COMMONWEALTH OF MASSACHUSETTS
BUREAU OF SPECIAL EDUCATION APPEALS
IN RE: SILVER LAKE REGIONAL SCHOOL DISTRICT
BSEA 01-1370
DECISION
This decision is issued pursuant to M.G.L. c.71B and 30A, 20 U.S.C. s. 1401 et seq ., 29 U.S.C. s. 794, and the regulations promulgated under those statutes. A hearing was held in the above-entitled matter on March 14, 2001, March 29, 2001, April 2, 2001 and April 12, 2001 at the Bureau of Special Education Appeals in Malden, MA. Those present for all or part of the proceeding were:
Mother
Father
Student
Mary Ellen Efferen Educational Consultant
Doug Varden Director, CNS Pathways
Marc Warren Director; Pathfinders Program League School
Mary Kirby School Psychologist; Silver Lake School District
Kathy Lang Home tutor
Judith Bell Special Education Director; Silver Lake Regional School District
Robert Kraus, Esq. Attorney for Parents
Sandra Moody, Esq. Attorney, Stoneham Public
Sara Berman Observer; BSEA1
Joan D. Beron Hearing Officer; BSEA
The official record of the Hearing consists of Joint Exhibits Marked J1-43 and approximately 17 hours of recorded oral testimony.2 The record closed on April 20, 2001 when the Hearing Officer received written closing arguments from both parties .3
ISSUES
I. Is the Asperger’s program at the League School, a private 766 approved day program, appropriate to maximize Student’s educational development in the least restrictive environment?
II. If not, does CNS Pathways, a private unapproved day program through McLean Hospital, maximize Students educational development in the least restrictive environment?4
III. Is Student entitled to compensatory services for the period of September 2000-March 2001 because the interim home program instituted pending acceptance from a private day school was not implemented properly?
IV. Is Student entitled to compensatory services prior to this time period?
PARENTS’ POSITION
The Student is a nearly sixteen year old young man with average to above average cognitive and academic ability. Student is capable of graduating from high school and going on to higher education. He has numerous interests, including computers, animals and professional wrestling. Student wants to do well in school and make friends. Student has been diagnosed with Asperger’s syndrome, ADHD and an anxiety disorder. These disabilities seriously impair Student’s ability to understand and engage in social interaction as well as to tolerate and manage transitions, changes or disruptions in his routine, frustration and other stress. When Student is stressed or anxious, his disabilities cause him to either shut down or to engage in verbal outbursts and/or behaviors such as hyperventilating, tapping, breaking his pencil, or kicking or throwing objects. Confrontation, punishment, or other commonly used behavioral interventions do not work for Student and may worsen his behavior. Student has not had a successful educational experience since 6 th grade. He has been out of school since December 1999 and has received no educational services since approximately December 2000. Therefore, Student is entitled to compensatory services. Student needs a highly structured college preparatory school program that is specifically designed to educate students with Asperger’s Syndrome, with small classes, a low-stress environment, direct instruction in social pragmatics and anxiety management, and sensory integration services and opportunities. The peer group should have average or above average academic abilities, and staff should have expertise in dealing with students with Asperger’s Syndrome. Even though it is not 766-approved, the CNS Pathways Academy (Pathways) is appropriate for Student because it meets these criteria, Student is comfortable with the environment, staff and students at Pathways, and wants to attend there. These are critical factors in light of Student’s past negative school experiences, tremendous anxiety about school, and current non-attendance. At the League School (League) Student would regularly be exposed to lower functioning students whose vocalizations and behavior are upsetting and anxiety-provoking to Student, making it inappropriate to meet his needs.
SCHOOL’S POSITION
Silver Lake agrees that Student requires an out of district placement in a school with expertise in Asperger’s Syndrome; however, League will afford the Student maximum benefit in the least restrictive environment. League School is a Chapter 766 approved private school; therefore, the School District is required to place the Student there pursuant to current 766 regulations. Moreover, Pathways will not provide Student with a large enough appropriate peer group, does not have a sufficient complement of appropriately certified teachers, will not provide student with appropriate academics, and is an hour’s greater travel time, each way, from Student’s home. As such, Pathways does not provide a FAPE for Student. In addition, Parents’ claim for compensatory services should be DENIED because Silver Lake provided a FAPE to Student. Any lost educational time was caused by the parents’ failure to allow a tutor into their home and their failure to cooperate with efforts of Silver Lake to locate and provide an appropriate educational program. Even if Silver Lake is found to be liable for compensatory education services, Pathways can not be ordered as compensatory education because it does not maximize Student’s educational development in the least restrictive environment.
FACTUAL FINDINGS
1. Student is currently a fifteen-year-old (DOB September 4, 1985) ninth grade student who lives with his parents and sister in Plympton, MA. Student has average to above average cognitive ability and cognitive skills. Student also has Asperger’s Syndrome and an anxiety disorder (J35). As a result, Student has had longstanding and severe difficulties with social interactions and with understanding social cues (J3). He becomes highly anxious under stress and can become overwhelmed in stressful situations (Mother). He lacks sufficient social and self-management skills to appropriately respond to typical classroom situations such as a poor grade or negative peer comments (J7). When stressed and anxious due to academic difficulties or actual or perceived teasing by peers, Student becomes nonresponsive or very agitated, engaging in tapping, pencil breaking, disrespectful language, throwing items, and/or pushing/hitting his peers (J3, J7). After an outburst, Student has been embarrassed and avoided going back into the classroom (J7). At times Student becomes absorbed in a narrow interest ( e.g ., with computer games or drawing) to the exclusion of other activities and imposes his routines and interests on others (J3). He also perseverates in his conversation when stressed or uncomfortable and has difficulty completing school assignments (J7). Student has not been in school since December of his eighth grade year (December 1999, SY 1999-2000) and has not had any related services since December 2000.
2. Student moved to Plympton in 4 th grade and began attending the Silver Lake Regional School District at that time. Prior to his move, Student had received special education speech and language services but was discharged from special education before moving to Plympton (J28, J29, J30, J34). Student has seen a psychiatrist since 1994, due to his anxiety disorder and his “explosive and aggressive outbursts at school” (J16A). He received regular education counseling services and did well academically during both the fourth and fifth grade, demonstrating skills at or above grade level in most subjects (J31, J32).
3. Approximately midway through Student’s sixth grade year, Student began having problems interacting with other students and trouble managing his increasingly difficult schoolwork. When Student became stressed from these problems, he would become agitated and on occasion, engaged in behaviors like tapping his fingers or breaking his pencil. Attendance records show that Student attended the Dennet School one hundred twenty three (123) days, was absent for thirty two (32) days and was dismissed seven times (J44). Silver Lake also called Parent on numerous occasions to take Student home in the middle of the day (Mother).
4. On or about January 1998, Parents requested that Student be evaluated for special education services. Between January and May 1998, Silver Lake conducted a Chapter 766 evaluation consisting of psychological, educational and speech/language assessments (J32, J33, J34).5 The testing revealed Student to have average to high average cognitive ability and academic achievement and relative weakness in expressive language (J32, 34). The school psychologist noted: “[Student’s] behavior pattern is suggestive of Asperger’s Syndrome, in that he does not perceive the social cues of a situation and needs to be taught appropriate responses for relatively simple social interactions. Despite his strong cognitive abilities, he continues to interpret information literally, and often cannot make a figurative interpretation. He clearly does not seem to understand the impact of his behavior on others and becomes overwhelmed and angry when adult intervention imposes logical consequences.” (J32). Silver Lake did not do further psychological evaluations or engage a consultant with expertise in Asperger’s Syndrome ( See J32).
5. Dr. John Dorn conducted an independent neuropsychological evaluation on April 8 and 29, 1998 (J35). Dr. Dorn hypothesized a neurological basis for Student’s difficulties, and concluded: “[A] behavioral contingency plan that will attempt…to decrease [Student’s] maladaptive behaviors and interactions would be ineffective if the presumed underlying neurological etiology is correct. Rather…in the short run, attempts to limit environmental triggers, while at the same time aggressively pursuing further neurologic work-up and further medication trials is indicated. Once neurodiagnostics are exhausted, a more informed neurobehavioral intervention plan can be designed and implemented.” (J35).
6. During the spring of 1998 Student attended a “behavioral” classroom at the Kingston Elementary School. This placement was not pursuant to an IEP (Mother). At the Kingston Elementary School, Student was present for ten (10) days, absent for thirteen (13) days, and dismissed twice (J36). The placement was not successful and Student left the program shortly after entering it (Mother, Kirby). Student did not return to school during the second and third terms of sixth grade because of social-emotional concerns (J36, Mother). Student received home tutoring from Silver Lake for seven days during that time. ( Id. ). Parents debated whether Student should attend Silver Lake Regional Junior High School or a private religious school and determined that the Student would not be able to tolerate the stress of entrance examinations for the religious school (Mother).
7. Student returned to school for approximately two weeks at the end of sixth grade. During his 6 th grade year he attended school for one hundred thirty-three (133) days, was absent forty-five (45) days; dismissed nine times and had seven days of tutoring (J44). During the first term of 6 th grade Student earned As, Bs, and one C in his courses and he achieved “satisfactory” marks in most “work habits” and “behavior traits” categories. Student received no grade report for the second and third terms during which he had not attended school (J36). Student was promoted to seventh grade (J36). He received no services during the summer between 6 th and 7 th Grades (Mother).
8. The TEAM convened on June 17, 1998. The TEAM issued no finding in regards to eligibility but did propose a 502.9 diagnostic evaluation that provided Student with five (5) periods per cycle of resource room academic support, thirty (30) minutes per week of counseling, and support in science.6 The diagnostic questions included whether the Junior High would provide an appropriate educational setting for Student, whether Student, “functioned better in regular or special education,” and “[w]hat impact will additional medical and neuropsychological evaluation have upon educational planning” (J1).
9. When Student began the 7 th grade under this diagnostic IEP he was initially placed in Level I classes with approximately twenty-eight (28) students per class (Mother, see J36). During that time Student also received counseling services from the school psychologist Mary Kirby, with whom Student, although initially resistant, developed a good relationship (Mother, Kirby). Initially, Student’s social skills seemed to improve, he formed relationships with other students and was excited to be attending school (Mother). Student however, had three unspecified behavioral incidents during this diagnostic period, resulting from work completion and academic demands (J2).
10. On October 27, 1998, the TEAM met to formulate an IEP for the remainder of seventh grade. Based on the diagnostic placement, the TEAM found that that the Student “struggled somewhat to keep up with demands of his classes, especially English and science.” (J2). The TEAM recommended one period of daily academic support, daily “replacement English” in a special needs classroom, a “cooling off period following a behavior before discipline occurs,” [that Student be given the] “option to leave class and go to guidance if he feels frustrated or agitated,” and “guidance support…if [Student] does not leave the class but intervention is necessary/appropriate.” ( Id .). The TEAM did not modify the discipline code for the student. The parent accepted the IEP except for the unmodified discipline code ( Id .).
11. Student’s regular education classes contained approximately 18-28 students; however, Parent observed that problems occurred in classes this size (Mother, J3A).
12. During 7 th grade Student was repeatedly provoked by other students who would call him names, take his backpack, etc. (J 3, J3A, Mother). Parents informed Silver Lake of this problem and given the school the names of the other students involved, but these children were never disciplined; Id .
13. On or about October 29, 1998, Student became upset after he perceived another student to be taunting him in class. The school psychologist took Student to her office; on the way, Student threw a small notebook at another student in the classroom. While discussing the situation with the psychologist, Student was alternately very tense and agitated (breathing quickly, kicking objects and throwing chairs) non-responsive, and calm. Student was suspended after this incident for an unspecified period. (J3, Kirby).
14. On November 6, 1998 Student received an independent neurological evaluation from Cynthia Rooney, M.D. Dr. Rooney opined that Student had Asperger’s Syndrome as well as anxiety secondary to his lack of social interaction and communication skills (J3). Dr. Rooney recommended that Student be placed in smaller classes for English and Science and that “[w]hen [Student] does have an episode, he should be just led from the classroom, brought to the psychologist’s office, allowed to just calm down, breathe into a paper bag for his hyperventilation. He should not be confronted with what had just happened, it only makes the situation worse.” (J3). Silver Lake received this report on or about November 10, 1998.
15. On November 13, 1998, Silver Lake issued Student’s first seventh grade report card (J36). Student’s grades in Reading dropped from a B in the first term of 6 th grade to a C- during the 1 st term of 7 th grade. Math scores dropped from an A- during the first term of 6 th grade to a C in the first term of 7 th grade (J36, Mother). Student received a D in 7th grade English. He earned a B in Social Studies, as compared with a C the previous year. Marks in “citizenship” and “work habits” were, respectively, “satisfactory” and “outstanding.” (J36).
16. On December 1, 1998 an Assistant Principal led Student out of the classroom after Student allegedly had pushed one student and hit another. On the way out of the classroom, Student hit one of these other children (J3A).
17. On or about December 2, 1998, Dr. Cynthia Rooney wrote the following letter to the SLRJHS school psychologist:
… [Student] is a young boy…with a diagnosis of Asperger Syndrome…believed by many to be on a continuum with autism…but it is not yet clear whether it represents autism in people of generally good intelligence or a specific cognitive profile involving at least some areas of superior functioning. Specific treatment…is not available. Attempts should be made to find areas of interest which might eventually provide a basis for a good education and adult hobbies…Medication makes little difference in most cases and psychotherapy is usually not indicated, but supportive talks on a regular basis with someone knowledgeable about Asperger’s can be helpful, particularly in the teenage period. When insight is gained in regards to being different from ones peers, it can become overwhelming. In stressful situations, young adults with Asperger’s Syndrome can have feelings of helplessness and chaotic reactions. Appreciation of their reaction to stresses can go a long way in reducing acute symptoms by the way in which they are handled… (J4).
18. On December 14, 1998 the TEAM met and amended Student’s IEP to “increase [Student’s] services due to recent behavioral incidents.” (J5) The amended IEP stated that “a recent neurological evaluation has determined that Student fits the criteria for Asperger’s Syndrome,” and provided for student to change from regular to “replacement” math, social studies and science in a special needs classroom. Student continued to take replacement English and to receive academic support in the resource room. The amended IEP contained the additional goal of “display[ing] improved ability to cope with anxiety and stress.” Id .
19. On December 16, 1998, Student was suspended for one or two days after Student called another child a nickname he had heard others use, not knowing that the second child did not like the nickname (Mother). Student did not return to school after this suspension and remained out of school until approximately the last week in February of 1999.
20. During December 1998 or January 1999, Parents requested that Silver Lake conduct a functional behavioral assessment (FBA) of Student (Mother). Silver Lake arranged for the FBA to be performed by the May Institute, Inc. in Norwood, MA. On January 26, 2000, the TEAM wrote an IEP to provide Student with ten hours per week of home tutoring pending completion of the FBA (J7).
21. The FBA was conducted by May Institute psychologist Robert Putnam and educational consultant Gretchen Jefferson on January 29 and February 10, 1999. May issued their report to the Parents and to Silver Lake on March 8 and April 8, 1999. Because Student was not attending school at the time, he was interviewed and observed at home. The May Institute identified five “problem behaviors:” outbursts, minor disruption, major disruptions, disrespectful language and perseverative conversation finding that these usually occurred in response to stressful events such as poor test grades or peer teasing. Dr. Putnam and Ms. Jefferson hypothesized that Student lacked the social and self -management skills to respond appropriately to social situations and engaged in problematic behaviors in order to escape both the situation and the school environment. The May Institute report recommended: (1) environmental support strategies (i.e., gradual re-introduction to school attendance with a classroom aide provide coaching and support in social and self-management skills; (2) direct instruction in social skills; (3) direct instruction in self-management of anxiety; (4) positive reinforcement; and (5) service coordination and evaluation, including a home program with an identified home-school liaison, daily data collection, consultation from a doctoral level psychologist with training and expertise in applied behavior analysis (J7).
22. On February 22, 1999, the TEAM generated an IEP calling for Student’s gradual return to school and implementation of various behavioral objectives. A representative from the May Institute attended the meeting (J8). The IEP stated neither the methods or projected timelines for achieving these objectives nor criteria for measuring progress (J8). Student did return to school after this TEAM meeting on a reduced school day schedule with a plan for the day to be increased as Student was better able to participate in a full day program; Id .
23. Silver Lake implemented some but not all of the May Institute’s recommendations. Student was provided with in school assistance from May staff and an aide trained by the May Institute; however, Silver Lake did not retain a doctoral level psychologist for consultation (Kirby, Mother). The district did provide Student with the assistance of school psychologist Mary Kirby. Ms. Kirby had received training from May Institute staff but had no prior experience working with students with Asperger’s Syndrome (Kirby). Ms. Kirby ran a social skills group in which Student, although initially resistant, did participate. She worked with Student on self-management and self-monitoring skills (using charts and other materials from the May Institute), and also worked with Student on social pragmatics, relaxation techniques, and on recognizing antecedents of his behavioral incidents (Kirby). If Student was unable to remain in the classroom, he was allowed to go to Ms. Kirby’s office on his own or at teachers’ suggestion. There, he could work on the computer and with Ms. Kirby to calm down. (Mother, Kirby, J44). Ms. Kirby visited Student’s home on one or more occasions to discuss his program with him and his family, and also communicated with his teachers about implementing the self-management plan; however, May’s recommendations for a formal home program were not implemented (Mother, Kirby, J24).
24. The behavioral plan recommended by May was implemented with varying consistency after Student’s return to school. When the program was inconsistent, ( e.g. , if charts were not in their usual place in school on a particular day), Student experienced problems (Mother). On approximately ten occasions, the school determined that Student was unable to calm down and called Student’s mother to pick him up (Mother, Kirby). Student had a total of one-hundred-twelve (112) days of attendance for 7 th grade with fifty-five (55) or fifty-eight (58) recorded absences (J35, J44, Mother). Many of these absences were due to Student’s anxiety over his placement in school (Mother). Student also had nine dismissals, four days of suspension, and fifteen days of tutoring. (J35, J44). Student received no services for the summer between 7 th and 8 th grade (Mother, Bell).
25. Student began 8 th grade in the fall of 1999 with a full day schedule. Most of his classes were taught in special needs classrooms. Student was transported in a special needs bus and had an aide trained by the May Institute accompanying him for much of the day for approximately six weeks (Mother). Student had difficulties beginning early in his eighth grade year. Student complained to his parents that one or more of the other students in his special needs classes were harassing him. He was teased on the school bus and was disturbed about having to ride the special needs bus with students with disabilities. He often arrived at school feeling stressed from the bus ride (Student, Mother). Mother began driving him to school (Mother). At times, Student’s anxiety tracking charts were not in their designated area. There were also occasions that his aide was not at the school entrance when Student arrived at school. Student continued to have difficulty tolerating any changes or inconsistency in his routine or program (Mother). At some point early in 8 th grade, Ms. Kirby no longer had time to work with Student as much as she had the previous year, and many of the support and modification functions she had fulfilled were transferred to an Assistant Principal with whom Student had difficulty working with (Mother).7
26. During 8 th grade Student was suspended two or three times and received between five and ten days of suspension during that year (Mother, J44).8 In addition, the school called Mother to pick Student up at school approximately ten times (Mother, Kirby).
27. In the late January or early February of 2000 time period after the SLRJHS principal suspended Student, parent requested a TEAM meeting. Either shortly before or at the TEAM meeting, Mother told one or more Silver Lake staff members that she believed Student needed an outside placement (Mother).
28. On February 9, 2000 the TEAM met and proposed an eight-week diagnostic placement at Pilgrim Academy (Pilgrim), a day program operated by the Pilgrim Area Collaborative to which Silver Lake belonged. Pilgrim was to implement the May behavioral plan and assess whether Pilgrim would be an appropriate educational program for Student (Mother, J13). Mother had explored Pilgrim as a possibility during 6 th or 7 th grade (Mother). Pilgrim had told her at that time that its program did not service students with Asperger’s Syndrome; however, when Silver Lake referred Student to Pilgrim during 8 th grade it told both Silver Lake and Mother that it did service students with Asperger’s Syndrome. Mother did not tell Silver Lake about her concerns and accepted this IEP (Mother, Kirby).
29. Student received a short period of home tutoring and entered Pilgrim in early March 2000 (Mother). Although Student was academically successful at Pilgrim, he did not do well emotionally or behaviorally. He was involved in behavioral incidents including pushing peers after being provoked, and refusing to do work. He was sent home on two occasions after incidents with peers and was physically restrained by staff several times (Mother, J12). Parents again searched for outside placements (Mother).
30. The February 9, 2000 IEP provided for interim meetings on March 17, March 31 and April 14, 2000 to review the diagnostic placement. (J13). No interim meetings occurred nor did Pilgrim conduct any formal assessments and its diagnostic procedures consisted of observation, review of prior records and a home assessment consisting of a form completed by the Parents (J12, J13, J13A). The TEAM did convene on April 24, 2000.9 At that meeting, Pilgrim informed the Parents that it could not serve Student and that he was to leave immediately10 (J14, Mother). Student left Pilgrim on April 26, 2000 (Mother). Student’s mother observed that after leaving Pilgrim, Student suffered lowered self-esteem, unhappiness, and embarrassment that he had been “kicked out” of Pilgrim (Mother).
31. Student began receiving tutoring on May 10, 2001. Tutoring continued until June 12, 2000. Other than twenty-seven hours of tutoring, Student received no other services nor did Silver Lake re-evaluate Student, write a new IEP or propose a new placement for Student after the April 24, 2000 meeting. Student did not return to school for the remainder of his eighth grade year and did not receive summer services. He was able to complete his eighth grade academic requirements (J15, J16, Mother).
32. When school reopened in September 2000, Student, now a ninth-grader, did not attend, and had no educational services and no current IEP (Kirby).
33. At some time in or near the beginning of the 2000-2001 school year, Silver Lake concluded that Student needed an outside placement (J17, J18). Parents hired Mary Ellen Efferen to help search for appropriate programs (Mother). Ms. Efferen reviewed the records and met with Student on one occasion (Efferen).
34. On September 14, 2000, the TEAM convened a “placement” meeting and generated an IEP stating that Student required a therapeutic environment with a low student to teacher ratio, social skills training, coaching, and teaching self-monitoring of behavior (J17). Under this IEP, Silver Lake was to provide Student with one hour per day plus an unspecified number of “retroactive hours” of tutoring until a placement was located (J17). Parents accepted the services rejecting the determination that Student only needed one hour per day of tutorial services (Mother, J17).
35. After the September 14, 2000 TEAM meeting, Silver Lake and the parents had discussions about possible placements for Student, during which Silver Lake encouraged Parents and their educational consultant Mary Ellen Efferen to search for programs designed for children with Asperger’s Syndrome (Mother). The TEAM was to reconvene in October 2000 to discuss an extended evaluation at the READS Collaborative; however, after investigating READS, Mother determined that it was inappropriate because it used a level system similar to the one that had been unsuccessful for Student at Pilgrim (J18, Mother).
36. In about mid or late October 2000, Parent, through the Internet, identified the CNS Pathways (Pathways) program as one that appeared as though it would meet Student’s needs because it served bright students and had experience servicing students with Asperger’s Syndrome (Mother). Parent forwarded Pathways literature to Silver Lake, which agreed to refer Student there (Mother).
37. The TEAM reconvened on October 25, 2000. In addition to Pathways, Silver Lake sent referral packets to the South Shore Collaborative in Hingham, MA and to the South Coast Educational Collaborative in Seekonk, MA (J19). Parents investigated both of these programs and ruled them out. The parents felt—and Silver Lake agreed–that the South Shore Collaborative was inappropriate (Mother, J21). The South Coast Educational Collaborative informed the mother that it did not have a ninth grade (Mother).
38. Parents first visited Pathways in November 2000. After touring the program, observing some classrooms and speaking with the school director, Douglas Varden, the parents concluded that Pathways might be appropriate, and arranged to bring Student for a visit. (Mother, Varden) Student visited Pathways with his parents later that month. Student was apprehensive at first about entering the school because of its location on the McLean Hospital Campus; however, he did spend about an hour touring the program and speaking with Mr. Varden. Mr. Varden observed that Student was quiet and seemed anxious. Student did not initiate contact with other students, but that the other students did speak with him (Varden). Student returned for a second visit a couple of weeks after the first one (Mother). This time, he was up early and eager to arrive at Pathways (Mother). Student spent time with other Pathways students, eating lunch and playing basketball and pool (Varden, Student). Mr. Varden observed Student to still be anxious, although less so than on his first visit, and also to be responsive to teachers and peers (Varden). Student visited a third time in December 2000. This was Student’s most successful visit; he was less rigid, more responsive than he had been on prior visits. (Varden).
39. After the third visit, Pathways staff met and decided that Student was a good candidate for the program (Varden). On or about January 3, 2001, Pathways notified Silver Lake that it had accepted Student for enrollment (Varden).
40. Because Pathways was not an approved 766 program Silver Lake made an additional school referral to the Baird Center in Plymouth in early to mid-January, 2001 (J21, Mother, Bell). Parents completed the application process in late January 2001 (Bell, Mother). After investigation, Parents decided that the Baird Center was not appropriate for Student (Mother).
41. In early February 2001, the TEAM reconvened to update the status of the search for placements. At that meeting, a representative of Silver Lake proposed the League School in Walpole, MA. Silver Lake sent League Student’s packet and League reviewed Student’s file upon receipt (Warren). Parents and Ms. Efferen visited League in early February for approximately two hours (Mother, Efferen). Mother observed students whose disabilities were apparent from their appearance, behavior, and/or vocalizations, and was concerned that Student would have difficulty adjusting to their presence (Mother).
42. Mother returned to League with Student shortly after her first visit (Mother). Student was reluctant to leave the car because he saw students with visible disabilities outside the school. Eventually, however, his mother was able to persuade him to enter the building. He was able to maintain his composure and enter the building (Mother). Student spent approximately forty-five (45) minutes at League, meeting with the Occupational Therapist and Marc Warren, the Pathfinder’s program director and teacher of Student’s program (Mother, Warren). Student was able to interact with Mr. Warren and complete the worksheets presented to him. Mr. Warren explained the program to him and showed him the school including the quiet room. He told Student that the quiet room was used if requested by a student or when the safety of a student or others required it but only if other methods (less restrictive alternatives developed with the student) had been tried and were not successful. He also told Student that restraints were used but that because of the way the program was run restraints were very rare and used only as a last resort (Warren). Student interpreted this conversation to mean that League used time-outs and restraints in its program (Mother, Student). Student saw the classroom but did not interact with any of the students at League (Mother, Warren, Student). After the interview, Student told his parents that he could not go to the League School (Mother).
43. On or about February 14, 2001, League School determined that its Asperger’s program could service Student and that Student would fit nicely with the other students in the program. As such, it accepted Student and informed Silver Lake at that time (Warren). On or about February 26, 2001, Silver Lake proposed Student attend the League School with the services of the May Institute to assist Student with his transition into a school based program (J26).
44. Student began 9 th grade with no tutoring (Mother, Bell). During late September, 2000, Silver Lake sent two prospective tutors to the Student’s home, neither of whom was acceptable to the parents because neither had experience working with high school students or with students with Asperger’s (Mother, J18). At a prehearing conference conducted on October 19, 2000, the Parties agreed that Silver Lake would provide a person with expertise in Asperger’s Syndrome available to assist a tutor. This agreement was incorporated into a ruling; see Hearing Officer (HO) Ruling October 20, 2000.
45. Another prehearing conference occurred on November 14, 2000. Student did not receive tutoring nor was there a person available with expertise in Asperger’s Syndrome available to assist the tutor (Mother, Bell; see HO Ruling November 14, 2001). Parents proposed that Silver Lake contact the L.D. Network, a private vendor of tutoring services suggested by Mary Ellen Efferen. (Mother, J19). Both parties contacted the LD network; however, tutors were not available during the daytime (Mother, Bell, J18). She was referred to and contacted the a tutoring service on Cape Cod called “Club Z”.” This facility indicated it could service Student and Mother asked Ms. Bell to have the “Club Z” provide tutoring (Mother). Ms. Bell asked Mother to use the tutor they had (Mother, Bell). Mother, because she felt intimidated by Ms. Bell, agreed.11
46. On or about November 17, 2000 the parents agreed to consider Ms. Kathy Lang, a tutor from Silver Lake because she was available during the day (Mother, J18). The parents did not believe that Ms. Lang was appropriate because she was an elementary school teacher with no Asperger’s experience (Mother, J20). At that time, Silver Lake proposed to provide Ms. Lang with the support of Mary Kirby (J20). Silver Lake also agreed to have a person with Asperger’s expertise available to assist the tutor if needed (see HO Rulings November 30, 2000, January 5, 2001).
47. Ms. Lang began tutoring Student in late November 2000 (Lang, Bell, Mother).12 Ms. Lang is certified in elementary education and other than the information provided by Mother has had no experience in Asperger’s Syndrome (Lang, Mother). Her experience with a high school curriculum is limited to her experience as a mother of a high school student (Lang). The tutor was not able to get materials from Silver Lake until approximately three weeks after she began and was not provided a curriculum for his academic subjects (Mother, Lang). Student’s mother and the tutor ended up improvising a curriculum for Student, with Mother providing many of the educational materials (Mother, Lang).
48. Beginning in December 2000 student’s cooperation with tutoring became erratic13 , and he did not want to work with the tutor despite many efforts by the tutor to elicit his cooperation (Mother, Lang). Ms. Lang’s contact with Silver Lake involved submitting tutoring notes and time sheets for payment (Lang). Ms. Lang informed Ms. Bell that verbally and through her tutoring notes that tutoring was not successful; however, she was not provided with consultation by an Asperger’s expert nor did she know that she could access Ms. Kirby’s services (Lang). She had no contact with Ms. Kirby during that time (Lang). Although Ms. Lang was not able to elicit Student’s cooperation in tutoring she was able to establish rapport with Student and learned that he enjoyed videos and had used videos with his former tutor (Lang, see J16). As a result many of the sessions consisted of watching videos and doing worksheets on the subjects covered by the videos (Lang). Initially, Mother attended and assisted at all tutoring sessions and then repeated with student the work the tutor had tried to do with him (Mother). Eventually, Mother stopped doing this and then Student simply refused to work, stating that he wanted to be in school (Mother).
49. In late December or early January 2001, Mother requested Silver Lake to arrange a home behavioral consultation for Student with Dr. Putnam at the May Institute (Mother, J22). Silver Lake contacted Dr. Putnam’s office in early January, but no consultation occurred until after Student’s February 14 th acceptance at League, at which time Silver Lake requested Dr. Putnam to develop a transition program for Student (J22, Mother).
50. Student refused tutoring, or mother cancelled for appointments/illness for all scheduled sessions in January and February 2001 (J23). When Mother reported to Silver Lake that Student was refusing to work, she was told that Student would be in a program soon (Mother). The tutor was able to come to the house eighteen (Mother) or nineteen times (J23) during January 2, 2001 and February 5, 2001 but was only able to say hello to the student, and no work was done (Mother, J23). Ms. Lang spoke to Silver Lake about her difficulties with Student and was told to call Ms. Kirby (Lang, Bell). Ms. Kirby and Ms. Lang had one conversation in January 2001. No tutoring was offered after February 5, 2001 (Bell, Lang, J23).
PARENTS’ PROPOSED PROGRAM
51. The CNS/Pathways Academy is a component of the Center of Neurointegrative Services (CNS) at McLean Hospital in Belmont, MA.14 The school was established in 1998 under the auspices of CNS, which has the goal of developing a national training center on meeting the needs of individuals with Aspberger’s Syndrome and other neurocognitive disabilities (e.g. learning disabilities, Tourette’s Syndrome, Obsessive Compulsive Disorder, PDD and ADHD). (Varden, J43). The school currently has the capacity to serve a total of 19 students in its Upper, Middle, and Lower School components. Pathways is not an approved Chapter 766 private school, and is in the process of seeking such approval from the Department of Education (Varden, J43). Because the school is not DOE approved, individual students are funded privately, or through the “sole source” provisions of the Chapter 766 regulations (Varden).
52. Pathways’ school program operates twelve months per year, from approximately 8:30AM to about 2:30-3:00 PM. Wednesday is an early release day. After students leave for the day, Pathways staff may meet with parents or use that time to have staff meetings or inservice training (Varden). There is a school-wide academic curriculum, based on the Massachusetts Curriculum Frameworks, which is individualized to accommodate the learning profile of each student, as well as the requirements of his/her home school district. Academic subjects include language arts, science, mathematics, and social studies. Foreign language is not available on campus; however students have taken this subject through computer (Varden). Upper (and Middle) School students switch teachers and rooms for different class periods similar to their public school peers; however, there are no bells to mark the end of a class period (Varden). Students also regularly go swimming in the pool on the nearby campus of the Fernald State School. (Varden, Mother, Efferen). Pathways also provides students with sensory integration services, adaptive physical education, and pragmatic social communication, and peer and group therapy; the sensory and sponsors a parent support group that meets monthly. Social pragmatics for all students is taught both with direct instruction and throughout the school day. Additional clinical services (e.g., neuropsychological evaluations, psychopharmacology) can be arranged with staff clinicians and/or McLean Hospital staff (Varden, J43).
53. As of the date of hearing, fifteen students were enrolled at Pathways: seven in the lower school (ages approximate 10-11 ½), six in the Middle School (five students aged approximately 12 ½ and one aged about 15 ½) and two in the Upper School (ages approximately 18 ½ through 19) (Varden).
54. A program director, a licensed and DOE certified Speech and Language Pathologist and Occupational Therapist and a Registered Nurse service the entire school. Direct psychological services are provided to all students by a doctoral level neuropsychologist who conducts assessments and works on individual student programming (Varden, J41). The CNS Medical Director is a clinical child psychiatrist, and the CNS Child and Adolescent Program Director, Clinical Director, and psychopharmacology consultants are, respectively, a clinical psychologist, a clinical neuropsychologist, and a psychiatrist. (Id.). Two full-time teachers and one “floater” teacher are responsible for the academic component at the Upper School. The mathematics teacher for the Upper and Middle School (Jamahl Peavey) has a Bachelor’s degree in Engineering, a Master’s degree in Education, is certified in Physics for grades five through twelve, and is in the process of completing special needs certification requirements . Mr. Peavey also serves as acting lead teacher for the Upper School.15 He is out of the building for some portion of the school week to assist one of the Upper School students at a job site (Varden, J41). The Science teacher, Joseph O’Garr, has a Bachelor’s degree in clinical psychology, has worked as a mental health specialist in a children’s inpatient psychiatric facility, and student taught in an elementary school special needs class (J41). Mr. O’Garr, like Mr. Peavey, also is out of the building for some portion of the day to assist one of the Upper School students at the job site and also teaches other science classes at Pathways. Mr. O’Garr is not a DOE certified teacher (J41, Varden). Patricia Duggan supervises curriculum, and normally teaches history and language arts in the Upper School, but at present is primarily focusing on the Middle and Lower School due to two Lower School vacancies. Ms. Duggan has Master’s degrees in elementary and special education and is certified for grades K-9 (Varden, J41). Lisa Debonzo is the “floating” instructor who also teaches English in the Upper School (Varden). She also services the Middle and Lower School students and is a substitute when a staff member is not available. Ms. Debonzo has a bachelor’s degree in Psychology and English and is not certified (Varden, J41).
55. If Student were to attend Pathways, he would be placed in the Upper School. Upper School classes are approximately 45 minutes long, and there is a fifteen minute sensory break between class periods, during which students may walk, shoot baskets, or engage in other activities to address their neurological needs and organize themselves for the next class (Varden). Students may also take sensory breaks during class (Varden). Each student has a “sensory diet,” and all staff are aware of this diet (Varden). Student behaviors that impede safety (e.g., assaults) are viewed as part of the student’s neurological makeup, and Pathways focuses on sensory alternatives to such behavior rather than on conventional behavior management systems.16 (Varden).
56. If the Student is placed at Pathways, he will be assigned to the Upper School with “Student A” and “Student B.” (Varden, J42A, J42B). Student A will be 21 years old in August 2001. He has Asperger’s Syndrome as well as ADHD, Tourette’s Syndrome, and schizophreniform disorder. Student A’s Tourette’s is evidenced by echolalia, constant motor activity, rearranging objects, twirling hair, facial grimaces, and vocal tics. Student A has had two past psychiatric hospitalizations (J42A). Student A’s goals and objectives include work on operational skills, decimals, fractions, and consumer math concepts and improving writing skills in language arts. Student A’s areas of need include social interaction, language skills, and impulse control. Student A’s post-school goal is community job placement. During the 2000-2001 SY Student worked in a local supermarket to acquire such skills as following step by step instructions in performing a task and addressing a supervisor appropriately. When not working at the job site Student A worked on completion of job interviews “phone calls,” “want ads” “computer search,” and “voke math.” (Varden, J42-A, J43-A).
57. Student B is now a little over 18 ½ years old and also has been diagnosed with Asperger’s Syndrome as well as ADHD, a mild form of PDD, poor sensory integration, and auditory processing problems. Student B has superior cognitive ability, is at, or above, grade level and wishes to attend college. Areas of need identified in Student A’s IEP include self-esteem, social interactions, and speech and language. Student B is expected to graduate in June 2001. (Varden, J42-B).
58. In September 2001, one or two students now in the Middle School (“J42MS-4 and “J42MS-6) are expected to transfer to the Upper School and would be Student’s peers during the 2001-2002 school year (Varden). Student MS-4 is approximately 15 ½ years old. He has been diagnosed with Asperger’s Syndrome, Pervasive Developmental Disorder, Tourette’s Syndrome, bipolar disorder, and ADD and has low-average cognitive functioning (J42MS-4). MS-4’s areas of need include unusual behaviors (rigidity, noise sensitivity, adapting to change), problems with impulse control, anxiety, emotional lability, compulsive behaviors, and difficulties with reading and math. (J42 MS-4). Student MS-6 functions intellectually in the “superior” range, and has been diagnosed with “Pervasive Developmental Disorder not otherwise specified.” Areas of need for MS-6 include reducing distractions and stimulation, providing support for anxiety and resultant behavioral disruptions with provision of cool down times and areas, sensory integration breaks, minimal changes in routine, and various academic accommodations (J42 MS-6).
59. The travel time from Student’s home in Plympton to Pathways in Belmont is a fifty+ (50) mile trip that ranges from at least an hour during quiet travel times to over two hours during rush hour traffic (Varden, Bell, Mother).17 Pathways students are primarily from the MetroWest and North Shore regions. There have been several occasions where transportation has not been timely especially when servicing students from the North Shore. When transportation has not been timely, the students often do not have a “good day” because their schedule is thrown off. When this has occurred Pathways has worked with the transportation company so that the student could arrive by 8:30 a.m. (Varden). Pathways does not now have the ability to modify the daily schedule to accommodate late arrivals. (Bell). Pathways has had one or two students from the South Shore. One of these students is now at the League School because it has a larger peer group (Bell). Another student from Duxbury was hospitalized while at Pathways leaving to go to a more restrictive placement. Mr. Varden does not feel that transportation played a part in his lack of success at Pathways (Varden). If Student were to attend Pathways he would be the only student from the South Shore in his academic program (Varden; see J36).18
SCHOOL’S PROPOSED PROGRAM
60. The League School is a private, Chapter 766 approved day school located in a new facility in Walpole, MA. The school’s program operates two-hundred-sixteen (216) days per year and serves approximately eighty (80) students, aged three to twenty-two (22) years (J24, Warren). Founded in 1966, the school historically has served students diagnosed with developmental disabilities including PDD/autism, and the general level of functioning of students is within the range of mild to severe retardation. In August 1998, the school established the Pathfinder’s program, which specializes in serving high-school-aged students with at Asperger’s Syndrome (Warren, J24). The League’s Asperger’s program is located within the main League School facility. The structure and furnishings/equipment of the program are designed to meet the sensory needs of students with Asperger’s Syndrome. These adaptations include desks with chairs that students can rock in safely, nonflourescent lighting and classroom doors designed to minimiae sounds that can distract students (Warren).
61. Like the Pathways program, the League offers a high school level curriculum based on the Curriculum Frameworks and individualized as needed for each student. Like Pathways, foreign language instruction can be and has been accommodated through distance learning (Warren). League students take the MCAS with individualized testing accommodations, and can earn diplomas from their sending high schools.19 Students also receive social pragmatics instruction from the speech/language therapist three times weekly with additional ongoing classroom support. They also receive adapted physical education, OT/sensory services and services from an Occupational Therapist, an art teacher, a music teacher, an adapted physical education teacher, a behavioral consultant, the school psychologist and a doctoral level clinical social worker (J39). The Asperger’s program staff is adequate in number and qualifications (Stipulation). Students may have individual behavior management plans incorporated into their IEPs, but there is no program wide “level” system. Similarly, while there are no class-wide sensory break periods, such breaks may be built into students IEPs (Warren).
62. If Student were to attend the League School, he would, pursuant to a transition plan developed by League and the school district, join a class staffed by Mr. Warren and a teaching assistant and nine other students (“A” through “I”) ranging in approximate age from 16 to 21 years. (One student is approximately 21 years old, two are about 19, one is 18, three are 17, and one is 16). The classroom is located at the end of a corridor, facing a wooded area. All students receive academics and related services pursuant to their IEPs. Classes are conducted with the entire group of broken into smaller groups depending on the academic and social-emotional needs of the Students (Warren). All the students have diagnoses of Asperger’s Syndrome and have at least average intelligence. All of these students’ skills fall into a range compatible with Student’s needs (Efferen, Warren). In addition, many of these students share Student’s interests in computers and WWW wrestling (Warren).
63. The prior experiences of the students in the program are similar to Student’s in that many of these students had not had an accurate diagnosis of their disability until recently and several students entered the program after a period of home tutoring. Like Student, many have been resistant to attending any program. This resistance is a component of rigidity and anxiety associated with change and is consistent with a diagnosis of Asperger’s (Warren). Many of the students had also had a history of behavioral outbursts, similar to Student’s, because these outbursts are also part of, and consistent with, a diagnosis of Aspergers. Students may have individual behavior management plans incorporated into their IEPs, (A, B, C, F,) and there is a classroom behavioral system under which rewards completion of work and positive social interactions with increased independence in the school (D). This is a concern to Parents (Mother, Efferen). Of the nine students, Parents have the most concerns about Student “A” because his behavior is sometimes inappropriate and provocative to other students and he can become hyperactive and act out in class. They also have concerns about Student “C “ because before coming to League, C had had “volatile outbursts,” and therefore spent the first thirty days of his initial IEP year in a 1:1 tutorial before phasing into class. League does have a behavioral program; however, the behavioral program is not a “level” system” where students need to perform consistently in order to gain and maintain priviledges. Those Students whose individual needs call for a behavioral plan,(i.e., Student A and Student C), are both now doing well in League’s program. (Warren, J 42).
64. The travel time to and from the League program from Student’s home in Plympton is approximately one hour and ten minutes during rush hour periods (Bell).
FINDINGS AND CONCLUSIONS
After careful review of the record before me, and consideration of the applicable federal and state statutes and regulations, it is my determination that the School District’s proposed placement in the Asperger’s program at the League School will afford the Student maximum feasible benefit in the least restrictive environment. My reasoning follows.
The record establishes, and the parties do not dispute, that an appropriate program for Student must have (1) expertise and resources for educating high school students with Asperger’s Syndrome; (2) the capability of enabling Student to pass the MCAS examinations, earn a high school diploma, and prepare for college if he wishes; (3) peers with similar intellectual and neurobehavioral profiles; (4) direct instruction in social pragmatics and self management, sensory integration services; and (5) and environmental and programmatic accommodations to reduce anxiety and support management of Asperger’s symptoms.
The Parties do not dispute that the League School is designed service students with Asperger’s syndrome with average to above average cognitive ability and provide them with a high school level curriculum based on the Massachusetts Curriculum Frameworks. Nor do they dispute that League offers the social pragmatics instruction, and occupational therapy/sensory integration services that Student requires. The Parents also do not dispute that the League School could afford Student an adequate complement of appropriately qualified staff. Given that, Silver Lake asserts that the revised 766 regulations require them to place Student at League. That regulation reads:
If an approved program is available to provide the services on the IEP, the district shall make such placement in the approved program in preference to any program not approved by the Department. 603 C.M.R. 28.06(3)(d).
Silver Lake correctly acknowledges that the mere fact that a school is approved does not it is a mean it is appropriate for every student. There must always be a fit between the student’s individual needs and the services offered at any out of district placement; School Brief at 7. Consequently, an acceptance by an approved school is only one criteria in the decision about whether that school can meet the student’s individual needs. Both Parties agree that given Student’s lack of educational success since 6 th grade, it is even more important that Student’s next program be successful and designed to ensure success (Mother, Efferen, see also Bell) .
Parent’s however, feel that given his prior lack of educational success and given that Student has been out of a school setting since April 2000, Student should be in a smaller homelike setting like Pathways instead of in a grouping of eight students at League. They also feel that some of the students in League’s Pathfinders program as well as the PDD students Student would be exposed to in the cafeteria, the hallways and the school entrance would cause Student undue anxiety hindering his ability to achieve his maximum possible development. Parents also assert that League has a rigid behavioral program with quiet rooms; that Student due to his experiences at Silver Lake and Pilgrim, has a distinct aversion to discipline in time-out rooms, making the League inappropriate. Lastly, Student at sixteen years, is more comfortable at Pathways and wants to attend and as such his preference should be taken into consideration (Mother, Efferen).
The record shows however, that the League School provides an appropriate peer group for Student. The student population in the League classroom proposed for Student consists of nine other students, all of whom are within two years of Student’s age, have cognitive abilities ranging from average to significantly above average, and are engaged in academic coursework at or near Student’s level. Parents’ educational consultant, Mary Ellen Efferen, testified that these students’ skills fell into a range compatible with Student’s needs, and I credit her testimony. Additionally, the League students face many of the same social, emotional, and behavioral challenges as the Student and also require small classes with minimal distractions, social pragmatics instruction, sensory breaks and/or sensory integration services, instruction/support with self-management and stress reduction techniques. Two of the students’ IEPs indicated problems with aggression or confrontive behavior, and this issue was of concern to Ms. Efferen and Parents. However, it is important to note that these same IEPs contain objectives addressing the students’ inappropriate behavior, and provide for services to accomplish those objectives, indicating that League School is equipped to assist students’ with Aspergers’ and related disabilities and help them manage their behavior. Because Student himself has, on occasion, engaged in aggressive behavior as a result of his constellation of disabilities, it is critical that any program he enters be able and willing to help Student learn alternatives. League is an appropriate setting to work on these goals and objectives.
Ms. Efferen maintains that because Student has been out of school for an extended time, he would be better served in a smaller setting. This concern has been duly noted and considered; however, Ms. Efferen’s testimony is based on one meeting with Student. League has had many students who, like Student, have come from home settings and have with an appropriate individualized transition plan, and the availability of smaller groupings within the class, have been able to transition into a small class setting (Warren).
It is true that League’s primary student population is not students with Asperger’s, but children and adolescents with PDD/Autism, many of whom are function at the level of moderate to severe mental retardation. The Student would not be sharing classes with these Students, but would be in proximity with high functioning PDD students in the lunchroom and may be exposed to other student’s vocalizations and behaviors in the hallways or other common areas (Warren). Student has found it disturbing and stressful to be around students who are or whom he perceives to be cognitively or behaviorally compromised (Mother, Student, Efferen). Although I take Student’s concerns seriously, League, has had experience dealing with students with Asperger’s, whose profile is rigidity and/or anxiety when they encounter any changes to their usual routine. League has dealt with this issue previously and appears to have the capacity to appropriately address these concerns and assist Student in adjusting to the non-Asperger’s population.
Parent argues that it is important that Student not be in a rigid behavioral program with quiet rooms and Silver Lake agrees that a behavioral program would be inappropriate for Student. The record shows that League does not have a school-wide level system. Time outs and restraints are rarely used and are used only when less restrictive alternatives have been tried and the safety of the student or class requires it. At the League School, some students have individual behavioral plans, and one IEP refers to a classroom system of rewarding completed work and appropriate behavior. Not all Pathfinders students have behavioral plans and the plans that do exist appear to be individualized and to focus on positive reinforcement, positive incentives and self-management rather than punishment. The May Institute had in fact developed this type of program for Student. When implemented, the plan was successful. Student’s IEP calls for a positive behavior management plan (J42). The parent has not rejected this service and has requested such services in the past from the May Center. I therefore find that the behavior management systems and philosophies of League meets Student’s inidividualized needs.
An additional reason put forth by Parents and Student is that League is inappropriate is that Student would prefer Pathways and does not want to go to League. The reasons Student and Parents proffer for not wanting to go to Pathways are: the lack of a behavioral program, time-out rooms and restraints at Pathways; no exposure to noise, vocalizations or behaviors of students who have behavioral issues and/or have lower-cognitive functioning; and, a class size of three at Pathways as opposed to eight at League.
Parents’ and Student’s concerns have been seriously considered but are not borne out in the record. Although at Pathways Student would receive most of his academics in a group of three, he, and the other two Upper School students would be grouped with the six Middle School students for various projects, during lunch and sensory breaks. Like League, Pathways “can be very loud” and “living room” where students can and do gather, “is a very busy, small place”. Student likes Pathways because it is not a behavioral program and does not use time-outs and restraints (Student, Mother). However, the evidence shows that at least one of the Pathways classmates Student would be grouped with has a history of significant behavioral issues requiring prior psychiatric hospitalizations; (J42A). Neither League nor Pathways employ a level system as a school-wide behavioral program, but both use a positive behavioral management plan ( see e.g., Pathways IEP J42-MS-2, Varden). In addition, both programs use time-outs and restraint as a last resort and Pathways staff are trained by McLean’s in using restraint when the safety of the Student and others require it. It is noted that Student is bothered and anxious by people who visible mannerisms, vocalizations or behaviors; however, Student would encounter classmates at Pathways who, due to PDD or Asperger’s, may also have behavioral outbursts or otherwise be disruptive in a group setting. He would also encounter students with Tourette’s Syndrome ( see J42) who display vocalization and tics, would likely encounter psychiatric residents on the grounds of McLean Hospital, and might see individuals with severe developmental disabilities on the Fernald School campus when he goes there to swim. In sum, in either setting Student might encounter people who make him uncomfortable; his IEP contains goals and objectives to help him deal with his anxiety. The fact that people with visible disabilities also attend League does not make the program inappropriate.
Student also does not want to go to League because many of the students are lower functioning there and he has had difficulties when he was put in classes with students who were lower functioning than he. If, however, Student were to attend Pathways, one of the two students he would be grouped with is on a vocational track and is considerably lower functioning than Student (J42A, Varden). In addition, the IEP of one of the students from the Middle School, who is moving up to the Upper School in the fall, describes that student as “functioning in the Low Average Range” and would likely be a candidate for the “job track” (Varden).
While parental and student preference should be given deference when there are two similarly qualified program options, such preference alone is not dispositive. This is a student who needs to be repeatedly prepared and exposed to any type of change or transition and has a history of refusing to participate in certain activities that are ultimately pleasurable (Kirby). For instance, when Student first went to see Pathways he was uncomfortable and nervous even though Mother had been to the program and prepared him for what to expect (Mother, Student, Varden). He was still uncomfortable, although less so, on the second visit and not until the third visit did Student decide that he wanted to go to Pathways. (Id.) League (perhaps because it has a lot of experience in seeking appropriate students for admission and experience knowing that School Districts need a timely answer) only conducts additional interviews if it is unsure that a student would fit into their program. Student was not given the opportunity to meet his classmates and be a part of the classroom. With an appropriate transition plan, I find that Student will be motivated and will be able to successfully integrate (and be happy) in the program.
Having found that League can provide the services on Student’s IEP, preference is given to League over Pathways. The Parents maintain that Pathways is in the process of approval and will be approved in September. Mr. Varden testified that Pathway’s staff is meeting with the Department of Education’s Program Quality Assurance (PQA) personnel and will be asking for provisional approval at that time.20 There are few private day programs servicing students with Asperger’s and large numbers of students who may need this type of programming. The Hearing Officer was impressed with Pathway’s knowledge of Asperger’s Syndrome and its commitment to servicing this population. Pathways is committed to providing students with a high school level curriculum based on the Massachusetts Curriculum Frameworks and offers the small classes, social pragmatics instruction, occupational therapy, sensory integration services, positive, individualized approach to behavioral issues, and many accommodations tailored to the individual and collective needs of its student population. If Student were to attend Pathways, it could provide Student with individualized instruction that would be reasonably calculated to enable him to receive educational benefit; see Board of Education of the Hendrick Central School District et al v Rowley , 548 U.S. 176, 203 (1982).
Student, however, is entitled to a program which will afford him maximum feasible benefit in the least restrictive environment; see David D. v Dartmouth School Committee , 775 F. 2d 411, 644-646 (1 st Circuit 1985). Even, if Pathways is approved in the future it would only be appropriate if it meets this higher Massachusetts standard. It is undisputed that Student requires a program specializing in Asperger’s Syndrome with cognitively average to above-average college bound peers. The majority of Pathways students in what would be Student’s peer group for the current school year or in the next school year are of low average intelligence and are on a vocational track. The Middle School students at Pathways are, by and large, more cognitively similar to Student than are the Upper School students, but would not be sharing classes with Student and, for the most part, are too young to function as a true peer group during school wide activities; see J42MS1-6. Pathways plans to move two Middle School students are into the Upper School in September 2001, but at least one of these students (MS-6) appears to function at a significantly lower academic level than Student. Thus, at best, Pathways would afford student only one peer with a closely similar neurocognitive profile for the remainder of the 2000-2001 school year, and one such peer during the 2001-02 school year. I find that in light of Student’s difficulties with peer relationships and his social isolation that an appropriate peer group is a critical part of Student’s program. Student requires a larger universe of potential friends and role models than Pathways can currently provide.
With respect to staffing, the Parties agree that the League School could afford Student an adequate complement of appropriately qualified staff. On the other hand, although Pathways’ staff roster is replete with physicians, doctoral level psychologists, and other professionals with impressive credentials, the record reveals that most of these individuals would not interact with students on a daily basis in the classroom. Rather, day-to-day instruction in the Upper School is the responsibility of two certified teachers (Peavey, Duggan), one non-certified instructor (O’Garr) and a “floater”, (Debonzo), who also is not certified. The Upper School history/English teacher and team leader (Duggan) is now mainly occupied with the Lower and/or Middle School due to staff vacancies there. The mathematics teacher (Peavey) has had to spend considerable time off site, acting as a job coach for Student A, leaving much actual teaching responsibility to the non-certified teacher and the floater. Given the length of time that Student has been out of school, being sporadically instructed by many different tutors, and given Student’s difficulty with transitions, he should be assured that for the most part, he will not have to cope with possible changes in the teaching staff due to staffing issues elsewhere in the Pathway’s program. Based on the record, the League School is better able than Pathways to give Student this assurance.
Finally, Pathways is located in Belmont, fifty+ (50) miles away from Student’s home in Plympton. Student’s travel to Pathways would coincide with rush hour traffic from the south to north of Boston. Pathways acknowledges that students with Asperger’s Syndrome do not respond well to uncertainty and change in their routine, and that when tranportation issues cause a Pathways student to arrive late, the student’s entire day may be off kilter. For this reason, Pathways frequently works with the transportation companies serving its students to address the issue. (Varden). I find that the length of the commute to Pathways, which has scheduled class periods, would be stressful for anyone, but would be especially difficult for Student who has documented difficulty with change and transitions. The League School is also further from Student’s home than is ideal; however, because it is closer than Pathways, there is less potential for serious disruption in Student’s day because of transportation issues.
Based on the foregoing, I find that the League School is more likely than the CNS Pathways Academy to provide Student with maximum benefit in the least restrictive environment, and, therefore, is an appropriate placement for Student.
Accordingly, Silver Lake Regional School District shall immediately convene a TEAM to formulate an IEP placing Student at the League School, and, additionally, to develop a plan to transition Student into this placement.21
COMPENSATORY EDUCATION SERVICES
It is well settled that compensatory educational services are available as a remedy for students with disabilities whose school districts have denied them FAPE by, e.g., significantly interrupting or denying essential special education services to which they are entitled. Stock v. Mass. Hospital School , 467 NE.2d 448, 392 Mass 205 (1985); Pihl v. Massachusetts Department of Education , 9 F.3d 184 (1st Cir. 1993). Liability may arise where “procedural inadequacies [have] compromised the pupil’s right to an appropriate education … or caused a deprivation of educational benefits.” Roland M. v. Concord Sch. Comm., 910 F.2d 983, 994 (1 st . Cir. 1990) (citations omitted), cert. denied, 499 U.S. 912 (1991), ( see also Murphy v. Timberlane Regional Sch. Dist. , 22 F.3d 1186, 1196 (1 st Cir. 1994) , in which the court held that “a procedural default which permits a disabled child’s entitlement to a free and appropriate education to go unmet for two years constitutes sufficient ground for liability [for two years of compensatory service] under the IDEA.”22
Here, the record evidence is clear, and the parties do not dispute, from the middle of sixth grade on, Student’s educational services were interrupted, discontinued, or incompletely delivered for on numerous occasions, for significant periods of time. The issue is whether Silver Lake caused these gaps in service in violation of applicable law; and if so, whether the gaps in service denied Student a FAPE. After consideration of the testimony and documentary evidence in this matter I find that Silver Lake committed due process violations that denied Student a FAPE and as such Student is entitled to compensatory education services. My analysis of the facts in light of the foregoing and of the relevant law follows.
The record shows that beginning in December 1998 Student began having difficulties interacting his peers and was sent home many times. Silver Lake properly initiated an evaluation, pursuant to Parent’s consent, on or about January 6, 1998. Pursuant to the Chapter 766 regulations then in effect, 603 CMR 28.100.0 et seq ., Silver Lake was required to complete the evaluations within thirty (30) school working days of Parental consent. 603 CMR 28.319.0 Silver Lake was also required to provide the Parent notice, convene the TEAM and develop an IEP or a finding of no special needs (NSN) within forty-five (45) school days. Id . Thus, allowing for February vacation, the evaluations should have been completed by the end of February, and the TEAM should have convened by the third week of March, 1998.
The school district’s psychological and educational assessments were completed in January 199823 and were inconclusive as to diagnosis or appropriate services. (The psychologist did observe, however, that Student did not perceive social cues, did not understand the impact of his behavior on others, and became overwhelmed and angry with adult intervention imposing logical consequences (J32). The TEAM did not convene the TEAM by March 1998 to make an eligibility determination and recommendations for services nor did it, after reviewing the psychologist’s inconclusive report, recommend an extended diagnostic evaluation under 603 CMR 28.502.9.
Silver Lake did receive an outside neuropyschological evaluation from Dr. Dorn in April 1998. Dr. Dorn recomended that there not be a “behavioral contingency plan designed to decrease maladaptive behaviors and interactions” until further medical studies were completed, and stated that the appropriate accommodation for Student in the meantime was to limit environmental triggers (J35). Contrary to this recommendation, Silver Lake placed Student in a behavioral program, without having convened the TEAM to review the evaluations, to determine eligibility, and to develop an IEP if needed. ( Id.) Student only attended ten (10) of the twenty-three (23), days in the behavioral program, leaving the program in May 1998, and not returning to school until the last two weeks or so of sixth grade. Meanwhile, Silver Lake had not convened the TEAM at any time during or immediately after the Kingston placement. Rather, the district delayed the meeting until June 16, 1998 after the school year was over or nearly over, after Student had missed approximately 45 days of school, and more than five months after the evaluation process had begun. Had Silver Lake completed its evaluation and convened the TEAM in a timely manner as required by the regulations, by mid March, Student either could have received services under an accepted IEP, or could have invoked due process if the parents disputed an IEP or finding of no special needs issued by the TEAM. Instead, as a result of Silver Lake’s procedural violation, Student was out of school for much of the second half of sixth grade.
Student began the 7 th grade with daily academic support in the resource room, team-taught science and counseling under a “diagnostic” evaluation pursuant to 603 CMR 502.9. This use of a diagnostic plan was improper because Silver Lake still had not determined Student’s eligibility. The then-applicable regulation states explicitly that the “school committee shall provide services under this [502.9] prototype to each child in need of special education for whom a TEAM recommends it.” Id . (emphasis supplied). In addition, Silver Lake did not conduct further diagnostic procedures nor did they meet during the diagnostic period to discuss the results of the evaluations and Student’s progress as required by 603 CMR 28.502.9 (b) and (c).
The TEAM convened on October 27, 1998, by which time there had been three “behavioral incidents.” (See Finding No. 9). On the following day, October 29, the Student was suspended (Finding No. 13); he was suspended again on or about December 1. Silver Lake did reconvene the TEAM, on December 14, 1998, after receiving Dr. Rooney’s formal diagnosis of Asperger’s, and did amend the October IEP to incorporate Dr. Rooney’s recommendations for Student to receive replacement English and Science. This IEP was never implemented because Student was suspended two days later (December 16) for hitting two students and did not come back to school until February 22, 1999. Between the beginning of the school year and December 16, 1998 student was formally suspended two or three times for a total of approximately four days, and also was sent home on at least ten different occasions because he was unable to calm down after an incident or stressor.
The Chapter 766 regulations governing discipline that were in effect prior to July 1999 prohibited school districts from suspending special education students for more than ten cumulative days in a school year unless they first convened the TEAM to determine whether the misconduct was related to the student’s special needs, or resulted from an inappropriate special education/placement, or an IEP that was not fully implemented. 603 CMR 28:338.3. If the TEAM concluded that any one of these conditions applied, then the student was not to be suspended; instead, the student’s IEP was required to be revised and/or implemented appropriately. 603 CMR 28:338.4(a). “Suspension” was broadly defined to include not only disciplinary action, but also “any action which results the removal of a student from the program prescribed in his/her IEP [including] in-school suspension…” 603 CMR 28:338.1.
Additionally, applicable federal regulations required (and still require) school districts to conduct a functional behavioral assessment and implement a behavior intervention plan within ten days whenever removal of a child with a disability from his/her educational placement constituted a change in placement, defined as a removal for more than ten consecutive school days or a series of removals constituting a pattern. 34 CFR Sec. 300.520.
Here, it is undisputed that Student had been “suspended” within the meaning of the applicable state regulations for more than ten cumulative days by December 16, 1998, and, further, that his repeated removals from school constituted a “change of placement” as defined by 34 CFR Sec. 300.520. Therefore, under state regulations Silver Lake was required to reconvene the TEAM when it appeared that Student’s removals would accumulate to ten days, i.e., before December 16, and make the determinations required by the state regulations. 603 CMR 28.338.3-4. Additionally, Silver Lake was required to conduct an FBA within ten business days after it was apparent that Student’s repeated removals from school constituted a change in placement. 34 CFR 300.520. While the record does not disclose the dates of all of Student’s removals, early dismissals, etc., the record does indicate that by the second formal suspension on December 16, a pattern constituting a change of placement had been established. Id.
Despite the clear requirements of the law in light of Student’s repeated removals from school, however, Silver Lake did not reconvene the TEAM until January 26, 1999, over one month after the December 16th suspension. Further, the record contains no evidence that when the TEAM did meet on that date, that it formally considered whether student’s conduct was related to his disability or to an inappropriate or incompletely implemented IEP as required by 603 CMR 338.3-4. The TEAM did arrange for an FBA and authorize tutoring, but Silver Lake did not begin the FBA until January 29, 1999.
Moreover, even though Silver Lake did , on February 22, 1999, reconvene the TEAM to develop an IEP after the completion of the FBA, and, with the May Institute’s input, began Student on a shortened (two period) day, with time to be added with success with behavioral goals and objectives, the district did not incorporate the May Institute’s recommendations for home programming or consultation by Asperger’s Syndrome expert(s) into its IEP. In addition, the behavioral goals and objectives that were added contained no procedures or methodologies or timelines for accomplishing these goals or measuring or evaluating their progress ( see J9). As a result, the behavioral plan was not implemented consistently. The record establishes that this inconsistency contributed to Student’s anxiety, which, in turn, led to numerous absences during the second half of the year. In addition to Student’s absences because he was anxious about school, on the days he did attend he was sent home early on at least ten occasions because he was unable to calm down from a stressful interaction or event. Student’s continued, repeated absences and early removals, taking place even after the May Institute plan was implemented, clearly showed that the behavioral intervention plan was not effectively enabling the Student to stay in school consistently, and that the pattern of removal was continuing, and thus triggered Silver Lake’s obligation to reconvene the TEAM another time, pursuant to the state and federal regulations referred to above. Silver Lake did not do so.
I find that Silver Lake violated the requirements of the applicable state and federal regulations cited above when it (1) failed to convene the TEAM by December 16, 1998, and when it failed to conduct an FBA within ten business days thereafter; and, (2) failed to reconvene the TEAM during the second half of 7 th grade, after implementing the behavioral intervention plan, as soon as it became apparent that the plan was not remediating the pattern of exclusion. I find further that these procedural violations deprived Student of FAPE in that Student had at most only 102 full days of attendance during 7 th grade.
Student began the eighth grade on a full day schedule even though he had not had the success in achieving his behavioral goals and objective that were set forth in his IEP as prerequisites for full day attendance. The May Institute behavioral plan continued to be implemented inconsistently. Silver Lake unilaterally changed the behavioral plan, without convening the TEAM or amending Student’s IEP, by substituting an Assistant Principal for Ms. Kirby to remove Student from the class and help him calm down when Student’s anxiety and/or behavior escalated. This substitution was based not on Student’s needs, but on Ms. Kirby’s scheduling conflicts, and there is no record evidence that the Assistant Principal had expertise or knowledge of Asperger’s or special familiarity with this Student.
With respect to suspensions from school, during the first half of 8 th grade (September 1999-January 2000), Silver Lake committed the same procedural violations as it had the previous year. Student was suspended two to three times and was dismissed early on at least ten occasions during this period, but Silver Lake neither reconvened the TEAM to revise the behavioral intervention plan nor conducted any further assessments.
These violations were not cured by Silver Lake’s diagnostic placement of Student at Pilgrim Academy. Student underwent no formal evaluations while at Pilgrim, although these were called for in the diagnostic IEP (J13). Moreover, when Silver Lake failed to conduct the progress meetings stipulated in the IEP and required by the then-governing regulation, 603 CMR 502.9, it foreclosed an opportunity to learn how inappropriate the Pilgrim placement was until two days before the eight-week diagnostic period ended. Finally, upon Student’s precipitous termination from Pilgrim, Silver Lake neither developed a new IEP as required by 603 CMR 502.9(d)(iv) nor searched for a new placement, leaving Student without a school program from April 26, 2000 through the end of 8 th grade. Student then entered 9 th grade with no IEP and no placement, and had no offer of an appropriate placement until March 2001, when Silver Lake proposed the League School.
I find that the effect of Silver Lake’s repeated procedural violations was so pervasive that Student was denied FAPE continuously from the time that it failed to timely complete Student’s initial evaluation (mid-March 1998) until the time that Student could have begun attending League pursuant to Silver Lake’s IEP (March 2001). Although Student had periods of school attendance, including short placements at Pilgrim Academy and the Kingston behavioral program, the services received were tainted by procedural errors and so were so inappropriate that they could not constitute FAPE. Similarly, the school’s liability for compensatory services is not offset by the tutoring provided, which was not provided by properly qualified personnel and did not provide the related services and supports set forth in the IEP and necessary for Student to access the general curriculum. Specifically, the tutors, despite the best of intentions, were not trained in teaching students with Asperger’s Syndrome, were not provided with adequate consultation and training, and, in the case of the ninth grade tutor were not even provided with a curriculum or teaching materials.
In conclusion, I find that Silver Lake’s repeated procedural and substantive violations of the federal and state law, as detailed above, denied Student FAPE and that, therefore, Silver Lake is liable for three years of compensatory education.
Parents and Student have not specified the remedy they seek if the School District is found liable for compensatory education. Absent agreement of the Parties, these three years shall be added onto the end of Student’s current entitlement for services (for this Student graduation). Prior to that time, the TEAM shall convene to develop a compensatory services plan that will be based on Student’s needs at that time.
ORDER
Silver Lake will immediately reconvene the TEAM with the League School to develop a transition plan for Student to attend League. Silver Lake will provide three years of compensatory education services that will be determined prior to Student’s anticipated year of graduation.
By the Hearing Officer,
Joan D. Beron
Dated: May 31, 2001
1
. The Hearing Officer thanks Ms. Berman for her assistance in this matter.
2
. This was a two-day hearing. Due to snow day cancellations, extra days were needed to ensure witness availability.
3
. Also part of the record is Parent’s motion (and the School’s opposition) for interim placement argued on April 12, 2001, after the close of evidence but prior to the full decision on the merits. That motion was Denied. Student would have suffered irreparable harm if placed on an interim basis in a program and later removed if that program was determined not to meet his individual needs. Student has refused further interim services, and due to his Asperger’s, is anxious about his next placement. Closing arguments were submitted on April 20, 2001. At the request of the Parties an order was issued on April 24, 2001 with this decision following.
4
. The Parties stipulate that the IEP is appropriate but dispute the placement proposed by Silver Lake.
5
The WISC-III, Woodcock Reading Mastery Test and WRAT were administered in January 1998. The Speech and Language assessment, consisting of the CELF-3 and informal observation, was performed on May 18, 1998 (J32, 33, 34). Although the request for evaluation was due to behavioral issues , the record shows no evidence of a home assessment.
6
. There is no record evidence of interim meetings during the diagnostic period.
7
The record does not contain evidence that the TEAM met prior to this transfer of responsibility or that the Assistant Principal was experienced with Student or with Asperger’s Syndrome.
8
. Silver Lake maintains that Student received five days of suspension. Mother alleges that Student received between six and ten days of suspension.
9
. Pilgrim provided no prior written notice that it intended to terminate Student’s placement on April 24, 2000.
10
. Pilgrim recommended a comprehensive 45-day evaluation in a residential setting (J14). The record however, contains no other medical or professional recommendations for residential programming and both Parties have been and remain opposed to residential services for Student.
11
. Parent’s proposal for interim tutoring by Club Z was not brought to the Hearing Officer’s attention despite numerous prehearing conferences.
12
. Parents do not waive their rights to compensatory services by accepting Ms. Lang’s services in the interim.
13
. Two weeks prior to Christmas vacation Mother called Ms. Lang to tell her not to come because Student was sick. On other occasions Ms. Lang was told not to come due to changes in Student’s medication that affected his motivation and behavior.
14
. CNS’s other components consist of CNS Consultation Services, CNS Research Institute and the Center of Neurointegrative Services (CNS) at McLean Hospital in Belmont (Varden, J43).
15
14. The regular Upper School lead teacher, Patricia Duggan, is temporarily substituting for the lead teacher in the Lower School, who is on maternity leave (Varden).
16
. Varden testified that Pathways does not use “quiet rooms” and attempts to avoid the need for restraint by having all staff familiar with each student’s individual neurological needs and prescribed “sensory diet.” (Varden). However, the record evidence shows that the 9/00-9/01 IEP of one Middle School student includes a “predetermined behavioral plan including a three step warning system, a clear consequence of being out of the community for a brief time, and a clear explanation of how [student] will need to earn reentry into the community. Earning rewards, and positive reinforcement help [student to remain on task, follow the rules, and with teachers’ cues monitor [student’s] inappropriate behaviors.” (J42 MS-2).
17
. Mother testified that the trip from home to Pathways took approximately 45 minutes. However, the parent further testified that this was during the middle of the day, and not during rush hours. (Mother).
18
. No testimony was taken about the profiles or residency of Students in the Lower School program because they would not be part of his academic program. Student would, because of the size of the school , come in contact with the Lower School during sensory breaks, in the cafeteria or in the hallways (Varden).
19
. The League’s brochure states that the school prepares students for the G.E.D.; however, the program director testified that League courses translate into credits towards graduation, and the IEPs of the students in the program all have high school graduation as a goal. (J24, Warren, League IEP’s.)
20
16. The regulations provide for temporary approval, provisional six-month approval, and probationary approval . The school must demonstrate to the satisfaction of the Department that the health and safety of the students is protected and the school is able to carry out the provisions of each student’s IEP; 603 C.M.R. 28.09 (a). Once DOE makes a decision that a program will be 766 approved or approved on a temporary, provisional or probationary status it must provide the applicant with a written notice of its actions and the reasons for such actions; see 603 C.M.R. 28.09(3). Specific criteria for granting provisional or temporary approval prior to full approval is not articulated in the regulation although the language of the temporary approval status does seem to suggest that temporary approval is an approved program that does not have a program price and the language in the provisional approval seems to indicate that there may be elements to the program that need to be modified in order to get full approval status; see 603 C.M.R. 28.09 (3), 28.09(3)(a)(b).
21
Due to Student’s anxiety over where his placement at his placement should the Hearing Officer issued an order on April 26, 2001 to this effect.
22
. Neither Party has asserted a statute of limitations defense. Timberlane looked at a statute of limitations pursuant to a tort claim (In Massachusetts this is a three year period). A BSEA Hearing Officer used a three-year statute of limitation pursuant to the Civil Rights statute. Both Parties agree that if compensatory claims exist they fall within the three-year limitations period.
23
Silver Lake did not complete a speech/language assessment until May 1998.