Student v. Taunton Public Schools – BSEA #99-2716

<br /> Special Education Appeals BSEA #99-2716<br />

COMMONWEALTH OF MASSACHUSETTS

SPECIAL EDUCATION APPEALS

Student v. Taunton Public Schools BSEA #99-2716

DECISION

This decision is issued pursuant to 20 U.S.C. 1401 et seq . (the “IDEA”), 29 U.S.C. 794, M.G.L. chs. 30A, 71B, and the Regulations promulgated under said statutes.

A hearing in the above-noted matter was held on February 24, 1999 and March 17, 1999 in Malden, MA, and re-convened on June 29, 19991 in Taunton, MA, before Reece Erlichman, Hearing Officer. An Order issued on August 9, 1999. (App. I)

Those present for all or part of the proceedings were:

Student

Student’s Mother

Student’s Sister

Robert Augustine Advocate for Student

David Gay Attorney, Taunton Public Schools

Elizabeth Goodell, Ph.D. Licensed Clinical Psychologist

Patrick Jackman Headmaster, Taunton High School

Robert Murray Director of Special Education, Taunton Public Schools

Natalie Broderick Psychologist, Taunton Public Schools

Andrew Marshall Case Worker, Massachusetts Department of Youth Services

ISSUES PRESENTED

Issue 1:

Is the IEP2 proposed for Student by Taunton Public Schools (hereafter TPS) reasonably calculated to assure his maximum possible educational development in the least restrictive environment consistent with that goal?

Issue 2:

Is Student entitled to compensatory education services as a result of Taunton’s failure to implement his accepted 1997-98 IEP during the 1998-99 academic year?

Profile and History

Student is a sixteen year old resident of Taunton, Massachusetts. Measurements of his cognitive ability range from low average to borderline, and he has been diagnosed with a language based learning disability as well as attention deficit disorder (hereafter ADD). He presents with oral and written language deficits, weaknesses in auditory processing skills and attentional difficulties, with attendant significant grade level deficits in reading, math, spelling and factual knowledge. Poor self-esteem regarding school performance has consistently been noted. Student has been prescribed various medications throughout his school career, commencing in grade two, when he was placed on Ritalin. Subsequently Wellbutrin was added to his regimen and, as of May 1999, Adderall was prescribed in tandem with the Wellbutrin. (Exhs. S-5, S-10, S-13, P-3, P-4, P-9, P-10, P-16, PR-2; testimony of Mr. Murray)

A TEAM evaluation in first grade found that Student was developmentally immature and academically delayed, and he thereafter received services in spelling and written language pursuant to a 502.2 prototype IEP. In third grade Student was placed in a small learning disabilities class and mainstreamed for math. During grade four he participated in a team taught class with an Orton-Gillingham certified teacher, and thus received Orton-Gillingham services to address reading skills. Student was mainstreamed for fifth grade, and during sixth and seventh grades he received “pull out” services in tandem with mainstreaming, pursuant to IEPs of the 502.2 prototype. (See Exhs. S-9, P-4, P-9, P-10; refer also to testimony of Mother; Mr. Murray.)

The 502.2 prototype IEP proposed for Student for grade eight (covering the period 10/22/97 to 6/30/98) provided for special education reading (4.6 hours per week) and support services (2.3 hours per week) in the learning center. The remainder of Student’s day was to be spent in regular education classes, with modifications. This IEP was accepted in full by Parent. (Exh. S-5)

The TEAM met on May 26, 1998, and an IEP was prepared for Student’s first year at Taunton High School (hereafter THS). This IEP, covering the period 9/1/98 to 5/26/99, was of the 502.1 prototype and provided for monitoring by a learning specialist (once per week for 15 minutes) with no other special education services. Mother rejected this IEP in October 1998 and requested more intensive services.3 (Exh. S-16) The monitoring as called for by the IEP was, however, implemented.

The TEAM reconvened in October of 1998 and another IEP was drafted for Student’s ninth grade year. This IEP, also of the 502.1 prototype, provided for inclusion classes in math and English. Mother requested an independent evaluation, and postponed a decision regarding the IEP until completion of said evaluation. (Exhs. P-2, S-4)

Following a TEAM meeting on January 7, 1999, an IEP was prepared for the period 1/22/99 to 6/30/99. This IEP, of the 502.3 prototype, provided for special education in language arts (4.2 hours per week), social studies (4.2 hours per week) and science (4.2 hours per week). Mother rejected this IEP in full on January 20, 1999, and it was therefore never implemented. (Exhs. P-1, S-2; testimony of Mr. Jackman)

The TEAM reconvened on March 11, 1999 to consider the results of a speech and language evaluation conducted at Massachusetts General Hospital (Exh. P-16), and an IEP was prepared in response to said evaluation. This new plan, covering the period 3/11/99 to 6/30/99, is of the 502.3 prototype and provides for: co-taught inclusion English (7.25 hours per week); resource room social studies (7.25 hours per week, staffed by a special education teacher and an assistant); daily 1:1 academic support (7.25 hours per week), addressing reading, language, homework, test-taking; and individual sessions of language therapy three times per week at an outside facility, furnished by a Wilson certified provider. This IEP was rejected by Parent on March 17, 1999, and therefore was not implemented. (Exh. S-13; refer also to testimony of Mr. Jackman; Mr. Murray)

On April 30, 1999 Student was admitted to The Arbour, a private psychiatric hospital in Boston. (Exh. PR-2) Upon his discharge on May 4, 1999, a physician’s statement (dated May 6, 1999) was filed on Student’s behalf with TPS, indicating that Student required home tutoring. (Exh. PR-1)

On June 14, 1999, as a result of Parent’s Motion to Reopen the Hearing, the TEAM reconvened to consider the new information which Parent sought to introduce at hearing. The IEP which was generated as a result of said meeting, while not introduced formally as part of the record in this matter, covers the period September 1999-June 2000, and calls for continuation of the same programming as that provided by the March 1999 IEP under review. (See Administrative Exh. A; refer to testimony of Mr. Jackman.)

STATEMENT OF THE EVIDENCE

· An Educational Evaluation of Student was performed by Cathy Mason, M.Ed. at the Center for Children with Special Needs, New England Medical Center, on October 18, 1994, when he was in fifth grade. (Note that he had been followed at that facility since 1992.) Ms. Mason found that Student had a long history of learning and attentional problems, that limited academic progress had been made in the last year and that his special education help had been curtailed quite prematurely. The evaluator also found that Student was being asked to do fifth grade level work with second-third grade level academic skills, and that, with a gap so large, could hardly be expected to survive fifth grade, much less acquire a solid repertoire of new skills. She reiterated that he did not have the basic skills needed to process, absorb and master higher level content.

Ms. Mason’s report went on to state that Student’s academic needs would be met in a small, structured, language-based class where remedial goals could be reinforced across the curriculum, and recommended that he be placed with peers who have similar cognitive/learning profiles, and who do not have emotional or behavioral problems. (Exh. P-10)

· An Educational Status Assessment, prepared in October 1997 (Student’s eighth grade year) by TPS Counselor Frank Carbone, indicated that Student had made “slow progress here”, that the reading instruction and supportive services he was receiving did not forestall his negative behavior, and further that Student appeared to have other things on his mind which usually detracted from his academics. (Exh. P-9)

· A Specialist Assessment prepared by TPS in October 1997 as part of Student’s three year re-assessment revealed that Student was functioning below grade level in all academic areas. More specifically, the assessment found that, pursuant to administration of the WRAT-R, Student’s reading was at the late fourth grade level, his spelling was at the early third grade level and his math was at the early sixth grade level. PIAT-R testing showed his general information skills to be at the 5.2 grade level, reading recognition at the 4.7 grade level, reading comprehension at the 4.3 grade level, total reading at the 4.5 grade level, with math at the 5.4 grade level, and spelling at the 4.1 grade level. The assessment further noted that Student needs to understand the consequences for negative behavior. (Exh. P-11)

· Student’s middle school transcript reveals primarily grades of C and D (with the exception of a B+ in Social Studies) in grades five through seven. His final grades for eighth grade (1997-98) were Ds in all content courses, with the exception of a C in reading. (Exh P-12, S-12)

· Pursuant to court order, Student underwent a residential evaluation at the Diagnostic Assessment Center (“DAC”) between November 5, 1998 and December 30, 1998. (Note that Student was then in ninth grade).

The DAC Evaluation Summary (Exh P-5, S-11) revealed that Student experienced frustration at school, and low self esteem and self image, due to his school difficulties.

The DAC Life Space 45-Day Evaluation, prepared by David Hurd, LICSW, found that Student’s academic difficulties and ADD exacerbate his frustration and tend to make him feel inadequate and inferior to his peers academically. The report further found that Student could not comprehend what was taking place in the ninth grade, and acted out as a result. Mr. Hurd concluded that Student “definitely had problems and needs help especially with his self-image, learning disabilities and in the area of ADD. If these are not cared for, he could get into serious conflicts with the legal system because of poor judgment and cognitive difficulties . . . ” The report also recommended individual and family counseling. (Exh. P-6)

The DAC Educational Report and Mathematics Assessment Form reflected that Student tested significantly below grade level in reading, math and spelling. (On the PIAT-R he received a total Reading grade equivalent of 5.3, a Math grade equivalent of 4.8 and a Spelling grade equivalent of 4.7, at a time when he was beginning ninth grade.) These reports found that Student needs remedial teaching/tutoring in math and reading comprehension, that a “go to” person, such as a guidance counselor, should be provided for him at school, and recommended that a special education TEAM be convened to plan for his educational needs. (Exhs. P-7, P-8)

· Student’s school attendance record for the period September 4, 1998 through December 15, 1998 indicates that he was present 41 days and absent 13. For 16 days he was listed as tardy present and 4 days as tardy absent. For eight days he was listed as dismissed present and one day as dismissed absent. (Exh. S-14) By February 24, 1999 his attendance record for the school year to date was 14 days absent, 18 days tardy and eight days dismissed. (Exh. S-15)

· Grade reports for the 1998-1999 school year indicate that Student received a final grade of “F” in composition, transitional math, science, health and physical education. He received an “F” as the only grade for English (second semester, third quarter), an “F” as the only grade for conduct (first and second quarters of first semester) and a “C” as the only grade for woodworking (third quarter, second semester). (Exh S-15)

· Elizabeth Goodell, Ph.D., is a licensed clinical psychologist currently working at the Landmark School. She performed a psychoeducational evaluation of Student in November and December of 1998, when she was employed at the Good Samaritan Medical Practice Corp. (Exhs. P-4, S-10; see also Exhs. S-7, S-8) Dr. Goodell’s evaluation found that Student’s WISC-III scores placed him in the borderline range of intelligence, with a full scale IQ of 78. On the Woodcock-McGrew-Werder Mini Battery he scored at the third grade level for spelling, fourth grade level for math, basic skills and factual knowledge, and at the sixth grade level in reading. At the time of these tests, Student was in the ninth grade.

Through administration of the Behavior Assessment System for Children and the ADDES Questionnaire, Dr. Goodell’s report also addressed Student’s psychosocial adjustment. In her response to the above, Student’s English teacher (Ms. Landry) placed him in the clinically significant range for conduct problems, somatization and atypicality, indicated that he was at risk for study skills, leadership skills, social skills and hyperactivity and noted him to be below the norm for inattention. Dr. Goodell also reported that Student himself indicated on an instrument/questionnaire that he is finding it difficult to enjoy school, at times feels a sense of inadequacy and appears to be struggling with issues related to low self-esteem.

Dr. Goodell concluded that Student was considerably below grade level (3-5 years) in reading, writing, math and factual knowledge, and manifested inattention, executive dysfunction, and impulsivity. She further found that his psychosocial functioning is both directly and indirectly affected by his academic and behavioral difficulties. Dr. Goodell’s recommendations included the following: appropriate classroom modifications; emotionally supportive teachers familiar with students with attention and executive functioning difficulties, who can make appropriate classroom modifications; tutoring for remediation in reading, writing, spelling and math; a mentor type relationship with a staff person at school, with whom Student can check in on a daily basis to help him feel more connected; counseling to address issues related to ADD, anxiety, low self esteem, and other stressors which may be interfering with school performance. She also recommended that a speech/language reading evaluation be performed, and indicated that, depending on the outcome, Student would most likely benefit from a multimodal classroom teaching approach geared to students with linguistic difficulties. The evaluator went on to note that once these needs are addressed through an appropriate IEP, it is hoped that Student’s inappropriate behaviors will diminish; however, if they continue to arise, he should be evaluated by a behavioral specialist who can then devise a behavior management plan to be implemented at home and school.

In her testimony, Dr. Goodell reiterated her written recommendation for a speech and language evaluation, stating that this evaluation is essential in order to make an informed and reasoned decision as to Student’s special needs. She added that the specific methodology utilized for Student’s reading remediation should be determined through such evaluation.

· On January 27, 1999, Student underwent a Speech Language Evaluation at Massachusetts General Hospital (hereafter MGH), performed by Kristin Shepard, MS, CCC-SLP. The report of said evaluation, together with a March 1, 1999 cover letter from the evaluator, indicated that Student presented with a range of both spoken and written language learning difficulties, and recommended: speech-language remediation three to four times per week (45 to 60 minutes per session) within individual or very small groups; written language remediation four to five times per week within individual or small groups (of no more than two students) using a consistent, systematic multi-sensory approach (i.e., Orton-Gillingham and Wilson Reading Programs); that Student would benefit from learning classroom materials in a small language-based classroom, which is at his vocabulary level, as information presented in a classroom in verbal and written formats is likely to be highly frustrating for Student, due to his language processing difficulties, and the simplification of information below his vocabulary level is likely to be inappropriate as he would find such curriculum understimulating. (Exh. P-16)

· Student’s Mother (hereafter, Mother) testified on February 24, 1999 regarding her son’s educational history, noting that he had difficulties in school as early as kindergarten. She explained that for fourth grade she requested (and obtained) a placement for him in a classroom in which the teacher was certified in the Orton-Gillingham methodology. According to this witness, Student made progress with this teacher, however, such programming was not continued the following year (grade five). Mother went on to state that thereafter (grades six, seven, eight), Student received special education services in tandem with mainstreaming. In her view, Student’s educational needs were not met during these middle school years.

This witness stated that Student exhibited minor behavior problems at school during the sixth grade, during the seventh grade he had been suspended, and by the eighth grade, he was “out of control.” Mother recounted that by May 1998 (the spring of his eighth grade year), Student had been suspended so many times and was truant so often that the school filed a CHINS petition in Juvenile Court, and a probation officer was then assigned to Student. The court was to monitor Student’s behavior and make recommendations.

According to Mother, in the fall of 1998, when Student commenced at THS, negative behaviors arose again. Therefore, at the recommendation of the probation officer, Student was placed by the court at the Diagnostic Assessment Center for a residential evaluation in November of 1998. Parent testified that this was very traumatic for her son. (See report of evaluation, infra , Exhs. S-11, P-5, P-6, P-7, P-8.)

Mother testified that TPS has held no meetings with her to discuss her son’s behavior or to explore a relationship between such behavior and his learning disabilities. In further explaining Student’s behavioral issues, Mother testified that he was never destructive, violent or harmful to others, and that she never observed any behavioral problems at home. (She noted, e.g., that during the summer of 1998, while Student was not in school, there were no behavioral issues, however, when he returned to school, the behavioral problems re-emerged.) In her opinion, Student felt inadequate at school, and he therefore acted out in ways that would result in his being removed from the uncomfortable situation. She further testified that TPS never developed a behavior plan to address behavioral concerns, and never recognized that Student’s truancy was attributable in significant part to his learning disabilities, which were not adequately addressed.

This witness went on to assert that some of Student’s teachers were insensitive to his learning disabilities, and in fact, sometimes exacerbated his problems. She cited, by way of example, that Student’s science teacher taunted him by telling him that he could be sent back to the Diagnostic Assessment Center; that Student was not receiving a gym course because the gym teacher to whom he was assigned would not permit him to attend the class; and that if Student asked a teacher for directions too often, the teacher would ask him to leave the classroom.

In enumerating reasons for her lack of trust in the TPS system, Mother testified that she arranged and paid for an evaluation of her son at the New England Medical Center, without ever having been told that she could request such an evaluation at school committee expense. She further stated that, at a January 1999 TEAM meeting, Mr. Murray, the TPS Director of Special Education, asked her if she would agree to a speech, language and reading evaluation as such an evaluation had been recommended by outside evaluators. Parent consented, expecting that TPS would arrange for the evaluation. When no speech, language and reading evaluation was done by TPS, Mother arranged for such an evaluation at MGH. (P-16) At the same January TEAM meeting, Mother requested that her son participate on the high school swim team. Although Mr. Jackman, the High School Headmaster, said that he would make the necessary arrangements, Mother was not aware of anything having been done towards that end. Parent went on to testify that during her son’s first semester of ninth grade, he received failing grades, but by second semester, he was suddenly a “B” student. She questioned whether, in fact, he actually earned such grades.

Mother testified that she now feels unable to trust TPS to act in her son’s best interests and to address his educational needs. In her opinion, he requires an educational program that will provide intensive work in basic skill areas of reading, spelling and math, and TPS does not have a program that can do that for Student.

When the Hearing reconvened on June 29, 1999, Mother testified that on April 28, 1999, Student was arrested for possession of a clam shucker (considered a double-edged weapon), and on the way home from the police station, expressed an intention to hang himself. Mother therefore took Student to the Morton Hospital Crisis Intervention Team on April 29, 1999, he stayed at a “safe house” overnight and the next day he was admitted into The Arbour, a private psychiatric hospital, where he remained until he was discharged on May 4, 1999.

Parent testified that on May 10, 1999, Student appeared in Court regarding both the weapon possession charge, as well as a prior parole violation (he had come home after his curfew). He pled guilty to both charges and was then taken into DYS custody for a period of three to five months.

Mother further testified that she believes that Student’s emotional difficulties are related to the fact that he has been denied an appropriate education since fifth grade. She explained that he becomes frustrated when he doesn’t get the help he needs at school, and he now feels that it’s hopeless. She reiterated her earlier concern that TPS has never proposed behavior modification or psychological consultation to address his emotional and behavioral issues, and again expressed her lack of trust in the school and her belief that Student cannot be educated at THS.

· Student testified on March 17, 1999 as to the content of his current educational program at THS, indicating that he does not receive any special education services. He explained that he does not like attending the high school, does not feel that he is learning anything in his classes and that his teachers do not give him any extra help. He testified that if he raises his hand to have directions repeated, the teachers either ignore him or get upset with him. (He added that on one occasion a teacher threatened that she could have him sent back to the DAC.) He indicated that he preferred the academic program at the DAC because the classes were very small and the other students had learning difficulties similar to his.

Student acknowledged that he has often been tardy or absent from school, but explained that he feels there is no point in his attending as he doesn’t learn anything, doesn’t understand what is going on in his classes and feels that he looks stupid in front of other students. He further indicated that he sometimes acts out in class in order to get removed so he does not have to stay in school, and added that because of this behavior, he is perceived as a nuisance and thus feels intimidated and harassed at the high school.

· Student’s sister testified on June 29, 1999. She stated that on numerous occasions over the last few months, Student has told her that he feels that he has no future, that there is no reason for him to live any longer, and that he wants to harm himself. Student has also told her that he is afraid to go back to THS as he is concerned that he won’t be able to learn or control his behavior.

· Mr. Jackman, Headmaster, THS, testified that he chaired Student’s March 11, 1999 TEAM meeting, which was held in order to consider the results of the MGH evaluation, and that in his opinion, the resulting IEP incorporated recommendations from this evaluation. He further testified, (on June 29, 1999), that the TEAM later reconvened on June 14, 1999 to consider the events that had occurred since the last hearing date (March 17, 1999). The focus of this meeting was on a possible summer program, which the TEAM declined to offer Student. No changes were made to the March 1999 IEP.

When asked about implementation of Student’s eighth grade IEP (Exh. S-5) during grade nine, Mr. Jackman responded that it was his understanding that this IEP had been accepted, but he did not know if the services called for by this IEP were furnished to Student during academic 1998-1999.

Mr. Jackman also testified that he does not believe that Student is a behavior problem. He indicated that the CHINS petition was originally filed by the school system (when Student was in middle school), however Student has thereafter been detained by the court as a result of incidents unrelated to his attendance at THS.

· Natalie Broderick, School Psychologist, TPS, testified on March 17, 1999 that her first contact with Student was in October 1997, during his eighth grade year (she was then employed at the middle school), when she performed a psychological evaluation as part of his three year re-evaluation. (Exh. P-9) She also attended Student’s January and March 1999 TEAM meetings.

In her October 1997 report, Ms. Broderick noted that Student’s history includes documentation of learning and attentional difficulties, and that he presently takes Ritalin for control of attention and hyperactivity. The report further indicated that Student continues to exhibit difficulties in accepting limits, primarily in the community, although school behavior is currently acceptable. Her evaluation went on to state that Student’s learning difficulties appear to be adequately addressed by special education supports, but that he is at risk for risk-taking behaviors, including drug and alcohol abuses as well as minor involvements with the police, which may escalate into more serious issues, and that he needs to understand the consequences for negative behaviors. Her report recommended that, given Student’s history of learning difficulties and family stressors, a period of therapy might be indicated to assist him during his adolescent years.

Ms. Broderick testified that in her opinion, the March 1999 IEP, which incorporates the recommendations of MGH is appropriate for Student.

· Robert Murray, Director of Special Education, TPS, testified that he has been familiar with Student since the seventh or eighth grade, has attended several of his TEAM meetings, and has read some of his evaluations. Mr. Murray characterized Student as presenting with a moderate to severe learning disability, and experiencing a certain amount of frustration. He added that Student is not, in his opinion, a behavior problem. Mr. Murray asserted that Taunton is capable of addressing Student’s special needs, and that the March 1999 IEP reflects programming which is appropriate for him.

In addressing the issue of implementation of Student’s last accepted IEP, this witness testified that Student came to the high school with an accepted IEP from middle school. (Exh. S-5) He noted that with respect to the initial IEP proposed for THS (Exh. S-16, May 1998), Mother marked the “reject” box but actually wrote “request more intensive services” (S-16). This IEP, which provided only for monitoring, was implemented by TPS. Mr. Murray acknowledged that no special education services were provided Student at the high school pursuant to the 1997-98 IEP (Exh S-5). It was his opinion, however that TPS had no legal obligation to implement the 1997-98 IEP under the “stay-put” principle, given that there was the intervening May 1998 IEP which he characterized as having been partially accepted.

· Student’s May 4, 1999 discharge report from the Arbour Hospital recommended that he be followed on an outpatient basis by a psychiatrist and that he receive both individual and family therapy. (Exh. PR-2)

· A May 6, 1999 Physician’s Statement for Home Tutoring characterized Student as presenting with depression, anxiety and suicidal ideation. (Exh. PR-1)

· Andrew Marshall, Student’s Massachusetts Department of Youth Services (“DYS”) Case Worker, testified on June 29, 1999 that he has been in almost daily contact with Student since Student was taken into DYS custody on May 10, 1999. Student has been receiving six hours of special education daily and there have been no behavioral issues. Mr. Marshall reported that he has found Student to be immature, very emotional, and very homesick.

FINDINGS AND CONCLUSION

Student is an individual with a disability, falling within the purview of the IDEA and M.G.L. c. 71 B. As such, he is entitled to a free, appropriate public education, and an IEP which is reasonably calculated to assure his maximum possible educational development in the least restrictive environment consistent with that goal. David D. v. Dartmouth School Committee , 775 F2d 411, 423 (1st Cir. 1985). Neither his status nor his entitlement is in dispute. Two issues are presented for resolution in the instant case, one substantive and one procedural in nature. The first issue centers on programming and placement, the second on a claim for compensatory education services.

Parent first asserts that Taunton has historically under-served Student, that he has not progressed effectively under the rubric of past interventions, that behavioral and emotional issues secondary to under-addressed learning disabilities have emerged and worsened, and that the IEP which is currently proposed fails to reflect programming and services which are reasonably calculated to maximize his educational development. She therefore seeks a placement for Student outside of the Taunton Public School system, and argues that in order to meet the totality of his needs, a residential program is warranted. Taunton contends that its IEP is consistent with federal and state mandates governing the provision of special education and related services to students with disabilities, and that while Student may present behavioral difficulties in the community, he is not a behavior problem at school.

The second issue before the Hearing Officer is whether Taunton was required to implement Student’s accepted, 1997-98 IEP during the 1998-99 academic year, pursuant to the “stay put” principle (20 USC 1415(j); 34 CFR 300.514; 603 CMR 28.327); and, if so, whether Taunton’s failure to do so gives rise to a claim for compensatory education services. In this regard Parent contends that Student’s last accepted IEP was the 1997-98 plan, and that Taunton was therefore obligated to provide Student the special education services embodied in that IEP during the course of the 1998-99 academic year, as all subsequent plans (i.e., all plans proposed for academic 1998-99) had been rejected. Taunton acknowledges that during 1998-99, it did not provide Student the special education services embodied in his 1997-98 IEP, but argues that is was not required to do so as there was an intervening IEP (to wit: the May 1998 plan, Exh. S-16, providing for monitoring), which was partially accepted by Parent and in fact implemented.

It is my determination, based upon a preponderance of the evidence presented and consideration of applicable federal and state statutes, regulations and case law, that the March 1999 IEP proposed by TPS does not comport with federal and state mandates governing the provision of special education and related services to students with disabilities. In order to comply with these mandates, TPS must provide Student with a placement in a comprehensive, structured, language based day program, which will address his linguistic difficulties and reinforce remedial goals in an integrated manner throughout the academic curriculum. Such day program must offer small classes populated by similarly situated peers, and, ideally, on-site counseling services, to address the emotional and behavioral needs which are secondary to Student’s learning difficulties. I make the attendant finding that Student does not require a residential placement in order to meet his educational needs.

I further find that Student’s last accepted IEP was the October 1997-June 1998 plan (Exh. S-5), that there was no intervening accepted plan which relieved Taunton of its obligation to provide Student special education services pursuant to that IEP during 1998-99, that Taunton did not provide Student said special education services during 1998-99, and that Student is entitled to an award of compensatory education services as a result of Taunton’s failure. See Pihl v. Massachusetts Department of Education , 9 F.3d 184 (1st Cir. 1993).

My reasoning follows.

It is undisputed that Student presents with a moderate to severe language/learning disability, attentional deficits, and attendant, significant grade level deficits in basic academic skills. The record reveals that these grade level deficits have persisted despite the interventions furnished by TPS over the course of Student’s academic career. (See, e.g., scores obtained on Ms. Mason’s testing in 1994, revealing that Student was then 2-3 years below grade level in basic skills; scores obtained in 1997 by TPS, revealing reading skills to be almost 4 years below grade level, spelling skills 4-5 years below grade level and math skills 2-3 years below grade level; testing done by Dr. Goodell in the late fall of 1998, which led her to conclude that Student was 3-5 years below grade level in reading, writing, math and factual knowledge; and scores obtained at the DAC in 1998, evidencing similar deficits.) The record is further persuasive that while Student may not present with a primary behavior disorder, he does experience emotional and behavioral issues which are secondary to his learning difficulties, and which impact upon his academic performance. In making this determination I have not failed to consider the contrary testimony offered by Mr. Murray and Mr. Jackman. However, such evidence from administrators who have neither evaluated Student nor provided him direct service, is simply outweighed by the extensive countervailing expert evidence on point. Consider the following.

Experts, including Taunton’s own evaluators and service providers, have historically noted a relationship between Student’s learning difficulties and his behaviors, and have prophesied the escalation of emotional and behavioral difficulties in the absence of appropriate educational intervention. In an October 1997 educational status assessment, TPS counselor Frank Carbone indicated that Student had made slow progress, that the special services he was then receiving did not forestall his negative behavior, and that he appeared to have other things on his mind which often detracted from academics. (Exh P-9) An October 1997 TPS specialist assessment noted that Student needed to understand the consequences for negative behavior. (Exh. P-11) School psychologist Broderick’s 1997 evaluation opined that although school behavior was then currently acceptable, Student continued to exhibit difficulty in accepting limits (particularly in the community), that he was at risk for behaviors which could escalate into more serious issues, that he needed to understand the consequences for negative behaviors and that a period of therapy was indicated. (Exh. P-9) Finally, Student’s ninth grade English teacher, in responding to a questionnaire proffered by Dr. Goodell, placed Student in the clinically significant range for conduct problems, and noted that he was at risk for social skills. (Exh. S-10) The corroborating evidence from evaluators outside of the Taunton system must also be considered. In the 1998 DAC Evaluation, it was reported that Student had low self-esteem, felt inferior to his peers academically, could not comprehend what was taking place in his ninth grade classes, was therefore frustrated and acted out as a result (Exhs. S-11, P-6). Dr. Goodell’s fall 1998 report noted a nexus between Student’s behaviors and the appropriateness of educational intervention furnished, and found that his psychosocial functioning was both directly and indirectly affected by his academic and behavioral difficulties. (Exh. P-4) Finally, Student’s own testimony on this issue must be afforded significant weight. He stated that he does not understand what is transpiring in his classes, feels inadequate and therefore engages in acting out behaviors as an escape mechanism, since he knows such behaviors will result in his removal from the educational environment in which he feels so uncomfortable.

The record thus amply demonstrates the existence of Student’s behavioral and emotional needs, the nexus between these needs and Student’s learning disability, the impact of one upon the other, and of each upon his academic performance. Appropriate special education intervention is thus critical both to address Student’s language/learning disability, and to ameliorate his emotional and behavioral issues which in turn affect academic performance and progress.

In reviewing the record in order to determine whether Student’s needs are appropriately addressed through the current IEP, it is clear that the plan does not comport with the vast weight of expert opinion as to requisite educational programming and services. Experts have consistently recommended that he be provided counseling (Ms. Broderick, Dr. Goodell, Mr. Hurd, Arbour Hospital Discharge Summary, e.g., Exhs. P-9, S-10,P-6, PR-2), as well as integrated language based programming, with content material delivered at a level commensurate with his skills and abilities. Consider that as early as 1994, when Student was in fifth grade, the CCSN educational evaluation noted that he had evidenced only limited progress during his past academic year, that he did not have the basic skills needed to process and absorb the higher level content being taught in mainstream setting, (i.e., he was being required to do fifth grade level work with second to third grade level basic skills), and that his needs would rather be met in a small, structured language based class with similarly situated peers, where remedial goals could be reinforced throughout the curriculum. (Exh. P-10) Four years later, Dr. Goodell’s psychoeducational evaluation (while recommending that a speech/language and reading evaluation be performed in order to obtain a complete picture of Student’s needs), predicted that depending on the outcome of such evaluation, Student would most likely benefit from a multimodal classroom teaching approach geared to students with linguistic difficulties . (Exh. S-10) Then, in January 1999, upon completion of the speech and language evaluation at MGH, the examiner, echoing the recommendation made more than four years earlier in the 1994 CCSN educational evaluation, noted that Student would benefit from learning classroom materials in a small language based classroom at his level, as information presented in verbal and written format above his level would be highly frustrating, while information presented below his level would be under-stimulating. (Exh. P-16)

Such programming has never been provided Student by TPS, nor does the current IEP reflect such a model. While incorporating some of the recommendations of the MGH speech and language evaluation, the program embodied in Taunton’s plan is simply too little too late. It is fragmented and again does not offer him the integrated language based intervention for a full complement of content courses that was clearly contemplated by the recommendations of the experts cited supra , nor does it entail a counseling component. It is difficult to understand the educational basis for Taunton’s decision not to implement such a program for Student in the face of corroborating recommendations from credible experts, particularly in light of the evidence from Taunton’s own evaluators, service providers and records regarding Student’s slow progress, persistent grade level deficits, emerging interfering behaviors, and poor academic performance (see, e.g., transcript, Exh. P-12, S-12, S-15). The evidence offered by Taunton in support of the appropriateness of its IEP simply was not persuasive and clearly did not outweigh the countervailing evidence on point. I note in this regard that other than the testimony of school psychologist Broderick (whose direct contact with Student was limited to her 1997 assessment), the only witnesses attesting to the appropriateness of Taunton’s IEP were Mr. Murray and Mr. Jackman, both administrators, neither of whom has evaluated Student or provided him direct educational service. It is noteworthy that not a single TPS teacher (either regular or special educator) nor a learning disability specialist was called as a witness on behalf of the school system.

While Parent’s challenge to the IEP proffered by Taunton is meritorious, her request for a residential placement for Student is not supported by the record. There is in fact not a scintilla of expert evidence endorsing a residential program for Student in order to address his educational needs. I therefore find that a residential placement is not required in order to maximize Student’s educational development.

The remaining issue in this case is whether Student is entitled to compensatory special education services owing to Taunton’s failure to provide him the special education services embodied in his 1997-98 IEP, during the course of his 1998-99 academic year. In asserting this claim, Parent invokes the “stay put” rule (20 USC 1415(j); 34 CFR 300.514; 603 CMR 28.327). Her argument is convincing.

It is clear from the record that the last IEP which was accepted by Parent was the 502.2 prototype plan, covering the period October1997-June 1998 (Exh. S-5), and calling for learning center reading and support services. Moreover, it is undisputed that the services called for by said IEP were not implemented during academic 1998-99, despite the fact that all subsequent IEPs were rejected. Taunton’s attempt to characterize Parent’s rejection of the May 1998 IEP as an intervening accepted plan4, and thereby mitigate its obligation to provide Student special services pursuant to “stay put”, is not persuasive. Certainly, to adopt such an argument would be to elevate form over substance. Given that Student was deprived of special education services to which he was entitled for an entire academic year, I find that an award of compensatory services is justified. The details of the compensatory plan shall be determined by Student’s TEAM.

ORDER

Taunton shall forthwith secure Student’s placement in a comprehensive, structured language based day program5, which will address his linguistic difficulties in an integrated manner throughout the academic curriculum. Such day program must offer small classes populated by similarly situated peers and, ideally, on-site counseling services to address Student’s emotional and behavioral needs which are secondary to his learning difficulties. In the event on-site counseling is not available at the language based program, Taunton shall secure counseling services for Student through another provider.

The TEAM shall re-convene prior to the close of the 1999-2000 academic year in order to devise a plan for the delivery of compensatory education services to Student.

By the Hearing Officer,

____________________

Reece Erlichman

Dated: October 7, 1999


1

On May 20, 1999 Parent filed a Motion to Reopen the Hearing. Said motion was allowed on June 14, 1999, pursuant to 603 CMR 28.404.1(k), and the June 29, 1999 date was set for hearing.


2

The IEP referenced is the March 1999 IEP. (Exh. S-13)


3

Mother checked the box on the IEP which reads as follows: “I reject the following portions of the IEP with the understanding that any portions(s) that I do not reject will be considered accepted and implemented immediately. Rejected portions are as follows:” Mother thereafter wrote on the IEP: “I request more intensive services.”


4

In this regard, TPS relies on the fact that monitoring, as called for by that plan, was implemented.


5

The placement secured may be in a public (inclusive of collaborative and prototype 502.4 (i) programs) or private school setting, as long as it is consistent in all respects with the terms of this Order .

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