Student v. Attleboro Public Schools and Foxboro Regional Charter School – BSEA #04-0312
COMMONWEALTH OF MASSACHUSETTS
SPECIAL EDUCATION APPEALS
In Re: Student v. Attleboro Public Schools and Foxboro Regional Charter School BSEA # 04-0312
This decision is issued pursuant to 20 U.S.C. 1401 et seq. (the “IDEA”), 29 U.S.C.794, M.G.L. chs. 30A, 71B, and the Regulations promulgated under those statutes.
A Hearing in the above-referenced matter was convened on April 15, May 10, May 19 and June 24, 2004, at the BSEA, 350 Main St., Malden, MA, before Rosa I. Figueroa, Hearing Officer.
Parents’ written closing argument was received on July 27, 2004, Attleboro Public Schools’ (hereinafter, “Attleboro”) and Foxboro Regional Charter School’s (hereinafter, “FRCS”) written closing arguments were received on July 28, 2004. The Record closed on July 28, 2004.
Those present for all or part of the Hearing were:
Susan Love, Esq. Attorney for Parents/Student
Regina Williams-Tate, Esq. Attorney for Attleboro
Dennis F. Desmarais, Esq. Attorney for FRCS
Laura V. Glomb Attorney consulting to FRCS
Bruce Lynch Special Education Director, Attleboro
John Da Ponte Special Education Director, FRCS
Theresa Axile Student Services Director, Attleboro
Ann Marie Galligan Bi-County Collaborative (hereinafter, BICO) Program Director
Steven C. German Director of Special Education, Special Education Support Services, Attleboro
Steve Lilly-Weber Mediator, BSEA
Erin Ruane School Social Worker
Robert Augustine Parents’ Advocate
Sharon Jermain Educational Consultant
Joyce Foster Director of Clinical Services, BICO
Julia Moisiades Special Education Teacher, BICO
Thomas J. Houton Catuogno Court Reporter
Parents’ Exhibits (hereinafter, “PE”) 1 through 26, Attleboro’s Exhibits (hereinafter, “AE”) 1 through 69, and FRCS’ Exhibits 1 through 15 (hereinafter “FE”) were admitted in evidence and were considered for the purpose of rendering this decision. FRCS objected to admission of Attleboro’s entire exhibit book but the objection was overruled and all of Attleboro’s exhibits were allowed.
1. Whether Student is owed compensatory services for the period from January to June 2003, and if so who is responsible to compensate her?
2. Whether Attleboro failed to offer Student a Free Appropriate Public Education (hereinafter, “FAPE”) consistent with her IEP when it placed Student at the BICO Therapeutic Education Program between September 2003 and June 2004?
3. Whether Attleboro’s proposed program at BICO through November 2004 affords Student a FAPE?
4. Whether Student is entitled to placement at the League School, a private special education school, at public expense?
POSITION OF THE PARTIES:
According to Parents, by January 2003 it had become apparent to FRCS that its program was not appropriate to meet Student’s needs. FRCS then attempted to transfer responsibility to Attleboro following a Team meeting in March 2003, held at FRCS, during which a representative of Attleboro was present. Attleboro did not convene a Team to discuss Student’s placement until September 2003. Also, between May and July 2003, Student underwent a psychiatric hospitalization at Children’s Hospital and during that time no tutoring was offered to Student. Parents concede that following Student’s discharge from Children’s Hospital the Parties agreed to her placement at the ABACUS program and summer programming is therefore, not an issue.
When the Team met in September 2003, Attleboro failed to offer Student a private day placement as per the IEP of March 2003. Instead, Attleboro placed Student at the BICO Collaborative program, a program which according to Parents, does not meet the recommendations of the experts and fails to meet Student’s needs. Student attended BICO’s Therapeutic Education Program during the 2003-2004 school year but she failed to make effective progress. Therefore, Parents assert that Attleboro is responsible to fund Student’s placement in a private day school that can meet her needs during the 2004-2005 school year. Parents specifically request, consistent with the testimony of Ms. Sharon Jermain, that placement be made at the League School.
Attleboro asserts that Parents failed to show that Student was owed any compensatory services for the period from January through June 2003, and further states that if there were any violation of Student’s entitlement, it was committed by FRCS and not by Attleboro.
Regarding Parents’ claim for prospective relief, Attleboro argues that the BICO Therapeutic Education Program complies with the recommendations of the experts, and has provided and will continue to provide Student with a FAPE in the least restrictive environment. This program meets the requirements set forth in Student’s IEPs, and provides services beyond those delineated in the last agreed upon IEP drafted by FRCS in January 2003.
During the 2003-2004 school year, Student progressed in all identified areas including academic, social and emotional. Furthermore, Parents presented insufficient evidence to warrant a change of placement to any setting outside the public school district and specifically the League School. Lastly, Attleboro states that since Student has great difficulties with transitions, another change in placement would be detrimental to her.
FRCS affirms that it complied with all of its mandates under special education law and affirms that it attempted to offer Student an appropriate program. Furthermore, FRCS maintained Student’s placement during the 2002-2003 school year because Parents were invested in making this an effective program for Student. Unfortunately, Student’s needs were too severe, and it became clear in January 2003, that FRCS could not offer her an appropriate program. According to FRCS, responsibility for Student’s program shifted back to Attleboro after the Team meeting of March 2003 during which a representative of Attleboro was present. At that time the Team agreed that Student required a more restrictive day placement. FRCS argues that Attleboro failed to take steps to assume educational responsibility for Student until the summer of 2003.
FRCS remained committed to Student and was even willing to cover tutorial services to her when she was hospitalized at Children’s Hospital’ Psychiatric unit. Student however, was not available to be educated during her hospitalization. FRCS asserts that since Student did not return to FRCS after mid May 2003, its responsibility ended at that time. Student is not entitled to compensatory services and if she is, it is not FRCS’ responsibility.
FINDINGS OF FACT
· Born on September 6, 1991, Student is a twelve-year-old sixth grader at the Bi County Collaborative Therapeutic Education Program (hereinafter, “BICO”) in the Ahern Middle School in Foxboro. (SE-4; Testimony of Mother, Ms. Axile) She is a resident of Attleboro where she lives with her mother. (Testimony of Mother) Student was described as a sweet and naive child with an exceptional talent for drawing, who is bilingual in Spanish and English. (AE-28) Student is a sensitive, imaginative, creative child who has a special talent for art, music and language. (AE-56; Testimony of Mother) She enjoys drawing, painting, reading, watching TV, doing puzzles, riding her bicycle and swimming. (AE-9; AE-56; AE-64) She was described as energetic, active and as having difficulty sitting still. By all accounts, her behavior can be unpredictable and immature. (AE-56; AE-64) Parents and providers report that since very early on Student displayed much difficulty engaging in parallel play or establishing social relationships especially with other children, preferring to play or work alone. (AE-63; AE-60; AE-64)
· Student’s first four years of life were spent in the US before her parents separated and Mother moved with her to Colombia, where she completed the first grade at Fundacion Nuevo Marymount, obtaining As and Bs in all of her courses except for dance. (AE-66; Testimony of Mother) In July 2000, Mother and Student returned to the United States and Student entered the third grade in Attleboro’s Studley Elementary School where she stayed through the fourth grade. (AE-64; AE-66; Testimony of Mother)
· At age three years 10 months Student underwent a psychological evaluation at the Developmental Evaluation Center in Children’s Hospital. (AE-67) The results of the evaluation showed that Student’s intellectual testing scores fell generally within the average range, and evidenced moderate difficulties with executive control processes, fine motor skills and modulation of attention. (AE-67) Clear delineation of limits and a high level of structure in a classroom with a small teacher/student ratio was recommended by the evaluators, Rafael Castro, M.S. and Dr. Karen Levine, director of Psychology. (AE-67)
· When Student was nine and a half years of age, she was diagnosed with Asperger’s Syndrome following a diagnostic assessment at the Developmental Medicine Center at Children’s Hospital. (AE-9; Testimony of) Her cognitive abilities were placed in the low average to average range. (AE-9) She showed reduced interpersonal relatedness, behavioral regulation challenges and a tendency to fixate on particular areas of interest. She also presented with delusional thinking. (AE-9)
· On November 6, 2000, Attleboro referred Student for a special education evaluation to assess concerns regarding Student’s socialization, communication and sensory skills. (AE-65) Mother consented to the evaluation on November 6, 2000. (AE-65)
· Alissa Krawiek, Special Needs Teacher in Attleboro, evaluated Student on February 6 and 14, 2001. (AE-60) It was noted that she required extra support from staff to complete tasks. On a one-to-one basis she could complete tasks when provided with encouragement and visual and verbal support. Ms. Krawiek concluded that Student would benefit from predictable environments, small group instruction, continuous monitoring of work, positive reinforcement and praise, use of graphic organizers, use of a personal dictionary and assistance with organizational skills. Ms. Krawiek drafted goals for English/Language Arts and mathematics. (AE-60)
· On February 16, 2001, Attleboro forwarded to Parents an invitation to attend a Team meeting for Student. (AE-62) The Team meeting was scheduled for February 28, 2001. (AE-62)
· Attleboro performed a speech and language evaluation of Student on February 28, 2001. (AE-59) During the test conducted by Barbara DeBiasio, M.S., CCC-SLP, Student exhibited a high degree of distractibility, had to be re-directed to task frequently and required repetition of directions and modeling of the different types of responses needed. (AE-59) Student presented with moderate expressive and receptive language deficits in English as well as deficiencies in pragmatic language skills. (AE-59) Student’s areas of need included: “auditory comprehension, comprehension of multi-step concepts, attention and concentration, following multi-step directions, vocabulary, grammar/syntax, reasoning and problem-solving, and pragmatic/social skills. (AE-59) Student’s language dominance between Spanish and English could not be established at that time. Ms. DeBiasio recommended that Student receive speech and language services and that multiple strategies, including preferential seating, multi-sensory presentation of information, pre-teaching of vocabulary, frequent redirection to task, use of visual aids and concrete representations, social modeling and inclusion in small social groups, be implemented in the classroom. (AE-59)
· On February 28, 2001, Parent consented to having Dr. Larry Hirshberg observe and work with Student. (AE-58)
· Lauren Murphy, Ph. D., Staff Psychologist at Children’s Hospital, performed a developmental evaluation of Student on March 22 and 28, 2001 with the assistance of a fully bilingual interpreter during the cognitive testing. (AE-56) The evaluation was funded by Attleboro. (AE-57; AE-61) At the time of this evaluation, Student did not show signs of a negative self-esteem. She demonstrated a desire to please others and anxiety about her performance. (AE-56) Dr. Murphy stated that Student’s cognitive levels were difficult to assess because of her attentional issues and Student’s bilingual status (Spanish was found to be her dominant language but the assessment was conducted in English). (AE-56) Therefore, the results were not found to be a reliable representation of Student’s intellectual capabilities. Student’s overall atypical presentation was found to be consistent with a diagnosis of Asperger’s Disorder. (AE-56) Dr. Murphy was concerned about Student’s emotional status, her reality orientation, lack of coherence in her behavior and raised the possibility of comorbid diagnoses with a recommendation that there be ongoing assessments of Student’s emotional status. (AE-56) She further stated that Student required a small, supportive, classroom in a predictable environment, with close monitoring and opportunities for small group and individualized learning experiences. (AE-56) Student would need “organizational assistance, attentional monitoring, redirection from internal and external distractions, language support, support for mathematics skills development, preview of information (help with “getting the big picture”), help with assimilating details to a meaningful whole, review information, practice of new materials learned, language support, and support for continued social development (pragmatic language use, interpreting non-verbal cues, turn-taking, reciprocity sustaining language-based interactions).” (AE-56) She also recommended psychotherapy, family therapy, a bilingual speech and language assessment, attentional monitoring and cueing, and psychopharmacological intervention. (AE-56) Her development should be monitored over time to ensure that progress was maintained and to make the necessary modifications. ( Id. )
· A memorandum of May 24, 2001 from Ann Zmudsky of Attleboro relates Children’s Hospital’s recommendation that Student participate in a specialized setting, perhaps a therapeutic day school, and summarizes the services agreed to be provided by Attleboro. Those were: Student would participate in a third grade inclusion program; would receive speech and language services; occupational therapy; Dr. Larry Hirshberg would consult to Student and Parents; a bilingual aide would assist Student in the classroom; and, student would participate in a summer program that offered language therapy and a social component. (AE-54; AE-55) Ms. Zmudsky reports that Parents were in agreement with the IEP as they were of the opinion that Student should be educated within the general education setting with substantial support services and had accepted the IEP and placement on May 21, 2001. (AE-54; AE-55)
· Student’s teachers in the third and fourth grade reported that Student was adjusting to and doing well in her school program. Improvement was made in science and math although she was noted to have difficulty with maintaining her focus, and she required continued work in reading comprehension. (AE-52; AE-48) Her third grade MCAS Alternate Assessment for English Language Arts showed the following: regarding level of complexity she achieved a learning standard below grade level expectation with a modified curriculum framework; her performance in demonstration of skills was mostly accurate displaying some awareness of the subject matter; regarding independence she required occasional physical, verbal or visual assistance between 26 % and 50 % of the time; made few or no choices or decisions during instructional activities, was unable to self-correct, reflect or evaluate her performance, her portfolio provided no evidence of self-evaluation; and, she could generalize performance in at least two settings, or with two adults, using a variety of age-appropriate materials in each setting. (AE-53)
· On March 1, 2002, Parent was invited to another Team meeting held on March 6, 2002 at the Studley School in Attleboro. (AE-51) For the fifth grade, Parents decided to place Student at FRCS, a charter school in Foxboro, that offered a solid academic curriculum strong in Spanish and art. (Testimony of Mother)
· Student entered her 5 th grade at FRCS under an IEP drafted by Attleboro following a Team meeting of March 2002. (AE-50; AE-50) Said IEP covered the period from February 2002 through February 2003 and offered Student the following special education and related services in the general education classroom: specialized English/language arts 5 times 90 minutes per five day cycle; specialized mathematics instruction five times 90 minutes per cycle; speech and language one time 30 minutes per cycle; occupational therapy one times 45 minutes per cycle and on-going social/emotional services. (AE-49) Under direct services in other settings, this IEP offered one thirty-minute session of speech and language services per cycle. It was recommended that Student receive discrete skills in a small group setting where she was able to be more actively focused and participate and have an opportunity to generalize the skills learned in the larger group. (AE-49) In regards to the Federal child count setting, this IEP offered Student a 502.1 prototype program in which she would receive a combination of services in an inclusion/regular education classroom and resource room settings. This IEP reflected Parents’ preference for educating Student as much as possible within the regular education setting. (Testimony of Parent) The IEP was forwarded to Mother on March 19, 2002 and she accepted it in full on May 20, 2002. (AE-49)
· On August 19 and October 7, 2002, Student underwent a psychiatric evaluation, at Massachusetts General Hospital with Dr. Hector Parada and Dr. Felicia A. Smith. (AE-47) Student had been referred for this evaluation by her neurologist, Dr. Martha Herbert, for diagnostic clarification and medication evaluation. Dr. Parada and Dr. Smith recommended that Student undergo an evaluation with a psychotic disorders specialist, that the family engage in family therapy, the Student engage in ongoing psychiatric and neurological care, continue with individual psychotherapy and further evaluate the school situation. (AE-47) Her presentation was again found to be consistent with Asperger’s Disorder and a possible psychosis. The evaluators questioned the appropriateness of Student’s learning environment, but Mother was reluctant to make changes. Mother was aware of the difficulties Student had with change and transition. Mother expressed a preference for working together with FRCS to maximize Student’s educational opportunities. (AE-47) Mother also opted not to consider medicating Student at that time. (AE-47)
· Student’s Team at FRCS convened on October 22, 2002. (AE-68) The IEP promulgated following this meeting identified social/emotional, communication and occupational therapy as Student’s areas of need. The service delivery grid offered consultation by the special education teacher once per week for 15 minutes. It also offered the following direct services in other settings: two sessions per week 30 minutes each of English/language arts with the special education teacher; two sessions thirty minutes each per week of mathematics with the special education teacher; and, one 50 minute per week session of communications with the speech therapist. (AE-68) The IEP called for Student to be placed in an inclusion classroom two periods per day with a special education teacher, a regular education teacher and an aide. She received the rest of her instruction in the resource room. Multiple accommodations were implemented including:
Small group instruction or one on one assistance for all academic areas; directions presented in sequential steps with visual and verbal cues; directions repeated, rephrased, and simplified as well as repeated by [Student] to ensure understanding; drill/practice; material will be broken down into steps and presented sequentially; frequent monitoring to ensure understanding; preferential seating; chunk[ing] information together for better recall; multi-modal presentation of material; frequently summarize key points of discussions; review/re-teaching of previously learned material; organizational techniques and strategies; graphic organizers; [and] word bank.
It was also proposed that the curriculum, complexity and length of her tasks be modified, and that her instruction be presented with a multi-sensory approach. (AE-68) The professional notes at FRCS indicate that Student isolated herself from her peers, was not learning at the fifth grade level, placed herself in danger by running from personnel, presented excessive emotional reaction to interactions with others, had attentional difficulties even when on one-on-one situations, and was non-responsive to the classroom behavioral program. (AE-68) Between September 12 and November 8, 2002, Parent signed releases of information allowing John Da Ponte of FRCS to speak with Suzanne Whipp of Enable In First Steps for Family and Children, with Dr. Ingrid Mattson Charnley (Student’s psychologist), Dr. Martha Hebert of Massachusetts General Hospital, Dr. Larry Hirshberg, and personnel from the Studley School in Attleboro, as well as receive Student’s records. (FE-1) A Team determination placement form covering the period from October 22, 2002 to October 21, 2003 called for placement of Student in a Day School. (FE-2) This document is not signed by Parents who preferred Student to remain at FRCS. ( Id. ; Testimony of Mr. Da Ponte)
· Student’s Team at FRCS met again on January 21, 2003. (AE-43; FE-3) As a result, Student received numerous accommodations in addition to modifications to her curriculum, including to the length and complexity of tasks, the information would be presented with a multi-sensory approach, in a small group. Additional methodology approaches included specialized instruction as well as “over learning of discrete tasks.” (AE-43; FE-3) The IEP drafted at this meeting covered the period from January 21, 2003 through January 20, 2004 and offered the following services: under consultation, 15 minutes once per week consultation by the special education teacher; once per week 15 minutes speech therapy consultation by the speech therapist; and, once per week 15 minute consultation by the occupational therapist. (AE-43; FE-3) Special education and related services in the general education classroom included, academic support by an aide five times 8 hours per week; occupational therapy one times 50 minutes per week and communication with the speech therapist one times 50 minutes per week. (AE-44; AE-43; FE-3) Under direct services in other settings, Student would receive language arts 4 times 50 minutes per week with the special education teacher; mathematics 8 times 50 minutes per week with the special education teacher; and communication one times 50 minutes per week with the speech therapist. (AE-43; FE-3) The IEP calls for Student’s instruction to be offered in a small group setting. ( Id. ) FRCS also agreed to contract with an Asperger’s Syndrome consultant to provide a summary with recommendations for the classroom. (AE-43; FE-3) The placement sheet called for Student to receive some services outside the general education classroom. (AE-43; FE-3) On January 21, 2003, Mother accepted the IEP as developed “pending final approval and review”. ( Id. ) At the Hearing Mother testified that she was forced to sign this IEP. (Testimony of Mother)
· Also, on February 26, 2003, FRCS forwarded to Parents an IEP Amendment dated January 21, 2003. (AE-40; FE-4) The Amendment established a communication log between the family and the staff at FRCS, and adjusted Student’s schedule to include an extended school year program. (AE-40; FE-4) Student required the extended school year to avoid loss of previously learned skills. (AE-40; FE-4) It also eliminated homework assignments, as Student was unable to deal with that stress. This Amendment further clarified that Student would not participate in a longer school day, something the Team had never recommended. (AE-40; FE-4)
· The Amendment was forwarded to Parents on February 26, 2003. (AE-40) On May 6, 2003, Mother accepted the IEP amendment but wrote that the Team would have to reconvene to ascertain what program would be appropriate for Student during the summer. (AE-40)
· Following the Team meeting of January 2003, on January 24, 2003, FRCS also forwarded a Notice of Proposed School District Action to Parents identifying the purpose of the meeting as “an evaluation.” (AE-42; FE-4) An evaluation consent form was forwarded requesting that an assessment in all areas related to Student’s suspected disability, including a clinical psychological and a developmental assessment, be conducted as recommended by Children’s Hospital. Parent asked that the evaluations be bilingual. An evaluation to assess Student’s social/emotional development was also requested. (AE-42) Parent consented to the evaluations on February 24, 2003. (AE-42; FE-4) The evaluation would assist Student’s Team in determining how to best service Student at FRCS or assist the Team in making a recommendation for a more suitable placement. (AE-42; FE-4)
· In March 2003, Dr. Leonard Rappaport, M.D., MS, Director Developmental Medicine Center, Children’s Hospital, and Student’s pediatrician raised concerns regarding Student’s functional deterioration. (AE-39) These concerns were echoed by Dr. Stuart Goldman, Director of Psychiatric Education, Department of Psychiatry, Children’s Hospital, who reported via letter dated March 7, 2003, that Student’s behavior had turned bizarre and her academic performance had worsened. Behaviorally, Student presented with marked silliness, inappropriate giggling, probable hallucinations, loosening of her associations and inappropriate affect. (AE-39) Dr. Goldman further stated that Student was best described as having two diagnoses: Asperger’s Syndrome and Psychosis NOS, for which she was prescribed Risperdol 0.75 mgs. (AE-39; FE-6)
· On March 18, 2003, FRCS forwarded invitations to FRCS staff, Parents and Attleboro for a Team meeting to be held on March 24 th . (AE-37) The progress reports for the period leading to this date stated that Student was struggling in her educational environment even with supports, while the staff continued to look for ways in which to address her multiple social, emotional and academic issues. (AE-38) However, academically, she was passing her courses. Student’s fifth grade grades for the period up to March 26, 2003 were as follows:
Date 12/13/03 3/26/03
Mathematics 76 83
A.M.S. 90 85
Class Reader 55 49
Comprehension 54 73
Composition 93 91
Grammar 70 80
Vocabulary 86 81
Spelling 86 95
A.M.S. 76 73
Class Reader 100 100
Grammar 100 98
Unprepared Reading 100 100
Vocabulary 100 98
Spelling 100 100
O-Prepared Reading 100 100 (AE-41; AE-45)
Even when as a result of a psychiatric hospitalization in early May 2003, Student would not finish the school year at FRCS, John Da Ponte confirmed, via letter to Parents dated June 19, 2003, that Student would be graded and promoted based on her first two trimesters at FRCS. (FE-8; PE-17)
· In a letter dated March 19, 2003, Dr. Rappaport joined Dr. Goldman in asserting that due to Student’s dual diagnoses, she required a more specialized, highly structured, educational setting geared towards addressing the pragmatic language, social, emotional and academic needs of children in the Autism Spectrum. (AE-36; AE-39) Student required a setting that offered a comprehensive approach and had true expertise in dealing with children with developmental and emotional issues in order to meet her needs adequately. (AE-39)
· Ingrid Mattson-Charnley, Ph.D. Licensed Psychologist, worked with Student beginning in October 2002. (AE-35; FE-6) In a letter dated March 21, 2003 she states that Student had struggled significantly during the 2002-2003 school year as a result of which Student’s behavior, academic performance, self regulatory skills and affect had deteriorated. (AE-35; FE-6) According to Dr. Mattson-Charnley, Student was a bright child capable of high performance when at her best. In her opinion, Student required a highly specialized, structured academic day program whose staff had expertise in working with students who presented with academic, developmental and emotional disabilities. This program should run year round and should offer Student opportunities and interventions that addressed Student’s emotional, pragmatic language and social issues (AE-35; FE-6).
· Student’s Team met at FRCS on March 24, 2003. (AE-34; FE-5) Present at the Team meeting were Parents, FRCS staff including Mr. Da Ponte, Ms Currie (special education teacher), Ms. Lovitz (adjustment counselor), Ms. Southworth (speech pathologist), Ms. McGuire (lower school AQC), Ms. Sebago (teacher), as well as Robert Augustine (Student’s/Parents’ Advocate) and Theresa Axile (Attleboro Special Education Director, then Student Services Director). (FE-5) Parents were concerned over Student’s social issues, her difficulties adjusting to FRCS, Student’s lack of basic knowledge, inability to perform at grade level, and they also wanted Student to be assessed accurately in English and in Spanish. (AE-34; FE-5) The IEP drafted at the Team meeting, which covered the period from March 24, 2003 through March 23, 2004, recognized Student’s disabilities in the social/emotional, communication and occupational therapy areas, and listed numerous accommodations to be implemented in all settings. (AE-34; FE-5) The service delivery grid lists the following consultation services: 15 minutes once per week consultation by the special education teacher; once per week 15 minutes speech therapy consultation by the speech therapist; and, once per week 15 minute consultation by the occupational therapist. (AE-34; FE-5) Under direct services in other areas the following services were offered: academic support provided by an aide “5 x 8” per week; occupational therapy one 50 minute session per week with the occupational therapist; language arts 5 times 50 minutes per week with the special education teacher; mathematics 8 times 50 minutes per week with the special education teacher; and communication two times 50 minutes per week with the speech therapist. (AE-34; FE-5) The IEP calls for participation in an extended year program and further states that Student “would benefit from instruction in a small group setting, social skills/pragmatic group, slower paced academic curriculum, a low staff to student ratio (recommended 1:4), a predictable, routinized setting, with a strong behavioral component, frequent opportunities for counseling, with coordinator of school and community services.” (AE-34; FE-5) Mother testified that this IEP called for an out-of-district day school placement. (Testimony of Mother) Robert Augustine, Advocate for Student/Parents, testified that a therapeutic program was recommended. (Testimony of Robert Augustine) Mother understood that the proposed program offered small group setting with a 1:4 teacher/student ratio, whose staff had expertise dealing with students who presented with Asperger’s Disorder and emotional issues. (Testimony of Mother) No determination of a specific placement was made at the Team meeting nor was any specific program identified for Student, however, Robert Augustine mentioned Broccoli Hall as a possibility. (Testimony of Robert Augustine, Mother, Mr. Da Ponte) There was no placement sheet attached to either FE-5 or AE-34, the IEP drafted as a result of the March 2003 Team meeting.
· Ms. Axile and Parents communicated in the beginning of April 2003. (Testimony of Parent) Thereafter, Mother and Father visited three programs in Attleboro all of which they believed to be inappropriate for Student. (Testimony of Mother)
· Student’s significant difficulties in meeting academic and social demands at FRCS resulted in a hospitalization in May 2003. (AE-9; Testimony of Parent) Parents were concerned about Student’s safety as she had begun to exhibit symptoms consistent with a potential psychosis around Easter week 2003. She was admitted to the Richmond Inpatient Psychiatric Service at Children’s Hospital on May 5, 2003 due to impulsive and “increasingly disorganized behavior including eneuresis and encopresis.” (AE-27; FE-12) She was discharged on June 9, 2003.
· Student’s team at Children’s Hospital, comprised of ten (10) providers and doctors, Mother and Student’s advocate met on or about May 30, 2003. (AE-33; FE-7) It was recommended that Student: receive a mood stabilizer; participate in a day program at Westwood Lodge to address her emotional needs; undergo a psychopharmacologic therapy evaluation with Dr. Stuart Goldman; participate in individual therapy weekly with Dr. Ingrid Mattson Charnley; attend a therapeutic school program in September 2003; receive CAP involvement inclusive of a family stabilization team, advocacy with school, transportation, respite care at home and increased structure and support in the home. (AE-33; FE-7) Student’s case would also be managed intensely at MBHP. (AE-33; FE-7)
· On June 5, 2003, Dr. Steven German of Attleboro wrote to Parent apologizing for Attleboro’s inability to attend the May 30 th meeting at Children’s Hospital due to the short notice and recommending that Student’s team meet to consider possible out-of- district placements consistent with the hospital team’s recommendation. (AE-32) Dr. German affirmed Attleboro’s intent to move forward in finding a suitable placement for Student. (AE-32)
· On June 9, 2003, Barbara Silva, Student’s educational advocate, wrote to FRCS to notify it that Student had been released from Children’s Hospital and would attend a day program at Westwood Lodge for two weeks after which she would require a specialized summer program with a therapeutic component. (AE-31; FE-13; PE-16) Student began attending the Westwood Lodge Partial Program upon her discharge from Children’s Hospital. She only remained at Westwood Lodge for three days as she rapidly decompensated in that program, her behavior becoming disorganized and increasingly unmanageable, thereby having to be readmitted to the Bader 5 Inpatient Psychiatry unit at Children’s Hospital on June 12 th for another month through July 10 th . (AE-9; FE-12) Upon admission, she was found to be alert, restless and fidgety during the interview, but poorly related disorganized and perseverative in her presentation. She appeared fearful, anxious and had difficulty cooperating with the interviewer. (FE-12) According to her mother, she was fine in the home but had responded poorly to the program at Westwood Lodge. (FE-12) Mother opined that Student required a program for Asperger’s Disorder more than she required a program that addressed the psycho/emotional issues. (Testimony of Mother)
· While at Children’s Hospital Student was seen for individual and family therapy and she participated in milieu activities. (AE-9; FE-12) She was also referred by her therapist Peter Hunt for psychological testing to assess disorganized behavior and psychotic symptoms. (AE-27) Student responded well to the hospitalization structure and milieu and showed notable improvement in her functioning, exhibiting less mood disturbance, anxiety and engaging in fewer erratic behaviors. She however, continued to present symptoms consistent with Asperger’s Disorder. (FE-12) In July 2003 she was discharged. (AE-9)
· Between June and July 2003, while Student was hospitalized, several communications were made between FRCS, Student’s advocate and Attleboro to clarify Student’s academic/educational status, and FRCS and Attleboro’s educational responsibilities. (Testimony of Mother, Mr. Da Ponte, Ms. Axile ) On June 11, 2003, John Da Ponte, FRCS’s Coordinator of Special Education, wrote to Parent advising her to address any questions regarding summer programming for Student to Attleboro and restating its Team’s recommendations of March 2003 for Student. (AE-8)
· A teacher’s report from FRCS dated June 17, 2003 states that Student’s then current performance in Math, English comprehension, social studies and science fell far below grade expectation. (AE-28) In all other areas of English she was somewhat below grade level and in Spanish, her mother’s native tongue, she performed far above grade level. (AE-28) At FRCS Student received pull-out small-group services for math, composition and English comprehension. ( Id. ) According to the fifth grade regular education and resource room teachers, Student was learning much less than her peers. The Terra Nova Reading, Language and Mathematics test placed her below average in all areas. (AE-46; AE-28) The regular education teacher expressed concern in that Student was frightened of numerous things and people, was unable to maintain an age appropriate typical conversation with others and became stressed, was unable to comprehend things same age peers did, was overly anxious, withdrawn, too shy, did not get involved with others, tried to talk to Harry Potter posters and had a tendency to walk around without much awareness, which raised safety concerns. (AE-28) The special education teacher was concerned that Student lacked basic life skills. Student’s behavior was described as unpredictable, she had difficulty remembering daily routines and schedules, she saw spiders on walls that were not there, stared blankly, displayed psychotic behaviors, consistently tapped pencil and feet, hummed or made other noises in class, seemed nervous and tense, was often tardy, could not carry out assigned tasks, kept asking the same questions, had difficulty maintaining attention, seemed confused or in a fog and was worried about her bones breaking, her eyes and dark storms of any kind. When Student became upset she would begin to speak Spanish. (AE-28) The progress reports reflect that she required one-to-one support to achieve her goals and still did not achieve them in Math, communication skills, ELA and sensory integration. (AE-30) Her span of attention for tasks like Math was approximately 30 seconds. (AE-30)
· Also on June 17 th , Ms. Silva wrote to Mr. Da Ponte in an attempt to clarify five issues that remained unresolved. (FE-13; PE-16) Those were: payment for an independent evaluation of Student with Dr. Castro which had been approved by FRCS in February; a request to forward Student’s progress reports; a request that Student receive tutoring during her hospitalization; identification of a summer program for Student along with transportation, when Student were discharged from the hospital. (FE-13; PE-16) FRCS had stated in a letter of June 11 th that the responsibility for summer programming rested with Attleboro. (FE-13; PE-16)
· Dr. Eugene D’Angelo, Ph.D. and Korey K. Hood, M.S. Pre-doctoral Intern, conducted a psychological evaluation at Children’s Hospital on June 18, 2003. (AE-27; FE-9) The Thematic Apperception Test (TAT) and the Rorschach Inkblot Test were administered and behavioral observations were made. Student exhibited poor eye contact, her mood appeared to be slightly depressed and her affect was flat and incongruent at times. Initially she was resistant to testing and distractible but was responsive to redirection. She made odd comments, exhibited bizarre behaviors and made loose associations leading the testers to conclude that the results of the evaluation may not be reliable in reflecting Student’s functioning level. (AE-27; FE-9) The tests showed Student to present very rigid thinking, a high degree of affective disturbance and poor coping mechanisms which could cause her to behave in an unpredictable manner especially when emotionally overwhelmed. The tests also showed her to be unable to identify with and relate to other individuals and not to cope well with emotional stress. Her self-esteem was very low. The evaluation did not show a formal thought disorder but rather the evaluators found that Student’s presentation was more consistent with cognitive rigidity. (AE-27; FE-9) Dr. D’Angelo and Ms. Hood validated the concerns that Student presented with a form of thought disorder and recommended formal investigation of Student’s cognitive ability and continued monitoring of the symptoms of disorganized behavior. (AE-27; FE-9)
· FRCS forwarded to Parent a release of information form on June 20, 2003 so that it could forward Student’s educational and health records to Attleboro. (FE-8; PE-17) That same date, following a telephone conversation with Parent, FRCS forwarded the materials to Attleboro. (FE-8; PE-17) Parent then began looking for a summer program for Student on or about June 23 rd . (FE-13; PE-16) The Gifford School was identified as a possibility. In a letter of June 23 rd from Ms. Silva, she inquired of Mr. German when the Team would be convened to discuss the 2003-2004 placement for Student. (FE-13; PE-16)
· On June 24, 2003 Mr. Da Ponte wrote to Ms. Silva, Parents’ then Advocate, confirming FRCS’s agreement to pay for an independent evaluation of Student at Children’s Hospital which Parents had not yet arranged, but which FRCS would be willing to fund at the prevailing standard rate if determined beneficial. (FE-8; PE-17; FE-11) Mr. Da Ponte also stated that Student’s situation had changed since January 2003 and that the Team convened in March recommended a different educational placement for Student, which Attleboro would be responsible to identify. After March 2003, Student’s situation continued to deteriorate resulting in a psychiatric hospitalization; upon her release it was recommended that she attend a partial day program (at Westwood Lodge) and a therapeutic school placement in September 2003. Since Student would not be returning to FRCS, it would not engage Dr. Castro as a consultant. FRCS would however honor its commitment to provide Student tutoring if it were deemed appropriate by the Children’s Hospital providers. (FE-8; PE-17) Dr. Da Ponte concluded by stating that placement and transportation plans following Student’s hospitalization were Attleboro’s responsibility. (FE-8; PE-17)
· On June 25, 2003, Parents forwarded a number of records to Dr. German in Attleboro including IEPs, report cards, developmental, psychiatric and immunization letters concerning Student and other documents, to facilitate Student’s placement. (AE-25) A cover letter from FRCS dated June 20 th attached to the documents lists several other evaluations and assessments. (AE-26) Attleboro forwarded Parents’ release of information and requested all Student’s records on June 25, 2003. (AE-24)
· On June 30, 2003, a CAP meeting was held at Children’s Hospital to ascertain which agency would be the lead agency to deliver services to Student. (AE-23; FE-10) Student’s hospitalization was reviewed and it was decided that the Department of Social Services (DSS) would have primary responsibility. Dr. Hunt stated that Student’s primary diagnosis at the time was PDD NOS and a mood disorder but asserted that Student was not then psychotic. According to him she was still very fragile clinically, presented as disorganized, with poor self-esteem and diminished ability to engage with others. (AE-23; FE-10) At the time of the meeting Student was found to be stable but it was noted that when faced with a change she fell apart and when upset would speak in Spanish. She was not ready to be discharged yet. According to Dr. Hunt, consistency and structure were essential to Student’s success when she returned home. In the home the recommendation was for a low emotional climate and Mother was described as being very emotional at the time. (AE-23; FE-10) Children’s Hospital recommended that Student undergo a neuropsychological evaluation with Dr. Castro, which FRCS agreed to fund. (AE-23; FE-10; Testimony of Mother, Mr. Da Ponte) Dr. Hunt discussed the need for 24-hour structure at home and in school. Children’s Hospital further made a recommendation for involvement of a Family Stabilization Team that could help Parents maintain structure and provide respite care. It was further recommended that Student should attend a program that was familiar with autism spectrum disorders. Ms. Silva who prepared a summary of the CAP meeting mentions in it that Attleboro recommended that Student attend the BICO program and that BICO would provide a home consultant to work with the family. A representative from BICO, Joyce Foster, was present at the meeting. (AE-23; FE-10) The attendees further discussed, and Dr. German from Attleboro agreed, that the length of the day should be a regular school day and that a one-to-one aide would be provided if need. After-school care would be provided by ABACUS. Lastly, the group discussed the possibility of tutoring and Student obtaining credit for the previous school year. (AE-23; FE-10)
· Joyce Foster, Director of Clinical Services for Tri-County Collaborative, wrote to Parents on July 2, 2004. (AE-22) She had reviewed Student’s records and attended the meeting at Children’s of June 30, 2003. Ms. Foster recommended that Student attend the ABACUS program for the summer since the staff was familiar with Student and wanted her to return to the program; Student herself was familiar with the program, the routines, the facility, the staff and wanted to attend ABACUS; it provided her with a full day program; and given that Student was being released from the hospital, it would be a comfortable transition for her. (SE-22) According to Ms. Foster, attending BICO during the summer was not advisable because it would require Student to make two transitions to unknown situations since the location, facility, and daily schedule of the BICO summer program were not the same as those of the school year program. (AE-22) From ABACUS Student could begin a slow transition during the summer to the BICO program, or any other program agreed to by Parents. ( Id. )
· On July 2, 2003, Parent wrote a letter to Attleboro requesting a Team meeting to discuss placement for Student who would soon be discharged from Children’s Hospital. (FE-13; PE-16) This letter is not signed and it not clear whether it was ever mailed to Attleboro. A second letter from Father and Student’s Advocate making a similar request was sent on July 3 rd . (AE-21; FE-13; PE-16) Additionally, they restated Joyce Foster’s recommendation for Student too attend the ABACUS summer program rather than BICO’s summer program. ( Id. ) Parents endorsed said recommendation and as a result Student attended the 2003 ABACUS summer program. (Testimony of Mother)
· Student was eager to return home and begin attending the ABACUS summer program on July 11, 2003, the day following her discharge. (FE-12)
· The ABACUS summer program ran up to 12 hours per day, five days per week and offered the level of support and structure required by Student. Participation in this program was supported by Dr. Hunt of Children’s Hospital and Mother. (FE-12)
· ABACUS is a full day summer camp, which offers social recreational activities to students. (PE-13) It is not a therapeutic or academic program. The teacher student ratio is one to 10 and up to thirteen students. Student attended this program between 9:30/10:00 a.m. to 6:00 p.m. five days per week during the 2003 summer. (PE-13) According to Kimberly Laramee, Program Assistant Director, Student engaged in solitary activities, such as playing on the computer or drawing, 80 % of the time and was on task up to 50% of the time depending on the day. (PE-13) She required frequent redirection and monitoring. (PE-13)
· On July 7, 2003, Daniel Needham, Attleboro’s Out-of-District Coordinator, wrote to Mother, acknowledging her request for convening of the Team to consider placement of Student, and indicating that it would have to wait until the opening of the 2003-2004 school year. (AE-20). The letter mentions that Mr. Needham would communicate with BICO relative to program placement options and states that Dr. German had indicated willingness to send out referral packets to other possible placements. Mr. Needham enclosed a release of information form for this purpose. (AE-20)
· At the time of Student’s discharge from Children’s Hospital on July 10 th , she was found to be stable, oriented to person, place and time, showing no evidence of a thought disorder and presenting no suicidal or homicidal ideation. She was diagnosed with:
Axis I: Asperger’s Disorder, Mood Disorder, NOS, R/O Psychosis NOS.
Axis II: Deferred
Axis III: Abnormal EEC
Axis IV: Family, social and environmental stressors
Axis V: 45
· She was discharged on Depakote 500 mg po in the morning, Depakote 750 mg at bedtime and Zyprexa 15 mg po at bedtime. (FE-12)
· Several communications took place between Ms. Silva and Attleboro, between July 23 and September 8, 2003 regarding Student’s placement for the summer and for the 2003-2004 school year. (AE-17; FE-13; AE-16; AE-15; AE-14; AE-13; AE-12; AE-11; AE-10) Student attended the ABACUS program between July 11 and August 15, 2003, a program with which she was familiar, where she was liked and where she felt comfortable as she had attended the previous summer session. (Testimony of Parent; FE-12) Attleboro then notified Ms. Silva via letter dated July 29, 2003, that Attleboro recommended that Student attend the BICO Collaborative program for children with Asperger’s disorder, located at the Ahearn Middle School, and that it did not support placement of Student in an out-of-district private school placement as had been requested by Parents. At the time, Parents were looking at Chamberlain, Willow Hill, Broccoli Hall, Gifford School and others, as possible placements for Student at public expense. (AE-16; Testimony of Parent) During a conference call with the Hearing Officer on July 22, 2003, Parents were instructed to identify the program in which they wished that Student be placed. (PE-18) At the time the Hearing commenced in April 2004, Parents had not yet identified a program for Student and were unable to do so until just prior to the third day of Hearing. In a correspondence dated September 2 nd , Ms. Silva states that Parent agrees to implementation of the March 2003 IEP along with an extended evaluation and to placement of Student at BICO Collaborative. (AE-13; FE-13) Specifically, Parents requested that Student be assigned the one-to-one aide, that she be in a class with a staff to student ratio of 1:4, and that transportation be provided with adult supervision. (AE-12; FE-13) If placement at BICO did not meet Student’s needs, then Parents would request that Student be placed out-of-district. ( Id. ) Attleboro agreed to the extended evaluation at BICO, and suggested that provision of an aide was an issue that should be left open for BICO to address as part of the extended evaluation. (AE-11) Lastly, the communications are clear that Student would be promoted to the 6 th grade, as she had been able to complete the 5 th grade with the tutoring received over the summer. (AE-14; AE-18)
· Student underwent a neuropsychological evaluation with Rafael Castro, Ph.D. and Alessandra Priorelli, Psy. D., at Children’s Hospital, on August 11, August 15 and September 2, 2003. (AE-9) The evaluation was funded by FRCS. (FE-11) At the time of this evaluation Student was one month short of her twelfth birthday. (AE-9) Tests administered during this evaluation included the Wechsler Intelligence Scale for Children- 3 rd edition; Wechsler Individual Achievement Test- 2 nd edition; Wide Range Assessment of Memory and Learning (selected sub-tests); Automatized Series; Boston Naming Test; Rey-Osterrieth Complex Figure; Test of Visual Motor Integration; Pegboard-WRAVMA; Trail Making; Verbal Fluency Test; and the Wisconsin Card Sorting Test. (AE-9) Parent completed the Achenbach Child Behavior Checklist and a developmental questionnaire while Ms. Allison Sebago, Student’s 5 th grade teacher and Heidi Currie the special education teacher, completed the Achenbach Teacher Report Form. (AE-9) Dr. Castro related Student’s psychiatric history including the two hospitalizations in 2003. Mother reported that prior to the hospitalizations, during the Spring of 2003, Student started to exhibit a decline in academic performance and displayed socially inappropriate behaviors. Student had been prescribed Risperdol but her behavior had become increasingly disorganized and impulsive (e.g., inappropriate affect, silliness, loose associations). (AE-9)
· Ms. Sebago and Ms. Currie of FRCS had noted in their reports that Student was learning notably less than her peers and demonstrated a lower grade level of academic proficiency. (AE-9) Student seemed challenged across all academic areas and visibly struggled to sustain attention and follow their instructions. Socially, her interpersonal skills were delayed, she had little understanding of social protocol and exhibited difficulty sustaining reciprocal conversational exchanges. She was withdrawn, anxious, oversensitive, seemed to become lost in her thoughts, engaged in perseverative questioning, and displayed other atypical behaviors such as fixations, self stimulatory tendencies (e.g. hand flapping), de-contextual laughter, off-topic ideas. (AE-9)
· In the Wechsler Intelligence Scale for Children- 3 rd edition (WISC-III) Student obtained a Verbal IQ score of 81, a Performance IQ score of 89 and a Full Scale IQ score of 83, placing her in the Low Average range of intellectual functioning for her age. (AE-9) In the verbal domain her abilities fell between the mid-eight to the late nine-year level with age appropriate scores in fund of general knowledge, short-term auditory memory and sequencing areas. Her concept formation however, was found to be less developed. She evidenced most difficulty in areas that emphasized verbal formulation skills. Specifically, the vocabulary and comprehension sub-test scores were significantly reduced. Her arithmetic functioning level fell in the mid eight year level. (AE-9) In the nonverbal domain, Student’s scores were clustered in the average range but some skills fell significantly below the normative levels. Her visual spatial skills and visual constructional, analytical abilities, visual discrimination skills and attention to detail were solidly within the average range. In the Test of Visual Motor Integration she scored in the average range approximating age expectations. She struggled tremendously with the Picture Arrangement test (which involves tasks with a heavily loaded social component to assess perceptually based sequencing ability), and faced marked challenges with processing skills and fine motor output. (AE-9) Student’s fine motor skills were reflective of a five-year old. ( Id. )
· In the Wechsler Individual Achievement Test- 2 nd edition (WIAT-II) Student showed solid decoding abilities in reading, but significantly less well developed comprehension ability, struggling mostly with questions that called for interpretative answers (particularly with organizing and integrating information presented in lengthier passages), consistent with performance expected of a third grader. (AE-9) Mathematical skills were significantly below expected age/grade levels with performance consistent with an early nine year level. In written language, Student demonstrated the proficiency expected of a mid sixth grader, but her writing showed a simplistic use of vocabulary and writing mechanics. (AE-9)
· Student’s functional and adaptive use of language was found to be below age level. (AE-9) She could communicate her verbal needs but her ability to converse with others and “verbally navigate her environment remain[ed] diminished at th[e] time.” Her verbal intellectual abilities fell in the low average range, with notable variability. Another area of particular weakness was verbal memory skills, especially in her ability to learn and retain verbal information, even when the information were presented multiple times. (AE-9) The findings of the Rey-Osterrieth Complex Figure Test highlighted Student’s difficulties in organizing and strategizing complex tasks in the absence of a supportive framework and structure. (AE-9)
· The Children’s Hospital evaluation also revealed Student’s marked challenges with her executive functioning. (AE-9) She evidenced difficulty with self-regulation and showed reduced flexibility. Both her teachers and Mother reported Student’s difficulty with inhibiting impulses, behavior, general adaptive functioning, modulating emotions, and safety. (AE-9) They also reported Student’s diminished ability to self manage daily living tasks and problem solve in a variety of contexts, making it difficult for her to establish social relationships and hindering her adjustment across different environments. She required constant supervision and prompting to complete tasks such as feeding, dressing and other daily living tasks. The evaluators concluded that these reports corroborated their clinical observations and the test findings. (AE-9)
· During the evaluation Student presented as a quiet child displaying poor eye contact and variable levels of social relatedness and awareness. (AE-9) Her affect was muted, she was frequently disengaged, rarely initiated conversation, maintained a blank distant stare and did not respond to the examiners’ social overtures. (AE-9) Parent reported that Student did not have any stable reciprocal friendships with any other child her age. According to the teachers and Parents, Student was socially isolated, withdrawn and ostracized in school and is aware that she does not “fit in”. (AE-9) Behaviorally, Student was observed by all to engage in immature, inappropriate behaviors such as “lifting her skirt, rubbing her crotch on several occasions [during the evaluation], smiling oddly out of context… she exhibited unusual finger movements in the palm of her hand and by the corner of her eye… she engaged in decontextual laughter, talked to herself, generated tangential commentary, fixated on particular topics and engaged in perseverative questioning.” (AE-9) Emotionally Student presented as a vulnerable, fragile child, with low self-esteem and ongoing depression. Additional concerning issues included oversensitivity, anxiety and excessive fearfulness to thunder storms darkness and dogs. (Id.; Testimony of Mother) Student’s emotional and psychological issues were noted as areas of most concern although she did not present an actively psychotic profile at the time of the evaluation. Her overall presentation continued to be consistent with a diagnosis of Asperger’s Disorder combined with complex neurodevelopmental issues. Her level of academic achievement was found to fall below that expected of someone with her intellectual potential. (AE-9) In the examiners’ opinion Student’s decline in academic performance over the previous year stemmed from several sources such as “Student’s “learning difficulties, her skipping the 2 nd grade when she first arrived from Columbia, her considerable absence from school… due to clinical issues, and her bilingualism.” While she presented areas of strength in her intellectual and academic profile, she had significant difficulty translating and applying her skills to every day practical life situations, placing her adaptive functioning level well below age expectation. (AE-9)
· The Children Hospital evaluators recommended that Student receive therapeutic services and be placed in an academic setting that can support and address her emotional and neuropsychological issues. (AE-9) Her education should focus on promoting her academic proficiency and should target adaptive functioning in a very supportive environment. Psychological intervention would be required to address Student’s emotional concerns and allow her to feel more comfortable and secure in participating in the learning process and in social environments. (AE-9) The staff should be experienced in working with children who present emotional issues similar to those of Student. Intensive psychotherapeutic efforts should be integrated into the overall program. Student’s then current accepted IEP for an inclusion program as drafted by FRCS, was found to be inappropriate and a more restrictive setting was recommended. It was further recommended that Student’s pharmacological interventions be continued, as well as close monitoring by Dr. Goldman Student’s psychiatrist. (AE-9) The psychiatrist and the school-based team should maintain ongoing communication to monitor increases in the frequency or intensity of her symptoms thereby averting further deterioration. She required a small highly structured academic setting where she could receive individual and specialized instruction by a certified special education teacher. The curriculum should emphasize building functional skills to help foster adaptive abilities, promote greater independence and improve her socio-emotional adjustment across all settings. Participation in a small curriculum based social skills group directed by a mental health professional, so she can develop appropriate social pragmatics and that this component be integrated into the overall programming. (AE-9) Home-based consultation by a behavioral specialist with experience in working with children in the Pervasive Developmental Disorder Spectrum (PDD) should also be offered. She would also require speech and language therapy and occupational therapy to address language-based and motor-based difficulties. (AE-9) Lastly, it was recommended that close monitoring be maintained and that a neuropsychological evaluation be repeated in a year to reassess her developmental functioning and modify her program as her needs change over time. (AE-9)
· In a letter from Barbara Silva to Attorney Tate, dated September 8, 2003, she states that she will recommend that Parents accept Student’s placement at BICO Collaborative program under an extended evaluation, and that a one-to-one aide be assigned to Student. (AE-10)
· From September 9, 2003 through November 4, 2003, Student participated in an eight week extended evaluation at the BICO Collaborative program located at the Ahearn School in Attleboro, to ascertain if her emotional, social, educational issues could be met there. (AE-8) Attleboro provided transportation and a one-to-one aide was assigned to Student for the entire time period. (AE-8) Mother accepted the extended evaluation on September 8, 2003. ( Id. )
· The BICO Collaborative Therapeutic Educational Program (hereinafter, “TEP”) at the Ahern Middle School,
… serves students, grades 5-8, who present a wide range of educational needs primarily in the areas of learning and socialization. Students exhibit learning difficulties and inappropriate social interactions that are primarily due to neurological problems and/or atypical syndromes. Students served within this program have a history of learning problems and may exhibit under-socialized behaviors and/or inadequate communication skills, which set them apart form their peers. Usually, maladaptive behaviors have interfered with their ability to be successful in regular education settings. The program provides structure, individualized academics and a nurturing environment to manage behaviors, motivate learning and develop self-confidence. Academic curriculum is closely aligned with the Massachusetts Curriculum Frameworks and is modified to meet the learning styles and needs of each student. (PE-21)
Students in this program receive speech and language therapy, occupational therapy, counseling, physical therapy and are encouraged to participate in outside counseling. (PE-21) Some students served in this program have returned from residential placements or hospitalizations. An extended school year component, approximately five and a half weeks long, is available. (PE-21; Testimony of Ms. Moceades) Students can be mainstreamed for music, arts or other activities when they are ready to do so. (Testimony of Ms. Foster) The TEP program is considered a substantially separate classroom and not a day program, as it is located in a public school building. (Testimony of Ms. Foster)
· During the 2003-2004 school year the TEP program was comprised of 20 students, two teachers, five paraprofessionals, and a school adjustment counselor present two and a half days per week. An occupational therapist and a physical therapist are also available for students whose IEPs call for said services. (Testimony of Ms. Foster) Barbara Woodland, an autism specialist from the May Institute, is also available to consult in school and to parents in their home. ( Id .)
· Student arrived in BICO under an extended evaluation, following participation in the ABACUS summer program and two hospitalizations between May and July 2003. (Testimony of Ms. Foster, Mother) Upon arrival service providers noted that she was not on task a great deal of the time. Student appeared internally distracted, she talked to herself, had difficulty staying in her seat, she looked around the room, had a tendency to want to leave the room often, spit on the floor, and initiation of conversation with peers was inappropriate (eg. “hello cute boys”). (Testimony of Ms. Foster, Ms. Moceades) She did not interact much with the adults and was obsessed with talking about Harry Potter, had poor eye contact, issues around menstruation, inappropriately touched herself, presented very rigid thinking, and spoke and laughed at inappropriate times. (Testimony of Ms. Foster, Ms. Moceades) Student also had a very difficult time with transitions. (Testimony of Ms. Foster, Mother) She was placed on a reward system whereby she earned stickers every ten minutes for complying with the targeted behaviors. (Testimony of Ms. Foster, Ms. Moceades) A list of the incentives was kept and every time she earned five stickers she had a chance to use the incentives. (Testimony of Ms. Moceades) Very often she chose to spend some time on the therapy ball. (Testimony of Ms. Moceades) The ball was kept in the back of the room in a quiet area with sensory diet equipment. ( Id. ) The goal was to teach students to self-regulate before they had a meltdown. Ms. Ellen Ruane, BICO’s school adjustment counselor, and Emily Thomas, speech and language therapist, provided Student with social stories, pragmatic language skills and counseling. (Testimony of Ms. Moceades)
· Student’s report card for the first quarter (September through November) of the 2003-2004 school year shows that her effort and behavior in all subjects was average except for Math where she also required a great deal of staff support to focus on her work. (AE-6; AE-7) She was found to need improvement in expressing and organizing ideas in writing, in reading comprehension and with inferential skills, understanding science concepts and in social studies with interpretation of maps, charts, globes, graphs, applying vocabulary skills and completing homework. (AE-6) In Math she was working on fourth grade level math focusing on everyday math tasks such as measurements and rounding money. (AE-7) Completing outside assignments was also a weakness and she needed improvement in participating effectively in discussions and or programs. (SE-6) Since the speech and language pathologist had started to work with Student in October 2003 it was difficult to assess her progress in that area. This therapy would focus on improving pragmatic language skills throughout the school day and on Student’s ability to transition between activities receiving verbal and visual cueing from the staff. (AE-7) BICO implemented the Willbarger Deep Pressure Protocol (brushing) in addition to other sensory activities to assist with sensory defensiveness. (AE-7) Additionally, she would participate in a group class to “identify her neurological arousal level, and what she [could] do to help herself stay in the ‘just right’ level of arousal to maintain focus and alertness to her schoolwork.” (AE-7)
· On October 2, 2003, Student’s teacher at BICO stated that at times student appeared spacey, staring and not responding when spoken to. While standing in front of her staff would have to call Student’s name several times (3 to 5 times) before eliciting a response from her. (PE-13) The teacher noted that Student had difficulty with appropriate social boundaries such as “drinking the teacher’s water, petting other kids, telling boys they are cute, giving boys love letters to try to get them to like her, commenting she wants to take her bra off (occurred one time)”. (PE-13) Student also obsessed about Harry Potter and stated her first name with Potter as her last name, she also washed her hands often and for several minutes at a time. (PE-16) Student required one-to-one assistance throughout the day, especially when leaving the classroom as it was noted that she walked away from the group, wandered in the hallways, and knocked on other classroom doors. She presented difficulty with transitions, interacting with other students, and did not join others during group activities, preferring to engage in a task she enjoys by herself. (PE-13) According to Barbara Silva, Student’s teacher stated in December 2003 that Student was not working at grade level and had great difficulties with social interactions. It was further noted that the teacher/ student ratio was 4 to 10 and that there were no other girls in the program up to December 2003. Student was not being mainstreamed at that time. (PE-13) Similar remarks regarding Student’s multiple difficulties would be made by Ms. Moseades in May 2004. (PE-26)
· On November 13, 2003, Attleboro forwarded to Parents an invitation to attend a Team meeting on November 20, 2003 to draft Student’s IEP for the period covering November 20, 2003 through November 20, 2004, following the extended evaluation period. (AE-4; AE-5)
· The IEP resulting from that Team meeting was forwarded to Parents by Attleboro on December 15, 2003. (AE-4) It called for Student to continue to receive services at the Bi County Collaborative TEP Program between November 20, 2003 and November 20, 2004 for grade six. The IEP states that Student was working on modified grade level material. Student was described as becoming easily distracted with outside and inside stimulus and required the assistance of staff for redirection. She also required prompts and reminders of appropriate social skills when she was engaged in group-work. She had a tendency to leave the classroom and wander in the hallways when a staff was not monitoring her. (AE-4) This IEP further states that Student required a “small therapeutic self-contained program and requires one to one assistance to support her learning and scripting of appropriate social skills… needed help staying focused through all academics…needed the monitoring of staff to help her stay safe and not wander outside the classroom…[Attleboro] will explore opportunities for integration and continue to explore art and music.” (AE-4) The IEP called for Student to receive the following direct services in other settings: adaptive physical education two times 30 minutes per week; cognitive growth 29.75 hours per week by the BICO staff; fine motor/occupational therapy one time per week for 30 minutes; communication once per week for 30 minutes, by the speech therapist; and counseling once per week for 45 minutes with carryover to be provided by the social worker. (AE-4) The IEP provides that Student’s services will be provided “outside the general education classroom and in a separate school that only serves students with disabilities”, that is, a “Day School”. (AE-4) Steve German forwarded the IEP to Parents on January 26, 2004, but no response was received until March 2004. ( Id. )
· Student’s report card for the first two semesters at BICO reflect that she was passing all of her courses (Language Arts A and B+ respectively, Reading B and A, Mathematics A and B, Science A and A- Social Studies C and B+, Visual Arts A and A, and Physical Education B and A-) and her overall attitude as a learner was average, with some areas (including participation in group discussions, engaging in learning activities and working cooperatively in learning activities) needing improvement. (AE-6; PE-20)
· On January 14, 2004, Attleboro forwarded to Parents an invitation to attend a Team meeting scheduled for January 22, 2004. (AE-3)
· The BICO program progress report for the December to February 2004 period showed that Student was working toward her goals. (AE-2) She was found to require a great deal of support in academic and non-academic subjects but she was starting to ask for support when needed and seemed comfortable working independently. (AE-2) Student was beginning to increase her awareness of maintaining appropriate physical and personal boundaries. The speech and language pathologist was working towards improving Student’s ability to transition between activities using both auditory and visual cueing from staff and continue to improve Student’s use of pragmatic language. (AE-2) The progress report stated that Student was showing improvement regarding her conversational skills with familiar staff and peers in a structured environment. She was benefiting from the use of visual scripts and moderate verbal prompting when communicating. (AE-2) Since placement at BICO, Student showed steady improvement. She became increasingly engaged with the staff and students, she no longer talked to herself, stayed in her seat, and stayed on task for longer periods of time, she stopped talking about Harry Potter continuously, her eye contact improved, and she could go through a routine without redirection. (Testimony of Ms. Foster) Some of her improvement was attributable to stabilization of the medication. ( Id. ) The staff was of the opinion that it was likely that Student would meet all of the goals in her IEP. (AE-2) Improvement was also noted in the academic areas. In math, she had gone from a third grade level at the beginning of the school year to working on fourth grade level material. She was also starting to read more with assistance from the paraprofessional, as opposed to just looking at the book covers, and did reading from Alice in Wonderland, Tom Sawyer, and Little Women. (Testimony of Ms. Moceades) The adults had started to fade back and allowed Student to become more independent. The year had not gone without incident but improvement was noted in all areas. (Testimony of Ms. Moceades)
· Joyce Foster, MA., CAGS, Director of Clinical services at BICO, testified that BICO helds clinical team meetings on Fridays, throughout the course of the year. (Testimony of Joyce Foster) The team members included Dr. Plumber, child psychologist, Dr. Benato, child psychiatrist, the particular student’s school adjustment counselor, Ms. Foster and members of the TEP program. Three students were discussed during each session. According to Ms. Foster, Student was discussed four times during clinical team throughout the 2003-2004 school year and was observed in the classroom by Dr. Benato and Dr. Plumber. Parents were invited and attended at least one meeting. (Testimony of Ms. Foster) Their concerns were the lack of female peers for Student in the TEP program, that inappropriate comments made to Student by peers cease, that Student’s academic level increase quickly, that her social interactions improve. (Testimony of Ms. Foster, Mother)
· On March 15, 2004 Parents wrote to Attleboro rejecting Student’s proposed program and placement at the BICO Collaborative. (AE-1; AE-4; AE-5) Parents believed that in order to make the program at BICO work, Student would need additional services in the classroom, a peer group that included more girls, especially girls that could serve as appropriate role models, and a more therapeutic environment to address her dual diagnoses of Aspergers and mood disorder. Student would require a more psychotherapeutic program to address her educational, social/emotional needs, and have expertise in dealing with adolescents with Aspergers Syndrome. (AE-1) Parents specifically rejected the following portions of the proposed IEP: consultation with an Aspergers Syndrome consultant should take place bimonthly, consultation should also be provided at home twice per month; improve communication between the special education teacher and the mainstream teacher to evaluate Student’s progress and integration; and place Student in some mainstream classes and use the autism expert to help Student increase the number of peers and her circle of friends. (AE-1) Regarding special education and related services, Parents also requested that Student receive occupational therapy services 2-3 times per week; and increase frequency and intensity in the amount of services provided by the speech therapist and the social worker to improve social skills and pragmatic language. Parents also felt that the classroom environment was inappropriate as the environment was aggressive and unfriendly, which impacted Student’s self-esteem and she was becoming more anxious, withdrawn and unhappy. Lastly, Parents opined that Student required a full year program where the summer program was an extension of the therapeutic milieu offered Student during the academic year, with consistency in staff so as to provide her “the sense of stability, continuation, safety, and confidence she required.” (AE-1) Parents asked Attleboro to send referral packages to Pathways Academy, The Wolf School in Providence and the Gifford School in Weston. (AE-1)
· Student’s progress reports for the period covering January to April 2004 at BICO show that she made progress towards reaching her IEP goals in communication, academics and occupational therapy. (AE-69) She was becoming more independent in working in Reading and Science, but continued to require teacher assistance to stay on task in Math, Geography and Language Arts. She was becoming more aware of personal boundaries, was working on learning to recognize when she was beginning to get over-aroused and what to do to become more calm and relax. To achieve this she received the Wilbarger Deep pressure Protocol, used sensory based activities, Brain Gym, and relaxation techniques including practicing yoga. (AE-69) Improvement in her conversational skills was noted with staff and familiar peers within a structured environment, as she was able to take three conversational turns with a visual script and moderate verbal prompting and assistance of a visual script. The BICO staff saw evidence of use of pragmatic skills within the classroom. She however, was demonstrating difficulty in maintaining topics especially if the topic was not of interest to her. (AE-69)
· On April 8, 2004, Dr. Ingrid Mattson-Charnley, Licensed Psychologist, who has provided Student weekly psychotherapy since October 2002 (focusing on cognitive-behavioral therapy as well as building social skills) made recommendations regarding Student’s placement. (PE-25) She stated that Student required a highly structured, comprehensive program that offered a small classroom size and provided a good male/female peer ratio. (PE-25) The staff should have a great deal of expertise in addressing the needs of children with behavioral and emotional disabilities. Dr. Mattson-Charnley opined that Student should be placed in alternate setting to BICO. (PE-25)
· On or about April 2004, Parent identified a program called the Drama Play Connection in which she desired her daughter placed for the 2004 summer, at public school expense. (Testimony of Parent) The program is a six week long drama workshop for students with disabilities. Approximately 12 to 17 students participate and students are grouped by age and social skills. Parent did not know whether the program was approved by the Department of Education but opined that it would assist Student develop her pragmatic language skills. Mother had not observed the program. (PE-26; Testimony of Parent)
· Approximately nine or ten of the twenty students who were educated with Student at BICO during the 2003-2004 school year would be with her in the BICO 2004 summer program proposed by Attleboro. ( Id. )
CONCLUSIONS OF LAW:
There is no dispute between the Parties that Student is an individual entitled to the protections of the IDEA and the Massachusetts special education statute. She carries a diagnosis of Asperger’s Disorder, Mood Disorder NOS, R/O Psychosis NOS and her disabilities impact her emotional, social and academic areas of development. (FE-12)
Student is entitled to receive a FAPE, in the least restrictive environment appropriate to meet her needs. 603 CMR 28.110.0; 603 CMR 28.118.0. See In Re: Worcester Public Schools , BSEA # 00-0912, 6 MSER 194 (SEA MA 2000); In Re: Gill-Montague Public Schools District, BSEA # 02-1776, August 28, 2002 ; In Re: Medford Public Schools, 8 MSER 329 (SEA MA 2002)
The questions raised by the Parties deal with Student’s educational placement for the period from January 2003 to the present. I will address each claim separately and in reaching my conclusions, I hereby incorporate and rely on the facts delineated in the Findings of Fact section of this decision and will, therefore, only highlight the most relevant points.
Whether Student is owed compensatory services for the period from January through June 2003, and if so, who is responsible to compensate her?
Central to this controversy is the whether FRCS or Attleboro was responsible for Student’s education for the period between January and June 2003. I will, therefore, address this issue before entering a determination as to whether Student is owed compensatory services.
Responsibility of FRCS and Attleboro:
Under the Massachusetts Special Education Regulations addressing the responsibility for students based on residency and enrollment, 603 CMR 28.03(4)(i) et seq. provides that:
A program school shall have programmatic and financial responsibility for enrolled students subject only to specific finance provisions of any pertinent state law related to the program school. Specific provisions for program schools are as follows:
I. For charter schools, vocational schools, or schools attended under MGL c. 76 §12A (Metco), when the Team determines that the student may need an out-of-district placement, the Team shall conclude the meeting pursuant to 603 CMR 28.06(2)(e) without identifying a specific placement type, and shall notify the resident school district within two school days.
1. Upon determination as in 603 CMR 28.03(4)(i)(1) above, the program school shall schedule another meeting to determine placement, and shall invite representatives of the resident district to participate as a member of the placement team pursuant to §28.06(2)(e)(1).
2. The Team meeting convened by the program school shall first consider if the resident school district has an in-district program that could provide the services recommended by the Team, and if so, the program school shall arrange with the resident school district to deliver such services or develop an appropriate in-district program at the program school for the student.
3. If the Team, in accordance with the procedures of §28.06(2)(f) determines that the student requires an out-of-district program to provide the services identified on the student’s IEP, then programmatic and financial responsibility shall return to the resident school district. The resident school district shall implement the placement determination of the Team consistent with the requirements of §28.06(3)
This issue must be analyzed from a procedural and substantive standpoint. Procedurally, it is clear that FRCS is a “program school” under the aforementioned Massachusetts Regulation. As a charter school, it was responsible to follow the process described supra, and it failed to do so.
FRCS convened a Team in January 2003 as a result of which it wrote an IEP, which it could implement at said Charter School. (AE-43; FE-3) This IEP was later amended to include provision of an extended school year program and assignment of an aide to Student. (Testimony of Mr. Da Ponte) Both the IEP and the Amendment were accepted by Parent on January 21 and May 6, 2003 respectively. (AE-43; FE-3; AE-40)
FRCS then reconvened Student’s Team on March 24 at which time it invited a representative from Attleboro to participate. (Testimony of Mr. Da Ponte, Mother, Ms. Axile) FRCS seems to have combined the two Teams referred to in the regulations. The Regulation however, requires that the program school convene a Team to decide if the student requires placement outside the program school. If the Team so decides, the program school has to stop that meeting, notify the resident district within two days and convene another meeting, which includes representatives of the resident school district, to discuss placement. The regulations further require that at the placement meeting, the in- district programs within the resident district be considered. If the district has a program that can meet the needs of the student, the program school bears the responsibility of making the necessary arrangements with the resident school district to deliver the services or to develop an appropriate program for the student. The regulations are drafted so that the least restrictive environment appropriate to meet the student’s needs be offered consistent with federal and state special education law. When the team, after discussing possible in-district programs, reaches a determination that Student requires an out-of-district program, meaning outside of the realm of the resident district’s program, and states the reasons for the need for such out-of-district program , programmatic and financial responsibility shifts to the resident school district for implementation of the placement determination. 603 CMR 28:03(4)(i)(1)(iii).
Therefore, the questions here are: was a determination that Student required an out-of-district program entered and if so, when was the determination made; when was Attleboro notified; what type of placement was required by Student; and when did programmatic and fiscal responsibility shift to Attleboro?
The Team meeting held in January 2003 discussed services to Student in FRCS, so that FRCS could better meet the needs of Student there, a placement which Parents fully supported. (Testimony of Mr. Da Ponte, Mother) There is no evidence that the January Team made a recommendation for an out-of-district placement or that Attleboro was contacted within two days to notify it that Student would require such placement and that Attleboro would need to participate in a Team meeting. The January IEP offered a combination of consultation, academic support in the general education classroom, occupational therapy, communication therapy and direct services in language arts, communication and mathematics in what can only be described as a partial inclusion program. (AE-43) It does not call for participation in a substantially separate classroom or an out-of district-placement. Parent accepted both this IEP and the Amendment clarifying Student’s entitlement to an extended school year program and elimination of homework assignments. (AE-40) Therefore, 603 CMR 28:03(4)(i) et seq. is not applicable to this Team meeting.
I now turn to the meeting held on March 24, 2003. The parties, including a representative from Attleboro, Theresa Axile, were invited to participate. (AE-37) The Attleboro representative was the student services director. (Testimony of Ms. Axile) While the invitation to the Team meeting does not state that the purpose was to discuss placement , Theresa Axile’s presence at the Team implies that placement would be an issue. At the Team meeting Student’s progress and difficulties were discussed, along with parental concerns, the recommendations for appropriate programming made by Dr. Goldman, Dr. Rappaport and Dr. Charnley, and the need for additional assessments. (AE-34; FE-5; AE-35; FE-6; AE-37; AE-38; AE-39)
The record further shows that the IEP drafted at the March 24, 2003 Team meeting, covering the period through March 23, 2004, recognized Student’s disabilities in the social/emotional, communication and occupational therapy areas, and listed numerous accommodations to be implemented in all settings. (AE-34; FE-5) The service delivery grid offered consultation services including: once per week 15 minutes consultation by the special education teacher; once per week 15 minutes speech therapy consultation by the speech therapist; and, once per week 15 minute consultation by the occupational therapist. (AE-34; FE-5) Under direct services in other areas it offered: academic support provided by an aide “5 x 8” per week; one 50 minutes session per week occupational therapy with the occupational therapist; 5 times 50 minutes per week language arts with the special education teacher; 8 times 50 minutes per week mathematics with the special education teacher; and two times 50 minutes per week communication with the speech therapist. (AE-34; FE-5) The IEP calls for participation in an extended year program and further states that Student “would benefit from instruction in a small group setting, social skills/pragmatic group, slower paced academic curriculum, a low staff to student ratio (recommended 1:4), a predictable, routinized setting, with a strong behavioral component. Frequent opportunities for counseling, with coordinator of school and community services.” (AE-34; FE-5) The March IEP does not incorporate all of the recommendations made by Dr. Goldman, Dr. Rappaport and Dr. Mattson-Charnley.
Robert Augustine, Advocate for Student/Parents, testified that participation in a therapeutic program was recommended by the Team. (Testimony of Robert Augustine) No determination of a specific placement was made at the Team meeting nor was any specific program identified for Student, although Mr. Augustine suggested Broccoli Hall as a possibility. (Testimony of Robert Augustine, Mother, Mr. Da Ponte) Also, no placement sheet was attached to either FE-5 or AE-34, the IEP drafted as a result of the March 2003 Team meeting.
Since the services described in the March 2003 IEP were not available in FRCS, it was appropriate for FRCS to have looked to Attleboro to evaluate its in-district placements to ascertain whether the program could be implemented there. The evidence shows that the March 24 th Team discussed a program, not a placement, and agreed that Student required a program outside FRCS. Since Attleboro was a Team participant, on that day it received constructive notice that Student would require an out-of-district program thereby triggering Attleboro’s responsibility to investigate available programs which could provide the services described in this IEP.
At the conclusion of the March 24 th meeting, since placement was not discussed, FRCS was not free of its responsibility towards Student who remained in its program. FRCS should have coordinated another meeting to discuss placement with representatives from Attleboro who possessed knowledge about the in-district and out-of-district programs. Also, since Attleboro was aware that it would be responsible for Student whether she be placed in an in-district or out-of-district program, it should have taken appropriate steps to finalize the process. The regulations allow for a Team meeting to be split to discuss program in one session and placement in another. 603 CMR 28.03(4)(i) specifically calls for such a split, but the time that lapses between one meeting and the other should not exceed 10 school days. 603 CMR 28.03(4)(i) et seq.; 603 CMR 28.06(2)(e).
Regarding the placement meeting, 603 CMR 28.06(2)(e) provides that
“Upon developing the IEP, if the needs of the student and the services identified by the Team are complex, and the Team is considering an initial placement out-of-district or a different setting for a Student who has been served in an out-of district program, the school district may schedule a separate Team meeting to determine placement. The placement meting shall meet the participant requirements of federal special education law as outlined at 34 CFR 300.552 and shall be held within ten (10) school days following the meeting at which the Team developed the IEP. At the request of the parent, the placement meeting may be held at a later day.”
Additionally, under 603 CMR 28.06(2)(e) et seq. parents have a right to view available in-district and out-of-district programs that may meet the student’s needs as they will later be called to report on the placements investigated at the Team meeting. 603 CMR 28.06(2)(e)(2), 603 CMR 28.06(2)(e)(3). Following the Team meeting of March 24 th , in April 2003, Ms. Axile of Attleboro, contacted Parents and showed them three in-district programs in Attleboro, none of which was acceptable to Parents. (Testimony of Ms. Axile, Mother) Thereafter, neither FRCS nor Attleboro reconvened the Team to discuss and finalize placement, and on May 6, 2003, prior to the placement determination being discussed and reached, Student was admitted to the psychiatric unit at Children’s Hospital where she remained with a brief three day interruption through July 10, 2003. (AE-9; AE-27; FE-12)
Application of 603 CMR 28.03(4)(i) et seq. to the facts herein show that FRCS did not follow proper procedure. Under 603 CMR 28.03(4)(i)(1)(i), FRCS was responsible to convene a Team to discuss placement. Similarly, Attleboro knew that it would ultimately be responsible for Student and failed to follow through with a placement determination. Two schools shared responsibility for Student in April 2003 and neither carried through. Since the placement meeting had not been set, Attleboro and FRCS could have communicated with each other to clarify this issue. Ultimately, the resident school district always bears responsibility for students in its district.
Substantively, it is undisputed that FRCS, the school selected by Parents, was not an appropriate placement for Student. Ms. Axile, Mother and Mr. Da Ponte described Student’s behavioral, social and academic difficulties in this setting. The FRCS staff raised concerns regarding Student’s safety, her off task behaviors, concerns regarding another boy in the classroom and her inability to meet the academic demands.
The FRCS participants at the Team convened in January 2003 realized that FRCS could not educate Student, but Parents wanted her to stay there; they wanted Student to be mainstreamed and intended for her to attend college. (Testimony of Mother, Mr. Da Ponte, Ms. Axile) Given Parents’ stated preference for an academically challenging program and mainstreaming opportunities in spite of earlier recommendations by the numerous doctors and service providers, neither FRCS or Attleboro can be held responsible for Student’s continued presence in FRCS during the disputed period. FRCS attempted to meet Student’s needs in keeping with Parents’ preference for that program and convened the Team three times during the 2002-2003 school year. (FE-3; FE-4; FE-5; AE-37; AE-34; AE-68) There is no question that Parents knew that the placement was inappropriate but they chose to try and make it work. Convinced that it could not address Student’s needs, FRCS convened the Team of March 24, 2003. (Testimony of Mr. DaPonte, Mother)
I find that both FRCS and Attleboro failed to ensure that a placement meeting take place in April 2003. Furthermore, the responsibility ultimately fell on Attleboro, the resident district. As a result of the actions of both schools, the transfer of responsibility for Student to Attleboro did not occur until the summer of 2003. Responsibility for summer programming was accepted by Attleboro and Student participated in the ABACUS summer program by agreement of Attleboro and Parents. Fiscal and programmatic responsibility for Student was appropriately with Attleboro at that time.
Compensatory education is a remedy that seeks to make a student whole where there has been a loss of a requisite service or placement, or where there has been a denial of the opportunity to participate in the decision making process. Pihl v. Mass. Dept. of Ed ., 9 F.3d 184 (1 st Cir. 1993) Compensatory education is an equitable remedy to which Student is not entitled under the specific facts described above because the decision to place and maintain Student at FRCS until her hospitalization one month after the March 2003 Team meeting, was made by the Parents.
Parents further alleged that FRCS or Attleboro was responsible to compensate Student for the interruption in educational services between May and July 2003. During that time Student was hospitalized at Children’s Hospital due to psychiatric issues. A CAP meeting was held at Children’s Hospital to discuss Student’s issues, progress and services. (AE-23; FE-10) FRCS was present during the June 30, 2003, CAP meeting, while Attleboro claimed not to have received sufficient notice to arrange for someone to attend. (Testimony of Mr. Da Ponte) There is no question that Attleboro should have been present. However, the CAP team did not discuss provision of services to Student while she was hospitalized although specific recommendations were made for a program when Student was discharged. (AE-23; FE-10) Moreover, correspondence from Parent’s Advocate, Ms. Silva, during the period of Student’s hospitalization addressed the need for educational services to Student after she left Children’s Hospital not during the period of hospitalization. (AE-31; FE-13; PE-16) Parents failed to submit any evidence that Student was available to receive an education during that time. The documents describing Student’s state and behavior while in the hospital setting described a very fragile child who was having tremendous difficulties in dealing with psychotic episodes and her Asperger’s Disorder. In light of Student’s state and in the absence of discussions regarding in-hospital education during the CAP meeting, or in the correspondence of her Advocate, this evidence suggests that Student was unable to receive educational services during that time. Her unavailability for education is further supported by the fact that Student failed at her first attempt to be moved to a less restrictive placement, Westwood Lodge, requiring a psychiatric re-admission three days after her first discharge from Children’s Hospital. In the absence of evidence to the contrary, I must conclude that Student was not available to receive an education while hospitalized and is therefore, not entitled to compensatory services for the period between May and July 2003.
Similarly, FRCS is not responsible to compensate Student for the inappropriateness of that placement because Student remained there at Parental request for the reasons explained earlier.
Whether Attleboro failed to offer Student a FAPE consistent with her IEP when it placed Student at the BICO Therapeutic Education Program between September 2003 and June 2004:
The Parties agree that Attleboro was responsible for Student’s education during the period from September 2003 through June 2004.
Following multiple communications and negotiations between Attleboro and Parents during the summer of 2003, the Parties agreed to placement of Student at the BICO program under an extended evaluation. (AE-17; FE-13; AE-16; AE-18; AE-14; AE-13; AE-12; AE-11; AE-10; AE-8) As stated before, Student had been hospitalized in Children’s Hospital between May 5 th and July 10 th , with the brief interruption between June 9 th and 12 th when an unsuccessful attempt was made to step her down to Westwood Lodge. (AE-27; AE-31; FE-12; FE-13; FE-16) By agreement of the Parties, Student participated in the ABACUS summer program between July 11 and August 15, 2003 and no dispute exists regarding the summer program. (AE-22; AE-21; FE-13; PE-13; PE-16; Testimony of Mother, Joyce Foster)
During the summer of 2003, Parents were represented by Barbara Silva, an educational advocate, through which the negotiations regarding placement of Student at BICO were made. On September 9, 2003 Steven German (of Attleboro) and Mother signed an extended evaluation form placing Student at BICO TEP program located at the Ahearn School, between that day and November 4, 2003. (AE-8) Given the difficulties faced by Student over the previous year, conducting an extended evaluation was appropriate.
Dr. Korey Hood’s psychological evaluation conducted during Student’s hospitalization in June-July 2003 showed Student to present a “rigid thinking style, poor response to emotional stress, a poor self-concept, apparent unwillingness to engage with others, contribute to unpredictable, odd and bizarre behaviors.” (FE-12) Dr. Hood concluded that Student’s presentation was better explained by cognitive rigidity consistent with Asperger’s rather than by a thought disorder. (FE-12) Dr. Castro and Dr. Priorelli further stated that
Student’s complex neuropsychological profile place[d] her at increased risk for continued difficulties across many areas of her life. It is very likely that [Student’s] emotional and psychological vulnerabilities may further deteriorate without intervention, and for this reason warrant immediate attention. Moreover, left unattended, her emotional difficulties will only serve to further exacerbate her current intellectual, academic, and social challenges. Given this, [Student] not only require[d] specialized services that comprehensively and directly address her multiple areas of concern, but also constant monitoring and consistent follow-up assessment in order to best support and ensure an improvement in her development, emotional and adaptive functioning. (AE-9)
Student is currently on Zyprexa (10 mgs/day) and Depakote (1250 mgs/day) to address her impulsivity and depressive symptoms. (AE-9) Given Student’s profile, including her dual diagnoses, Dr. Castro, Dr. Goldman, Dr. Rappaport, Dr. Mattson-Charnley, supported Student’s participation in a more specialized, highly structured, educational setting geared towards addressing the pragmatic language, social, emotional and academic needs of children in the Autism Spectrum. (AE-36; AE-39) Such a program is consistent with the observations made by the FRCS’ and BICO’s service providers. In a letter of March 21 st , Ingrid Mattson-Charnley, Student’s psychologist, explained that Student’s behavior, academic performance, self-regulatory skills and affect had deteriorated significantly as a result of her numerous difficulties during the 2002-2003 school year. (AE-35; FE-6) This underscored the need for Student’s participation in a highly specialized, structured academic day program, inclusive of a summer component, in a setting that offered a comprehensive approach and whose staff had true expertise in dealing with children with academic, developmental and emotional issues in order to meet her needs adequately. (AE-35; AE-36; AE-39; FE-6) The program should offer instruction in a small group, should be therapeutic and specially designed to meet the needs of students in the Autism spectrum. The personnel should have knowledge and expertise in dealing with the latter population. The program would have to meet the social, emotional and academic needs of Student. It should be highly structured and offer consistent predictable routines. The academic subjects should be presented in clear, structured, multi-modal form, with opportunities to preview and review the material as well as repetition. The program should offer therapeutic interventions and provide direct instruction in social skills, and social pragmatics with assistance of social stories and scripts to teach social pragmatics. (AE-9; AE-35; AE-39; AE-56)
The evidence is persuasive that the type of program described by the providers was consistent with the TEP program at BICO, which was also the least restrictive setting appropriate to meet Student’s needs. BICO offered Student participation in a substantially separate classroom with direct instruction by certified professionals and with the assistance of paraprofessionals that met the requirements stated above. It also offered intervention/consultation by Dr. Bonato (a psychiatrist), Dr. Plummer (a clinical psychologist) and Dr. Barbara Woodland, an autism expert who consulted in the home. (Testimony of Ms. Foster) Because the program is located in a public school building it also offers opportunities for mainstreaming and allows for non-disabled students to come into the TEP program to interact with its students. The program follows the Massachusetts Curriculum Frameworks but modifies the materials to meet the individual needs of students. Counseling, occupational therapy, adapted physical therapy, and language therapy are also available. The team at BICO encountered a young woman who required a great deal of attention. The record reflects that Student transitioned well into the program.
Review of the administrative record shows two separate status reports filed in late October and late November 2003 where Parents’ Advocate, Barbara Silva, states that Parents were pleased with the BICO program. It is unclear whether a copy of these reports was mailed to Attleboro and therefore, I am taking administrative notice of these documents for the purpose of rendering this decision. It is also important to note that Parents assented to placement of Student at BICO under the extended evaluation and therefore, are precluded from raising any claims for the period covering September through November 2003.
I now turn to the period from December 2003 through June 2004. The evidence is persuasive that Student was provided a FAPE and that BICO was the least restrictive environment appropriate to meet her needs. Considering all of the areas in which Student was required to progress (i.e., social, emotional, academic, social pragmatics) the record reflects effective progress during the aforementioned period. (Testimony of Ms. Moceades, Ms. Ruane, Ms. Foster) The student observed and described at the beginning of the year was very different from the one described at the end. In the beginning she appeared internally distracted, talked to herself, was obsessed with Harry Potter, laughed at inappropriate times, could not initiate conversations appropriately, presented rigid thinking, engaged in touching herself inappropriately, had difficulty staying in her seat, left the room and wandered though hallways, spit on the floor, and did not respond when addressed even when someone calling her name was in front of her. (Testimony of Ms. Moceades, Ms. Foster) However, during her time at BICO, she responded to the reward system implemented for her and was able to stay on task and work successfully at 10 minute intervals. Her ability to self-regulate improved as did her ability to interact with adults and peers. Academically, she was also making progress though she is still performing at least two years below grade expectation. There is no doubt that Student continues to require a great deal of work, and may very well need additional and even a more restrictive setting in the future, but the issue before me is whether she was able to make effective progress and worked towards meeting the goals in her IEP during the 2003-2004 school year. The evidence supports this finding.
Parents however, argue that her needs were not met in any area. The record supports a finding that Student’s needs are multiple and complex, therefore, it would be unrealistic to expect her to perform at grade level after one year at BICO. In respecting Parents’ preference for programs that offered mainstreaming and challenging curriculums, Student was placed in programs that were contrary to those recommended by the experts. Most poignant was her enrollment at FRCS, which combined with other family and life stressors, resulted in Student’s melt-down in May 2003. Given the number of transitions and difficulties Student experienced over the prior year, she needed a year during which she could stabilize in all of her areas of disability, and begin to progress. In light of this, the evidence supports a finding that she made good progress over the 2003-2004 school year.
Parents also raise the fact that Student’s IEP called for placement in a private day school and that BICO does not meet this criteria. Parents are correct that the IEP promulgated in November 2003 describes a substantially separate program, identifies BICO TEP program as the assigned school, but in the placement sheet, “Day school” was checked off. BICO is not a day school as it is located in a public school facility. (AE-4) The box labeled substantially separate classroom should have been checked off instead. Parents rejected the proposed placement on March 15, 2004 and submitted a letter outlining their concerns with the BICO program. (AE-4; AE-1) Given Parents rejection of the IEP, Attleboro was responsible to offer services consistent with the last agreed upon IEP, the IEP prepared by FRCS in January 2003. The program and services offered at BICO provided services beyond the ones required in the January IEP.
Whether Attleboro’s proposed program at BICO will continue to afford Student a FAPE through November 2004:
The IEP developed as a result of the November 13, 2003 Team meeting, covered the period from November 2003 through November 2004, the beginning of Student’s seventh grade (the 2004-2005 school year.) (AE-4) This IEP offers Student the following services at the BICO TEP program: direct services in other settings: adaptive physical education two times 30 minutes per week; cognitive growth 29.75 hours per week by the BICO staff; fine motor/occupational therapy one time per week for 30 minutes; communication, with the speech therapist once per week for 30 minutes; and counseling once per week for 45 minutes with carryover to be provided by the social worker. (AE-4)
It offers Student participation in a small, therapeutic, self-contained program with one-to-one assistance to support her learning and scripting of appropriate social skills. (AE-4)
The services delineated in this IEP are consistent with the recommendations of the evaluators and service providers and are consistent with the recommendations of Dr. Mattson-Charnley, that the program offer Student opportunities and interventions that addressed her emotional, pragmatic language and social issues. (AE-35; FE-6) The BICO program however, must offer Student a greater opportunity to interact with a larger pool of female peers, disabled and non-disabled, who as Parent testified, can serve as peer models to Student. This is consistent with Dr. Mattson-Charnley and Dr. Castro’s recommendations. Also, given Student’s talent and appreciation for art, the Team should explore her readiness to participate in this elective.
The credible testimony offered by Dr. Goldman and Dr. Castro regarding the complexity of Student’s profile is concerning, especially when taking into consideration the reports of other experts who have evaluated Student over the years. All of them recommend that Student’s needs be evaluated yearly and that her program be flexible enough to modify the services as needed. The effectiveness of Student’s program should also evaluated to ascertain whether the program continues to be effective for Student, or whether she may require something else. (Testimony of Dr. Goldman, Dr. Castro) Given that Student needed most of last year to stabilize, her Team must take a close look at Student’s presentation when the Team reconvenes in October/November 2004.
Whether Student is entitled to placement at the League School, a private special education school, at public expense:
Since the evidence supports a finding that Student is appropriately placed at BICO, I must conclude that at this time she is not entitled to private placement at public expense. Similarly, I need not decide whether the program proposed by Parents, the League School, is appropriate to meet Student’s needs.
Parents’ attorney argued that all parties concerned believed that Attleboro was responsible to provide an education to Student after March 2004 which led the Charter School and Parents not to take further action to clarify who was responsible. As a result, Parents argued that April, May and June passed and Parents were unable to take legal action. Therefore, Attleboro should be held to a standard equivalent to promissory estoppel and should be held accountable.
The doctrine of promissory estoppel is applicable in contract law and it is essentially a claim for breach of contract. In Massachusetts, in order for a claimant to invoke this doctrine, the claimant must first establish that a valid contract existed between the parties. Furthermore, the claimant must show that the defendant breached its duties under their contractual agreement to the detriment of the claimant. Guckengerger v. Boston Univ., 957 F.Supp. 306, 316 (D. Mass. 1997) (citing Compagnie de Reassurance d’Ille de France v. New England Reinsurance Corp., 825 F. Supp. 370, 380 (D. Mass. 1993)). In order to prevail, the claimant must prove reasonable reliance on the promise, offer or commitment made by the defendant and must prove that damage occurred as a result of said reliance. See Loranger Constr. Corp. v. R.F. Hauserman Co., 376 Mass. 757, 384 N.E.2d 176 (1978) (citing Restatement (Second) of Contracts, § 89B(2) (1973)). See also, Rhode Island Hosp. Trust Nat’l Bank v. Varadian, 419 Mass. 841, 850, 647 N.E.2d 1174, 1179 (1995) (regarding reliance on a promise rather than the existence of consideration.)
Looking at the aforementioned doctrine in the light most favorable to the Parents does not yield the result sought by them. Parents’ attorney is not persuasive in her argument for several reasons. First, Parent did not establish that a contract for services existed between Attleboro and Student. Such an argument might have more weight if Attleboro had drafted an IEP, which Parents accepted, and which Attleboro then failed to implement. That was not the case here. Second, assuming arguendo that such a contract existed, Parents’ attorney failed to show what the harm to Student was. The IEP of March 2004 was not accepted by Parents. Therefore, it placed no specific responsibility on Attleboro. Also, Student was hospitalized between May and July 2003. Lastly, Parents assented to Student’s placement in ABACUS during the summer of 2003, and in BICO under the extended evaluation.
Similarly, the statement that Parents did not seek a private school placement because they were waiting for Attleboro to do it is not persuasive. Parents can place students privately if they so choose. If they decide to pursue public funding, they need to comply with the written notice requirement, may proceed to place the student privately and then seek reimbursement. In doing the latter they assume the risk of not prevailing and being ultimately responsible for the expenses. In the case at bar, the issue of outside placement was discussed multiple times between Attleboro and Parents in July and August, 2003. (PE-18; AE-10; AE-11; AE-12; AE-13; AE-14; AE-15; AE-16; AE-17) Both sides were represented, the aforementioned was explained and Parents chose to place Student at BICO.
For all of the reasons stated supra , Parents’ argument under the promissory estoppel doctrine is not persuasive.
Attleboro shall reconvene the Team to draft an IEP consistent with this decision offering Student a program inclusive of the services delineated in the November 2003 IEP at the BICO TEP program. The program shall be modified to offer Student additional opportunities to work on social pragmatics, interact with a larger pool of female students (disabled and non-disabled) and participate in art and music if the Team determines that she is ready. The autism consultant shall assume a more active role in consulting for Student in school and in the home and shall evaluate Student’s need for additional services.
So Ordered by the Hearing Officer,
Rosa I. Figueroa