Special Education Appeals BSEA #00-2222
COMMONWEALTH OF MASSACHUSETTS
SPECIAL EDUCATION APPEALS
Re: Student v. Harwich Public Schools – BSEA # 00-2222
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 said statutes.
A Hearing in the above referenced matter was convened on October 17, 26 and November 7, 2000, in Plymouth and via telephone conference call from the Bureau of Special Education Appeals (hereinafter, “BSEA”), in Malden, MA, before Rosa I. Figueroa, Hearing Officer. Closing Arguments were received by December 4, 2000.
The Hearing was simultaneously requested by the Parent and the School District in February of 2000. A Pre-Hearing Conference was held on March 1, 2000, at which time the Parties negotiated an interim agreement for provision of tutorial services in the home while placement outside Harwich was found. The Parent through her advocate requested a series of postponements through the late summer of 2000 when the case was set for Hearing. Following the hearing in October and November, the Parent agreed to an interview at the Chamberlain School. The Student and the Parent visited Chamberlain on November 22 nd .
Harwich submitted its’ closing memorandum on November 29, 2000. The Parent’s closing argument was received at the BSEA on December 5 th . On December 6, 2000, the School’s attorney informed the Hearing Officer in writing that Chamberlain, the program proposed by Harwich, was no longer available to the Student. In the same letter the School proposed a different program for consideration. The communication arrived before issuance of the decision. Since the record contained no evidence regarding the new program, in an Order issued on January 2, 2001, the Parties were notified that the Hearing would be reconvened to take evidence regarding the new program proposed by Harwich. The Order directed the parties to contact the BSEA to set an additional date for Hearing in a conference call to be held on January 12 th . Harwich was further ordered to locate a program similar to that offered by Chamberlain, for the Student.1
On January 12 th , the Parent informed the BSEA that she had made private arrangements to educate the Student. Harwich then requested on January 22 nd that the record be closed and a decision be issued. The record in this matter closed on January 22, 2001.
Those present for all or part of the Hearings were:
Student’s Mother Pro se
Ms. Virginia McGeoch Wilson Teacher/Tutor, Harwich Public Schools
Mary Ellen Sowyrda, Esq. Attorney for the Harwich Public Schools
Mr. James Hartley Pupil Personnel Services Director, Harwich Public Schools
Mr. Robert Krol Principal, Harwich High School
Ms. Jackie Leach Adjustment Counselor, Harwich Public Schools
Mr. George Sowpel Alternative Program Teacher, Harwich Public Schools
Ms. Anna Green Resource Room Teacher, Harwich Public Schools
Dr. Lionel Lyon Licensed Psychologist
Ms. Patricia Ferris Admissions Director, Chamberlain School
School Exhibits 1 through 12 were admitted in evidence and were considered in issuing this decision. On October 17 th the Parent objected to admission of School Exhibits # 7 and #10. The objections were overruled on the basis that the documents were part of the Student’s records and the Parent granted the school permission to perform the assessment. Both exhibits were found to be relevant and were therefore admitted in evidence.
Whether the residential program at Chamberlain School, or a similar type of program, constitutes the appropriate least restrictive placement that can assure the Student’s maximum feasible development.
POSITION OF THE PARTIES
Harwich asserts that the Student’s behavioral/emotional and learning disability issues cannot be properly met in Harwich. The Student’s disruptive and disrespectful behavior places not only the Student, but also the rest of the student/staff population at Harwich in danger. Addressing the Student’s learning disability alone would be ineffectual because his disruptive behavior stems from emotional/behavioral issues exacerbated in the large school environment. Harwich maintains that the Student necessitates a small, structured, therapeutic program capable of addressing all of the Student’s needs with a holistic, caring approach. The Chamberlain School, or some other similar residential program, is the appropriate setting to meet the Student’s needs. Harwich seeks that the BSEA order the Student to attend such a program.
At the time of filing the request for Hearing, the Parents/Student requested that Student be taken out of the Alternative education classroom and placed back in the regular mainstream program with special education support for his academic courses. At the time of the Pre-hearing conference the Parents had lost faith in Harwich’s ability to educate the Student and requested that he be placed in a private school. The Parent/Student then requested that the Student be allowed to return to the regular education program at Harwich with continuation of the Wilson Reading Program. At the time of the hearing their position had changed requesting that the Student be allowed to continue the Wilson Reading Program, that educational software for dyslexic children be provided as well as someone to teach him basic computer skills, and that the Student be home schooled with an appropriate curriculum.2
The Parent/Student assert that the Student has been harmed and emotionally abused by Harwich starting in the Middle School and continuing through High School. They state that the school personnel have been disrespectful and that every time the Parent requested additional assistance in special education for the Student, Harwich turned a deaf ear. They argue that Harwich failed to comply with the substantive and procedural mandates of federal and state special education laws, and therefore violated the Student’s rights. They blame Harwich for all of the Student’s current problems.
FINDINGS OF FACT
Born on January 15, 1984, Student is a sixteen year old enrolled at Harwich Public Schools High School. (SE-1) He presents with low average range of abilities with strengths in solving mathematical word problems and reading comprehension of short passages, with scores in the 6.9 and 5.2 grade equivalents respectively. (SE-2) Significant learning disabilities are noted in the areas of spelling, written expression and math. (SE-4) His weaknesses lie in spelling and numerical computational skills, in sight word and phonetic decoding skills, visual organizational skills, processing and recall of information. Testing further reveals impulsivity. He has been diagnosed with ADHD. (SE-2) His strengths lie in oral expression and vocabulary. (SE-4) The Student has also been diagnosed with Disruptive Behavior Disorder, and suspected Conduct Disorder, Adolescent Onset Type. (SE-4)
The Student has received special education services at Harwich since he entered third grade after his family relocated from New York to Massachusetts. (Testimony of the Parent; SE-4)
According to Harwich, in fifth grade, the Student began to manifest behavioral issues, which culminated in his being placed in the Alternative educational classroom in the ninth grade. (SE-4; Testimony of the Parent and Mr. Sowpel) The Parent testified that the problems were a combination of the school not respecting her son by refusing to call him by his full name and by not providing him with the educational support he required. (Testimony of the Parent)
In 1997, the Parent requested that the Student be given books on tape to assist with reading assignments, and later requested that he be given a keyboard with the keys in alphabetical order. She also brought an Individualized Educational Plan (hereinafter, “IEP”) from a student in a neighboring district to use as an example of things she believed should be done for the Student. (Testimony of the Parent) Ms. McGeoch recalled the Parent requesting software to help the Student in the home during 1999 and later. (Testimony of Ms. Mc Geoch) While software was available in Harwich, it was only available on a limited basis and mostly in the resource room. (Id.)
In the Parent’s opinion all of the tests conducted by Harwich focused on the Student’s behavioral problems and neglected his educational needs. (Id.) Although she admitted to having attended Team meetings and having accepted the IEPs presented to her during the Student’s 5 th , 6 th , 7 th , and 8 th grades, she stated that she did not fully understand what she was signing. (Testimony of the Parent)
A Personality Assessment was conducted by John R. O’Brier, Ed. D., on January 11 and 25, 1999. (SE-10) The Student was uncooperative during the exam becoming more oppositional and resistant as time went on and even refused to complete the testing. While presenting with a superior attitude he appeared sullen, angry, insecure and defensive to the tester. (Id.) His affect was flat and he made minimal voluntary vocalizations. During the interview, the Student admitted to having smoked marijuana. He also shared his view that “the school was out to hurt him,” a view that was supported by the Parent. (Id.) A guarded prognosis was given because of his lack of willingness to see any point of view other than his own and the Student’s entrenched attitude. The evaluator was of the opinion that the Parent’s support and cooperation with the school was essential to the Student’s educational success. A recommendation that both Parent and Student engage in therapy was made. (SE-10)
Student commenced the 1999-2000 school year, his tenth grade, in the Alternative education classroom. He also participated in one-to-one tutorial in the Wilson reading program, five hours per week, with Ms. Virginia McGoech. (SE-2; Testimony of Mr. Sowpel and Ms. McGoech) According to Mr. Sowpel, his classroom teacher in the Alternative Educational classroom, the Student showed little interest in his classes and did not participate fully in the classwork. (Testimony of Mr. Sowpel)
During the 1999- 2000 school year he was placed on a behavioral plan to address disruptive behaviors. (SE-2) The plan attempted to address the Student’s impulse control issues by offering his a “safe zone” that he could go to when he felt “persecuted” before his behaviors escalated to a point where the school administration had to be involved. (SE-3; Testimony of Mr. Sowpel and Ms. Leach) The Student was also supposed to attend counseling sessions with Ms. Leach, the adjustment counselor, but believing that she had violated his trust, he stopped confiding in her. (Testimony of the Parent and Ms. Leach) The plan was unsuccessful resulting in a number of detentions and 20 days of suspensions during that school. He was also placed on probation for destruction of property. (SE-2)
Behaviors that had become a problem in the ninth grade deteriorated in the tenth grade. The Student was disrespectful to the classroom aide, Mr. Moynagh, and had a tendency to wander the halls disrupting other classrooms. (Testimony of Mr. Sowpel) Mr. Sowpel testified that he had a good relationship with the Student who could appear likeable and attentive when approached individually, but was disruptive and inattentive in the classroom setting. In his opinion, the Student never bought into the alternative classroom program. (Id.)
The Student’s Team met on January 18, 2000 as a result of Student having a series of suspensions due to disruptive, disrespectful behaviors. (SE-2; see also SE-12) Concluding that the Student required a highly structured therapeutic environment, the Team drafted an IEP calling for a residential school placement, under a 502.6 prototype program. (SE-2) The IEP left the question of the location for provision of services open. (Id.)
On February 4, 2000, Jim Hartley, Special Education Director for Harwich, forwarded the IEP to the Parent. (SE-2) The IEP was rejected in full by the Parent on February 2, 2000. (SE-2) On February 11 th the Parent filed a request for Hearing before the BSEA.
On February 14, 2000, the Student was suspended for three days after he was found smoking in school. (SE-12) The Student did not return to his program at Harwich following that suspension.
Following a Pre-Hearing Conference on March 1, 2000, the parties entered into a written agreement, signed on March 7 th , which granted the Student 10 hours per week of home tutoring inclusive of the Wilson Reading program. (SE-9) The agreement reflected the Parties’ understanding that the home tutoring would be in effect while a day or residential school placement was identified and placement was agreed to or ordered by the BSEA. At the time of the Hearing he continued to receive these services. (Testimony of Ms. McGeoch)
Mr. James Hartley, the Pupil Personnel Services Director in Harwich, sent referral packages to Penikese Island School, the Cape Cod Collaborative, Chamberlain School, Dennis Yarmouth and Nauset. (Testimony of Mr. Hartley)
During the summer of 2000 the Student attended summer school and continued to receive tutorial in the Wilson reading program with Ms. McGeoch. (Testimony of Ms. McGeoch) He also held a job as a waiter at a local restaurant and participated in a basketball program. (Testimony of Dr. Lyon and Ms. McGeoch) The Student enrolled in summer school so that he could make up the credits he needed to complete 10 th grade, and return to Harwich in the fall of 2000. (Testimony of Ms. McGeoch) It was the Student’s and the Parent’s impression that the Student would have to undergo psychological testing, obtain the credits he needed to complete 10 th grade in summer school and write a letter requesting to return to school if he were to be considered for a return to Harwich in the fall. (Testimony of Ms. McGeoch)
On August 3, 2000, Lionel S. Lyon, Psy. D., Licensed Psychologist, evaluated the Student at the request of the Principal. The School had concerns over the Student’s disruptive behavior. At this time Dr. Lion’s practice exclusively involved conducting psychological testing, mainly for school districts. (Testimony of Dr. Lyons) The evaluation involved a home visit, interviews with the Student, the Mother, and the Student’s home tutor, Ginny McGeach, review of the student’s record and administering the following tests: Beery Visual-Motor Integration Test (BVMI), Draw-A-Person, Thematic Apperception Test (TAT), Three Wishes, Wechsler Individual Achievement Test (WIAT) Minnesota Multiphasic Personality Inventory-A (MMPI-A), Rotter Incomplete Sentences, Children’s Depression Inventory (CDI) Behavior Evaluation Scale-2 (School and Home Versions). (SE-4; SE-5)
Dr. Lyon described the Student as having a positive attitude toward the testing, having excellent endurance and behaving well. (Testimony of Dr. Lyon; SE-4) The Student stated that he wished to get back to school. (Testimony of Dr. Lyon) The testing took place in the home. During the interview the Student claimed to have a good relationship with his family and his boss. Dr. Lyon stated that the Student had attended counseling, but didn’t see the point of it, and conceded a past history of substance abuse and involvement in incidents requiring police intervention. (Id.) Dr. Lyon found no indication of poor reality testing or psychotic thinking. The projective testing showed no indication of substantial depression while it noted that the Student presented with difficulty with processing, controlling impulses or gaining insight about his own action. (SE-4) The testing revealed signs of denial, low morale, difficulty focusing, cynicism, repression, delinquency, antisocial behavior and presentation with a disjointed nature in the way in which he sees things. (Testimony of Dr. Lyon)
Dr. Lyon was of the opinion that the Student presents with Oppositional Defiant Disorder, manifested as defiance towards authority figures and Conduct Disorder where the basic rights of others are violated. (Testimony of Dr. Lyon) The Student’s Conduct Disorder however, is not a strict one as it only manifests in school, the community and with peers. Therefore, he requires group therapy and needs to be in an environment that provides socialization. (Testimony of Dr. Lyon) According to Dr. Lyon, the research regarding individuals with a diagnosis of Conduct Disorder presents a poor prognosis. The crux of the matter here is how the person relates to others and how difficulties are resolved and problem solving. In order for treatment to be successful the issue has to be addressed in vivo at the time the issue arises. The Student would benefit from group processes but not with youngsters who present his same type of problem but those who can provide appropriate modeling.(Testimony of Dr. Lyon)
Dr. Lyon testified that the BES-2 is an instrument “ designed to document those behaviors most indicative of emotionally disturbed/behaviorally disordered students.” (SE-4). He used both the Home and the School Version Rating Forms. (Id.) The discrepancies between the behaviors witnessed in the home by the Parent and the Student’s tutor, versus those witnessed by the teacher and other school personnel, led him to conclude that the symptoms of oppositional defiant conduct disorders manifest in “open settings” rather than in one-to-one environment. (Testimony of Dr. Lyon) He found that at home or in one to one teaching situations he seemed to display appropriate behaviors, and indeed at times commendable, whereas in large group settings the Student’s emotional and interpersonal difficulties seemed to be most prominent. (SE-4)
Regarding the Personality Evaluation, projective testing responses “conveyed the impression of an adolescent who is emotionally immature without sufficient internal controls for coping and adapting.” (SE-4) In the area of impulse control the Student exhibited substantial issues as well as a tendency to “abdicate responsibility” for his actions and their consequences, as a result of which he was unable to internalize the “whole notion of cause and effect”. (Id.)
Dr. Lyon recommended that the Student receive educational services in a “small, structured, therapeutic educational setting.” (SE-4, SE-5; Testimony of Dr. Lyon) In his opinion the Student had strong ties to the community which should be maintained. He therefore recommended participation in a day program under a 502.5 prototype program.
The Student’s Team reconvened on September 12, 2000, and upon reviewing Dr. Lyon’s evaluation and recommendations, drafted an IEP calling for placement at the Chamberlain School, for the period covering September 12, 2000 through September 12, 2001. (SE-1)
On October 5, 2000, Harwich forwarded this IEP to the Parents. (SE-1) While this IEP reflects on the first of two pages that it followed a Team meeting of September 12, 2000, the signature page lists contains no signatures. (Id.)
The Chamberlain School, located in Middleboro, MA, is over one hour away from Harwich, therefore too far as a day school option for the Student. (SE-1; Testimony of Ms. Ferris) It is a 766 approved school. (Id.) It offers a therapeutic program on a day or residential basis to students ages 11 to 18. (SE-6; Testimony of Ms. Ferris) The current student population however, is 13 to 17 years old, in 8 th through 12 th grade. (Testimony of Ms. Ferris) The goal at Chamberlain is to “help students increase their academic abilities, to improve their emotional well-being and social functioning…” (SE-6) The majority of the students in the program have average intelligence and approximately half the population aspires to go on to college. The student population presents with behavioral/emotional and learning disabilities issues. (Testimony of Ms. Ferris) All the students receive individual therapy and participate in weekly group sessions to address issues of socialization and substance abuse. (Testimony of Ms. Ferris) These group sessions are topic specific. Students in the residential program participate in one other group session weekly. (Testimony of Ms. Ferris) The individual therapy is provided by Master level clinicians. Consulting psychiatrists are also available to monitor student’s medications and crisis intervention. (Id.) To curb problematic behaviors the school implements a point/level system. The program offers a structured, caring environment for students. (Testimony of Ms. Ferris)
During the first two weeks of a student’s enrollment in Chamberlain, the school asks that the residential students stay in school. Thereafter, as they earn points and in consultation with the clinicians in the school, they earn the opportunity to go home on weekends. (Testimony of Ms. Ferris) From the documentation in the referral packet, the Student seemed to be an appropriate candidate for the program.3 (Id.)
At Chamberlain, academics follow the statewide frameworks curriculum. Special education instruction is provided by certified teachers in classes of approximately a one teacher to eight students ratio. (Testimony of Ms. Ferris) The School does not provide Wilson reading instruction per se, but does offer remedial reading assistance with an eclectic approach including aspects of the Wilson Reading Program. (Id.) Students enjoy a variety of on and off campus activities including community services. (Id.)
Ms. Virginia McGeoch is Harwich’s Wilson teacher and has served as the Student’s tutor since March of 2000. She also worked with the Student one hour per day, five days a week, in a one-on-one remedial reading tutorial in the high school. She found the Student to be “cooperative, polite, focussed and diligent” in both settings, enabling the Student to complete the first half of the program, or six steps in one year. (SE-11; Testimony of Ms. McGeoch) According to her, at a rate of three to five sessions per week, the program takes 3 to 4 years to complete. His skills, knowledge and understanding of word structure, pace, fluency and comprehension have improved with the Wilson program. This has resulted in his having greater confidence in himself as a reader. (SE-11)
Ms. McGeoch’s perception of the Student is that “he is a bright, dyslexic student.” (SE-11) In her opinion, “ When reading in the content area became essential in fifth grade, his inability to read and spell adequately began to seriously interfere in his learning and caused an incredible amount of frustration for him. Rather than appear incapable in front of his peers, he began to shut down and act out his frustration, behaviors which are commonly seen in dyslexic students. At this point, the gaps in his learning have grown and the frustration has turned to anger and skepticism toward the school system. His weakness seems to be accepting responsibility for his behavior, yet I believe that [Student] has the ability and desire to learn. It is my hope that together as a team, we can find a way to make that happen.” (SE-11)
RULINGS OF LAW
The parties agree that the Student is an individual with a disability as defined by the IDEA and M.G.L.c. 71B. Student presents with learning disabilities as well as emotional /behavioral issues. The Parties’ disagreement centers on determination of the least restrictive, free, appropriate public educational placement reasonably calculated to maximize the Student’s potential. David D. v. Dartmouth School Committee , 775 F.2d 411 (1 st Cir. 1985). The Parent/Student favor education in the mainstream program at Harwich, while the School District argues that the Student’s needs can only be met in a private residential program. The Parent/Student further argue that Harwich violated the Student’s rights and that they failed to meet his educational needs over the past several years. The evidence supports a finding that at the present time the Student’s needs can best be met in a private day program outside Harwich. Only if such program cannot be found within a reasonable distance from the Student’s home should a residential placement be considered. Placement of the Student in a program such as the one at Chamberlain constitutes the least restrictive environment which could reasonably meet the Student’s needs while providing for his maximum educational benefit. David D. v. Dartmouth School Committee , 775 F.2d 411 (1 st Cir. 1985). My reasoning follows:
The evidence is clear that the Student’s performance and behavior in Harwich began a downward spiral from the fifth grade, hitting rock bottom in the 8 th and 9 th grades. As he became increasingly frustrated with his inability to read, and in his belief that the staff disrespected him and that the school was “out to get him” his behavior in group situations worsened. (Testimony of the Parent, Mr. Sowpel, Ms. McGeoch) He blamed others for his failures, as did the Parent, and seems not to see the role he played in his own educational demise. For instance, Mr. Sowpel testified that while the Student was seen bringing his tape recorder to class and was allowed to bring his laptop computer, he was not seen using the latter as a direct instrument. There is no doubt however, that when he trusted a teacher and was instructed on a one-to-one basis, he worked hard and was able to do well. (Testimony of Ms. McGeoch and Dr. Lyon) The evidence is not clear as to whether the Student would have known how to use these tools effectively to support his education. What is evident is that both Parent and Student lost faith in Harwich’s ability to meet the Student’s educational needs. (Testimony of the Parent and Dr. Lyon) The evidence indicates that at the very beginning Harwich failed to assume an aggressive stance in meeting the Student’s needs and maximizing his potential. The Parent testified to numerous attempts to elicit greater response from Harwich and her frustration with the responses and timing of them was quite evident. At this point an effective educational plan for this Student would require a placement capable of meeting his behavioral, emotional, and socialization issues as well as his specific learning disability while allowing him to maintain his ties to the community. (Testimony of Dr. Lyon)
Dr. Lyon made a diagnosis of Oppositional Defiant Disorder, manifested as defiance towards authority figures and Conduct Disorder (that in which the basic rights of others are violated.) (Testimony of Dr. Lyon) According to Dr. Lyon, the research regarding individuals with a diagnosis of Conduct Disorder presents a poor prognosis. The crux of the matter here is how the person relates to others and how difficulties are resolved, i.e., problem solving. In order for treatment to be successful, the behaviors have to be addressed in vivo at the time the issue arises. The Student would therefore, benefit from group processes but not with youngsters who present his same type of problem but rather, with peers who can provide appropriate modeling. (Testimony of Dr. Lyon) The Student needs intervention on how he can successfully negotiate peers and life. The isolation of home schooling alone could seriously effect his future. (Testimony of Dr. Lyon) His difficulties go beyond school systems because he has little understanding of what self-responsibility is. The Student admitted to being out of control but did not admit responsibility for his behavior. His defenses are denial and projection, two very difficult defenses to address. He needs to understand that what happens is not other people’s fault. (Id.)
According to Dr. Lyon, while the Student’s “learning disability certainly plays a role in his psychological functioning, it should not be directly correlated with his social/conduct disorder. This diagnosis, like his learning disability, is causing significant impairment in [the Student’s] social and academic functioning.” (SE-4) Therefore, a successful program must address his learning disability, the disruptive behaviors and the emotional issues. (Testimony of Dr. Lyon; SE-4) Since the Student’s emotional/ behavioral difficulties manifest in group situations, and not on a one-on-one basis, the program must provide immediate interventions to address socialization and prevent his conduct from escalating.
Mr. Sowpel testified to having witnessed some of the behaviors described by Dr. Lyon such as the anger, issues with authority, impulsivity, distrust, cynicism, and other. The Student would sleep while in class, get up and wander the halls, or confront the classroom aide. (Testimony of Mr. Sowpel) He testified to having seen the Student try to do work, as for example in Math, for about 5 to 10 minutes at a time, then become frustrated and stop working. (Id.) I am persuaded that the Student would benefit from peer group therapy which can offer him honest feedback, and allow opportunities for modeling appropriate behaviors, and agree that the isolation imposed by a home program would result in irreparable damage in the area of socialization for this Student. (Testimony of Dr. Lyon)
At the Hearing and in her closing argument the Parent requested that the Student be returned to the mainstream program in Harwich with support, or to the Alternative education program with an aide. Harwich argued that it was unsafe to have the Student return to its’ high school. Its’ concerns were for the safety of the Student, the staff and the rest of the student population. As stated by Ms. Leach, when the Student felt that anyone had disrespected him, he in turn lost respect for that individual and could become confrontational. (Testimony of Ms. Leach) According to Ms. Leach, some students were afraid of the Student. Ms. McGeoch, the Wilson Reading instructor, however, never felt unsafe or threatened by the Student either in school or at his home. (Testimony of Ms. Mc Geoch) It is further noted that the Student attended summer school during the summer of 2000 without any incidents. (Testimony of Ms. McGeoch) Given the Parties dual vision of the threat posed by the Student, and his past behavioral history in Harwich, it is reasonable to conclude that at this time, the Student’s needs cannot be met effectively in Harwich. The Parties must channel their efforts to locate an appropriate program that meets the criteria delineated by Dr. Lyon.
Such a program should resemble the model embodied by the Chamberlain School.
Dr. Lyon was well acquainted with the Chamberlain School and supported a setting such as this one, on a day rather than a residential basis, for the Student. (Testimony of Dr. Lyon) I find his testimony credible and reliable in all regards. While Harwich agrees that such a placement would be appropriate it however, proposes that the Student attend a special education therapeutic school on a residential basis. Dr. Lyon’s recommendation that the Student attend as a day student is based on his belief that allowing the Student to maintain his strong ties to his family and the community would be beneficial. I find Dr. Lyon’s position to be persuasive and in keeping with the legal requirement that the Student be educated in the least restrictive environment appropriate to meet his needs. 603 CMR 28.118.
The evidence shows that on October 5, 2000, Harwich forwarded to the Parent an IEP covering the period from September 12, 2000 through September 12, 2001. (SE-1) This IEP, which identified placement of the Student at the Chamberlain School, followed the IEP of January 18 th calling for a 502.6 prototype program, which left the question of the location for provision of services open. While this IEP reflects on the first of two pages that it followed a Team meeting of September 12, 2000, the signature page lists the members of the team but contains no signatures. This raises questions as to whether the Team was convened to discuss Dr. Lyon’s evaluation and recommendations as required under the Chapter 766 Regulations. 603 CMR 28.314. The record also contains no information regarding notice to the Parent, and an opportunity for her to participate in the Team meeting. 603 CMR 28.317 and 28.321. Rather, the IEP seems to reflect Harwich’s original commitment of January 2000, to offer the Student a one year residential placement. If it did not do so, Harwich was responsible to have convened the Team to both finalize the placement decision and extend the life of the original IEP, albeit, the January 18, 2000. While in form Harwich’s actions were in conflict with the letter of the law, this procedural violation does not alter the fact that from a substantive standpoint Student requires a therapeutic special education placement outside Harwich such as the Chamberlain School.
In Ms. McGeoch’s opinion it is very important for the Student to complete the Wilson Reading Program as well as his education. (Testimony of Ms. McGeoch) Her testimony in this area is persuasive. Until such time as an appropriate program is located for this Student, Harwich shall continue to offer the Student the 10 hours per week tutorial, inclusive of the Wilson Reading Program, or may allow the Student to return to Harwich. Since neither of the previously stated temporary options provides the Student a true free appropriate public education (hereinafter, “FAPE”) in the least restrictive setting able to maximize the Student’s potential, the Parties shall work cooperatively to place the Student in an appropriate program as soon as possible, especially given the Student’s own desire and motivation to be in a school setting. All possible placement options must be explored. Given the amount of time that has lapsed since Harwich first sent packets out, it should consider resending them at this time. The Parent and the Student are strongly advised to fully cooperate with this process.
Harwich is ordered to reconvene the Team inclusive of the Parent, and modify the Student’s IEP in a manner consistent with this decision as well as to reengage in the referral process once again.
So ordered by the Hearing Officer,
Rosa I. Figueroa
Dated: February 14, 2001
February 14, 2001
The Order read in pertinent part: “…Given that the program proposed by Harwich is no longer available, and in light of the testimony and documents admitted in evidence, pursuant to 603 CMR 28.08 (5)(c) , I find it necessary to reconvene the hearing and reopen the record. The additional hearing will be limited to information regarding the appropriateness of the new proposed placement for the Student.
I find that the evidence in this case supports placement of the Student outside the public school. Harwich is ordered to seek and present a program that meets with the recommendations of Dr. Lionel Lyon. Should the program submitted for consideration be residential in nature, opportunities for the Student to come home and maintain his ties to the community shall be explored and presented at the time of the hearing. The cooperation of the Student and the Parents in visiting and completing the intake process in the proposed placement is an integral part of the process and will afford them the opportunity to testify as to their views on the proposed placement.”
In her closing argument the Parent requested that the Student be allowed back in the Alternative educational classroom in Harwich with an aide assigned to him to act as his protector, or in the alternative that the Cape Cod Alternative School in Hyannis be considered by Harwich for possible placement of the Student.
The Student and the Parent visited and interviewed at Chamberlain in November of 2000. The Student was not invited to participate in the program making placement at Chamberlain not an option regarding placement for the 2000-2001 school year.