COMMONWEALTH OF MASSACHUSETTS
SPECIAL EDUCATION APPEALS
Re: Student v. Lowell Public Schools
BSEA # 02-1497
DECISION
This decision is issued pursuant to 20 U.S.C. 1401 et seq. (the “IDEA”), 29 U.S.C.794, M.G.L. chs. 30A, 71B, and the Regulations promulgated under said statutes.
A Hearing in the above-referenced matter was convened on November 27, 28 and 29, 2001, at the Bureau of Special Education Appeals, Malden, MA, before Rosa I. Figueroa, Hearing Officer. The Record closed on December 4, 2001. Pending issuance of this Decision, an Order was rendered on December 28, 2001.
The hearing followed a request by Parents regarding appropriate placement for a special education student with serious psychiatric issues. A Ruling affirming home tutoring pursuant to a Physician’s Statement For Temporary Home Education was issued on October 24, 2001.
Those present for all or part of the Hearing were:
Student’s Biological Mother
Student’s Biological Father
Student’s Stepmother
Student’s Stepfather
Lisa Martin, Esq. Attorney for the Student/Parents
Richard Ames, Esq. Co-Counsel for the Student/Parents
Dr. Laura Musikant-Weiser Acting Medical Director, Mental Health Association of Greater Lowell, Inc., Community Counseling Center
Dr. Erwin Ilano Medical Director, Lowell Youth Treatment Center
Lori Ann Spencer Special Education Teacher, the Wang School, Lowell Public Schools
Mike Langloise Social Worker, Lowell Public Schools
Carla Correa Social Worker, The Wang School, Lowell Public Schools
Marcia Byrne Team Chairperson, Lowell Public Schools
Gail Feeney School Principal, The Wang School, Lowell Public Schools
Eugene R. Geary, Jr., Esq. Attorney for Lowell Public Schools
Ann C. Murphy Assistant Administration of Special Education,
Lowell Public Schools
On November 23, 2001 the Parents’ filed a motion objecting to four issues. School objected to the motions. Prior to going on the record, the Attorneys and I met to handle some housekeeping matters and to discuss what each of their positions was regarding the motions.
The Parents’ first objection was to the taking of Dr. Bostic’s testimony, one of the witnesses appearing on the School’s list of witnesses, but when School clarified that it would not call him, the issue became moot and the Parent withdrew their objection regarding this matter.
Second, the Parents objected to admission of documents submitted by the School, received on November 21, because these were not filed 5 business days before the hearing. A Ruling overruling the Parent’s request was issued orally and the School’s exhibits were admitted in evidence for the purpose of issuing this decision.
Third, the Parents objected to communications that took place between members of Lowell’s staff and the Parents. I deferred a Ruling on this matter and reserved the Parents’ right to renew their objection at a later time if it became necessary. That was not the case. The objection went to Parents’ concerns regarding communications that took place between members of Lowell staff and the Parents during the course of this litigation. The communications did not occur between Lowell’s Attorney and the Parents, also it was represented that the information shared between them was not going to be used for purpose of the Hearing, but rather was used by Lowell in an attempt to continue to service the Student throughout this period. At the conclusion of the Hearing, the Parents did not renew their objection, and Lowell fulfilled its commitment.
The fourth and last issue dealt with Parents’ concern that it had not received a complete student record from Lowell. Lowell was ordered to produce a new, complete student record to the BSEA by a day certain prior to completion of the hearing. The documents in turn would be made available to the Parents for review. Also, the Parents’ right to submit additional exhibits and/or re-open the case for taking additional testimony regarding new information not discovered prior to Hearing, was preserved. Both sides complied with my order. One additional document to be added to Parents’ Exhibit #54 was received on December 3, 2001, which was admitted in evidence without objection by Lowell. Lowell’s response was received on December 4, 2001. No further taking of testimony was required.
Therefore, Parents’ Exhibits 1 through 84 and Schools’ Exhibits 1 through 24 were admitted in evidence and were considered for the purpose of rendering this decision.
ISSUES PRESENTED
1. Whether the IEP of October 24, 2001, proposed by Lowell Public Schools offers the Student a Free Appropriate Public Education in the least restrictive environment appropriate to meet the Student’s needs and maximize her potential in accordance with State and Federal Special Education Law? If not;
2. Whether the Student’s needs would be appropriately met in a private therapeutic day
program?
POSITION OF THE PARTIES
School’s Position:
Lowell Public Schools (hereinafter, “Lowell”) assert that the Student is in a proper educational placement. Its staff is well trained and committed to help Student maximize her potential. While Lowell recognizes that Student has serious psychiatric problems, they are able to handle her in her current program at the Wang School. DMH should provide an after school program for the Student to address the Student’s mental health issues.
Parents’ Position:
The Student presents with post traumatic stress disorder, psychiatric disorders and depression. Her behavioral issues are a manifestation of her severe mental illness, which have caused her a number of psychiatric hospitalizations since the first grade. Instead of responding in a therapeutic manner to the Student’s behavioral challenges, Lowell has responded with disciplinary action such as suspensions. Lack of a proper response causes the Student’s behaviors to go over the edge and escalate to the point of requiring a hospitalization. The Parents state that Lowell cannot handle her and cannot provide the safe, structured therapeutic environment required by Student. They further argue that changing classrooms for the purpose of mainstreaming disrupts the Student’s concentration, that the student to teacher ratio in many classes does not allow Student to receive the required amount of one-to-one attention and the peer interactions in mainstream specials are detrimental to her learning achievement. They request that Student be placed in a therapeutic day program at Lowell’s expense; a program that will help Student grow educationally and emotionally while developing her skills, a safe place where she can feel confident and flourish as she is a talented child.
FINDINGS OF FACT
· Born on 9/22/1986, Student is a fourteen year old eighth grader at the Ann Wang School (hereinafter, “Wang School”) in Lowell, Massachusetts. (SE-18) No dispute exits between the parties regarding the Student’s entitlement to special education services. The parties disagree as to how they see the Student’s needs or what services are best suited to address her needs. She is described by her Parent as a very artistic child who has a good sense of humor. (Testimony of the Parent)
· During the pendency of the proceedings the Student was homebound receiving four hours per week of tutoring pursuant to a Ruling issued in October 2001 defining “Stay-put” rights. The Student spends two additional hours on school-work. According to the Parent, the Student does very well with the tutor. The stepfather has stopped working and stays home to watch the Student during the day. (Testimony of the Parent)
· Student has been diagnosed with bipolar disorder type II with psychotic features NOS, Obesity and Hypothyroidism. In the past she has also been diagnosed with Mood disorder, Oppositional Defiant Disorder, Post-traumatic Stress Disorder and ADHD. (PE-61; Testimony of Dr. Weiser, Parent) Her severe emotional disturbances have caused her 19 psychiatric hospitalizations between the ages of 7 and 14, three of which occurred during the past year. (PE-4; PE-43; PE-49; PE-58; PE-60; PE-61; PE-62) The first of these hospitalizations occurred when she was in the first grade following an incident at school in Lowell, where her behavior became out of control and she stabbed a classmate with a pencil on the neck. (Testimony of the Parent) The Student has been hospitalized every year since she entered first grade except during the time that she was placed residentially at Cornerstones. (Testimony of the Parent) Most of her hospitalizations have been precipitated by incidents associated with display of inappropriate behaviors at school. (Testimony of Dr. Ilano)
· Student has been on several anti-depressants, mood stabilization and anti-psychotic medications, and is currently on Depakote ER 1000 mg at bedtime, Remeron 50 mg at hs, Seroquel 100 mg twice a day and Luvox 50 mg in the morning, to address her numerous psychiatric and other problems. (PE-60; Testimony of Dr. Weiser)
· Cognitively she functions in the low average range and presents serious deficiencies in the domain of visual processing and processing speed. (PE-43; PE-70; SE-1; SE-2) Auditory processing was found to be a serious weakness by John Leahy in 1998, and an “intra cognitive” strength according to Lori Spencer. (PE-43; PE-70; SE-1; SE-2; SE-9) Comprehension-knowledge and broad reading are seen as intra cognitive strengths for this Student. (SE-2) Student has not required Language therapy in the past. (SE-15)She has poor socialization skills and has not benefited from group treatment in the past. (PE-4) According to the Parent, the Student is five feet four inches tall and weighs approximately 230 pounds, thus, can be very difficult to control. The Student lives with her biological mother and stepfather in a two-bedroom apartment in Lowell. Because of Student’s aggressive behavior, the Student and her sister each have a room while the Parents sleep in the living room. The Student’s biological father and his wife are also very involved in the rearing of Student. (Testimony of the Parent) The Student’s family history also includes household emotional abuse and domestic violence. (PE-60) Both biological parents are remarried. (Id.; Testimony of the Parent)
· A Lowell Public Schools Social History of October 20, 1998, by Carol Rauseo, LICSW, indicates that the Student suffered head trauma resulting from a fall that fractured her skull when she was nine months old. (SE-5; PE-32) This history is confirmed in the abnormal finding, due to prominent asymmetries involving the left temporal region where excessive sharp waves were noted and some right sided paroxysmal theta activity, in an Electroencephalogram of October 16, 1998. (SE-5; PE-71)
· The Student is an active client of the Department of Mental Health (hereinafter, “DMH”). (PE- 4; PE-59; Testimony of the Parent) The family is currently awaiting respite care for the Student to be provided by DMH and a home health aide. (Testimony of the Parent) The Parent however, feels that DMH has offered everything they can to assist the Student and her family. (Id.) Over the years her violent out of control behaviors have included acting out in school and at home, spitting, swearing, removing clothes, banging her head against walls or pipes, running away, stabbing a classmate with a pen, assaulting teachers, hearing voices that tell her to kill her mother or her sister, tearing down everything in her bedroom, throwing things at people, difficulty sleeping, scraping her head with a razor and a needle, etc. (PE-14; PE-34; PE-45; PE-60; Testimony of the Parent) Most recently, her behavior at home has been marked by physical and verbal violence. At the Wang School she has been throwing things, refusing to perform academic work, displaying regressed behavior like lying on the floor, laughing in a silly manner; sitting under desks, whining, singing, banging her head, randomly hitting other students, talking to herself, screaming profanities, tearing up pieces of paper and eating them, crawling on the floor, having hallucinations (seeing spiders), engaging in a flapping/ swinging motion when alone and with staff as well as directing the same type of motion towards staff, defying authority. (PE-15; PE-17; PE-34; PE-45; PE-63; PE-67) During past psychiatric hospitalizations it has been noted that her behaviors can escalate very quickly. (PE-34)
· Parent exhibits 33 through 54 provide ample documentation and support of the Student’s psychiatric, behavioral, academic difficulties and deterioration between 1994 and 1998 in and outside the school. (See PE-33; PE-34; PE-35; PE-36; PE-37; PE-38; PE-39; PE-40; PE-41; PE-42; PE-43; PE-44; PE-45; PE-46; PE-47; PE-48; PE-49; PE-50; PE-51; PE-52; PE-53; PE-54; See also PE-57; PE-58; PE-60; PE-61; PE-75; PE-76; PE-77; PE-78; PE-79; PE-80; SE-7; SE-8) In May 1998 she failed the English Language Arts, Mathematics and Science and Technology portions of the MCAS. (PE-72)
· Student has attended a number of residential, therapeutic and behavioral day programs. (Testimony of the Parent)
· The Student’s behavior seriously deteriorated again between the summer and fall of 1998. (PE-57) During the summer she stayed at The Children’s Connection (hereinafter, “TCC”) over the weekends for a period of approximately three months. This arrangement was then changed in mid October 1998 when Student was placed at TCC residentially, spending the week at TCC and going home over the weekends through December 1998. (Testimony of the Parent; PE-61) She was terminated from Camp Pinecrest as a result of bizarre behavior “where she would become disorganized, laughing and giggling, picking up dirty objects form the grounds (i.e. cigarette butts, rotten fruit, etc.)” (Id.) Staff at TCC reported frequent deterioration in her behavior where she would regress, begin to take her clothes off, gyrate in provocative ways, become agitated, easily overwhelmed and talk gibberish. Student blamed these behaviors on an alter personality named “Angie”. During this period she also heard a voice called “Peter”. (PE-57) When she heard Peter’s voice she became self-abusive and very down on herself. (Testimony of the Parent) Of particular interest while at TCC was an incident on September 16, 1998:
· [Student’s] behavior became both assaultive and abusive at school with psychotic presentation which included, eating paper, crawling on the floor, spitting, using profanity and attempting to expose her breasts. Additionally, she placed her jacket strings around her neck and attempted to bite the plastic ends of the string. Of note, the school reported that the previous day, [Student] was appropriate and had completed all her school assignments. (PE-57)
· On that date, Student was transported to Lowell General Hospital and later to Boston Regional Hospital where she was kept overnight for observation. Student remained at TCC the rest of that semester showing improved behaviors by December of 1998 after several set-backs, including three hospitalizations on October 6, November 4 and November 23, 1998. TCC staff however, recommended long-term residential care with a more intensive treatment than the one TCC could provide through October of 1998. (PE-57) According to the Parent, the Student did not handle this program well. (Testimony of the Parent)
· On October 2, 1998, Boston Regional Medical Center personnel stressed the need for the Student to be enrolled in a structured residential program with a strong behavioral approach and stated that this should have been the recommendation going back to 1997. (PE-34) At that time, her condition was thought to be extremely dangerous. A letter by Lori Spencer, ED/BD teacher at the Wang School, dated September 24, 1998, alerts that the Student was unable to respond to any limits set and that the Student’s inability to make positive choices for herself created an unsafe, unpredictable environment for her and other students in the classroom. At least on one occasion the Student had broken her glasses and placed the lens in her mouth in addition to displaying other inappropriate assaultive, self-abusive behaviors described earlier. (PE-34)
· A psychological and neuropsychological evaluation performed on October 6 and 7, 1998 by Kathleen Silva, Ed.D., Licensed Psychologist at the Boston Regional Medical Center, demonstrated that Student had
· average abilities on straight forward language and visual tasks, but an atypical finding with a slower performance using her right (dominant) hand than with her left hand on a timed test of dexterity and motor precision. She has significant difficulty on all tasks involving attention, concentration and executive functioning, impacting verbal and nonverbal areas. Perceptual problems, particularly evident with complex visual designs, may accentuate [Student’s] difficulty with interpreting the world and her environment accurately and using good judgement. [Student’s] performance on tests of personality functioning, indicates the fragility of her emotional condition and need for constant supervision and support. [Student] is extremely overwhelmed and she has poor reality testing, with violent ideation, defensive use of projection, dissociation and a poor sense of personal boundaries. She is very vulnerable to regression, poor judgement and inability to regulate emotional discharge. As this testing indicates and corroborated by historical data, her high degree of impulsivity and violent ideation could erupt into aggressive acts, and thus, her safety and that of others who are with her should be closely monitored. (PE-72)
· The evaluator was of the opinion that it was imperative for the Student to be placed in a residential program. (PE-72) The recommendation for residential placement had been contemplated in February 1998 by her psychiatrists at Greater Lawrence Psychiatric Associates. (PE-74) Dr. Silva further recommended that individual, family and group therapies should continue, she should receive assistance with organizational and study skills, be evaluated for occupational and physical therapy and be monitored neurologically. She also recommended individual or small group instruction, limiting distractions in the room, and a multi-sensory approach, allow for short breaks and use a behavioral approach with much positive reinforcement. Further educational testing was warranted. (PE-72)
· From January through October 1999, at age eleven, she attended Cornerstones, a DMH funded residential group home with an educational component in Ipswich, MA. (PE-4; PE-9) Lowell Public Schools cost shared funding of the Student in said facility. (PE-9; PE-30) The IEP developed for this placement states in pertinent part of the Student Performance Profile that:
[Student] continues to deteriorate with regressive and disassociate symptoms. [Student] transitioned into Cornerstones after attending the Children’s Connection therapeutic program. [Student] has a longstanding history of behavioral outbursts and some lapses in reality testing. [Student] is diagnosed with Bipolar Disorder and Post Traumatic Stress Disorder.
[Student] exhibits a variety of challenging behaviors in the classroom setting. These behaviors include: difficulty accepting limits, self-injurious behaviors, provocative behaviors and physical/verbal aggression towards staff/peers. At times [Student’s] negative behaviors result in her removal from the classroom. Her low self-esteem, combined with learning difficulties, and other emotional issues make it very hard for [Student] to complete most tasks without 1:1 assistance. (PE-9)
Student responded well to this program. (Testimony of the Parent)
· Lisa Barter, classroom teacher at Cornerstones stated by letter of September 13, 1999 that the Student, then in the sixth grade, was functioning at a 4 th grade level academically. (PE-29) She was described as a vulnerable child who exhibited sexualized behaviors and had a tendency to place herself in situations of being victimized. (PE-29) The Student exhibited extreme difficulty with large group situations, isolating herself from other peers, becoming unable or resisting participation, becoming confused, defensive and often making accusatory statements against peers or adults around her which were often unfounded and displaying infantile behaviors. She was however, able to make progress in all areas and was advanced to the higher level classroom. The Student made statements that she was doing a good job for the first time in school and liked it there. In Ms. Barter’s opinion the Student was growing both socially and as a learner in said environment and recommended that the Student remain there to avoid compromising her progress and growth. (PE-29) While at Cornerstone, the Student made effective progress, although not without incidents, as she responded well to the structure. (PE-56)
· The Student then attended the Laura Lee Alternative School run by Lowell from October 1999 through May 2000, under a 502.4 prototype program IEP accepted in full by the Parent on September 25, 1999. (PE-4; SE-18) Said IEP followed a Team meeting of September 17, 1999. (Id.) The Parent knew little about this program or how well the Student performed there. She described it as very secretive and stated that while the Student was placed there she was not called to come and pick her up when her behavior was difficult. (Testimony of the Parent) During part of this time, Student participated in the South Bay Mental Health after school program until she was terminated after she “rammed a staff person” who “invaded her space” against a wall, at a time when Student was upset and started to take off her clothes. Criminal charges were brought against the Student and she was placed on probation for three months. (Testimony of the Parent) Student was approximately twelve years of age at the time of this incident.
· On May 23, 2000 the Student’s Team met to amend the IEP covering the period from August 2000 through October 2000. It called for special education services in a small group with supports at a location to be announced. (PE-7; SE-18) It proposed to work on improvement of the Student’s socio-emotional and behavioral skills and academic performance across the curriculum. The IEP was accepted in full by the Parent on July 13, 2000. (Id.)
· The Student was assigned to the Wang School, by Lowell, in September of 2000. (PE-4) Following said placement the Team meet again on October 19, 2000 with participation of the Parents. (PE-6; SE-18) An IEP covering the period from October 2000 through October 2001 was issued that would address the Student’s socio-emotional, behavioral skills and academic performance across the curriculum in a small group setting. (PE-6; SE-18) Under the terms of this IEP the Student participated in the ED/BD program and was mainstreamed for specials such as family consumer science, art, physical education, world language and technology education. (Testimony of the Parent, Ms. Spencer) The ED/BD classroom includes a total of six students, three males and three females, whose abilities range from the 4 th to the 8 th grade approximately, and range in age from 13 years to 15 years. (Testimony of Ms. Spencer) As part of this IEP a functional behavioral plan was developed to address the Student’s needs in two areas. The Functional Behavior Plan provided the following:
Area 1: Development of Self Monitoring Strategies
Problem Area: [Student] needs to enhance her ability to recognize when she is becoming agitated or experiencing any other emotion that may be causing her to become too internally stimulated. She is working on developing her own system of recognizing these internal cues.
Intervention 1: [Student] will recognize overwhelming emotions and immediately ask staff to leave the classroom. [Student will process the situation with Mrs. Spencer in order to help her regain her composure. [Student] will then recommence her academic focus.
Intervention 2: [Student] will require staff re-direction when she becomes “behaviorally stuck”. [Student] may exhibit behaviors such as pouting, slouching, and lowering her head. When staff observe these behaviors, this is the cue for staff to suggest [Student] to exit the classroom and return to Mrs. Spencer’s room. Again, the goal is to recommence academic focus.
Area 2: Social Skill Building
Problem Area: [Student] demonstrates difficulty maintaining age appropriate behavior along with positive peer interactions within the school setting.
Intervention 1: [Student] will require additional non-confrontational staff support in order to assist with everyday social situations that may arise within the school environment.
Intervention 2: [Student] will require verbal/ non-verbal cues from staff when she appears to be having a difficult time in the classroom and she is unable to respond to a situation in an appropriate manner. (PE-6; SE-10)
The Parent accepted the plan in full on December 12, 2000. (PE-6) As part of her program, the Student participated in a social skills group with eight other students in sixth through eight grade who were highly functional and developmentally appropriate. (Testimony of Mr. Langloise) The group was supposed to meet once per week but did not meet consistently throughout the year. (Id.) The first sessions were very difficult for the Student as her level of anxiety was quite high and she displayed psychotic episodes (i.e. she got into an altercation with a perceived entity in another part of the room.) (Testimony of Mr. Langloise) In Mr. Langloise’ opinion, Student and he developed good rapport by the end of the school year, and Student made progress in issues relating to her self-esteem and problem solving. (Testimony of Mr. Langloise) Mr. Langloise also served as consultant to the special education teacher, Lori Spencer. (Testimony of Mr. Langloise)
· On November 20, 2000, Lori Spencer, the Student’s special education teacher at the Wang School, drafted a behavioral contract for the Student. (See PE-84, Ms. Spencer’s Curriculum Vitae) The Student had been demonstrating inappropriate and infant-like behaviors, and teachers had serious concerns as to whether she could demonstrate and maintain appropriate/acceptable behaviors in school. (PE-28) The contract attempted to promote “clear, basic understanding of behavioral expectations” in school and expected the Student to put forth an honest effort to meet the desired expectations. The Team would be convened if the Student were unable uphold the contract. The contract required the Student to:
1. Attend each designated Allied Arts class as scheduled with compliance.
2. While in class, fully participate in content areas in an appropriate fashion (ie. raising hand before speaking, sitting in chair appropriately, no speaking out of turn).
3. Not get out of her seat unless it is with permission from the teacher.
4. Refrain from negative attention seeking (infant-like behaviors).
5. Ask for assistance from teacher if she is unable to solve a social dilemma independently.
6. Not leave the classroom without permission.
The Student signed the contract but was unable to adhere to it. (PE-28; Testimony of Ms. Spencer)
· From April 5 th through May 23, 2001, the Student was admitted at the Lowell Youth Treatment Center (hereinafter, “LYTC”) affiliated with the Westwood Pembroke Health System. On May 23, 2001, Dr. Edwin Ilano, physician/psychiatrist, recommended that the Student be placed in an alternative school such as a therapeutic day school upon discharge. (PE-4; PE-24; see also PE-83, Dr. Ilano’s Curriculum Vitae) At the time of this hospitalization the Student presented with symptoms of depression, as well as episodes of agitation and out of control behaviors. (PE-4)
· Via letter to the Parent of May 17, 2001, Darcie M. Nuttall, LMHC, also recommended a structured therapeutic educational environment with a behavioral based system in place. (PE-26) In her opinion the experiences of the Student at the Wang School demonstrated that her needs went far beyond school based therapy. She did not rule out the possibility of residential placement. (Id.) A Wang School Report for the 2000-2001 school year indicates that while the Student appeared to be making an honest effort in the classroom, she was challenged daily by social peer interactions. (PE-27)
· On May 28, 2001 the Parents wrote to Janice Adie, Administrator of Special Education in Lowell informing her of the Parents’ rejection of the IEP and requesting that the Student be placed in a therapeutic day school such as St. Ann’s School or the Lighthouse School. (PE-24)
· The hospitalizations on May 9 and May 28, 2001 were due to difficulties at home and in school. (Id.) According to Dr. Ilano, she was also seen at the Lowell Youth Treatment Center in June 2001. (Testimony of Dr. Ilano) During the May hospitalization the Student attempted to hang herself with a strip of gauze she obtained from another peer and was found to be very mood labile, hypersexual and made provocative remarks towards staff and peers. (PE-60)
· On July 16, 2001, Lowell forwarded to the Parent an evaluation consent form which proposed that the Student be evaluated while attending the Wang school in Lowell. (PE-4) While at the Wang the Student would undergo an educational and a psychological evaluation, and a social history would be gathered. The Parent accepted this proposal in full on July 20, 2001. As a result, the Student attended the Wang School at the beginning of the 2001-2002 school year. (PE-4; Testimony of the Parent)
· Since the beginning of the 2001-2002 school year, the Student has had numerous behavioral incidents in school. (PE-4) She is also picked on and teased frequently by other students. (PE-17; Testimony of the Parent) School started after the second week in August 2001, and by the end of that month, the Parent noticed changes in the Student’s demeanor, such as developing a tic that causes the Student’s body to jerk forward between two and six times, and her paranoia increased. (Testimony of the Parent)
· Between August 3 and August 8, 2001, the Student was hospitalized at Lowell Youth Treatment Center (hereinafter, “LYTC”) for depression, non-compliant behavior and self-destructive behavior at home. (PE-60) She had been hospitalized less than three months earlier between May 9 and May 28, 2001 for difficulties at home and in school. (Id.)
· On August 27, 2001, the Student’s Parents wrote a letter to the Wang School indicating that since the school was of the opinion that it could educate the Student, the Staff should not contact the Parents at their place of employment to go pick up the Student when she displayed disruptive behavior, nor should the Student be suspended for disruptive behaviors. The Parents wished to be contacted only in case of an emergency. (PE-22) The Parents further stated their belief that the Student could not be properly educated in the Wang School. (Id.)
· On September 4, 2001, the Student was screened at Westwood Pembroke Health System after she started to fight with her sister, became oppositional and defiant towards her mother, and wrecked her room when told to go to her room. (PE-69) This was the Student’s first day at home after spending two nights at her aunt’s house shortly after school started. (Id.) Student was admitted to the LYTC between September 6 and 11, 2001 to monitor an adjustment on her medications. According to the Parent, she contacted Lowell to request home tutoring on September 10 th and was informed by Ms. Marcia Byrne that home services would be provided upon receipt of a Physician’s Statement for Temporary Home or Hospital Education. (PE-4) The aforementioned statement was faxed by Lowell to Dr. Ilano, Medical Director for the LYTC, who in turn sent the completed form back to Lowell. (Id.; Testimony of Dr. Ilano) Dr. Ilano has known the Student in a professional capacity since June 2000 during a four-day hospitalization of the Student. (Testimony of Dr. Ilano)
· The Student was discharged on September 11 th and stayed at home on September 12 th . The discharge summary reflects that a home tutor was recommended by Dr. Ilano, the treating psychiatrist. (PE-21) A copy of this discharge summary was faxed by the Parent to Lowell on September 17 th . (Id.) On the 13 th of September, 2001, Lowell notified the Parent that home tutoring would not be approved because Dr. Ilano’s note did not provide an adequate medical reason for the Student to receive home tutoring. Disagreeing with Lowell’s position, Dr. Ilano wrote a letter to Lowell on September 24, 2001 again recommending that the Student be placed in a therapeutic day school where the Student’s significant behavioral, psychiatric and learning needs could be addressed. (PE-19) He warned that an inappropriate school environment could precipitate future hospitalizations. (PE-19)
· On September 19 th the Parent requested an emergency Team meeting and requested an Emergency Hearing with the BSEA. (PE-20)
· On September 20, 2001 the Student spent several hours in the principal’s office because other students were teasing her. The next day she reported not feeling well and spent the day sleeping in the nurse’s office. (PE-4)
· On Monday September 24, 2001, following a meeting with the Parent, the Student was suspended from school for one day due to an episode associated with yelling and swearing. (PE-4) The same date the School filed a §51 A report, pursuant to M.G.L. ch.119 §51 A. (PE-15) According to Lowell, the purpose was to get more involvement from agencies that could offer assistance to the family. (Testimony of Gail D. Feeney) The Department of Social Services screened out the report. (Id.)
· On September 26, 2001, the Student underwent a Neuropsychological evaluation with Dr. Jeff Schumer, Psy. D. (PE-68) The Student remained compliant and calm during the evaluation putting forth good effort and appearing motivated. She also demonstrated good frustration tolerance during the testing. The evaluation measured the Student’s cognitive/intellectual functioning, neuropsychological functioning for language, visual-spatial skills, executive functioning, and socio-emotional functioning. (Id.) He found overall low average abilities with a comparable development among her verbal, visual-perceptual and perceptual-organizational abilities. The academic testing placed her in the borderline to average abilities without the presence of a distinct learning disability. Projective personality data is indicative of an insecure, sensitive, depressed child, whose self-esteem is low and possesses very limited effective coping mechanisms to address stress. Dr. Schumer was of the opinion that the Student’s “impulsive acting out tendencies and idiosyncratic perceptions of information will likely be most evident when she is under stress and attempting to cope with emotionally charged situations… [but] does not present with a clear disturbance of thinking associated with psychosis.” (PE-68) She was found to be capable of resolving some level of conflict, is motivated to do well in school, exhibits good reality testing in neutral situations and feels some caring and support by the adult caretakers. Dr. Schumer recommended continued psychotherapy with a multi-modal approach to treatment, developing a sense of security of the world around her through a sense of security in therapy, working on problem solving, learning to read social situations correctly, use of a “no harm contract” towards herself and others and use of more intensive services such as participation in a therapeutic day program or residential placement and hospitalizations. (Id.) Academically, in his opinion, she would benefit from a “self-contained therapeutic educational setting, which provides a high degree of structure and incorporates behavioral management techniques” capable of providing a therapeutic milieu to address the Student’s socio-emotional issues in school, along with specialized instruction to address difficulties with learning problems. He further recommended continued family therapy, medication management for the Student, obtaining an updated neurological evaluation and learning disabilities evaluation to ascertain whether she has other specific learning problems. (PE-68) Dr. Weiser agreed with Dr. Schumer’s findings and recommendations. (Testimony of Dr. Weiser)
· The Student returned to school on September 27, 2001. On that date, the Parent met with the Wang School’s social worker and provided her with tools to help the Student (eg. a journal to write, a squeeze ball, and other recommendations.) (PE-4) Later that day the Student was suspended for inappropriate behavior.
· The Student returned to school on October 1, 2001 but her father was called to pick her up as she was banging her head against the wall and kicking the heater. (SE-17) Lowell contacted Michael Chandonnet who filed a criminal complaint on October 1, 2001 in Lowell District Court’s Juvenile Session. (PE-55) The Student was commanded to appear before the Clerk Magistrate on October 23, 2001. (Id.) The Student has not returned to school since that day. (PE-4)
· During the 2001- 2002 school year, the Student participated in only two sessions of the social skills group run by Mr. Langloise both of which were unproductive (i.e. the Student sat crying and complaining that her hand hurt during the first session; and she sat, wrote and drew a picture of the Wang School with a bomb, in her journal, during the second session.) (Testimony of Mr. Langloise)
· Between August 29, the beginning of the 2001-2002 school year, and October 22, 2001, the Student was absent from school 23 times and arrived late three other times. (PE-16) She was suspended for one day on September 24 th , on September 27 th and again on October 2 nd . (PE-4; PE-17; PE-54; SE-17) The previous school year she was suspended 13 days between November 15, 2000 and May 4, 2001. (PE-54; SE-17) According to the Parent, the Team was not convened to discuss manifestation determination, nor was a functional behavioral assessment conducted at that time. (Testimony of the Parent)
· The Parent communicated with the Student’s psychiatrist and the mental health clinician to discuss home tutoring. (PE-4; Testimony of the Parent) On October 8, 2001 the psychiatrist, Dr. Weiser issued a request on a prescription sheet that the Student be offered home tutoring until appropriate school placement could be arranged. (PE-2; see PE-82 for Dr. Weiser’s credentials) This was followed by a Merrimack Valley Pediatric Associates medical excuse slip from Dr. Wang, the Student’s Pediatrician, which excused the Student from attending school from October 10 th through the 12 th . (PE-3; Testimony of the Parent)
· On October 15, 2001 both, Dr. Weiser and the clinician Ms. Nuttall submitted to Lowell a completed Physician’s Statement for Temporary Home or Hospital Education form requesting home services for more than 14 days. (PE-1) This form provides a diagnosis of psychotic disorder NOS and states that the student had been reacting to stimuli in an unsafe violent manner at or after school. Dr. Weiser further checked the box indicating that the Student’s health would affect the provision of full educational services during this period. (Id.) A social history of the Student was completed the same date but the report provides no specific recommendation. (SE-6)
· The Parent was notified on October 15 th that the Team meeting would be cancelled because the Student had not completed her evaluations. This decision was reversed during a motion session on the issue of “Stay Put” at which time the parties agreed to hold the team meeting as scheduled and deal with the missing OT/PT evaluation at a later time.
· On October 16, 2001, Mr. Langloise of the Wang School contacted the Parent to inform her that the form submitted by Dr. Weiser was unacceptable because it didn’t state a medical reason why the Student couldn’t attend school. He also stated that a “§51A” charging child neglect could be filed and that the school could also contact a truancy officer. He further informed the Parent that placement would not be discussed at the Team meeting scheduled for October 24 th . (PE-4) According to Gail Feeney, Principal of the Wang School, the Student’s behavior was different during 2001-2002 than it was in 2000-2001, reason for which she decided to file the “§51A”, which was screened out by the Department of Social Services. (Testimony of Ms. Feeney) It was then that the school considered filing truancy charges but decided not to follow through with it. (Id.) Lowell’s intention was to obtain additional services for the Student outside the school. (Id.)
· On October 17, 2001, the Student participated in an educational evaluation in Lowell. (PE-17; SE-3) The testing was done as part of the Student’s three-year re-evaluation. (Id.) The Parent had consented to this evaluation in July of 2001. (Testimony of the Parent) The Student’s overall cognitive functioning was found to be in the low range, her performance average in written language and written expression, and low in reading, mathematics and math calculation. No significant discrepancies were found between her intellectual ability and achievement. (SE-3)
· The Student’s Team met on October 24, 2001. (PE-5; SE-22) Lowell drafted an IEP which called for placement of the Student at the ED/BD classroom in the Wang Middle School for Student’s eighth grade. (SE-22) The student/teacher ratio is approximately eight students to one teacher. (Testimony of Ms. Spencer) The IEP ran from October 2001 through October 2002. (SE-22) It calls for a consistent behavior management program and the need for more than one adult when she participates in the general curriculum. (SE-22) She is mainstreamed for specials and is required to transition from one room to another during the school day. (Testimony of Ms. Spencer) The accommodations listed to allow the Student make effective progress are as follow: a therapeutic setting, be able to write in a journal, graphic organizers, charts, manipulatives, stress releaser such as squeezing a soft ball, workload reduced, small group setting, untimed monitored tests, a quiet place to process when necessary, daily observation, clear, concise, short directions, multi- sensory approach and the use of a behavior management plan. (SE-22) The service delivery grid provides 15 minutes of consultation between the social worker, the regular education and special education staff daily, direct special education services for social skills behavior and academics five times, five days per week for five hours daily. Some services would be offered outside the general education classroom. Additional information states that this IEP is a partial IEP as the Student is on an Extended Evaluation and that Lowell anticipates drafting a full IEP on November 14, 2001. This IEP offers the Student special transportation and no modification to the schedule such as participation in a summer program. (SE-22) Ann Murphy of Lowell forwarded the IEP to the Parents on October 26, 2001 with the box indicating that the Parent fully accepts the IEP already checked. (SE-22) No parental response to the IEP appears on the record but the Parent testified that she rejected this placement for the Student.
· On October 30, 2001 Lowell forwarded the Parent an IEP which covered the period from October 1, 2001 through October 1, 2002. (PE-5; SE-18) This IEP offered the Student special education services in a small setting at the Wang School. Some services would be provided outside the general education classroom. A behavioral management program would be implemented. The Student’s type of disability was listed as “Emotional”, and provided the following accommodations: “therapeutic setting, to be able to write in a journal, graphic organizers, charts, manipulatives, stress releaser such as squeezing a soft ball, workload reduced, small group setting, untimed tests, tests monitored, quiet place to process if applicable, daily observation, clear concise, short directions, multi sensory approach, behavior management plan.” (Id.) The IEP included an extended evaluation form which indicated that the Student had been found eligible for special education services but recommended that a further assessment be conducted for a period of two weeks through November of 2001. (PE-5; SE-18) Along with this IEP the Parent was forwarded an invitation to participate in a Team meeting to be held on November 14, 2001. (Id.)
· On November 8, 2001, Student participated in an Occupational Therapy evaluation in Lowell with Monica Eynatian, OTR/L. (PE-66; SE-20) The Student achieved an average range score in the standardized test of visual motor integration and also demonstrated gross motor, fine motor and visual perceptual skills. No sensory processing difficulties that could effect her school-work were detected. Ms. Eynatian concluded that any difficulties experienced by the Student in the classroom were the result of deficits in areas other than the ones assessed by her. (PE-66; SE-20) Therefore, no occupational therapy services were recommended. (Id.)
· Jack Mulkern, CAGS, NCSP, School Psychologist evaluated Student on behalf of Lowell on November 5, 2001. (PE-66; SE-21) He found Student to be compliant with the demands of the evaluation but to present with a flat affect and depressed mood without evidence of thought disorder, homicidal or suicidal ideation. Relying on the results of the neuropsychological evaluation conducted by Jeff Schumer on September 26, 2001, he adopted his findings that the Student performed in the low average range of intellectual functioning. (Id.) Her cognitive profile suggests low average/average comprehension, perceptional skills and freedom from distractibility with borderline speed in processing skills indicating possible delays in perceptual discrimination, speed, accuracy, attention/concentration and short-term memory. She was found to be overwhelmed with anxiety. (PE-66; SE-21; See also, PE-67) Emotionally, she presented as an immature, sensitive, depressed and confused youngster who feels rigid, insecure and has an overall negative self-concept. She possesses minimal coping mechanisms and can become easily frustrated. In Mr. Mulkern’s opinion, she has great difficulties trusting anyone. The Student is desperately trying to stay in control and becomes very distressed when her control is threatened. He made no written recommendation. (PE-66; SE-21)
· A Physical Therapy assessment was conducted by Carol O’Neil, P.T., on November 8, 2001, on behalf of Lowell. (PE- 66; SE-19) The Student was found to have age appropriate gross motor skills and mobility to participate in a school setting and should continue to be exposed to as many types of gross motor activities as possible to encourage continued growth in this area. No physical therapy was recommended. (PE-66; SE-19; See also, SE-12)
· Lori Spencer completed the Student’s Educational Assessment for Lowell. (PE-67; SE-13) The Student had been present 12 out of 39 school days at the time this assessment was performed. In her opinion the assessment could not be performed due to the amount of time she had been out of school. (Id.) On November 14, 2001, Ms. Spencer submitted an educational assessment using information gathered during the 2000-2001 school year, as she felt that Student “most likely” continued to posses the same skills observed during her seventh grade. (Id.) This educational assessment is consistent with information previously provided about the Student.
RULINGS OF LAW
No disputes exist that the Student presents with disabilities which fall within the purview of the IDEA entitling her to special education services. The nature of her disability is also not disputed by the Parties. The question before me is whether the placement offered by Lowell under the IEPs for the 2001-2002 school year are appropriate to meet the Student’s needs in the least restrictive environment able to maximize her potential. Upon considering the evidence before me, I am persuaded that the programs offered by Lowell do not constitute the least restrictive environment that can assure the Student a Free Appropriate Public Education (hereinafter, “FAPE”) in which she can maximize her potential . David D. V. Dartmouth School Committee , 775 F.2d 411 (1 st Cir. 1985). Furthermore, Lowell’s placement also fails under a FAPE standard. At this time the evidence supports a therapeutic day placement for the Student. My reasoning follows:
I. Student’s Profile :
Student is a fourteen year old who stands 5 feet 4 inches tall and weighs 230 pounds. She presents with several educational and emotional disabilities which have caused her to have 19 psychiatric hospitalizations between the ages of 7 and 14, three of which occurred in 2001, starting in May. (PE-4; PE-43; PE-49; PE-58; PE-60; PE-61; PE-62) She has difficulties with receptive and expressive language, verbal memory, planning and does not know how to organize information. (PE-68; PE-72; Testimony of Dr. Ilano) Her attentional capacity is impaired, she has problems discriminating information, and has poor reality testing. She tends to distort information and could possibly be psychotic. She also has poor judgement, is depressed, and has a very low self-esteem. At times, she has violent ideation inclusive of homicidal thoughts against her mother and sister. (PE-68; PE-72; Testimony of Dr. Ilano) She has problems mediating thoughts and feelings and monitoring herself, is very mistrustful of others, has limited coping skills and is easily overwhelmed. (Testimony of Dr. Ilano) As a result of her disabilities, she acts up and acts out based on angry thoughts in a very impulsive manner. (Testimony of Dr. Ilano) Her depressive symptoms, impulsivity and attentional difficulties challenge her ability to respond productively in a variety of settings. (Testimony of Dr. Ilano, Dr. Weiser, Parent)
The Student’s behavioral history suggests that her behavior can fluctuate without warning and can escalate quickly. (SE-7; PE-34; Testimony of Dr. Ilano, Dr. Weiser)
Dr. Ilano provided examples of the Student’s out of control behaviors as he described his observations during hospitalizations of the Student at the LYTC, during June 2000 and September 2001. He described her as angry, belligerent, unable to respond to limits, she yells, is verbally threatening and displays hypersexualized behaviors. (Testimony of Dr. Ilano) During a bad episode at the hospital, it would take up to five adults to restrain and calm her down. (Testimony of Dr. Ilano) At those times, she requires mechanical restraints and needs one to one attention. At LYTC she was placed in a quiet room with no furniture and padded walls for quiet time until she became calmer. (Testimony of Dr. Ilano) Then, she would be taken to an open area to process with the assistance of a trained mental health provider. They discuss options other than getting angry and the reasons that made her angry. (Testimony of Dr. Ilano) According to Dr. Ilano, the Student does not understand the consequences of her behavior, and can therefore be destructive to herself or others. (Testimony of Dr. Ilano)
II. Lowell’s Program :
The IEPs drafted for Student’s eighth grade by Lowell called for placement of the Student in the ED/BD classroom in the Wang Middle School. (PE-5; SE-22) The most recent one of October 24, 2001, which runs through October 2002, calls for a consistent behavior management program to be implemented and more than one adult to be present when the Student participates in the general curriculum. The student/teacher ratio is approximately eight students to one teacher. (SE-22; Testimony of Ms. Spencer). Under this IEP, the Student is mainstreamed for specials and is required to go from one room to another during the school day. (Testimony of Ms. Spencer) To assist the Student in making effective progress it lists the following accommodations: therapeutic setting, a journal to write in, graphic organizers, charts, manipulatives, stress releaser such as a soft ball for squeezing, a reduced workload, small group setting, untimed monitored tests, quiet place to process when necessary, daily observation, clear, concise, short directions, multi-sensory approach and the use of a behavior management plan. (SE-22) The service delivery grid provides 15 minutes of consultation between the social worker, the regular education and special education staff daily, direct special education services for social skills behavior and academics five times, five days per week for five hours daily. Some services are offered outside the general education classroom. The IEP offers the Student special transportation and no participation in a summer program. (SE-22) It was intended as a partial IEP since Lowell placed the Student on an Extended Evaluation. Lowell anticipated drafting a full IEP by November 14, 2001. (Id.)
Under this IEP the Student has to walk down the hallways from room to room to access her classes. This makes her very uncomfortable. (Testimony of Dr. Weiser, the Parent) The Student’s history shows that during times of great stress that are emotionally charged, she is less able to cope given her limited coping mechanisms. It is in these situations that she is more likely to decompensate. (Testimony of Dr. Weiser) She functions better in a therapeutic milieu that offers more structure and predictability, within a self-contained classroom, where expectations are clear. (Testimony of Dr. Weiser; PE-61) A safe quiet room must be available for times when she is out of control. (Testimony of Dr. Weiser)
A breakdown of the program offered by Lowell in its IEP shows that it cannot meet the Student’s needs even if it were to be modified.
The program offered to the Student in Lowell calls for mainstreaming for specials. (SE-18; SE-22; PE-5) These include courses such as family consumer science, art, physical education, world language and technology education. (Testimony of Ms. Spencer) Specials include anywhere between 25 to 30 regular education students. The Student attends specials daily and her schedule for these changes every day. (Id.) Regular education classrooms are unstructured by nature, therefore, this could be a set up for the Student. If she feels uncomfortable it could take the teacher several minutes to notice that Student needs to leave. When Student needs to take a break, it is imperative that she be allowed to do so immediately, with an escort who can begin to process with her; otherwise, by the time it is noticed, Student could be out of control. (Testimony of Dr. Weiser) According to Dr. Ilano, participation in this type of a setting is contraindicated for Student who has serious difficulties with peer relations and social interactions, as well as great difficulty with transitions and is known to decompensate quickly. (Testimony of Dr. Ilano) For instance, if the Student is in a room with 20 or so other students who are talking, she is very vulnerable to these situations; it is not a calming environment. (Testimony of Dr. Ilano) She will become easily overwhelmed, get too stimulated and the experience will not be fruitful. Only when she is ready, will exposure to a mainstream classroom be positive. (Testimony of Dr. Ilano) If she is too uncomfortable, she is at risk of bolting out; Dr. Ilano has seen this happen.
Lowell also proposed that the Student participate in a social skills group. (PE-5; SE-22; SE-18) A social history completed on October 21, 1994 shows that the student has no real friends in school, and outside school she plays with only a handful of children from church. (SE-4) Participation in a social skills group may be helpful but it depends on the composition of the group and on how well she is able to tolerate being in a group setting. (Testimony of Dr. Ilano) If other students in the group are highly functioning, that would be unproductive. Participation in an inappropriate group could be detrimental. (Testimony of Dr. Ilano)
At Lowell, the Student is exposed to special and regular education students throughout the day. She does this when she takes the bus to school, walks down the hallways or participate in specials. Given her profile, she is an easy target to get teased, and there is a high risk that she might not be able to handle it. This amount of exposure is very risky in light of her limitations. (Testimony of Dr. Ilano) A one to one aide may help to some degree but it depends on whether the aide can respond to her therapeutically when she starts to break down. (Testimony of Dr. Ilano)
Lowell stated at hearing that it is willing to offer the Student a 1 to 1 aide to accompany her everywhere during the day. Not only does this service not appear in the Student’s IEP but it would be too stigmatizing, drawing even more attention to a child who is highly vulnerable and who already draws too much attention to herself. (Testimony of Ms. Spencer; Dr. Ilano) Such an aide would also have to have special training on how to deal with students who present a combination of mental illnesses and special needs, and would have to be available for the Student to work with her 1 to 1 as needed by the Student. (Testimony of Dr. Weiser)
I credit the evidence which suggests that Lowell’s proposed solution to have a person monitor the Student throughout the day, so that she remain in Lowell, will not work if other areas of the program are not improved. (Testimony of Dr. Ilano)
The evidence is clear that time is of the essence when it comes to addressing this Student’s needs. When she begins to show signs that she is feeling uncomfortable, she must be allowed to leave the classroom and go to a safe, empty room where she can get some quiet time. During these times, she must be accompanied by a trained adult who can help her process. (Testimony of Dr. Ilano, Dr. Weiser) As a quiet room, Lowell has provided a room in the guidance/social work area which is otherwise used by Ms. Correa to hold group sessions. (Testimony of Ms. Spencer, Ms. Correa) The room was described as having a table and other heavy furniture. It is not available on a consistent basis, and for this reason the Student has been taken to either the nurse’s office or to the school principal’s office. This has happened on several occasions. (Testimony of Ms. Spencer; Ms. Correa) The nurse’s office was described as having two beds which are very heavy and not easy to move. The evidence suggests that its “cool off space” set up is inappropriate and again, Lowell fails to provide consistency.
To assist the Student in calming down, several tools are used. For instance, the Parent brought to school a journal that the Student likes to use as a coping tool to write down her feelings. (Testimony of Dr. Ilano) In the past however, Lowell has used this journal in an inappropriate manner. For instance on one occasion, part of the journal was read out loud in the presence of other people. This according to Dr. Ilano, is a violation of the Student’s confidentiality and can destroy the therapeutic alliance between the child and the adult. (Testimony of Dr. Ilano) While I am persuaded that Lowell’s staff did not set out to sabotage a relationship with the Student, the effects of this behavior are nonetheless detrimental to the Student.
Of great concern is the manner in which Lowell has addressed the Student’s emotional needs and her behavior including disciplinary action, the filing of criminal charges, and calling Parents to pick up the Student when it was unable to handle the Student’s disability while implementing deficient functional behavioral plans and requiring the Student to live up to behavioral contracts which went beyond Student’s abilities.
The record shows that Student was suspended from school 13 times during the 2000-2001 school year and her parents were called to pick her up on at least three occasions. (PE-54; SE-17; Testimony of the Parent) According to the Parent, no services were offered to the Student during the time of the suspensions beyond the tenth one, the Team was not convened to discuss manifestation determination, nor was a functional behavioral assessment conducted as required under 34 CFR §300.523. (Testimony of the Parent) From a procedural standpoint Lowell failed to convene the Team to determine whether the conduct was a manifestation of the Student’s disability before it subjected the Student to further disciplinary action as mandated under 20 U.S.C. 1415 (k)(5)(A); 34 CFR §300.523 and §300.524. It also did not perform a functional behavioral analysis after the Student’s 10 th suspension in contravention with the procedural due process mandates under IDEA. See 20 U.S.C. 1415 (k), 34 CFR §300.519 through §300.523 . Following the 10 th suspension the Student’s Team in Lowell should have provided interim services “to enable the student to continue to progress in the general curriculum, although in another setting, and to continue to receive those services and modifications, including those described in the child’s current IEP, that would enable the child to meet the goals set out in the IEP; and, include services and modifications to address the behavior described in §§ 300.520 (a)(2) or 300.521, that are designed to prevent the behavior from recurring.” 34 CFR §300.522. Lowell failed to comply with any of these procedural mandates.
At the beginning of the 2001-2002 school year, between August 29 and October 22, 2001, the Student was absent from school 23 times and arrived late three other times. (PE-16) She also had one-day suspensions on September 24 th , on September 27 th and again on October 2 nd . (PE-4; PE-17; PE-54; SE-17) While Student needs to be disciplined when appropriate, suspending Student given her profile creates a dilemma, which impacts negatively on her. (Testimony of Dr. Ilano) It effects the Student’s self-esteem as she does not understand the external situation that caused the suspension and this validates her feelings that she is very defective. (Testimony of Dr. Ilano) From the Student’s standpoint, she is being suspended for feeling and acting angry and she does not know what to do. (Testimony of Dr. Ilano) It is at these crucial moments that appropriate intervention and an appropriate functional behavioral plan need to be implemented. I agree with Dr. Weiser’s statement that Lowell’s practice of constantly suspending the Student when unable to handle her, is in effect confirmation that they cannot control and educate her. (Testimony of Dr. Weiser)
Lowell should have been more proactive in its approach to the Student by not putting her in situations where decompensation was likely to occur. For instance when she gets to the point where she needs to leave the classroom, someone that can help her process needs to accompany her down the hallway as this is an area where and a time when she can further decompensate. Lowell’s functional behavioral plan is deficient in that it is only the beginning. It does not discuss what needs to occur if the first stages of the plan do not work. (PE-6; Testimony of Dr. Weiser) The record shows that when everything failed for Lowell, it either suspended the Student or called the Parents to pick her up, under either scenario it in effect sent the Student home as opposed to handling the Student’s disability.
Along this line it was equally inappropriate for Ms. Spencer from Lowell to have required the Student to sign a contract agreeing that the Student participate in her classes in an appropriate fashion, stay in her seat and in the classroom unless given permission to leave, refrain from negative attention seeking, ask for assistance when she was unable to solve a dilemma. (PE-28) According to Dr. Weiser, if the Student found herself in a neutral situation, at the time she was presented with the contract, she could agree to the conditions set out in the contract. But in reality, when she is dealing with the stress of a classroom, she may not remember what she agreed to, and she would be unable to comply. In the words of Dr. Weiser, “her mind simply does not work like that.” (Testimony of Dr. Weiser) Lowell could not reasonably expect the Student to follow this contract and yet it penalized the Student when her disability prevented her from being compliant.
When everything else failed, Lowell chose to file a §51A and/or press criminal charges against the Student. (PE-55; Testimony of Mr. Langloise, Ms. Correa, Parent) Both of these strategies were employed during the 2001-2002 school year. Pressing criminal charges was clearly not appropriate. Instead, the Student should have been provided a therapeutic approach. She needs a therapeutic environment that can address her disability where service providers work with her proactively. (Testimony of Dr. Weiser)
Ms. Spencer’s testified that in her opinion, the Student made progress while at Lowell, especially during the 2000-2001 school year. (Testimony of Ms. Spencer) She was described as being compliant in 7 th grade, and in contrast, very up front about not wanting to do the work in the 8 th grade. (Testimony of Ms. Spencer) There is no question that if calm or in a neutral setting, the Student can learn, have some insight as to a situation, ask for help and self- monitor. (Testimony of Dr. Weiser) The fact that the Student however, required two hospitalizations towards the end of the 2000-2001 school year, in May and June 2001, which preceded a difficult summer that required further hospitalizations in August and September 2001, cannot go unnoticed. (Testimony of Dr. Ilano) It must be mentioned again that the Student was suspended 13 times during the 2000-2001 school year and that the Parent was called to come pick her up several times when Lowell could not handle her behavior. (PE-54; SE- 17; Testimony of the Parent)
In Ms. Spencer’s opinion, the Student was being told by the Parents not to be compliant at the beginning of the 2001-2002 school year, and to act out so that she could go to an outside placement. (Id.; SE-18) The Parent testified that given the layout of their apartment, and the lack of privacy, it was possible that Student may have overheard the Parent speak to professionals regarding her concerns and may have misinterpreted bits and pieces of the conversations. Whenever possible, the Parent tried to make the phone calls from the bathroom or when the children had gone to bed. (Testimony of the Parent) While I am persuaded by both the statements made by the Parent and Ms. Spencer I am not convinced that this was the only reason why the Student acted out. The evidence is overwhelming that she had an extremely difficult time all through the summer, requiring four hospitalizations between May and September, and it is likely that she was simply unable to handle the lack of structure and inconsistency at Lowell any longer.
Throughout this period, service providers outside Lowell continued to recommend outside placement. (PE-26; Testimony of the Parent, Dr. Weiser, Dr. Ilano)
In asserting that its program is appropriate, Lowell relies on the special experiences of its ED/BD Special Education teacher Lori Spencer. Prior to coming to Lowell, she worked as a crisis intervention counselor in a short-term residential facility and was an inclusion assistant in Tingsboro for a student diagnosed with schizophrenia. (Testimony of Ms. Spencer) While it is true that she has developed a positive relationship with the Student, Ms. Spencer will be leaving the program on February 1, 2002 as she is going on maternity leave. (Testimony of Ms. Spencer) At the time of the hearing, her substitute had not yet been identified.
Ms. Spencer testified that while she is able to consult with Dr. Jack Mulkhern, a psychologist contracted by the city of Lowell, and with Dr. Tremonte, regarding how to get the Student to be more compliant in school. (Testimony of Ms. Spencer) She only consulted with Dr. Mulkhern once over the last one and a half years and three times with Dr. Tremonte but not regarding the Student exclusively. (Testimony of Ms. Spencer) Neither of these professionals ever observed the Student at the Wang School setting. (Id.) Other social workers at Lowell, Carla Correa and Mike Langloise, are accessible to work with the Student when she decompensates, but the evidence shows that they are not immediately or consistently available. Mr. Langloise’ office is not located in the Wang School building and he is responsible for other schools in the District. (Testimony of Ms. Spencer, Ms. Correa, Mr. Langloise) Mr. Langloise testified that his office is located in another building and that it takes him 10 to 15 minutes to drive from one location to the other. If one adds that it may take another five minutes to locate him if he is not right in his office at the time of the call, or that he may be tending to another matter, it is reasonable to assume that it could take anywhere between 10/ 15 minutes to 30 minutes for him to reach the Student. This is extremely concerning in light of Dr. Ilano’s testimony and Dr. Tremonte’s findings that Student’s behavior can escalate and become unsafe within a few minutes. Mr. Langloise testified that he had not been called once to assist with any of the incidents involving the Student during the 2001-2002 school year. (Testimony of Mr. Langloise) Ms. Correa has many other obligations at the Wang School and has also not always been available to process with the Student. In fact, Ms. Correa is not formally responsible for the Student as Student is not a part of her 60 students open caseload. (Testimony of Ms. Correa) The consultants are not always available, but even more troubling is the fact that even when the consultants may be available, Lowell does not access them consistently.
Overall, I was impressed with the level of commitment demonstrated by Lori Spencer and Mr. Langloise. Their interest in the Student’s well-being and education seemed sincere. The evidence suggests that it was precisely this type of commitment that enabled the Student to remain at the Wang School as long as she did. It is however, concerning that they have not always been available to address the Student’s needs when she required it, that Mr. Langloise’ office is not even in the same building as the Student and that Ms. Spencer will be leaving Lowell soon. Ms. Spencer’s departure is very concerning since in the presentation of its case, Lowell relied on the special bond between the Student and Ms. Spencer to assert that its program was appropriate. Student requires a higher level of structure, consistency and expertise than Lowell can offer, if all of the Students needs are to be met at this time. (Testimony of Dr. Ilano, Dr. Weiser) Lowell’s program is simply not set up to address the magnitude of this Student’s disabilities.
Lowell took the position that the family requires more outside intervention and that if the Student participated in an after school mental health program, its program would be appropriate. While it may be true that the Student could benefit from an after school program or that the family could use additional assistance from other entities, such as DMH, the fact remains that Lowell’s program falls short of what the Student requires. Lowell’s suggestions offer nothing other than a bandaid approach to the deficiencies in its program and ignores the underlying problem which is that its program is insufficient to meet the child’s needs. Also, Lowell failed to explain why it offered the Student an Extended Evaluation IEP. This was unnecessary since the evidence unequivocally showed that Lowell had sufficient information to draft an appropriate IEP. It simply refused to offer the Student anything outside the Lowell Public Schools system.
Based on the recommendations of the credible testimony offered by the Parents’ expert witnesses, the history of this case and the lapses in provision of consistent appropriate services, the amount of modifications that would be required to make a program in Lowell appropriate for this Student are such that it would require them to create a new truly therapeutic program, something the evidence shows they are unable to do. The gaps between what Lowell can offer and what the Student requires are such that they cannot be bridged at this time. There is no doubt that Lowell has been able to manage the Student at times, and during those opportunities the Student was able to take some advantage of the instruction. Managing a Student however, is very different to offering the Student the Free Appropriate Public Education to which she is entitled. The United States Courts have interpreted a FAPE to mean that the LEA is responsible to provide the student meaningful access to an education, in compliance with the IDEA requirements that the IEP provide “significant learning” and confer “meaningful benefit” to the student. (For a discussion of FAPE see Hendrick Hudson Bd. Of Education v. Rowley , 458 U.S. 176, 188-189 (2992); Cedar Rapids Community School District v. Garret F., 526 U.S. 66 (1999); Burlington v. Department of Education , 736 F. 2d 773 (1 st Cir. 1984). Houston Independent School District v. Bobby R ., 200 F.3d 341 (5 th Cir. 2000); Stockton by Stockton v. Barbour County Bd. of Educ ., 25 IDELR 1076 (4 th Cir. 1997); MC v. Central Regional School District , 81 F.3d 389 (3 rd Cir. 1996), cert. denied 519 US 866 (1966); Ridgewood Board of Education v. NE , 30 IDELR 41 (3 rd Cir. 1999). See also GD v. Westmoreland School District , 930 F.3d 942 (1 st Cir. 1991). Furthermore, Lowell was responsible to offer the Student a program that could maximize her individual potential. David D. v. Dartmouth School Committee , 775 F.2d 411 (1 st Cir. 1985) The evidence shows that Lowell has denied the Student a FAPE as it can neither handle the Student consistently, nor can it implement a program appropriate for her. Lastly, Lowell contends that it is a large city with the resources to provide services to the Student. I am not persuaded by this argument since the evidence shows that such services were not readily accessible to the Student. Therefore, Student is entitled to a private therapeutic day program consistent with this decision.
Under both maximum feasible development and a FAPE standard (which was not yet in effect) the Student requires and is entitled to a therapeutic day placement outside Lowell.
IV. Program Required by the Student:
The credible expert testimony provided by Dr. Ilano and Dr. Weiser indicates that the Student learns best when in a small, highly structured, consistent, therapeutic environment which employs a multi-sensory approach with hands-on and project based activities. (PE-9; Testimony of Dr. Ilano, Dr. Weiser) She needs containment by clear, concise limit setting, continuous positive reinforcement and a lot of teacher attention to stay on task. The Student has proven that she responds well to encouragement and positive reinforcement. The experiences gained during her numerous placements provide ample support for these recommendations. For instance, while at Cornerstones she was placed on a daily point system and incentive programs as well as staff to provide physical restraints when necessary in case the Student presented with unsafe behaviors. (PE-9)
Dr. Ilano who works in a hospital with a school setting recommended a therapeutic day placement. Dr. Weiser supported the recommendation for placement of the Student in such a setting. (Testimony of Dr. Weiser)
The Student functions best in environments that provide more structure and predictability. (Testimony of Dr. Weiser) Dr. Weiser recommended a self-contained, small class size (about five children to one teacher), and a structured environment where expectations are clear for all sides. The teachers must be trained to work with children with psychiatric disorders, and must provide close supervision, clear behavioral expectations and structure. (PE-43; Testimony of Dr. Ilano) It must also provide a therapeutic milieu with a safe retreat, or area, where the Student can go accompanied by a trained adult who can assist her in processing issues, as needed. (Testimony of Dr. Weiser; PE-61) When she is out of control, the Student needs to go into a safe quiet room with padded walls. (PE-43; Testimony of Dr. Ilano, Dr. Weiser) Everyone’s safety must be considered at that time. (Testimony of Dr. Weiser) A therapist must be available to provide emotional and behavioral interventions and supports, work cooperatively with Student’s family and outside providers. (PE-43; Testimony of Dr. Ilano)
Dr. Ilano testified that the therapeutic component of a program becomes essential during a crisis. First, it is key to de-escalate the behaviors, prevent the child from harming him/herself, bring her to a place that is soothing and calming, then, when the child is able to do so, discuss better ways of coping. The goal is to avoid hospitalizations. (Testimony of Dr. Ilano)
According to Dr. Ilano, a therapeutic program has to offer a very controlled environment, be consistent in terms of schedules, have firm consistent rules and offer a non-stimulating environment so as not to precipitate a problem with the child. It is important to prevent cascading of the behaviors so that there will be no escalation in Student and in other children. The program must provide access to immediate intervention with well trained mental health staff who must be available. (Testimony of Dr. Ilano) Also, it is key to have a good liaison to communicate information back and forth regarding observations, which is helpful to the child’s out-patient clinicians and the family. (Testimony of Dr. Ilano)
In light of these recommendations and taking into account that there are no specific consistent antecedents to the identified behaviors in the Student, it is essential for the Student to partake in a therapeutic environment able to address the Student’s psychiatric, behavioral and learning disabilities. As recommended by Dr. Ilano and Dr. Weiser, the Student requires a therapeutic day school. (PE-19; Testimony of Dr. Ilano) It is hoped that the Student’s psychiatric disorder will stabilize with the appropriate intervention. Until that happens, she will require more structure than that offered by Lowell at this time.
ORDER
Lowell is ordered to locate an appropriate therapeutic day program and shall work cooperatively with the Parent in sending out referral packages so that placement may be finalized promptly. As soon as placement is identified, Lowell will convene the Student’s Team and draft an IEP from the date of the Team meeting for a period of one year for said therapeutic day program.
So ordered by the Hearing Officer,
Rosa I. Figueroa
Dated: January 23, 2002
January 23, 2002