COMMONWEALTH OF MASSACHUSETTS
SPECIAL EDUCATION APPEALS
Student v. Newton Public Schools
BSEA #07-6945
DECISION
This decision is issued pursuant to M.G.L. c. 71B and 30A, 20 U.S.C. § 1401 et seq., 29 U.S.C. § 794, and the regulations promulgated under said statutes.
A hearing was held on November 13, 14, 19, December 13, and 14, 2007 at the Bureau of Special Education Appeals before Catherine M. Putney-Yaceshyn, Hearing Officer.
PROCEDURAL HISTORY
Parents requested a hearing on May 21, 2007 and the hearing was scheduled to occur on June 25, 2007. Various postponement requests were made by both Parties and allowed and a mediation was held. The pre-hearing conference was scheduled for September 25, 2007. Parents requested a postponement of the pre-hearing conference due to a serious illness in the family which the hearing officer allowed. The hearing was scheduled for October 29 and 30, 2007. There was a pre-hearing conference on October 1, 2007. The Parties requested a postponement of the hearing until November 13, 14, and 19, 2007. The hearing was held on November 13, 14, 19 and December 13, and 14, 2007 at the Bureau of Special Education Appeals. The Parties requested a postponement of the closing of the record to submit written closing arguments and the hearing officer allowed the postponement and set a deadline of January 11, 2008 for the submission of closing arguments. On January 7, 2008, Newton submitted an unopposed request to submit written closing arguments by January 18, 2008. The request was allowed, the Parties submitted their closing arguments on January 18, 2008, and the record closed at that time.
Those present for all or part of the Hearing were:
Mother
Father
Student
Marilynne Smith Quarcoo Principal, Cabot School, Newton Public Schools
Mozelle Berkowitz Interim Co-Director of Pupil Services, Newton Public Schools
Joseph Russo Principal, Horace Mann School, Newton Public Schools
Matthew Tardif Teacher, Bartlett School
Patricia Fiorenza Teacher, Grade 5, Newton Public Schools
Susan Kass Social Worker, Newton Public Schools
LuAnn Keough School psychologist, Newton Public Schools
Toni Luxenberg Private clinical psychologist for student
Nancy Mullin Consultant to Newton and Parent
Jessica Bruce Occupational Therapist, Newton Public Schools
Stephanie Powers Interim Co-Director of Pupil Services, Newton Public Schools
Jennifer Truslow Assistant Principal for Pupil Services, Newton Public Services
Ouida Young Attorney for Newton Public Schools
Catherine M. Putney-Yaceshyn Hearing Officer
The official record of this hearing consists of Parents’ exhibits marked P-A(1-28), P-B(1-2), P-C(1-6), P-D(1-9), P-E(1-19,21-22), P-F(1-2, 4-25, 27-32), P-G(2, 7), P-H(1-3) Newton Public Schools’ exhibits marked NPS-1 through NPS-43, Joint exhibits marked J-1 through J-13 and approximately twenty-two hours of recorded oral testimony.
ISSUES
1. Whether Student’s section 504 plan for the third grade (2004-2005) school year appropriately addressed his needs.
2. Whether Student’s 504 plan for the fourth grade (2005-2006) school year appropriately addressed his needs.
3. Whether Student’s 504 plan for the fifth grade (2006-2007) school year appropriately addressed his needs.
4. If not, are Parents entitled to reimbursement for the costs associated with their unilateral placement of Student at the Bartlett School for a portion of the 2006-2007 school year.
5. Whether the IEP proposed for Student for the period from March 2007 – March 2008 was reasonably calculated to provide student with a free appropriate public education in the least restrictive environment.
6. Whether Parents are entitled to reimbursement for the costs associated with services privately provided to Student at the Academy for Physical and Social Development during the 2004-2005, 2005-2006, and 2006-2007 school years.
7. Whether Parents are entitled to reimbursement for mental health services privately provided to Student during the 2007-2008 school year to deal with past bullying.
8. Whether Parents are entitled to reimbursement for the costs associated with Student’s unilateral placement at the Bartlett School for the 2007-2008 school year.
SUMMARY OF THE EVIDENCE
1. The student (hereinafter, “Student”) is an eleven-year-old student who attended the Newton Public Schools (hereinafter, “Newton”) prior to being placed unilaterally, by his Parents, at the Bartlett School on or after March 30, 2007. He has been on 504 accommodation plans for a specific learning disability in the area of executive functioning. Relative weaknesses were noted in the area of auditory processing. Student needed to increase his awareness of how his body felt and what sensory diet strategies would help him. Difficulty organizing information, executive functioning, relatively slow processing speed, anxiety, and emotional regulation impacts his classroom performance. (J-3) There were two independent evaluations done of Student that were not provided to Newton prior to Student’s withdrawal from Newton. Thus, although they contain additional diagnostic information, the Team has yet to review them. Student’s full scale IQ was reported at 134, in the very superior range. (NPS-9)
2. Student attended the Horace Mann School from kindergarten until October of the third grade when he transferred to the Cabot School after experiencing difficulty with peers. Parents described the difficulty as bullying (Mother, Father) and Newton perceived it as social difficulties. (Quarcoo) Dr. Quarcoo, the principal of the Cabot School, testified that she placed Student in a classroom with a teacher she knew would be vigilant regarding monitoring peer interactions. She also chose the teacher because she could manage a wide variety of behaviors and would be available to address Mother’s concerns. Student was tentative and jumpy when he arrived and Dr. Quarcoo tried to get him to relax. She spoke to staff about making Student feel part of the community. She saw improvement in his comfort level. (Quarcoo)
3. Parents requested a full evaluation of Student on or about February 7, 2005. (NPS-1) On March 10, 2005, the Team convened and determined that Student would be evaluated using the Behavioral Assessment System for Children (BASC) – Parent and Teacher Form and the Behavioral Rating Inventory of Executive Function (BRIEF) – Parent and Teacher Form; the occupational therapist would do an informal observation; the psychologist would interview Student, and the social worker would see him once per week regarding executive functioning. (NPS-2) Additionally the occupational therapist recommended that Parents and Student’s teacher complete the Winnie Dunn sensory profile. Mother consented to the proposed evaluation. (NPS-2, NPS-4)
4. Jessica Bruce, OTR/L, wrote a summary of her observations of Student dated April 4, 2005. She reviewed his prior O.T. history including a sensory integration evaluation completed when Student was in kindergarten, that resulted in a finding that Student presented with behaviors characterized by sensory processing difficulties and the provision of numerous accommodations within the classroom to maximize his performance. Ms. Bruce concluded that based on classroom observation and teacher report, Student was exhibiting some behaviors that may be characteristic of difficulties with sensory integration. She recommended a more comprehensive look into Student’s sensory processing abilities be completed. She recommended the Winnie Dunn Sensory Profile, a behavior checklist to be completed by Mother and Student’s teacher to provide more information on how to help Student manage his behavior at school. (J-10)
5. LuAnn Keough, Ph.D., a school psychologist at the Cabot School, was asked to provide information about Student’s current behavioral and social-emotional functioning. She wrote a “Summary of Behavioral Rating Scales,” dated April 26, 2005. She reported that Student’s third grade teacher, Ms. Strother, described Student as “a bright and enthusiastic member of her classroom, who interacts well with his peers.” She noted “some challenges in the area of self-regulation (impulse control, maintaining attention) and in organization.” Student’s teacher rated Student as functioning within the typical range for boys his age. She did note concerns regarding Student’s ability to regulate his attention and impulses, and with organization. Mother reported a high level of concern regarding Student’s ability to regulate his emotions and his impulses in addition to concerns about his ability to regulate his attention, with organization, and in the area of peer interactions. (NPS-11) Dr. Keough concluded that Student appeared to be struggling, especially outside of school, to regulate his feeling and behavior and to use effective strategies to cope with stress. She recommended that he continue to be exposed to the social competency curriculum that was part of the general curriculum. She also noted he could access the school social worker or psychologist as needed. She noted that her results should be integrated with those of the independent neuropsychologist who would be assessing Student. (NPS-11)
6. Dorothy M. Vacca, Ed.D., conducted a neuropsychological evaluation of Student on May 3 and 9, 20051 . The record is unclear as to when this report was provided to Newton. Student’s full scale intelligence quotient was reported as 134, in the very superior range. His processing speed, however, was assessed at the 34 th percentile range. “He presented as a basically happy child, which was also reflected in his Human Figure Drawing.” He showed a high level of anxiety, which he modulated in several ways including moving away as soon as he could from unpleasant feelings.” He showed a tendency to perseverate in carrying themes from one story to another. Dr. Vacca noted Student’s IQ fell in the 99 th percentile range and he had an equally strong ability to understand and reason in both language-based and perceptually-based modalities. She noted he had an exceptional memory except for auditory memory for digits. She reported he had strong auditory discrimination, a clever imagination, and a willingness to put forth his best effort. She noted some challenges as follows. He required time to become “internally organized and proceed in an organized fashion.” His thinking style involved beginning with the concrete and moving from parts to the whole, but he did not always see the “big picture” without assistance. She noted he is “quite stimulus bound as well as perseverative; he showed signs of cognitive rigidity.” Student showed difficulty in sustaining auditory attention and weeding out distractions in the environment. She noted weak frustration tolerance when he is overly challenged and a slow processing speed. She also reported he had “difficulty tolerating negative affects.” She concluded that many of the characteristics she noted were seen in children with Attention Deficit Disorder, but found his profile to be “more consonant with a diagnosis of Sensory Integration Disorder.” She formally diagnosed him with “Sensory Integration Disorder with neurointegrative underpinnings.” She concluded that given how bright Student is, he would be challenged by his difficulties doing certain tasks as efficiently as he sees his peers doing them. Also, she surmised, “he would have strong emotional responses to frustration and difficulty using his superior intelligence to problem solve, especially in social situations.”
7. Dr. Vacca made a number of recommendations for Student. She recommended that he have sensory integration activities every day. She recommended that he continue to attend the Academy of Physical and Social Development for both the gross motor group activities and the social component. She recommended that a school counselor use social stories with Student to help him learn how to “adapt to novel situations.” She noted Student requires help with understanding his anxiety and what to do when he feels anxious. She recommended modifications be made to the classroom including keeping the amount of auditory information presented at one time to a minimum. She also recommended providing him with “wait time”, checking in with him regularly, and explaining what is expected of him. She recommended that he be taught directly how to generalize, see the main ideas, and plan ahead. Finally, she recommended that expectations be consistent, routines be used, and stimulating activities be dept to a minimum. (NPS-9, P-B-1)
8. Cindy Moratti, OTR/L, wrote a follow-up to Jessica Bruce’s observation report summarizing the findings of the Winnie Dunn Sensory Profile in June 2005. She noted that the only area identified as problematic by both the teacher and Mother was the area of auditory processing. The profile submitted by Mother contained a higher frequency of responses which were problematic, including: visual processing, vestibular processing, touch processing, multisensory processing, oral sensory processing, sensory processing related to endurance/tone, modulation related to body position/movement, modulation of sensory input effecting emotional responses, emotional/social responses, and behavioral outcomes of sensory processing. Ms. Moratti’s interpretations noted a significant discrepancy between parent and teacher’s interpretations of Student’s sensory processing across all domains. One explanation could be the variations of demands and expectations between home and school. She concluded that other than in the area of Auditory Processing, Student’s general functioning was in the typical range within the school setting. She noted that classroom accommodations addressing Student’s auditory processing could be discussed at the June 15, 2005 Team meeting. (J-9)
9. Student’s Team convened on June 15, 2005, when Student was in the third grade. The Team reviewed the evaluations recently completed by the district and determined that Student had a specific learning disability which made him eligible for a section 504 Accommodation Plan. The Team determined he was not eligible for special education. (J-5) The Team found that according to the sensory integration checklist completed, Student showed some relative weakness with auditory processing and a relatively slow processing speed. Additionally, the Team concluded that Student needed to increase his awareness of how his body is feeling and what sensory interventions will help. The Team further noted anxiety and emotional regulation issues. The Team noted that Student is very bright and has strengths in comprehension, decoding, and mathematical thinking. The 504 Plan required the OT to meet with Student weekly for eight weeks and to give suggestions for a sensory diet. The Plan included a number of accommodations such as allowing Student to seek out extra movement in his day, providing him a structured program to regulate his state, implementing a sensory diet throughout the day, using graphic organizers, and providing Student with extra thinking time. Additionally, there was a provision for Student to check in weekly with the school social worker until the Team reconvened at the end of October. Student was to receive the program “How Your Engine Runs” for eight weeks. At the end of the eight weeks, Student and the OT would identify what helped Student and the school would implement a sensory diet. All members of the Team, including Mother agreed with the findings of the Team. (J-5)
10. In the spring of 2005 Student scored in the proficient range on the Reading MCAS. (J-13)
11. Stacey M. Torres, OTR/L, of Franciscan Children’s Hospital, completed an independent assessment of Student at Mother’s request on August 22, 2005. Her findings are as follows. Student’s musculoskeletal foundations were intact. His sensory discrimination skills were within functional limits. His sensory modulation was an area of concern, as he demonstrated hypersensitivities that affect attention and in some cases, lead to emotional/behavioral difficulties. He demonstrated sensory seeking behaviors. Ms. Torres agreed with Newton’s finding that Student would benefit from a better understanding of what his body is feeling and how to better use sensory strategies. Student’s fine motor skills were average, his visual perceptual skills were above average and his visual motor skills ranged from average to above average. His self-help skills were within age-expectations.
Ms. Torres recommended Student receive school-based O.T. services 1 x 30-45 minutes per week to address sensory modulation issues. She agreed with Newton’s proposal that Student participate in the “How Does Your Engine Run” program. She also agreed that the O.T. should develop and monitor a sensory diet to use at home and at school. She listed a number of suggested classroom accommodations and activities including preferential seating, using firm pressure instead of a light touch with Student, warning Student of loud noises, trying not to take away outside play privileges, allowing Student to get up and move around, and allowing alternative working positions within the classroom. (J-8)
12. For Student’s fourth grade, Dr. Quarcoo placed Student with a teacher who would be empathetic and would be available to communicate with Mother. Student’s fourth grade teacher used open circle in her classroom and would have raised social issues with a class discussion. (Quarcoo)
13. The Team convened on November 15, 2005, for a “consult.” (J-4, J-5) The Parent and Team Concerns included attention issues, challenges with “long writing”, distractibility in class, organization issues and Parents concern about MCAS writing. The Team noted that Student was “making benchmarks for academics” and was bright and happy and enjoyed school. The Team determined Student required more breaks throughout the day and Parents reported that Student had received a sensory integration evaluation at Franciscan Children’s Hospital over the summer and Parents would provide Newton with the report. (J-4)
14. On November 15, 2005, Mother rejected the 504 that was drafted pursuant to the June 15, 2005 Team meeting. (J-5)
15. The Team met on February 24, 2006 and reviewed Student’s 504 plan. The plan indicates that the Winnie Dunn Sensory Profile noted relative weaknesses in Auditory Processing. Additionally, the plan indicates Student needs to increase his awareness of how his body is feeling and what sensory diet strategies will help. The plan also identified issues regarding organizing information, executive functioning, relatively slow processing speed, anxiety, and emotional regulation. The following strategies and accommodations were deemed necessary for Student. Student was to receive a sensory diet including frequent movement breaks and quiet work space. Student was to be warned in advance of loud noises when possible. Teachers would try not to take away outside play privileges. He would receive regular check-ins to ensure he is on task. He would receive preferential seating and extra time to complete tasks. He would use graphic organizers and have a plan for writing tasks prior to beginning. The additional comments section of the plan noted that the OT had provided an eight-week program of “How Does Your Engine Run.” The OT would provide monthly consultation to Student’s teachers to monitor his sensory diet and its effectiveness. The OT would meet with Student once per month to discuss the sensory diet. Additionally, the OT would consult with Parents regarding strategies to use at home. Mother accepted the plan on March 13, 2006. (J-3)
16. In the spring 2006, Student scored in the advanced range on both the English Language Arts (264) and Mathematics (260) sections of the MCAS. (J-13)
17. In the spring of 2006 Student learned that he had not been accepted to the Cabot After School Program (CASP) which he had previously attended. The CASP is not run or controlled by the Newton Public Schools. Mother sent a letter to Marilynne Quarcoo and Lee Guertin, Director of CASP, dated May 1, 2006. She reported that Student had taken the loss of CASP very hard and, “we are seeing behaviors that we have not seen in many months. He is moody, depressed, inattentive to his homework, and has regressed in general.” Mother went on to report, [Student] has had a wonderful experience at the Cabot school and at CASP. We have great respect for both the school and program.” Additionally, she reported, “One of the reasons that [Student] feels safe at Cabot is that the administration takes a strong stance against bullying, which is reinforced by the staff. (P-F-26)
18. Student’s fourth grade teacher, Ms. Fuller, wrote comments regarding Student dated June 2006. She indicated that Student had experienced highs and lows personally and socially during the year. She noted his increased desire to demonstrate acceptable behavior in the classroom and his learning to react in more socially appropriate ways. She reported that “he must also learn to make appropriate choices with regard to friendships. He must alert teachers when issues arise. Friendships and acceptance are very important to him and it would be helpful for him to have support in these areas.” (NPS-6) In academic areas Ms. Fuller noted Student continued to make progress, although he requires support with written assignments. She recommended that he continue to work on proofing, editing and revising when writing with support. (NPS-6)
19. Ms. Kass, the social worker at Cabot, recalled speaking to Student’s private therapist, Mr. Spinner, during Student’s fourth grade. Mr. Spinner reported that Student’s therapy dealt mostly with peer issues in his previous school and that Student was feeling good about his friendships at Cabot. (Kass) Jessica Bruce, OTR/L, testified that she worked with Student once per week for eight weeks to implement the “How Does Your Engine Run” program. Additionally, she developed a sensory diet to be used in the classroom. The sensory diet included movement breaks throughout the day and allowing Student to read at the beginning of each morning because reading calmed him. Both Ms. Bruce and Student’s fourth grade teacher observed that the sensory diet was helping Student. His teacher told Ms. Bruce she noticed an increase in Student’s focus. (Bruce)
20. Mr. Spinner wrote a letter dated May 24, 2006, to the Newton Public Schools. He reported that Student had developed “a small core of good friends” at Cabot. It noted that he remained vigilant and fearful of new episodes of bullying and social rejection. The report indicated that because Student had not received a place at the CASP program for the following years he was anxious about experiencing social anxiety. He noted Student’s progress during the fourth grade and opined that it would be important for Student to receive services to address his social and emotional needs during fifth grade. The record is unclear as to when Newton received this report. (P-E-25)
21. On June 2, 2006, the Team convened to review Student’s 504 Accommodation Plan. The disability type continued to be “specific learning.” The plan noted that Student required accommodations due to his relative weaknesses in auditory processing as identified by the Winnie Dunn Sensory Profile, parent and teacher report. Student’s need to increase his awareness of how his body feels and what strategies help him stay focused was noted. Additionally, Student showed difficulty attending, organizing information, executive functioning, relatively slow processing speed, anxiety and emotional regulation, all of which impact classroom performance. Student’s outside therapist reported on May 6, 2006, that Student has a heightened fear of social rejection and continued to be fearful of new episodes of bullying and social isolation. (See P-E-25)
22. The accommodations provided by the plan included a six to eight week friendship group with the school social worker, and a check-in with his fifth grade teacher to regularly discuss Student’s sense of safety in the school environment. There were to be opportunities to discuss, as a class, issues of peer relationships and bullying during Open Circle time. Student was to participate in a sensory diet. He would receive check-ins to ensure he was on task. He would have preferential seating and quiet space in the classroom to use as needed. He would use graphic organizers and plan for writing prior to beginning. He would be allowed extra time to complete tasks as needed and would receive MCAS accommodations. Additionally, The OT would provide a monthly consult to Student’s teacher to monitor his sensory diet and its effectiveness. Mother would provide the Team with an “incoming report from his private therapist regarding an updated diagnosis2 .” Finally, the plan noted that the Literary Specialist, Student’s classroom teacher, and special education teacher met to review Student’s writing folder. They determined Student did not require direct service in the area of written expression. They recommended that the special education teacher consult with the fifth grade teacher as needed to provide support with written expression. Mother rejected the 504 plan on June 12, 2006. (J-6)
23. Dr. Vacca conducted a follow up evaluation of Student on September 19, 20063 . The report was done at Mother’s request to obtain information to support her belief that Student required an IEP. Dr. Vacca noted Mother’s concerns about Student’s social-emotional maturity and her belief that he would benefit from having a school-based social coach to address his organization and social functioning and provide “in the moment” feedback to assist Student. Dr. Vacca reported that Student entered her office in “a friendly, but somewhat guarded fashion.” She noted that he avoided any discussion of feelings and seemed “blocked when asked questions that probed beneath the surface.” She reported that compared to previous testing, he showed appropriate growth in handling anxiety and social interaction and was able to weed out auditory distractions better than he had the last time she assessed him.
During her testimony, Dr. Vacca reported that she had been struck by the emotional change in Student in that he was much more guarded the second time she evaluated him. However, her report did not note such a dramatic difference between his presentation on both dates.
Her impressions were similar to her prior evaluation. Additionally, she noted his difficulty planning ahead, organizing complex information, and slow processing speed. She noted, “Sensory integration difficulties and high anxiety would result in difficulty processing social relationships.” Further, she stated that Student’s emotional profile was of concern. She found him “obviously anxious and insecure.”
Dr. Vacca made a number of recommendations. She recommended direct instruction on how to organize and generalize from one situation to another. She recommended breaking information into parts and spiraling. She recommended use of graphic organizers and the use of routines. She supported Parents’ idea of providing Student with “in the moment” social assistance at school. She recommended the use of social stories to address social issues. She suggested cognitive behavioral therapy to help Student handle anxiety and “strong feelings.” She also suggested Student participate in groups who share a common interest and suggested the school “find a leadership role for him.” (NPS-10)
Dr. Vacca’s report provided to Newton and included in its exhibit book, indicates Student was evaluated on September 19, 2006 and the report written on September 26, 2006. However, the signature page is dated January 24, 2007. (NPS-10) Additionally, the mediated agreement, dated March 12, 2007, requires Parents to provide the report to Newton by March 16, 2007. (J-2) In addition, the version of the report included in Parents’ documents includes a signature page dated October 30, 2006. (P-B-2) Thus, it appears that the Team never had the opportunity to review the findings of this evaluation.
Parents’ version of Dr. Vacca’s follow-up evaluation contains two references to nonverbal learning disability in the Impressions section. On Parents’ version of the report, the Impressions section begins as follows. “On this evaluation, in comparison to the last, there were clearer indications of a cognitive and emotional style consonant with a diagnosis of nonverbal learning disability.” The last sentence of Parents’ version says, “Sensory integration difficulties, high anxiety, and difficulty processing social relationships are other indicators frequently associated with Non Verbal Learning Disability.” Newton’s version of the report contains neither reference to Non Verbal Learning Disability. The final sentence of Newton’s version of Impressions section reads, “Sensory integration difficulties and high anxiety would result in difficulty processing social relationships.” (NPS-10) Dr. Vacca explained that Mother asked her not to include the diagnosis of non-verbal learning disorder (NVLD). Dr. Vacca conceded because she thinks that a description of a student’s disability is more important than a diagnosis. She explained that she considered a diagnosis of NVLD, a diagnosis of sensory integration disorder with neururosensory underpinnings, and a diagnosis of Asperger’s Syndrome. If she had to choose one diagnosis, she would choose NVLD. Student also met many of the criteria for ADHD.
24. Patricia Fiorenza was Student’s fifth grade teacher. She has a Master’s Degree in elementary education. There were twenty-two students in her class at the beginning of the year. Prior to meeting Student she was aware that he had transferred to Cabot School due to experiencing bullying at Horace Mann and that he was having positive peer interactions at Cabot and not experiencing bullying. She received his 504 plan prior to the first day of school. Ms. Fiorenza used the “responsive classroom” methodology in her classroom. The key parts of the responsive classroom were the routine of a morning meeting where students checked in. Rule formation took place in the classroom and students had a role. They used peer mediation and addressed issues as they occurred. Ms. Fiorenza stressed respect for one’s self and others. Tests were untimed and she allowed Student to get up and walk around as needed. He was also permitted to bounce his foot on a theraband, and fidget toys and grips were available. There were other students in the classroom with executive functioning issues and students who had difficulties with peer relations. She processed issues with students based on their personal way of dealing with issues.
Ms. Fiorenza reviewed Dr. Vacca’s evaluation and explained how she implemented the recommendations in her classroom. She made verbal suggestions to Student regarding sensory activities he should utilize. She was familiar with the program “How Your Engine Runs” and put up an energy chart for Student in the classroom. She was working toward Student identifying his energy level and choosing an activity based on the level. She gave directions one at a time and in addition to giving oral directions had a “to do” list for each student and on the board. Student used graphic organizers and she checked in with him regularly. There was a routine to each day and she clearly defined what part of the day it was. She engaged in many one to one discussions with Student to de-brief and talk about social cues. She attempted to help Student form a peer group of friends.
Ms. Fiorenza did not view Student as a student with no friends in the classroom. In the fall she observed Student to be settling into the classroom. She noticed his friendship with a particular male peer. In December she observed that there seemed to have been an argument between Student and that male peer. She attempted to help mediate between the boys. The male peer reported that Student had been pretending to be a primate and picking his head for nits. Ms. Fiorenza explained that Student had been interested in primates and had begun acting out by “nit picking” in late December. Ms. Fiorenza referred the matter of Student’s friendship with the male peer to Ms. Kass. Ms. Kass contacted Mother to request permission to mediate with the boys regarding their friendship. Mother refused Ms. Kass’ request. (P-F-7, P- F-8) When Ms. Fiorenza observed Student having social difficulty in the classroom she would discuss it with Dr. Keogh. Dr. Keogh advised Ms. Fiorenza to address the issues in the moment and give Student coaching and instruction.
In late January Mother reported that a student (Student X) was bullying Student. Both Dr. Quarcoo and Ms. Fiorenza spoke to Student X about the incident. The bullying did not immediately stop. Student X kept calling Student “monkey boy” and making other inappropriate comments. Dr. Quarcoo called Student X’s parents in for a meeting. Ms. Fiorenza encouraged Student to report any future bullying. Student X continued to “walk the line” between appropriate and inappropriate behavior. Ms. Fiorenza checked in with Student X’s parents in the morning and afternoon and the bullying ceased. At the end of February and in March issues regarding personal space came into play. Ms. Fiorenza reported to Mother that she observed Student engaging in rough tagging outside and later giving very intense bear hugs. She used in the moment coaching to address these issues. She described a situation in which Student was trying to move a chair past another student and got entangled, became frustrated, and began yelling and crying. Ms. Fiorenza thought Student would calm down if she removed him from the situation and from where his peers could see him yelling and crying. She asked him to go out in the hallway for thirty seconds because it was a quiet environment where she could see him and he could calm down. She joined him in the hallway and asked him if he was ready to talk. He was ready and she brought him back to the classroom and talked him through moving his chair in a crowded situation. He was able to successfully move his chair. She viewed this as a successful intervention because Student was able to calm himself and continue with what he had been doing before the incident. Mother sent her an e-mail indicating that Student did not like being sent out to the hallway. (SEE F-24) Ms. Fiorenza spoke to Student and asked him to brainstorm supervised safe places where he could go when he needed a break. Student was given some options and decided that he preferred a stool in the hallway.
25. Ms. Fiorenza found that Student made academic progress in her classroom. Between January and March her focus was on social issues and helping him to navigate social situations. (Fiorenza) Jessica Bruce, OTR/L, consulted with Ms. Fiorenza during Student’s fifth grade. She spoke with her about implementing “How Your Engine Runs” and discussed strategies that had helped Student during his fourth grade. She recalled Student had some difficulty with transitioning from one class to another and suggested Ms. Fiorenza give him specific tasks to do during the transition. She also reviewed the energy chart Ms. Fiorenza used with Student. (NPS-13, Bruce)
26. During Student’s fifth grade Ms. Kass was in his classroom fairly often and noted Student was doing well in September and October. She provided an eight session social group in which Student participated. The first two sessions dealt with understanding learning styles, strengths and weaknesses, and organizational skills. The group then addressed executive functioning. Student did not attend the last session because Mother had asked Ms. Kass not to see Student without her permission after Ms. Kass had suggested Student mediate with a peer in December. She did not see Student again after December. (Kass)
27. Mother’s impressions of Student’s fifth grade differed from Ms. Fiorenza’s. Mother reported that Student started the year depressed because he had not been accepted into the CASP program and because a friend no longer wanted to play with him. He became obsessed with primates and lashed out at Mother and his brother. She asked Dr. Quarcoo to assign his science teacher to be an informal social coach to assist him in forming new friendships. Dr. Quarcoo told her that the school psychologist would be the appropriate person to provide such a service. Mother reported that Student’s anxiety skyrocketed in October after he was assaulted by another child at a public park during a weekend. Mother went to the superintendent’s office to ask if he could guarantee that the students who had assaulted him would not be in his classes at Day Middle School. Mother testified that she realized then that she had to consider taking Student out of Newton Public Schools. She testified that Student’s behavior and mood worsened and he said he was going to build a bomb and blow himself up. She did not inform Newton that Student had made said threat. Mother learned that Ms. Kass wanted to mediate with Student and a peer regarding their friendship and told Ms. Kass that she did not want Student to think he had to be friends with someone who did not want to be his friend. Mother testified that Student had no friends and kept telling her he was an outcast. She reported that during the time that Student X was bullying Student he was having nightmares about bullies at Cabot. Mother reported that Student began complaining about using his energy chart and the teacher putting him in the hall. Mother thought that made him look like an outcast. Mother testified that Student became frustrated with school and his anger increased.
Mother testified that shortly before the mediation (March 12, 2007) she learned that he had told his group at the Academy that he might hurt himself. She never told Newton about Student’s comments. She and her husband discussed whether Student should go to Day Middle School. They spoke to a friend whose daughter went to the Bartlett School. Parents visited Bartlett on March 25, 2007 and Student visited on March 29, 2007. Student did not want to leave Cabot.
Mother testified that Student began taking Adderol in January 2007 and had been taking Selexa since October 2006 to improve depression and anxiety. She did not tell Newton that Student was taking medications. She did not think it would have been helpful to receive feedback from school staff as to whether his behavior had changed due to the medication. She testified that Student had a difficult August 2007 and was lonely and depressed.
28. Mother testified that Student had attended the Academy for Physical and Social Development during his third, fourth, and fifth grades, ending in June 2007. He stopped attending because the staff at the academy determined that he had learned all that he was going to and should continue with private therapy. Mother never asked Newton to provide the services provided at the Academy to Student. She assumed that Newton did not provide such services despite never having asked. She believes Student received benefit from the Academy and transferred some of the skills to other areas of his life. (Mother)
29. Dr. Quarcoo’s impression of Student’s fifth grade was that although Student had experienced some social issues during the past three years, they were a little more intense in the fifth grade than in prior years, citing by way of example the primate issues. One student had made an inappropriate comment to the Student about which Dr. Quarcoo communicated with Mother. There was one incidence of bullying that she recalled. Dr. Quarcoo dealt with the other student and his parents. (Quarcoo)
30. The Parties reached an agreement through mediation on March 12, 2007. They agreed that Newton would write an IEP based upon the available information and concerns and send the proposed IEP to Parents by March 23, 2007. Additionally, Newton agreed to contract with an outside occupational therapist to evaluate Student particularly in the areas of sensory integration. Finally, Newton agreed to “contract with an outside consultant whose areas of expertise include issues of bullying, social connections, and anxiety to observe [Student] in various school settings (e.g., recess, gym, academics), to speak with school staff and parents and write a report, including recommendations.” Additionally, Parents were required to provide Newton with the latest neuropsychological report by March 16, 2007. (J-2)
31. Newton proposed an IEP for the period from March 23, 2007 through March 22, 2008. The IEP proposed accommodations including regular check-ins to ensure Student is on task, preferential seating, access to a quiet space in the classroom, a sensory diet, use of templates and organizers, encouraging Student to utilize calming strategies when overloaded, facilitating Student’s negotiations/problem solving with peers as needed, and access to an Alphasmart for lengthy writing assignments. The IEP indicated Student’s learning and emotional profile could impact his ability to read social cues and to regulate his behavioral responses at times. The grid includes consultation with the school psychologist 1 x 15 minutes per week and consultation with the special education staff regarding academic strategies 1 x 15 minutes per week. There are no services identified in the B grid. The C grid proposes pull-out services with the school psychologist 1 x 30 minutes per five-day cycle for social/emotional needs and 1 x 30 minutes pull-out with the special education staff for academic strategies. Mother rejected the IEP in full on April 1, 2007. (J-1)
32. On March 29, 2007, at 10:12 p.m. Mother sent an e-mail to Ms. Fiorenza which read, “tomorrow will be [Student]’s last day at Cabot. (NPS-22) On March 30, Mother left a note on a piece of scrap paper in Dr. Quarcoo’s office that said, “Dr. Quarcoo, Today is [Student]’s last day at Cabot.” Mother signed the note. (Mother, NPS-22) On March 30, 2007, a Deborah Driscoll, Newton Public Schools, sent an e-mail to Mother referencing her handwritten note and informing Mother that Newton required more details about Student. Ms. Driscoll asked Mother to inform Newton of what school Student would be attending and the date he would begin. She also requested written permission to release Student’s records to his new school. (NPS-23) On March 30, 2007, Mother signed a release indicating Student was transferring to the Bartlett School in Waltham, Massachusetts. (NPS-24)
33. Student was referred to Occupational Therapy Associates of Watertown by Parents and Dr. Vacca, and evaluated on June 13, 2007 by Andrea DeSantis, PT, MSOT. Ms. DeSantis’ resume indicates that she is a doctoral candidate in the area of Clinical Developmental Psychology. Her report includes much commentary regarding Student’s social/emotional needs which appear to be beyond the scope of a sensory integration evaluation. Ms. DeSantis recommended that Student receive sensory integration services from a trained OT or PT in a clinic based environment with additional OT at school. She recommended that he receive treatment utilizing “the rich array of equipment with wide arc swings attached with bungee cords in order to allow him to receive the intensity of input that he requires.” She suggested that he initially receive services twice per week for four to six months and that he might then reduce his sessions to once per week. She further suggested “intensive work on visual-vestibular-proprioceptive integration.” She suggested that his program focus on muscle tone and postural difficulties. She recommended Student receive sensory integration therapy and suggested that a home carryover is important.
34. Ms. DeSantis recommended that Student be evaluated by a trauma-sensitive psychotherapist so that comprehensive interventions could be implemented to “support Student’s sensory, emotional issues, and peer conflicts.” Ms. DeSantis opined that “sensory problems significantly contribute to [Student]’s general behavioral regulatory difficulties, there also appears to be strong emotional and ADHD components. Thus, he would benefit from both sensory integration treatment in the context of psychotherapy and psychiatric management to help him process his numerous conflicting and emotional experiences.” She also suggested Student be placed in a small classroom setting that provides sensory breaks as part of the curriculum. She suggested activities such as yoga or brain gym and the provision of quiet spaces. She suggested sensory breaks out of the classroom and that care be used so that Student would not seem “different.” Ms. DeSantis made additional suggestions such as Move N Sit cushions and frequent movement breaks, therapy putty or stretch tubing. She recommended that he continue to participate in swimming and karate. (P-C-5)
35. Toni Luxenberg, M.S., Psy.D., testified that she is a trauma specialist. All of her degrees are in Clinical Psychology. (P-F-31) She began treating Student for emotional issues related to prior bullying at the end of August 2007 and had seen him weekly for a total of approximately twelve sessions at the time she testified. She testified that although Student was bullied in the past he was “stuck on it” as though it has just happened. She recalled Parent and Student reporting that Student had lost his best friend and his after school program. She testified that when major disruptions occurred, children often show regression. She opined that Student’s overfocus on primates was a way to tune out of the social world and focus on non-people. She believes that when Student was assaulted by another child at the public park in October 2006 it was a trigger and caused a return of Student’s old symptoms. She testified that Student is uniformly negative about his experiences at Newton Public Schools. He talks about being hurt while he was there and nobody caring. She reported that Student sees public schools as places where he is not safe and believes that returning would be detrimental to him.
Dr. Luxenberg’s therapy with Student is primarily focused on processing traumatic events and working on anxiety control skills. She believes Student is on medication, but does not know what. She has not spoken to any staff at Cabot or Bartlett. She testified that trauma treatment focuses on a person’s objective perception of an event. She diagnosed Student with anxiety disorder (NOS), ADHD, and sensory processing disorder. She testified that Student does not meet the criteria for post-traumatic stress disorder. She did not write a report.
Dr. Luxenberg testified that Student requires a small classroom with 10-15 students. She recommended that Student receive social skills training. She recommends that his classroom provide “a normal peer experience.” She explained that he requires in the moment counseling and social facilitation in the classroom. She conceded that if in the moment help was provided, a class with up to twenty students could be appropriate. She opined that Student requires a safe and protected environment and some kind of social group to make friends and deal with peer interactions. She testified that Student’s current level of anxiety was not completely the result of past bullying. She explained that he was anxious about where he would go to school next year and about taking the private school exam. She agreed that Parents’ anxiety can cause a student to be anxious. If Student returns to Newton Public Schools, she would continue processing past traumatic experiences with him. She would work with Student regarding how he could feel safe and may bring Parents in for a strategy session regarding how they can support Student. She would want to meet with his teacher in advance to determine how to make Student feel safe
36. Dr. Quarcoo testified that Newton started a bully-proofing initiative during Student’s third grade. All Cabot teachers were expected to implement the Bully Proofing curriculum.
37. Matthew Tardiff testified that he is Student’s current teacher for the sixth grade at the Bartlett School. The Bartlett School is a private elementary school for children ages three through eleven. (P-H-1) Mr. Tardiff is not certified in Massachusetts, although he is in New Hampshire and he is not special education certified. The Bartlett School is not 766 approved and there is no occupational therapist at the Bartlett School. Mr. Tardiff has not received any training in supporting the needs of a student with an executive functioning disorder other than a one-day seminar on executive functioning. He has not received training in sensory integration. He testified that Student has physical education every day and that students go outside for recess most days. He explained that sometimes Student remains on a topic for too long and requires a “time out.” When this occurs he sends Student to get a drink of water for about five minutes. He allows Student to knit in class which he likened to using a fidget toy. He explained that students in his class sometimes act “like siblings” and he has heard students use the phrase, “shut up.” When this occurred he spoke to the entire class about more appropriate ways of communicating their desire that another student stop speaking. He has observed Student behaving inappropriately including having physical contact with another peer. When a situation arises, he stops to discuss it. (Tardiff)
38. Stephanie Powers is the interim co-director of pupil services at Newton Public Schools. Among other duties, she supervises the occupational therapists within the district. She explained that Newton could provide Student with sensory integration therapy within the school. At the middle school level, the occupational therapists would use equipment within the classroom or in a separate room. She explained that middle school level students use equipment like mats, a trampoline, and therapy balls. They have about two hundred Move N Sit chairs and have different types Student could choose from. She explained that suspended equipment is used at the elementary level. She reported that Newton could provide all of the occupational therapy services outlined in the OTA of Watertown report.
Ms. Powers explained that students from Cabot School go to either Brown or Bigelow Middle School typically, but can go to any school city wide if their needs require. The mentioned that there is a language based program at Brown in addition to other specialized programs. Parents are permitted to apply for a student to go to any of the Newton Public Schools and Student could go to any of the four middle schools. She explained that generally Newton’s middle school classes have twenty-one to twenty four students. Some have fewer and some have twenty-seven or twenty-eight. Most classes have two adults in them and some have three. Student’s middle school schedule would allow him time to participate in a lunch bunch or a book club among other opportunities. His academic strategies class would focus on organization and study skills, previewing and reviewing for tests, and breaking down long-term projects. The middle school teachers are on small teams so the special education teachers are aware of what is going on in students’ classes.
Generally, the school psychologist would provide social and emotional services and would collaborate with any outside therapist. If a student’s needs warranted additional assistance, a school psychiatrist could also work with a student. All of the elementary schools have a social worker and a psychologist who can provide social emotional supports to any general education or special education student.
Ms. Powers explained that occupational therapy services could have been added to the last proposed IEP if Newton had received the OTA of Watertown report prior to drafting the IEP. She also testified that Newton could provide all of the services recommended by Dr. Luxenberg. Newton can provide a social group and one to one assistance in regulating affect. Small classes could be available. Every middle school has received professional development training regarding bullying at the middle school level. If Student did not feel safe at school, staff could designate a specific person or people with whom Student can check in. The small teams of teachers allow teachers to monitor social interactions. Newton could provide a social group in lieu of the Academy. Student would have opportunities to move around during the day. (Powers)
39. Jennifer Truslow is the assistant to the principal at the Brown Middle School and oversees all special education programs at the Brown Middle School. Brown is not a feeder school from Cabot or Horace Mann, meaning most students who attended Horace Mann or Cabot would not attend Brown. She described a small program at Brown that was developed last spring to meet the unique needs of some students. (See NPS-30) Two of the three students in the program have been diagnosed with Asperger’s Syndrome, but the program is not just for students with that diagnosis. The third student in the program has sensory issues, anxiety issues, social difficulties and attentional issues. The students currently in the classroom receive support from aides in all of their classes. The program is staffed by a teacher Ms. Truslow described as being an expert in social skills and creating social stories and plans. The teacher consults with other teachers in the building regarding social issues. The program addresses anxiety and there are small groups available in the school to discuss social stories. Counselors would also be available to discuss social stories. Students in the small group program are included, but can return to the small classroom at any time during the day to “decompress.” (Truslow)
FINDINGS AND CONCLUSIONS:
The first three issues before me deal with the appropriateness of the section 504 accommodation plans provided during Student’s third, fourth, and fifth grades . The regulation implementing Section 504 at 34 CFR 104.33(a) provides that a recipient shall provide a free appropriate public education to each qualified student with a disability in its jurisdiction. An appropriate education is the provision of regular or special education and related aids and services that are designed to meet the individual educational needs of the disabled student as adequately as the needs of nondisabled students.
Student’s Third Grade (2004/2005)
Although Parents allege that Student’s third grade 504 plan was not appropriate to address his needs, they have not provided persuasive evidence to support their assertions. In fact, all the members of Student’s Team, including Mother, agreed both with the Team’s finding that Student was eligible for a 504 plan and with the accommodations outlined on the plan. (See J-5) The 504 plan drafted pursuant to the June 15, 2005 Team meeting was the first 504 plan written for Student. Parents did not object to the plan at the time and may not now seek relief for a plan that has expired and was accepted during the time at issue. Additionally, Student scored in the proficient range on the Reading MCAS in the spring 2005, which shows some evidence of effective academic progress. (J-13) I find that the section 504 plan for the third grade appropriately addressed his needs.
Student’s Fourth Grade (2005/2006)
Ms. Kass spoke to Student’s outside therapist during Student’s fourth grade and learned that Student was feeling good about his friendships at Cabot. Student’s fourth grade teacher, Ms. Fuller, wrote a report indicating that Student made academic progress. She noted that he experienced highs and lows socially during the year and suggested that he may require support in social areas. (NPS-6) Ms. Bruce testified that both she and Ms. Fuller noticed that Student’s sensory diet was helping him and Ms. Fuller saw an increase in Student’s focus. (Bruce) Father testified that fourth grade was mostly a good year for Student. Mother testified that she believed Student had a great deal of trouble socially and academically during the fourth grade, but did not provide details or support for her belief. Mother testified that Student found out he did not receive a place in the CASP after school program during March of fourth grade. She testified that he had tantrums and nightmares at home and was extremely upset. School witnesses did not testify to seeing the same symptoms at school and the record is unclear as to whether Mother informed Newton of Student’s emotional state at home during that time. Newton did not have any control over Student’s being granted a place in the CASP program. Parents did not provide sufficient evidence to support their finding that Student’s needs were not appropriately met by the 504 plan in place during Student’s fourth grade. Student scored in the advanced range of both the English Lanuage Arts and Mathematics sections of the MCAS in the spring of 2006, which is indicative of his making academic progress during the fourth grade. I therefore find that the section 504 plan for Student’s fourth grade appropriately met Students needs.
Student’s Fifth Grade (2006-2007)
During the fifth grade the evidence shows Student experienced increased social difficulties. Parents’ perceptions of his level of difficulty varied from those of the district, but all parties agreed that Student experienced difficulties with his social interactions. There was an incident in which Student was bullied by Student X. Both Ms. Fiorenza and Dr. Quarcoo promptly addressed the bullying by speaking to the student who had done the bullying and his parents and it stopped. Ms. Fiorenza also spoke to Student and encouraged him to report any future incidents.
Ms. Fiorenza provided “in the moment” social coaching to Student when an issue arose in the classroom. She described an incident in which Student became frustrated while trying to move a chair and was able to successfully complete the task after she assisted him in calming down and walked him through the task. Ms. Fiorenza attempted to enlist the support of Ms. Kass to assist Student in a difficult peer relationship Student was having and Mother would not allow her to assist Student in mediating with his peer. In fact, Mother wrote to Ms. Kass and instructed her not to have any further contact with Student without her permission. Due to Mother’s letter, Student did not receive the last session of his friendship group with Ms. Kass. Mother testified that she was not informed about Student’s primate obsession despite other students complaining of Student’s behavior in that regard. Additionally, Mother testified that Student was under such a degree of anxiety that he informed his social group at the Academy of Physical and Social Development that he might hurt himself and she did not inform Newton. It is clear that the relationship between the parties had begun to fall apart by the time Student left Newton. This resulted in Mother failing to share crucial information with Newton regarding Student’s emotional functioning. It also resulted in Mother refusing services that could have been helpful to Student. In determining the appropriateness of the 504 plan proposed for Student, I must view it in terms of the information that was available to Newton at the time it proposed and implemented the plan.
When Newton proposed Student’s 504 plan for the fifth grade it was aware that Student had a history of social difficulties, mostly from his time at the Horace Mann School. Newton was aware that social interactions were still a concern for Parents and Student, although Parents and Mr. Spinner, Student’s outside therapist, acknowledged that Student had made progress socially during the fourth grade. Although Mr. Spinner recommended that Student receive social supports in school, it is unclear when Newton received his recommendations. The 504 plan drafted pursuant to the June 2006 Team meeting indicates that Student’s therapist would be sending a letter with an updated diagnosis. It is unclear whether that letter is the May 26, 2006 letter referenced above.
Dr. Quarcoo acknowledged that Student’s level of difficulty in social interactions increased during the fifth grade. Additionally, Ms. Fiorenza described incidents in which Student’s behavior was socially inappropriate. Although Ms. Fiorenza was able to provide Student with some in the moment assistance, Student’s inappropriate behaviors continued. Mother continuously e-mailed Newton staff to raise her concerns regarding Student’s social functioning.(See P-F-7 through P-F-24) Despite the communication difficulties that obviously existed between Parents and Newton during this time, Newton should have offered additional supports to Student, including direct instruction in social skills. Conversely, Parents should have accepted the supports that were offered to Student, including the assistance of Ms. Kass in working out friendship issues through mediation. Additionally, Parents should have shared information with Newton regarding Student’s threat to hurt himself and/or others. I find that the section 504 plan proposed by Newton for the 2006-2007 school year was not appropriate to meet his needs because it did not provide sufficient supports to meet his social/emotional needs. It is unfortunate that the inability of Parents and Newton to work collaboratively impacted the services that were ultimately provided to Student.
Reimbursement for costs associated with Student’s unilateral placement at the Bartlett School for the 2006-2007 school year
At the time Parents unilaterally placed Student at the Bartlett School, Student had been found eligible for special education pursuant to a mediated agreement. (J-1) If a school district fails in its obligation to provide FAPE to a student with a disability, parents may enroll their son or daughter in a private school and seek retroactive reimbursement for the cost of the private school.4 Parents are entitled to reimbursement for their out-of-pocket expenses only if the proposed IEP failed to provide FAPE and the privately-provided educational services were appropriate.5 Determination of reimbursement is a matter of equitable relief.6
Having determined that the 504 services provided to Student were deficient with respect to the 2006-2007 academic year, I now consider whether Parents are entitled to reimbursement of part or all of their out-of-pocket expenses for the Bartlett School during that academic year.
The First Circuit recently summarized and clarified the applicable standard when considering reimbursement for a parent’s unilateral placement at a private school:
In Burlington, the Supreme Court reasoned that because parents who disagree with the proposed IEP are faced with a choice: go along with the IEP to the detriment of their child if it turns out to be inappropriate or pay for what they consider to be the appropriate placement, they are entitled to reimbursement of the expenses of that placement if it turns out they were right in choosing it. Implicit in this reasoning is the notion that parents rightfully decide on a private placement when it addresses, at least in part, their child’s special educational requirements, while the IEP does not. . . .
The court determined, a private placement need provide only some element of the special education services missing from the public alternative in order to qualify as reasonably calculated to enable the child to receive educational benefit. It found it unnecessary for the placement to meet every last one of the child’s special education needs. But, it found the reasonableness of the private placement necessarily depends on the nexus between the special education required and the special education provided.7
Having found that the 504 plan provided for the majority of Student’s fifth grade did not provide him with a free appropriate public education, I must turn to the second prong of the analysis and determine whether Bartlett provides for even some element of Student’s special education needs.
Bartlett is a private regular education school. (Tardiff) It is not a Massachusetts approved special education school. It does not provide Student with any of the specialized services that he requires. In fact, it does not provide any more support for Student’s social/emotional functioning than was provided to him by Newton. The very reason why Newton’s fifth grade 504 plan was found to be inappropriate for Student is that the plan did not adequately address Student’s social/emotional needs. Bartlett provides even less assistance for Student’s social/emotional functioning than Newton provided. Newton has a school psychologist and social worker available to students at the Cabot School. Bartlett does not offer the supports of either a psychologist or a social worker. Although Student enjoys attending the Bartlett School and has been doing well there, it does not offer services to address any of his special needs. Therefore, Parents are not entitled to reimbursement for their placement of Student at the Bartlett School.
Even if I were to find that Bartlett appropriately provided for Student’s special education needs, Parents’ claim for reimbursement would be barred due to their failure to provide Newton with notice of their intention to place Student in a private school at public expense. On Student’s last day at Cabot Mother left a note for Dr. Quarcoo on a piece of scrap paper indicating that it was Student’s last day at Cabot. The note did not inform the district that Parents would be seeking public funding of the placement nor did it provide sufficient advance notice. (See 34 CFR § 300.148 )
IEP for the period March 2007-March 2008
The IEP was proposed pursuant to a mediated agreement between the parties and it is unclear whether the Team convened to review the plan. The First Circuit has held that an IEP is a snapshot, not a retrospective. In striving for “appropriateness,” an IEP must take into account what was, and was not, objectively reasonable when the snapshot was taken, that is at the time the IEP was promulgated. Roland v. Concord School Committee , 910 F.2d 983, 992 (1 st Cir. 1990) Thus in assessing the appropriateness of the IEP, I must be mindful of what information Newton had when it drafted the IEP. In terms of direct services, the IEP proposes pull-out services with the school psychologist once per week for thirty minutes to address social/emotional needs. The IEP also provides for academic support with the special education staff once per week to teach academic strategies.
The IEP does not address Student’s occupational therapy needs. That is because as of the date of the mediation, Parents had not yet provided Newton with the report written by Ms. DeSantis of OTA of Watertown. Student was evaluated by an occupational therapist pursuant to the mediated agreement of March 12, 2007. The Student was not evaluated by OTA of Watertown until June 13, 2007, and it is unclear when Newton received the occupational therapy report. As of the last day of hearing, Newton had yet to convene the Team to consider the OTA of Watertown report and make recommendations for services. Although it would have been better practice to immediately convene the Team upon receipt of the report despite the ongoing litigation, Newton’s failure to do so did not cause any harm to the Student. Newton has been reimbursing Parents for the costs of the services recommended for Student by OTA throughout the current school year. (Father) Newton shall convene the Team as soon as practicable to review the findings of OTA of Watertown. They shall also review the findings of Dr. Vacca’s follow-up report, as the mediated agreement indicates Newton had not been provided with said report as of March 12, 2007. Based upon Student’s difficulty with navigating peer relationships, the Team should also consider whether projective testing would be useful in assessing Student’s social/emotional needs. Based upon the sum of the evidence presented in the instant matter, it would appear that Student requires direct instruction in social interactions. The Team should consider the addition of a social group to address this area.
Reimbursement for costs associated with Student’s unilateral placement at the Bartlett School for the 2007-2008 school year
In addition to the previous reasons for determining that the Bartlett School does not address Student’s special education needs, Bartlett does not have an occupational therapist on staff and is not able to provide Student with occupational therapy services or otherwise meet his needs in this area. Bartlett continues to not address Student’s social emotional needs adequately. Therefore, Parents are not entitled to reimbursement for Student’s placement at the Bartlett School for the 2007-2008 school year.
Reimbursement for costs of services provided by the Academy for Physical and Social Development
Parents seek reimbursement for the costs associated with services that they provided to Student at the Academy for Physical and Social Development during Student’s third, fourth, and fifth grades. Because I have found that the services provided to Student during his third and fourth grades were appropriate, Parents are not entitled to reimbursement for services they provided to Student during the third and fourth grade.
With respect to Student’s fifth grade, I find that Parents are entitled to be reimbursed for the services they privately provided to Student at the Academy for Physical and Social Development. Although Mother acknowledges that she never requested that Newton provide services similar to those provided by the Academy, by fifth grade Newton should have realized that Student required additional social supports and offered them to him. Student’s fourth grade teacher recommended that Student’s social needs be supported to a greater extent during fifth grade as did his outside therapist, Mr. Spinner. Both Ms. Fiorenza and Dr. Quarcoo noted that Student had an increase in difficulty with social interactions during the fifth grade. Newton was aware that Student was receiving services at the Academy based upon progress reports that were forwarded to Newton by the Academy. Based upon the foregoing, Newton should have offered Student additional social support such as the social group provided to Student by the Academy. Since Newton failed to provide said services and Parents funded the services, they are entitled to be reimbursed for the cost of the services provided by the Academy for Physical and Social Development during the fifth grade academic year.
Reimbursement for mental health services provided to Student during the 2007-2008 school year to address past bullying
During the 2007-2008 school year, Student has received private counseling with Dr. Luxenberg to address issues of past bullying. Dr. Luxenberg testified that she is a trauma specialist who is assisting Student in processing incidents of bullying including those that occurred while he was a Student at the Horace Mann School. She indicated that Student does not meet the criteria for a diagnosis of post-traumatic stress disorder, but has diagnosed him with anxiety disorder (NOS). She meets with Student weekly. Newton has offered to provide Student with in-school counseling once per week in its proposed IEP. Parent rejected that service. I find no basis for reimbursing Parents for Dr. Luxenberg’s services in this instance. Although Parents believe Student requires the counseling services of a trauma specialist, the record does not support their claim. The only professional who recommended that Student receive trauma counseling was Andrea DeSantis, the OT/PT who assessed Student at OTA of Watertown. As she is not appropriately credentialed to make such a recommendation, I do not credit her recommendation. Newton has appropriate professionals on staff to provide Student with counseling during his school day. As I am not persuaded that Student requires the services of Dr. Luxenberg to receive a free appropriate public education, I deny Parents’ request for reimbursement for her services.
Additionally, I am not persuaded by Dr. Luxenberg’s testimony that Student was so traumatized by past bullying that he cannot return to a public school. The record shows that although Student has unfortunately been the victim of past bullying, the majority of incidents occurred while he was at the Horace Mann School (during his first and second grade), during his after school program, and more recently at a public park. Although there was some bullying during the fifth grade school year, Newton acted quickly and appropriately to ensure that the bullying ceased. Despite having been bullied in the past, the record shows that Student made effective progress both academically and socially while at the Cabot School. The record does not support a finding that Student would be precluded from attending the Newton Public Schools in the future with appropriate supports in place.
Other than suggesting that the Team consider projective testing to determine whether Student requires a social group, I have not made any findings with respect to what services should be added to Student’s most recently proposed IEP because the Team has yet to convene to consider the reports of Dr. Vacca and Ms. DeSantis. The Team should also consider the suggestions of Nancy Mullin8 if her report has been provided to them.
ORDER
Based upon the foregoing, I order that Newton reimburse Parents for the costs associated with the services provided by the Academy of Physical and Social Development for the 2006-2007 school year (Student’s fifth grade). However, as stated above, I find that Parents are not entitled to reimbursement for the Academy of Physical and Social Development for Student’s third or fourth grades.
Additionally, I order the Team to convene to review the occupational therapy report of Andrea DeSantis and the updated evaluation done by Dr. Vacca. Student’s IEP shall be revised in accordance with the recommendations of the Team.
By the Hearing Officer,
____________________________________
Catherine M. Putney-Yaceshyn
Dated: February 12, 2008
1
Dr. Vacca utilized the Wechsler Intelligence Scale for Children-IV; Human Figure Drawing with story; Rey Osterrieth Complex Figure Drawing with Memory; Automatized Series; Dellis-Kaplan Executive Functioning System; Visual Cancellation Task; Auditory Continuous Performance Task; Auditory Discrimination Test; List Learning Subtest; Task of Emotional Development; Sentence completion; Developmental Interview; and Review of previous school assessments and rating scales. (NPS-9, P-B-1)
2
It is unclear whether the report referenced is the David Spinner letter, dated May 24, 2006. That letter does not contain a diagnosis. (P-E-25)
3
Dr. Vacca used the following measures: Interview; BRIEF; Human Figure Drawing with story; Family Drawing; Bender Gestalt Test of Visual Motor Integration; Rey Osterrieth Complex Figure Drawing with memory; Test of Written Language; Stroop; About Me Questionnaire; Sentence Completion for Children; “How I Solve My Problems”; Review of School Accommodation Plan.
4
20 USC 1412 (a)(10)(C)(ii); Sch. Comm. of Burlington v. Dep’t of Educ., 471 U.S. 359, 370 (1985).
5
Florence County Sch. Dist. Four v. Carter , 510 U.S. 7, 11-13 (1993).
6
Diaz-Fonseca v. Commonwealth of Puerto Rico , 451 F.3d 13 (1 st Cir. 2006); Roland M. v. Concord Sch. Comm., 910 F.2d 983, 999 (1st Cir. 1990).
7
Mr. I. v. Maine School Administrative District No. 55 , 480 F.3d 1, 19, 20 (1 st Cir. 2007) (internal quotations and citations omitted; emphasis in original).
8
Although Ms. Mullin testified at the hearing, I did not rely upon her testimony in reaching my conclusions as she had never observed Student at Cabot and did not provide guidance in addressing the issues before me.