemed to trigger increased behavioral incidents. For example, if Student was reading in a book area by himself and another child entered the area, Student might throw the book at the child because he wanted to be alone. (Phillips, Tr. III, p. 29)
· Soon, Student had many of the same problems at the Center that he had there as a three- or four-year-old, in spite of his improving behavior in school. Between February 21 and July 6, 2001, WCC Center documented one or more behavioral incidents every couple of days in both the three hour after school program and the full day summer program. The behaviors reported included yelling out or shouting, some hitting, scratching or pinching of other children, and throwing toys around the room or at other children. This behavior seemed to occur when other children did not want to play with Student, when he had to wait his turn, or when he felt that others were “bothering” him. When upset, Student sometimes hit his own head with his hand or on objects. Student sometimes refused to be redirected or to follow staff instructions. (J-2, P-10; Phillips, Tr. III, p. 35)
· Eventually, the WCC Center decided it could not accommodate Student’s needs unless he came to the program with a 1:1 aide to remove him from the room if his behavior got out of control. (Phillips, Tr. III, p. 29) In a letter dated June 18, 2001, Sandra Phillips asked Mother to remove Student voluntarily to prevent termination, stating: “…incidents are becoming a major problem…My staff is just too young and inexperienced to cope with him…His fits of running and throwing himself against the walls scare the other children and we have been unable to curtail them…” The letter further suggested that Mother “try to hire his aide from school to stay with him during the summer” (P-8)
· Meanwhile, on June 26, 2001, eight days after the Center asked Mother to remove Student, Northbridge issued the IEP for the 2001-2002 school year (second grade). This IEP listed Student’s strengths as “excellent” reading skills, grade level academic performance, a variety of interests, and “significant progress this school year in the area of social interactions.” (J-6). Social/behavioral goals and objectives included appropriate behavior during unstructured periods ( e.g. , lunch, recess), attention to the teacher during instructional periods, and improved interaction with peers and teachers. Services and interventions included behavior rule cards, social skills instruction, access to a classroom aide, cueing, and various other interventions. Student’s progress was tracked by a daily communication log with Mother and “hassle logs.”8 After discussion, the TEAM concluded that Student did not need ESY and ESD services; therefore, the IEP did not call for an extended day or year. Mother, Tr. I, P. 107; J-6. Mother partially rejected this IEP based on the absence of ESY and ESD services. (J-6)
· That same day, the Center terminated Student effective July 6 unless an aide capable of “helping to curtail the fits, hitting and throwing and able to sit with him…away from the room when necessary…” was provided by that date. (P-9)
· Also on June 26, 2001, Mother sent a letter to Ms. Robinson reiterating her request for a summer program, and explaining that she had enrolled Student for the WCC Center summer program because she had hoped he was ready for it. (P-14)
· Mother testified that she was mostly satisfied with Student’s goals, objectives, and in-school services, and felt that she and the school worked together when minor adjustments were needed. (Mother, Tr. II, 14-17) However, Mother also felt that Student was not progressing in his social/behavioral goals. Mother testified that Student “just falls apart” when away from the cuing, redirection, and other structure provided by the school. (Mother, Tr. I, p. 88; Tr. II, 16) Mother did not expect that by the end of the 2001 school year, Student would have made so much progress that he could attend a large, unstructured day-care program. (Mother, Tr. II, pp. 19-21)
· Student was at home during the summer of 2001 between first and second grade. He was supervised by friends or family members while Mother was at work. The record does not indicate what response Northbridge had made, if any, to Mother’s request for a summer program. ( Id. )
· On September 1, 2001, just prior to second grade, Dr. Plaud updated Student’s first grade BIP to target three problem behaviors: noncompliance with adult requests, “inappropriate socials” (rude comments, raising voice, verbal disruptions) and aggression (hitting, punching, kicking, and throwing objects at others, as well as attempting or threatening to do so). Preliminary data suggested that these behaviors functioned to protest, escape/avoid/delay task demands, and to obtain what Student wanted. The BIP contained alternative behaviors and interventions, including relaxation training, cognitive picture rehearsal, praise, modeling, a behavior rule card for self-monitoring, and training in social skills, anger management, compliance and “stress inoculation.” The plan also contained reinforcement, preventive and reactive strategies. The BIP offered consultation and in-home training for parents, made all staff responsible for implementing the plan and called for weekly reviews. Mother consented to the plan. (J-38)
· On October 3, 2001, after a re-evaluation, Northbridge issued a new IEP for second grade that differed from the June 2001 IEP by reducing the social skills taught by the inclusion teacher from 5 to 2 hours per week, added ½ hours per week of “life skills” service from the behavioral consultant, and quantified some behavioral goals and objectives. The IEP also deleted references to a 1:1 aide. Parent partially rejected the IEP based on the reduction in social skills training, elimination of reference to a 1:1 aide, and “omission of [ESY and ESD services] recommended by [Student’s] doctor. ( J-7)
· For second grade (2001-02) Student was in an inclusion class of about 18 children co-taught by Ms. Sarah Gauthier, a regular education teacher, and Ms. Cynthia Cioffi, a special education teacher. (Gauthier, Tr. IV, p. 14) Student had a 1:1 aide, and there was a second aide in the classroom who was assigned to a different child. Id. Student’s aide sat in a desk next to him when he was at his desk, and monitored him from elsewhere in the room when he was with a group of children on a rug in the front of the classroom. The aide was absent frequently because of illness, but Student was able to focus on his work if anyway. The other three staff members were able to manage him with monitoring and verbal reminders. ( Id. )
· In addition to academics, Student participated in whole-class social skills instruction taught by Ms. Cioffi two times per week for 15 or twenty minutes per session. (Cioffi, Tr. IV, p. 46-47) Students used discussion and role-play to explore how to behave in different types of interpersonal situations. ( Id. ) Initially Student seemed uninterested, but later in second grade he participated actively in these lessons. ( Id. )
· Twice per week, for fifteen minutes, Ms. Cioffi set up and supervised an in-class playgroup for Student and one or two classmates. Dr. Plaud consulted with Ms. Cioffi weekly regarding the playgroup ( Id. )
· Student’s teachers testified that during second grade, Student made progress in his ability to manage his behavior in school. (Gauthier, Tr. IV p. 16; Cioffi, Tr. IV, p. 49-61) (He also did very well academically but this is not an issue here) (Gauthier, Tr. IV, p. 14-15) At the beginning of second grade, Student would get very angry and yell, threaten or sometimes hit children if an interaction bothered him or if he found them too noisy, standing too close to him, etc. For example, Student had trouble in the lunch line and might kick or hit other children. His aide took him to lunch a little earlier to avoid crowds, stood with him in line, and sometimes ate with him. (Cioffi, Tr. IV, p.54, 69)
· Around December 2001, Student’s medication was changed. Student became much calmer afterwards. (Gauthier, Tr. IV, pp. 16-17; Cioffi, Tr. IV. Pp. 54-55) Towards the end of second grade (spring 2002) Student began to use independently some strategies from social skills training, including leaving or turning away from situations that were bothering him, taking deep breaths when tense, asking peers to stop doing something if he did not like it. He also started to ask permission to leave his seat (rather than just getting up), saying “excuse me” when someone was in his way, and appropriately asking for help. ( Id. )
· Socially, Student was able to play with a small group of children at a Friday special earned outdoor recess, with as-needed help from Ms. Gauthier or the aide who were standing on the sidelines. (Gauthier, Tr. IV, p. 30-31) Other children were drawn to Student because he could speak knowledgably about science, and he was beginning to have some friendships in class. He sometimes would be friends with a child for one day and not the next, but Ms. Cioffi felt that this was not unusual with second-graders. (Cioffi, Tr. IV, pp. 54-55)
· Ms Gauthier did not observe Student during lunch or gym class but did observe him during special recess on Fridays. He was able to play with a group of children during this recess. The aide would step in if Student complained that children did not want to play with him or if he appeared to be getting agitated. (Gauthier, Tr. IV, p. 30-31)
· Neither Ms. Gauthier nor Ms. Cioffi observed Student to regress academically or behaviorally after weekends or vacations and did not expect that he would regress over the summer if he did not have a summer program. ((Gauthier, Tr. IV, pp. 20-21; Cioffi, Tr. IV. Pp. 54-55)
I
· During second grade, to help Student socialize outside of School, Dr. Plaud suggested that Mother arrange one-on-one play dates. Mother did this several times during second grade, inviting a particular child who was friendly with Student to spend an hour or two in a planned activity with Student. ( e.g. , watching a children’s video, going to watch a meteor shower.) Mother prepared Student for each play date by discussing appropriate behavior and also supervised the playdate. Mother also tried to maintain communication with the parents of the other child, and overall the playdates were successful. Mother testified that prior to doing formal playdates in second grade, she had always tried to invite family members or friends to bring a child to play with Student. However, for both the informal and formal playdates, it was difficult for her to find parents or children who would be willing to participate because Student was known in the community for his behavior. (Mother, Tr. I, 55-62)
· Dr. Plaud would have preferred if Mother had organized more play dates than she d id. At hearing she testified “I know she had some difficulty finding children to invite over or other practical reasons, but since I know her desire was to help [Student] develop friendship skills…he needs to have children that he can play with and learn to use the skills that we’re teaching him at school.” Dr. Plaud recommended play dates of no more than one other child. (Plaud, Tr. III, p. 74)
· As of the hearing date, Student’s social life was largely with his mother or other family members, except for the supervised play dates arranged per Dr. Plaud’s suggestion. Other contacts with children, for the most part, took place only when Mother closely supervised the situation. He was not enrolled in any formal childcare or recreational group. From at least as early as preschool until the hearing, Mother had searched for ways to help Student socialize, including childcare providers of various types, community events, inviting over family and friends with children, and the playdates suggested by Dr. Plaud, with limited success. (Mother, Tr. I, pp. 93-94; 125-126)
· Mother testified that at the time of hearing Student’s success in controlling his behavior was still variable, and she was no longer taking Student to Bible study with her. Id . Mother felt Student had not improved in generalizing social skills; he could manage perhaps an activity with one other child if closely supervised by Mother, who could anticipate and manage his behavior but not otherwise. She testified that this was not a change, because she always had been trying to arrange recreational and social activities for Student, and these were frequently successful as long as she was in charge, ready to intervene if Student had a problem. (Mother, Id. )
· In January and February 2002, Mother referred Student for evaluation at CCSN because of several concerns; i.e. , that his aide was always with him and he would not be able to function without her and that he was deteriorating outside of school. In addition, Dr. Bresnahan, who had been seeing Student monthly to monitor his medication, was considering a formal diagnosis of Asperger’s Syndrome (which had been a “rule out” until this point, because of Student’s lack of social skills or awareness, tendency to perseverate on one subject or activity. (Carra, Tr. II, p. 177)
· The CCSN evaluation consisted of a neuropsychological assessment by Dr. Lois Carra, and an educational evaluation by Cathy Mason. In a Combined Evaluation Summary , Dr. Carra and Ms. Mason reported that Student was referred because of “concerns about poor social and behavioral functioning in his school and after-school programs.” The Team Diagnostic Impressions contained in the Summary state: “We are concerned that [Student] does not seem to be developing independent social/behavioral skills/controls that he can use in different settings including outside of the classroom. These skills need to generalize into community-based settings. He is at risk for continued social isolation, increasing feelings of loneliness and because of poor coping strategies associated with bipolar, ADHD and Asperger’s, increased risk for self destructive, dangerous behaviors and increased disorganization.” (P-3)
· The Summary also stated that Student “has significant problems with behavioral control, social perception and interaction. His present program is not meeting his special needs because he is not gaining the social, emotional and behavioral skills that he requires to function independently in these realms. He is isolated because he has an aide full time and because he does not know how to make friends and because he alienates children and adults by his inappropriate social behavior and lack of control.” The report reiterates prior recommendations of Dr. Bresnahan that Student needs a 12 month program or at the very least an aide to accompany him to an after school program. “If he does not have adequate programming over the summer he will regress behaviorally, socially and emotionally.” ( Id. )
· Neuropsychological testing showed that Student to has high average cognitive ability, but that impulsivity and erratic attention lowered his scores. He was overly involved in his own agenda and so had trouble with the tasks at hand. He was easily overexcited and “did not show adequate reciprocal social interaction and his eye contact was poor. Even with medication, [Student’s] work style was suggestive of his diagnosed mood, ADHD and Asperger disorders.” Student showed weaknesses in executive functioning, and with disorganization. An emotional screening task showed Student perseverating on a limited range of subjects, and also to have anxiety. Dr. Carra stated that this profile would cause Student to have problems with social competence, to misread and misinterpret non-verbal social cues. (J-3) Based on test results, history, and Mother’s reports and answers to behavioral checklists and questionnaires, Dr. Carra concluded that Student was not making meaningful progress with his social/emotional and behavioral skills. (P-3)
· Cathy Mason’s report concluded that while Student’s language arts and math skills were generally within normal limits (ranging from above average in mechanical reading skills to the lower end of average in math skills), these skills were “elicited with a very high degree of examiner support, supervision and structure. [student] was an impulsive worker who was easily overwhelmed by complexity. These characteristics were exacerbated and/or caused by his high level of anxiety. Ms. Mason went on to state that as the organizational and planning skills increased through the grades, “Student will be at an ever-increasing risk for academic frustration/failure. Consequently, it will be critical that behavioral supports be maintained/refined and that organizational strategies be explicitly instructed and reinforced across the curriculum. (P-3) Ms. Mason recommended a number of strategies to help Student learn planning and organization, improve math skills. She also appended suggestions for direct social skills training and coaching in social skills.
· On April 22, 2002, Dr. Carra observed Student in his inclusion classroom and at lunch for a total of about three hours. (P-4; Carra, Tr. II., pp. 190) Dr. Plaud was with Dr. Carra for some of that observation and also discussed Student’s behavioral plan with her. Dr. Carra spoke with both of Student’s teachers as well as his aide. (Carra, Tr. II, pp. 192-193)
· Based on her observations and conversations with staff, Dr. Carra concluded that student was not developing independent social/behavioral skills or controls that he could both use in the classroom and generalize to different settings. She further concluded that Student could function academically and socially within school because he had 1:1 supervision during instructional and play time, but that the whole-class social skills training was not providing the “intensive role play, practice and direct teaching of social skills that Student requires.” (p-3) Finally, Dr. Carra concluded that Student needs a program that directly teaches social skills in a small group setting, with both intensive teaching and practice, focusing on the skills needed to compensate for Asperger’s Syndrome. She commented that the school had focused on mood and attention, but had not addressed the inability to cope with the basic interactions and conflicts that children have in daily life because he views the world “in relation to satisfying his preoccupations and he cannot cope when this kind of need is thwarted.” (P-3)
· Dr. Carra’s report recommended intensive, targeted social skills instruction throughout the day that leads to more independence, and help to function with less one-to-one supervision. “His unstructured time after school, caused by the lack of structured extended day programming, is undermining his chance to function more independently. Each day he should be practicing adaptive skills throughout the day including during an extended day program and at home. Instead, his out of school situation is impeding progress and his in school program, while managing him, is not providing him with enough truly functional skills…Without adequate programming including the direct teaching of social skills individually and in small groups and without an appropriate structured extended day, he will not progress in his main area of need…Over the summer, without specialized programming, he will regress behaviorally, socially and emotionally.” Dr. Carra’s report did not further address the issue of regression. Despite her concerns, Dr. Carra stated that the school staff cared very much for Student, who has complex needs, and provided him with support to enable him to function in the mainstream. (P-3)
· At the hearing, Dr. Carra testified further about her evaluation and recommendations, stating that Dr. Plaud as well as Student’s teachers and aide had reviewed Student’s program with her and reported that his school behavior had improved. Dr. Carra testified that she and Dr. Plaud had agreed that Student would not do well in large, unstructured group situations such as the WCC Center. Staff also reported to Dr. Carra that Student was uninterested in the social skills class (in April 2002); that he had to go to the cafeteria with an aide; that he alienated children by yelling at them if he wasn’t in a structured situation. (Carra, Tr. II. Pp. 194-196)
· Dr. Carra elaborated on her written conclusions and recommendations, testifying, in sum, that (a) he was “coping and functioning with continual one-on-one supervision and direction, and staff indicated that they were anticipating and avoiding situations that were likely to upset or disappoint him,” (c) that he was doing better with medication; (d) that she was concerned that Student was not developing social and behavioral skills and controls that he could both use in school and generalize outside of school, and not “operating in a social way with the other children the way the other children do, even in a small group.” (Carra, Tr. II, p. 201)
· As for recommendations, Dr. Carra testified that Student needed at minimum a small social skills group, preferably led by a psychologist or social worker, with individualized teaching and practice, and documentation of his skill acquisition and independence. ( Id. , p. 202, 206) Dr. Carra further stated such instruction should happen in school. In addition, Student should also have a structured ESD to practice new skills. The ESD services could be provided in the form of an aide provided by the school to accompany Student to a child care center and help him generalize the skills he learned in school; however, it would preferably be a structured after school program that was consistent with his school program but less academically focused, for as much time per day as feasible. ( Id. , pp. 214-, 217; 226-228)
· For summer programming, Dr. Carra recommended a structured camp-type program that actively taught social skills, for as many hours per day as possible, or alternatively, a day camp setting with a 1:1 aide. ( Id .)
· In general, Dr. Carra believes that Student needs an extended day and year because he “deteriorates” when he leaves school, in addition to more intense in-school services. ( Id .)
· Dr. Carra’s overall view of Student’s progress since his 1998 evaluation was that he was much calmer in school, partly because of his medication. However, Dr. Carra’s opinion was that Student had not sufficiently progressed in his out-of-school behavior in that he still alienated other children and their parents, still could not handle day care, and in general, could only function with a high degree of supervision and control. ( Id. , p. 218-221). In Dr. Carra’s view, if Student had had adequate social skills instruction in the past she would have expected him to be able to function somewhat more independently outside of school, and to be able to function with a small group of children.
· Dr. Bresnahan testified to learning from Dr. Plaud that at the beginning of second grade, Student’s out-of-control behavior had definitely diminished, even from first grade, and that his behavior overall was much improved in second grade. (Tr. III P. 208-209) However, Dr. Bresnahan was concerned that even though Student’s mood was more stable and his behavior better, she was seeing symptoms suggestive of Asperger’s, which was finally diagnosed in April 2002.9
· Drs. Bresnahan and Carra both testified Student regressed over summer vacations without an ESY program and defined this regression as Student’s deteriorating over the summer, functioning lower than he had in school. (Carra, Tr. II, p. 229; Bresnahan, Tr. III, pp. 209-210)
· Dr. Plaud, and the various teachers and paraprofessional who worked with Student during first and second grade, disagreed with Drs. Bresnahan and Carra. They testified that Student did not need an after school or summer program because he had made significant progress towards his behavioral and social goals, particularly in light of the severity of his disability. His teachers testified that he did not significantly regress over weekends, vacations, or summer break in that he returned to school at about the same level as before the vacation. Dr. Plaud testified that given Student’s sensitivity to noise and struggle to modulate his reactions, he would be find extended day services to be overly tiring, and summer programming overstimulating. Instead, she believed that Student’s friendship and social skills should be gradually built via home carryover by Mother, that is, the one-on-one playdates, and social skills homework. She also suggested that Mother hire a babysitter to spend time with Student and perhaps one other child at Student’s home after school. Mother actually did hire a high school student for a brief period. Dr. Plaud questioned whether Student had not learned to generalize social skills, or was simply unable to perform them in overstimulating environments. (Plaud, Tr. III, pp. 74-81) Overall, Northbridge witnesses testified that Student had done extremely well in second grade, and did not need ESD or ESY services. ( Id. )
CONCLUSIONS OF LAW
There is no dispute that Student is a child with a disability who is entitled to special education and related services pursuant to the IDEA and G.L. c. 71B. There also is no dispute as to Student’s profile as a likeable, bright and academically capable child who has a longstanding, complex constellation of disabilities including ADHD, bipolar disorder, and Asperger’s Syndrome. The record evidence shows, and the parties do not dispute, that as a result of these disabilities, Student has difficulty regulating his mood and may react strongly to such stressors as noise, crowded and stimulating situations (like the school cafeteria line), demands, and real or perceived slights by peers; that he may become so focused on a topic, person, or activity that he has trouble moving from his own agenda; and that his social skills are weak, impeding his ability to function with peers. Additionally, there is no dispute that Student’s difficulties with self-regulation, his sensitivity, and social skills deficits, among other things, give rise to serious behavior problems, which have included, at various times, verbal outbursts, tantrums, defiance, hitting, threatening, or throwing things at other children. As a result, Student has alienated other children, has been thrown out of numerous day care settings. Finally, the parties agree that Student needs intensive intervention and assistance to address these issues. (See generally testimony of Mother, Plaud, Phillips, Carra, Abbondanza, Gauthier, Cioffi)
On the other hand, the record amply demonstrates, and the parties agree, that Student has made progress in his identified areas of need since he entered the Northbridge school system as a preschooler. The parties may disagree over the amount of progress he has made, and his ability to generalize his skills, as well as on the relative contributions of medication, Northbridge’s services, and Mother’s work with Student at home. There is no dispute, however, that Student has become considerably calmer and more self-controlled and has begun to apply some of the self-management strategies that he has learned. (Dr. Carra testified otherwise, but did not observe Student actually using the strategies.) Finally, there is no dispute that notwithstanding his considerable needs, Student has consistently performed at or above grade level academically. (Testimony of Mother, Plaud, Isabelle, Abbondanza, Cioffi, Carra, Bresnahan)
The parties fundamentally disagree on whether Northbridge has provided adequate services to support the social/behavioral goals in Student’s IEPs and in particular to help him generalize social skills and behavioral strategies outside of the school setting, whether he has needed ESY and ESD services for this purpose, and whether Northbridge has deprived him of FAPE and thus is liable for compensatory services.
Upon carefully reviewing the testimony of witnesses and the voluminous documentary record submitted by both parties, I conclude that ESY and ESD services were necessary to provide Student with FAPE during the relevant periods. My reasoning follows. On the other hand, I conclude that Northbridge did not deprive Student of a FAPE by stating in his 2001-2002 IEP that Student would receive an aide “as needed.”
LEGAL FRAMEWORK
· The FAPE standard
At all relevant times, Student has been entitled to specialized instruction and related services calculated to afford him a free, appropriate public education (FAPE) in the least restrictive environment. 42 U.S.C. 1400 et seq.; G.L. c. 71B et seq., Roland M. v. Concord School Committee , 910 F.2d 983, 987 (1 st Cir., 1998), cert. Den . 499 U.S. 912 (1991). Before January 1, 2002, Massachusetts law defined FAPE as education calculated to provide eligible students with “maximum feasible benefit.” David D. v. Dartmouth School Committee , 775 F.2d 411, 423 (1 st Cir. 1985), cert. denied, 475 U.S. 1140 (1986), Roland M , supra . After that date, pursuant to an amendment to G.L. c. 71B, Sec. 3,10 Massachusetts implemented the Federal FAPE standard. Because the IEPs at issue here were all issued prior to January 1, 2002, however, the maximum benefit standard applies. (See In Re: Salem Public Schools , 7 MSER (2002)11 Unless otherwise specified, the term “FAPE” in this decision refers to the maximum benefit standard.
Here, Mother claims that Northbridge failed to provide Student with FAPE for the following school years: 1999-2000, 2000-2001, and 2001-2002. More specifically, Mother claims that Northbridge improperly denied Student ESD services for all three of these school years, and ESY services for two summers: 2001 and 2002, and, further, is liable for compensatory services as a result. Mother also claims that Northbridge deprived Student of FAPE by not guaranteeing a 1:1 aide at all times during 2001-02.
A student’s entitlement to receive particular services or modifications, including an extended school day or year, must be evaluated in the context of the applicable FAPE standard. Thus, under the maximum benefit standard applicable here, a district must provide such a service if necessary to address all of the child’s identified special needs, to conform with the procedural requirements of the IDEA, or to be calculated to confer maximum educational benefit in the least restrictive environment appropriate to the child. Maximum benefit is determined in consideration of the child’s individual potential. Finally, the program or service at issue must be evaluated in light of the least restrictive environment requirements of the IDEA and G.L. c. 71B.. See David D. and Roland M. , supra .
Extended school day (ESD)
Consistent with this principle, both current and prior Massachusetts special education regulations12 address the length of the school day but do not set explicit criteria for when a child should have an ESD. Rather, the regulation states that a child’s TEAM may lengthen (or shorten) the child’s school day if necessary to provide FAPE:
The daily duration of the student’s program shall be equal to that of the regular school day unless the Team states that a different duration is necessary to provide a free, appropriate public education to the student. In such case the daily duration of the program shall be specified by the Team and the Team shall state on the IEP the reason for such different duration.
603 CMR 28.05(4)(d) (after September 26, 2000); formerly codified as 603 CMR 28:502.12(g).
According to this regulation, when considering whether to extend a child’s school day, the TEAM must consider the same factors it would for any other program, service or modification. Under the pre-2002 standard, the inquiry would be whether the student requires a longer school day to receive maximum educational benefit; in making this determination, the TEAM would look to such factors as the student’s needs and individual potential, as well as whether the student needs the program or service to fully participate in the regular education program to the extent appropriate,13 to address identified special needs, or make progress towards IEP goals. See Roland M ., supra, Lenn v. Portland School Committee , 998 F. 2d 1083 (1st Cir. 1993)
A recent BSEA decision illustrates an individualized approach to the ESD issue. In Worcester Public Schools , 6 MSER 194 (Crane, June 30, 2000), the BSEA hearing officer ruled that the district had to provide after-school Braille instruction to a visually impaired student. The student was enrolled in a full high school program, and could not schedule the Braille class during the normal school day unless he eliminated one of two regular education courses. The hearing officer determined that requiring the student to omit or defer either course to make room for Braille would deny him FAPE. One of the two courses (gym) addressed social skills goals that already were in the student’s IEP. The hearing officer further found that requiring the student to eliminate the other course (an elective computer class) in order to attend Braille would violate his right to full participation in the regular education program as required by the IDEA. Id. , 203-204.
Extended School Year
The IDEA does not mention extended school year (ESY) services; however, the federal regulations on point require school districts to “ensure that [ESY] services are available as necessary to provide FAPE…” 34 CFR Sec. 300.309(a)(1). This regulation further states that “[ESY] services must be provided only if a child’s IEP team determines, on an individual basis…that the services are necessary for the provision of FAPE…” and that school districts may neither “limit [ESY ]services to particular categories of disability” nor “unilaterally limit the type, amount, or duration of those services. 34 CFR Sec. 300.309(a)(2)-(3).
This regulation does not set standards for when ESY services are a necessary component of FAPE. In the Analysis of Comments and Changes attached to the current Regulations, the U.S. Department of Education (USDOE) states that it has consistently declined to do so. Rather, USDOE takes the position that (1) the regulation was drafted to be consistent with existing case law and (2) states may establish their own standards for when to provide ESY, so long as those standards are consistent with the federal mandate for individual, and not categorical, determination of the need for ESY. 34 CFR Sec. 300.309, Attachment I.
Some Federal courts have developed standards for deciding when ESY services are appropriate under FAPE. See, e.g. , Alamo Heights Ind. School District v. State Bd. of Ed ., 790 F.2d 1153, 1158 (5 th Cir. 1986); Johnson v. Indep. Sch. Dist. No. 4 , 921 F.2d 1022 (10 th Cir. 1990) (ESY appropriate when benefits from the regular school year will be significantly jeopardized without a summer program, but multiple factors can be considered, including “the child’s rate of progress…behavioral and physical problems, the availability of alternative resources, the ability of the child to interact with non-handicapped children, the areas…which need continuous attention…”); Cordrey v. Euckert , 917 F. 2d 1460 (6 th Cir. 1990) (ESY Services warranted when they prevent significant regression of skills or knowledge that would seriously affect progress to self sufficiency or benefit during school year); all cited in MM v. School District of Greenville County, et. al ., 37 IDELR 183 (4 th Cir. 2002) (parents must show that lack of ESY would “significantly jeopardize the benefits the student received during the regular school year,” but this is a case-specific determination and “a showing of actual regression is not required.” See also Lawyer v. Chesterfield County School Board , 19 IDELR 904 (E.D. Va., 1993) which held that that ESY was appropriate for a student with autism, where the record showed that the student’s speech skills regressed over the summer and only slightly recouped, and student was in a critical developmental phase in which failure to meet speech needs could have a permanent impact on his future employability. The court in Lawyer considered the student’s unique requirements as a person with autism, as well as his worsening behavior over the summer, which it seemed to view as regression. Id.
The relevant current14 state regulation, 603 CMR 28.04(d)1 provides that “an extended year program may be identified if the student has demonstrated or is likely to demonstrate substantial regression in his or her learning skills and/or substantial difficulty in relearning such skills if an extended program is not provided.” Id. The former regulation was similar, providing that a school year could be extended “if the TEAM determines that the child will substantially regress without an extended special education program.” (former) 603 CMR 322.18. The Massachusetts DOE’s interpretation of its own regulation contained in the IEP Process Guide , (2000) notes that ESY/ESD services must be considered and recommended on an individual basis, and “may be identified” if the student is likely to lose acquired skills or have “substantial difficulty” in relearning such skills.
It is not clear that the state regulation is intended to prohibit TEAMs from recommending ESY programs unless there is regression, especially in light of the pertinent federal regulation, which requires TEAMS to make individual determinations of the need for ESY, and of case law, which contemplates evaluation of multiple factors. See Johnson . In any event, in this case, the maximum benefit standard applies, and it is difficult to reconcile that standard with a rigid regression/recoupment requirement for every student seeking ESY, regardless of other factors.
Here, there is persuasive evidence that that Student required both and extended day and extended school year to receive FAPE. First, the record evidence is clear that despite the many services and interventions provided by Northbridge, and despite the hard work by Mother to carry over school-based interventions in the home as well as organize play dates and similar activities, Student has not received enough targeted, individualized instruction in play and social skills to have achieved maximum benefit. Dr. Carra testified without contradiction that as of mid-April of second grade, Student still seemed very dependent on his aide or other adults to be able to function behaviorally. As a result, he was socially isolated, as few children have been willing to play with him. Dr. Carra also testified that Student would have been farther along in his social development, had he had an opportunity for such additional instruction.
Although Drs. Plaud and Carra disagree on whether Student requires or should have a formal program after school or in the summer to learn to generalize social skills, they agree that Student needs practice and reinforcement, and that some of this must take place outside of regular school hours. The real difference seems to be that Dr. Plaud feels Student would do better with low-key, small group activities for which Mother should be primarily responsible. Dr. Carra believes that the instruction should be more formal and organized, and is probably more than a parent can be expected to carry out. I find Dr. Carra’s testimony the more persuasive, because by the date of hearing, Mother had already spent years trying to arrange for appropriate social experiences for Student, including the play dates recommended by Northbridge, with only limited success. Student’s behavior was still deteriorating during unstructured times.
Based on the foregoing, the evidence supports determination that Student should have received ESD services during the periods at issue. Student clearly had a documented need to learn to generalize social and emotional skills, yet he had a full school program with only limited time in the school day to teach social skills. Without such additional instruction, Student was has not been able to function socially outside of the school or family setting. This is similar to the situation in Worcester Public Schools , in that Student here is not likely to be able to get the intensive social skills instruction he needs during the school day unless he misses part of his instructional time in the mainstream. For the same reasons articulated in Worcester, I find that Student cannot receive FAPE unless he receives additional social/behavioral skills instruction and practice in an extended day program.
As for ESY services, the record shows that Student’s behavior and social skills deteriorated when he was out of school; this constituted regression, according to Dr. Carra. For example, even as of the date of the hearing, Mother was not able to take Student to Bible study because his behavior was not reliable. He still could not attend any type of child-care program. His interactions with peers had to be highly structured and supervised, and peers often had to be recruited to play with him, including for the play dates that Dr. Plaud had suggested. Mother testified, without contradiction, that Student still could not function outside of highly structured and supervised environments, that he “fell apart.” Moreover, social/behavioral skills were the basis of Student’s primary IEP goal. The school witnesses testified that Student’s behavior did not regress from one year and grade to the next; however, Northbridge presented no evidence as to his progress in generalizing outside of the controlled school setting. Finally, this is a case where some of the Johnson factors should be considered, including the complexity and severity of Student’s diagnoses of bipolar disorder and Asperger’s Sunroom, and the efforts already made in the home, by Student’s mother, and the limited success of Mother in the home component of the program.
Dr. Carra testified that Student needed more intensive direct instruction and practice in social interaction than he was receiving during the school day so that he could become less socially isolated and more independent.15 She characterized Student’s worsened behavior outside of school as regression, and noted that despite school and parental efforts, Student’s social behavior was not similar to that of a typical child his age. Finally, she testified that had he received additional services, Student likely would have been functioning somewhat more independently both in and outside of school. Both Dr. Carra and Dr. Bresnahan, who had been treating Student since age 3 supported extended day and summer programming for these reasons. In response to Northbridge’s concern about Student being too tired out or overstimulated, Dr. Bresnahan, who had been treating Student since age 3, testified that this would not be a problem.
Finally, I note that unless Student learns to generalize social and behavioral skills, it will be very difficult for him to become more independent and to remain in the mainstream as he gets older, and falls further behind his peers.
For these reasons, I conclude that Student was entitled to receive ESD services for SY 1999-2000, 2000-01, and 2001-02, as well as ESY services during the summers of 2001 and 2002, as requested by Mother.
Guarantee of 1:1 Aide
Mother’s claim that Northbridge denied FAPE to Student by specifying “as needed” services of an aide in the 2001-2002 IEP is not supported by the evidence. The uncontroverted testimony of all witnesses was that Student usually had 1:1 aide services during second grade, and, further, on the occasions when he did not have his regular aide, he was able to function in school with the help of a substitute aide or with his two classroom teachers. Mother introduced no evidence that Student’s services were reduced or his performance compromised by the “as needed” provision of the IEP. Therefore, I conclude that Student was not denied a FAPE in this regard.
COMPENSATORY SERVICES
The BSEA may order compensatory education to remedy past deprivations of special education rights such that the student was denied FAPE for the period in question. Pihl v. Massachusetts Department of Education , 9 F.3d 184 (1st Cir. 1993); Roland M. v. Concord Sch. Comm., supra . Murphy v. Timberlane Regional Sch. Dist. , 22 F.3d 1186, 1196 (1 st Cir. 1994).
Here, I conclude that Student is entitled to compensatory educational services because Northbridge’s continuing refusal to provide ESD and ESY services has deprived Student of FAPE. Specifically, Northbridge’s actions have denied Student services that he has needed to make sufficient progress in his most significant identified area of need.
As stated above, there is no dispute that Student’s primary special need is his social/behavioral functioning. Moreover, generalization of skills in this area has been a specific objective in each of the IEPs issued by Northbridge since Student was in kindergarten. (See Findings No. 18, 23, 34). Additionally, by offering a home component that included Dr. Plaud’s consultation services as well as by suggesting that Mother set up play dates, Northbridge has acknowledged that Student needs help in generalizing skills outside of school.
The record clearly establishes that Student made social and behavioral progress during the period in question. In particular, Student became progressively calmer, less angry and irritable and less extreme in his reactions between kindergarten and second grade. In addition, by late second grade he was beginning to initiate stress reduction strategies that he had learned. The record also establishes, however, via testimony of Mother, Dr. Carra, and Sandra Phillips, as well as by various documents ( e.g. , the CCSN evaluations of 1998 and 2002, Whitin Center reports), that as of second grade, Student still had not learned to generalize and/or utilize his skills outside of highly structured situations—in school or with a parent—where adults were closely supervising and guiding him as well as avoiding situations that might upset him. Moreover, Dr. Carra and Mother testified, without contradiction, that outside of such settings, Student’s behavior deteriorated. As of the hearing date, there was no evidence that Student participated in any social activities other than those organized by Mother. On the other hand, Drs. Carra and Bresnahan testified that Student had the potential for more progress, and that if he had had ESD and ESY services, he would have better social and behavioral skills.
Northbridge’s response has been, in essence, that Student has made meaningful behavioral and social progress in school and that Student has not been able to manage day care because the programs that Mother has chosen are inappropriate, and that a structured ESD and ESY would be overstimulating and overly tiring for Student. Instead, Northbridge places primary responsibility on Mother, with Dr. Plaud’s consultation, to work on generalization via, e.g. , increased play dates and a 1:1 babysitter. I am not persuaded by Northbridge’s argument. First, as stated previously, generalization of social/behavioral skills to the community is an agreed-upon IEP objective. Given that Mother repeatedly asserted, and the 2002 CCSN evaluation stated, that Student is not making appropriate progress in this objective, it was not enough for Northbridge to simply increase Mother’s responsibilities for achieving the objective.16 Rather, Northbridge was required to reassess Student’s needs in light of Mother’s concerns and the 2002 CCSN report. See, e.g. , 20 USC Sec. 1414(a)(2); 34 CFR 300.536(b). In addition, the issue of overtaxing Student with ESD and ESY services goes to what type of services Student should receive, not whether he should receive them at all; the record establishes that Student has a hard time with noise and chaos, not with structure.
Northbridge makes the procedural arguments that Mother’s claims for SY 1999-2000 and 2000 and 2001 are time-barred. However, Mother’s April 2002 hearing request was made within the three-year statute of limitations generally adopted by BSEA hearing officers for compensatory claims. See Fall River Public Schools , 5 MSER 183 (1999). Northbridge also argues that Mother’s claims for 2000-01 are precluded because she accepted the IEP for that period. However, the record establishes that that although Mother checked the acceptance box on the signature page for this IEP, she also attached a letter requesting ESY and ESD services, thus putting Northbridge on notice that she disagreed with omission of these services.
For the foregoing reasons, I conclude that by not providing Student with ESD and ESY services as described above, Northbridge deprived Student of FAPE for the period in question. Therefore, and because there is no showing that Mother contributed to the deprivation of FAPE, I find that Student is entitled to compensatory relief.
Although I am concluding that Northbridge did not provide sufficient services (ESD and ESY) to constitute FAPE, I do not wish to diminish the program and services that Northbridge has provided to date. Each of Northbridge’s witnesses—teachers, aid, and behavioral consultant—were highly professional, knowledgeable about Student and his needs, and deeply invested in his success and well being. This was amply demonstrated both through their testimony and in the home-school notebook. In addition, Northbridge’s coordinated yet flexible behavioral interventions, which allowed Student to stay in the mainstream, were most impressive.
ORDER
The terms of the Order issued on March 5, 2003 are incorporated by reference except that Paragraph (1) of that Order shall be clarified to specify that compensatory ESY services apply to the summers of 2001 and 2002 , as stated in Parent’s Reply Brief filed on July 22, 2002.
______________________ _________________________
Dated: May 20, 2003
Sara Berman, Hearing Officer
1
An Order regarding relief was issued on March 5, 2003.
2
Student received a definitive diagnosis of Asperger’s in April 2002. For some time previously, his diagnosis included “rule out Asperger’s Syndrome.” (Bresnahan, Tr. III, pp. 173-177)
3
Northbridge’s September 2001 educational evaluation showed that Student was “academically a very capable boy.” His scores on the Woodcock-Johnson cognitive and achievement tests were all in the average or high average range, except for his score in Broad Reading, which was in the superior range. Math was an area of relative weakness but was still within the average range. The evaluator concluded that Student did not need academic goals on his IEP. (S-24)
4
The parties agree that Student has improved socially, emotionally, and behaviorally, but dispute the amount of improvement and also disagree on whether he is progressing as rapidly as he should.
5
There is no record evidence of what happened between October 1997 and spring 1998, other than Student’s termination from the WCC Center in November, referred to above.
6
There is no record evidence about this offer of a summer program other than Mother’s testimony.
7
This amendment also terminated speech/language services and indicated that the student profile would be updated; these items are not in dispute.
8
The social skills instruction included a formal curriculum taught by the teacher to the entire class about 15 minutes per day. Hassle logs (later renamed problem solving logs) were worksheets for Student to record, after an incident and with an aide’s help, how he had responded to a problem and how he could have behaved differently. (Isabelle, pp. 105-106)
9
Student has been seeing Dr. Bresnahan at the CCSN on a monthly basis since age 3 or 4 to monitor medication and report on his progress. Dr. Bresnahan interviews Student and Mother, and has also periodically spoken to Northbridge staff, including Dr. Plaud, to ask them how Student has responded, in school, to various medication changes.
10
See G.L. c. 71B, Sec. 3, as amended by 2000 Stats. Ch. 159, Secs. 162, 489, 493.
11
Prior BSEA decisions are not binding precedent but may be used for guidance.
12
Neither the IDEA and its regulations nor G.L. c. 71B mention extended school day services
13
20 USC Sec. 1414(d)(1)(A)(iii) and 34 CFR 300.347(a)(2)(I) and (a)(3)(ii).
14
Effective September 26, 2000
15
Dr. Carra also testified that Northbridge’s services did managed and contained Student rather than teaching him new skills. I note that there is credible evidence to the contrary from Dr. Plaud, Student’s teachers, and Mother, and that Dr. Carra perhaps did not have the opportunity to observe Student independently using new strategies. It is not necessary for me to reach this issue, however, because I find simply that Student needed more instruction and practice opportunities to receive FAPE than could be fit into the school day and year in light of his full mainstream curriculum, serious disabilities, and showing that his targeted areas of need were reverting during times when he was not in school.
16
In fact, prior to September 2000, the Massachusetts regulations provided that parents of special needs students could not be required to perform duties not required of parents of typical students. Former regulation at 110 CMR Sec . 502.12.