Re: Student v. Fitchburg Public Schools – BSEA #04-3122

COMMONWEALTH OF MASSACHUSETTS

SPECIAL EDUCATION APPEALS

In Re: Student v. Fitchburg Public Schools BSEA # 04-3122

DECISION

This decision is issued pursuant to 20 U.S.C. 1401 et seq. (the “IDEA”), 29 U.S.C.794, M.G.L. chs. 30A, 71B, and the Regulations promulgated under those statutes.

A Hearing in the above-referenced matter was convened on April 7 and 8, 2004, at the Catuogno Court Reporting Office, 446 Main St., Worcester, MA, before Rosa I. Figueroa, Hearing Officer.

Mother’s written closing argument was received on May 6, 2004 and Fitchburg Public Schools’ (hereinafter, “Fitchburg”) written closing argument was received on May 11, 2004. The Record closed on May 11 th .

Those present for all or part of the Hearing were:

Student’s Mother Pro se

Mary Gallant, Esq. Attorney for Fitchburg

Kathleen Raftery Special Education Director, Fitchburg

Russell Durling Assistant Special Education Director, Fitchburg

Bernard J. Welch¹ Principal, Fitchburg High School

Richard Masciarelli² Assistant Principal, Fitchburg High School

Marsha Gartska 10 th grade ETC, Fitchburg

Dorothy Ragucci Retired 9 th grade Learning Disabilities Teacher, Fitchburg

Mary Catherine Schmitt 8 th grade Regular Education Mathematics Teacher, FAST Program, Fitchburg

Edward Gastonguay Retired Guidance Counselor, Fitchburg High School

Isabella Catalhdo Former 9 th grade ETL Fitchburg; presently ECE Coordinator Lincoln Public Schools

Thomas Ferrazano Speech and Language Pathologist, Fitchburg

Robert A. Celeste 10 th grade Science Teacher, Fitchburg

Debra T. Sherblom 10 th grade Social Studies Teacher, Fitchburg

Elisa C. Madeiros-Grant 10 th grade Special Education Teacher, Fitchburg

Richard B. Vaughn 10 th grade Math Teacher, Fitchburg

Sean T. Woodard-McNiff 10 th grade English Teacher, Fitchburg

Dr. Jerome Schultz³ Psychologist, Lesley University

Dr. Phillip Fallon⁴ Former Superintendent of Schools, Fitchburg

Thomas J. Houton Catuogno Court Reporter

Parents’ Exhibits (hereinafter, “PE”) 1 through 8, a portion of 9, and 10, 12, 13 and14, and Fitchburg Exhibits (hereinafter, “SE”) 1 through 84, were admitted in evidence and were considered for the purpose of rendering this decision. Fitchburg objected to admission of part of PE-9 and PE-10. Fitchburg’s objections were sustained and a portion of PE-9, and PE-11 in its entirety, were excluded.

ISSUES PRESENTED:

1. Whether Fitchburg failed to identify Student’s needs for special education services in a timely manner and as a result denied Student a Free Appropriate Public Education (hereinafter, “FAPE”) from January-June 2001 and for the 2001-2002, 2002-2003 and 2003-2004⁵ school years;

2. Whether Student is entitled to compensatory education if he did not receive appropriate special education services during the 2000-2001, 2001-2002, 2002-2003 and 2003-2004 school years;

3. Whether Fitchburg violated Student’s procedural due process rights in failing to conduct Team meetings in a timely manner, in failing to refer Student for evaluations and in failing to service Student in a timely manner;

4. Whether Fitchburg has failed to implement the services delineated in Student’s IEPs consistently and appropriately; and,

5. Whether Student is entitled to residential or day placement at the Winchendon School at Fitchburg’s expense.

POSITION OF THE PARTIES:

Parents’ Position:

Parents assert that Student presents with a variety of disabilities which Fitchburg failed to identify timely and service properly. Specifically during the 2002-2003 school year, he was placed in the FAST program, which was wholly inappropriate for him. Mother asserts that Mr. Gastonguay persuaded her that the program would meet Student’s needs and that was the reason she agreed to that placement. When Student failed math and other courses, the teachers and school principal did not change his grade as requested by Mother. While in the FAST program, the teachers did not hold timely meetings or maintain consistent communication with Parents to alert them of the difficulties Student was facing.

After Student was placed on an IEP during the second semester of the 2002-2003 school year, the services were not implemented consistently. This experience led Mother to reject Student’s IEP in 2003. By September 2003, Student had been diagnosed with Aspergers Syndrome in addition to the previous ADHD and Oppositional Defiant Disorder, specific phobia and anxiety disorder diagnoses. According to Mother, during this entire period a variation of inclusion programs were attempted without success. Mother asserts that inclusion programs meet the needs of the school, not of the student. Her son requires a highly consistent, more structured environment in order to progress.

As a result of the aforementioned, Parents state that Student was denied a FAPE between 2000 and 2004, and is therefore entitled to three years of compensatory services. Since Fitchburg cannot be trusted, and in order to service Student appropriately, he must be placed residentially at the Winchendon School at public expense.

Fitchburg’s Position:

Fitchburg states that it has serviced Student appropriately at all times. It states that Student received special education services while in elementary school until both the teachers and Parents decided that services were no longer required. When Student began to show signs of difficulty while in the eighth grade, the teachers once again referred him for an evaluation. Two more referrals were made by the 9 th grade teachers and Student was finally evaluated in early 2003, after Mother consented to the evaluations in late December 2002. Therefore, Fitchburg acted timely and appropriately.

Fitchburg also denies that it violated Student’s procedural due process rights. Once it received consent from Parents, Fitchburg evaluated Student and convened a Team which ultimately found Student eligible to receive special education services and recommended further evaluations for occupational therapy and observations which were conducted in a timely manner. An IEP was drafted and services were implemented immediately upon receiving Parents’ acceptance. Student’s special education services continued in the 10 th grade as dictated by the accepted IEP and Student has progressed effectively in all domains including communication and social pragmatics. Fitchburg denies Parents’ allegations that it failed to offer services in Student’s IEP and that it owes him compensatory services. It further maintains that Student’s placement in district is the least restrictive appropriate placement and affirms that nothing in the record supports Parents’ claim for a day or residential placement at the Winchendon School, a non-approved regular education school.

FINDINGS OF FACT

· Born on 11/27/1987, Student is a seventeen-year-old tenth grader in Fitchburg. (SE-16; Testimony of Mother)

· He has been diagnosed with Attention Deficit Hyperactivity Disorder Combined Type, Oppositional Defiant Disorder, Specific Phobia, and Anxiety Disorder, NOS as a result of a Psychiatric Evaluation performed by Dr. Daniel F. Connor on April 4, 2000. (PE-1; SE-60) Student also presented with seasonal allergies. At the time of Dr. Connor’s evaluation, Mother reported that Student resisted doing chores at home and in school, presented behavioral difficulties in spite of taking medication, and he displayed great fear of dogs and bees. His medication was switched from Ritalin to Adderall 12.5 mg. p. o. q. a.m. and q. noon. According to Mother, teachers asked her to put Student back on medication, as his behavior was easier to manage when he was on Ritalin. (PE-1A; Testimony of Mother ) More recently, in 2003, Student was diagnosed with Aspergers Disorder . (PE-1A; SE-60) Student’s history shows that early on he had difficulties communicating with both adults and peers, became easily frustrated, had a low self-esteem yet a good sense of humor. (PE-2) His needs manifest as attentional and organizational issues, offensive, disrespectful or bizarre behaviors, inability to observe appropriate personal boundaries, refusal to comply with parental requests and complete assignments, lying, perseverative behaviors, low frustration level, socially inappropriate, and isolated. (Testimony of Mother, Ms. Schmitt, Ms.Madeiros-Grant)

· Student completed kindergarten, fist and second grades in the Billerica Public Schools (hereinafter, “Billerica”). (PE-2; SE-74) At the end of the first grade, it was recommended that he repeat first grade, a recommendation which Parents rejected after consultation with the Student’s psychologist and psychiatrist. Student was promoted to the second grade. (SE-74)

· On September 28, 1995, Student’s second grade in Billerica, Parents referred him for a special education evaluation because Student was “immature, [did not] mingle, [and his] attention [was] never on the task at hand.” (SE-73) Academically he was performing in the low average range with grades ranging from D+ in language arts to B+ in spelling. (PE-2; SE-73) The evaluations were conducted (PE-2; SE-73; SE-72; SE-71; SE-70; SE-69) and following a Team meeting on December 6, 1995, Student was found eligible to receive special education services. (PE-2; SE-68) He received daily classroom accommodations, speech and language and a 15-minute weekly consultation between the classroom and the resource room teachers under a 502.2 prototype program IEP. (PE-2; SE-68)

· The evaluators in Billerica found that Student tested at grade level in Math but presented weaknesses in producing visual motor responses. (SE-70) His speech and language evaluation evidenced the presence of a literal lisp. (SE-71) Receptive language was average except that he demonstrated difficulty processing temporal, spatial and passive relationships. His expressive language skills fell slightly below average range. (SE-71) Student tested within the average range in all areas of the Detroit Test of Learning Aptitude-Primary. (SE-72) Once per week thirty-minute speech and language therapy was recommended. (SE-71) During this time he took Ritalin to address his ADHD. (SE-71) Also, Student had been receiving remedial reading assistance to improve reading comprehension. This service was terminated on or about December 7, 1995 with the caveat that Student would need assistance in completing written assignments. (SE-69) Parents accepted the recommendations of the Team on January 4, 1996. (SE-69)

· Student transferred to Fitchburg under the Billerica IEP for his third grade. (PE-2) Fitchburg convened Student’s special education Team on December 2, 1996, at which time it was recommended that he no longer receive learning disability monitoring. (SE-64) His grades at the time ranged from A to C and his third grade teacher reported that he was not having academic difficulties. (SE-63; SE-64; SE-65) However, the speech and language therapist who evaluated Student on November 27, 1996, found that he still had needs in this area. (PE-2) She recommended that Student receive speech and language therapy services once per week for thirty minutes to improve phonological skills.⁶ (SE-66) She found that by June 1997 Student continued to have difficulty with carryover of newly acquired speech patterns to address articulation problems. (PE-2) The Team that gathered in December 1996 also recommended that Student continue to receive guidance counseling every other week. (SE-64)

· In May 1998, Student’s fourth grade, he took the MCAS with the following results: English Language Arts- needs improvement; Mathematics- failing; Science and technology- proficient. (PE-2)

· The Team gathered again on October 14, 1998, two months into Student’s fifth grade, to review his speech re-evaluation. (PE-2) Student was dismissed from the speech and language services, a determination which Mother accepted the same date. (PE-2) Student’s 1998-1999 grades ranged between Bs and Cs. (PE-2; SE-61) He however continued to have difficulties with organization and social issues. (Testimony of Mother)

· On April 29, 1999, as a result of a §504 meeting in Fitchburg, Student received classroom accommodations under a §504 plan. (PE-2; SE-62) These included: arranging for homework assignments to reach the home and to contain concise directions; provision of consistent structure; maintaining an assignment notebook. ( Id .) At the time the teachers noted that Student had little interactions with other students; had difficulty in getting the homework done generally; and, he asked numerous unnecessary questions making it unclear whether he did not understand something, or whether he was obsessing over it. (PE-2; SE-62) According to Mother, the §504 plan was insufficient to address Student’s needs and she transferred him to St. Anthony’s School, a catholic school, for Student’s sixth grade. (Testimony of Mother)

· Student started his sixth grade, the 1999-2000 school year, at the St. Anthony School; however, by October 1999, the second quarter, he was transferred back to Fitchburg after having been expelled from the Catholic school. (PE-3; PE-2; Testimony of Mother) During the rest of the sixth grade, after struggling in social studies and math, he earned mostly Cs, except for a B- in Science, a B in Technology, a D- in Social Studies and A- in Music. (SE-59) Mother continued to complain about Student’s chronic disorganization, missing homework and problems with peer relations. (Testimony of Mother)

· During the seventh grade, the 2000-2001 school year, he continued to struggle with missing assignments and maintaining his focus in class. (PE-3) Teachers noted that Student only interacted with one other student. (PE-3) His first quarter report card reflects that he was getting a D+ in Science where he was missing class work; in Study Skills he obtained a B but as in Language Arts where he obtained a C+, he failed to turn in a project report. He obtained a B+ in Social Studies; a C in Reading where again a project report was not turned in; and, a C+ in Math. (PE-3) By the end of the first semester he was passing all of his classes but teachers commented that he was becoming more talkative in class and was unprepared in certain subjects. At the end of the third quarter the teachers stated that Student’s effort was inconsistent, and that he lacked organizational skills. (PE-3; SE-57; SE-58) Patricia Finch Kelly of Fitchburg observed Student on March 17, 2001, and commented that Student was forbidden to sit at the class computer after deleting another student’s file and attempting to use the computer to access “white supremacist” organizations, an area in which he had developed interest. (PE-3) Throughout the year Mother stayed in contact with Student’s teachers attempting to come up with ways in which to address Student’s issues with missing homework, lying and lack of social interactions. This pattern of behavior would finally be recognized by Fitchburg by the end of Student’s eighth grade. (Testimony of Mother) Student passed all of his courses in the seventh grade with marks that ranged between C- and B except for Health in which he obtained a D. During that year he scored 240 in his MCAS for English Language Arts, equivalent to a “proficient” mark. (PE-3; SE-57; SE-58)

· On September 18, 2001, the beginning of Student’s eighth grade, Mother wrote to Dr. Fallon, Fitchburg’s former Superintendent of Schools, expressing her disappointment over his lack of follow-up regarding the previous school year’s conversation on how to assist Student. (PE-3) She again raised concerns that three weeks into the semester Student was having trouble staying organized, was overwhelmed by the demands of his new courses, and was being bullied by other students. (PE-3) The first quarter marks reflected the same comments as in previous years by the teachers regarding missing work and homework, and lack of effort. Student’s first quarter grades were F in social studies and language arts, D in science, D+ in French, C- in algebra Part 1 and B+ in health. (PE-3) By the third quarter he was failing algebra Part 1, Language arts and French, while his grade in social studies had improved to a B. (PE-3) He completed the eighth grade with: C in social studies; D- in algebra Part 1; D in French; C in science; D in language arts; C in performing arts; B in Art; D-in technology; and, he passed physical education. (PE-3) Student was promoted to the ninth grade. (SE-56; Testimony of Mother)

· Cynthia Pirani, MA, CAGS, 8 th grade guidance counselor in Fitchburg, discussed Student’s difficulties regarding inconsistent academic performance and failure, and behavioral issues, with Mother on January 14, 16, February 20, 27, 28, March 6,11, 20, 21 and 25, 2002. (PE-3; SE-55) Several pre-referral intervention strategies were implemented throughout this period unsuccessfully. These included: keeping an agenda book; referring Student to participate in an academic support/social group through the International Club; and, a check-in for assignments program. ( Id. ) Ms. Pirani opined that Student’s social and behavioral difficulties were tied to his disabilities and impacted on Student’s academic performance negatively. Since he transferred back into Fitchburg for sixth grade in 1999, Student’s performance had been inconsistent. She also suspected that Student’s performance was not commensurate with his ability. She commented that Student lied frequently, perseverated on certain ideas, was very isolated and his interactions with others frequently resulted in conflict. (PE-3; SE-55) Student’s incident sheet refers to Student as disrespectful; he destroyed property, forged signatures, got into fights, harassed other students, and engaged in other inappropriate behavior. (PE-3; SE-55)

· Mother testified that despite her numerous attempts to solicit assistance in dealing with Student’s issues in the sixth, seventh and eighth grades, she felt that Fitchburg did little other than implement strategies that proved to be unsuccessful during those years, and did not refer Student for a special education evaluation. (Testimony of Mother)

· On June 7, 2002, Student was referred for a special education evaluation by Mother, the 8 th grade teacher and the guidance counselor. (PE-3; SE-55) At the time he carried a diagnosis of ADHD and Anxiety. (PE-3; SE-55)

· On August 28, 2002, Fitchburg notified Parents of its intention to proceed with an initial evaluation of Student, with parental consent. (SE-54)

· Since the special education evaluation had not taken place and given that Student was still in regular education, his eighth grade teachers referred him to the Freshmen Academic Support Team (hereinafter, “FAST”) program for the ninth grade. (Testimony of Mr. Gastonguay) This program was discussed by Mother and Mr. Edward Gastonguay, Fithcburg’s high school guidance counselor, during a meeting held on August 30, 2003. (Testimony of Mr. Gastonguay, Mother) At the time of this meeting, Mr. Gastonguay had a copy of Student’s referral for a special education evaluation and some notes from Cindy Parani. (Testimony of Mr. Gastonguay) Based on the information available to him, Mr. Gastonguay endorsed the FAST program and Mother accepted placement of Student in it. ( Id. ) Mother also declined to provide consent to the proposed special education evaluations in full on August 30, 2002. (SE-54) Student remained a regular education student.

· The FAST program is a Fitchburg high school initiative designed to address the needs of regular education students with behavioral and academic issues. (PE-4; Testimony of Mr. Gastonguay) It is not designed to address the needs of children with special education needs. (Testimony of Ms. Schmitt) The FAST team teachers work collaboratively together with the support personnel to address the academic needs of the students. They also maintain communication with the parents. The program offers small group instruction in an environment that helps motivate students and fosters a community atmosphere. All students participate in a study skills class in addition to an elective. (PE-4; Testimony of Mr. Gastonguay) Counseling is an integral component to address “peer relationships, crisis intervention, behavior, student advocacy, interpersonal relations, loss, and other personal concerns.” (PE-4) Mother understood that the key to the success of the FAST program was that it offered smaller groups of students in a classroom, ongoing communication among the staff and between the staff and the parents. (Testimony of Mother) The previous year the FAST team had been headed by a school adjustment counselor who was responsible for coordinating the team meetings. This person left at the end of the 2002-2003 school year and the position was not filled during the 2003-2004 school year. (Testimony of Mr. Gastonguay) According to Mr. Gastonguay, some of the students in the FAST program came from home situations that were not supportive, poverty was common, they presented with behavioral issues that caused classroom disruptions, and required teacher direction to stay on track. (Testimony of Mr. Gastonguay) In Student’s case, his family situation was very supportive. ( Id. )

· Approximately six weeks into the 2002-2003 school year, the FAST team referred Student for a special education evaluation due to behavioral issues including speaking out, noncompliance, poor academic performance and poor social skills. (SE-42) Ms. Schmitt testified that Student had difficulty with appropriate personal boundaries. He would get very close to people when he spoke to them (“like nose to nose”), and he made inappropriate comments to teachers and peers such as “What are you going to force us to do today”; “I was on this really great Nazi web site last night”; “You are so stupid, why don’t you know that?” He also asked teachers if they wanted to see his third Reich stamp collection. (Testimony of Ms. Schmitt) Student could do the academic work and understood the material; the problem was with following through with his responsibilities. (Testimony of Ms. Schmitt) In Ms. Schmitt’s opinion Student chose not to do his work. (Testimony of Ms. Schmitt) SE-75 appears to be Fitchburg’s attempt to refer Student for a Special education evaluation, however, this document provides no specific date other than providing the month of October.

· Student’s first quarter progress report, received by Mother, showed that he was failing English, had a D in pre-algebra and science and was passing the rest of his academic subjects. (PE-4; Testimony of Mother) Concerned about Student’s performance and the lack of communication between the FAST teachers and her, Mother created a progress report sheet, which she gave to Student’s teachers on or about October 21, 2002 to fill out weekly. The report sought to gather information regarding Student’s progress, missing work, comments on his behavior and whether he was passing or failing the class. The weekly reports sought to keep Parents apprised of any difficulties on a regular basis. (PE-4; Testimony of Mother) Some of the reports in evidence dated October 21, 30, November 13 and 14, 2002, state that Student is doing well and is passing his courses. (PE-4) The November 22 nd report states that Student was missing work in language arts. The weekly reports helped Mother follow Student’s progress. She repeatedly asked that Student be given any missing work. (PE-4) The December 5 and 12 th reports state that Student is passing all of his courses. (PE-4)

· Upon meeting with the FAST team teachers, Mr. Gastonguay completed a Pre-referral form for special education services for Student on October 16, 2002 over concerns regarding academic failure, bizarre behavioral and social/emotional issues. (SE-53; SE-75) Present at the meeting from the FAST team were the science, world history, English and math teachers. (SE-53) They further recommended that Student undergo psychological and educational testing. ( Id. ) The medical information available included a diagnosis of ADHD and anxiety. (SE-53) The pre-referral document mentions that a previous referral had been initiated by the 8 th grade guidance counselor at the end of Student’s eighth grade. (SE-53) Ms. Isabella Catalhdo, Fitchburg’s ETL, forwarded a consent form to Parents on October 21, 2002, but Mother did not sign the consent that would allow Fitchburg to proceed with Student’s special education evaluation. (Testimony of Ms. Catalhdo)

· Also in October 2002, the FAST team staff went to the middle school to find out information regarding Student. It was then that the FAST team staff learned that Student had been referred for a special education evaluation in the 8 th grade. Had this fact been known to the FAST team, Student would not have been accepted to this program because it did not deal with special education students. (Testimony of Ms. Schmitt)

· Mother wrote to Mr. Masciarelli on November 5, 2002, frustrated about Student’s grades, disciplining, and the lack of effective communication between her and the FAST team, something she was led to believe would not be an issue. (PE-4)

· On November 12, 2002, Student was placed on academic probation because he was failing language arts and math. (PE-4) He was encouraged to participate in after school academic tutoring. ( Id. ) Mother received this notice but according to her, the math teacher failed to state in Student’s agenda that he was failing the class. (Testimony of Mother)

· On December 16, 2002 Fitchburg forwarded to Parents a third consent form to conduct Student’s special education evaluation. (SE-52; Testimony of Ms. Cathaldo) This is the first consent for evaluation that Mother recalled receiving during said school year. (Testimony of Mother) Mother consented to the evaluations on December 19 th , which was received by Fitchburg on December 27, 2002. (SE-52)

· The Parent Questionnaire was received by Fitchburg on December 27, 2002. (SE-51) Mother described Student as: affectionate, out-going, disorganized, enjoys learning, demanding, cheerful, quick learner, impulsive, caring fearful, focused (depends)⁷ , sensitive, difficulty making friends, runs from problems. ( Id. ) Student was reported to be friendly towards adult neighbors and his Karate instructor, he spent his time on the web or on the phone, took Karate lessons 3 or 4 times per week, and kept a stamp and coin collection. (SE-50) Mother reported that other than the weekly progress reports she instituted, the FAST teachers did not keep her informed of Student’s progress or missing assignments. Mother also shared concerns regarding Student’s lack of social skills and the impact it had on Student’s ability to make friends, something that could negatively impact Student’s work life. (SE-50)

· Lorna Sulin, OTR/L, occupational therapist in Fitchburg, performed an initial evaluation on January 3, 2003. (SE-42) Previous occupational therapy (hereinafter, “OT”) testing done in October 1995 showed no issues in this area. During this evaluation he was administered the (1) Develomental Test of Visual-Motor Integration (VMI) which placed him in the low-average range for his age in design-copying, and (2) the non-motor Test of Visual-Perceptual Skills (TVPS) in which his perceptual quotient fell in the mid-average range; and his handwriting was evaluated. In general, performance in these areas fell in the average range. Ms. Sulin noted that although Student was cooperative, he talked excessively throughout the test and his attentional difficulties impacted test results. (SE-42) The test showed Student to present weaknesses in sequential memory and visual-figure ground. Ms. Sulin recommended that distractions be minimized, that Student use a marker to keep his place, that he write down steps of multi-step directions and that he receive classroom notes from a classmate or a teacher. No occupational therapy services were found to be required. (SE-42)

· Arelindo S. Alves, M.Ed., C.A.G.S., performed a psychological evaluation on January 29, 2003. (SE-50; PE-5) He administered the Wechsler Intelligence Scale for Children III, in which Student obtained a Verbal IQ of 112, High Average Range of Intelligence, a Performance IQ of 103, Average Range and a Full Scale IQ of 108, Average Range. In the Wookcock Johnson Tests of Achievement III, Student obtained a 97 for letter identification (8.5 grade equivalence), a 91 for calculation (7.3 grade equivalence) and a 91 in Passage Comprehension (6.7 grade equivalence). (SE-50; PE-5) During the evaluation, weaknesses were noted in Student’s ability to work quickly, and to sustain concentration while working on visual tasks. Strengths were noted in general knowledge, visual alertness to detail, verbal abstract thinking, comprehension, social judgement, assembly skills, and perceptual organization. (SE-50; PE-5) The cognitive and achievement test results reflected significant discrepancy between Student’s ability and his math calculation and reading comprehension. (SE-50; PE-5)

· Elisa C. M. Madeiros-Grant (SE-83), M.Ed, performed Student’s educational assessment on January 19 th and February 3, 2003, in Fitchburg. (SE-49; PE-5) The Woodcock-Johnson Psycho-Educational battery III- Test of Cognitive Abilities (WJ III) administered on January 19 th showed that Student fell in the low average in fluid reasoning (standard score of 87) and short term memory (85) and extremely low in processing speed (68). Cognitive performance was impacted by extremely low cognitive fluency (57), very low cognitive efficiency (73) and below average executive process (81). According to Ms. Madeiros-Grant, the low cognitive efficiency would result in a reduced efficiency in performing automatic operations and complex tasks, it would take Student some time to complete schoolwork and retain information. His impairment in processing speed affected fine motor skills, reading, handwriting, math, copying from the board, reading rate, tracking, skimming and scanning skills, proofreading and using tests with separate answer sheets. (SE-49; PE-5) Given Student’s impairments, Ms. Madeiros-Grant recommended that he be given alternative, oral, untimed tests. Also, the foreign language requirement should be waived. Student should continue to develop word processing skills, and should be given a reduced course load, as well as a reduction in the amount of work he is required to complete. Developmental skills, including metacognitive strategies, organizational patterns, schemata and predication should be taught through content textbooks. (SE-49; PE-5) Student also requires study skills strategies, note taking, consistent use of an agenda notebook, monthly calendar, books on tape, instruction in the use of mnemonic strategies, use of a word processor with double space and large print and other accommodations. She further recommended that teachers cut down visual stimuli on worksheets and stated that his curriculum should be compacted, that is, Student would read the beginning and the teacher would summarize the ending. (SE-49; PE-5) Participation in a social skills development program was recommended and he should be held accountable for completing homework and with teacher assistance, for ensuring that he has written his assignments in the agenda notebook. ( Id. )

· The Adaptive Behavioral Assessment conducted on February 3, 2003, by Ms. Madeiros-Grant, also involved administration of the Scales of Independent Behavior-Revised. (SE-48; PE-5) This test which measures overall adaptive behavior based on an average of social interactions and communication skills, motor skills, personal living skills and community skills, showed that Student’s ability to care for himself, communicate and interact with others was age-appropriate. Gross motor skills were also age-appropriate but some fine motor skills, such as eye-hand coordination using muscles of the fingers, hands and arms, were limited. Ms. Madeiros-Grant found that Student would have difficulty with personal living skills involving preparation of meals, tasks involving use of toilet and bathroom, basic grooming, health and home maintenance, work habits, pre-vocational skills. (SE-48; PE-5) Problem behaviors regarding Student included: withdrawal or inattentive behavior, disruptive behaviors, unusual or repetitive habits, and socially offensive and uncooperative behavior. In school, he did not take responsibility for his schoolwork. Overall, Student demonstrated moderately serious internalized maladaptive and serious social maladaptive behaviors that warranted intermittent support and redirection. (SE-48; PE-5)

· Thomas Ferrazano, speech and language therapist in Fitchburg, performed a speech and language evaluation on February 25, 2003. (SE-47; PE-5) Mr. Ferrazano administered the TOAL-2 (Test of Adolescent Language), the Goldman Fristoe Test of Articulation Development, he performed informal clinical observations, spoke to teachers and staff, and reviewed pertinent parts of Student’s record. ( Id. ) Student’s written vocabulary and grammar skills were found to be in the average range. Student however, exhibited an inter dental lisp on the s and z, and some blended speech sounds in conversational speech. Mr. Ferrazano recommended speech and language therapy to address articulation skills. (SE-47; PE-5) Student’s vision and hearing tests were normal. (PE-5)

· Additional Student weekly reports were completed on January 3, 16, February 6, 14, March 7, 20, 27, April 16, and May 1, 8, 29, 2003. As of the May 29, 2003 report, the language arts, social studies and science teachers reported that Student was passing their classes with a 74, 89 and 78 percent grade average respectively. (PE-5) The math teacher reported that Student carried a 70 but stated that his grade would depend on his dictionary project and notebook grade, which could seriously bring his overall grade down. (PE-6) Concerned about Student’s academic status, Mother wrote to Ms. Dorothy Raggucci, the special education teacher, on June 4, 2003, asking that she follow up with Student’s teachers. (PE-6)

· Student’s Team met on February 27, 2003 to review the initial evaluation results and address Student’s eligibility to receive special education services. (PE-5; SE-44; SE-45; SE-46) By then, Fitchburg suspected that Student presented with a non-verbal learning disability. (Testimony of Ms. Catalhdo) Mother, Student and five other Fitchburg staff, including Ms. Catalhdo, Ms. Schmidt, Lisa Madeiros-Grant, and Mr. Ferrazano attended the meeting during which Student was found to be eligible to receive special education services. ( Id. ; SE-38; SE-44) Also on February 27 th , Fitchburg sent Parents an invitation to attend another Team meeting to be held in March since additional evaluations were needed. (SE-37) At the bottom of the February 27 th initial eligibility determination form, Fitchburg stated that “weekly reports [had been] requested by Parent with guidance counselor, but to date no weekly reports happened.” (PE-5)

· Patricia Finch Kelly was responsible for conducting Student’s classroom observations. She observed Student during Study on March 17, 2003. (SE-41) He was observed to interact with one student though the Study teacher reported that generally he did not interact with anyone. Student did not complete schoolwork during study period. The teacher reported that he often talked about “white supremacist” organizations, and reported that Student was angry that the teacher did not allow him to access those organizations’ web sites. Because of the improper use of the computer and having deleted another student’s file, Student was no longer allowed to sit at the computer. (SE-41) Ms. Kelly did not conduct an observation during math, but she met with the math teacher on March 19 th . (SE-40) The math teacher reported that Student had difficulty completing homework though he seemed to understand the concepts in class and completed the class work. In sum, effort was found to be inconsistent and organizational skills were identified as a problem. Peer relations were reported to be strained as Student made annoying or offensive comments without any understanding of the impact his comments had on others. He was reported to perseverate on topics and had trouble recognizing personal space. He was argumentative and often made up excuses for not doing things. (SE-40)

· Student’s Team convened again on March 20, 2003. (SE-36; PE-5) The plan drafted covered the period from March 2003 through March 2004 in Fitchburg High School. The Team concluded that Student presented with a specific learning disability, and communication and neurological disabilities. (SE-36; PE-5) The Team found that Student’s “difficulties with concentration, attention and memory limit[ed his] ability to stay focused and take control of all learning.” They also found him to be unable to read effectively at grade level in the general curriculum areas, as well as to present difficulties in processing information presented sequentially, or in performing multi-step problems. These issues were found to “significantly limit access and progress in the general education curriculum.” (SE-36; PE-5) The accommodations listed in the March 2003 IEP included:

Needs clear and concise directions; directions read/clarified as necessary

Requires visual discrimination, graphic organizers, demonstrations

Requires extended time for reading/ tests; quizzes

Would benefit from proximity seating

Frequent teacher interaction to keep on task

Frequent breaks in long periods of focused activity

Spelling errors not penalized when possible; use of computer on final drafts

Use of math facts sheet or calculator will facilitate math facts retrieval and aid problem solving

Study guides useful especially for social studies & science areas

English, reading and math would be adjusted to meet Student’s reading ability. Delivery of instruction would include step by step instructions; concrete examples, repetition of key points, presenting information in short bytes using clear and concise language, and information and directions would be reviewed, repeated and recited. (SE-36; PE-5) Twenty-one additional accommodations were made. This IEP called for periodic parent-teacher conferences. (SE-36; PE-5)

· The March 2003 IEP offered Student the following direct services in other settings: 6 sessions, 55 minute each academic support per seven day cycle, to address organizational and study skills with the special education teacher; and one thirty minute per week speech services to address pragmatic language and social skills, by the speech and language therapist. (SE-36; PE-5; Testimony of Ms. Ragucci) The IEP also offered ongoing consultation by the special education teacher to Student’s regular education teachers. ( Id .) It was felt that Student’s disabilities required small group, and more specialized instruction, so that Student could access the general education curriculum. Mother accepted the IEP program and placement in full on March 20, 2003. (SE-36; PE-5; Testimony of Mother)

· Throughout the period between March and June 2003, Ms. Ragucci noted frequent inconsistencies in Student’s stories regarding missing assignments, books and work. He also continued to have problems with organization and was found to waste a great deal of time. (Testimony of Ms. Ragucci) When monitored, Student could work well on his own. He showed sincere effort to perform. ( Id. ) According to Ms. Ragucci, Student benefited from close monitoring, as well as clear directions that were explained and modeled for him. (Testimony of Ms. Ragucci)

· On April 1, 2003, Mother executed a consent form allowing staff from the Learning Lab at Lesley University to communicate with Lisa Madeiros-Grant, Isabella Catalhdo and Mr. Gastonguay of Fitchburg. (SE-35)

· On June 10, 2003, Jerome Shultz, Ph.D., clinical neuropsychologist, Director of the Lesley University Learning Lab, issued a report with observations and recommendations regarding his diagnostic interview with Student. (PE-1; SE-34) Dr. Shultz met with Student on one occasion (May 1 st ), and twice with the Parents (April 15, and May 27, 2003). (Testimony of Dr. Shultz) Dr. Shultz found Student’s behavior and history to be consistent with a diagnosis of Aspergers Syndrome. (PE-1; SE-34; Testimony of Dr. Shultz) He raised concerns that some of the behaviors associated with Aspergers could be misconstrued, a possible reason why the medication for ADHD was not effective. According to Dr. Shultz, difficulties with organization and independent execution of complex tasks involving papers are behaviors consistent with Aspergers. (PE-1; SE-34) By report, Student had significant difficulty carrying out basic tasks of self-care and self-help, even when given multiple reminders. (PE-1; SE-34) Dr. Shultz explained that when unable to carry out tasks, or unable to explain the disappearance of notebooks, for example, Student would lie about it as a way to “protect himself from being discovered as someone unable to do (independently) what is expected.” (PE-1; SE- 34) During the interview, Student reported not feeling attractive physically or socially and stated that he felt alienated. (Testimony of Dr. Shultz) Dr. Shultz recommended that Student undergo a neuropsychological evaluation or a psychiatric evaluation to clarify his diagnosis, especially as it related to Aspergers and the interplay between the anxiety-related, social, attentional, and learning factors. He also recommended that the Team meet to discuss Student’s needs and progress. (PE-1; SE-34) Dr. Shultz testified that Student would benefit from a program:

… in which teachers were familiar with and educated about the now four diagnoses that have been assigned to him, that those teachers would be able to understand the implications and the behavioral ramifications of each of those diagnoses and the interplay; and if a teacher himself or herself was not trained in those, that the program ought to have available at least psychological or psychiatric consultation in order to help those teachers maintain their focus and their understanding of behaviors as they relate to the diagnoses. I think that a program that would be appropriate for (the student) would be one that would provide clear, unambiguous language in the classroom; clear, unambiguous structure in the classroom; one that would try to present things to (the student) in as concrete terms as possible, because students with Aspergers disorder have difficulty dealing with abstraction and they tend to be concrete thinkers, they tend to become anxious when presented with abstract or ambiguous stimuli. An appropriate program… would be one that frequently checks out his understanding of what’s been said and also importantly, what’s not been said in the classroom; that is, in terms of explaining social interactions… should have some kind of counseling or group experience that would help him with the adult- who’d have an adult helping him monitor the social nuances of social interaction and giving him very concrete, objective and non-punitive feedback about his social behavior in those circumstances. I believe that (Student) ought to be in an environment that would allow him to feel the success of being successful in an academic realm as well as a social realm… if he has a tendency to say, “I’m not going to do that,” I think the approach to dealing with that would be to say to him, “(Student) these are things which we know you’re very capable of doing, and the next thing we have to do is just a little bit different from that. Let me explain that difference to you and show you why you’re going to be successful with that.” People in that program ought to be moving from competence to competence and not reacting punitively to his denial to do work. (Testimony of Dr. Shultz)

Dr. Shultz further stated that he would make himself available to the Team through conference call. ( Id. ) Mother assumed that this consultation and report was equivalent to an independent evaluation. (Testimony of Mother) Dr. Shultz report was received in Fitchburg on July 2, 2003. (SE-34)

· Student’s Grades for the 9 th grade, the 2002-2003 school year, were as follows:

Qtr. 1 Qtr.2 Sem.1 Qtr.3 Qtr.4 Sem.2

Art I B- D C-

FAST Lang. Arts F C D C C- C

FAST Math F B- D C D D+

FAST Science D- D D- D+ F D-

FAST Social Studies B B+ B+ A A A

Fr. Acad. & Cultur A C- D D C- C C

Fr/So Health D F F

Keybording A- B- B

Learning D. Services P P P (SE-43; SE-33)

· On June 26, 2003, Mother wrote to Mr. Russell Durling (SE-77), Fitchburg’s Assistant Special Education Director, seeking to discuss Student’s long history of difficulty in completing schoolwork and to inform Fitchburg of Dr. Shultz’s suspicion of a diagnosis of Aspergers Syndrome. (PE-6; SE-32) This letter was received in Fitchburg on July 2 nd , and Dr. Jerome Shultz’s consultation report of June 2003 recommending that Student be further evaluated for Aspergers Syndrome was attached to Mother’s letter. Mother stated that an overhaul of the Student’s IEP and other accommodations was needed. (SE-32)

· Concerned about Fitchburg’s ability to meet Student’s needs, Mother contacted the Winchendon School on July 2, 2003, regarding Student’s possible acceptance “when she obtained funding from Fitchburg.” (PE-6)

· On or about July 29, 2003 Mother again wrote to Mr. Durling, rejecting Student’s proposed IEP for the period covering March 2003 through March 2004. (PE-7) She requested reconvening of the Team as she sought an increase in services and Student’s placement in a small self-contained classroom environment. (PE-7)

· On August 21 st Mr. Durling wrote to Fitchburg’s staff explaining his role regarding Student, the Aspergers Syndrome, reconvening the Team and about sharing information with Parents. (PE-7; SE-29) On August 26 th , he informed Parents of their legal rights regarding a request for an independent evaluation and low cost legal advocacy. He also informed Parents that Fitchburg would involve an Autism consultant who would help to develop a behavior intervention plan, as well as intentions to reconvene the Team. (SE-28; Testimony of Mother)

· On September 8, 2003, Fitchburg received Mother’s letter dated July 29 th rejecting Student’s proposed IEP and manifesting her intention to exercise her due process rights. (PE-7; SE-31) Fitchburg forwarded the rejected IEP to the BSEA on September 15, 2003. (SE-31) The BSEA issued its letter on September 18 th , explaining Mother’s right to mediation and a due process hearing. ( Id. ) Fitchburg received its copy on September 19 th . (SE-31)

· Fitchburg’s staff met with Mother on September 11, 2003 to discuss the information available to them regarding Student in light of Mother’s concerns about the inadequacy of his education in Fitchburg, and her request that Student be educated at the Winchendon School at public expense. (SE-26; SE-27)

· Over the months preceding September 11, 2003, Mother shared her concerns regarding Student with Dan Mylott, Tom Lamey, Russ Durling (of Fitchburg) and Gayle Greene (a special education advocate). (SE-26; PE-7) Student’s Fitchburg staff met on September 11, 2003 and discussed Student’s history in detail, starting in the second grade, and leading to his finding of eligibility in March 2003 as well as the diagnosis of Aspergers Disorder, as reflected by the meeting notes. (SE-26; PE-7)

· Dr. Keith C. Levy, M.D., of Psychiatry and Family Counseling of Worcester County, L.L.P., met Student on August 6 and on September 19, 2003 to assist with the diagnosis of Aspergers Syndrome. He explained that this syndrome was one where “youngsters [had] significant difficulty reading social cues, [had] non-verbal learning disabilities and [were] often misdiagnosed as [having] either Attention Deficit Disorder or Oppositional Defiant Disorder.” (SE-25) Dr. Levy was of the opinion that Student presented with Aspergers Syndrome, though he was high functioning. In his letter dated September 23, 2003, Dr. Levy recommended that the school environment provide increased structure, increased clarity of both academic and social expectations, and certainly an ongoing dialogue with Parents about the expectations. (SE-25) The school setting should stress emotional, academic, psychological and interpersonal issues, as Student’s needs were found to be greater in the social emotional areas. (SE-25)

· On or about September 26, 2003, Mr. Durling invited Parents to participate in a Team meeting in Fitchburg. (SE-24) A draft copy of the IEP that would be discussed at the Team meeting was forwarded to Parents for their review. (SE-24; SE-20)

· Student’s Team met on October 7, 2003. (SE-14) In attendance were: Mother, Richard Vaughn (SE-80, math teacher), Luis Uribe (biology teacher), Lisa Madeiros-Grant (special education teacher), Roann Demanche (Autism Specialist), Tom Farrazano (Speech), Russ Durling (Assistant Special Education Director), and Shirley Bennett. (SE-21) The meeting minutes reflect that the purpose of convening the Team was to develop student’s IEP, make a placement determination and discuss Mother’s request for placement of Student at the Winchendon School. (SE-22; PE-7) Overall, the participants reported that Student was passing all of his courses, and was making progress academically and socially. (SE-22; PE-7; SE-23)

· An IEP was drafted covering the period from October 14, 2003 through October 14, 2004, which offered Student participation in a full inclusion program at Fitchburg High School. (PE-8; SE-19) The IEP recognized Student’s primary areas of disability as a neurological impairment and a specific learning disability. Fitchburg further defined neurological impairment as “high functioning Aspergers”. (PE-8; SE-19; SE-20) The IEP proposed that the special education staff provide ongoing consultation to Student’s teachers regarding organization and social issues. Additionally, under direct services in other settings, Student would receive 60 minutes per six day cycle of speech and language with the speech staff, and 6 sessions 55 minutes long of services to address organizational and social issues with the special education staff. (PE-8; SE-19; SE-20) The IEP offered Student accommodations during state or district-wide assessments in English, language arts and mathematics. (PE-8; SE-19) A behavior intervention plan attached to this IEP, addresses Student’s impulsivity, organizational skills, perseveration, social interaction skills and frustration.⁸ (PE-8; SE-19) The behavioral concerns listed are “inappropriate or aggressive verbal statements, resisting re-direction from authority figures, denial of personal accountability and rigid thought- processing or inflexible posturing.” (PE-8; SE-19) The IEP was forwarded to Parents on or about October 9, 2003. ( Id .; SE-13) It did not recommend that Student attend a non-approved 766 private school as Mother had requested. (PE-7; SE-22)

· On October 7, 2003, Fitchburg received a request from Mother for an Independent Evaluation. (SE-30) The request was dated July 29, 2003 but had not been mailed to Fitchburg at that time. On October 28 th Mother wrote a note at the bottom of the July 29 th letter stating that she no longer sought Independent Evaluations as Student had undergone sufficient evaluations. (SE-30)

· Mr. Durling wrote to Parents on October 10, 2003 to clarify Fitchburg’s understanding that Parents had intended to request an independent evaluation on July 29, 2003, even though they had not made the written request earlier. (SE-18) Mother’s request for an independent evaluation was attached to Dr. Levy’s report, submitted by Parents to Fitchburg on October 7, 2003. (SE-18)

· On October 27, 2003 Fitchburg received a letter from Mother dated October 21 st in addition to Mother’s rejection of the proposed program and placement in Student’s IEP. (SE-17; PE-8) Mother stated that the IEP was likely inadequate because the proposed placement was inadequate and stated that she preferred that Fitchburg place Student at Winchendon School where his needs could be met. Mother dated her rejection of this IEP October 16, 2003 but it was not received by Fitchburg until October 27, 2003. (SE-17; PE-8)

· On November 13, 2003, Mr. Durling wrote to the BSEA requesting a mediation regarding Mother’s rejection of Student’s proposed IEP. (PE-14) Non-acceptance of the IEP would result in a denial of FAPE to the Student since he had just been found eligible to receive special education service in March 2003. There were no other applicable accepted IEPs. Therefore, Student would remain without special education services pending resolution of the disagreement between the Mother and the School. (SE-14) The previously rejected IEP had been forwarded to the BSEA on October 27, 2003. (SE-16) The Parties participated in mediation. (Testimony of Mother)

· Mr. Durling again communicated with Mother in an attempt to have the IEP implemented so that Student could receive the services in the IEP. (Testimony of Mother) Even if the IEP looked good, Mother was concerned that the teachers would fail to implement it. ( Id. ) However, on December 17, 2003, Mother accepted the IEP in full. (SE-13)

· On December 28, 2003, Mother filed a complaint with the Department of Education’s (hereinafter, “DOE”) Problem Resolution division. (PE-9) Her complaint involved: non-provision of adequate supports within the FAST program; failure to notify Parents that Student was failing two core courses; failing Student because of the impact of the issues that caused him to be placed in the FAST program in the first instance; and the principal’s refusal to drop the failing grades. The DOE did not take formal action regarding this complaint because of the nature of the complaint. (PE-9) The DOE notified Mother that the principal’s refusal to drop the failing grades could be appealed in writing to the superintendent, and also that issues regarding non-compliance with a mediated agreement should be brought back to the mediator. (PE-9)

· Fitchburg’s staff agreed to implementation of weekly progress reports, which were forwarded to Mother on December 23, 2003, January 9, and February 6, 2004. (SE-1; SE-8; SE-9; SE-10; SE-11; SE-12; Testimony of Mother)

· On January 18, 2004, Mother wrote to Fitchburg, to clarify that Student worked on weekends and during vacations for a total of 20 hours. She further reminded the staff that Student’s statements should be taken “with a grain of salt” since he was known to lie, a trait that according to Mother was a symptom of Aspergers Syndrome. (SE-7)

· An academic Progress Report dated 2/27/04 shows Student’s grades as follows: B in English (1 absence); A in computer application (0 absences); A in learning disability services (0 absences); A in biology; Passing in algebra 1-A; B in history (2 projects not turned in). (SE-3) His previous tenth grade report card for the first semester showed a C+ in English, B- in Fr/So health, Pass for learning services, B in biology, C+ for algebra I-A level 2 and C+ for American history So I. (PE-9; SE-4; see also SE-15) A comparison of these report cards shows Student’s academic progress and accomplishments towards reaching Goal #1 in his IEP. (SE-5) Progress reports issued by Student’s teachers in February 2004, at Mr. Durling’s request, indicated that Student was making progress in all academic areas, displayed appropriate behaviors and socialized well with peers. (SE-8) While homework completion, talking and making inappropriate comments had previously been a struggle (SE-9, SE-19), improvements in these areas were noted by February 2004. (SE-8)

· Student’s Team met on March 10, 2004 to discuss Student’s progress over the 2003-2004 school year. (SE-1; SE-2) Student’s Fitchburg teachers commented that Student came prepared to class, actively participated and behaved appropriately. (SE-1; Testimony of Ms. Sherblom, Mr. Vaughn, Mr. Woodard-McNiff, Mr. Celeste, Ms. Madeiros-Grant) He did not appear to be overwhelmed by the work. Teachers also noted that he wrote down his assignments in the assignment notebook. ( Id .) Compared to his peers in the same classes, he was doing average to above average work. Homework was recognized as a continuing challenge for Student, but he was allowed to make-up assignments without imposition of penalties and in some classes the assignments were completed in class. Teachers implemented accommodations consistently. Ms. Madeiros-Grant, the learning disabilities teacher, noted improvement with study skills but she observed that this was an area in which Student would always struggle. (SE-1) Student was described as a strong auditory, enthusiastic learner, slightly immature and respectful of adults. (SE-1; Testimony of Mr. Celeste) At times, he could be oppositional as stated by Robert Celeste (SE-82), Student’s science teacher who explained that “regarding the DNA project he did not complete- he flat out refused to do the project/ I offered to work with him, Lisa offered to work with him, he was given unlimited time to complete the project but he simply chose to do nothing.” Additionally, Student had a project due in Science the following day (3/11/2004) on which he also refused to work. (SE-1)

· According to Sean Woodard-McNiff (SE-81), English teacher, Student came to class prepared, wrote down his assignments and was appropriate. (SE-1) In English, he did better with reading than he did with grammar. (Id.) Lisa Madeiros-Grant, special education teacher, provided Student academic support. The focus of her time with Student centered around developing study skills and applying them to the academic work load areas impacted by his disability. (SE-1) Debra Sherblom (SE-79; SE-79A), social studies teacher stated that while Student performed at a high level, homework was a challenge. Dick Vaughn, algebra teacher, and Mr. Celeste agreed that Student did well in their classes and was appropriate with his peers. (SE-1; Testimony of Mr. Celeste, Mr. Vaughn) Student’s sample work can be found at SE-79 and SE-80.

· Tom Ferrazano, speech and language therapist in Fitchburg, worked with Student beginning in 2003. (SE-1) He assisted Student with the lisp, and worked with him in regards to social skills. By March 2004, Student could address his lisp in isolation but could not carry over outside the classroom. (SE-1)

· A note from Mr. Durling confirms his agreement with Mother to do four weeks of progress reports in an attempt to restore Mother’s trust. (SE-1) However, the status reports were not consistently provided to Mother as agreed. (Testimony of Mother) Mr. Durling further stated that he assumed full responsibility for the failure of this attempt as he “never should have attempted to coordinate the delivery of progress reports from central office without the involvement of Mr. Welch.” Mother expressed concerns that Student was not bringing homework home, and in her opinion 55 minute daily LD support was insufficient for him to complete homework in school. She requested that teachers notified Ms. Madeiros-Grant or her anytime Student missed more than two assignments. (SE-1; SE-2) The Team agreed to comply with this recommendation and also agreed to send progress reports home. Following the Team meeting of March 10, 2004, Mr. Durling encouraged Mother to contact any of the teachers directly when she had questions. (SE-1)

· The Winchendon School is a small regular college preparatory boarding school in north central Massachusetts. (PE-13) The school also admits some students as day students. Classes are small with a one teacher per six students ratio. The academic program is tailored to each student’s strengths and needs and the program follows a cooperative learning approach. (PE-13; PE-10) The curriculum is process-oriented whereby reading, organizational and study skills are taught within the course context. (PE-10) Students with learning disabilities are taught in a mainstream setting to avoid labeling. Self-esteem is achieved through meeting high expectations. (PE-10) The campus includes an 18 hole golf course, a gymnasium, indoor and outdoor basketball courts, an art building, outdoor pool, photography lab, tennis courts, computer lab, dormitories, classroom facilities and a library. (PE-13) Students are also able to volunteer for a variety of activities in the community. (PE-13) Students are held accountable for their behavior and clear consequences or privileges are awarded accordingly. Students receive daily grade slips from their teachers and parents are given weekly progress reports. (PE-13) The Winchendon School was mentioned to Parents by Dr. Shultz, as this school had been used by former clients of his. (Testimony of Dr. Shultz) He described it as a school that embraced children who learned differently. ( Id. )

· Mother asserts that to date Student continues to have a lisp, cannot do things independently, cannot compose a paragraph, does not use his agenda consistently, is impulsive, compulsive, offensive, has rigid thinking, cannot let go of issues, and does not bring homework home. (Testimony of Mother) She further stated that Student met with Ms. Madeiros-Grant regularly, that he had a good relationship with Mr. Ferrazano, and that his social skills had improved. This year he is friendly with two girls and one or two other boys from school. Mother admitted that although social skills remained an area of concern, she noted improvement and agreed that Student had some acquaintances. (Testimony of Mother) Mother believes that Fitchburg has failed to prepare Student to deal with life when he graduates. ( Id. )

CONCLUSIONS OF LAW:

There is no dispute between the parties that Student is an individual entitled to the protections of the IDEA. He carries a diagnosis of ADHD, Combined Type and Aspergers Syndrome. (SE-25; SE-26) He was also diagnosed by Dr. Connor in April 2000 with Oppositional Defiant Disorder, Specific Phobia (bees and dogs), and Anxiety Disorder NOS which was felt to be secondary to the ADHD. (PE-1; SE-60) Student was described as a great conversationalist and has assumed leadership roles in school. (Testimony of Mr. Ferrazano)

While Student’s entitlement is not in question at this time, the dispute arises over the length of time that it took Fitchburg to evaluate, qualify and service Student under special education, as well as over the appropriateness of Student’s current program in Fitchburg and whether he is entitled to private placement at a non-approved regular education school at public expense.

In reaching my conclusions, I hereby incorporate and rely on the facts delineated in the Findings of Fact section of this decision and am therefore, not repeating them but rather highlighting the most relevant points.

Whether Fitchburg failed to identify Student’s needs for special education services in a timely manner:

The evidence shows that Student’s educational struggles began as early as the second grade when he was in Billerica. The concerns raised by the staff in Billerica included Student’s learning skills, attentional issues, excessive talking, impulsivity, reading comprehension, difficulty processing complex language, and production of written language. (SE-26; PE-7) He received special education services in Billerica and in Fitchburg through October 1998, Student’s fifth grade when his services were terminated with Parental consent. (PE-2; SE-61; SE-63; SE-64; SE-65; SE-66; SE-68; SE-69; SE-71; SE-72) He was then placed on a § 504 plan the following semester to address the same issues that have afflicted Student to date. (PE-2; SE-61) Thereafter, he did not receive any special education services or accommodations under a § 504 plan over the following years. (Testimony of Mother)

In the 6 th grade while attending Fitchburg, Parents took Student for a psycho-pharmacological consultation with Dr. Daniel F. Connor. Student had taken Ritalin and Adderall but these had failed to improve his behavior and ADHD. Parents noted that Student was resisting doing his chores and homework at home, had poor organization skills, impulsive behaviors, very poor social skills resulting in rejection by peers, became easily angered, derived pleasure from annoying others, and had difficulty accepting responsibility for his behaviors. (SE-26; PE-7; Testimony of Mother) Following a psychiatric consultation initiated by Parents, Dr. Connor diagnosed Student with Oppositional Defiant Disorder, and Anxiety Disorder in addition to the ADHD. (SE-26; PE-7) Student continued to struggle with organization, social pragmatics, impulsivity, and other issues mentioned infra during the sixth, seventh and eighth grades. (PE-2; PE-3; SE-57, SE-58; SE-59) During that time, Mother approached school personnel relentlessly in an attempt to help Student with missing homework, organization, lying, lack of social interactions and inappropriate behavior in school and at home. He however, was not referred for a special education evaluation until the end of the eighth grade. (SE-55; PE-3; Testimony of Mother, Mr. Gastonguay)

The evidence shows that Fitchburg’s personnel listened to Mother’s complaints but did little to address Student’s issues outside the context of regular education. (PE-3; Testimony of Mother)

Prior to January 1, 2002, Massachusetts required that eligible special education students be educated in a program that offered then a “FAPE”, inclusive of special education and related services, that met state educational standards and the requirements of the “Chapter 766” Regulations at the preschool, elementary and secondary education levels. 603 CMR 28.110.0. Under federal and state standards, services goals and objectives had to be clearly delineated in an IEP. In Massachusetts a FAPE also assured students the development of their maximum potential consistent with David D. v. Dartmouth School Committee , 775 F.2d 411 (1 st Cir. 1985). State and federal standards further required that the student be placed in the least restrictive environment appropriate to meet his/her individual needs. 603 CMR 28.118.0.⁹

Effective January 1, 2002, Massachusetts changed its standard to mirror federal guidelines and maximization of a Student’s potential was no longer required. 603 CMR 28.00 et seq. Under the new standard, the IEP proposed by the school district must offer student a FAPE that meets state educational standards. MGL c. 71 B § 1, 2, 3; See also 603 CMR 28.01 & 28.02 (21). To the maximum extent possible Students must have access to full participation in the general education curriculum, and their education must be offered in the least restrictive environment appropriate to meet his/her individual needs. 20 USC 1412(5)(A); 20 USC §1414(d)(1)(A)(iii); 34 CFR 300.347(a)(2)(i) and (a)(3)(ii); 64 Fed. Reg. No. 48, page 12595, column 1; MGL c. 71B § 1; 603 CMR 28.02 (12). See In re: Worcester Public Schools , BSEA # 00-0912, 6 MSER 194 (SEA MA 2000); In re: Gill-Montague Public Schools District , BSEA # 02-1776, August 28, 2002; In Re: Medford Public Schools , 8 MSER 329 (SEA MA 2002).

Because of the three-year statute of limitations adopted in special education cases, the relevant period for this decision begins in January 2001¹⁰ , making the FAPE standard applicable for most of the time period involved.

Whether Fitchburg denied Student a Free Appropriate Public Education

Education from January-June 2001 and for the 2001-2002, 2002-2003 and 2003-2004¹¹ school years:

2001-2002 School Year:

In July 2001, prior to the beginning of the 2001-2002 school year, Mother met with Dr. Philip Fallon, Fitchburg’s Superintendent of Schools, to discuss Student. Specifically, Mother was concerned with Student’s behavioral issues (lying about completing homework, social inappropriate behaviors, perseverative behaviors, isolation, and becoming easily frustrated), the fact that his grades did not reflect his academic ability, and the impact this would have on Student’s performance in the eighth grade. (Testimony of Mother) Mother asked that Dr. Fallon speak with Student’s guidance counselor and teachers regarding Student’s needs. Dr. Fallon acknowledged receiving Mother’s letter dated September 18, 2001 but could not remember what if anything he did as a result. (Testimony of Dr. Fallon)

SE-56, Student’s grades for the 2001-2002 school year, the 8 th grade were as follows:

Qtr. 1 Qtr.2 Sem.1 Qtr.3 Qtr.4 Sem.2 Final

Art (6) B

Performing Arts (5) C

Physical Education P

Technology (2) D-

Lang. Arts (2) F B- D+ F D- F D

Algebra Part I C- C C- F F F D-

Science D B- C C C C C

Social Studies F D- D B C C C

French D+ C- C- F C- F D

Health B+

Throughout the school year, Mother spoke multiple times to Student’s eighth grade teachers and the guidance counselor regarding the exacerbation of Student’s difficulties. (PE-3; SE-55; SE-56) Student’s issues were not resolved even with the modifications implemented in regular education. While he consistently tested well on standardized tests, his performance on daily academic tasks and grades were erratic. He obtained an F in Language Arts and another F in Algebra Part I at the end of the first semester. By the fourth quarter his grades had continued to decline. (SE-26; SE-55; SE-56; PE-7) Throughout that year, he completed between 25% and 50% of his assignments, and his behavioral issues worsened. His offensive and disrespectful behaviors increased, and he had two disciplinary referrals including two detentions, one in November 2001 and another in January 2002. (SE-55; SE-56; PE-5) The information gathered by Fitchburg throughout that year showed that: Student frequently lied about having completed work, picked on other students and was picked on by others, presented socially inappropriate behaviors, had a low frustration level in social situations, was socially isolated, perserverated on certain ideas, and challenged authority. (SE-26; PE-7) Student carried diagnoses which included ADHD, Oppositional Defiant Disorder and Subsyndromal Anxiety Disorder as per Dr. Connor’s report of 2000. (SE-60; PE-3) Fitchburg however, did not refer Student for an evaluation until Cindi Pirani, Student’s 8 th grade guidance counselor, made one in June 2002. (SE-55; SE-26; PE-7)

Given Student’s abilities, his needs, the inconsistency in academic performance and academic failure, he should have been referred for a special education evaluation long before June 2002, i.e. in December 2001 or by January 2002, after Student received the two Fs in content courses.¹² (SE-26; PE-7) The delays in effecting said referral were unwarranted, as it was clear that Student’s development was at stake. See 603 CMR 28:04(1). Under both the pre 2002 Massachusetts special education regulations, and the ones that came into effect in January 2002, Fitchburg was mandated to effect the referral by January 2002.

The evidence supports a finding that Fitchburg violated Student’s procedural due process rights in failing to refer Student in a timely manner. However, Mother failed to establish that Fitchburg’s transgression warrants Student’s placement outside the district. Furthermore, she requested no other form of relief and the evidence sheds no light as to what kind of relief if any would be appropriate for Fitchburg’s failure to refer, evaluate, and consider special education services for Student in a timely manner.

2002-2003 School Year:

Student started the ninth grade as a regular education student in Fitchburg. (Testimony of Mother) Prior to the beginning of classes in August 2000, Mother met with Mr. Gastonguay the high school’s guidance counselor to discuss Student’s issues and the proposed regular education program. Mr Gastonguay discussed the merits of the FAST program which included: smaller student/teacher ratios; clarity of the classroom expectations and directions; preferential seating; presentation of academic material at a slower pace; and, teachers kept close communications and met weekly. He also stated that the FAST program offered a therapeutic environment with emotional support. (Testimony of Mr. Gastonguay, Mother, Ms. Schmitt) Mother was persuaded that the FAST team would be able to handle Student’s issues and “agreed to delay processing the referral [for special education evaluation] because the FAST program was promoted as providing the structure and support [that Student] needed.” (SE-26; PE-7; Testimony of Mother)

Ms. Schmitt, a teacher on the FAST team, testified that she remembered going to the middle school to discuss the students who had been referred for the FAST program, and did not recall any particular aspects of the discussions regarding Student. (Testimony of Ms. Schmitt) She testified that the FAST team did not know that Student carried several diagnoses or that he had been referred for an evaluation, this would have rendered Student inappropriate for participation in the FAST program. (Testimony of Ms. Schmitt) Contrary to Fitchburg’s assertions, the evidence failed to show that the FAST program provided a therapeutic environment; there was no coordinator as in previous years; it did not provide adequate emotional support to Student; and it lacked effective communication between the teachers and Parent. (Testimony of Mother, Ms. Schmitt)

In October 2002, the FAST program staff submitted a referral for special education noting that Student displayed bizarre behaviors, was non-compliant, spoke out at inappropriate times and made inappropriate statements, and refused to do the work. (SE-26; PE-7; Testimony of Dr. Shultz, Mother, Ms. Schmitt) These were the same behaviors that had been noted by teachers and Parents the previous years. Additionally, Student presented obsessive compulsive behaviors, poor organizational skills, poor social skills and was unaware of appropriate boundaries/space when he addressed others. (SE-26; PE-7; Testimony of Ms. Schmitt) He was stubborn, anxious, argumentative and quite alienated socially and was aware of his isolation. (SE-26; PE-7; Testimony of Dr. Shultz, Mother, Ms. Schmitt)

Ms. Catalhdo forwarded a consent form to Parents on October 21, 2002, to proceed with a special education evaluation but the consent was not signed and Student remained in the FAST program. (Testimony of Ms. Catalhdo)¹³ This was the second consent form Fitchburg forwarded to Parents in four months.

During this time, the FAST staff implemented classroom strategies including prompting, verbal redirection, and preferential seating but did not ensure consistently that Student’s assignments were written in Student’s agenda as evidenced by the infrequent entries in it. (SE-26; PE-7; PE-14; Testimony of Ms. Schmitt) After October 2002, the FAST staff complied with the weekly progress reports initiated by Mother. (PE-4; Testimony of Mother) Even after learning that Student carried several diagnoses and had been referred by the 8 th grade staff for an evaluation, they implemented no other modifications in the regular education setting, until Student was found eligible in March 2003. (Testimony of Ms. Schmitt) Ms. Schmitt lacked substantive training in addressing the needs of students with anxiety or Aspergers Syndrome, a diagnosis which would later be confirmed. (Testimony of Ms. Schmitt)

In November 2002, Mr. Masciarelli received a letter from Mother as a result of which he spoke with the FAST team and direct communication between the teachers and Mother ensued. (Testimony of Mr. Masciarelli) Mother put together a weekly progress report sheet, which improved the communications between Mother and teachers resulting in some improvement in Student’s performance. (Testimony of Ms. Schmitt, Mother) The reports however, were not consistent and Student’s grades reflected the lack of appropriate support services and the staff’s misunderstanding of Student’s issues. (Testimony of Mother) Ms. Schmitt testified that she expected some of the students in her class to fail during the first quarter, which was not necessarily a bad thing according to her. (Testimony of Ms. Schmitt)

On December 16 th Fitchburg forwarded a third consent form to Parents. This time Parents returned their consent on December 27, 2002 and evaluations were scheduled. (SE-52)

603 CMR 28.04(2) provides that:

Upon consent of the parent , the school district shall provide or arrange for the evaluation of the student by a multidisciplinary team within thirty (30) school days. The assessments used shall be adapted to the age of the student and all testing shall meet the evaluation requirements set out in state and federal law. The school district shall ensure that appropriately credentialed and trained specialists administer the assessments. (emphasis added)

Without parental consent, Fitchburg could do nothing other than continue to implement classroom strategies to address Student’s needs in the regular education context, but it could not begin the evaluation process. Parental consent is essential in triggering the school’s responsibility under 603 CMR 28.04(2). Once the consent was received, Fitchburg scheduled the evaluations starting in January 3, 2003, and convened the Team to review all of the evaluations consistent with 603 CMR 28:05(1)¹⁴ , except for the classroom observation which was done in March, requiring a second Team meeting on March 20, 2003. (SE-36; SE-40; SE-41; SE-42; SE-44; SE-47; SE-48; SE-49; SE-50; SE-51; PE-5)

The evaluations conducted by Fitchburg between January and March 2003 showed that

Student possessed high average verbal skills but lower performance skills as a result of his difficulty sustaining attention. (SE-26; PE-7) Reading comprehension and math calculation skills were found to be below his cognitive potential. (SE-26; PE-7) Student’s IQ was found to be in the high average range with a verbal performance score of 112, performance score of 103 and a full scale score of 108 on the WISC III. (SE-36: PE-5) The Slingerland High School Screening for Specific Learning Disabilities showed deficits in the areas of short and long term visual memory, visual discrimination and perception and auditory memory for numbers. (SE-39; PE-5) According to the FAST team teachers and the evaluators, Student was reported to present social behavioral problems in some classes. (SE-26; PE-7; Testimony of Ms. Schmitt) The serious social maladaptive behaviors were corroborated by the Scale of Independent Behavior-Revised administered by Ms. Madeiros-Grant who made numerous other recommendations for Student. (SE-48) These included: administering alternative, oral, untimed tests; waiver of the foreign language requirement; developing word processing skills; a reduced course load; a reduction in the amount of work required to be complete; that developmental skills, including metacognitive strategies, organizational patterns, schemata and predication be taught through content textbooks; provision of study skills strategies; note taking; consistent use of an agenda notebook; monthly calendar; books on tape; instruction in the use of mnemonic strategies; and use of a word processor with double space and large print. (SE-49; PE-5) She further recommended that teachers cut down visual stimuli on worksheets and stated that his curriculum should be compacted, that is, Student would read the beginning and the teacher would summarize the ending. (SE-49; PE-5) Ms. Madeiros-Grant also recommended Student’s participation in a social skills development program and accountability for completing homework with teacher assistance in ensuring that he has written his assignments in the agenda notebook. ( Id. ) Student exhibited moderately serious internalized maladaptive and serious social maladaptive behaviors that warranted intermittent support and redirection. (SE-48; PE-5)

According to Ms. Madeiros-Grant, Student would have difficulty with personal living skills, basic grooming, health and home maintenance, work habits, and pre-vocational skills. (SE-48; PE-5) The speech and language evaluation by Mr. Ferrazano was positive for an inter- dental lisp on the s and z, and some issues with blended speech sounds in conversational speech for which Student required speech and language therapy to address articulation. (SE-47; PE-5)

Following the Team meeting in March 2003, Student was found eligible to receive special education services. Under direct services in other settings, this IEP offered Student 6 sessions, 55 minutes each of academic support, per seven day cycle, with the special education teacher to address organizational and study skills; and, one thirty minute session per week of speech services to address pragmatic language and social skills, delivered by the speech and language therapist. (SE-36; PE-5; Testimony of Ms. Ragucci) The IEP also offered ongoing consultation by the special education teacher to the regular education teachers. ( Id .) Student’s eligibility was based on a language learning disability and a possible neurological disability, namely ADHD. (SE-26; PE-7) By then Ms. Madeiros-Grant had raised concerns that Student may present with Aspergers Syndrome. (Testimony of Ms. Madeiros-Grant) On June 10, 2003 Dr. Jerome Schultz of Lesley University agreed that Student’s presentation was consistent with Aspergers Syndrome, a diagnosis later corroborated by Dr. Levy in September 2003. (PE-1; SE-25; SE-26; SE-34; PE-7) Dr. Levy pointed out that Student presented characteristics consistent with Aspergers Syndrome such as: difficulty reading social cues, non-verbal learning disabilities, weaknesses in social and emotional development. Student however, was found to be higher functioning than others with this diagnosis. (SE-25; PE-2) In Dr. Levy’s and Dr. Shultz’s opinions, the Aspergers Syndrome diagnosis should be added to Student’s other diagnoses. (SE-25; Testimony of Dr. Shultz)

Student’s Grades for the 9 th grade, stated below, reflect the impact of Student’s issues on academic performance:

Qtr. 1 Qtr.2 Sem.1 Qtr.3 Qtr.4 Sem.2

Art I B- D C-

FAST Lang. Arts F C D C C- C

FAST Math F B- D C D D+

FAST Science D- D D- D+ F D-

FAST Social Studies B B+ B+ A A A

Fr. Acad. & Cultur A C- D D C- C C

Fr/So Health D F F

Keybording A- B- B

Learning D. Services P P P (SE-43; SE-33)

Once the IEP was in place, the FAST teachers allowed Student to take tests orally if he wanted to do so (but sometimes he would not want to finish parts of it) and allowed him additional time to complete and turn in his projects. (Testimony of Ms. Schmitt) There was no testimony regarding implementation of other modifications recommended by Ms. Madeiros-Grant. The FAST team lacked a clear understanding of Student’s needs, and this resulted in grade penalization when Student failed to turn the work in. This was made clear by Ms. Schmitt who testified that in her opinion “Student simply chose not to do the work”. (Testimony of Ms. Schmitt) The FAST team should have worked closely with the special education staff to understand and better address Student’s needs.

The evidence is persuasive that once the teachers in the FAST team became aware of Student’s issues, they referred him for an evaluation, which Fitchburg was unable to complete until 2003 due to Mother’s delay in giving her consent until late December 2002. (SE-52; Testimony of Mr. Gastonguay, Ms. Catalhdo)

Thereafter, Fitchburg began the evaluation process but failed to complete it within the period of time allowed under the Massachusetts regulations. 603 CMR 28: 05(1) requiring that evaluations be completed within thirty (30) school working days after parental consent is received. 603 CMR 28: 05(1). The evidence shows that the consent form signed by Parent in December 2002, received by Fitchburg on December 27, 2002, included an occupational therapy evaluation and an observation of Student in the classroom. (SE-52) Fitchburg however, did not perform these evaluations until mid March 2003 (classroom observations performed on March 17 th and 19 th ). (SE-41) Neither the occupational therapist nor the classroom observer was present at the February 27, 2003 Team meeting. (SE-46) The results of these evaluations were not discussed until the Team meeting held on March 20, 2003. (SE-36; PE-5) Once the evaluations were completed and the Team convened on February 27 th and March 20 th , an IEP was drafted and accepted by Mother. (SE-36; SE-40; SE-41; SE-42; SE-47; SE-48; SE-49; SE-50; PE-5; PE-6) It was from that point on that Fitchburg was responsible to offer services consistent with that IEP. The evidence shows that Student began to receive said services in March 2003. (Testimony of Mr. Gastonguay, Mother) Since Mother failed to provide consent to the evaluations until the end of the first semester, her actions contributed to Student remaining without appropriate services in the FAST program, and Student is therefore, not entitled to compensatory services between August 2002 and March 2003. Also, Mother’s acceptance of the IEP defined the services Fitchburg was responsible to offer and Parents cannot now request compensatory services for that period.

2003-2004 School Year:

Student began the 2002-2003 school year as a special education student who participated in regular education classes and received modifications and support consistent with the March 2003 IEP. (PE-36; PE-5) While this IEP had originally been accepted by Mother on March 20, 2003, it had been subsequently rejected by her on July 29, 2003, a rejection which Fitchburg did not receive until September 8 th . (PE-7) Fitchburg scheduled a meeting with all of Student’s providers and teachers on September 11, 2003, to discuss Student’s history, issues and diagnoses. (SE-26; SE-27; Testimony of Mr. Durling) Following a subsequent Team meeting in October 2003 and attempts by Mr. Durling to have the IEP implemented while Parents pursued an appeal, Mother accepted the October 2003-October 2004 IEP on December 17, 2003. (SE-13; SE-16; SE-17; SE-18; Testimony of Mr. Durling, Mother)

The IEP covering the period from October 14, 2003 through October 14, 2004 offered Student participation in a full inclusion program at Fitchburg High School. (PE-8; SE-19) The IEP recognized Student’s primary areas of disability as a neurological impairment, namely “high functioning Aspergers”, and a specific learning disability. (PE-8; SE-19; SE-20) Under this IEP the special education staff would provide ongoing consultation to Student’s teachers regarding organization and social issues. Additionally, under direct services in other settings, Student would receive 60 minutes per six day cycle of speech and language with the speech staff, and 6 sessions 55 minutes long of services to address organizational and social issues with the special education staff. (PE-8; SE-19; SE-20) It also offered accommodations during state or district-wide assessments in English, language arts and mathematics and provided a behavior intervention plan to address Student’s impulsivity, organizational skills, perseveration, social interaction skills and frustration. (PE-8; SE-19) The IEP was forwarded to Parents on or about October 9, 2003. ( Id .; SE-13)

Ms. Madeiros-Grant handpicked Student’s teachers for the 2003-2004 school year to match his learning style, a strategy that proved positive for Student. (Testimony of Ms. Madeiros-Grant) I found the testimony of these teachers to be credible and reliable regarding Student’s performance and progress. According to them, Student made effective progress across all domains, i.e., social, emotional, academic and organizational, which are the areas addressed by his IEP. (Testimony of Ms. Madeiros-Grant, Mr. Vaughn, Ms. Scherblom, Mr. Celeste, Mr. Woodard-McNiff) The teachers maintained close communication with the special education teacher and made sure that Student wrote his assignments and that he brought them back. (Testimony of Mr. Vaughn)

Ms. Debra Scherblom stated that Student did well in her history class; he understood the material and concepts presented. He was an active participant and while he required reinforcement and reminders, he did not present inappropriate behavioral issues in this class. (Testimony of Ms. Scherblom) There were 22 students in her class, and the period lasted 55 minutes. Student was allowed to turn projects in late. ( Id. ) Richard Vaughn, the math teacher, stated that Student did everything that was requested of him in class, worked well in groups, volunteered answers which were usually correct, but was somewhat forgetful and required re-direction. (Testimony of Mr. Vaughn) In January 2004, Student joined Mr. Vaughn’s newly formed robotics club, which met once per week after school. Club members were mostly freshmen and sophomores. According to Mr. Vaughn, Student assumed a leadership role and even set up the club’s email and did most of the work in the computer with another student. He also volunteered to do other things. (Testimony of Mr. Vaughn)

Mr. Celeste, the science teacher, testified that he kept students very organized in his class, used handouts, visuals, took breaks, kept consistency in class by getting students into a routine, and engaged in questions and answers to ascertain students’ comprehension. (Testimony of Mr. Celeste) He described Student as one of his most vocal students, a strong auditory learner who possessed a strong memory for facts. Occasionally he required redirection but responded well. (Testimony of Mr. Robert Celeste, Mr. Vaughn) Mr. Celeste observed Student to be friendly with two other girls and one boy in his class with whom he was observed to have lunch. (Testimony of Mr. Celeste)

Shawn Woodard-McNiff also provided a great deal of structure in his English class. (Testimony of Mr. Woodard-McNiff) Every day he started by reviewing what had been done the previous day. The majority of the assigned reading was done in class with students taking turns reading, followed by a discussion of what was read as reinforcement. He found Student to be age appropriate regarding reading. In Mr. Woodard-McNiff’s class, students worked individually or in small groups of four, in which Student was observed to be a vocal leader. (Testimony of Mr. Woodard-McNiff) In this class, Student demonstrated no trouble staying focused and on task. He was given priority seating, was allowed to leave class to take exams and evidenced no behavior warranting serious disciplinary intervention. (Testimony of Mr. Woodard-McNiff)

Thomas Ferrazano had first met Student in February 2003, when he conducted the speech and language evaluation, which took approximately three to four hours. (Testimony of Mr. Ferrazano) He later worked with Student individually and led a social skills group to address social pragmatics. ( Id. ) In the beginning, when Student got on a topic of interest, he perseverated on the topic and burst out comments. According to Mr. Ferrazano, Student needed to develop more self-control, had to learn how to regulate himself better, for example, in trying to deal with frustration and anger. In the group sessions, Student was positive and helpful. In Mr. Ferrazano’s opinion, Student made progress regarding appropriate boundaries (staying out of other people’s space), engaged in turn taking in conversation, and was able to carry over what he learned into other settings. (Testimony of Mr. Ferrazano) In general, Student’s antisocial behaviors were reduced in school. (Testimony of Mr. Ferrazano)

Ms. Madeiros-Grant was the first to suspect that Student presented with Aspergers following her evaluation of him in early 2003. (Testimony of Ms. Madeiros-Grant) She provided the small group special education support during the 2003-2004 school year where there were a total of seven students, one of whom presented with non-verbal learning disabilities. ( Id. ) In her opinion, Student had grown a great deal in one year. Ms. Madeiros-Grant noted that Student came into her class with more homework and work notations from the general classroom and was more socially involved with peers. (Testimony of Ms. Madeiros-Grant) She described him as respectful and said that he always took redirection well from her. Occasionally she saw him with a group of friends in and outside school hours, such as at a couple of the school dances. (Testimony of Ms. Madeiros-Grant)

Ms. Madeiros-Grant testified that Student took the 2004 MCAS in her class. She made it a relaxing environment, and the test was untimed. (Testimony of Ms. Madeiros-Grant) Student was able to use a rubric, he prepared a draft and then typed his MCAS answers. According to her, it took Student and two other students until 3:00 p.m. to complete the exam. (Testimony of Ms. Madeiros-Grant)

Student’s report card and the academic progress reports covering the first three-quarters of the 2003-2004 school year corroborate Student’s progress. (SE-3; SE-4; PE-9) In the progress report dated 2/27/04 he obtained a B in English (1 absence); A in computer application (0 absences); A in learning disability services (0 absences); A in biology; Passing in algebra 1-A; B in history (2 projects not turned in). (SE-3) His previous tenth grade report card for the first semester showed a C+ in English, B- in Fr/So health, Pass for learning services, B in biology, C+ for algebra I-A level 2 and C+ for American history So I. (PE-9; SE-4; see also SE-15) A comparison of these report cards shows Student’s academic progress and accomplishments towards reaching Goal #1 in his IEP. (SE-5) These report cards show that Student has mastered grade-level curriculum. ( Id. ; Testimony of the 10 th grade teachers) The teachers’ progress reports of February 2004, indicated that Student was making progress in all academic areas, displayed appropriate behaviors and socialized well with peers. (SE-8) Improvement had also been noted with homework completion, refraining from talking and making inappropriate comments, areas in which he still needed to work. (SE-8) Student’s progress was echoed by all of his providers at the Team meeting held on March 10, 2004 to review his progress and address Mother’s continued concerns. (SE-1; SE-2)

The group of teachers selected for Student worked well with him and maintained good communication with Ms. Madeiros-Grant, letting her know when assignments were missing and working on the modifications delineated in Student’s IEP. (Testimony of Ms. Madeiros-Grant) They were knowledgeable, sensitive, caring and trained to understand Student’s special needs, and as a result, were able to implement the necessary accommodations, modifications and services in Student’s IEP. ( Id. ) Furthermore, Ms. Madeiros-Grant opined that the level of service delivery to Student as of October 2003, when she began to work with him, was adequate. (Testimony of Ms. Madeiros-Grant) At hearing, she recommended that Student receive additional modifications such as allowing him to complete more written work on the computer, allow him to use a calculator for math, and take a closer look at addressing the behavior piece. She suggested that given Student’s interest in computers, time spent working on the computer could be used as a reward. (Testimony of Ms. Madeiros-Grant) Ms. Madeiros-Grant further testified that an autism consultant, Roanne Demanche, had consulted to Student’s teachers, although Ms. Demanche had not personally met Student. (Testimony of Ms. Madeiros-Grant)

Careful consideration of the evidence supports a finding that Student made effective progress in his Fitchburg program during the 2003-2004 school year. The evidence shows that the accommodations and supports recommended by Dr. Shultz can be, and to a large extent, have been, implemented by Fitchburg during Student’s 10 th grade. (See SE-34; PE-1) Mother herself conceded that Student had made progress during said school year, but remained guarded regarding her confidence that all would continue to go well in Fitchburg and that Student could continue to grow in all areas. Even socially, while in the past Student had no friends outside school, except for his Karate instructor who is an adult, he had developed friendships with a couple of girls and at least one boy and received calls at home from time to time, something that had never happened before. (Testimony of Mother and Mr. Ferrazano) In her argument, she mistakenly asserted that the standard in Massachusetts was “maximum feasible potential”¹⁵ in accordance with David D. v. Dartmouth School Committee , 775 F.2d 411 (1 st Cir. 1985), and argued that the Fitchburg program failed to maximize Student’s potential. This standard has not been in effect since 2002 when the statute and the DOE regulations were changed in Massachusetts. The correct standard is FAPE as explained supra .

The evidence is persuasive that the services offered Student as per the accepted IEP offered him a FAPE in the least restrictive environment appropriate to meet his needs during the 2003-2004 school year. Similarly, this IEP which overlaps with the 2004-2005 school year, as it runs until October 2004, along with the modifications recommended by Ms. Madeiros-Grant and my orders infra , offers Student a FAPE in the least restrictive environment appropriate to meet his needs.

Whether Fitchburg violated Student’s procedural due process rights in failing to conduct Team meetings in a timely manner, in failing to refer Student for evaluations and in failing to service Student in a timely manner:

Fitchburg could have been more assertive in identifying Student’s needs and referring him for evaluation in a timely manner as discussed in the sections supra . However, when it finally referred Student at the end of his 8 th grade and again in October 2002, Mother did not sign the consent form preventing Fitchburg from proceeding with the evaluations and fulfilling its mandate.

The unfortunate result of this case is that the action and inaction of both parties resulted in detriment to the Student. The evidence is clear that Student’s performance was compromised by his disabilities, which were not addressed appropriately between 2001 and 2003. This was most evident during the 2002-2003 school year when Student was placed in the FAST program, a program in which he should have never been placed according to Ms. Schmitt, given that it was not designed for students with special needs; and a program which wholly disregarded Student’s needs through March 2003. Given Student’s abilities, had the proper supports been provided he would have earned grades that truly reflected his ability and would have been able to progress effectively. (Testimony of Ms. Schmitt, Mother) Instead, without proper accommodations and a staff that did not understand his needs, the interference caused by Student’s organizational and distractibility issues resulted in poor performance (Math D+, Science D-, Health F). A comparison of Student’s performance in the FAST program with his performance during the 2003-2004 school year, when the appropriate services were in place and teachers were hand-picked, shows very poignantly that Student is capable of progressing effectively.

In October 2003, Mother approached Mr. Walsh, Fitchburg’s high school principal, in an attempt to have some of Student’s grades from the 2002-2003 school year changed. The issue was discussed with the teachers, Ms. McKenna and Ms. Schmitt, and it was Mr. Walsh’s position that there were no extenuating circumstances warranting changing the grades. (Testimony of Mr. Walsh)

Since Fitchburg failed to provide appropriate consistent interventions to compensate for Student’s issues, even after the March 2003 IEP was in place, Student should be offered an opportunity to repeat the aforementioned courses with the appropriate modifications and supports in place.

Fitchburg’s procedural violations however, do not justify placement outside the district.

Whether Student is entitled to Compensatory Education if he did not receive appropriate special education services during the 2000-2001, 2001-2002, 2002-2003 and 2003-2004 school years:

Mother failed to rebut or present sufficient evidence to warrant granting compensatory services to Student in the form of an outside district placement.

The First Circuit Court of Appeals has maintained that a student is entitled to receive compensatory education as a form of relief when there has been a deprivation of services due to a deficient IEP. Pihl v. Massachusesetts Department of Education , 9 F. 3d 184 (1 st Cir. 1993). As discussed in In Re: Medford Public Schools , 8 MSER 329 (2002),

Where a denial of essential special education services or a significant interruption in the provision of those services has occurred during the period of the Student’s entitlement¹⁶ to special education, compensatory services may be awarded. Stock v. Massachussetts Hospital School , 467 NE. 2d 448, 392 Mass. 205 (1985). In Massachusetts, the BSEA is authorized to review the evidence and when appropriate, award compensatory services in special education cases. Murphy v. Timberlane , 973 F.2d 13 (1 st Cir. 1994); 603 CMR 28.08 et seq . In determining whether said form of relief should be granted, several factors, such as the conduct of the parties, the specific period of time during which the specific service was denied, the appropriateness of the services offered to the student and the type and extent of harm caused to the student as a result of any denial of a FAPE must be weighed. In deciding whether this form of relief is appropriate, the hearing officer must also take into account the parent’s actions. If a parent is found to have been given a real opportunity to participate in the team meeting, and if thereafter, the parent knowingly and voluntarily accepted the IEP, then compensatory education should not be considered for that period. W.B. v. Matula , 67 F. 3d. 484 (3 rd Cir. 1995). A parent’s refusal to allow the student to access services deemed to be appropriate, or rejection of services that would otherwise render an IEP appropriate for the student, would also bar the student’s claim as to those periods. In Re: Taunton Public Schools , BSEA # 01-0462 (2001); In Re: Silver Lake Regional School District , BSEA # 01-1370 (2001); In Re: Sharon Public Schools , BSEA # 02-1490 (2002). Massachusetts has recognized the following standard in determining whether an IEP was implemented: “1) failure to implement an IEP must not be a complete failure, 2) the variance from special education and related services specified in the IEP must not deprive the student of FAPE; and 3) the provision of special education and related services must make ‘progress’ toward the achievement of the goals stated in the IEP.” Ross v. Framingham , 44 F. Supp 2d 104 (D. Mass. 1999). Where the elements described infra favor the Student’s claim, then compensatory services is an acceptable form of relief to be awarded by the BSEA. See Murphy v. Timberlane , 973 F.2d 13 (1 st Cir. 1994).

While the evidence supports a finding that Fitchbug failed to service Student between January 2002 and March 2003, and that there were procedural violations, these failures are insufficient to warrant the remedy sought by Parents, that is, residential placement of Student in a regular education school. Such a restrictive placement would be wholly inappropriate for a Student who has demonstrated effective progress in Fitchburg once the appropriate support and services were put in place. Furthermore, because Parents did not consent to the evaluations when Fitchburg referred him in June 2002, Student is not entitled to compensation for the period between August 2002 and March 2003. The appropriate remedy to compensate Student for Fitchburg’s transgressions is unclear from the facts herein. Therefore, Student’s Team is ordered to reconvene and determine how and what services if any may be appropriate as compensation. One area that appears to be appropriate for consideration is social pragmatics.

Whether Fitchburg has failed to implement the services delineated in Student’s IEPs consistently and appropriately:

Mother asserted that Fitchburg failed to accomplish the goals set in Student’s IEP as he missed several assignments and an end of the year project because the Agenda was not completed.

Regarding this issue, I refer back to the two IEPs accepted by Mother, the one drafted in March 2003 (accepted by Mother on March 20, 2003) and the October 2003 covering the period from October 14, 2003 through October 14, 2004 (accepted by Mother on December 17, 2003). (SE-19; SE-36) Overview of these IEPs in light of the testimony offered by Ms. Madeiros-Grant, Mr. Woodard-McNiff, Mr. Ferrazano, Mr. Celeste, Ms. Scherblom and Mr. Vaughn along with the progress reports and Student’s grades show that the IEP was properly implemented during the 2003-2004 school year. Support for this position was discussed in the previous sections. There is however, discrepancy between the testimony offered by Ms. Schmitt, Student’s grades and progress between March and June 2003. Ms. Schmitt testified that Student’s academic failure was the result of his failing to complete the assigned work, an area affected by Student’s organizational issues and the Aspergers Syndrome. The evidence does not support a finding that enough coordination existed between the FAST team teachers and Ms. Ragucci, the special education teacher, who noted multiple inconsistencies in Student’s stories regarding missing books, assignments or work. (Testimony of Ms. Ragucci) I find Ms. Schmitt’s testimony regarding her efforts and those of the FAST team after March 2003, unreliable, especially after she testified that her qualification to be a teacher in the FAST team was her willingness to work with those students. (Testimony of Ms. Schmitt)

The evidence presented by Fitchburg is not persuasive that Student’s IEP was appropriately implemented between March and June 2003.

Whether Student is entitled to residential or day placement at the Winchendon School at Fitchburg’s expense:

The Federal law requires that eligible students have access to full participation in the general curriculum, to the maximum extent possible. Additionally, a student’s education must be offered in the least restrictive environment appropriate to meet his/her individual needs. 20 USC 1412(5)(A); 20 USC §1414(d)(1)(A)(iii); 34 CFR 300.347(a)(2)(i) and (a)(3)(ii); 64 Fed. Reg. No. 48, page 12595, column 1; MGL c. 71B § 1; 603 CMR 28.02 (12). See In re: Worcester Public Schools , BSEA # 00-0912, 6 MSER 194 (SEA MA 2000) and In re: Gill-Montague Public Schools District , BSEA # 02-1776, August 28, 2002.

The level of frustration built as a result of Mother’s requests going unanswered, and her concerns over Student seem to have contributed to the breakdown in communication and trust between the Parties. This is clear from Mother’s letter to Fitchburg dated October 21, 2003, stating in pertinent part,

“In as much as I cannot get answers to my questions about why the school district let my son down in the past, it is difficult to look forward with any degree of confidence to the revised IEP. For now I will have to seek other means to get the answers to my questions. In addition, I was told by you that the autism specialist would have talked to [Student] by now but at the time of the meeting she still had not seen him. Is it any wonder I question the sincerity of the school staff?” (SE-17)

Mother’s position is understandable, given her level of distrust, but the IDEA and Massachusetts law regarding special education mandate that special education students be educated in the least restrictive environment appropriate to meet their needs.

Under 603 CMR 28.118.0, least restrictive environment has been defined as:
the program and placement which ensures that, to the maximum extent appropriate, a child in need of special education, including children in public or private institutions or other care facilities, is educated with children who are not in need of special education and that special classes, separate schooling or other removal of a child in need of special education from the regular education environment occurs only when the nature or severity of the special needs is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily.

In the case at bar there is no evidence to support Student’s entitlement to day or residential placement outside Fitchburg. As discussed in the previous sections, the evidence is persuasive that Student’s continued placement in Fitchburg with slight modifications, is the least restrictive appropriate program in which Student can receive a FAPE. The evidence is also persuasive that with the appropriate services in place Student is capable of progressing effectively in his current setting in Fitchburg. As such, I do not need to evaluate the appropriateness of Mother’s proposed program.

Order:

1. Fitchburg’s Autism Consultant shall observe and evaluate Student to ascertain whether additional supports regarding Student’s social/emotional and behavioral issues need be in place. Student’s Team shall reconvene with the Autism consultant present to ascertain whether further modifications to Student’s program are appropriate.

2. Fitchburg shall continue to service Student in district under the current IEP.

3. Fitchburg shall discuss the possibility of allowing Student to repeat freshman Math, Science and Health with appropriate supports in place.

4. Student’s Team shall convene to consider appropriate ways in which to compensate Student for Fitchburg’s failure to refer him for an evaluation and service him between January and June 2002.

So Ordered by the Hearing Officer,

_____________________________________

Rosa I. Figueroa

Dated: 8/3/2004

1

Testified via telephone conference call.

2

Testified via telephone conference call.

3

Testified via telephone conference call.

4

Testified via telephone conference call.

5

A three year statute of limitations, consistent with civil rights claims and applicable to special education cases, was determined to be applicable at the Pre-Hearing Conference.

6

No IEP was submitted by either Parent or Fitchburg as a result of the Team convening on December 1996, so it is unclear whether Fitchburg drafted an IEP covering the period from December 1996 through December 1997. However, there was no dispute between the parties that Student received the recommended speech services.

7

Parent seems to mean “perseverative”.

8

The behavior intervention plan states that Student was repeating the 9 th grade, this however is a mistake as Student was in the tenth grade during the 2003-2004 school year. (PE-7; SE-22)

9

“Least restrictive environment- the program and placement which ensures that, to the maximum extent appropriate, a child in need of special education, including children in public or private institutions or other care facilities, is educated with children who are not in need of special education and that special, classes, separate schooling or other removal of a child in need of special education from the regular education environment occurs only when the nature or severity of the special needs is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily.” 603 CMR 28.118.0.

10

Three years prior to January 30, 2004, date on which the Parent’s request for Hearing was received.

11

A three year statute of limitations consistent with civil rights claims and applicable to special education cases was determined to be appropriate at the Pre-Hearing Conference.

12

The Massachusetts Special Education Regulations in effect until December 31, 2001, mandated that the school principal or his designee refer for a special education evaluation “any child who at mid year presents a substantial risk of non-promotion. For purpose of this paragraph, a substantial risk of non-promotion shall be considered to exist if a child is failing two or more non elective subjects.” 603 CMR 28:310.1, 310.1(a), Publication of September 1992.

13

The previous consent form had been forwarded in June 2002, the end of Student’s 8 th grade.

14

603 CMR 28.05(1) provides that: “Within forty-five (45) school working days after receipt of the parent’s written consent to an initial evaluation or reevaluation, the school district shall: provide an evaluation; convene a Team meeting to review the evaluation data, determine whether the student requires special education and, if required develop an IEP in accordance with state and federal laws; and provide the parents with two (2) copies of the proposed IEP and proposed placement, except that the proposal of placement may be delayed according to the provisions of 603 CMR 28.06(2)(e); or, if the Team determines that the student is not eligible for special education, the school district shall send a written explanation of the finding that student is not eligible. The evaluation assessments shall be completed within thirty (30) school working days after receipt of parental consent for evaluation. Summaries of such assessments shall be completed so as to ensure their availability to parents at least two (2) days prior to the Team meeting. If consent is received within thirty (30) to forty-five (45) school working days before the end of the school year, the school district shall ensure that a Team meeting is scheduled so as to allow for the provision of a proposed IEP or written notice of the finding that the student is not eligible no later than fourteen (14) days after the end of the school year.”

15

See the Mass. Department of Education’s Administrative Advisory SPED 2002-1: Guidance on the change in special education standard of service from “maximum possible development” to “free appropriate public education” (“FAPE”), Effective January 1, 2002. 7 MSER Quarterly Reports 1 (2001).

16

See M.G.L. c. 71B §1 establishing that the disabled student’s period of entitlement runs from the time s/he is 3 years of age until s/he attains a high school diploma (or its equivalent), or the day of the student’s twenty second birthday, whichever comes first. 603 CMR 28.02 (9).