Special Education Appeals BSEA #00-3511
COMMONWEALTH OF MASSACHUSETTS
SPECIAL EDUCATION APPEALS
Re: Student v. Quincy Public Schools BSEA # 00-3511
This decision is issued pursuant to 20 U.S.C. 1401 et seq. (the “IDEA”), 29 U.S.C. 794, M.G.L. chs. 30A, 71B and the regulations promulgated under said statutes.
A Hearing in the above referenced matter was convened on August 22, 23 and 24, 2000, at the Bureau of Special Education Appeals (hereinafter, “BSEA”), 350 Main St., Malden, MA, before Rosa I. Figueroa, Hearing Officer. The record was kept open until September 11, 2000, for submission of Proposed Findings of Fact and Closing Arguments.
Those present for all or part of the Hearings were:
Richard Ames, Esq. Attorney for the Parents/Student
Irving Epstein, LICSW Therapist, Harvard Vanguard
Susan McKeon Child Advocate
Suzanne Morse-Fortier Licensed Social Worker
Nicola Favorito Attorney for the Quincy Public Schools
Bill Mulcahy Department Head Special Education,
North Quincy High School
Louis P. Tozzi Director of Special Education, Quincy Public Schools
Rita M. Carroll Special Education Teacher, Quincy Public Schools
Gail Small-Mahoney Special Education Teacher, Quincy Public Schools
Louis E. Marcucci Special Education Teacher, Quincy Public Schools
Patricia H. Shook Behavior Specialist Quincy Public Schools
School Exhibits 1 through 27 and Parent’s Exhibits 1 through 32 were admitted in evidence and were considered in issuing this decision. On August 22 nd Quincy objected to admission of the last page of Parents Exhibit # 19. The objection was overruled and the exhibit admitted in evidence.
1. Whether Quincy violated the Student’s procedural due process rights by failing to offer him a Summer Program during 1998, 1999 and 2000?
2. Whether the 502.4 prototype program at Quincy Public Schools or a 502.5 prototype program at Cardinal Cushing constitutes the appropriate least restrictive placement that can assure the Student’s maximum feasible development?
3. Is the Student entitled to compensatory education?
POSITION OF THE PARTIES
The Student belongs at North Quincy High School’s Learning Center Program under a 502.4 prototype program Individualized Educational Plan (hereinafter, “IEP”). This IEP is procedurally and substantively appropriate to meet the Student’s needs in the least restrictive environment. It offers small group functional academics, life skills and vocational experiences which will prepare the Student to meet life demands. The Staff is responsive to the Student’s needs and is able to provide opportunities for the Student to generalize what he learns within the program. During the three years he has spent in this program he has made progress.
Quincy asserts that Cardinal Cushing is inappropriate to meet the Student’s needs.
The Parent/Student request that the Student be placed at Cardinal Cushing School and Training Center, a private day/residential placement under a 502.5 prototype program Individualized Educational Plan. According to them the Student, who presents with Down’s Syndrome, Diabetes, Hypothyroidism and Sleep Apnea, has received special education services throughout his academic life. Prior to coming to Massachusetts in 1997, he was enrolled in a 12 month program in Maryland where he made effective progress.
Upon arrival in Quincy, he was placed in a 502.4 prototype program without the benefits of an educational summer program. They assert that this omission, among other, constitutes a violation of the Student’s rights. The Parent/Student further assert that the program at Quincy lacks an appropriate peer group, that it is not in tune with the Student’s needs and abilities and that it has failed to address the Student’s communication and behavioral issues. According to them, the vocational component is inadequate and the program lacks after school activities. All of these, compounded with the lack of an educational summer program, has resulted in the Student’s inability to progress effectively causing him to regress. Given the Student’s age, time is of the essence, and he should, therefore, be immersed in Cardinal Cushing’s residential program. At present he has been admitted to Cardinal Cushing School and Training Center’s day program. The Parent/Student assert that in developing and implementing the Student’s IEP, Quincy has failed to comply with the substantive and procedural mandates of federal and state special education laws thereby violating the Student’s rights.
FINDINGS OF FACT
Born on August 19, 1982, Student is an eighteen year old enrolled at Quincy Public Schools’ Learning Center in North Quincy High School. (SE-1) His program combines classroom, vocational, recreational, therapeutic and social activities. (Id.) He presents with a diagnosis of Down’s Syndrome, Diabetes, Hypothyroidism and Sleep Apnea. (SE-1, PE-1, PE-16) Academically he functions at or below age 5-6 level. (SE-1)
The Student takes Synthroid 75 mcg po qd, insulin 12 U regular and 20 U NPH in the morning, sliding scale Regular at lunch, 10 U Regular and 16 U NPH before dinner (1.05 U/kg/day). (PE-15) His blood sugar levels are monitored in school twice per day. (Testimony of the Parent, Mr. Marcucci)
Prior to coming to Massachusetts in 1997, the Student was enrolled at the James E. Duckworth School, a special education school in the Prince George’s County Public Schools in Maryland. (PE-1) At Duckworth School, the Student attended classes throughout the 12 months of the calendar year. The summer program offered the same type of educational services as in the regular school year. (PE-1; Testimony of Parent) Those were: 10 hours per week of special education instruction, 1 hour of speech and language therapy and 28 hours of vocational development. (PE-1)
In March 1997, the Duckworth School performed a three-year reevaluation of Student’s service needs. (PE-10)
A Psychological Assessment by Robert J. Marino, M.S., N.C.S.P., of the Prince George’s County Public Schools, was performed on March 1, 1997. (PE-10) The Vineland Adaptive Behavior Scales, the Brigance Inventory of Basic Skills, the Peabody Picture Vocabulary Test and the Preschool Language Scale were administered to Student’s at this time. (PE-1; PE-10) Mr. Marino found the Student to be a multiply-disabled child and made the following recommendations to meet the Student’s individual needs: positive verbal reinforcement for all successes; opportunities to contribute academically and socially to classroom activities; daily, supplemental high-interest, low-vocabulary reading sessions; sufficient structure so that Student knows what is expected of him; teaching Student job skills; daily motor activities to enhance gross and fine motor skills. (PE-10) This assessment was conducted as part of the Student’s three-year evaluation. Regarding the Student’s Math skills, it was reported that he could count from 1 to 8 and was working on numbers from 1 through 25. (PE-1; PE-10) In reading he was able to recognize approximately 10 words by sight, could sound out words, could point to store signs such as K-Mart and say the word, and was working on recognizing about 20 words. (PE-1; Testimony of Parent) In relation to the vocational/pre-vocational skills, the Student was able to “follow instructions several steps long, listen attentively, spontaneously relate experiences, and deliver a relatively complex message.” (PE-10) The psychological assessment found the Student’s program adequate to meet his individual educational needs. While making steady progress, the evaluation results indicated “the need for continued services as an Intensity V, Multiply Disabled Student.” (PE-10)
The Individualized Educational Plan, providing for the Student’s continued year round program at the Duckworth School, was developed and accepted on March 24, 1997. (PE-1) The plan presented two separate grids one for services offered during the summer program and another for services provided during the regular school year. However, during the summer of 1997, the Parent/ Student moved to Massachusetts. (Testimony of Parent)
On September 5, 1997, the Parents and the Student met with Mr. Mulcahy, Quincy’s Special Education Department head, Nurse Callahan and Len Curreri, the 766 Administrator, to plan the Student’s program covering the period from September 5, 1997 through March 1998. (PE-2) The Team developed an Individualized Educational Plan (hereinafter, “IEP”) that called for a 502.4 prototype program at North Quincy High School’s Learning Center. The IEP was presented to the Parent on September 16 th . (Id.) The IEP specifically stated that since the Student’s previous IEP from Prince George’s County was a re-evaluation, the Team would be reconvened in March of 1998 to review the Student’s progress and program. (Id.) Quincy did not perform evaluations of the Student at that time. (Testimony of Mr. Mulcahy) The IEP from Prince George’s County called for a 12-month substantially separate program. (PE-1) The new IEP from Quincy called for a nine-month program with reduced time for speech and language. (Testimony of Mr. Mulcahy) According to Mr. Mulcahy, the decision not to offer an equivalent 12 month program was made by Quincy’s Central Office. Having been told that no summer program was available and feeling that she had no other choice, the Parent accepted the IEP in full on September 18, 1997. (PE-2; Testimony of Parent) She further requested that the student not be involved in any vocational experiences that involved handling food because of his diabetic condition. The same request was made several other times. (Testimony of Parent)
The focus of the North Quincy High School’s Learning Center Program, in operation for 25 years, is to take students with developmental disabilities between the ages of 14 and 22, and prepare them to confront the real world by providing them with a variety of academic, life and vocational experiences. (Testimony of Mr. Mulcahy) Students work on readiness skills, money handling, shopping, reading, self-care, hygiene, safety, appropriate socialization, etc. There are no more than ten students per class although the groupings for some classes are smaller. (Id.)
As previously agreed, the Team convened on March 18, 1998. (PE-3) Present at this meeting were: Mr. Mulcahy, the Parent, Ms. Small-Mahoney, the Student’s liaison and a special education teacher, and Mrs. Cushman, the special education counselor. The IEP developed offered a 502.4 program much like the previous one except that the vocational component was increased from 5 x 169 minutes per day to 5 x 264 minutes per day while the academic piece was reduced from 5 x 157 minutes per day to 5 x 88 minutes per day. The IEP was presented to the Parent on March 30, 1998 and was rejected in full by her on May 27 th because it lacked a Summer Program component and did not offer sufficient job skills training. (PE-3) According to the Parent, the Team did not discuss the merits of a summer program although she brought up her concerns at that time. (Testimony of the Parent)
A March 18, 1998 Educational Assessment by Gail Small-Mahoney of Quincy, utilizing the Briagance Diagnostic Inventory of Development, concluded that Student’s scores were at the chronological age of 5-6 years old. While he was able to express his needs, his speech was difficult to understand. His social skills were found to be good and he was able to interact with his classmates on a limited basis. Overall the Student was found to function considerably below his peers in the Learning Center. (PE-11)
Ms. Gail Small-Mahoney is one of the Student’s special needs teachers in Quincy. She is responsible for the Bowl and Board experience. Student participates in this activity with five other classmates all of whom are closely monitored by the teacher and an aide. (Testimony of Gail Small-Mahoney) The purpose of the experience at Bowl and Board is to prepare students for the world of work. There, they learn to follow schedules, come in on time, wash their hands with soap before food preparation, set tables, wait on customers, serve coffee, run the dishwasher, handle money, etc. (Id.)
The Student’s Team met again on March 8, 1999. (PE-4) This time the Parent, Mr. Mulcahy, the Special Education Counselor and the Student’s liaison met to discuss the IEP. A 502.4 prototype program IEP at Quincy’s Learning Center was offered once again. This time the Student’s academic portion of the IEP was increased to 5 x 180 minutes per day, and the speech services also increased to 2 x 45 minutes per day while the vocational component was reduced to 136 minutes per day. Once again the IEP did not offer a summer component. On September 29, 1999, the Parent rejected this IEP presented to her on March 25, 1999. (PE-4)
By March of 1999, the Student started to take things that belonged to other members of his family, such as his brother’s car keys, his mother’s ring, the bills, etc. and hide them. He would sneak to the kitchen in the middle of the night and steal food, such as bananas, which he would eat in his room. He placed paper on the lamp in his room starting a fire. The Student’s room had to be stripped and locks were installed in different parts of the house to prevent him from getting into things. (Testimony of the Parent) He began to use profanity and increased the use of swear words. Except when the parent was present, he made sexually inappropriate jokes. Behavioral issues arose during the recreational camp experience during the summer of 1999. (Id.) In July of 1999, the Parent left work to concentrate on the Student’s issues. To date, the Student responds well to the limits set by the Parent. (Id.)
A Developmental Consultation Services Visit was conducted by a group of specialists on July 27, 1999. (PE-12) The Consultants, Kathleen Sullivan Murphy, MS/MAM, Suzanne Morse Fortier, Down Syndrome Coordinator, and Jo Constantino, Physical Therapist of the SDCS, observed the student simultaneously. (PE-12) The Speech and Language therapist found the Student’s receptive language skills to be solidly at a 4.5 age level and scattered to a 5-year old level. His oral motor skills also delayed. An age range was not obtained for expressive communication skills. The evaluators concluded that the Student should continue to receive weekly intervention with a speech-language pathologist. (PE-12)
At present, the Student’s overall motor skills are an area of strength and he participates well in adaptive physical education. His fine motor skills are fair but his speech and language can be difficult to understand although he can communicate his needs and provide simple responses to questions. (SE-1) Receptive and expressive communication are areas of weakness for the Student. (Testimony of Suzanne Morse-Fortier)
In December of 1999 and January 2000, the Student was referred for a series of reevaluations. Among them was a physical therapy evaluation conducted on December 10 th and 13 th by Carol Shiffer, MED, RPT. During the evaluation the Student showed good gross motor skills including flexibility, balance, and coordination. Physical Therapy services were not recommended. (SE-12)
An Informal Classroom Observation and Assessments Report was completed by Mr. Marcucci on December 1, 1999. In his opinion, the Student was functioning academically at or below age 5-6 level. (PE-13) He found that the Student became easily frustrated and could be oppositional at times, expressing his frustration, for example, by refusing to move from one room to another, or getting angry and using obscenities. (Id.) While he frequently shuts down when involved in tasks that are academic in nature, his attention to task improves when he participates in Vocational Skills Training or Workshop. (Id.) The report indicates that Student’s behavior was inconsistent, that he had been sent home for inappropriate behavior, that he had been restricted from school transportation, and that his comments had grown more inappropriate and had increased in frequency. In response, the Learning Center staff tried numerous behavior modification strategies to help the Student change his inappropriate behaviors and lessen their frequency. (PE-13) The Team found on March 6 th that the Student’s behaviors were related to his disability. (PE-24)
Peggy Farren, CAGS, a School Psychologist in Quincy, conducted a Psychological evaluation on December 1 and 8, 1999. (PE-14) The evaluation methods used were the Wechsler Adult Intelligence Scale-Third edition (WAIS-III) and the Vineland Adaptive Behavior Scales-Interview edition. Additionally, she reviewed the Student’s record and observed him in the classroom. (Id.) She found that Student was functioning in the moderately deficient range of intelligence with particularly strong constructional ability. Using a supplemental group of 18 year old peers for the Vineland Adaptive Behavior Scales, Student obtained the following scores:
Domain – Adaptive Level – Age Score
Communication – Average – 4.3
Receptive – Below Average – 3.11
Expressive – Below Average – 3.8
Written – Average – 5.5
Daily Living Skills – Average – 9.6
Personal – Average – 7.3
Domestic – Above Average – 14.0
Community – Average – 8.4
Socialization – Average – 5.2
Interpersonal Relationships – Average – 4.5
Play and Leisure time – Average – 6.1
Coping Skills – Average – 5.4
Maladaptive Behavior – Intermediate – n/a
Taking into consideration the Student’s well-developed constructional and domestic skills, the evaluator recommended future planning in the vocational realm as well as initiation of travel training to further his independence. Lastly, it was suggested that if the family and the Team found it appropriate, a plan to address Student’s angry outbursts should be developed. (PE-14) Collaboration with DMR and South Shore Mental Health Center’s Behavioral division was recommended for this. (PE-14)
On December 6, 1999, the Student underwent an educational evaluation. The examiner, Mr. Marcucci, administered a set of tests from the Woodcock-Johnson Psycho Educational Battery-Revised (WJ-R) Tests of Achievement. (SE-11) He concluded that the Student’s performance was “very low in Broad Reading, Broad Mathematics, Broad Written Language and Broad Knowledge. He demonstrated a significant intra-achievement strength in Broad Knowledge [and]… significant intra-achievement weaknesses in Broad Reading and Broad Written Language.” In most all areas the Student performed at approximately an age 5 level. (SE-11)
A Speech and Language evaluation was performed by Miriam Fein on December 9 and 13, 1999, at the request of the Parent. (SE-10) The tester found the Student’s semantic and syntactic language skills at approximately the 5 year old level. His “vocabulary knowledge and integrative thinking are areas of relative strength. His understanding and use of spatial relationships is better than his understanding of temporal and quantity concepts. His comprehension of syntax is weak, for example, in directions which contain multiple elements or steps, as is his use of correct syntax expressively. He tends to speak in 3 to 4 word utterances using primarily content words or with ‘stock phrases,’ probably memorized as chunks. Though his speech is frequently unintelligible, his willingness to repeat and persist in his communication is a relative strength. Although he seems to express his immediate wants and needs, it is evident that he often experiences frustration at his communication difficulties. Student’s physical expression of affection, though acceptable in his present environment, might be misinterpreted in less familiar situations in the community.” (SE-10) As a result of the evaluation, continuation of the speech and language therapy was recommended twice per week, “with focus on expanding his functional vocabulary, comprehension of spatial, temporal and quantity concepts, comprehension and use of correct syntax, and appropriate social-pragmatic conventions.” (Id.)
On January 11, 2000, an occupational therapy evaluation was conducted by Mary Ann Chase. (SE-9) The Student was found to have many strengths affording him “very acceptable functional ability.” (Id.) The evaluator was of the opinion that in a structured setting, with encouragement, he could complete tasks that appeared above his ability and was also able to engage in simple abstract learning tasks, which involved multiple steps with minimal cueing. Ms. Chase was of the opinion that the Student was capable of understanding the ramifications of his behavior and therefore should be held accountable for his actions. (SE-9)
The Student’s Team met on January 14, 2000 to discuss the result of his re-evaluations. (PE-5) The 502.4 prototype IEP offered the Student at this time provided direct special education academic services at a rate of 5 x 172 minutes per day, 5 x 163 minutes per day vocational services, 2 days a week x 45 minutes each adaptive physical education, 2 days a week x 45 minutes each speech and language. Additionally, the Student would receive once per week 45 minute arts class and there would be consultation to the Learning Center Staff for 10 minutes per week. (Id.) This IEP included a “Statement of Needed Transition Services” which laid out Quincy’s post-school vision statement describing the desired outcome for post secondary, adult living and working environments for the Student. It stated that the Student would “eventually work in a workshop type setting, for a partial or full day and will live at home”. (PE-5) Mr. Mulcahy testified that this vision statement was meant for the period covered by the IEP and not as a future goal for the Student. The Parent and Suzanne Morse-Fortier found this vision to be a backward view for Down’s Syndrome population and not indicative of what the Student, given his potential, could achieve. Present at the Team meeting were the Student’s Parent, the Advocate, Mr. Mulcahy, the Student’s liaison, the Special Education Counselor and the Physical Therapist. This IEP, presented to the Parent on February 7, 2000, was rejected by her on February 14 th . (Id.) The Parent further requested a meeting to discuss the rejected IEP. (Id.)
Following a Team meeting on March 6, 2000, a revised IEP was forwarded to the Parent on March 10, 2000. Mr. Louis Tozzi, Director of Special Education for Quincy, was present at this Team meeting. (Testimony of Mr. Tozzi) This IEP, which the Parent accepted on March 17 th , pending a review on April 28 th , provided 34 x 45 minutes per week of academic and vocational services, 3 days a week x 45 minutes each adaptive physical education, 3 days a week x 45 minutes each speech and language. (PE-6) The Parent further noted that as determined by the Team the vocational experience at Bowl and Board was not appropriate. Therefore, Goal #4, objective #3 should be omitted from the Student’s IEP. (PE-6) Notes from the meeting of March 6 th indicate among the agreements reached, that Quincy would be responsible for a summer program for the Student and that the Team would reconvene again after the April vacation to discuss the Student’s progress. (PE-24) Discussion of a possible 502.5 prototype placement was deferred. (PE-24)
Along with the rejection of the IEP, on March 17, 2000, the Parent requested independent evaluations in the areas of Occupational Therapy as well as Speech and Language. (PE-6; SE-14) Quincy agreed to them and on March 28, 2000, Health South: Braintree Pediatric Rehabilitation Center was notified by Quincy that it approved to the evaluations and agreed to cover its share of the cost associated with them. (SE-14) The evaluation was conducted by Kristie Camuso, MSCCCSLP, of the Center for Communications Disorders at Health South Braintree Pediatric Rehabilitation Center, on May 8, 2000. (PE-17) Her findings supported a recommendation for individual and group speech and language treatment. (Id.)
Jennifer L. Duro, OTRIL, of Braintree Hospital Rehabilitation Network, performed a Pediatric Occupational Therapy evaluation on April 5, 2000. (PE-16) She concluded that poor trunk and upper extremity strength, postural static control, visual motor/perceptual skills, bilateral coordination and motor planning impact his function for maximum independence. The Student’s strengths lie in his good eye hand coordination, motivation, cooperation, equilibrium and balance. Ms. Duro recommended that the Student be placed on a 2 to 3 lb. weight program to strengthen upper extremity and trunk, to help him become more independent in self-help skills and increase his potential vocational opportunities. (Id.) She also found him to be easily visually distractible requiring structure and organization to follow 2-3 step directions to complete his tasks. One to two sessions of occupational therapy per week, to address his self-care functional skills, were recommended with the length of sessions to be determined by the treating therapist. (PE-16)
On April 6, 2000, the Parent/ Student, having filed an application, interviewed at the Cardinal Cushing School and Training Center (hereinafter, “Cardinal Cushing”) seeking placement of the Student. (PE-19) Cardinal Cushing, located in Hanover, MA offers an “individualized life skills program which provides a continuum of ongoing learning experiences with educational, prevocational and residential environments adapted to Student’s needs. Both day and residential programs provide a full complement of supportive services which include diagnostic testing, counseling speech, physical therapy, occupational therapy, adaptive physical education, art, music, and recreation. Vocational training programs include: culinary arts, multi-maintenance health careers, horticultural training, and container redemption program. On campus training facilities include: Cushing Country Bakery, Bottle Redemption Center, and Greenhouse. Numerous off-campus vocational training experiences are also provided… [to] help prepare students for job placement in the community”. (PE-19) The program runs for 260 days per year. (Testimony of Mr. Tozzi) Not all
the staff is certified and the vocational experiences and options off site are offered on a part time basis. After the regular school program ends in the afternoons, the students enjoy recreational activities, monitored by counselors, including watching television. (Id.)
Discipline, suspension and incident reports covering the period from December 3, 1999 through April 13, 2000 indicate that Student engaged in inappropriate behaviors in various settings. (PE-21) On February 7 th and 8 th he was suspended for hitting his teacher’s aide in the stomach. Reports from March and April, 2000 indicate that he repeatedly touched himself inappropriately while riding on the bus, that at least once he refused to wear his seat belt, that he threatened others and used inappropriate language. (PE-21) On April 25, 2000, Ellen Eldwein, R.N., nurse consultant with the Department of Mental Retardation, made recommendations for using positive reinforcement to address the problem behaviors while riding on the bus. (PE-25)
The teacher assessments of the Student’s performance of January 10 and 7, March 22, and April 28, 2000 indicate that the Student was generally doing well in the Special Needs Learning Center in Quincy, although his ability to maintain good behavior in some settings was inconsistent. The January report by Gail Small-Mahoney indicates that the Student is “good” in class until he is distracted at which time he is not able to focus on his work. According to another source, R. Carroll, when the Student was distracted or talked out of order, he was “easily coaxed back to work…evidence to the contrary in other places”. (SE-5) The final Report Card for the 1999-2000 school year indicates that in C. Swanson’s class the Student appeared inattentive and distracted. (SE-6) Regarding monitoring of his blood levels, Mary Jane Callahander, the school nurse reported that the Student was always cooperative with the procedure and that he never refused to have his finger stuck or to receive his insulin when needed. (SE-8)
On April 28, 2000, the Team met as agreed in March 2000. (PE-24) By then Dr. Patricia Shook had met with the Student and his Parent and was in the process of drafting behavioral goals and objectives upon completing a functional assessment. The follow-up meeting notes indicate that a question remained concerning a summer program so the Team would reconvene before the end of the year. (Id.)
On May 10, 2000, Irving Epstein, LICSW, a child and adolescent therapist at Harvard Vanguard Medical Associates, began to service the Student for behavioral concerns around issues of stealing, inappropriate sexual remarks and behavioral management. (PE-22; PE-30) He provides the Student with one hour of individual and family therapy, approximately once per month or six weeks. (Testimony of Mr. Epstein) Mr. Epstein sees the Student as a “sweet” individual who has difficulty with self-control and with communication, possesses untapped potential, and is not doing well in his current educational environment. He finds the home environment appropriate. His letter of June 27, 2000, to Richard Ames, indicates that Student was not achieving academically, vocationally or socially and that his behavior had deteriorated over the past year. Mr. Epstein concluded that Student’s lack of progress suggested a more intensive approach, including more focused vocational training as well as peer exposure, that can address psychosocial needs, and therefore would benefit from being in a residential specialized school that handled students with profound developmental delays. (PE-22; Testimony of Mr. Epstein) Mr. Epstein lacks first hand knowledge of the program at Quincy. (Testimony of Mr. Epstein)
Behavioral Strategies were developed on May 26, 2000 following a meeting between Mr. Mulcahy, Mr. Marcucci, Ms. Swanson and Ms. Shook. (SE-7; PE-18) The behavior modification plan was put into effect nine days before the end of the 1999-2000 school year. Mrs. Proto, the paraprofessional assigned to the Student, was responsible for keeping the checklist of acceptable behaviors on a clipboard and the teachers were responsible for providing the Student feedback at the end of each class. (Id.) The checklist was to be sent home daily. (SE-7; PE-23)
The Student’s Progress reports for the 2000-2001 school year, dated June 13, 2000, reflect that the Student made some progress towards reaching the goals in his IEP. (SE-4) The reports however, stated that he was unable to maintain consistency in Practical Math Skills, in life skills development he often lost concentration and had to be re-instructed and it was noted that he did not transition well. (Id.)
In June of 2000, the Student was invited to visit the program at the Cardinal Cushing School and Training Center for three days. (Testimony of the Parent) On June 9, 2000 the Parents received a letter from Cardinal Cushing School and Training Center stating that the Student had been accepted into their day program for the 2000-2001 School year. (PE-19)
Mr. William Mulcahy drafted an Amended IEP on June 16, 2000. (SE-3; PE-7) The Amended IEP reflected the items implemented or addressed after the IEP meeting of April 28, 2000 in a page titled Summary Amendment. This Amendment reflected the following:
1. The number of special education teachers teaching [Student] was decreased to four and the same teacher aide accompanied [Student] to each class in order to eliminate the amount of staff giving [Student] different messages and providing more structure to his day.
2. Speech services have been increased an extra session each week to 3 x 45 m. p. day.
3. [Student’s] diet intake continues to be monitored by staff.
4. [Student] continues the monthly group counseling sessions with Mrs. Cushman and the other Learning Center students.
5. The Adaptive Physical Education time has increased an extra 45 minutes each week to help improve [Student’s] motor abilities.
6. The Team implemented a Behavior Modification Plan with [Student] on 5/26/00. Dr. Patricia Shook, a Behavioral Specialist with the Q.P.S., and the special education staff at N.Q.H.S., developed the plan.
7. As a result to the OT evaluation and the Independent OT evaluation by Braintree Hospital Rehabilitation (4/5/00), Ms. Mary Ann Chase recommends that the Occupational Therapist at North Quincy High School provide 30 minutes a month consultation time to the Learning Center Staff.
8. Mr. Tozzi is developing some options for [Mother] to consider for a summer program for the [Student].” (SE-3; PE-7)
In addition, the IEP contained a Statement of Needed Transition Services which described the Student’s desired outcome in adult living, post-secondary, working environments as eventually working in a workshop type setting for part of or the whole day, while living at home. (SE-3; PE-7) The Parent disagreed with this view since she envisioned that the Student would live in a group home or some other form of independent living situation in the future, while holding a job. (Testimony of the Parent)
On or about July 13, 2000, Quincy sent the Parents an invitation to participate in a Team meeting on July 25 th . (SE-2)
On July 25, 2000, Mr. Tozzi, Mr. Mulcahy, Dr. Shook and the Parents met again to discuss the Student’s IEP for the 2000-2001 school year. (SE-1; PE-8) The IEP was delivered by Mr. Tozzi to the Parents on August 1, 2000. (Id.) The proposed IEP called for a 502.4 prototype program at North Quincy High School’s Learning Center. Under this IEP it was proposed that the Student receive academic and vocational services at a rate of 1,530 minutes per week, adaptive physical education 3 x 45 minutes per week, speech and language, 3 x 45 minutes per week, occupational services 1 x 30 monthly, music 1 x 45 minutes per day, and the assistance of a behaviorist who would provide consultation with Quincy’s staff 15 minutes per day, make home visits, 2 x 60 minutes per week, and work with the Student 1 x 45 minutes per week in school. (Se-1; PE-8) The Parents took no action in regards to this IEP.
Letters of August 1 and August 3, 2000 from Quincy Recreation Department to the Parent, indicate that Student was having difficulty following directions, that he used swear words quite often, that he hit another camper in the face, and that he bit and spit in a counselor’s face. (PE-21)
The Student returned to the Developmental Consultation Services for an office visit on August 8, 2000. (PE-32) Upon evaluating the Student without the use of formal testing, and discussing his progress with Student’s Mother, Joanne Mitchell, MD, raised concerns that Student’s program may not be meeting his needs as deterioration in Student’s social interactions and behavior was noted. She recommended participation in a weekly social skills group to address pragmatic skills and consideration of a more appropriate program where student could continue to learn and develop. (PE-32)
A Temporary Decree of Guardianship, issued on August 9, 2000, indicates that the Norfolk Probate and Family Court found Student to be mentally retarded to the degree that he is incapable of making informed decisions and appointed Mother as the Student’s temporary guardian until November 9, 2000. (PE-20)
RULINGS OF LAW
The parties agree that the Student is an individual with a disability as defined by the IDEA and M.G.L.c. 71B. The dispute centers on identification of the least restrictive, free, appropriate public educational placement reasonably calculated to maximize the Student’s potential. David D. v. Dartmouth School Committee , 775 F.2d 411 (1 st Cir. 1985). The Parent/Student contend that the Student’s needs cannot be met in Quincy and request that the Student be placed at Cardinal Cushing, while Quincy asserts that the 502.4 prototype program at North Quincy High School’s Learning Center is the appropriate least restrictive placement. The Parent/Student further argue that Quincy violated the Student’s procedural due process rights and that as a result the Student is entitled to compensatory education. Careful review of the evidence supports a finding for the Parent/ Student in most areas of their complaints. However, the evidence does not support a finding favoring placement at Cardinal Cushing School and Training Center.
It is Quincy’s 502.4 prototype program with modifications that is reasonably calculated to meet the Student’s needs and can provide for his maximum educational benefit in the least restrictive environment. David D. v. Dartmouth School Committee , 775 F.2d 411 (1 st Cir. 1985). My reasoning follows:
PROGRAM DESCRIPTIONS AND APPROPRIATE PLACEMENT:
During the summer of 1997 the Parent/Student moved from Maryland to Massachusetts. (Testimony of the Parent) In Maryland the Student had attended the James E. Duckworth School, a special education school in the Prince George’s County Public Schools. (PE-1) This substantially separate program for children with developmental delays was located in a separate facility. (Id.) The Student’s last IEP from the Duckworth School of March 1997 included one hour per week of speech and language therapy. Six annual goals were stated and short-term instructional objectives were written for each of the stated goals. The IEP specifically identified the Student’s inappropriate behaviors as an educational need and included two specific short term instructional objectives to address this need (PE-1) As a result of the continuity, type and frequency of services at the Duckworth School, the Student made steady progress, his speech was understandable and he socialized with at least two other students with Down’s Syndrome whom he knew by name. (Testimony of Parent) The available reports support the Student’s progress while at Duckworth School. (PE-10; Testimony of Parent)
Upon arrival in Quincy the Student was offered a 502.4 prototype program IEP. (PE-2) This program reduced the amount of speech and language offered at Duckworth, did not have goals or objectives to address the Student’s behavioral issues, and provided a nine month as opposed to an extended school year program. (Id.) Goals and objectives changed over the following two and a half years, to a great extent at the request and perseverance of the Parent, although an educational summer program was never made a part of the Student’s program. (Testimony of the Parent, Mr. Mulcahy and Mr. Tozzi) While progress has been demonstrated in Quincy the evidence is not persuasive that it is commensurate with the Student’s potential. Rita Carroll, special needs teacher in Quincy stated that upon arrival in Quincy, the Student presented as a very young child, he played with toys, he had a habit of making noises and singing, his reading skills were very low (somewhere in the pre-school level) and he had a very hard time transitioning. During 1999, he would put his head down on the table and fall asleep half way through the class. She testified that now his attention span had greatly improved. (Testimony of Rita Carroll) At present, he does not act that immature and is less distractable. (Testimony of Mr. Marcucci) The difficulties with transitions however, continued to be evidenced when he needs to go from a class or environment he likes to one he does not like. (Testimony of Mr. Marcucci) According to Mr. Marcucci with whom the Student enjoys a very good relationship, the Student prefers vocational to academic subjects.
By 1999/ 2000 the Student was performing at or below age 5 to 6 level in all areas. (SE-11) This was evident at the Team meeting of January 14, 2000. As with previous IEPs, the Parent rejected the IEP presented to her after this meeting due to Quincy’s failure to address Paul’s increasing inappropriate behaviors and regression, failure to provide a summer program, lack of job skills training, and continued assignment to food service activities. (Testimony of Mr. Marcucci and the Parent) Throughout the three years that the Student has been at Quincy, his diabetes was monitored closely by the school nurse and the staff, although at least on two occasions his blood sugar levels were elevated when he arrived home from school. (Testimony of Mr. Marcucci and the Parent)
In late 1999, the Parent wrote to Quincy’s school nurse about this. (PE-5, PE-26; Testimony of Parent) In addition to new goals and objectives to address the Student’s pre-reading, practical skills and speech articulation problems, it provided that a “Behavioral Plan [would] be developed with South Shore Mental Health that [could] be used in school and at home”. (PE-5) The Parent’s application to South Shore Mental Health was turned down. (Testimony of the Parent)
Quincy’s January 14, 2000 IEP stated its long term goal for the Student as eventually working in a workshop type of setting for a partial or full day while living at home, something that did not meet with the Parent’s expectations. (PE-5, PE-6, PE-7, PE-8; Testimony of the Parent) Mr. Mulcahy testified that this vision was not intended to speak to Paul’s long-term goals, but rather was meant to be a statement of his goals for the one-year period of the respective IEP. If indeed that was Quincy’s view at the time, it should have qualified its statement. Mrs. Johnson and Suzanne Morse-Fortier testified that this statement presented a limited view of the Student’s potential. Suzanne Morse-Fortier was of the opinion that the Student had the ability to achieve “some type of supported employment and supervised living, possibly with peers, in the community.” (PE-32; Testimony of Suzanne Morse-Fortier) To reach this long-term goal however, she stressed that work on several areas was essential. Those areas are: self-care, social skills, guidance on appropriate boundaries and fitting behavior to a particular setting, increased reading level with ongoing skilled instruction and expansion of functional communication skills. She stated that the Student would benefit from an educational setting that offered close supervision and guidance, a peer group in which he could function as an equal member, and safe, structured opportunities to increase his independence. She recommended that he be involved in a year-round program for consistency and to prevent regression of hard-won skills. (PE-32)
The evidence shows the following the January 2000 Team meeting Quincy made strides to accommodate the Parent’s concerns and address needs that had not been properly targeted before. Its efforts continued in March, June and July of 2000, each time developing an IEP that was closer to meeting all of the Student’s needs. Its most positive addition was consultation by Dr. Shook to address the behavioral issues, which were a great source of concern to the Parent. (Testimony of Mr. Tozzi and the Parent)
Quincy’s Learning Center Program is a small, integrated, self-contained program specifically designed to educate developmentally needy students within the North Quincy High School. (Testimony of Mr. Tozzi; Mr. Mulcahy)
During the 1999-2000 school year this program serviced twenty students between the ages of 14-21. (Id.) It is staffed with six certified special education teachers who work with five assistants. Related services and adaptive physical education services are available to students. A guidance counselor meets with the students once per month. (Testimony of Mr. Mulcahy; S-13) “Typical” students assist in the various Learning Center Program activities. (Testimony of Ms. Carroll; Mr. Mulcahi, Mr. Marcucci)
The curriculum emphasizes vocational training and enrichment opportunities, functional or applied academics, and activities of daily living within small group settings. (Testimony of Mr. Mulcahy; Mr. Marcucci; Ms. Small-Mahoney)
The vocational curriculum of the Learning Center Program offers options that expose students to varied work environments and tasks such as office training, workshop setting and food-service opportunity through its Bowl & Board Restaurant. (Testimony of Ms. Carroll; Mr. Mulcahy; Ms. Small-Mahoney) Quincy has established contractual relationships with local agencies such as WORK, Inc. Through these arrangements students perform assembly or piece-work activities. Students also have the opportunity to participate in the “I-WAT” program which is an in-school supervised work opportunity which allows students to perform different functions in and around the North Quincy High School. (Testimony of Mr. Mulcahy) Through its partnership with the Harvard-Pilgrim Health Plan, a private employer located in Quincy, selected students are able to work on-site at Harvard-Pilgrim Health Plan. (Id.)
The program’s functional academics instruction includes language arts, reading, communication skills and mathematics. The vocational and academic components are supplemented with related services, adaptive physical education, swimming, music and art. Additionally, community experiences such as bowling, banking or grocery shopping provide the Student with opportunities to generalize academic, social skills and behaviors learned in the classroom. (Testimony of Mr. Marcucci) The staff at Quincy is appropriately certified. At Quincy, the Student benefits from the exposure to typical peers because one of his strengths is his ability to model behaviors. (Testimony of Gail Small-Mahoney)
The Cardinal Cushing School and Training Center offers an individualized life skills program with experiences in educational, prevocational and residential environments adapted to meet the student’s particular needs. It operates as a day and residential program and provides supportive services inclusive of diagnostic testing, counseling speech, physical therapy, occupational therapy, adaptive physical education, art, music, and recreation. Its vocational training programs include: culinary arts, multi-maintenance health careers, horticultural training, and container redemption program. Training facilities on campus include: Cushing Country Bakery, Bottle Redemption Center, and Greenhouse. Some off-campus vocational training experiences are also available. (Id.) Mr. Tozzi was well acquainted with the program at Cardinal Cushing School and Training Center as he has visited this program multiple times, he has placed other students there throughout the years, he has participated in their commencement ceremonies as a speaker and his wife is employed at Cardinal Cushing. (Testimony of Mr. Tozzi)
The program operates as an extended year program (260 days) and includes a summer component available only to students enrolled in its regular year program. Mr. Tozzi was of the opinion that it was not appropriate for the Student. At Cardinal Cushing, the vocational pieces are spread around the campus, something that could present difficulties for Student given that he has difficulties with transitions. (Testimony of Mr. Tozzi) Opportunities for mainstreaming, or for exposure to typical peers do not exist at Cardinal Cushing. (Id.) The staff is not as experienced as that of Quincy, nor are they all properly certified. (Testimony of Mr. Tozzi) Also, the daily after school activities are unstructured and recreational in nature and are supervised by residential workers who are not certified teachers or special educators. (Id.) I find the testimony of Mr. Tozzi credible and reliable, especially in light of the Parent’s/Student’s absence of reliable information to the contrary. None of the Parent’s expert witnesses had first hand knowledge of the program at Quincy as they had not discussed it with the staff at Quincy, had not visited the program or participated in any Team meetings. Their assessment of the program as a whole is therefore unreliable.
The evidence shows that both programs offer a myriad of experiences designed to assist students who present with diagnoses similar to Student’s. I am however not persuaded by the Parent’s argument that the Learning Center Program in Quincy, with modifications, cannot provide the Student with a free appropriate education in the least restrictive environment. Additionally, the Parent/Student did not meet their burden in proving that Cardinal Cushing is the appropriate placement for Student. While I agree with the Parent/Student that the Learning Center Program failed to maximize the Student’s potential in the past, I am persuaded that with the modifications and additional services described below, this program is reasonably calculated to maximize the Student’s potential in the least restrictive environment. Quincy shall implement the behavioral component described by Dr. Shook with carry over during transportation and to the home and it must offer additional and more frequent guidance group meetings to discuss and reinforce appropriate social behaviors, as well as an educational summer component. Among the behaviors targeted, Quincy must address Student’s inappropriate sexual behaviors. Furthermore, Ms. Suzanne Morse-Fortier was persuasive in her position that individuals with Down’s Syndrome need constant reinforcement to acquire skills and to avoid regression and Student is no exception. To achieve this, he requires participation in an extended school year program that includes academic, vocational, social/recreational components. (Testimony of Suzanne Morse-Fortier) She was also persuasive in that more intense speech therapy is needed as Student’s speech is impairing his ability to interact with others. (Id.) In her opinion, he would also benefit from more varied vocational experiences, something that the Student could do in Quincy through some of the outside job opportunities when he is ready. The evidence shows that Quincy began to implement some of these recommendations through the IEPs following the March through July meetings. The one exception has been provision of an extended school year program.
Ms. Morse-Fortier and Mr. Epstein both made recommendations for residential placement outside Quincy. However, neither had any first hand knowledge of the program at Quincy as their conclusions stemmed from very limited observation of the Student and mostly from the Parent’s perception. While I am persuaded that the Parent’s concerns were reasonable, her presentation was very much one sided and ignored the positive strides made by Student in Quincy and the benefits of this program. Furthermore, Ms. Morse-Fortier and Mr. Epstein stated that they were concerned about the program at Quincy but neither followed through in discussing their concerns with the staff at Quincy, or attended an IEP meeting, something that may have resolved some of the issues earlier.
The evidence is persuasive that the Learning Center Program with modifications is the appropriate placement. (Testimony of Dr. Shook, Rita Carroll, Louis Tozzi, Gail Small-Mahoney) Quincy is cautioned to continue to monitor food preparation activities closely in light of the Student’s diabetic condition. However, if Quincy is unable create an appropriate extended school year program inclusive of an academic, vocational and recreational component, it shall locate one for the Student.
The record reflects that over the past two years, the intensity of maladaptive behaviors has increased. The Student has begun stealing things at home, has burped and snorted in a female peer’s ear, has insulted and sworn at a teacher trying to correct his behaviors, has cried and yelled uncontrollably in class, has crawled around the floor of a Learning Center classroom acting like a baby, has refused to respond to teachers’ requests that he move from the lunch room or from other places in the Learning Center, has caused small fires at home by placing paper on top of a lamp in his room, has engaged in uncontrollable sexually-related verbal behaviors in the community, and has secretly consumed food that has caused his blood sugar levels to go up to dangerously high levels. (PE-11, PE-13, PE-23, PE-28; Testimony of Parent, Mr. Mulcahy and Mr. Marcucci) In recent months, the Student has twice hit a teacher aide, has engaged in inappropriate sexual behavior on the school bus, and, most recently, after first being sent home for swearing and noncompliant behaviors, has hit another student and has “bit and spit in a counselor’s face” at the Happy Acres summer camp. (PE-9, PE-21, PE-28; Testimony of Parent) On at least one occasion this year, the Parent had to pick up the Student from school after he had been persistent in using inappropriate language and swearing. (Testimony of Dr. Shook)
The Parent testified that in the home, the Student behaves appropriately when in the presence of his mother but not when he is out of her sight. The Parent has had to “lock up the house” with hasps and combination locks on many of the doors and had to place child resistant locks on others. The Student’s room had to be “stripped” of all furnishings and equipment other than his bed. (Testimony of Parent) In 1999 the Parent engaged Irving S. Epstein, LICSW, to help her and Student address the behavioral issues. (Id.)
Quincy was cognizant of the behavioral problems but did nothing until 1999. The student performance and instructional profile section of the IEP covering the period from 3/1999 to 3/2000 made reference for the first time to the Student’s inconsistent behavior and affirmed that “he would continue to participate in a small guidance group to help him deal with social and personal issues.” No behavioral goals or objectives were included in this IEP. (PE-4) In December of 1999, Mr. Marcucci’s informal classroom observation described the Student as being disruptive and oppositional, having temper tantrums, using obscenities, and refusing to move from one room to another when asked. (PE-13) A psychological report by Quincy’s School Psychologist Peggy Farren, based on evaluations of December 1 and 8, 1999, included observations of Student burping and snorting in another student’s ear, “bellowing and yelling ‘shut up … be quiet!,’ making ‘rabbit ears’ behind the teachers head”, insulting and swearing at the teacher, keeping his head down on a table and muttering obscenities, crying and yelling when asked to leave a room, and lying on the ground refusing to leave a room. The psychologist also referred in her report to Student’s “disrespect for others’ property, occasional tantrums, and his statements to female students that include ‘nice butt’.” (PE-14)
Regarding participation in the monthly guidance class with Gene Cushman, Quincy’s guidance counselor, the frequency of this service appears to be insufficient to address the Student’s needs. As the Parent correctly pointed out, children with developmental cognitive disabilities do not learn by hearing things once. (Testimony of the Parent) The guidance group once per month meeting of Learning Center students is clearly insufficient to provide appropriate reinforcement of behaviors to the population in the Learning Center Program and specifically to Student.
In April and May of 2000, Dr. Shook had an opportunity to observe the Student at home and in school as well as interview several people regarding him. (Testimony of Dr. Shook) As a result, she made several recommendations as to how to improve the Student’s program. For example, she remarked that twice this year the Student pushed his aide with whom he did not have the best relationship. (Testimony of Dr. Shook) According to Dr. Shook, the aide was observed to have a tendency to ask Student to do something in a way that gave him the option to say no and then she had a difficult time trying to persuade him to comply with her request. (Testimony of Dr. Shook) Her latest recommendations include weekly consultation with the staff to correct their approach to the Student. She also recommended that Student be reinforced for appropriate behavior and that the staff follow through with the consequences that are given him to make behavioral modifications effective. (Teachers would tell him that they would tell Mother and not follow through with this.) Upon completing her evaluation, Dr. Shook developed a behavior modification plan for Student in the spring of 2000. The plan involved a reward system utilizing stickers. (Testimony of Dr. Shook) This plan was in effect approximately 1 and ½ weeks before the end of the school year. At that time he was getting more checks than not, that is he was complying with what was requested of him. (Testimony of Dr. Shook) That plan however, did not address issues that may arise while the Student was in the bus to and from school. (Id.) Additional recommendations were laid out in a subsequent IEP of July 2000. Dr. Shook however, testified to needed modifications to that IEP.
The record is clear that over the past couple of years, the Student exhibited signs of having difficulties and of expressing his distress through maladaptive behavior. In order to reduce and eventually eliminate the inappropriate behaviors, these must be addressed consistently and contemporaneous to the occurrence. (Testimony of Suzanne Morse-Fortier) According to Suzanne Morse-Fortier, the Student has the ability to achieve at a higher level than the one at which he is currently performing. Dr. Shook agreed that the maladaptive behaviors could be corrected. Where expectations are clear the Student does well, but if he gets distracted, then it is harder to re-direct him. (Testimony of Dr. Shook)
There is no doubt that the behavioral component is required. Over time, if the overall environment is appropriate, there will be less need for behavioral management. School personnel’s responses must be more consistent. (Testimony of Suzanne Morse-Fortier) To be effective, the plan must also address problematic behaviors on the school bus. It is insufficient that the Student display the appropriate behaviors while in the school environments. He must also be able to generalize them to the bus, the home and the community.
While Quincy did not begin to address the behavioral issues appropriately until May of 2000, it took steps to correct the problem when it contacted Dr. Shook. (PE-2 to 8, PE-18) I find the addition of Dr. Shook, who has worked with developmentally delayed individuals for approximately 20 years, to the Student’s IEP and program to be instrumental to the Student’s success at Quincy. However, Quincy’s failure to address the behavioral issues appropriately between 1998 and the Spring of 2000 support the Student’s claim for compensatory services.
The Parent/Student are correct in their assertion that Quincy violated their procedural due process rights in many respects as discussed below.
Upon arrival in Quincy in 1997, the Parents and the Student met with Mr. Mulcahy, Mary Jane Callahan, the school nurse, and Len Curreri, a 766 administrator. No teacher or service provider was present at that Team meeting. (PE-2) The Student arrived in Quincy with an IEP from the Duckworth School in Maryland. (See PE-1) Quincy offered the Student a 502.4 prototype program IEP with reduced services in the area of speech and language and no summer component. This IEP did not target behavioral issues either. It is worth noting that the IEP presented to the Parent by Quincy was titled “Amendment to Individualized Educational Plan”. (PE-2) Changes to the Student’s Duckworth School IEP were made without first evaluating the Student. (PE-1; PE-2; Testimony of the Parent and Mr. Mulcahy) Whenever a child eligible for special education moves from one school district to another with an IEP, a new evaluation of the child must be conducted before the services in the IEP can be altered: “The IEP written for the child by the school committee of the former community of residence and accepted by the parent remains in effect until, with the consent of the parent, the school committee of the new community of residence completes a new evaluation and a new IEP is written and accepted by the parent.” 603 CMR 28.332.2. All program decisions must be based on the child’s IEP: “The decision regarding prototype and program shall be based on the IEP, including the types of related services which are to be provided to the child, the type of settings in which those services are to be provided, the types of service providers and the location at which the services are to be provided.” 603 CMR 322.22(a). Similarly, under federal regulations, a school district must ensure that a child’s placement decision is “made by a group of persons, including the parents, and other persons knowledgeable about the child, the meaning of the evaluation data, and the placement options” and is “based on the child’s IEP.” 34 CFR 300.552. Believing that there was no other option, the Parent accepted this IEP. (Testimony of the Parent)
While mandated to offer a comparable program, Quincy amended the Student’s IEP disregarding the need for an extended school year program, reducing the speech and language and failing to target behavioral issues. The evidence shows not only that the alterations to the IEP were unjustified but also that the composition of the Quincy Team in 1997 was inappropriate. See 603 C.M.R. 28.314.0 et seq1.
Also, when Ms. Small-Mahoney’s report documented the Student’s difficulties with speech articulation in 1998, no goal or objective was added to the March 18, 1998, IEP to directly address this problem nor did the IEP make reference to addressing the Student’s inappropriate behaviors. (PE-3)
Regarding the extended year component, Mr. Mulcahy testified that since an educational summer program at Quincy was not an option, the same had not been explored. (Testimony of Mr. Mulcahy) In spite of the Parent’s request for consideration of an educational summer program for the Student, this option was never considered by the Quincy Teams during the meetings of 1997, 1998, 1999 and January of 2000. Mr. Mulcahy testified that since this was not within his power to offer, his Team would never consider such an option. Mr. Marcucci corroborated in his testimony that the issue of whether the Student would substantially regress without an extended year program was never discussed at the Teams in which he participated. Given these testimonies, and considering the rest of the evidence, I find that Quincy violated the Student’s rights in this respect. The sign-in sheets in the IEPs show that none of the Student’s teachers participated in the September 1997, March 1998, March 1999, January 2000 Team meetings. (PE-2, PE-3, PE-4, PE-5) In March of 1999 only the Physical Therapy and Counselor were present. (PE-4) Therefore, given that the teachers were not present at several Team meetings and that the issue was never discussed, I find Quincy’s staff assertions at the hearing that they did not believe that the Student would regress without a summer program not to be credible.
Furthermore, the fact that the Parent’s pleas to get Quincy to discuss and offer an educational summer component went unrecognized in 1997, 1998, 1999 and in 2000 (with the difference that Mr. Tozzi agreed to evaluate the issue in March of 2000) raises questions as to whether the Parent was offered a real opportunity to participate in the Team process. 603 CMR 28.321
Federal and State statutes and regulations charge the student’s Team, inclusive of the parental input, with the legal responsibility to determine the need for special education and related services as well as determine the content of the IEP. This determination is based on the evaluative data and the student’s needs. “Upon determining that the child requires special education and based on the evaluative data, the TEAM shall write an IEP for the child and decide the child’s placement.” 603 CMR 28.322.0. See also, 42 CFR 300.340-300.350 (IEP must be developed, reviewed, and revised by the child’s IEP Team.) At the Team meetings of 9/5/97, 3/18/98, 3/8/99 and 1/14/00, the Parent specifically addressed the Student’s need for an educational summer program. The only evaluative data available to the Team that addressed the need for summer programming was the Duckworth School’s psychological report supporting the need for extended year programming. These were simply ignored. Federal regulations also provide that a school district may not “unilaterally limit the type, amount, or duration” of extended school year services needed by a child. 34 CFR 300.309(a)(3)(ii).
As stated in Town of Burlington v. Department of Education , it is needs, not resources that dictate the content of an IEP. Town of Burlington v. Department of Education , 736 F.2d 773 (1 st Cir. 1984), aff’d, 471 U.S. 359 (1985). While Dr. Shook stressed the importance of repetition to acquisition of knowledge and ability to replicate appropriate responses in multiple settings with the developmentally delayed population, Quincy did not even consider the Student’s need for extended year program because such a service was not offered by Quincy as stated by Mr. Mulcahy. A service should not be offered to a student just because it is available, rather the school is responsible to make available any service deemed appropriate and necessary for a Student.
Lastly, the Parent/Student take issue with the ages of the Student’s group. The evidence shows that the ages of the Students in the Learning Center program at Quincy ranged from 14 to 22 years. This grouping violates regulatory mandates requiring that the ages of the youngest and the older students in a program not differ by more than forty-eight (48) months. 603 CMR 28.502.4(c).
EXTENDED SCHOOL YEAR SERVICES:
The Student arrived in Quincy with an IEP from the Duckworth School that called for an extended school year program. According to the Parent, the Principal at the Duckworth School in Maryland told her that the Student required a year-round program. Nevertheless, Quincy eliminated the program when it drafted the Student’s IEP in September of 1997, without having any evaluation to support its decision. Rather, according to Mr. Mulcahy, it was simply not within his power to offer a summer program as those decisions were made by the Central office and Quincy did not offer educational summer programs to students in the Learning Center Program. (Testimony of Mr. Mulcahy) Cognitively impaired students may participate in Happy Acres, a recreational program for special needs students run by the City of Quincy Recreation Department. (Testimony of the Parent, Mr. Mulcahy and Mr. Tozzi)
Over the past two and a half years, the issue of the Student’s need for participation in an educational summer program was not considered by the Team, even when the Parent brought it up and requested that he be offered one. (Testimony of the Parent) The Parent rejected the IEPs of 1998, 1999 and 2000 to a great extent because of Quincy’s denial of an educational summer component. The first time that Quincy addressed this issue was during the Team meeting of March 2000, when at the request of the Parent, Mr. Tozzi agreed to investigate the possibility of a summer program for the Student and report back to the Team. Mr. Tozzi testified that he was the only other member of the Team to address the summer programming issue in March of 2000 and that his comments were not directed to the Student’s need for the summer program but rather to his making a commitment to see whether or not an available program could be identified. (Testimony of Mr. Tozzi and Mrs. McKeon) The Team responded to most of the Parent’s and Mrs. McKeon’s concerns in March of 2000 by agreeing on 12 changes to the proposed IEP. (PE-6) One of the recommendations was that “Mr. Tozzi [would] arrange to have a summer component in place for [Student].” (PE-6; PE-26) The Parent understood this statement to mean that Quincy would offer an educational summer program. Thus, on March 17 th the Parent accepted in full the IEP of March 6 th containing the summer program proviso, pending review on April 28, 2000.
Mr. Tozzi looked into programs such as Saint Colletta, South Shore Collaborative and Cardinal Cushing but none was available to take a student that was not enrolled as a regular student in their programs. When the Student’s IEP was amended in June of 2000, the section dealing with Student’s summer program stated that “Mr. Tozzi is developing some options for [the Parent] to consider for a summer program for Student.” (PE-7)
This statement was once again altered in the IEP of July 25, 2000 in which in an insert page, references to a “summer program” were deleted and replaced with the statement that the Student “participated in the Happy Acres Summer Camp program on a daily basis from 9-3(with transportation)”. (PE-8) Mr. Tozzi testified that Quincy was attempting to coordinate with Happy Acres to create an educational summer program for the summer of 2001.
Quincy asserts that the rationale to decide whether a Student needs a summer program is whether the Student is at risk of regression and unable to reasonably recoup knowledge lost during the summer months. 603 CMR 28.322.18. It however never discussed this issue at the Team meetings. The Parent argues that when assessing the need for summer educational programming, the issue is not simply whether or not a child regresses from the beginning of the summer to the end of the summer but whether or not the extended year services are required to enable the child to make effective progress and thereby achieve the child’s maximum potential. See 34 CFR 300.309(a)(1)(“public agency shall ensure that extended school year services are available as necessary to provide FAPE”). The evidence shows that Quincy’s refusal to discuss the need for a summer program and failure to offer one was based on its own policy as opposed to consideration of the Student’s needs. Ms. Morse-Fortier testified that individuals with Down’s Syndrome need to use what they learn constantly in order to retain it. She stated that these individuals would lose acquired skills over the space of a summer if those skills were not kept up with some academic work and tutoring. As one such individual, she stated that Student required an educational summer program. Comparison of the two evaluations conducted by her team at SDCS showed that the Student had demonstrated increased difficulties in the area of speech. (PE-12) In her opinion, a recreational summer program alone would not meet the Student’s needs. (Testimony of Suzanne Morse-Fortier) According to the Parent, the Student had difficulty retaining what he had learned over the summers and his behavior deteriorated from one year to the next. The Student was having difficulty generalizing to other settings what he was working on in school and his speech became more difficult to understand from one year to the next as his articulation got worse. (Testimony of the Parent and Mrs. Mc Keon) The Parent stated that she had also noticed some regression in that while in Maryland the Student had a small circle of friends among other children with Down’s Syndrome which is something he lacked in Quincy. (Testimony of the Parent) I find their testimony to be credible and agree with their position that the Student required an extended year program. Quincy’s procedural and substantive violations warrant award of compensatory education.
Compensatory education is available to remedy past deprivations of special education rights. Pihl v. Massachusetts Department of Education , 9 F.3d 184 (1st Cir. 1993). Liability arises where “procedural inadequacies [have] compromised the pupil’s right to an appropriate education … or caused a deprivation of educational benefits.” Roland M. v. Concord Sch. Comm., 910 F.2d 983, 994 (1 st . Cir. 1990) (citations omitted), cert. denied, 499 U.S. 912 (1991). Compensatory education services awarded by federal courts as a remedy for periods of time when a student fails to receive services to which the student is entitled have included “extra assistance in the form of summer school.” Johnson v. Bismarck , 948 F.2d 1000 (8 th Cir. 1991). In Murphy v. Timberlane Regional Sch. Dist. , 22 F.3d 1186, 1196 (1 st Cir. 1994), the court affirmed an order requiring two years of compensatory education, holding that “a procedural default which permits a disabled child’s entitlement to a free and appropriate education to go unmet for two years constitutes sufficient ground for liability under the IDEA.” In Johnson v. Independent School District No.4 , 921 F.2d 1022 (10 th Cir. 1990), the Court determined that the regression-recoupment analysis was not the only measure used to determine the need for a structured summer program. It adopted the Fifth Circuit’s premise, articulated in Alamo Heights Independent School District v. State Board of Education , 790 F. 2d 1153 (5 th Cir. 1986) of whether the “benefits accrued to the child during the regular school year would be significantly jeopardized if not provided and educational program during the summer months…” The Johnson Court discussed a list of possible factors to take into account in applying a reasonableness standard to resolve the issue, those were: “the degree of impairment, the degree of regression suffered by the child, the recovery time from this regression, the ability of the child’s parents to provide the educational structure at home, the child’s rate of progress, the child’s behavioral and physical problems, the availability of alternative resources, the ability of the child to interact with non-handicapped children, the areas of the child’s curriculum which need continuous attention, the child’s vocational needs, and whether the requested services is extraordinary for the child’s condition, as opposed to an integral part of a program for those with the child’s condition. The list is not intended to be exhaustive, nor is it intended that each element would impact planning for each child’s IEP.” While this decision is not controlling, it offers insight as to elements to be considered in offering an extended year program.
The evidence shows that the Student regressed as a result of interruptions in his program impacting on speech articulation, behavior and his overall ability to retain acquired skills. As a result, his potential has not been maximized. Given his age, the continuity of appropriate services over the remaining years of entitlement are crucial.
I find that the Student missed three years of summer educational services as a result of Quincy’s violation of his rights. Additionally, his behavioral issues were not properly addressed by Quincy, until May of 2000. During the period of time that the Student has attended Quincy his speech intelligibility has also deteriorated. Based on all of the above, I find that Quincy’s violations entitle the Student to one year of compensatory education beyond his 22 nd birthday, inclusive of an educational summer program.
While I am persuaded that Quincy is capable of offering the Student a FAPE in the Learning Center Program, if it is unable to create an appropriate summer educational program, it shall locate one for the Student. Town of Burlington v. Department of Education , 736 F.2d 773 (1 st Cir. 1984), aff’d, 471 U.S. 359 (1985).
Quincy is ordered to reconvene the Team inclusive of Dr. Shook, and write an IEP consistent with this decision, forthwith.
So ordered by the Hearing Officer,
Rosa I. Figueroa
Dated: October 20, 2000
October 20, 2000
603 C.M.R. 28. 314.1 through 314. 8 require that “ For each individual evaluation, the persons described in §314.1 and 314.6 shall meet as provided in §319.0 and shall write an IEP for the child if such child is found to require special education. In addition, those persons described in §314. 7 shall be included in the TEAM meeting at the discretion of the Administrator of Special Education. The Administrator of Special Education shall ensure that the TEAM includes persons knowledgeable about the child, the meaning of the evaluation data, and the placement options.
314. 1 A representative of the school committee, other than the child’s teacher, who is qualified to provide or supervise the provision of special education and who shall act as the chairperson or designates a TEAM member to act as chairperson.
314.2 A teacher who has recently had or currently has the child in a classroom or other teaching situation.
314.3 One or both of the child’s parents.
314.4 The child, at his/her request, if such child is of ages fourteen through twenty-one. The TEAM Chairperson shall notify any child who is at least fourteen, for whom an IEP is to be written, of his/her right to be present at and to participate in the writing of such IEP and shall keep a written record of such notification and of the child’s response. If the child is younger than fourteen, the parent may invite such child to be present at and participate in the writing of such IEP id the parent decides that such presence is necessary or desirable and in the best interest of the child. A child who attends an evaluation meeting may be accompanied by anyone of his/her choice.
314.5 Other individuals at the request of the child’s parents. However, if the parents request that individuals outside the school system participate, such participation shall be at the parents’ expense.
314.6 Other individuals who have conducted assessments as described in §320.0 as part of the evaluation, provided that the TEAM shall include at least one teacher or other specialist trained in the area of the child’s suspected special needs. In the case of a comprehensive health assessment. A registered nurse may represent the physician.
314.7 Other individuals, as determined by the Administrator of Special Education, who may be necessary to write and IEP for the child. These individuals may be, but are not limited to: a registered nurse, a social worker with a masters degree in social work, or a certified guidance or adjustment counselor; a certified psychologist or one licensed to practice in Massachusetts; a regular or special education teacher; a consulting teacher; an approved vocational educator; an early childhood specialist; a certified reading specialist.
314.8 In the case of a person graduating from high school or reaching age 22 who is in need of continuing services from the adult service system, a liaison from the assigned transitional agency pursuant to M.G.L. c.71B, § 12A-12C, (Chapter 688 of the Acts of 1993) shall be notified and invited to attend the TEAM meetings at least two years before the anticipated date of exit.”