Student v. King Philip Regional School District – BSEA #04-2729

COMMONWEALTH OF MASSACHUSETTS

SPECIAL EDUCATION APPEALS

Student v. King Philip Regional School District BSEA #04-2729

DECISION

This decision is issued pursuant to M.G.L. c. 71B and 30A, 20 U.S.C. § 1401 et seq ., 29 U.S.C. § 794, and the regulations promulgated under said statutes.

A hearing was held on August 3, August 4, September 8, and September 9, 2004 at the office of Catuogno Court Reporting, 446 Main Street, Worcester, Massachusetts, before Catherine M. Putney-Yaceshyn, Hearing Officer.

PROCEDURAL HISTORY

Parents requested a hearing on March 22, 2004 and a hearing was scheduled for April 9, 2004. The School requested a postponement of the hearing. The postponement was allowed and a pre-hearing conference was scheduled to occur on April 27, 2004. The School made an unopposed request that there be a conference call in lieu of the pre-hearing conference and there was a conference call on April 27, 2004. There was a pre-hearing conference on May 21, 2004. The matter was scheduled for a hearing on July 6, August 3, 4, and 5, 2004. On July 6, 2004 the parties reported to Catuogno Court Reporters in Worcester for the Hearing and the hearing officer allowed the school’s unopposed motion to continue the hearing because parents had not provided discovery responses or exhibits to the school. On July 9, 2004, the hearing officer issued an order adding an additional day of hearing on September 9, 2004. The hearing proceeded on August 3, 4¹ , September 8, and September 9, 2004. The hearing officer granted the parties’ request to keep the record open pending receipt of their written closing arguments and ordered the parties to submit their arguments by October 15, 2004. On October 12, 2004, the school requested a postponement of the October 15, 2004 submission deadline until October 18, 2004 which was allowed. On October 18, 2004, the School made an assented to request to postpone the October 18, 2004 submission deadline until October 19, 2004 which was allowed. On October 19, 2004 both parties submitted their closing argument and the record closed.

Those present for all or part of the Hearing were:

Father

Stepmother

Barbara Schwartz Psychologist

Christina Marks Clinician, Highpoint School

Susanna L. Wall Education Director, Highpoint

Susan Salzberg Attorney for Parents

Ray Wallace Attorney for Parents

Sallyanne Winslow Special Education Director, King Philip RSD

Janine D. Petrin Team Chariperson, King Philip RSD

Mark Warren Team Chairperson, King Philip RSD

Donald Scott McLeod Staff psychologist/executive director, MGH Youthcare

Lori Hodgins Director of Education and Training, MGH Youthcare

Larry Fine Program Director, STP, BICO Collaborative

Erin Ruane Kuehn² Social Worker, formerly at BICO Collaborative

Regina W. Tate Attorney for King Philip Regional School District

Catherine M. Putney-Yaceshyn Hearing Officer

The official record of this hearing consists of Parents’ exhibits marked P-1 – P-34 and King Philip RSD’s exhibits marked S-1 and³ S-4 through S-63 and approximately 22.5⁴ hours of recorded oral testimony.

ISSUES

1. Whether the IEP proposed by King Philip Regional School District for the 2003-2004 school year is reasonably calculated to provide Student with a free appropriate public education in the least restrictive environment.

2. If not, whether Parents’ unilateral placement of Student at Highpoint School is reasonably calculated to provide Student with a free appropriate public education in the least restrictive environment.

3. Are Parents entitled to reimbursement for Student’s unilateral placement at Highpoint School?

SUMMARY OF THE EVIDENCE

1. The student (hereinafter, “Student”) is a 17-year-old student residing in Plainville, Massachusetts, within the King Philip Regional School District (hereafter, King Philip). Student has a primary diagnosis of Asperger’s Syndrome. (P-1) He has also been diagnosed with paraphilia, NOS and depressive disorder, NOS. (P-8, S-26) Student’s cognitive functioning has been assessed in the low-average range. He has considerable weakness in the capacity to make social and practical judgments and with tasks requiring processing speed. His most recent educational testing (10/03) yielded the following scores on the Woodcock-Johnson Test of Achievement III: oral language SS 94; broad reading SS 85; broad math SS 71; broad written language SS 91; academic skills SS 97. On the Brigance Diagnostic Test of Essential skills he was assessed at the tenth grade level in the areas of reading word recognition and reading comprehension and at the eighth grade level in spelling. (S-12, P-1, S-16, P-9)

2. Student began attending King Philip in the fall of 2002. Prior to then he had lived with his mother in Pembroke and attended the Silver Lake Regional School District. Student moved to his Stepmother’s home⁵ in Wrentham along with his father and sister (hereafter, “Sister”) after a court awarded Father sole custody of his children. Student’s transition to the new school system went smoothly and he did well academically. However, Student was not happy about being forced to move and expressed anger at home. Student wanted to remain in Pembroke with his mother. King Philip implemented the IEP that Silver Lake had implemented. Student was placed in a small class with students with similar issues to his. Student did well academically, although math was not a strong subject for him. (Father, Winslow)

3. In late 2002 Father and Stepmother began having concerns regarding Student’s tickling of people’s feet. His desire to tickle people’s feet had been an issue for him since he was five or six years old. He liked to tickle feet and would sometimes refuse to stop tickling a child’s feet when he or she asked him to stop. Parents would have to intervene. When Sister’s friends were at the family’s home, he tried to tickle their feet and ran his hand up one friend’s leg. She became upset and told her mother. Student gravitated to Sister’s and his stepsister’s (hereafter, “Stepsister⁶ ”) friends and would sit very close to them. The friends who visited their home ranged in age from six to fourteen years old. (Stepmother) At Christmas time, Student’s family was visiting family members. Student followed an eleven-year-old girl around the house and invited her into a bedroom for a foot massage. The child became visibly upset by the incident and told her parents who were concerned and contacted Student’s parents. When Stepsister was six years old there was an incident during which Student wanted to tie her and her friend up with rope. Parents questioned whether that was normal adolescent behavior coupled with Student’s Asperger’s Syndrome or something else (Stepmother, Father)

Stepmother testified that in November 2002 Stepsister began having night terrors and would scream “[Student], get off of me” and “When you do that it hurts” and “I don’t like the pinky thing.” Stepmother would wake her up and Stepsister would beg her not to maker her tell her what happened. Stepsister eventually told Stepmother that Student had touched her. (Stepmother)

Stepmother made phone calls to obtain services for Stepsister and at the time sought services for Student. She began making phone calls in January 2003 and she estimated that she made at least one hundred phone calls in the course of trying to find an evaluator for Student, somebody to provide counseling for him, and ultimately a residential placement for Student. She explained that it was difficult to obtain any level of services for Student. Clinicians would not be willing to see him because they either did not have the requisite experience with Asperger’s Syndrome or they were not qualified to treat Student’s sexual deviance. Parents wanted to be certain that any evaluator they relied upon could make an accurate diagnosis because the consequence of a misdiagnosis could be grave. Parents attempted to find a counselor for Student from January until May 2003. (Stepmother, Father)

Stepmother testified that she called a former business contact at DMR to inquire about services they might provide and learned that they could not offer any services for Student. She asked the same person about DMH services and learned that they would not provide services. She later spoke to a person from DSS who did not encourage Parents to seek services there either. (Stepmother)

Stepmother testified that she wanted to be careful about involving the school district in Student’s issues initially because Parents did not yet have reports indicating that Student’s behavior was not normal. She testified that she spoke to Jan Petrin of King Philip in February and shared her concerns about Student’s behavior with respect to Stepsister and Ms. Petrin did not offer suggestions or indicate that school personnel should be involved. (Stepmother)

Parents sought the opinion of Barbara Schwartz, Ph.D. Dr. Schwartz received her Ph.D. in psychology/criminology in 1977. She is a Massachusetts licensed psychologist, health service provider, and mental health counselor. She is the first person in Massachusetts to be certified by the adolescent sex offender coalition as a sex offender treatment provider. She has worked with both juvenile and adult sex offenders since 1971. Additionaly, she is a forensic psychologist with the New England Forensic Associates and she specializes in sex offender evaluation and treatment. 95 % of her work is evaluating and treating adults and juveniles who are referred by parole officers, probation officers, courts, and guardians ad litem. She estimated that she has either directly performed or supervised 10,000 psychological and sexual evaluations. Parents initially spoke to her regarding their concerns around the tickling and touching of Student’s sister’s friends. She then met with Student on a couple of occasions.

Dr. Schwartz testified that she initially met with Student’s parents and discussed their concerns. She then spoke to Student on two occasions and evaluated Student in her laboratory. She noted that Student had been compelled to move from his home and change schools due to a court order giving Father full custody of Student and Sister. Student reported he was very upset about the arrangement and he resented Stepmother and Stepsister. (P-5) The two evaluations done at the lab, the Abel Assessment of Sexual Interest and the Plethysmograph Laboratory Study, were direct psycho-physiological assessments to measure sexual arousal⁷ . Dr. Schwartz testified that based upon her evaluation of Student and the results of the laboratory test Student showed marked deviant sexual arousal as opposed to universal arousal. He also showed extremely high arousal to sadistic themes on the Abel. He showed arousal to both young boys and adult females on the Phase questionnaire⁸ . She testified that he demonstrated a number of cognitive distortions related to sexual relationships which would be used to excuse and justify sexually inappropriate behavior. (P-5, Schwartz)) Most importantly, she reported that Student admitted to having sexually abused two young boys and alluded to possibly having sexually molested his young stepsister. (Schwartz)

Dr. Shwartz testified that during the evaluation Student told her, “I am a predator.” She believed that he understood the connotations of the word. He told her that he stalks his victims and he targets a person and gets them “out of the pack” and then will go after him or her. He told her he is very aroused by tickling feet. When she asked how he felt about feet he stated, “I adore them…Every time I see them I just have to tickle them.” (P-5) Dr. Schwartz distinguished between tickling of feet that can be fairly innocuous and the behavior Student described. She testified that Student stated he did not care whether the recipient of the tickling liked it. He reported he would not like to be tickled, but he did not care how those that he tickled felt. She was struck that he did not have some justification or rationalization that could excuse the behavior in his mind. He told her, “I don’t think about other people.” She stated that a foot fetish is not an uncommon parpaphilia, or sexual disorder. Dr. Schwartz testified that when they talked about the children Student had molested he had “no remorse and no apparent appreciation of the impact.”(Schwartz, P-5))

Dr. Schwartz testified that she was aware that Student has Asperger’s Syndrome. She opined that regardless of whether Student has social skills deficits as a result of his diagnosis, the sexually offending behavior has to be addressed directly and the technique should accommodate his particular learning deficits. She stated that he presents a danger to other individuals. She was concerned about his behavior because he goes after a wide range of both males and females and has done so even in situations when there were parents present in the home. (Schwartz)

After one of her sessions with Student she called Stepmother and told her that Student reported he had fondled two children. (Father) Dr. Schwartz then contacted DSS in Arlington to report Student’s disclosure. She then called Stepmother who called Father. Dr. Schwartz also suggested that Stepmother call DSS herself. Stepmother called DSS and learned that it would contact the Wrentham Police Department. Stepmother asked to call the police department herself and she called and spoke to the chief detective. The detective called the Wrentham district attorney’s office. The Parents spoke to the district attorney’s office. The district attorney’s office told parents they were doing all they could and they did not make any recommendations. Parents met with somebody from DSS at the Wrentham courthouse. They discussed options such as filing a CHINS petition and custody options. The DSS agent did not encourage either option. (Stepmother)

Stepmother testified that during a Team meeting Sally Winslow gave her a couple of names, including Dr. Scott McLeod. She had already spoken to him and he had told her that he would not work with Student on an outpatient basis and Student required residential treatment in a secure setting. Dr. Schwartz recommended that Parents supervise him constantly until they obtained a residential placement. (Stepmother)

Dr. Schwartz testified that the first concern in treating people who act out sexually inappropriately is public safety. She determined that Student required 24-hour supervision because of the way he described his desire to go after a wide variety of victims. She stated that Student required such close supervision that it could only be provided by residential treatment. She stated that she would first want to focus on “controlling his sexual behavior” because that is the issue that could create victims. She would then look to have the treatment delivered in a setting that can integrate treatment for his Asperger’s Syndrome and the goals of sex-offender treatment. Her recommendation for residential treatment was to protect the community and also to provide the kind of intensive treatment to keep him from engaging in this behavior in the future. She explained that it is important to prevent students from engaging in their deviance because each time somebody engages in deviant sexual behavior it is reinforcing. Whenever possible treatment aims to prevent the self-reinforcing behavior which strengthens the deviance.

Dr. Schwartz stated it is difficult to find group or individual therapy for sexual offenders in an outpatient setting. She also found that residential placement had advantages in that students in the program all have the same sex-offender specific issues. The entire residential community can help to monitor each other’s relapse prevention plans. The sexual issues are out in the open and are discussed and monitored constantly. The residential staff can monitor what students watch on television and monitor phone calls and mail and prevent deviant behaviors with respect to that. The residential program can provide group therapy and address social skills, boundary issues, and healthy sexuality, among others. She testified that the whole idea behind a residential treatment center is to create an environment where everything that goes on in that child’s life is viewed from a therapeutic perspective. The programs typically include educational services, recreational services, family therapy, health services, medication, group therapy, individual therapy, and psychoeducational therapy. The whole milieu of the place becomes geared toward identifying, monitoring and helping a student deal with this kind of behavior. It also provides the opportunity to monitor extensively how kids are coping with high-risk situations. Typically, the kids are taken out into the community for outings. During such outings, the staff watches the students constantly to see how they are interacting with others and later talks to them extensively about whether they were looking at other kids or how they were responding to kids. (Schwartz)

Dr. Schwartz testified that she rarely recommends residential placement for a student. Her recommendation with respect to Student was based upon his having committed three sexual assaults and his deviant sexual arousal as assessed by the plethysmograph and ABEL assessment results and his self-report. She was also concerned that Student’s behavior was completely egocentronic. “It was something that he was almost proud of.” He did not see any problems with his behavior. (Schwartz)

Stepmother testified that Student required constant supervision at home. Some nights she slept on the couch outside his door to make sure he did not get up. Student was not allowed in the same room as the girls and Parents had to ensure that he did not sneak in to the room with them. Parents always had to know where Student was. When the family was outdoors they had to make sure Student did not go near the neighbors’ young children. Stepmother testified that providing that amount of supervision was exhausting, stressful and emotional. The supervision continued from February 2003 until Student went to Highpoint. (Stepmother)

4. In a letter dated March 18, 2003, Father informed Principal Craig Hardiman that Parents had had Student evaluated at New England Forensics in Arlington due to concerns about Student’s possibly exhibiting sexual behavior problems. He informed Mr. Hardiman that they were expecting to receive a written report and would like to schedule a Team meeting to review it. He also informed Mr. Hardiman that he thought an alternative placement “would be in order.” (S-36)

5. Parents received Dr. Schwartz’s report in April 2003. Stepmother explained that Parents sought a second opinion because they did not want to take the “huge step” of placing him residentially without a second opinion saying it was necessary for Student’s and the community’s safety. (Stepmother) In May they consulted with Craig Latham, Ph.D. who met with Student and wrote a report. He did not conduct an independent evaluation of Student. (P-7) Dr. Latham described Student’s fetish for tickling that “dates back to early childhood, when he saw a Bugs Bunny cartoon in which one character was pretending to be a mannequin a shoe store and another character pulled off his shoe and tickled his foot.” He recounted how Student has tickled many people, often against their wishes and has described many pleasurable sensations associated with the activity, including sexual arousal. He explained that Student had described the urge to tickle, even before it took on sexual dimensions as he entered adolescence, as almost irresistible, regardless of any punishment that might result. He determined Student is “almost completely unaware of the needs and wishes of others in the moment, and it is only with prompting that he can even consider the perspective of another. Many of the factors that serve to inhibit sexual urges in adolescents, including empathy, the ability to use non-verbal cues and facial expressions to tell if someone is fearful or in distress, and awareness that young people could be frightened by sexual activity, do not inhibit [Student]’s behavior.” He explained that Student’s lack of awareness is due to Asperger’s Syndrome. He agreed with Dr. Schwartz’s assessment that Student is at high risk to continue the type of inappropriate sexual behavior he has already engaged in, “namely fondling younger children under the guise of tickling.” He disagreed with Dr. Schwartz’s use of the word “predator” with respect to Student. He found Student’s use of language to be concrete and sometimes idiosyncratic and thought his use of the word predator was more “cartoon-ish” than the way adults interpret the word. He did find that Student has little awareness of his sexual urges, is oblivious to social conventions and laws about what is appropriate and inappropriate sexual behavior, and is aroused by almost anything having to do with sex and adolescent females.

He agreed with Dr. Schwartz’s conclusion that Student is at high risk to try to fondle male and female children, and at a somewhat lesser risk to try the same behavior with peers because he is aware that they would resist and tell authorities. He concluded that given the intensity of Student’s urges, he requires constant supervision to ensure he does not touch others. He stated that treatment in a home setting would not be possible even if the supervision were adequate. He agreed that Student should be treated in a residential facility that is familiar with Asperger’s Syndrome clients who engage in sexually inappropriate behavior. (P-7)

6. Once they had corroborating reports, Parents felt that Student had a problem about which they had to inform the school. They wanted to protect other students and ensure Student did not re-offend. (Father) They gave copies of the reports to Mr. Hardiman. He later called Parents and told them Student would be home-tutored for the last two weeks of school because the school did not have time to set up additional security measures to monitor Student. King Philip sent one of Student’s teachers to his home to tutor him for the last two weeks of the year. There was no Team meeting prior to the commencement of tutoring. There was a meeting attended by Mr. Hardiman, Sallyanne Winslow, Father, Stepmother, and Donna Madore, Student’s guidance counselor, during which Father signed an authorization for tutoring from June 2 through June 13. (S-31, Winslow) Sallyanne Winslow, the former Director of Special Education for King Philip⁹ , testified that she became aware of the reports when Mr. Hardiman and Ms. Petrin called her and told her they had received the reports. She testified that King Philip wanted to take a closer look and sought an evaluation from Barry Plummer, Ph.D. (Winslow)

7. Student went to his grandparents (hereafter, “Grandparents”) home to live for the summer because Parents worked during the day and Student could not be left alone. Two incidents occurred during the summer which caused Parents concern. First, a young boy was visiting Grandparents. During the visit Grandparents noticed that Student had left the room and when they found him he was alone with the young boy and had removed the boy’s shoes. The second incident occurred during an afternoon when Student was outside and on a swing set by himself. A girl, approximately thirteen years old, sat in a chair near Student and began reading a book. Student approached her and began asking her questions about the book. Then he tickled her beneath her chin and asked her if she wanted a foot massage. The girl left the area and reported the incident to her mother who called the condominium security department. Parents assured security that they would not allow Student to be alone again and explained that they were seeking help for Student. (Father)

8. Barry Plummer, Ph.D., testified that he has a Bachelor’s degree , Master’s degree, and a Ph.D. in psychology. He is an adjunct clinical assistant professor at the University of Rhode Island and a clinical associate professor at Brown University Medical School’s Department of Psychiatry. He is a licensed clinical psychologist in Massachusetts and Rhode Island. He specializes in children and adolescents and has worked with hundreds of students on the higher end of the autism spectrum, many with diagnoses of Asperger’s Syndrome or PDD (NOS). His primary specialties include post traumatic stress disorder, depressive affective disorders and high functioning autism. He consults with many residential schools and with public schools and collaborative programs in Massachusetts and Rhode Island. (Plummer)

Dr. Plummer testified about the primary characteristics of a person presenting with Asperger’s Syndrome¹⁰ . He explained that King Philip requested that he evaluate Student to provide a diagnostic opinion regarding an appropriate educational program for him that would assess his tickling behaviors and any deviant sexual behaviors that may be associated or separate from that behavior¹¹ . He stated that the second and “more important” part of the evaluation was to provide a second opinion about Student’s social functioning and adaptive cognitive functioning.

Student’s teachers identified him as having difficulty understanding how to interact with others, preferring solitary activities, and having considerable difficulty with age appropriate social skills. They also noted his interest in cartoon characters. During the clinical interview of Student, he explained that during the tickling incidents his initial intent with each child had been just to tickle them “a little bit.” He explained that “I just wanted to tickle them but then I got overexcited.” Student related his “obsession and strong interest in tickling” to the Bugs Bunny cartoon described in Dr. Latham’s report. Dr. Plummer explained that Student pairs the tickling and the excitement that occurred in that cartoon. He noted, “This developed into a behavioral combination of self-stimulation and arousal. As he got older the tickling merged with sexual feelings and impulses and he sexually offended two children and attempted to molest a third.” (P-8, S-26) Student continued the behavior and it became more repetitive and preoccupying to him. He would seek out that contact and it began to merge with sexual interests that he had and he began to blur the boundaries between the two. He essentially began to see the tickling as sexual excitement. Dr. Plummer testified that , “It’s kind of hard to separate the two and say one is distinct as a sexual offending behavior and one is just Asperger’s Syndrome. The two are really merged.” (Plummer)

Dr. Plummer diagnosed Student as follows in accordance with the DSM IV.

Axis I: Asperger’s Syndrome

Paraphilia, Not Otherwise Specified

Depressive Disorder, Not Otherwise Specified

Axis II: No Diagnosis

Axis III: Non-contributory

Axis IV: Psychosocial and environmental factors: Change in living arrangements,
parent-child problem, limited contact with his mother

Axis V: Global assessment of functioning (current) 45-50
(See P-8, S-26)

Dr. Plummer testified that the Asperger’s Syndrome is the most comprehensive developmental issue affecting Student’s life. Therefore, anything for which he is treated needs to consider his Asperger’s Syndrome. He explained that paraphilia (NOS) means that it does not classically fit any of the DSM IV sexually deviant behaviors, but in his opinion is clearly deviant behavior. He noted that Student had clinical levels of depression and he noted Student’s confusion and anger about moving from his Mother’s home had not been adequately addressed. Student told Dr. Plummer he missed his mother. He noted that Student had suicidal ideation in the past, particularly around the time that he went to live with his father. He testified that Student’s three main areas of need were safety, in terms of his sexually offending behavior; his need to receive intensive intervention for his Asperger’s Syndrome; and depression stemming from feeling uprooted and confused by the changing roles in his family. (Plummer)

Dr. Plummer concluded that Student has many unresolved issues regarding his parents’ divorce, misses his old school and routines and has considerable confusion about emerging sexual feelings and identity. He noted Student’s intonation was flat and he spoke in a “formal tone.” He identified “significant problems with pragmatic language” and difficulty understanding idioms and colloquial phrases. (P-8, S-26)

Dr. Plummer reported there was “considerable concern about Student’s risk to sexually offend other children if he is left unsupervised.” With respect to the tickling behavior and subsequent sexual arousal and molestation, Dr. Plummer noted Student “appears to be at very high risk to continue this behavior unless intensive and vigorous treatment is offered.” Rather than viewing Student’s behaviors as predatory, Dr. Plummer described Student as “an extremely unskilled and emotionally immature young man who is easily aroused with the habitual tickling behavior. This pattern which has been previously programmed leads him to the sexual behavior. His insight and ability to regulate this is extremely limited.” (P-8, S-26, Plummer)

9. Dr. Plummer recommended that Student consult with an individual psychotherapist familiar with both sexual offending behaviors and pervasive developmental disorders. He also requires family psychotherapy and careful supervision around younger children. He recommended that Student participate in group social skills training and group treatment for adolescents with sexually offending behaviors and pervasive developmental disabilities. He recommended a more therapeutic, highly structured and supervised educational program in order to prevent the possibility of sexually offending age mates, to more vigorously introduce social communication skills, and provide a smaller and more predictable atmosphere. He recommended that pragmatic language be stressed and that social scripting and social stories geared toward teenagers with pervasive developmental disabilities be used to teach him more adaptive social communication strategies. (P-8, S-26, Plummer)

10. There was a Team meeting on July 30, 2003 attended by Parents, their advocate (Barbara Silva), Jan Petrin, Dr. Plummer, and Sallyanne Winslow. (S-25, Winslow) There was disagreement among the Team members regarding an appropriate program for Student. Parents were ultimately seeking a residential placement for Student, although Dr. Plummer testified that they were open and very interested in looking for community-based services for Student. (Plummer) King Philip personnel told Parents that Student’s issues were concerning, but were not the school’s responsibility. Dr. Plummer thought that residential placement was beyond the scope of Student’s educational needs and thought his educational needs could be met in a less restrictive setting. (Winslow) The Team recommended placement at the Bi-County collaborative (BICO) because they believed his Asperger’s Syndrome had not been properly addressed in the past and could be better addressed in a self-contained collaborative setting. Student could also be more effectively monitored in that setting. (Father, Winslow, S-23)

The Team drafted an IEP for the period from September 3, 2003 through June 30, 2004. (S-22) The IEP states that Student’s primary diagnosis is Asperger’s Syndrome. It references Students 2002 WISC III scores placing student in the low average range of cognitive functioning. It mentions Student’s delays in fine motor, perceptual/sensory motor skills, language, attention, and social development and inconsistent functional language. The IEP references Dr. Plummer’s testing and his opinion that Student demonstrates rigid, inflexible thinking, compartmentalization of ideals, difficulty with problem solving, difficulty articulating his emotions to others, limited social behavior, and difficulty interacting at age appropriate levels with peers. It also states that it is important for staff working with Student to be aware that there were some recently reported incidents of inappropriate sexual behavior outside of the school environment. The IEP lists a number of accommodations. (See page 3 of 13.) Student’s goals focus on the areas of academics, language pragmatics/social skills, and study and organizational skills. Student’s “Other Educational Needs” are identified as: adapted physical education, social/emotional needs, communication, behavior, and other: study and organization skills, sensory integration skills. (S-22)

11. The service delivery grid contains services provided on last year’s IEP and services to be provided during the 2003-2004 school year¹² . There is a provision for a consultation with the special education staff 1 x 15 minutes per week. All services are to be provided in a substantially separate setting. Student is to have speech/language with a speech language therapist 1 x 57 minutes per week. His English is to be provided by a special education teacher 6 x 57 minutes per week. His mathematics is to be provided by a special education teacher 6 x 57 minutes per week. Science, history, and study skills are each to be taught by a special education teacher 6 x 57 minutes per week. He is to receive social skills with a speech language pathologist 6 x 57 minutes per week. (S-22) In a letter dated August 20, 2004, Joyce Foster, the Director of Clinical Services at BICO, informed Sallyanne Winslow that BICO found Student to be appropriate for their Secondary Therapeutic Program (STP). (S-20)

12. Dr. Plummer testified that it would be “unethical” to place Student residentially without having first attempted out-patient treatment. He testified that he thought Student’s needs could be met through the use of “wrap around services” in addition to his school program. He thought these services could include an in-home behavioral health aid to offer “rehabilitative services and parenting suggestions.” He suggested that specialized foster care may also be an option for Student, but conceded that there was nothing a specialized foster care setting could provide that Parents could not. He was very clear in stating that it is not enough to just address Student’s Asperger’s Syndrome and assume that the sexually offending behavior would go away because of the interconnectedness of the two for Student. (Plummer)

Although Dr. Plummer had some ethical concerns about some of the testing methods used by Dr. Schwartz and did not agree with her use of the word “predator” to describe Student, he did not disagree with her ultimate conclusions regarding the degree of risk of Student reoffending against children and potentially against same age peers. He said it would be ideal for Student to go to a supervised setting with peers and be involved in a highly structured recreational activity as part of an after school program. He specified that the program would have to be staffed by adults familiar with psychiatric issues and it would be important for Student to be supervised. Although he believed that “wrap around services” were necessary for Student, he believed they were not the school’s responsibility and stated that in Rhode Island other agencies provided such services for Student. He was not aware of where one could find such services in Massachusetts. He also testified that Student’s program should include a summer component. (Plummer)

13. Although Parents believed Student required a residential placement they agreed to visit the BICO program. Because they had not identified an appropriate alternative, Parents agreed that Student would try the BICO program. Father partially rejected the IEP on August 28, 2003, noting “I accept all offered services and reject the adequacy of the IEP.” On the placement determination form Father indicated his consent for the placement and wrote, “with the reservations noted on the IEP signature page.” (S-17)

14. Student was not able to return to the family’s Wrentham home because he had molested Stepsister and tickled Sister’s friends. Father and Student rented an apartment in Plainville where they lived. Student attended the BICO program during the day. He could not be left alone after school so somebody picked him up at the apartment each day and brought him to Father’s office where he would wait until Father was done with his work. (Father)

15. Larry Fine testified that he is the program director of the Secondary Therapeutic Program (STP) at the BICO Collaborative. He was a special education teacher for twelve years and is certified in special education (K-8) and mild-moderate special needs (pre-K – 12). He testified that the STP program is specifically designed for students with Asperger’s Syndrome, autism, and atypical syndromes. (Fine) Students in the program have a history of learning problems, inappropriate social skills, and emotional fragility. Usually, maladaptive behaviors have interfered with their ability to be successful. (S-1)

Mr. Fine described the program as it existed in September 2003. There were 18 students in the program. Fourteen of the eighteen students were diagnosed with Asperger’s Syndrome. Academic classes had three to eight students in them. There were three classrooms, three teachers, two full time paraprofessionals and one who was present three of five days per week. There was a speech language pathologist on site for portions of three days. The program follows the Massachusetts Curriculum Frameworks. (Fine)

Mr. Fine testified that Student was placed in a “quiet” homeroom because he knew Student liked to sit and read and did not like a great deal of conversation going on around him. There were six students in the classroom and five of them had Asperger’s Syndrome. The homeroom teacher also taught Student’s science and history classes and he was working toward his Master’s degree in special education. He had worked in the BICO summer program for a number of years. Student’s math teacher, Ms. Wood, had prior experience working a BICO program for students with Asperger’s Syndrome and was the mother of an autistic child. Student’s reading, English and language arts teacher had worked at BICO for eighteen years with students who were autistic and had Asperger’s Syndrome and was a certified reading specialist. (Fine)

Mr. Fine testified that he did not specifically recall Dr. Schwartz’s or Dr. Latham’s reports, but he did recall Dr. Plummer’s report. He did not have concerns regarding the safety of Student’s peers in the program and he believed the program could meet Student’s needs. He believed Student was appropriate for the BICO program from the beginning of his placement. He described Student as initially presenting as withdrawn and quiet and stated it was difficult to get Student to interact until a staff person initiated some kind of interaction. Student had difficulty initiating conversations and felt very comfortable just sitting and reading quietly. He explained that sometimes staff allowed him to sit and read for his own comfort level and sometimes they tried to encourage him to be more social. He testified that Student did “loosen up a little bit” during his attendance at BICO. He began to feel more comfortable and would initiate conversations. There was one incident of inappropriate behavior when Student put his hand on a female staff person. A number of staff people who observed the incident did not think it was sexualized behavior when Student took the female’s arm to look at her watch. The staff discussed the inappropriate behavior with Student afterward and “scripted” with him about how he could have behaved better and how one should approach someone to ask for the time. (Fine)

Mr. Fine testified that he did not increase staffing in the program because Student was attending. He testified that there was always a teacher and a paraprofessional in Student’s class as there was in all classes. He testified that there were two or three other students in the program with issues regarding sexualized behavior that the staff sees as an outcropping of the Asperger’s Syndrome and the students being socially inept. (Fine)

16. Mr. Fine testified that students have a social break from 9:45 –10:00 a.m. each day during which the staff hopes they will interact socially with one another. During that time and during lunch students are allowed to sit and talk informally without being part of a structured group. It is supervised by staff, but Mr. Fine asks staff to sit back and observe how students act and with whom they interact. There is little staff facilitation. From 1:05-1:50 p.m. on Mondays and Wednesdays there is a pragmatic language group that is “generally driven by the speech language pathologist.” On Tuesday and Thursday the social woker, Erin Ruane, ran a social group. He testified that staff try to look at students differently than they would in a classic behavior kind of program. When a Student exhibits a behavior they try to assess what caused it. They do not deal with the behavior punitively. The staff believed Student was making progress in the program. Mr. Fine believed Student was making progress on his IEP goals and objectives. He thought the STP program could continue to meet Student’s needs. (S-7, Fine)

17. Student’s November 12, 2003 progress reports from BICO showed he was making progress in English/Language Arts and mathematics. He continued to work on acquiring pragmatic language skills and improving socialization skills. He was making progress in study and organizational skills. (S-13) His first quarter report card showed the following grades: English 9: B-; World History: B; Pre-Algebra: A-; Earth Science: C; Current Events: B. Student’s effort and behavior were rated as average in all academic areas except for earth science in which it was rated “needs improvement.”(S-14)

18. Erin Ruane Kuehn testified that she is a licensed clinical social worker and a certified school social worker. She worked at the BICO program in the STP program for two years. She has attended 4-5 workshops pertaining to autism spectrum disorders and the staff consulted with autism specialists weekly. She was at the STP program three days per week where she met with students for individual and group counseling regarding social skills development. She testified that Student’s participation was average as compared to his peers. He was not completely involved but did participate at least moderately. In her individual sessions with Student she worked on getting to know him and building rapport before he left the program. There was a speech language pathologist in the program who worked on social skills. She never saw Student touch another Student inappropriately. She testified that she did not have concerns about the safety of Student’s peers or her own personal safety as she had previously worked with sexual offenders in a residential placement. She never saw Student engage in behaviors that she would think of as sexually inappropriate. (Ruane Kuehn)

19. The Team reconvened on November 17, 2003 to review the educational assessment and occupational therapy evaluation. The IEP drafted at the Team meeting was essentially the same as the IEP issued after the July 2003 meeting. The service delivery grid provided for 1 x 15 minutes of consultation with the special education staff and the C grid provided for study skills with the special education teacher 6 x 57 minutes per week and “out of District” with the “OOD Staff” “5/360 min/week.” (S-12)

20. Parents’ attorney sent a letter, dated November 18, 2003, to Sally Winslow withdrawing Father’s consent for Student’s placement for the 2003-2004 school year. The letter also advised Ms. Winslow of father’s “intention to enroll [Student] at the Hillcrest Educational Center no later than December 5, 2003. (S-11)

21. Student began attending Highpoint, which is part of the Hillcrest Educational Center on December 4, 2003. (P-15) Highpoint is a chapter 766 approved private school¹³ in Lenox, Massachusetts that “specializes in the treatment of adolescent males who exhibit sexually abusive behaviors, behaviors which pose a potential risk to the safety of others.” Most Highpoint students are also diagnosed with psychiatric disorders, learning disabilities, and/or mild mental retardation. Each student’s Comprehensive Treatment Plan is individualized according to the student’s problem behaviors, cognitive ability, diagnosis, history of trauma, ongoing family relationships and level of risk. (P-10, P-31)

22. Susanna Wall testified that she has been the Educational Director at Highpoint School since September 2000. She has a Master’s degree in Education with a concentration in special education and is certified in special education (5-12). She has attended workshops and consults with experts in the field regarding sexual offending behaviors. New teachers at Hillcrest receive several days of training regarding the diagnoses of the students and the behaviors they may see. They also receive training in verbal intervention strategies and physical intervention techniques. Their training is not specific to sexual offending, as teachers from all the schools that comprise Hillcrest receive the same training.

Ms. Wall described some of the interventions that are used with the sexual offending population at Highpoint. An example she explained was that a staff person might notice a student staring at another student. First the staff person would ask the student if he was aware he was staring and then the staff person would check to see if the student had an erection and if he did, would assume that the starer was staring to sexually arouse himself. Students are aware that staff monitor such behavior and they are aware that they are there for sexual offender treatment. Students are told that there are no secrets at Highpoint. The staff person would call the offending student’s clinician and write an incident report and share information with other staff persons working with the offending student such as residential staff who would then keep a closer eye on the two students. Staff members are not always able to tell if a behavior is sexual. The staff person would ask the student and look at the surroundings. When Highpoint began accepting students with Asperger’s Syndrome they realized that students with Asperger’s Syndrome may stare as a symptom of Asperger’s Syndrome and not for sexual pleasure. They had to educate themselves and the staff about Asperger’s Syndrome. (Wall)

Ms. Wall reviews all of the incident reports daily and passes information along to the staff. Staff observe students at all times. There is a rule that no student at any time can be out of “earshot” or “eyeshot” of a staff person. The reason for the rule is that many of their sexual abusive behaviors have occurred in secrecy or with coercion, with one student trying to get someone away from other people where he or she would be less safe. A student would be “documented” for “secret communication” if he violated the rule. A second rule is that no staff and student are allowed to go to an isolated area on or off campus by themselves. There are cameras all over the campus including inside the classrooms and in the driveway. Staff carry walkie-talkies. (Wall)

Ms. Wall wrote her thesis on sexual offenders. The research she has read suggests that group therapy is the preferred form of treatment for adolescent sexual abusers. The reason is that one adolescent who is a sexual offender may be quicker to pick up on another sexual offender’s behavior. It will be more effective and better treatment for that student if another student who has engaged in the same behavior confronts him. Confrontation may happen in any setting twenty-four hours a day. An example of confrontation would be one student telling another student he is staring at someone or telling a student that they are speaking out of earshot of a staff member. Safety is the first priority at Highpoint. (Wall)

There is not a speech language pathologist on staff, but the assistant consults with one. Ms. Wall believes that many of Student’s teachers have participated in a conference last year about Asperger’s Syndrome. Each student receives individual therapy for 45 minutes per week and group sexual offender therapy for ninety minutes per week. Each student also receives 90 minutes of adventure-based therapy each week. Students rotate through some psychoeducational groups that include social skill groups.

Ms. Wall is not aware of any incidents of Student inappropriately touching any other Student or engaging in any sexual activity at Highpoint. Student has not required any physical intervention. Staff members may use increased repetition when dealing with Student and ask him if he knows what is being asked of him. She has seen staff repeat and ensure understanding of language with Student. She has observed Student almost every day since he has been at Highpoint for some portion of the day. The academic portion of the day starts at 9:00 a.m. and ends at 3:10 p.m. There were 9-11 students in Student’s classes from 12/03 – 6/04. There were three adults in each classroom: one teacher, one teaching assistant, and one academic assistant. The teaching assistant remains in the classroom and the academic assistant accompanies students as they transition from one class to another. Student’s classes included other students diagnosed with Asperger’s Syndrome. Social skills activities take place in all settings including dormitories. The activities include role modeling and role playing. There is not a social skills class, but there are social skills groups. Ms. Wall was not sure whether student had been in a social group. (Wall)

23. Ms. Wall believes Student has made academic progress at Highpoint and has shown improvement in his social skills. She knows that from her own observations and from reading progress reports, attending treatment team meetings, and speaking to Christina Marks, Student’s therapist. When Student first arrived at Highpoint he would spend a great deal of time during the academic day reading a book. Ms. Wall testified that she had recently observed Student participating in a Jeopardy game in which he shouted out “all the answers.” She told Father about the Jeopardy game and he said he had also seen improvement in Student’s social skills. The speech language assistant told Dr. McLeod and Ms. Hodgins that she had seen improvements in Student’s social interactions. Ms. Wall believes Student is doing well socially and academically at Highpoint. (Wall)

24. Christina Marks has been a clinician at Highpoint for four years. She provides both individual and group therapy to Student. She has been under the supervision of people who have experience in the field of sexual offending and has been to a number of trainings regarding students with sexual aggression. She has her LICSW certification. (Marks)

Ms. Marks testified that the students she works with range in age from 13-18. Students are grouped by age and diagnosis. She has worked with approximately fifty students in the past four years. The students at Highpoint have diagnoses of conduct disorder, major mental illness and Asperger’s Syndrome. (Marks)

In addition to providing therapy, Ms. Marks interacts a great deal with staff and students in the evenings. She looks at treatment planning and consults with direct care staff in the residence mostly regarding the implementation of the plans. She also consults with some academic staff. There is some consultation between academic and residential staff. (Marks)

Ms. Marks leads relapse prevention groups in which she uses cognitive behavior therapy and self-talk. She orients students to the basic concepts of sexual consent and the different forms of sexual abuse. She works on laying a foundation and setting up language for treatment. She works on “going into the work of disclosure where a student takes an inventory of the various behaviors he had engaged in and the potential consequences and real consequences.” The groups are held early in the day because it is difficult for Asperger’s Syndrome students to get through the day with all of the social pressures. She finds it is helpful to capture their attention at the beginning of the day. (Marks)

Ms. Marks explained that traditional treatment for adolescents with conduct disorder or behavior disorder has been centered on respecting authority and following rules. It tends to be confrontational and it relies on a great deal of insight and intervention on the part of a student which is something in which students with Asperger’s Syndrome are delayed. With students with Asperger’s Syndrome, they have to use an approach that is less confrontational and more psycho-educational at the beginning. They also have to use a great deal of repetition. There needs to be an emphasis on social skills and emotional regulation skills rather than simply telling them what they did was wrong and that they must take responsibility. Many times students with Asperger’s Syndrome will admit to what they did. They may not understand the implications of what they did. (Marks)

Ms. Marks has done an extensive amount of reading on Asperger’s Syndrome. There is not a great deal of research combining juvenile sexual offenders and students with Asperger’s Syndrome. She does not consider herself an expert, but has learned a great deal about Asperger’s Syndrome and is adapting the Highpoint program to meet the needs of that population. She is currently working on a journal article regarding “reflecting on and reconsidering juvenile sexual offending treatment along with Asperger’s Syndrome.” Dr. Craig Latham comes to Highpoint every month and meets with clinical staff regarding the implications of Asperger’s Syndrome on treatment and how to modify the program. He talks about the differences in approaches in treating students with conduct disorders versus treating students with Asperger’s Syndrome. He has been consulting for over a year. He consults regarding various students including Student. Dr. Helen Brey-Garetson, whose specialty is Asperger’s Syndrome and sexual offending behavior, provides some supervision and consultation to staff. Ms. Marks communicates with her frequently and she is also working on the aforementioned journal article. The focus of her consultation is supervising Highpoint’s lead clinician, Fran Ray. Ms. Ray’s role is to help to further develop and improve the treatment program. There has been a special focus over the past several months on adapting the program to students with Asperger’s Syndrome. The direction of the program is shifting toward Asperger’s Syndrome and major mental illness instead of conduct disorder. There has been an identified need to change the program over a year ago and they have been actively making changes since them. (Marks)

Ms. Marks met Student when he was admitted to Highpoint. She drafted Student’s preliminary treatment plan and his history and presenting treatment goals. She has read the reports written by Dr. Latham, Dr. Schwartz, and Dr. Plummer and relied on them in drafting the treatment plan. Student’s treatment needs include intensive treatment for sexual offending issues or sexual aggression and inappropriate sexual behavior. Her approach with Student is behavioral, repetitious, limit setting, and structuring his day around what are appropriate and inappropriate social interactions. Safety is a concern. Someone is required to be aware of where Student is at all times and with whom he is interacting. His weekly individual therapy targets and addresses his history of sexual aggression and looks at ways to recognize urges and to prevent and manage them. It addresses how an urge is triggered and there is a great deal of planning and revamping strategies for Student to use to divert himself from acting. The approach she takes with Student, due to his Asperger’s Syndrome, is less confrontational and more about trying to understand how Student makes sense of the world. His use of language is very different than other people’s. What she initially assumes he means is often very different from what he means. She asks him many questions about how he presents himself during their meetings. She provides him education about the meaning of various terms including coercion. Student is very logical and literal. Because of his impaired ability to read non-verbal cues she would have to ask Student if it was possible that the victim put up some resistance. He did not understand that he could still use coercion if he did not use force and the person seemed to go along with what he was doing. She takes a great deal of time to work on perspective taking with Student and helping him see how the world is interpreting him because it is not an automatic understanding for him. (Marks)

Ms. Marks discussed the relapse prevention group/sex offender treatment groups she leads. Student’s group has five students who have all been assessed as having Asperger’s Syndrome or very similar issues regarding social skills, emotional regulation, and people reading skills. None of the students have conduct disorder. The staff tries to keep students with conduct disorder separate from the students with Asperger’s Syndrome. In Ms. Marks’ group the students share written work and review concepts of what offending behavior is, what is abusive behavior, what is not consenting. Student presents to the group for feedback. The group practices communication skills and assertiveness skills. They discuss how one addresses or values another person in the group. Disclosure work is an important part of the group. Disclosing involves disclosing what one’s offenses were and how one has victimized others or put others at risk. Students take inventory and more importantly, talk about what was going on that precipitated their behavior. They talk about how it can be controlled in the future. The group discusses situational and emotional factors. Ms. Wall explained that as an adolescent being in the presence of peers can be very influential. If a peer says something to a student it can go further than a therapist saying the same thing. The staff is working on creating another treatment group about Asperger’s Syndrome and is going to the residential staff and consulting regarding approaching students with Asperger’s Syndrome differently. (Marks)

Ms. Marks has been working with Student on appropriate interactions and making small talk with peers. She’s helping him to understand how his non-verbal cues are coming across to others. She thinks the interventions she uses with Student are helpful. She has seen changes in him since his arrival at Highpoint. He has become much more expressive in his daily interactions with staff and he is more spontaneous in terms of initiating and continuing conversations which is “huge” for him. He has a tendency to “wall himself off” and stare off in space and talk to himself as a way to isolate himself from the world. There has been “an expansion to the range of his affect.” He is more interactive with peers than he was. Previously, when a peer addressed him staff would have to prompt Student and ask if he heard what the peer said to him. Now he is more attuned to the social environment which can lead to his understanding of how he impacts the environment and help him feel less isolated. (Marks)

Ms. Marks saw problems with Student early on in terms of his getting into others’ personal space and not recognizing boundaries. Student’s self-reported problem of looking at feet and being sexually aroused was another issue for him. During the summer of 2004, Student went on a field trip to an ice cream stand in the community. Staff are vigilant about watching students’ behavior when they are in the community. They noticed Student was staring at a family with two young girls and giving undue attention to them. When asked about it, Student acknowledged that he had been feeling sexual urges and preoccupation. Another issue for Student involved boarders who live in his mother’s home. He has never met them, but he knows they have two small children. He persistently asks his mother about them and staff tries to redirect him. He has even asked his mother for pictures of them and when she denied his request he asked if she could “at least” describe the children to him. Ms. Marks testified that the significance of his interest in the children is that the age of children he asks about is similar to the age of the persons he has previously targeted. Also, it shows a lack of insight on his part. He does not understand how it comes across and makes others uncomfortable and he does not understand it is not appropriate for a sixteen year old to be asking about young children who are strangers. Additionally, there was a specific student who was involved in three of Student’s incident reports. The incidents involved Student staring at his buttocks and issues of Student getting in his space. (Marks)

25. Ms. Marks testified that Student’s issues are not limited to a particular age group based upon his self-report. He has targeted his teenage sister’s friends, and younger girls and boys. None of the incidents which lead to Student’s Highpoint placement occurred during the school day. She would not conclude that it would be unlikely to occur during the school day. She thinks that without proper supervision and treatment there is an appreciable risk that Student would reoffend. She would be concerned about early adolescents and younger children as well as vulnerable, less socially skilled and mentally impaired peers Student could manipulate or wear down. (Marks)

26. Stepmother testified that when Student first went to Highpoint he constantly tried to negotiate with Father to go home. She stated that since he has been there his relationship with her has improved. Student has moved from the orientation phase to phase one. He has taken initial acceptance of what he did to warrant his placement. Student initially resisted doing his homework and he did not want to do written work. He has made great progress in completing his assignments. Stepmother was at two of his quarterly progress meetings. During the second meeting Student participated more and was more verbal. He was able to talk about his goals and was attentive and responsive to people who gave him feedback. (Stepmother)

27. Ms. Winslow testified that she was not familiar with the Highpoint program and had never been responsible for a student placed there prior to Student’s placement there. She contracted with consultants, Lori Hodgins and Dr. Scott McLeod, to observe the program and advise her as to whether it was meeting Student’s needs particularly with respect to his Asperger’s Syndrome. She testified that the consultants contacted her after their observation and reported that they were concerned that Student’s needs were not being addressed. They told her that the program had little knowledge or experience in working with students with Asperger’s Syndrome and that Student’s classroom had students with various disabilities grouped together. (Winslow)

28. Scott McLeod, Ph.D. testified that he has his master’s degree and doctorate in clinical psychology and is licensed as a psychologist in Massachusetts. He works at Massachusetts General Hospital Charlestown as a staff psychologist and as executive director of Youthcare which runs a series of programs for working with children on the autism spectrum, provides school consultation and some social skills groups and has a therapeutic summer camp in Charlestown and Westwood. Dr. McLeod has a particular interest in Asperger’s Syndrome and group therapy and working with programs that provide services to children with Asperger’s Syndrome and autism spectrum disorder. He has worked with 200-300 students with Asperger’s Syndrome. (McLeod)

29. Lori Hodgins testified that she is the Director of Educaton and Training at MGH Charlestown Youth Care. She consults with school districts regarding Asperger’s Syndrome and high functioning Autism and develops staff training programs and leads social skills groups. She also oversees summer programs for Youthcare. She estimated that she has consulted regarding or worked with 250-300 students with Asperger’s Syndrome. She is certified in intensive special needs (N-12), moderate special needs (N-9), and elementary education (1-6).

30. Dr. McLeod and Ms. Hodgins observed Student at Highpoint on May 5, 2004 from 10:00 a.m. until 2:30 p.m. (S-4) Neither one had ever evaluated Student. Prior to his observation Dr. McLeod reviewed Sally Winslow’s list of “program observation questions”¹⁴ . (S-5) His understanding with respect to questions regarding Student’s “educational” needs was that educational meant academic and that was the perspective from which he was assessing the appropriateness of the program. (McLeod, Hodgins)

When they arrived at Highpoint, they met with Susanna Wall, the Education Director, who gave them an overview of the program. They met with Matt Moroney, the assistant who spends much of the day with Student. They observed a “life skills class” and a group speech class lead by the speech language assistant and they later spoke with the assistant. They spoke to Student’s homeroom teacher and observed Student at lunch. Finally, they met with Christina Marks, Student’s social worker. (McLeod, Hodgins, S-4)

Both Dr. McLeod and Ms Hodgins reported concerns regarding the observations they made of the program. During the lifeskills and group speech session, Dr. McLeod did not see any social pragmatic instruction. He noted students were working individually and the teacher and assistant were helping them. Student was focused on his work and relatively attentive to it. He was concerned that the civics lesson students were completing was at a grade level far below Student’s reported abilities. Ms. Hodgins was concerned by the use of abstract language by the teacher because she was not sure that Student could understand it. She was concerned that there were no visual supports and students did not use graphic organizers during a writing assignment. (McLeod, Hodgins, S-4)

During the group speech lesson, Ms. Hodgins noted that she would have expected to see desks set up so as to encourage interaction instead of in the traditional rows that she saw. On cross-examination she conceded that she did not know if the classroom set up was appropriate for a program dealing with paraphilia and sexual offending disorders. She would have expected to hear an explanation of the skill students would be working on, some practicing of the skill and interacting, and then a summary of the skill and feedback provided to the students regarding their performance. She did not see any of that. The class was worksheet based and the students answered staff directed questions and did not interact with one another. The teacher told her that she was working on turn taking and social courtesies. (Hodgins)

Ms. Hodgins testified that social communication skills are a key component in an educational program for a student with Asperger’s Syndrome. Social skills instruction should happen throughout the entire day and all staff should understand Student’s goals and use a consistent approach and consistent language with him. (Hodgins) She had significant concerns regarding Highpoint’s ability to address Student’s needs as they pertain to his Asperger’s Syndrome. Dr. McLeod did not see direct social skills instruction, although Ms. Marks told him she provides it during therapy. He believes Student requires direct social skills instruction. He agreed that learning how not to offend other children is a social skill. (McLeod) Ms. Hodgins did not see the kind of social skills instruction she would expect to see in a program designed to meet the needs of students with Asperger’s Syndrome. She never saw Student interact with a peer or a staff member try to facilitate peer interaction. (Hodgins, McLeod, S-4)

Ms. Hodgins and Dr. McLeod thought lunch would be a prime time to work on Student’s social communication skills and there should be goals and objectives for him during lunch. Dr. McLeod observed that during Student’s lunch time he was focused only on his lunch and did not have any conversations with peers. Student did respond when Matt Moroney initiated a conversation with him. (S-4, McLeod, Hodgins)

Neither Dr. McLeod nor Ms. Hodgins thought the staff was familiar with Student’s specific issues. Dr. McLeod did not think there seemed to be a coordination of care about what Student’s specific behaviors or social treatment goals were. They asked each person they met about Student’s goals and did not get a consistent answer. Dr. McLeod stated that he did not see communication between providers that would allow for carry over instruction regarding issues being worked on from the school to the residential setting. He did not have the opportunity to speak to any of the direct care providers from the residential setting. (McLeod, Hodgins)

Dr. McLeod was concerned that Student was grouped with few children on the autism spectrum because he would have expected that a program geared toward students on the spectrum would have more students similar to Student. He did not find the program to be appropriate for Student and would want the focus of the treatment for the sexual offender behavior to be on his Asperger’s Syndrome. (McLeod)

Ms. Hodgins did not think Student requires a residential program to make effective progress. She believes he needs an intensive program during the day with intensive instruction in social skills and a strong home component to ensure skills are being transferred. She testified that Student’s need for supervision does not end when the school day ends and stated that he requires a “family plan” with strict guidelines on social skills instruction similar to how it is done in school. She stated that student requires carry-over beyond the school day. She would like to see Student in a community based social skills group once per week to give him the opportunity to practice the use of social skills in another structured facilitated setting. It would be important for continued carry over and the opportunity to practice skills with peers. (Hodgins)

Dr. McLeod testified that he observed the BICO program by himself because Lori Hodgins was unavailable. He observed students transitioning into school and observed “their early classroom” which he described as “social time.” He noted there were staff present who were part of the conversations students were having. He did not observe any social coaching. He spoke with the social worker and two teachers who had previously taught Student. From his conversations he concluded that the staff he spoke to understood how to appropriately address Student’s needs related to Asperger’s Syndrome. (McLeod)

Dr. McLeod testified that he had some concern about recommending BICO as an appropriate placement for Student. It seemed the staff would need some support in making sure there was sufficient staff available to keep an eye on Student. None of the school reports indicated that Student had ever engaged in sexual behavior in school. He recommended training for staff in the area of sexual offending or sexual behavior of children with Asperger’s Syndrome. He believed with additional staff support at BICO the program would be effective for Student in terms of his educational and social needs. His concern regarding Highpoint was that his understanding was that the sexual activity was an outgrowth of his Asperger’s Syndrome and they were not actively treating the Asperger’s Syndrome. He believes that until the Asperger’s Syndrome is addressed, it may not be possible to end the sexually inappropriate behavior. (McLeod)

Dr. McLeod agrees that Student’s sexually acting out behavior is a serious concern that must be addressed or there could be dire consequences for Student and the community. He was not familiar with Dr. Plummer’s entire diagnosis and needed to refer to his report to recall Student had been diagnosed with paraphilia and depressive disorder in addition to the Asperger’s Syndrome diagnosis. He has never evaluated Student and paraphilia is not his specialty. (McLeod)

He asked BICO staff whether they had observed Student engaging in any offending behaviors. They only behaviors they reported that resembled the offending behaviors were issues with eye contact, staring and personal space issues such as hovering too close to female staff. The staff did not perceive the behaviors as having a sexual component. One teacher reported being confused about how to differentiate between behaviors that were caused by Asperger’s Syndrome and what might be more serious offending behaviors. The hovering too close could be sexual or could be a poor social skill, as could the staring. BICO as a program does not have experience in dealing with sexual offenders. Dr. McLeod testified that he did not see the BICO program setting as a risk for Student because he believed that only young children were at risk around Student. He testified that if peers were among the population at risk he would make sure Student had continual adult supervision. He said Student would need a 1:1 aide or a person to always have Student in his or her sight. This person’s core duty would be to watch Student. The staff at BICO found that to be challenging. Dr. McLeod did not think that Student’s having a 1:1 aide would impact upon his social interactions. He thought others would not notice. (McLeod)

Dr. McLeod testified that he was not aware of any community group homes or schools that have experience in dealing with children on the autism spectrum who are sexual offenders. He said one would have to understand the behavior and what is causing it and use a variety of approaches. He said one could address the behavior by discussing it verbally. Rather than treating the sexual offending behavior, he would treat Student’s understanding of what he is doing and come up with interventions what will address the behaviors from Student’s point of view. He would talk to Student about getting too close to people and about how close he can be to people and how they react if he touches them and they have not asked to be touched. He would want to break down the behavior into very discrete behaviors and work on “the whole picture.” He thinks Student’s treatment should focus on his Asperger’s Syndrome and once those symptoms are treated the sexual offending behaviors will stop. (McLeod) Dr. Plummer strongly disagreed with that hypothesis during his testimony. (Plummer)

Dr. McLeod thinks a residential program would be beneficial to Student if it were based on the kinds of techniques and approaches he testified about for treating Asperger’s Syndrome. He thinks there would be lots of opportunity for Student to work on many of his issues in a residential program. His sense of Student is that he would not require that level of care in order to address his sexual behavior. (McLeod)

31. Student received the following grades during the 2003-2004 academic year at Highpoint. There are no first quarter grades reported because he began attending in December 2003.

2d quarter 3d quarter 4 th quarter

Science 74/C 87/B+ 74/C

Social Studies 84/B 88/B+ 86/B+

Math 74/C 85/B+ 88/B

Language Arts 75/C+ 85/B+ 90/A

Life Skills 70/C 88/B+ 90/A

Between the third and fourth quarters Student’s behavior assessments as reported on his report card decreased in some areas. His rating went from “satisfactory” to “needs improvement” in: effort in class; completes work carefully; works independently; time on task; and attitude. His rating on frustration tolerance went from “improving” to “needs improvement” during the same time period. (S-59)

32. The Team reconvened on June 25, 2004. The BICO STP program was again proposed. The A and B service delivery grids contained no services. The C grid proposed academics with BICO staff 27 hours per week; social skills with “BICO/SAC” 2 x 45 minutes per week; and adaptive physical education 2 x 45 minutes per week. This IEP also identified Student’s “Other Educational Needs as: adapted physical education, social/emotional needs, communication, behavior, and other: study and organization skills, sensory integration needs. (S-22) The record is unclear as to whether Parents provided a written response to the IEP. (S-48)

FINDINGS AND CONCLUSIONS:

The first question before me is whether the IEP proposed by King Philip for the 2003-2004 school year is reasonably calculated to provide Student with a free appropriate public education (FAPE) in the least restrictive environment. Neither Student’s eligibility nor his entitlement to FAPE is in dispute.

FAPE requires that the individual education program (IEP) be tailored to address student’s unique needs in a way reasonably calculated to enable him to make meaningful and effective educational progress in the last restrictive environment¹⁵ .

To assess whether King Philip’s IEP was reasonably calculated to provide Student with FAPE in the LRE, it is necessary to review Student’s unique needs as known by the Team at the time it proposed the IEP. Prior to the Team meeting Dr. Plummer diagnosed Student with Asperger’s Syndrome, Paraphilia, Not Otherwise Specified, and Depressive Disorder, Not Otherwise Specified. (Plummer, P-8) He testified and explained to the Team prior to the drafting of the IEP, that Student’s three main areas of need were safety¹⁶ , his need to receive intensive intervention for his Asperger’s Syndrome, and depression¹⁷ . (Plummer)

The Team also had access to the reports written by Dr. Schwartz and Dr. Latham. Those reports indicated that Student had sexually offended children in the community and in his home. The reports contained recommendations for Student to receive intensive treatment to prevent him from engaging in such behavior in the future. The reports indicated that Student required very close supervision while in the presence of young children and to a lesser extent in the presence of his peers. Dr. Latham’s report indicated that Student is almost completely unaware of the needs and wishes of others in the moment, and only with prompting can even consider the perspective of others. (P-7) The Team was aware that Student’s teachers had described Student as having difficulty understanding how to interact with others and having considerable difficulty with age appropriate social skills. The Team was also aware that Dr. Plummer had stated that it is difficult to separate the Asperger’s Syndrome from the sexual offending behavior as “the two are really merged.” (Plummer, P-8, S-26)

Despite having all of the aforementioned information before them, the IEP drafted by the Team provides for direct services in primarily academic areas and completely ignores crucial areas of need, namely Student’s sexually offending behaviors and his depressive disorder. The very evaluator chosen by King Philip to assess Student’s needs, Dr. Plummer, testified that Student’s sexually offending behavior and his Asperger’s Syndrome were interconnected. It is perplexing then that King Philip would conclude that it was responsible to address Student’s Asperger’s Syndrome, but could ignore an interconnected part of his disability.

Additionally, Student should have received counseling to assist him in processing all of the changes occurring in his life. King Philip witnesses provided a great deal of testimony which showed that Student was angry and upset when he was uprooted from his mother’s home and his school district and forced to live in another home and attend a different school district. They seemed to conclude that Student’s behavior was caused by the changes occurring in his life. Dr. Plummer reported that Student has many unresolved issues regarding his parents’ divorce and missed his prior school and routines. He also stated that he “lacks the insight and ability to regularly articulate his emotions to others.” He concluded that Student counts on feedback from adults to help regulate his behaviors and understand what to do socially. He found that Student is easily overwhelmed with emotions, sensory information, and unstructured situations. (P-8, S-26) Despite having read Dr. Plummer’s report and having direct access to him at the Team meeting, the Team did not provide any services in Student’s IEP that would assist him in articulating his emotions to others regarding the disruptions in his life. Despite the Team’s awareness that Student counts on feedback from adults to help regulate his behaviors, the Team did not provide a way for Student to receive feedback from adults (such as counseling) either during the school day or after the school day ended.

Dr. Plummer recommended that Student and his famiy receive family psychotherapy and consultation “in order to help the family further develop social communication, pragmatic language, and sensory integration strategies that would be helpful in his treatment.” Dr. McLeod and Ms. Hodgins explained the importance of all people working with Student to use the same approach to encourage carry-over of his skills. Ms. Hodgins testified that she would like to see Student in a community based social skills group to give him an additional structured setting in which to practice social skills with peers. She testified that the social skills group would be important to enable Student to carry over his skills into other settings. She also thought he required a home component to his program to ensure carry over of social skills to that setting. Although the Team was aware of the recommendation for family therapy and consultation and carry-over of social skills, they did not offer such services in the IEP.

Without yet assessing the necessity of a residential placement, based upon the foregoing deficiencies, I find the BICO placement was not reasonably calculated to provide Student with FAPE in the LRE.

The second issue before me is whether Student requires a residential placement to receive FAPE in the LRE. An IEP providing for a residential program is appropriate only if the severity of the student’s special needs is such that he cannot make educational progress in a less restrictive environment even with the use of supplementary aids and services. See 603 CMR 28.06(f). The First Circuit has approved residential educational placements for students who need a comprehensive, 24-hour, highly structured special education program that would address a student’s social and behavioral needs in a consistent manner. David D. v. Dartmouth School Committee , 775 F.2d 411 (1 st Cir. 1983)

The United States District Court of Massachusetts was presented with a case, factually similar to the case at bar, in the matter of Mohawk Trail Regional School District v. Shaun D. , 35 F. Supp. 2d 34 (D. Mass. 1999) Shaun D. was a student with a complex set of diagnoses including post-traumatic stress disorder, pedophilia, paraphilia, dysthymic disorder, and mild mental retardation, among others. Similar to Student, Shaun D. inappropriately touched children outside of the school setting and consistently acted appropriately in the school setting. In that case, the court concluded that Shaun D. “presents a unique case. His out-of-school behavior was not only related to various recorded diagnoses, but was inextricably intertwined with his educational performance.” ( Id .) In the Shaun D. case, there was expert testimony recommending that Shaun D. be placed residentially to address his inappropriate out-of-school behavior. Similarly, in this case, there was credible expert testimony that Student’s Asperger’s Syndrome is “merged” with his paraphilia and requires residential treatment. Also, similarly, Student has never acted sexually inappropriately in the public school setting, but has acted sexually inappropriately in the community.

The experts in this matter have all testified that Student requires services beyond the regular school day. The King Philip Team identified Student’s educational needs as including social/emotional needs, communication, and behavior. (S-22, S-48, P-1) As such, Student’s services must address each of the aforementioned educational needs. The dispute in this case is not that Student requires services after the school day has ended, but rather, who is responsible to provide those services. Dr. Schwartz recommended a residential program to address all of Student’s needs in a community geared toward preventing re-offending. Dr. Latham concluded Student is “almost completely unaware of the needs and wishes of others” as a result of his Asperger’s Syndrome. He found Student had little awareness of his sexual urges, is oblivious to social conventions and laws about what is appropriate and inappropriate sexual behavior, and is aroused by almost anything having to do with sex and adolescent females. He recommended a residential placement for those reasons. Dr. Plummer found that Student’s three main areas of need were safety, in terms of his sexually offending behavior; his need to receive intensive intervention for his Asperger’s Syndrome; and depression. He stated there was “considerable concern” about Student’s risk to re-offend against children. He too found Student’s insight and ability to regulate himself to be extremely limited. He described a program that he believed would meet Student’s needs as one that included a highly structured and supervised after school program. He also recommended behavioral services in the home. He recommended that Student receive individual, group and family therapy. He initially indicated that specialized foster care may be an option for Student, but conceded that Parents could provide anything that a specialized foster family could provide. He did not recommend residential placement for Student because he thought it would be “unethical” to recommend that without having tried less restrictive options first. However, the law does not require that a student must fail in every less restrictive setting before being provided with a residential setting. Dr. Plummer also testified that he did not believe that it was the school’s responsibility to provide all of the “wrap-around” services he testified to Student’s needing. He stated that in Rhode Island there were state agencies that provided wrap around services and he was unaware of whether such services existed in Massachusetts. (Plummer) It appears that King Philip did not believe that there was a state agency responsible for providing any services to Student, as they did not seek to join any agency at any time in this proceeding. Dr. McLeod testified that Student’s sexually acting out behavior was a serious concern that was imperative to address. He raised concerns about BICO as an appropriate placement because the staff did not have the training to work with a sexually offending student. He testified that a residential program would be beneficial to Student if it were based upon techniques and approaches used to treat Student’s Asperger’s Syndrome. He testified that with some modifications BICO could meet Student’s educational needs. However, he testified that he understood “educational” to refer to academic. (McLeod)

I find that each of the aforementioned experts was credible. Although there was some controversy among the experts regarding certain assessments used by Dr. Schwartz, nobody disputed her conclusions regarding Student’s having engaged in inappropriate sexual behavior and being at risk to re-offend. I found that she had the most experience in evaluating students who had engaged in sexually inappropriate behavior of all of the witnesses before me. For that reason, I relied heavily upon her recommendations for treating Student’s sexual offending behaviors. I found that Dr. Plummer was also a credible witness. However, I did not rely upon his opinion regarding Student’s educational placement, because I found that his opinion was based upon his belief that the school was not responsible to provide services to Student outside of the regular school day. He seemed to believe that other agencies would be responsible to provide services to Student as seems to be the practice in Rhode Island where he practices. I did credit his testimony regarding Student’s needs in terms of his Asperger’s Syndrome. I found Dr. McLeod to be knowledgeable of Student’s needs regarding his Asperger’s Syndrome, but did not find him to have expertise in sexually offending behaviors. I did not place much weight upon his or Ms. Hodgins very limited observation of the Highpoint program. They spent approximately one half a day observing the placement and did not observe or speak to any staff from the residential portion of the program. They concluded that anything they did not observe during their limited visit was not occurring in the program. Despite BICO’s failure to address many of Student’s needs, Dr. McLeod recommended it, with some modifications, as an appropriate placement for Student. I did credit Dr. McLeod’s testimony that Student’s sexually acting out behavior is a serious concern. I also credited his testimony that he is unaware of any community group homes or schools that have experience in working with children who are on the autism spectrum and have engaged in sexually inappropriate behavior. I was not persuaded by his testimony that providing Student with a one-to-one aide would not have an impact upon his social interactions with peers. His statement that other students would not notice if Student was constantly accompanied by an adult defied common sense. (McLeod)

I am not persuaded by King Philip’s argument that Parents sought a residential placement simply because Student could not live at home where there was a young child. Dr. Schwartz was credible in her testimony that Student required the reinforcement of living within a community where all of the peers and adults are attuned to the needs of those that have offended sexually. She explained how the entire residential community assists in monitoring one another’s relapse prevention plans. Ms. Wall testified that at Highpoint students remind one another when one is breaking a rule such as speaking out of earshot of the staff. Dr. Schwartz explained that the whole idea behind a residential treatment center is to create an environment where everything that goes on in that child’s life is viewed from a therapeutic perspective. The whole milieu of the facility becomes geared toward identifying, monitoring and helping a student deal with his sexually offending behavior. She also explained how the residential program provides students the opportunity to carry over their skills in the community while being supervised during field trips. She was concerned about Student’s egocentric view of his behavior which the record shows was caused by his Asperger’s Syndrome. (Schwartz) Since the experts agree that Student’s Asperger’s Syndrome has not been adequately treated in the past, there is an even more compelling reason for providing his treatment in a residential setting where his social skills can also be reinforced across all settings. Student requires a great deal of instruction and reinforcement in all areas of social skills.

Student, like Shaun D., had “cognitive distortions justifying sex offending behavior, has inadequate knowledge of sexuality and poor interpersonal skills with peers. … It is this combination of behavioral, emotional, cognitive and organic factors which forms the unique contours of Shaun’s special education profile.” See Mohawk Trail Regional School District v. Shaun D. , 35 F. Supp. 2d 34 (D. Mass. 1999) Like Shaun D., Student’s combination of social/emotional, communication, behavioral and academic needs form his unique profile of special education needs. Therefore, I find that Student requires a residential placement for educational reasons. In order for Parents to be entitled to reimbursement for their unilateral placement of Student at Highpoint, I must now determine whether the placement provided Student with a FAPE. Parents who unilaterally place their children without the consent of state or local school officials are entitled to reimbursement if they demonstrate that the program and services offered by the school district are inappropriate and that the program and services that they obtained privately were appropriate. School Committee of Town of Burlington v. Department of Education of Massachusetts. 471 U.S. 359, 369-70 (1985) I have already determined that the BICO program was inappropriate for Student. I now turn to the appropriateness of Highpoint.

As I previously stated, I did not rely heavily upon Dr. McLeod’s and Ms. Hodgin’s opinions regarding Highpoint due to the limited observation and discussions upon which their opinions were based. I did rely heavily upon the testimony of Christina Marks. Ms. Marks, as Student’s individual and group therapist, knows Student better than any of the other educators or evaluators who testified. She spends a considerable amount of time with Student each day and is familiar with the services that he receives on a daily basis. She effectively rebutted King Philip’s assertions that Highpoint did not have sufficient experience with students with Asperger’s Syndrome to meet Student’s needs. While she admitted that she herself is not an expert in Asperger’s Syndrome, she has read extensively about the needs of students with Asperger’s Syndrome and she demonstrated an understanding of how to modify Student’s treatment sessions and other areas of his program to meet his. She gave several examples of ways that she modifies Student’s sex offender therapy to ensure that he understands what she is saying despite his Asperger’s Syndrome. Additionally, she and the clinical staff consult with Dr. Latham and other experts in Asperger’s Syndrome regularly. She was credible in her testimony that Highpoint is in the process of changing its program to better meet the needs of student’s with Asperger’s Syndrome.

Although there are students attending Highpoint who have been diagnosed with conduct disorder, those students are segregated from the students with Asperger’s Syndrome to a great extent. There was no testimony that Student has been impacted by the presence of students with conduct disorder in the same facility. For therapy, academics, and the residential portion of the program, he is grouped with other students with similar disabilities, including several other students with Asperger’s Syndrome, and not with any students with conduct disorder. Student continues to make academic progress as he had at BICO as evidenced by his report card. (S-59) The program is 766 approved and follows the Massachusetts Curriculum Frameworks. The only criticism of the academic portion of the program was Dr. McLeod’s and Ms. Hodgin’s opinion that the Lifeskills lesson was taught at a low level for Student. However, I cannot assume based upon one observation of one classroom that the academic portion of the program is insufficient for Student.

I find that the Highpoint program provides carry over across all settings for Student as recommended by Dr. Schwartz, Dr. Latham, Dr. McLeod, Dr. Plummer, and Ms. Hodgins. Ms. Wall testified that all staff are trained to write incident reports about any incident they observe pertaining to all students. Ms. Wall reviews all of the residential reports each morning and provides the school-day staff with pertinent information when necessary. Ms. Wall explained that this process enables staff to monitor more closely any student who was involved in any incident in the residential setting. She explained that each afternoon when students return to their dorm the group “circles up.” Each student reviews his day and states his personal goals for the residential period. Students then participate in activities such as swimming. These activities provide another opportunity for practicing social skills in a supervised setting. Ms. Wall also explained how each student assists one another in following their relapse prevention plan. She stated that if one student observes another breaking a rule (such as speaking out of earshot of a staff member) the student will remind the rule breaker.

Ms. Marks testified as to how she provides carry-over between the residential and academic portions of the day. She testified that she interacts with both students and staff during the residential portion of the day. She works with the direct care staff in the residential part of the program and she consults with the academic staff. She testified that there is some direct interaction between the residential and academic staff. She explained that Dr. Latham and other experts in Asperger’s Syndrome consult with the clinical team. She explained that supervision of Student carries over from the academic to the residential portion of the program and the staff in both settings are always aware of Student’s whereabouts.

Ms. Marks explained that social skills are practiced in all areas of the program. She teaches Student social skills during group therapy and provides opportunity for Student to practice them with the group. She testified that she goes to Student’s residence two evenings per week. She consults with the residential staff regarding working with Student and the students work on social skills at that time. She speaks to Student whenever she is in his residence. There is a social skills group in the residence during weekends. She explained that she is currently working on starting a therapeutic group specifically for Asperger’s Syndrome. There is a social skills specific therapy group that each student rotates through. The record was unclear as to whether Student has participated in that group. If he has not, he should do so as soon as possible to allow him another opportunity to practice social skills in a structured setting.

Ms. Marks’ testimony regarding Student’s participation in the field trip to an ice cream stand is an example of practicing social skills in the community. Staff observed Student inappropriately staring at young children and ensured the safety of Student and the family and spoke to him regarding the incident afterward. Ms. Marks was also notified of the incident and was able to speak to Student.

Ms. Marks was credible in her testimony that Student has made progress in his social skills while at Highpoint. She explained that Student is still not a “social butterfly”, but he is now “more attuned to the social environment” at Highpoint. (Marks) Student’s Parents were also credible in their testimony that Student’s relationships with both of them had improved while he has been at Highpoint.

Ms. Wall testified credibly that Highpoint could meet Student’s needs in the area of his sexually offending behaviors. She described ways that the staff monitor students and make students aware of their own behavior.

The record shows that Highpoint is able to meet Student’s needs in each of his identified areas of need. The clinical staff has an understanding of how to modify the program for students with Asperger’s Syndrome and are continuing to educate the rest of the staff about ways to work with such students. Highpoint is able to address Student’s social skills deficits.

For the foregoing reasons, I find that Highpoint provides Student with a free appropriate public education. BICO did not meet Student’s needs in all identified areas. Because I have found that Student requires a residential program and BICO is not a residential program, it cannot be modified to meet Student’s needs. Student requires a residential placement to make educational progress. Therefore, Parents are entitled to reimbursement for Student’s unilateral placement at Highpoint.

ORDER

King Philip shall reimburse Parents for the costs they have incurred in placing Student at Highpoint.

King Philip shall convene a Team meeting for the purpose of drafting a current IEP for Student reflecting his placement at Highpoint. The Team shall include staff from Highpoint. The IEP will address all areas of Student’s educational needs including academic and therapeutic. The IEP will also reflect Student’s need for a summer program as recommended by Dr. Plummer. The IEP shall require consultation between the academic and residential staff to ensure that there is sufficient carry-over between Student’s day and evening program.

By the Hearing Officer,

____________________________________

Catherine M. Putney-Yaceshyn

Dated: November 23, 2004

1

The hearing officer allowed the school’s assented to request to postpone the August 5, 2004 date due to the sudden illness of counsel for the school district. An order was issued adding another date of hearing, September 9, 2004.

2

Ms. Ruane Kuehn testified via speaker phone per agreement of the parties.

3

Exhibits S-2 and S-3 were withdrawn by King Philip after Parents objected to their admission.

4

Much of the first day of hearing was spent conducting an in camera review of clinical records that had not been previously provided to the hearing officer.

5

Student’s father got married during the course of the hearing. For consistency, I will refer to his now stepmother as Stepmother throughout the decision. When referring to Father and Stepmother collectively, I will refer to them as “Parents.”

6

Stepsister is the daughter of Stepmother.

7

Dr. Schwartz provided a detailed description of the testing that was done in the laboratory. I do not feel that including a detailed description in the decision would further the reader’s understanding of the issues in dispute or the legal analysis of the issues. Additionally, none of the expert witnesses disputed Student’s diagnosis of paraphilia. As such, I have not included a detailed description and would refer interested parties to the transcript of August 4, 2004 and to Dr. Schwartz’s report. Although other witnesses have raised concern about the use of the assessments, they did not dispute Student’s diagnoses or his need for treatment. Their dispute centered on the level of services required and the setting for providing said services.

8

“The phase is a questionnaire which measures adolescent attitudes toward sex.” (P-5)

9

Ms. Winslow was the Director of Special Education for King Philip from October 1999 until August 2004.

10

He explained that social relatedness and communication are areas of difficulty for persons diagnosed with Asperger’s Syndrome. The second area he highlighted was an impairment in the ability to regulate one’s self in areas that may involve sensory integration. He stated that students with Asperger’s Syndrome tend to have “special areas of interest, repetitive behaviors, and ritualistic patterns that help to bind their anxiety and regulate themselves.” He described how students with Asperger’s Syndrome often “get stuck” which occurs when they have difficulty regulating their inertia. He explained that it may be difficult for a teacher to get a student to stop engaging in an activity in which he is involved or difficult for the student to become engaged in an activity when given a directive. (Plummer)

11

Dr. Plummer’s report indicates he used the following evaluation instruments: consultation with staff; consultation with parent; clinical interview; review of records; Conners Rating Scales (parent and teacher versions); the Australian Scale for Asperger’s Syndrome; Beck Anxiety Inventory; Beck Depression Inventory; ADHD Rating Scale- self-report version; Thematic Apperception Test; Rorschach Inkblot Technique; Tasks of Emotional Devemopment’ Projective Drawings.

12

I make reference only to the services pertaining to the 2003-2004 school year since that is the time period before me for consideration.

13

The hearing officer takes administrative notice of the school’s approval as neither party provided evidence to show that it was 766 approved. Both the Massachuetts Association of 766 Approved Private Schools and the Hillcrest Educational Center websites identify all of the Hillcrest Educational Center programs as being 766 approved.

14

He testified that he also reviewed the reports written by Dr. Schwartz and Dr. Latham, and Student’s prior IEPs. (McLeod)

15

See In re: Arlington, 37 IDELR 119, 8 MSER 187, 193-195 (SEA MA 2002). See also 603 CMR 28.05(4)(b) (Student’s IEP must be “designed to enable the student to progress effectively in the content areas of the general curriculum”); 603 CMR 28.02(9) (“An eligible student shall have the right to receive special education and any related services that are necessary for the student to benefit from special education or that are necessary for the student to access the general curriculum.”; 603 CMR 28.02(18) (“Progress effectively in the general education program shall mean to make documented growth in the acquisition of knowledge and skills, including social/emotional development, within the general education program, with or without accommodations, according to chronological age and developmental expectations, the individual potential of the child, and the learning standards et forth in the Massachusetts Curriculum Frameworks ad the curriculum of the district… .”)

16

He testified that safety related to Student’s sexually offending behavior. (See page 10 of facts.)

17

He testified that the depression stemmed from his feeling uprooted and confused by the changing roles in his family. (Plummer)