Student v. Middleborough Public Schools – BSEA # 06-4208
COMMONWEALTH OF MASSACHUSETTS
BUREAU OF SPECIAL EDUCATION APPEALS
In Re: Student v. Middleborough Public Schools
BSEA # 06-4208
This decision is issued pursuant to the Individuals with Disabilities Education Act (20 USC 1400 et seq .), Section 504 of the Rehabilitation Act of 1973 (29 USC 794), the state special education law (MGL ch. 71B), the state Administrative Procedure Act (MGL ch. 30A), and the regulations promulgated under these statutes.
Parent/Student filed a Request for Hearing on March 21, 2006. The hearing was postponed several times at the request of the parties and held on September 19, 20 and 21, 2006 in Braintree, Massachusetts before Hearing Officer Rosa I. Figueroa. Those present for all or part of the proceedings were:
Jennifer M. Pinkham Attorney for Parent and Student.
Mathew J. McNamara Attorney/Observer.
Rachel Wiseman, Psy. D. Neuropsychologist.
Ann Solomon-Schwartz Psychotherapist.
Sheryl Heggi Riverview School, head teacher.
Janet Hastings Riverview School, teacher.
Elinore Pasquill, Private tutor, former Middleborough Public Schools Teacher.
Adam Wannie Riverview School, Advisor, LMHC.
Dawn Hotetz Riverview School, Advisor, Teacher.
Regina Williams Tate Attorney for Middleborough Public Schools.
Alisia St. Florian Attorney/Observer, Middleborough Public Schools.
Lisa McDonald Middleborough Public Schools, Team Facilitator.
Melissa Deutschmann Middleborough Public Schools, Special Education Director.
Gail Morrissey Middleborough Public Schools, Special Needs Teacher.
Nancy Eldredge Middleborough Public Schools, Special Needs Teacher.
Andrew Collins Middleborough Public Schools, Science Teacher.
Dayle Carroll Middleborough Public Schools, Speech and Language Pathologist
Charlene Bizinkauskas Middleborough Public Schools, Special Needs Teacher
Tanya Sullivan Middleborough Public Schools, School Adjustment Counselor.
Maryellen Coughlin Court Reporter.
Laurie J. Jordan Court Reporter
The official record of the hearing consists of documents submitted by the Parent and marked as exhibits PE-1 through PE-521 ; documents submitted by the Middleborough Public Schools (Middleborough) and marked as exhibits SE-1 through SE-108; recorded oral testimony and written closing arguments. At Middleborough’s written request, the date for submission of written closing arguments was extended through October 31, 2006. Written closing arguments were received on October 31 st and the record closed on that date.
1. Were the IEPs promulgated by Middleborough in December 2005 (SE-68) and in January 2006 (SE-69) covering the period from December 2005 through June 2006 reasonably calculated to offer Student a free appropriate public education (FAPE) in the least restrictive environment?
2. If not, are Parents entitled to reimbursement for their unilateral placement of Student as a residential student at the Riverview School (Riverview)?
POSITION OF THE PARTIES
Parent/Student state that after Dr. Rachel Wiseman evaluated Student in the summer 2005, she recommended that Student not attend Bristol-Plymouth Regional Vocational School and instead attend high school where they believed that her needs would be better served. When Student entered the high school she underwent a transformation because she could not handle the demands socially or academically. She began to dress in Goth-like style, defied Parents’ rules, and could not handle the academic demands in the inclusion classes. This resulted in Student’s psychiatric hospitalization in October 2005 after which Parents requested a Team meeting in consultation with Middleborough’s staff. The new plan offered by Middleborough eliminated Student’s participation in science and social studies and changed Student’s math from inclusion math to a functional mathematics program. In the new proposed program Student would not have access to peers with a similar profile to hers and according to Parents the overall program was too piecemeal. According to Parents, some of Middleborough’s staff also thought that the program proposed at the Team meeting of December 2005 would not work for Student and that she would need an outside placement. Parents assert that the Middleborough program denied Student a FAPE. Also, Student refused to participate in the proposed program when presented to her by Parents.
As a result, Parents placed Student residentially at Riverview in February 2006, where according to them, she has thrived. Parents seek reimbursement for their unilateral placement of Student at Riverview.
Middleborough asserts that in December 2005/January 2006 it offered Student highly individualized educational programs through the proposed IEPs, SE-68 and SE-69. These IEPs took into account Student’s strengths and weaknesses while addressing her emotional needs and offered Student an opportunity to work on vocational skills prior to transition planning. The plan was prepared so as to address Student’s emotional state and her difficulties transitioning into the high school, which Middleborough asserts were the result of an adolescent power struggle with Parents, Student’s loss of her first serious boyfriend, identity and self-esteem issues. According to Middleborough, Parents cannot meet their burden of proof because they cannot meet the first prong in Burlington2 requiring them to show that the school’s program was not reasonably calculated to offer Student a FAPE, especially where Parents did not give the plan a chance, or the staff with whom Student enjoyed a good relationship an opportunity to explain the plan to her. In Middleborough’s opinion, Parents did not understand the plan before them and could not convey it adequately to Student, especially when they did not want Student to remain in the high school. Middleborough asserts that there was every reason to expect that Student’s comfort level would increase with the new program and that she would progress educationally.
Middleborough states that even if the hearing officer determines that the plans were inadequate, Parents are not entitled to reimbursement for their unilateral placement of Student at Riverview because they chose an overly restrictive placement, which is not supported by any evaluation or document in evidence. Middleborough notes that Parents transferred Student at a time when her performance was improving and she was beginning to stabilize in school. Parents chose the residential placement for non-educational reasons, according to Middleborough, namely to protect Student from transforming into the rebellious teenager who tested rules and disobeyed them, and who expressed her individuality in ways they found distressing.
FINDINGS OF FACT
· Born on April 1, 1990, Student is a sixteen (16) year-old resident of Middleborough. (SE-1) During the period relevant to this decision, Student was in the 9 th grade. She received special education services in Middleborough through February 2006 and thereafter was unilaterally placed by Parents at Riverview as a residential student. (Testimony of Mother, Father) Her eligibility and entitlement to special education are not in question. (SE-4; SE-22; SE-31) She has received all of her education, including special education services since the age of five through Middleborough, until she was unilaterally placed by Parents. (PE-4)
· Student was diagnosed with microcephaly of undefined etiology and associated behavioral problems, language-related difficulties, minimally depressed motor skills and delayed fine motor skills. (SE-1; SE-10) She received occupational therapy (OT) since the age of three and later speech and language therapy services in a pre-school program in Mansfield, MA. (SE-2; SE-3) These services continued as she transitioned into Kindergarten and elementary school. (SE-6; SE-7)
· Student’s family transferred into Middleborough in 1995. (SE-5) Middleborough’s first evaluation of Student took place in May 1996. (SE-5) Psychological evaluations assessing cognitive skills placed her at the low average range of intelligence with significantly low readiness scores in the areas of arithmetic, spelling, and reading. (SE-5; SE-10; SE-29)
· In elementary and middle school Student participated in inclusion programs with direct services, support, and/or consultation services for language arts, math, speech, reading, written language, and OT. (SE-7; SE-10; SE-11) In May 2001, the Regional Educational Assessment & Diagnostic Services (READS) providers recommended that OT be discontinued as Student had acquired the motor skills necessary to meet the motor skills demands when completing classroom tasks. (SE-20)
· All of Student’s IEPs and/or IEP amendments for second, third, fourth, fifth, sixth3 , seventh, and eight grade were accepted by Parents. (SE-7; SE-14; SE-17; SE-21; SE-34; SE-35; SE-41; SE-41; SE-49) Throughout this period Student received services and multiple accommodations to address her severely compromised auditory and language processing skills, and below average comprehension, memory, receptive-expressive language skills, and pragmatic skills. (SE-9) Student’s progress was measured through periodic evaluations, classroom observations, tests, evaluations, and homework. (SE-4; SE-5; SE-6; SE-8; SE-9; SE-10; SE-11; SE-15; SE-16; SE-19; SE-22; SE-23; SE-24; SE-25; SE-26; SE-27; SE-28; SE-29) She acquired skills at a low but steady rate and made good progress toward her annual goals. (SE-10; SE-15; SE-24; SE-25; SE-32; SE-36; SE-37; SE-47) Student’s progress and Parents’ concerns were discussed periodically with Middleborough’s staff. (SE-26)
· Student’s fifth grade teachers reported that she was struggling with the curriculum and recommended that she be reassessed to ascertain if she would require a more structured setting. (SE-30) Middleborough’s Conference Meeting notes of March 25, 2002 discussed Parent’s concerns over Student’s transition into the sixth grade in light of her challenges. (SE-26) Alternatives considered at the time included participation in a language-based program, a half day at school and a half day at home, or an out of district day program. The question as to whether an aide was needed was also raised. (SE-26) End of the year progress reports stated that Student was making progress in all areas despite very low scores in cognitive functioning as evidenced in the psycho-educational evaluation performed by Middleborough in May 2002. (SE-32; PE-46)
· A Stanford Achievement Test Series Tenth Edition administered while Student was in the 8 th grade, resulted in below average scores for Reading (national Percentile Rank of 3), Math (national Percentile Rank of 6), and Partial Battery (national Percentile Rank of 5). (SE-38) MCAS results also evidenced weaknesses in all areas. (SE-39) During this period Student depicted a positive sense of self, reported having a healthy social life, and showed no major indicators of anxiety or depression. (PE-46)
· Progress reports for the IEPs covering the period from October 1, 2002 to June 30, 2003, (Student’s sixth grade) and November to June 30, 2004, (Student’s seventh grade) state that she had not met several benchmarks toward attaining her IEP goals for math calculation, comprehension, or written language. (SE-40; SE-43) Student would continue to work toward meeting her IEP goals. The sixth grade progress reports noted that Student continued to use compensatory strategies with respect to her expressive and receptive language skills and was making steady progress. (SE-40) The seventh grade reports in these areas stated that Student required repetition of information when following two-step directions. (SE-43) At times she appeared confused but did not consistently ask for help and was not motivated to address articulation errors, seeming somewhat embarrassed at times. (SE-43) The seventh grade progress reports for the period through November 13, 2003 also state that Student was not yet working on all of her goals. (SE-43) By April 12, 2004, she was making fair progress, demonstrating comprehension skills with support services, but the overall goals in the areas of comprehension and written language had not been attained. (SE-45) She required review of previously learned skills. She put forth good effort in math reasoning and comprehension, and her confidence appeared to be improving. (SE-45) In improving expressive language skills it was anticipated that she would meet this goal with further therapy by the end of the year. (SE-45)
· Elinore D. Pasquill, M.Ed., a special educator with Wilson Language Training, tutored Student in the home. Her report, dated August 20, 2003, addressed Student’s compensatory summer session in the Wilson Language Training, which was a compensatory service owed by Middleborough, and also provided Student with private assistance in math and reading. (PE-50) The report states that Student had Completed Step 5 with 100 % accuracy in reading real and nonsense words, 100% accuracy when doing the written requirements, and 77% in spelling. She [had begun] Step 6. This step, to date, has posed no problem for her and she should be able to complete it in a few more weeks. Due to [Student’s] weak association and retention skills, we must, also, constantly revisit Steps 1-5. (SE-43) Ms. Pasquill recommended that the Wilson Language Program instruction continue with emphasis on mastery of decoding unfamiliar words, comprehension, and encoding and spelling. (SE-43)
· In choosing the skill level to follow, Ms. Pasquill decided to meet Student at her independent skill level consistent with test results completed earlier that year. (PE-50) Ms. Pasquill stated that by the summer 2003, in math, Student had mastered addition although because of her weak retention skills, she required constant re-teaching. She covered “addition and subtraction with re-grouping, multiplication to the five’s, money, time, and a little geometry.” (PE-50) Money was a difficult area for Student and she required frequent re-teaching. In reading, she worked on “Beware of Dog” which contained vocabulary at a seventh grade level, and although she was willing to read every other page out loud, she required considerable assistance but was able to follow the story line. (PE-50)
· During the school year, Ms. Pasquill tutored Student at home approximately four times per week for 2 hours each day. (SE-49; Testimony of Ms. Pasquill) Between 2003 and March 2004, Ms. Pasquill wrote letters making recommendations on how to best address some of Student’s learning style issues. (PE-50) During that period of time, she was Student’s Wilson Language instructor through Middleborough as well as privately during the summer of 2003. (PE-50)
· The Teacher STAR Reading diagnostic report for testing administered orally to Student on May 19, 2004, during the 7 th grade, showed her reading skills to be at the fifth grade level, having obtained a national Percentile Rank of 13, in contrast to the results of the diagnostic test done on October 29, 2003 when Student achieved a 3.2 grade equivalence with a national Percentile Rank of 4. (SE-47) Student’s reading teacher, Judy Gordon, stated in the June 2004 progress report that Student’s progress in this area was steady but very slow although she showed very good effort. Student required repetition and review continuously. (SE-48)
· The Progress reports for the 2003-2004 school year state that Student worked hard that year but she had not met her IEP goals in comprehension, written language, improving expressive and receptive language skills and math, although she continued to make good progress towards achieving her goals in these areas. (SE-48) The math progress report states that she made good progress in life skills including banking, checkbook, and other areas when given prompts and cue cards to assist her with math vocabulary. She had also gained some knowledge of adding, subtracting, and multiplying fractions. (SE-48)
· Following a Team meeting on May 14, 2004, on May 24 th Middleborough forwarded Parents an IEP amendment addressing Student’s IEP for the 8 th grade at the J.T. Nichols Middle School.4 (PE-A1; SE-49; SE-50) This IEP called for a partial inclusion program with pullout services for math, comprehension, written language, and speech and language. Parents accepted this IEP on September 8, 2004. (PE-A1; SE-49) Student’s Team convened again on October 27, 2004, but no changes were made to her IEP. (SE-51)
· Student received a “Warning” in the Mathematics portion of MCAS administered in the spring 2003, and the English Language Arts portion of MCAS administered in the spring 2004. (SE-56)
· Student’s Report cards for the 2002-2003 and 2003-2004 school year show a B/C grade average. (SE-56) The report card for the second term of the 2004-2005 school year shows that Student had a C in Music, B in Physical Education, B- in Health, B in English, F in Integrated Math, C in Science, D+ in Social Studies, and a B in Reading Literature. (SE-56) Student completed a Math Portfolio in lieu of her MCAS requirement. (SE-55) Progress notes dated June 2, 2003 reflect that Student often refused support from her teachers and preferred to guess her answers. She could also “show a negative attitude in a passive way.” (PE-A7) Student required re-direction on most of her academic assignments. The progress notes for June 2003 and June 2004 reflect that although Student made progress toward meeting her IEP goals, she did not meet all of her benchmarks in comprehension, written language, math calculation, and in improving her expressive and receptive language skills. (PE-A7; PE-A8)
· The November 23, 2004 IEP progress reports state that Student continued to require “maximum assistance toward achieving her goals” in improving receptive language skills, and in expressive language skills she required prompts before volunteering information both in small group and classroom situations. (SE-53) The information in the progress reports is consistent with the Teacher Assessments completed on March 8, 2005, in preparation for Student’s three-year re-evaluation. (SE-57)
· On January 5, 2005, Middleborough forwarded Student’s testing results to Bristol- Plymouth for the 2005-2006 school year. (SE-53) Parents also signed a release of information for the READS Academy. (SE-54)
· Student’s report card for the first and second terms of her eighth grade year, dated February 16, 2005 provide as follows;
Term One – Term Two
Music C C
Physical Education A B
Health B- B-
English B B
Integrated Math D+ F
Science C- C
Social Studies C D+
Reading Literature B B
Student’s conduct was excellent or satisfactory in every class except for Integrated Math and Social Studies where her effort was deemed to be unsatisfactory. (PE-A12)
· As part of the three-year re-evaluation Kate Hetu, MS CCC/SLP, performed a Speech and Language evaluation on May 3, 4, and 5, 2005. (PE-47; SE-58) At the time Student received speech and language services once per week in small group pull-out and once per week in the inclusion setting. Teachers reported that Student tried hard not to be noticed in class or called on to participate and that she had difficulty understanding the information presented, especially when it was multi-step, and responding to the information. She also had difficulties with retention of foundation skills and material that was new. Student’s ability to formulate sentences was weak and she had difficulties with carry-over into the classroom. (PE-47; SE-58) The tester administered the Peabody Picture Vocabulary Test (PPVT-IIIB) (scored a 78, moderately delayed); Expressive One Word Picture Vocabulary Test-Upper (EOWPVT-UE) (Total score of 67, severely delayed for her age5 ); Clinical Evaluation of Language Fundamentals – Third Edition (CELF-3) inclusive of the Expressive and Receptive Language Subtests; and Fisher Logemann Test of Articulation. Student was found to do well in structured tasks and was observed to show lack of motivation to participate in articulation therapy. (PE-47; SE-58) During the evaluation Student was not observed to utilize compensatory strategies and was not motivated to correctly produce sounds. Overall, Student was found to present with severely delayed expressive and receptive language skills with sentence formulation as a relative strength. From a functional standpoint, Student could make her needs understood and met. Ms. Hetu recommended that Student continue to receive speech and language services to strengthen “sentence formulation skills, sequencing and compensatory strategies for auditory processing and memory skills as well as word retrieval.” (PE-47; SE-58) Ms. Hetu also recommended multiple accommodations in the classroom. ( Id. )
· Student’s progress reports for the 2004-2005 school year, dated May 2005 and June 2005, state that Student showed progress regarding her improving expressive and receptive language skills goals, but she was not expected to achieve her annual goal by the end of that IEP period. (PE-A9; SE-59) Comprehension and written language progress reports dated June 5, 2005 state that Student’s attainment of her annual goals was imminent. (PE-A9; SE-62) The Math Reasoning goal states that Student met and exceeded her goal for the year and states that Student will need prompting and modeling for understanding in high school. (PE-A9; SE-62)
· On June 7, 2005, the end of Student’s eighth grade, Susan Cullen, C.A.G.S., Middleboro school psychologist, performed a psycho-educational evaluation. (PE-48; SE-60) The WISC-IV and the Woodcock-Johnson educational Battery Test of Achievement (W-J III) were administered. Overall, Student scored in the extremely low range of intelligence as measured by the WISC-IV. Her Verbal Comprehension Index score was 75. The comprehension subtest required Student to respond to questions based on her understanding of general principles in social situations using past experience and using practical information including social judgment and common sense. Student fell within the borderline range of ability in this category. (PE-48; SE-60) In the Perceptual Reasoning Index, Student obtained a composite score of 69, placing her in the extremely low range of ability. This test measures abstract categorical reasoning ability, visual informational processing and abstract reasoning skills. For working Memory Index, Student obtained a composite score of 68 also in the extremely low range of ability. Subtests within this category measure rote learning, attention, auditory processing, cognitive flexibility, memory, and mental alertness. The letter number Sequencing subtest involves mental manipulation, attention, sequencing, short- term auditory memory, and processing speed. Student obtained a composite score of 70 in the processing speed index, which measures mental and graphomotor processing. (PE-48; SE-60) In the W-J III, Student obtained a standard score of 71 in Reading, 61 in Mathematics, and 71 in Writing Fluency. ( Id. ) Ms. Cullen concluded that Student remained eligible to receive special education services. (PE-48; SE-60) Student’s evaluation confirmed her intellectual and communication disabilities. (SE-61)
· Student’s Team met on June 14, 2005 and recommended that Student continue her high school education at the Bristol-Plymouth Regional Technical High School (Bristol-Plymouth). (SE-61) Many of Student’s middle school like-peers would also continue onto Bristol-Plymouth. (Testimony of Ms. Morrissey, Ms. MacDonald) The IEP would be developed by Bristol-Plymouth and would include level 5, co-taught classes in all areas, and speech and language services. (SE-61)
· Parents had Student evaluated by Rachel Wiseman, Psy. D., at the Children’s Evaluation Center on July 14, 19, 26 and August 2, 2005. (PE-44; SE-80) In addition to gathering information through a parental developmental questionnaire and the Achenbach Child Behavior Checklist, Dr. Wiseman administered the Stanford Binet Intelligence Scales: Fifth Edition, Wechsler Individual Achievement Test- Second Edition (WIAT-II); Automatized Series; Wide Range Assessment of Memory and Learning-Second Edition (WRAML-2); California Verbal Learning Test-Children’s Version (CVLT-C): Clinical Evaluation of Language Fundamentals- Fourth Edition (CELF-4); Beery Developmental Test of Visual- Motor Integration (VMI); Rey Osterreith Complex Figure; Grooved Pegboard. (PE-44; SE-80) Student was described by her eighth grade math and language arts teachers as a friendly, considerate, and eager learner who “experienced great difficulty comprehending, retaining, and applying information.” (PE-44; SE-80) In class, she evidenced difficulty completing assignments and keeping pace with classmates. Her demeanor was shy, anxious, and worried, and she came across as self-conscious. She also presented heightened emotional sensitivity. ( Id. ) Parents described her as a typical teenager who was animated, happy, and sociable. However, when faced with school related demands or called upon to use learned skills in the community such as making change at a store, she appeared embarrassed, sad, and withdrawn. (PE-44; SE-80)
· Student was cooperative and polite during Dr. Wiseman’s evaluation, and responded well to encouragement when presented with complex tasks. (PE-44; SE-80) According to the test results, Student’s range of intelligence fell within the lower end of the low average range. Verbal skills fell within the low average range in contrast to her non-verbal skills, which were further reduced falling in the borderline range. Dr. Wiseman found that depending on the testing instrument, Student was able to demonstrate relatively higher-level skills. Overall, Student’s abilities in reading, spelling, and arithmetic fell significantly below grade expectations consistent with a mid third to fourth grade level, and in the mid-second grade level for math. Student’s expressive and receptive language delays were evident and consistent with previous test results. (PE-44; SE-80) She presented with better decoding skills than reading comprehension skills. Visual motor integration also fell significantly below age expectations. (PE-44; SE-80)
· Dr. Wiseman stated in her report that Student Experiences greater success when provided with sufficient structure and clearly delineated expectations, as would underlie, for example, rule-governed tasks. However, in novel situations where she is expected to independently implement problem solving strategies, or in which cognitive flexibility is demanded, her functioning is markedly compromised. As [Student] evolves, an increasing diversion between her path and that of her peers can be projected, therefore, the continuation of specialized services and a systematic teaching approach will be crucial for her effective participation at school… Of additional and important consideration is [Student’s] emotional functioning as it relates to her school and community experience. The frustration she encounters when academic demands are placed has a strong impact on her self-esteem, as she tends to feel less competent than her peers and embarrassed regarding her learning challenges. While she has formed strong friendships and enjoys numerous social activities, [Student] attempts to hide her difficulties from her peers, further lending to her feelings of distress. (PE-44; SE-80)
Dr. Wiseman stated that going forward, Student would require greater levels of specialized programming than were currently offered so as to effectively promote skill development. (PE-44; SE-80) She found that neither mainstream nor inclusion models would be appropriate and stated that Student required a setting that offered “increased structure, individualized attention, additional personnel to provide extra support, and modified instruction necessary for her meaningful participation.” (PE-44; SE-80) Student would require a curriculum specifically designed to meet her at her level. Said instruction would have to be delivered by special education teachers with expertise working with youngsters like Student. Dr. Wiseman recommended that Student receive services in a substantially separate, language-based classroom with like peers. (PE-44; SE-80) Student’s instruction should have a functional component so as to ease Student’s ability to carry out every day tasks in the community. Individual counseling to address emotional issues, develop assertiveness and build self-advocacy skills was also recommended. She also recommended the continuation of speech and language therapy with an emphasis on comprehension, expressive, and receptive language skills such as vocabulary development, formulation, and organizational skills. (PE-44; SE-80) Dr. Wiseman supported conducting a vocational assessment in the future to explore Student’s interests and skills. Any vocational tasks incorporated into Student’s schedule should be structured and supervised, and should also be designed toward maximizing independence. Dr. Wiseman also recommended that additional testing take place before Student’s next major transition to monitor her functioning and assess how Student’s needs change over time. (PE-44; SE-80) Dr. Wiseman recommended that Student receive services within a regular high school program rather than through the technical high school. (Testimony of Mother)
· During the summer 2005, Student befriended a boy whom Parents believed to be a bad influence on their daughter. (Testimony of Mother) This relationship would contribute to the breakdown in communication between Student and Parents, and began a downward spiral of events that caused Student’s emotional difficulties. (Testimony of Mother, Father)
· In August 2005, Parents contacted Middleborough to inform them that Student would not be attending Bristol-Plymouth and instead would be attending Middleborough High School. According to Parents, Student had a good summer but was disappointed that she would not attend Bristol-Plymouth with some of her peers from middle school. (Testimony of Mother, Ms. Morrissey)
· Middleborough forwarded Parents an invitation to participate in a Team meeting to discuss Student’s re-entry into the school. (SE-65) On August 31, 2005, Student, Mother, Lisa McDonald, Middleborough school psychologist and Team chairperson (SE-98), and Gail Morrissey, Middleborough Special Needs Teacher (SE-100; SE-104), met to discuss Student’s program in Middleborough High School and to develop a new IEP. (PE-A2; SE-64; Testimony of Mother, Ms. McDonald, Ms. Morrissey) The IEP, which was accepted orally by Mother, offered Student participation in a partial inclusion program that provided her with 9 times 87 minutes per week of skills support in the regular education classroom and direct services in a substantially separate setting as follows: skills support three times 87 minutes per week; language services three times 87 minutes per week; and speech and language one times forty-five minutes per week. (SE-64) The IEP was forwarded to Parents on October 25, 2005, and covered the period from September 1, 2005 through August 31, 2006. (PE-A2; SE-64) The record contains no signature page reflecting Parents’ acceptance of this IEP. ( Id. )
· Student began the 2005-2006 school year at Middleborough High School under the accepted IEP labeled PE-A2, SE-64. ( Id. ) On the first day of class, when Mother went to pick up Student, she realized that Student had lied to her earlier that day when Student alleged that she had to stay at school late, and instead unbeknownst to anyone and, without Parents’ permission, had gone to her boyfriend’s house. Parents did not approve of her boyfriend and forbid Student from seeing him again. (Testimony of Mother) Student was upset and angry about her Parents’ decision. Thereafter, according to Mother, Student began to dress in dark Goth-like clothes and make-up, and began associating with some students who were bi-sexual and used drugs. She also spoke about vampires and suicide. (Testimony of Mother, Ms. Pasquill)
· On or about October 5, 2005 Student was admitted to the Adolescent Partial Hospital Program at Pembroke Hospital when her Parents discovered that she had written in her journal that she wanted to kill herself. (SE-63; Testimony of Mother) Upon admission, Student stated that she had been grounded by her parents for one month for having gone to her boyfriend’s house after school without her parents permission and for having lied about it. (SE-63) Student was discharged on October 11, 2005. The discharge diagnosis was as follows:
Axis I Adjustment reaction with mixed emotional features 309.28
Axis II Deferred
Axis III Non-contributory
Axis IV Primary support, educational
Axis V GAF: admission = 45; discharge = 55
The discharge summary states that Student did not present any neurovegetative signs of depression, and she stated during her stay that she had no suicidal or homicidal ideation and that she only wrote the statement in her journal out of anger. During the partial day stay at Pembroke Hospital, Student remained anxious while she worked on coping skills and attempted to gain insight into her behavior. (SE-63) In discussions with Mother, it was determined that Student would participate in psychotherapy but that she would not be placed on medication treatment. Student was discharged home with a good prognosis by M. Elice Kearns, MD, MPH. (SE-63)
· Student began receiving therapy on October 27, 2006 with Julie Robinovitz, MSW, LICSW. (SE-66; Testimony of Mother, Father) Parents terminated Student’s therapy in early December 2006 because they disapproved of the therapist’s view that most of Student’s issues stemmed from her then difficult and antagonistic relationship with Parents. (SE-66; Testimony of Mother, Father)
· The North East Health Services, Diagnostic Treatment Plan notes dated October 27, November 8, 29, December 1, 8, 2005 and January 3, 2006, completed by Julie Robinovitz, state that Student was treated for depression regarding a break-up with her first serious boyfriend of whom Parents disapproved; issues of peer and family relationships; adolescent issues; deciding family values that were important to her; anxiety; poor judgment; low self-esteem; identity issues, and intra-family communication issues. (SE-66) Student reported poor appetite and sleep. She felt hopeless about the future and found it difficult to concentrate in school. The progress note for December 8, 2005, discusses stressors at home. The notes state that Student was angry and had threatened to harm herself after Mother had arrived in school and embarrassed her in front of her peers. (SE-66) On January 3, 2006, Student had a psychiatric evaluation/medication assessment but she was not placed on medications. (SE-66)
· On or about November 16, 2005, Student walked into Tanya J. Sullivan’s office in Middleborough. Ms. Sullivan is a school guidance counselor (SE-103) who offers counseling services as part of the array of regular education services offered to all students in Middleborough. (Testimony of Ms. Sullivan) Student met with Ms. Sullivan six times, thirty minutes each, between November 2005 and February 2006. According to Ms. Sullivan, the two enjoyed a good relationship. ( Id .; see also PE-52)
· Student’s Middleborough progress reports for the period through November 17, 2005 state that Student had a great deal of difficulty transitioning to the high school setting. (PE-A10; SE-67) In Skills Support, she did not consistently bring her work, and required reminders to complete assignments and to participate in classroom activities. Ms. Morrissey noted some improvement since the beginning of the year and opined that if Student continued to do her work, she would achieve her goals by the end of the year. (PE-A10; SE-67; Testimony of Ms. Morrissey) In comprehension, Ms. Morrissey stated that Student could write simple paragraphs. That quarter, she had not worked on writing a structured composition. With verbal prompts and reminders, Student could recall simple facts from readings. Student, however, could not state the main idea of a reading selection. Ms. Morrissey expected that Student would achieve her annual goal in this area by the end of the IEP period. (PE-A10; SE-67) Dayle Carroll, MS, CCC-SLP, was not sure whether Student would meet her language comprehension and expression goal. His progress report for the same period stated that Student had shown inconsistent effort and that she was not an active participant in the therapy sessions. She frequently responded with one or two words and required prompting to expand upon her thoughts or ideas. She was able to produce compound sentences when cued and was able to describe one or two characteristics of familiar words as well as one to two words in the directions presented to her. (PE-A10; SE-67)
· Dr. Wiseman observed Student in the Middleborough program on December 1, 20056 . (PE-45; Testimony of Dr. Wiseman) In Middleborough, Dr. Wiseman observed Student in her program for approximately two hours. Student’s program provided a combination of inclusion classes, following a co-taught model with a regular and a special education teacher and an aide, and a substantially-separate classroom experience. (PE-45) Student received her language skills, Wilson Reading program, and skills support in the substantially-separate classroom and met with the school counselor to address her emotional issues. In the World History class, there were approximately 26 other students. Student sat quietly in the front row and copied notes from the blackboard without participating in the discussion. The aide approached her three times to offer assistance, which Student declined for the most part. She also did not interact with other students in the class. (PE-45; Testimony of Dr. Wiseman) Dr. Wiseman spoke with Student’s history teacher who stated that the quality of Student’s work was significantly lower that that of her peers and that Student struggled with written output and concept acquisition. The teacher further noted a difference between the quality of the homework assignment Student completes with her home tutor and the work produced by her in class. (PE-45; Testimony of Dr. Wiseman, Ms. Pasquill)
· Student was also observed during the Wilson Reading class, which she received with two other students in the Learning Center. (PE-45) Students took turns “reading passages, generating sentences and spelling words.” (PE-45) Student participated in all of the activities, complied with all of the requests made of her, but was not observed to engage in spontaneous conversation with her classmates on that day. (PE-45) Dr. Wiseman observed progress regarding Student’s level of confidence and comfort since the beginning of the school year, but her reading skills remained significantly low. In conversation with Student’s language skills and skills support classes teacher, the teacher raised concerns on how emotional factors impacted on Student’s overall participation and performance. According to the teacher, Student was very sensitive about her learning disabilities, was equally resistant about accepting support and assistance, and avoided going to class. She saw Student as being overwhelmed by the daily demands in school and also questioned whether Student was putting forth adequate effort. Student’s social skills were a strength, but also presented a problem as her presentation as a typical teenager created a distance between her and other students with disabilities. (PE-45)
· On December 8, 2005, Gail Morrissey completed a Riverview School Recommendation form on behalf of Student. (PE-51) Ms. Morrissey stated Student was not completing her class-work regularly, in her opinion because Student did not know how and did not want to admit it to herself or to others. She resisted asking the special education staff for help and insisted on doing it on her own even when she could not. Ms. Morrissey further stated that while Student related well to students in the mainstream socially, she did not relate well to her intellectual peers in the Learning Center. In her opinion, Student’s inability to accept her disability impacted on her emotional stability. (PE-51)
· Student’s Team met on December 15, 2005 to discuss Student’s placement in light of Middleborough’s staff and Parents’ concerns regarding Student’s progress. (PE-A3; PE-68) Student was experiencing difficulties in inclusion classes and was exhibiting distress, sadness, and anxiety at home. (PE-A3; SE-68; Testimony of Mother, Father, Ms. Morrissey, Ms. Carroll, Ms. Pasquill, Ms Sullivan, Mr. Collins) Dr. Wiseman participated in the meeting and discussed her evaluation findings7 . (PE-A5; SE-68) Other participants were Student’s parents, Lisa McDonald (Team facilitator), Gail Morrissey (special education teacher), Andrew Collins (general education teacher; see SE-90), Dayle Carroll (speech and language pathologist; see SE-101), Taryn F. Carbone (school psychologist; see SE-102) and Tanya Sullivan (school adjustment counselor). ( Id .) The Team recommended that Student’s inclusion courses be eliminated from her schedule and that they be replaced with more language oriented classes, functional mathematics, and vocational courses. Under the new plan, Integrated Math I, Integrated Science, World History II, and Skills Support would be eliminated. Instead, Student would receive Functional Math, Reading, Critical Thinking, and Community. The Team was attempting to reduce the academic stress while providing Student an opportunity to adapt to the demands of high school. (PE-A3; SE-68; Testimony of Ms. Morrissey) The intent was to try the new program through January 2006 and reconvene the Team at that time to discuss Student’s progress and discuss any changes that might be required. While the possibility of an out of district placement was discussed, the Team opted to try the new plan at Middleborough High School (MHS). (PE-A3; SE-68)
· The new IEP drafted as a result of the December 15, 2005 meeting was forwarded to Parents on January 4, 2006. (PE-A3; SE-68) As discussed at the meeting, the plan proposed to maintain Student’s placement at MHS with a different scheme for provision of services. Student would receive direct services in a substantially separate classroom during a six day cycle as follows: Language with a special education teacher twelve times 87 minutes; Functional Math with a special education teacher three times 87 minutes; Community with a special education teacher three times 87 minutes; and speech and language with the speech and language pathologist one times 45 minutes per week. (PE-A3; SE-68) The IEP did not envision Student’s participation in an extended day or school year program. ( Id. ) According to Parents, they discussed the new plan with Student after the December Team meeting but Student refused to participate in the newly proposed program. (Testimony of Mother, Father)
· On January 5, 2006, Tanya J. Sullivan completed a summary of counseling or psychotherapy services and assessed Student’s social, emotional, and behavioral state. (PE-52) Ms. Sullivan had begun counseling Student on November 16, 2005. Student was referred to address issues of self-esteem, frustration, and a mild depression. Student was mostly concerned about interactions with peers, family, and teachers. When angry, Student had made statements in her journal that she wanted to kill herself, but she never conveyed any ideation of a desire to die and did not present any harmful behaviors. (PE-52) Ms. Sullivan found Student’s dependency on adults and peers as appropriate for her age, and she seemed frequently unhappy as she struggled to please adults and peers. Student often withdrew or resisted help when offered, but teachers and providers had noticed some recent improvement in that respect. Ms. Sullivan viewed Student as a follower and opined that she required a great deal of verbal support to make good decisions. Student’s family ties were very strong, and she received support from her family in making every-day decisions. Student was found to be very young intellectually and emotionally demanded constant support and effective supervision. Ms. Sullivan recommended that clear and concrete expectations be set and that issues be talked out with Student to assist her in assessing past situations and creating new strategies. (PE-52) She required the use of concrete, straightforward language with a great deal of reinforcement of all concepts. Ms. Sullivan recommended individual as well as group counseling and also recommended small group academic support. (PE-52)
· Charlene Bizinkauskas, a special needs teacher at Middleborough High School (see SE-97; SE-104), taught Student Reading Strategies during the 2005-2006 school year in a group with three students. (SE-87) In this class Student was very motivated, cooperative, and pleasant serving as a role model for the other two students in class. The class followed the Wilson Reading System guideline, which involves out-loud reading, self-correction, the use of manipulative letters, and pre and post-tests. According to Ms. Bizinkauskas, Student’s vocabulary and word knowledge was quite good. When unfamiliar words were discussed, Student was able to retain the definition of the word and could recall it and use in correctly in a sentence. Student’s confidence was observed to improve and she appeared to enjoy the remedial attention. The class offered a venue for her to talk about her travel adventures, which she was able to describe eloquently and for which she received compliments from her peers. Ms. Bizinkauskas opined that this was an effective way to connect real life experiences with the vocabulary they were working on. (SE-87) She further stated that the 90 minutes of instruction in Reading Strategies was very helpful to Student and was meeting her needs in this area. Ms. Bizinkauskas further stated that Student was benefiting from the Wilson Program and that she was absorbing the rules and phonetic codes, which would strengthen her reading skills. (SE-87)
· Student’s Team convened again on January 25, 2006. (PE-A4; SE-69) This meeting had been set up with the intention of discussing Student’s progress in the new program. However, she never participated in it. (PE-A4; SE-69) The Team participants included: Parents, Lisa McDonald, Gail Morrissey, Andrew Collins, Dayle Carroll, Tanya Sullivan, and Dr. Wiseman. (PE-A6) The Team once again proposed that Student attempt the changes proposed in December 2005. Parents’ response to the IEP was due by February 4, 2006. The program would be highly individualized for Student with the intent to focus on stabilizing her emotionally in the high school setting rather than focus on academic development8 . ( Id. ; Ms. Morrissey, Ms. McDonald, Ms. Sullivan, Ms. Bizinkauskas) Parents were concerned that Student would continue to fall behind if she did not receive the academic program she required as evidenced by the test results from Dr. Wiseman’s evaluation. Lisa McDonald, Team chairperson, forwarded the IEP to Parents on January 27, 2006. (PE-A4; SE-69)
· On February 6, 2006, Parents’ attorney notified Middleborough of Parents’ rejection of the program and placement proposed by Middleborough and their intention to enroll Student residentially at the Riverview School. (PE-15; SE-70) Middleborough was further informed that Student’s last day in Middleborough would be February 17, 2006. Middleborough forwarded Student’s rejected IEP to the BSEA on February 16, 2006. (SE-75)
· Student’s Progress Reports from Middleborough, dated February 8, 2006, state that while Student’s Team was in agreement that her program had to change, there was disagreement as to where the program should occur. (PE-A11; SE-71) The Skills Support report stated that Student continued to evidence difficulty adapting to the high school, she did not complete her assignments in the inclusion classes in a timely manner, and she did not participate in the class activities. Student failed to bring her work to the Skills Support class. ( Id. ) In Comprehension, she was able to recall some basic facts from “To Kill a Mockingbird” but required constant reminders of the names of the main characters, the basic plot, etc. She had difficulty stating the main idea and could only write a simple paragraph with assistance. By February 2006, she had not written a structured composition but did well on vocabulary quizzes when she studied for them. (PE-A-11; SE-71) Dayle Carroll, MS, CC-SLP, noted that Student had made significant improvement regarding her participation in language Comprehension and Expression during the previous term. She could describe two to three characteristics of a work with minimal prompting, could identify two to three key words from verbally presented directions during the structured therapy sessions, and had progressed in her ability to produce compound sentences. Overall, she appeared more comfortable asking for clarification and asking questions, and seemed more willing to take risks during therapy. (PE-A-11; SE-71)
· On February 9, 2006, Parents’ attorney notified Middleborough that they expected to be reimbursed for their unilateral placement of Student at Riverview. (PE-15; SE-72) Middleborough’s attorney responded on February 11, 2006 that the district would not reimburse Parents for Student’s unilateral placement at Riverview. (SE-74)
· Middleborough requested Parent’s consent to have Student participate in a personality assessment to be conducted by a clinical psychologist. (SE-73) The request was renewed via letter dated February 11, 2006. (SE-74) On or about February 27, 2006, the Parties agreed to have Dr. Neal Bowen perform the psychological evaluation and also observe Student at Riverview School. (SE-76) On or about March 26, 2006, Parents were requested to complete the Behavior Assessment System for Children, Second Edition (BASC-2) as part of the personality assessment. (SE-77; SE-78)
· Neil E. Bowen, Ph.D. in Clinical Psychology, (See SE-105 & PE-16, his curriculum vitae) performed Student’s psychological evaluation on April 5, 2006. (SE-81) Dr. Bowen stated that during an interview with Student prior to starting the testing she stated that she wanted to stay in Middleborough High School where she had several friends and felt happier. She acknowledged that she had been unwilling to access help from special education staff at Middleborough. She also mentioned that she found her classes in Riverview manageable and stated that even though she felt homesick, her Parents had told her that she “must get used to [Riverview].” (SE-81) According to Dr. Bowen, Student reported feeling very depressed since arriving at Riverview and entertaining suicidal thoughts, though she had no plan to act on them. Also, she stated that she seldom felt angry or anxious, though she had had some confrontation and arguments with her parents in the past regarding rules and restrictions. (SE-81) Student seemed to be more focused on personal relationships than on educational concerns, and she was still seeing a counselor at the time of the evaluation. Student reported having one or two friends at Riverview. Student further stated that her parents had been concerned that some of her friends in Middleborough smoked marijuana, and although she understood her parents’ concerns, she would have never used drugs. At the time of the evaluation, Student stated that she had no career or vocational plans. (SE-81)
· Dr. Bowen found Student to be sad and somber during the evaluation, but she appeared comfortable and behaved cooperatively providing open and responsive answers. (SE-81) She was able to sustain attention to task during the evaluation, and her gross and fine motor skills were found to be within broad normal limits. Dr. Bowen found that Student’s conversation and responses to questions were age appropriate but not in terms of scope and sophistication. Student appeared conscientious in her approach to the test, and the evaluator found the results to be valid. The Rorschach results showed that Student was capable of empathy and emotional insight with little denial or suppression of affect. She saw herself as sad, acutely aware of negative experiences and feelings, and surrounded by forces over which she had no control. To Dr. Bowen a couple of Student’s responses appeared to be descriptions of the way she felt: she saw a “heart ripping apart” and “a bomb exploding …and somebody’s in the middle of it.” (SE-81) Student’s responses in the Thematic Apperception Test were about rejection and loss. Multiple times she spoke about someone beloved dying. Dr. Bowen concluded that student came across as acutely and deeply depressed, and feeling abandoned as demonstrated through the projective testing. This left her considering suicidal thoughts at times. She scored at the 92 nd percentile level regarding her depressive feelings in the Reynold’s Adolescent Depression Scale. (SE-81) Dr. Bowen concluded that
Student does appear to be in an emotional crisis, marked by acute sadness, a sense of rejection or abandonment, and some suicidal preoccupation. While [Student] dates these feelings to her placement in her present school, it is impossible to tell whether the feelings began then, or have only become exacerbated by her placement. And while some period of adjustment and some sense of emotional loss is likely to be seen in many young students leaving home for a residential setting, [Student’s] feelings appear to be so palpable and acute as to be beyond what can normally be expected. Moreover, she is clearly having some suicidal thoughts, and her fantasies as revealed in projective testing show at times some glamorization of the idea of dying by suicide.
Dr. Bowen opined that Student’s childhood traumatic abandonment experiences9 make her more vulnerable than others to experiences she may perceive as a form of abandonment or rejection. He recommended that in addition to the counseling Student was receiving, she should have a psychiatric evaluation. (SE-81) Student’s safety and depression would have to be addressed in whatever setting she found herself. Dr. Bowen stated that it would be difficult for Student to make a successful adjustment into any setting, which she believed represented some form of rejection of her. (SE-81) He further stated that Student’s concerns about where she belongs and what she means to those she loves should be addressed through family therapy. In the past she turned to her peers for uncritical acceptance, and there is a danger that she may impulsively do the same in the future. (SE-81)
· As part of the evaluation, he observed Student in Math class at Riverview. (SE-81) She participated quietly. Dr. Bowen’s report was forwarded to Parents’ Attorney on May 5, 2006. (SE-81) Parents’ waived their right to convene the Team to discuss the results of Dr. Bowen’s evaluation. (SE-83)
· At Riverview, between Monday and Fridays, students were awaken at 6:30 a.m. for their hygiene and room care routines. (SE-108) They had breakfast between 7:30 and 7:50 a.m. and were then released to their homerooms at 8:10 a.m. (SE-108) Student attended academic courses between 8:30 am and 3:00 pm as per her schedule at SE-106:
8:15-8:30 Homeroom Ms. Lashway
8:30-9:30 Reading Ms. Hastings
9:30-10:30 English/ Language Arts Ms. Hastings
10:30-11:30 Math Ms. Hastings
12:00-1:00 Physical Education Mr. Benkis/ Mrs. Russell
1:00-2:00 Science Mr. Wannie
2:00-#:00 History/ Social Science Ms. Hastings (SE-106; SE-
At 3:05 p.m. students returned to their dorms, had a snack, changed clothes, and proceeded to their after-school activities or athletic practices held from 3:45 p.m. to 4:45 p.m. (SE-108) The students then returned to their dorms and had dinner and chores, or chores and then dinner, between 5:05 p.m. and 6:25 p.m. From 6:30 to 7:30 p.m. students had study hours/TLC10 , followed by coed visits and a snack between 7:30 and 8:00 p.m. Evening activities, such as fitness, intramurals, gym, or dorm visits, took place between 8:00 and 9:00 p.m., followed by quiet time between 9:30 and 10:30 p.m., and lights were out at 10:30 p.m. (SE-108) Students followed a different schedule on Saturdays and Sundays. ( Id. )
· On or about February 23, 2006, Mother e-mailed Ms. Sheryl Heggi, Student’s head teacher at Riverview, requesting information regarding Student’s attendance at classes, as well as her attention and effort in class. (PE-22) Parent communicated her concern regarding Student’s social choices. (PE-22) Ms. Heggi stated that each day Student seemed to do better in social situations and seemed more comfortable in classes. Ms. Heggi also reported an incident which took place on February 23, 2006, where Student skipped her gym class and was found in the gazebo with an older female student. Student was escorted by Mr. Wannie, Student’s advisor, after he discussed with both students issues regarding responsibility and safety. (PE-22; Testimony of Mr. Wannie) Ms. Heggi agreed that at the time, Student seemed to be making poor choices and seemed to have difficulty following directions in general and as of March 3, 2006 had not developed trusting relationships in school. (PE-22; PE-23) Ms. Heggi provided general updates via e-mail to the parents of her ninth grade students, including Parents, throughout the period from February through June 2006. (PE-24; PE-25; PE-26; PE-27; PE-28; PE-29; PE-30; PE-31; PE-31; PE-32; PE-34; PE-35, PE-37; PE-38; PE-39, PE-40) Specific communications regarding Student took place on March 13, 14, May 4, 2006. (PE.26; PE27; PE-33; PE-36)
· E-mails between Ms. Heggi and Parents reflect that by March 13 and 14, 2006 Student had begun to develop positive friendships at Riverview and had become more involved in school. (PE-26; PE-27) She was also able to buy her own food at the mall and made correct change. (PE- 27) Ms. Heggi stated that through Student’s projects, it became apparent to the Riverview staff that some of the academic expectations set by Middleboro for Student were too difficult for her. (PE-26; PE-27)
· On May 4, 2006, Ms. Heggi noted that Student was observed to smile more and was interacting more with classmates. Ms Heggi also stated that in class Student appeared more animated, although there were still areas of concern such as Accepting redirection appropriately (i.e. without rolling of eyes and “closed” body language) and empathetically “reading” situations where the feelings of others are involved. (PE-33)
Ms. Heggi stated that when confronted, Student responded that she was used to reacting in that manner in her old school. According to Ms. Heggi, although it would still take time, she believed that Student would be able to overcome the image she wanted to portray, and eventually would fit in and get used to Riverview. (PE-33) Student, however, had some good times at Riverview. (PE-33) Her e-mail to the parents of the freshman class for the week of May 8 – 12, 2006 reflects that general productivity and a positive, appreciative attitude were missing in this group of feisty individuals. Parents were enlisted to assist in working with their children to understand their role and responsibility as students and classmates. (PE-35) Overall improvement with the freshmen class was noted by the end of May beginning of June 2006. (PE-39; PE-40)
· Student was “Person of the day” on May 17, 2006. On that day, information about her was read over the intercom during the morning announcements. (PE-36) Student was very pleased according to Ms. Heggi, who also stated that Student had made a real effort to follow directions and be positive that week. (PE-36)
· On June 21, 2006, Adam Wannie, MA, LMHC, wrote a letter summarizing Student’s progress at Riverview over the previous four months. (PE-21) It states that when Student first entered Riverview, she was resistant, passive-aggressive, moody, disrespectful, and uncooperative. She maintained a negative attitude with both her peers and adults, and attempted to foster relationships with peers based on her negative attitude. (PE-21) According to Mr. Wannie, the staff at Riverview made it clear to Student that she would be provided with instruction, support, and guidance. Over time, she developed a trusting relationship with adults and peers, and her affect improved greatly. With this change in her behavior came increased engagement in academics and willingness to participate as part of a team in reports and projects. (SE-21) Her angry, sullen, un-motivated, negative adolescent attitude was replaced with a happy, energetic, engaging one. While in the beginning she could not wait to get out of Riverview and go home, by June she wanted to stay so that she could attend the prom. ( Id. , Testimony of Mr. Wannie, Father)
· In April 2006, Riverview drafted goals for Student in the areas of English Language Arts, speech and language, daily living skills, history/social science, social skills/work habits, science (ie., natural resources, rocks, and human sexuality), mathematics (ie., functional mathematics/making change and monetary skills), and reading. (PE-41; PE-42) Progress was reported in all areas; she had been attentive and participated with encouragement and cueing. By June 2006, Student had met her annual goals as per the benchmarks and objectives drafted by Riverview in all areas except mathematics, and social skills/work habits. (PE-41) Her report card shows that Student received an A and/or Pass for all her courses between February and June 2006 except for physical education where she received a B- in the third quarter and an A- in the fourth quarter. She was absent one day in the third quarter and 5 in the fourth. (PE-41) Student’s residential report card states that she excelled in room care and hygiene. She could dress herself and do her makeup and hair independently but needed assistance with reminders during transitions, refraining from gossip, and choosing appropriate dressing for the weather. (PE-41)
· In April 2006, Parents notified Riverview of their intention to continue Student’s enrollment there for the 2006-2007 school year. (PE-43)
· Student had attended Riverview as a residential student for approximately four months at the time Dr. Wiseman observed her there on June 9, 2006, one week before the end of the academic year. (PE-45) According to Dr. Wiseman, socialization with peers on campus is encouraged and specific parts of the day are dedicated to physical activity, self-care, and homework. The residential staff and the day school staff meet daily to discuss student issues, and each student is assigned a liaison. Student’s team includes 18 freshman students, and classes consist of eight students, grouped according to their ability level, and a teacher. The students’ schedule is the same each day. (PE-45) Student’s reading class was watching a movie at the time of Dr. Wiseman’s observation. In Math, the teacher was absent and the substitute teacher was not available, so Student and some of her peers spent a significant part of that period working independently on a computer program and then rejoined the class for the last 20 minutes when a different teacher filled in. (PE-45) Student was observed to follow along, and she asked the teacher one question. Additionally, Dr. Wiseman had an opportunity to speak with Student’s language arts teacher who stated that Student required more individualized services than originally thought but opined that she had made significant progress. (PE-45) A striking change was also noted by the teachers regarding Student’s emotional presentation. Student was described as sad and somewhat agitated when she first arrived. She reportedly stole from another female student and had other social difficulties. By June 2006, she had a sunnier disposition, and was reportedly more open and engaging with same age peers and teachers. After completing her observations in Middleborough and Riverview, Dr. Wiseman continued to recommend that Student participate in specialized programming designed to address her academic skill development and social/emotional wellbeing, in a setting supportive of Student’s vulnerabilities. She stated that the placement should also offer a functional component to increase successful participation in the community. (PE45)
· Dr. Wiseman opined that despite Middleborough’s efforts, Student’s difficulties there increased and because of her developed social skills, she could find no appropriate peer group with either the mainstream students or her cognitive peers. (PE-45) When Middleborough attempted to change the program for her, Parents notified the school that Student refused to attempt the new program out of fear of being stigmatized in a setting in which her social connections were with peers she felt were more competent than she. Regarding Riverview, and relying mostly on conversations with teachers and a review of the work portfolio, Dr. Wiseman opined that it had the elements of the type of program recommended by her. (PE-45; Testimony of Dr. Wiseman)
· Riverview is a Massachusetts special education approved school that provides day and residential services to students with a wide variety of needs who fall within the significantly below average to the lower end of the average range of cognitive and academic functioning. (PE-45) The majority of students are enrolled in the residential program which focuses on social, life, and leisure skills, as well as vocational and community skills. (Testimony of Mother, Father, Ms. Heggi) The residential/evening portion of the program emphasizes life skills and social skills. (Testimony of Ms. Hastings)
· Ann Solomon-Schwartz, psychotherapist, saw Student for individual counseling on February 24, March 1, 3, 9, 30, April 3, 6, 10, 13, 17, May 11, 15, 18, 23, 30, June 1 and 15, 2006. (PE-49) During the initial sessions Student, who was residing at Riverview, reported feeling homesick, missing her parents, and not understanding why her parents had placed her in Riverview where teachers seemed to be very strict and paid attention to her clothing. ( Id. ) During the sessions Student also discussed her brief hospitalization in the Fall 2005 and stated that it was there that she learned about cutting herself but denied doing it in March 2006. She missed her friends and discussed her old boyfriends as well as the difficulties she was having at home where she found Parents to be critical of her music choices and friends. Student also related that most classes seemed easier at Riverview, while others in which she still did not know what was expected were difficult. On March 30 th , upon returning from her two-week vacation, she made it clear that she did not want to be back in Riverview and was again feeling homesick, excluded from her family’s events, and was feeling rejected and punished. (PE-49) Discussions also centered on how Student was perceived by others, and how her behavior caused a reaction in others. At Riverview, Student disliked the constant scrutiny and the level of awareness the staff had of her actions and behaviors. In her mind, she could not get away with anything although she understood that others were not trying to be mean to her. (PE-49) On April 13, 2006, after returning from her Passover vacation, Ms. Solomon-Schwartz learned from Ms. Dividio, a residential staff member, that Student had cut herself. According to Ms. Solomon-Schwartz, Ms. Dividio had not shared the information with her earlier because Ms. Dividio was afraid that Parents would be told and that they would be angry. According to Ms. Dividio, Student had cut herself superficially because she was feeling miserable returning to Riverview. (PE-49; Testimony of Ms. Solomon-Schwartz) Ms. Dividio and Ms. Solomon-Schwartz agreed that Ms. Dividio would use strategies in the future for handling these issues and that she would also speak with Mr. Wanni, Student’s school advisor. (PE-49) In conversations with Ms. Solomon-Schwartz on April 17, Student stated that she would not cut herself again as it had not brought her any relief. By May 11, 2006, Student was getting in trouble daily with her teachers for not doing homework, and felt that she was being scrutinized for her choice of clothing. She reported trying to comply with the rules and dress code most of the time and stated that sometimes she did not understand what she was being corrected. Student had previously reported still missing her friends and family. (PE-49; Testimony of Ms. Solomon-Schwartz)
· Ms. Solomon-Schwartz’s notes state that Student gave the impression of being mature but she acted in ways that were younger emotionally and socially than her chronological age, but was starting to develop better judgment. (PE-49) On May 15, 2006, Student had returned from a visit to Washington with one of her classmates at Riverview, and seemed better adjusted to Riverview. Student expressed not feeling very sad or homesick anymore although she still did not feel connected to her teachers in Riverview. The therapy notes of May 23, 2006 state that Student pretended to understand situations in the past when in reality she had not understood what was happening from a social or emotional standpoint. On that date, Student also stated that she was no longer feeling rejected. Student also reported finding it difficult to focus on more than one conversation at a time. (PE-49) By the end of the school year, Student seemed more accepting of her parents’ decision to place her at Riverview although she was still ambivalent. She saw her family as more supportive and thought that in her old school teachers did not care or expected as much of her. (PE-49) Ms. Solomon-Schwartz testified that she last saw Student on September 13, 2006. At that time Student was not sure that she wanted to return to Riverview but was less oppositional than she had been in February 2006. (Testimony of Ms. Solomon-Schwartz)
CONCLUSIONS OF LAW
There is no dispute that Student is an individual with a disability, falling within the purview of the Individuals with Disabilities Education Act11 and the state special education statute.12 As such, Student is entitled to a free appropriate public education (FAPE).13 Neither her eligibility status nor her entitlement to FAPE is in dispute.
The areas of disability that impact her education are also not in dispute. The issue before me is whether Student’s needs were appropriately addressed by Middleborough, and if not whether Middleborough is required to reimburse Parents for their unilateral placement of Student in Riverview.
In determining whether Parents are entitled to reimbursement for their unilateral placement of Student in Riverview, Parents carry the burden of persuasion in showing that Middleborough’s program was inappropriate to offer Student a FAPE. Shaeffer v. Weast , 525 U.S. 983 (2005). This standard was established by the U.S. Supreme Court in a 6-2 decision issued in 2005 clarifying that the burden of proving that the proposed IEP and placement fail to provide the student the requisite special education, related services, accommodations, and assistive technology services sufficient to meet student’s needs in least restrictive setting appropriate for said student, is borne by the moving party, herein Parents. In the Court’s view,
Petitioners in effect ask this Court to assume that every IEP is invalid until the school District demonstrates that it is not. The Act does not support this conclusion. The IDEA relies heavily upon the expertise of school districts to meet its goals. It also includes a so-called “stay-put” provision, which requires a child to remain in his or her “then-current educational placement” during the pendency of an IDEA hearing. §1415(j). Congress could have required that a child be given the educational placement that a parent requested during a dispute, but it did no such thing. Congress appears to have presumed instead that, if the Act’s procedural requirements are respected, parents will prevail when they have legitimate grievances. See Rowley , supra at 206 (noting the ‘legislative conviction that adequate compliance with the procedures prescribed would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP’).
Under Shaeffer , Parents bear the burden of proving that the IEP program and services offered by Middleborouh in January 2006 were inappropriate to meet Student’s needs.
The IDEA and the Massachusetts special education law and the regulations promulgated under those acts, mandate that school districts offer eligible students a FAPE. A FAPE requires that a student’s individualized education program (IEP) be tailored to address the student’s unique needs14 in a way reasonably calculated to enable the student to make meaningful15 and effective16 educational progress. Additionally, said program and services must be delivered in the least restrictive environment appropriate to meet the student’s needs.17 Under the aforementioned laws, public schools must offer eligible students a s pecial education program and services specifically designed for each student so as to develop that particular individual’s educational potential .18 Educational progress is then measured in relation to the potential of the particular student.19 School districts are responsible to offer students programs and services that will allow them to make meaningful, effective progress but are not responsible to maximize an individual’s potential by offering him/her the best education possible.20
In the case at bar, since Parents are seeking reimbursement for a unilateral placement, they must show that Middleborough’s program was inappropriate. They must then show that Student required residential services and that their placement of choice, Riverview, was appropriate for Student. School Comm. of Burlington v. Dept. of Ed ., 471 U.S. 359, 369 (1985); Amherst-Pelham School Comm. v. Dept. of Ed ., 376 Mass 480, 482- 483 (1978). The U.S. Supreme Court explained in Florence County School District 4 v. Carter , 510 U.S. 7 (1993) that when parents decide to place their disabled child in a private school, without first seeking the consent of the public school district responsible for the child, they “do so at their own risk.” The fact that the student could make greater progress in the private placement than s/he would in the public school’s program is not determinative as to the issue of reimbursement. The question is “not whether the IEP [offered by the district] was prescient enough to achieve perfect results, but whether it was ‘reasonably calculated’ to provide an “appropriate” education as defined in federal and state law.” Roland M. v. Concord School Committee , 910 F. 2d 983, 992 (1 st Cir. 1990) In doing so, the public school district is not responsible to offer Student a “Cadillac” but rather a serviceable “Chevrolet” that allows Student to get around effectively. Arlington Public Schools , 8 MSER 187 (Crane, 2002) The actions of the school district in proposing an IEP cannot be judged in hindsight. Instead, the IEP is a snapshot that takes into account what was objectively reasonable in light of what the school district knew or reasonably should have known about the child at the time the IEP was promulgated; not a retrospective. Roland M ., supra at 992.
Careful review of the evidence before me shows that Middleborough’s December 2005 and January 2006 IEPs programs and services would have offered Student a FAPE in the least restrictive environment appropriate to meet her needs. In rendering this decision, I rely on the facts delineated in the Findings of Fact section of this decision, briefly summarized below, and incorporated by reference. My reasoning follows:
Student is a beautiful sixteen-year-old young woman who is a resident of Middleborough. She was adopted at 21 months of age. (SE-1) She lived with her parents in Middleborough until February 2006 when her parents placed her residentially in Riverview. (Testimony of Mother) Student has been diagnosed with microcephaly and presents with developmental delays across domains. (PE-45) Student’s levels of cognitive functioning range between the borderline level and the low average range with stronger verbal than non-verbal skills. (PE-45, PE-44, SE-80) Her academic skills fall generally within the third grade level. (Testimony of Dr. Wiseman) Visual motor integration as well as h er abilities in reading, spelling and arithmetic fall significantly below grade expectations consistent with a mid-third to fourth grade level, and in the mid-second grade level for math. She presents with stronger decoding than reading comprehension skills. (PE-44; SE-80)
Student began receiving educational services in Middleborough at the age of five through a combination of substantially separate and inclusion programs. (SE-4, SE-7; SE-14; SE-21; SE-34; SE-41; SE-49) All of Student’s IEPs up to August 31, 2005 have been accepted by Parents. (Testimony of Mother) Over the years Student made progress, but as time went on, her cognitive delays caused the gap between her and her non-disabled peers to widen, making it harder for her to meet the demands in the integrated classroom. (SE-36; SE-37; SE-40; SE-43; SE-45; SE-48; SE-52; SE-56; SE-59) Adding to the difficulties was Student’s reluctance to accept help from special educators in the regular education classroom, and to be seen as, or associated with, disabled students. From a social standpoint, she appeared to interact better with typically developing students than disabled students. Even when she did not always understand the nuances in language and behaviors displayed by others, her unique combination of social and cognitive abilities allowed her to relate well to mainstream students. Student is also aware of the differences between herself and other typically developing peers and tries to hide her disabilities. (Testimony of Mother, Dr. Wiseman, Ms. Morrissey)
Concerned over what Student’s experience in high school could be, given her limitations, at the end of Student’s eighth grade Parents decided that Student should go on to the Bristol Plymouth Regional Technical School, where most of her substantially separate peers in eighth grade would also go. (Testimony of Mother, Ms. McDonald) During the summer, Student was evaluated by Dr. Wiseman, who found that given Bristol Plymouth’s bi-weekly schedule, Student’s educational needs would not be met. She required a more intensive program. (PE-44; SE-80; Testimony of Dr. Wiseman, Mother)
As a result, in August 2005, Mother notified Middleborough that Student would be attending the high school. In August, prior to the beginning of the school year, and the teachers returning from summer vacation, Middleborough convened an emergency Team meeting and drafted an IEP using the IEP generated by her eighth grade Team as a guideline. Since it was summer and the middle school had not planned and/or coordinated Student’s transition into the high school, the two district representatives, Ms. McDonald and Ms. Morrissey, lacked the wealth of information that might have been available had the transition into the high school been coordinated in conjunction with Student’s eighth grade Team. Student and Mother met with Ms. McDonald and Ms. Morrissey to draft Student’s IEP for the high school. (Testimony of Mother, Ms. Morrissey, Ms. McDonald) During the meeting, Ms. Morrissey explained to Student what the requirements for receiving a high school diploma were. Student was also told that her chances for passing the 10 th grade math MCAS would be greater if she participated in the ninth grade math inclusion class which was also a requirement for Student to receive a high school diploma. (Testimony of Ms. Morrissey; Mother) Student opted to take the regular education integrated math. Mother testified that while she did not think Student would be able to handle it, she did not want to shatter Student’s possibilities, and she thought that Student might be able to pass this class. (Testimony of Mother)
Student started the 2005-2006 school year in Middleborough under an orally-accepted partial inclusion program IEP. (PE-A2; SE-64) This IEP was consistent with the information Middleborough had at that time and in conformance with the evaluations and recommendations made for Student. (PE-A12; SE-56; PE-47; SE-58; PE-A9; SE-62; PE-48; SE-60) Under this IEP, Student received integrated classes for World History, Math, and Science with skills support in the regular education classroom, as well as skills support three times eighty-seven minutes per week, language services three times eighty-seven minutes per week, and speech and language services one time forty-five minutes per week, all in the substantially separate classroom. (PE-A2; SE-64) Student’s mainstream classes followed a regular education/special education teacher co-teaching model with an aide, except that Science was taught by a substitute teacher (who lacked special education certification) during the first semester of the 2005-2006 school year. (Testimony of Ms. Bizinkauskas) All other special education teachers and providers were properly licensed and certified by the Commonwealth of Massachusetts, and the program followed the Massachusetts Curriculum Frameworks. Student could also access all of the regular education services provided by Middleborough, such as counseling and social skills group, if she so chose. (Testimony of Ms. Sullivan) Outside school, Student continued to meet four times per week for two hours daily with Ms. Pasquill to assist her with homework, reading, and functional math. (Testimony of Ms. Pasquill, Mother)
During the summer 2005, Student began dating a young man whom Parents disliked. (Testimony of Mother) This young man also attended high school in Middleborough and on the first day of classes, Student lied to her mother and stated that she had to stay in school late, when in reality she went to her boyfriend’s house. When Mother arrived at school to pick her up, Student was not there, her teachers did not know where she had gone, and it was then that Mother found out that Student had disobeyed her and lied about her whereabouts. (Testimony of Mother) Parents forbade Student from seeing her boyfriend anymore, something over which Student became quite angry and distraught. (Testimony of Mother) By early September 2005, Student found herself in a different school than the one she and most of her middle school friends were attending, she had challenged her parents and suffered the consequences of it, and she would now have to contend with academic demands which given her profile and abilities she was ill prepared to meet. As a result, her behavior deteriorated and Student began to defy her parents in what was a power struggle for control of her life. Student began to dress in dark clothes, wore Goth-like makeup, listened to music, and chose friends whom her parents disapproved, and she became sad, quiet, and defiant. In school, she did not ask for or easily accept assistance from the special education staff in her mainstream classes, she cut classes, and she would not consistently bring her homework to her skills support class. Student wanted to socialize and fit in with the regular education population by hiding her disabilities and appearing invisible to the special education staff. She would also forget to, fail to, or was unable to convey to her tutor, Ms. Pasquill, what her assignments in the regular education classes were. She appeared more and more frustrated to those who knew her. (Testimony of Mother, Father, Ms. Pasquill, Ms. Morrissey)
On October 5, 2005, within approximately one month of starting in Middleborough High School, as a result of an entry in Student’s journal, made out of anger with Parents for having grounded her, she was hospitalized in the Adolescent Partial Hospital Program in Pembroke Hospital as a day patient from October 5 to October 11, 2005. (SE-63; Testimony of Mother) Student reported no suicidal or homicidal ideation while at Pembroke. Student was discharged with a recommendation to engage in psychotherapy, which started on October 27, 2006 with Julie Robinovitz. Ms. Robinovitz treated Student for depression regarding Student’s breakup with her first serious boyfriend, anxiety, self-esteem, peer and family relationship issues, poor-judgment, adolescentissues, identity, and intra-family communication issues. (SE-66; Testimony of Mother) Student reported hopelessness regarding the future, loss of appetite and sleep, and difficulty concentrating in school. (SE-66)
In November 2005, after returning to school on October 12, 2005, Student voluntarily sought counseling with Ms. Sullivan, who saw Student approximately six times until early February 2006. (PE-52; Testimony of Ms. Sullivan)
Student’s school progress reports for the period through November 17, 2005 noted Students great difficulties transitioning into high school and raised concerns as to whether she would attain all of the goals and objectives in her IEP, and meet the demands in her inclusion courses. (PE-A10; SE-67)
The record shows that Mother and Ms. Morrisey, Student’s special education teacher, had communication during the challenging periods and that Ms. Morrissey voiced her concerns regarding the effectiveness of Student’s program in Middleborough. The inclusion program was not working for Student, and unless something were done, Middleborough would not be able to meet Student’s needs. (Testimony of Ms. Morrissey, Mother, Ms. Pasquill) The homework from the inclusion classes was too difficult for Student to complete even with the assistance of Ms. Pasquill. (Testimony of Ms. Pasquill) According to Ms. Pasquill, the homework was not properly modified for Student. (Testimony of Ms. Pasquill) Ms. Pasquill opined that especially in math, the work was “over Student’s head” as she required instruction and reinforcement in more basic skills, and reinforcement in math skills previously mastered such as money counting. ( Id. ) Student was trying very hard but was not meeting with the success she desired in her inclusion courses. (Testimony of Ms. Pasquill) Even her teachers in Middleborough noticed the difference in the quality of the work produced in class and the one produced with the assistance of Student’s tutor. (PE-45; Testimony of Dr. Wiseman) There were also inconsistencies regarding the monitoring Student received from teachers regarding writing down her assignments in her agenda book and with the amount of written communication regarding Student’s progress, that was supposed to occur between Mother and the Middleborough staff. (PE-10; Testimony of Mother) Mother and Ms. Morrissey did have several communications throughout this period. (Testimony of Mother, Ms. Pasquill, Ms. Morrissey)
Parents terminated service with Ms. Robinovitz on December 8, 2005, because they believed that the counselor saw many of Student’s issues as stemming from Student’s relationship with Parents. (SE-66; Testimony of Mother) That same date, Ms. Morrissey completed a recommendation for Student to attend Riverview. (SE-51)
Student’s Team re-convened on December 15, 2005 as a result of Mother’s and Ms. Morrissey’s concerns. (PE-A3; PE-68; Testimony of Ms. Morrissey, Mother, Ms. McDonald) Dr. Wiseman was present at the Team and although her report would not be made available to Middleborough until May 2006 (after the Hearing Request was filed by Parents), she verbally discussed her findings and recommendations. (Testimony of Dr. Wiseman, Mother)
Dr. Wiseman recommended a structured program with clearly delineated expectations. (PE-44; SE-80) According to her, Student’s functioning was markedly compromised in novel situations where she was expected to independently implement problem solving strategies, or in situations which called for cognitive flexibility. Over time, an increase in diversion between her path and that of her peers could be expected. Therefore, continuation of specialized services and a systematic teaching approach with specialized programming that promoted skill development would be crucial for Student’s effective participation in school. Student’s emotional functioning as it relates to school and community experiences would need attention as she felt embarrassed by her learning challenges and lacked a positive self-esteem. (PE-44; SE-80)
Dr. Wiseman did not support either mainstream or inclusion models for Student. Instead she recommended participation in a substantially separate, language-based program with like peers. She recommended a setting that offered “increased structure, individualized attention, additional personnel to provide extra support, and modified instruction.” (PE-44; SE-80) The curriculum would have to be specifically designed to meet Student at her level and should be delivered by special education teachers with expertise working with youngsters like Student. (PE-44; SE-80) Additionally, Student’s instruction should have a functional component so as to increase Student’s ability to carry out every-day tasks in the community. She recommended individual counseling to address emotional issues, develop assertiveness, and build self-advocacy skills. Speech and language therapy should continue with an emphasis on comprehension, expressive and receptive language skills such as vocabulary development, formulation and organizational skills. (PE-44; SE-80) She also recommended a vocational assessment to explore Student’s interests and skills. Dr. Wiseman opined that any vocational tasks incorporated into Student’s schedule should be structured, supervised, and designed towards fostering independence. (PE-44; SE-80) The record contains no evidence of a recommendation by Dr. Wiseman for Student’s participation in a residential program.
At the Team meeting in December 2005 Parents, Lisa McDonald, Gail Morrissey, Andrew Collins, Dayle Carroll, Taryn Carbone, and Tanya Sullivan were in agreement that Student was experiencing difficulties in inclusion classes and was exhibiting distress, sadness, and anxiety at home. (PE-A3; PE-A5; SE-68; Testimony of Ms. Morrissey, Mother, Father, Dr. Wiseman, Ms. Pasquill, Ms. Carrroll, Ms. Sullivan) The possibility of an out of district placement was discussed, in addition to modifications of Student’s program in Middleborough, but the Team ultimately opted to try a modified IEP and program at Middleborough High School. (PE-A3; SE-68)
The Team recommended that Student’s inclusion courses be eliminated from her schedule and that they be replaced with more language oriented classes, functional mathematics, and vocational courses. (PE-A3; PE-68) Under the new plan, Integrated Math I, Integrated Science, World History II, and Skills Support would be eliminated. Instead, Student would receive Functional Math, Critical Thinking, and Reading. Ms. Morrisey, Ms. Bizinkauskas, and Ms. Carroll, all properly certified and licensed in Massachusetts, would be responsible to teach the aforementioned subjects. (SE-97; SE-100; SE-101; SE-104) Student would also participate in Community three times per week, which fulfilled the vocational component by having Student work in the school’s office, possibly paired with another student, under the supervision of one of the office staff. ( Id .) Student had done well in Ms. Bizinkauskas Reading Strategies class and in Critical Thinking, a regular education class, which followed a co-taught model and helped students with comprehension of higher-level language. (Testimony of Ms. Bizinkauaskas) Student would also continue to receive reading /ELA with Ms. Morrissey and speech and language services with Ms. Carroll in a pull-out setting. The Team was attempting to reduce the academic stress while providing Student an opportunity to adapt to the demands of high school. (PE-A3; SE-68; Testimony of Ms. Morrissey) The original intent of the modified IEP was to try the new program through January 2006 and reconvene the Team at that time to discuss Student’s progress and discuss any changes that might be required. The Team hoped that by reducing the academic areas that caused Student stress, while providing her with intense services in reading, language, math, and English Language Arts, Student’s knowledge, comfort level, and confidence would rise allowing her more positive experiences in the other areas of the curriculum. (Testimony of Ms. McDonald, Ms. Morrissey) The program would also allow Student to continue her education in her home community, where her friends were and where she wanted to stay, within a district lauded by the Massachusetts Department of Education for its transition programs. (See SE-85 and SE-86)
Given the information available to the Team by December 2005 and January 2006, the program and services offered by Middleborough were designed to meet Student at her then current level, given her state of mind, by attempting to stabilize her emotionally and help ease her transition into the high school.21 (SE-68; SE-69) By December 2005, when the first of the two IEPs at issue was drafted, Student’s teachers and providers knew that she was struggling in the inclusion classes. The proposed IEP would have allowed Student an opportunity to progress effectively and in fact was in most respects consistent with the recommendations of Dr. Wiseman. Her report recommended tailored instruction with a flexible approach in a program that offered “increased structure, individualized attention, additional personnel to provide extra support and modified instruction,” taught by special education teachers so that Student’s participation could be meaningful. (SE-80) Middleborough’s proposal to try the program short term, reconvene the Team, and if the program was not working, then look for an out of district placement, was reasonable.
The Parties agreed that Student did not see herself as a special education student, and she did not want to be associated with other special education students who would have been her educational peers in terms of cognitive or language deficits. (Testimony of Mother, Ms. Morrissey, Ms. Sullivan, Dr. Wiseman) Student’s social skills were quite developed and appropriate enough to allow Student to relate better to typically developing students. The reports of the evaluations available to Middleborough by December 2005/January 2006 confirmed this and depicted Student as having low cognitive ability. (SE-50; SE-68) The recommendations from Student’s previous evaluations, inclusive of the evaluations performed in June 2005, called for specialized instruction, speech and language therapy, language skills enhancement, and access to the general curriculum. All of these recommendations are included in the IEPs at issue.22 Parents argued that the proposed programs would have deprived Student of access to a pool of students like her and that she would have spent most of her day by herself. While it is true that Student’s unique profile with strengths in social skills which set her apart form other cognitively similar peers, as well as her reluctance to be associated with special needs students, created a very difficult situation for Middleborough in finding a group of similar peers with whom she could be educated, there was a small group of students with whom she could be paired, such as those in her Reading class. Also, Middleborough was quite clear that the proposed IEPs, SE-68 and SE-69, were intended for the short-term to help Student assimilate better into her new environment and to provide her with academic support so as to bolster her academic abilities. Seen from this perspective, the fact that the IEPs were so individualized that Student would not have been grouped with a significant number of like-peers is not determinative in rendering the proposed program inadequate. (I note that the result might have been different if this were the reality with which Student were to be faced in the long-term.)
As stated supra , the proposed IEP was intended for implementation for a short time with an agreement to reconvene the Team within a month and re-evaluate the situation. Under the IDEA, special education students may receive services up to their high school graduation day, or the day on which they turn twenty-two years of age, whichever event comes first. 20 USC §1412 (a)(1)(A). In light of this, and given that Student was only 16 years of age, it was appropriate for Middleborough to postpone Student’s inclusion in mainstream courses until after Student’s transition into the high school had been addressed from an educational, social, and emotional basis. While counseling and participation in a social skills group were not specifically mentioned in the proposed IEPs at issue, Student was already taking advantage of these services through the regular education program. The evidence shows that Student was in fact meeting with Ms. Sullivan, of her own volition and on her own initiative, for counseling services. (SE-52; Testimony of Ms. Sullivan) Both the private psychotherapy services and the school counseling services centered on Student’s issues regarding adolescent struggles for independence from Parents, the loss of her first serious boyfriend, identity and self esteem issues, interactions with peers, difficulty communicating with Parents and other typical teenage issues. (SE-52; SE-66; PE-49; SE-81) These issues, compounded by Student’s cognitive profile, would have been more difficult for Student to handle than for typical peers since she requires very concrete, sequential assistance to process information effectively. (Testimony of Ms. Sullivan) Student also participated in the social skills group run by Taryn Carbone, Middleborough’s school psychologist. While Middleborough made a persuasive argument that these services which were part of regular education services were being offered to Student, given Student’s issues and Parents concerns, they should have been included in the service delivery grid portion of the IEP. However, this deficiency is found to be de minimis given that Student was receiving the services.
Parents did not support the program proposed during the December 15 th Team meeting because it denied Student participation in inclusion social studies and science, and changed Student’s math program to an individualized functional math approach. (Testimony of Mother and Father) According to Parents, when they presented the program to Student the night of the Team meeting, she refused to be taken out of the inclusion courses. They testified that they were concerned that if they pressured Student to try the new program, she would suffer emotionally and socially and that she would do worse academically. (Testimony of Mother, Father) The next day, Parents informed Middleborough that Student would not attempt the proposed program. (Testimony of Mother, Father) The facts however show that when Student learned about the changes in her schedule and the possibility of leaving Middleborough, she tried harder and improvement was noted in almost all areas. (Testimony of Ms. Morrissey, Ms. Carroll, Ms. Sullivan, Mr. Collins, Ms. Bizinkauskas) Student’s progress reports for the period through February 2006 support this finding. (SE-71)
Contrary to Parents’ assertions, Student’s ability to accept her disabilities was an issue that did not surface in counseling until well after Student had been enrolled in Riverview. (PE-49; SE-81) While the evidence suggests that this issue contributed to Student’s difficulties in Middleborough, Parents did not show that issues regarding school and her difficulty accepting her disability were more prevalent in Student’s mind, caused her deterioration, or that they triggered Student’s hospitalization in early October 2005. (SE-63)
The evidence further shows that by December 5, 2005, Parents intended to place Student in Riverview. On that day Ms. Morrissey completed Student’s recommendation for Riverview. (PE-51) This occurred ten days prior to reconvening of Student’s Team in Middleborough. (PE-A5) I find that in order to ensure Student’s FAPE in the least restrictive environment, Parents should have supported Student in the proposed program in Middleborough at least for the short term, before removing Student to Riverview. To accomplish this, they could have enlisted the assistance of those members of the Middleborough staff with whom Student had a positive relationship (such as Ms. Bizinkauskas and Ms. Sullivan.) I find that both of these professionals, as well as Ms. Morrissey, were credible witnesses and would have supported Student in Middleborough. I note that the Team had also considered the worst case scenario, where Student was unable to stabilize in the short term, even with the highly individualized program designed for her and if that were the case, the Team had already expressed their willingness to explore an outside day placement for Student. (Testimony of Ms. Sullivan, Ms. McDonald, Ms. Morrissey, Mother, Dr. Wiseman) Retroactive reimbursement is an equitable remedy, and Parents unwillingness to try Middleborough’s proposed program on the short term weighs against their claim for reimbursement.
Parents’ arguments are also inconsistent with their actions regarding support of Student’s emotional state. During a most crucial time, in December 2005, Parents terminated Student’s psychotherapy sessions with Ms. Robinovitz and then failed to resume this very important service for Student until Riverview recommended it to assist her with the difficult transition into Riverview. (PE-66; Testimony of Father, Mother, Dr. Bowen, Ms. Solomon-Schwartz)
The record lacks any recommendation whatsoever that Student required residential placement. Parents presented no evidence to support such conclusion and none of their experts recommended such a restrictive setting. Even when Student was hospitalized in Pembroke Hospital, after Parents found the note in her journal stating that she wished she were dead, she was only admitted to the day program and for a very brief period of time. (SE-63) As a residential student at Riverview, Student is completely segregated from all mainstream students; she is away from her community, her family, and her friends. From a parental standpoint such action might have been justified in light of their concern over Student’s adolescent transformation, rule testing, choice of clothing, friends, and music. From their standpoint, they were loosing the child they had raised. She was wearing black, dressing in a Goth-like style, challenging parental rules, fraternizing with other youngsters of whom Parents disapproved, and not performing academically. Parents had no control over Student’s choices in the high school environment where she was becoming invisible and where she was struggling to appear like a mainstream student. The evidence is persuasive that as loving, caring, and concerned parents, they yearned for the daughter they thought they were losing, as they did not approve of the person she was becoming. Parents feared for their daughter and this fear caused them to act and place Student residentially in Riverview, without the district’s approval. There, they could control the environment, assure support for their daughter twenty-four hours per day, and minimize potential harm. In doing so they acted at their own risk. Florence County School District 4 v. Carter , 510 U.S. 7 (1993).
Student saw her removal to Riverview as further rejection, and as confirmation of her failure, and it made her feel abandoned once again. (Testimony of Ms. Sullivan, Ms. Solomon-Schwartz, Dr. Bowen) She resisted her transition to Riverview for several months even when she had the support of her psychotherapist, Riverview staff, and Parents. (PE-49; Testimony of Ms. Heggi, Mr. Wannie, Ms. Solomon-Schwartz) Father testified that it took many people to convince Student that she should go to Riverview, and thereafter he himself would visit often and had breakfast with Student on several occasions to support her. (PE-49; Testimony of Father)
Parents did not meet their burden, and therefore there is no need to reach a determination as to whether Riverview was appropriate. However, I note that there are serious questions presented as to its appropriateness for Student given that the teachers were not properly certified, Student had already mastered some of the work she was covering, and there is a question as to whether Student was working on the ninth grade Curriculum Frameworks. (Testimony of Dr. Bowen, Ms. Morrissey, Ms. Hastings, Mr. Wannie, Ms. Hotetz) Student herself stated to Ms. Solomon-Schwartz that some of the work at Riverview was easy for her. (PE-49) Additionally, Student did not present with any functional living skills difficulties and her social skills are a strength, rendering the residential experience overly restrictive and without foundation. See Berkshire Hills Regional School District , 11 MSER 45 (2005). Parents argued that Student had improved academically in Riverview because of the increased structure, small class sizes, multi-model teaching, and increased individualization. (Testimony of Mother, Mr. Wannie, Ms. Heggi, Ms. Hastings, Ms. Hotetz, Father, Mother, Ms. Solomon-Schwartz) The record shows that with the exception of access to a larger peer group with similar profiles to Student’s, the program in Middleborough offered the same type of individualization and specialization. Middleborough’s program would have been delivered by properly certified, experienced professionals and was offered in a less restrictive environment. Student’s transition into Riverview was very difficult even with the increased level of support she received from all those around her including the like-peers. Whereas in Middleborough she attempted to blend with others and not be singled out, in Riverview she acted out inappropriately and it was not until the end of the school year that she stopped fighting the process. (PE-49) For all of the reasons stated above, Middleborough’s December 2005 and January 2006 IEPs and placement are found to be appropriate for Student at the time offered, given Student’s unique presentation, and therefore, Parents are not legally entitled to reimbursement for their unilateral placement of Student in Riverview.
Given the length of time that has lapsed since the time Student’s last IEP was drafted, the fact that she has been away from Middleborough and was described as a different person from an emotional standpoint, Middleborough is ordered to reconvene Student’s Team and include relevant Riverview and private service providers so that a new IEP can be drafted.
1. Middleborough is not responsible to reimburse Parents for their unilateral placement of Student in Riverview.
2. Middleborough shall reconvene Student’s Team and include relevant Riverview and private service providers so that a new IEP may be drafted.
So Ordered by the Hearing Officer,
Rosa I. Figueroa
PE-45 was admitted for a limited purpose. Information regarding the observation of December 1, 2005 was allowed regarding Student’s social emotional deficits and the observation of June 9, 2006 was allowed as to Student’s functioning at Riverview for the purpose of determining the appropriateness of Riverview for Student.
School Comm. of Burlington v. Dept. of Ed ., 471 U.S. 359, 369 (1985).
Parents rejected certain portions of this IEP regarding the time during which speech and language services would be offered and made additional comments. (SE-21)
While this IEP is not in dispute, it reflects Parents concerns that Student would fall further behind in academics because in their opinion the seventh grade inclusion program had not been beneficial for Student. (SE-49)
This score was consistent with her scores in 2002. Student obtained a 58 in the receptive portion of the test, a decrease from the previous score and a 67 on the expressive portion of the test, consistent with the score obtained in this section in 2002. (SE-58)
She observed Student again on June 9, 2006 in Riverview. (SE-45)
A copy of Rachel Wiseman’s report was not forwarded to Middleborough until after Parents had removed Student to Riverview. (SE-68; SE-79) The record shows that Middleborough’s attorney requested a copy of the report on April 6, 2006. (SE-79)
Middleborough had received accolades from the Massachusetts Department of Education (hereinafter, DOE) for its programs including the district’s Language Development Program at the High School designed to help disabled students reach their individual potential academically, vocationally, socially and behaviorally. (SE-86; Testimony of Ms.McDonald) On February 13, 2006, Middleborough was audited by the DOE receiving a commendation for the inclusive atmosphere and opportunities for special education students to be a part of the school life. (SE-85) The excellence of its staff and administrators, outstanding support offered to students who are transitioning, and effective coordination with outside agencies, were also praised. (SE-85)
Student is adopted. (Testimony of Mother)
TLC stands for time at the Learning Center which is also the Computer Center.
20 USC 1400 et seq .
MGL c. 71B.
MGL c. 71B, ss. 1 (definition of FAPE), 2, 3.
E.g., 20 USC 1400(d)(1)(A) (purpose of the federal law is to ensure that children with disabilities have FAPE that “emphasizes special education and related services designed to meet their unique needs . . . .”); 20 USC 1401(25) (“special education” defined to mean “specially designed instruction . . . to meet the unique needs of a child with a disability . . .”); Honig v. DOE , 484 U.S. 305, 311 (1988) (FAPE must be tailored “to each child’s unique needs”).
Board of Education of Hendrick Hudson Central School District v. Rowley, 458 U.S. 176, 192 (1982) (goal of Congress in passing IDEA was to make access to education “meaningful”); Deal v. Hamilton County Board of Education, 104 LRP 59544 (6 th Cir. 2004); (“ IDEA requires an IEP to confer a ‘meaningful educational benefit’ gauged in relation to the potential of the child at issue”); G. by R.G. and A.G. v. Fort Bragg Dependent Schs , 40 IDELR 4 (4th Cir. 2003) (issue is whether the IEP was reasonably calculated to provide student meaningful educational benefit); Weixel v. Board of Education of the City of New York , 287 F.3d 138 (2 nd Cir. 2002) (placement must be “‘reasonably calculated’ to ensure that [student] received a meaningful educational benefit”); Houston Independent School District v. Bobby R ., 200 F.3d 341 (5 th Cir. 2000) (educational benefit must be “meaningful”); Ridgewood Board of Education v. NE for ME , 172 F.3d 238 (3 rd Cir. 1999) (IDEA requires IEP to provide “significant learning” and confer “meaningful benefit”).
Lenn v. Portland School Committee , 998 F.2d 1083 (1 st Cir. 1993) (program must be “reasonably calculated to provide ‘effective results’ and ‘demonstrable improvement’ in the various ‘educational and personal skills identified as special needs’”); Roland v. Concord School Committee , 910 F.2d 983 (1 st Cir. 1990) (“Congress indubitably desired ‘effective results’ and ‘demonstrable improvement’ for the Act’s beneficiaries”); Burlington v. Department of Education , 736 F.2d 773, 788 (1 st Cir. 1984) (“objective of the federal floor, then, is the achievement of effective results–demonstrable improvement in the educational and personal skills identified as special needs–as a consequence of implementing the proposed IEP”); 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(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 educational potential of the child, and the learning standards set forth in the Massachusetts Curriculum Frameworks and the curriculum of the district.”).
See generally In re: Arlington , 37 IDELR 119, 8 MSER 187, 193-195 (SEA MA 2002) (collecting cases and other authorities).
MGL c. 69, s. 1 (“paramount goal of the commonwealth to provide a public education system of sufficient quality to extend to all children the opportunity to reach their full potential ”); MGL c. 71B, s. 1 (“special education” defined to mean “educational programs and assignments . . . designed to develop the educational potential of children with disabilities . . . .”); 603 CMR 28.01(3) (identifying the purpose of the state special education regulations as “to ensure that eligible Massachusetts students receive special education services designed to develop the student’s individual educational potential”). See also Mass. Department of Education’s Administrative Advisory SPED 2002-1: Guidance on the change in special education standard of service from “maximum possible development” to “free appropriate public education” (“FAPE”), Effective January 1, 2002, 7 MSER Quarterly Reports 1 (2001) (appearing at www.doe.mass.edu/sped) (Massachusetts Education Reform Act “underscores the Commonwealth’s commitment to assist all students to reach their full educational potential”).
Hendrick Hudson Dist. Bd. of Educ. v. Rowley , 458 U.S. 176, 199, 202 ( court declined to set out a bright-line rule for what satisfies a FAPE, noting that children have different abilities and are therefore capable of different achievements; court adopted an approach that takes into account the potential of the disabled student ); Deal v. Hamilton County Board of Education, 104 LRP 59544 (6 th Cir. 2004); (“ IDEA requires an IEP to confer a ‘meaningful educational benefit’ gauged in relation to the potential of the child at issue”); HW and JW v. Highland Park Board of Education , 104 LRP 40799 (3 rd Cir. 2004) (“benefit must be gauged in relation to the child’s potential”); Houston Independent School District v. Bobby R ., 200 F.3d 341 (5 th Cir. 2000) (progress should be measured with respect to the individual student, not with respect to others); T.R. ex rel. N.R. v. Kingwood Twp. Bd. of Educ., 205 F.3d 572, 578 (3d Cir. 2000) (appropriate education assessed in light of “individual needs and potential”); Ridgewood Board of Education v. NE , 172 F.3d 238 (3 rd Cir. 1999) (“quantum of educational benefit necessary to satisfy IDEA . . .requires a court to consider the potential of the particular disabled student”); Mrs. B. v. Milford Board of Ed. , 103 F.3d 1114, 1122 (2d Cir. 1997) (“child’s academic progress must be viewed in light of the limitations imposed by the child’s disability”); MC v. Central Regional School District , 81 F.3d 389 (3 rd Cir. 1996), cert. denied 519 US 866 (1996) (child’s untapped potential was appropriate basis for residential placement); Roland v. Concord School Committee , 910 F.2d 983 (1 st Cir. 1990) (“academic potential is one factor to be considered”); Kevin T. v. Elmhurst , 36 IDELR 153 (N.D. Ill. 2002) (“ Court must assess [student’s] intellectual potential, given his disability, and then determine the academic progress [student] made under the IEPs designed and implemented by the District ”).
E.g. Lt. T.B. ex re.l N.B. v. Warwick Sch. Com ., 361 F. 3d 80, 83 (1 st Cir. 2004)(“IDEA does not require a public school to provide what is best for a special needs child, only that it provide an IEP that is ‘reasonably calculated’ to provide an ‘appropriate’ education as defined in federal and state law.”)
The only difference between SE-68, the IEP of December 2005, and SE-69, the January 2006 IEP, is that the latter offers one times 87 minutes per week of community experience whereas SE-68 states that this service was offered three times per week. (Compare SE-68 and SE-69)
The report of Dr. Wiseman’s evaluation was not provided to Middleborough until May 2006 and her recommendations for a substantially separate-language based classroom for Student were not shared with the Team until her oral presentation on December 15, 2005. Even then, there was no recommendation for removal of Student to a residential program.
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