Student v. Wachusett Regional School District – BSEA #01-2301



<br /> Student v. Wachusett Regional School District – BSEA #01-2301<br />

COMMONWEALTH OF MASSACHUSETTS

SPECIAL EDUCATION APPEALS

Student v. Wachusett Regional School District

BSEA #01-2301

DECISION

This decision is issued pursuant to M.G.L. c. 71B and 30A, 20 U.S.C. § 1401 et seq ., 29 U.S.C. § 794, and the regulations promulgated under said statutes.

A hearing was held on May 30, May 31, June 21, June 26, July 9, 20011 , Catuogno Court Reporting in Worcester, Massachusetts, before Catherine M. Putney-Yaceshyn, Hearing Officer.

PROCEDURAL HISTORY

The Parents requested a hearing on February 21, 2001. An automatic hearing date was scheduled for March 13, 2001. On February 26, 2001, the School District requested a postponement which the BSEA granted and the matter was scheduled for a Pre-Hearing Conference on April 3, 2001. There was a Pre-Hearing Conference on April 3, 2001 at Catuogno Court Reporting in Worcester, Massachusetts during which a Hearing was scheduled for May 30, May 31, and June 19, 2001. The Parents filed a Motion to Join the Department of Education on April 25, 2001 and the Department of Education filed an opposition to said Motion on April 27, 2001. The Parties and the Department of Education argued the Motion during a conference call on May 24, 2001. The Parents’ Motion to Join was Denied on May 25, 2001. On June 4, the BSEA issued an Order scheduling additional hearing dates of July 9 and July 12. The Parties submitted written closing arguments on August 13, 2001 and the record closed. On August 16, 2001, the Parents filed a Request for an Expedited Hearing regarding placement for 2001-2002. On August 17, the School filed its Opposition to the Parents Request for an Expedited Hearing. The Director of the BSEA sent a letter to the parties on August 20, 2001, indicating that the request for an expedited hearing would be handled as a reopening of the existing case number, rather than as a new case. The BSEA issued an order on August 24, 2001, scheduling the matter for a Hearing on September 11, 2001.

Those present for the hearing were:

Student’s Mother

Student’s Father

Gayle R. Greene Parents’ Advocate

Dr. Marilyn F. Engelman Psychologist

Ann Scannell Attorney for the Parents

Philip Campbell Director of Student/Information Services/Interim Administrator of Special Education, W.R.S.D.

Dr. Glen Williams Supervisor of Special Education, W.R.S.D.

William Martin School Psychologist, W.R.S.D.

Lincoln S. Waterhouse Special Education Teacher, Central Tree Middle School

Judith K. Evans Principal, Central Tree Middle School

Kimberly Mucha Law Clerk, Wachusett Regional School District

Regina Williams Tate Attorney for Wachusett Regional School District

Peter J. McDonald Headmaster, Eagle Hill School

Shannon K. Farley Academic Advisor/Teacher, Eagle Hill School

Ann Silver2 Department of Education, Office for Special Services

Catherine M. Putney-Yaceshyn Hearing Officer

The official record of this hearing consists of documents submitted by the Parents, marked 1 through 13 and individually numbered pages 1 through 773, documents submitted by the School, marked 1-94 and approximately hours of recorded oral testimony. The School District made an oral closing argument and the Parent submitted a written closing argument on June 1, 2001 at which time the record closed.

ISSUES

1. Whether the educational program proposed by the Wachusett Regional School District for the 1999-2000 school year was appropriate to maximize the Student’s educational development in the least restrictive environment.

2. If not, did the Parents’ placement of the Student at the Eagle Hill School provide the Student with an appropriate education?

3. Whether the educational program proposed by the Wachusett Regional School District for the 2000-2001school year was appropriate to maximize the Student’s educational development in the least restrictive environment.

4. If not, did the Parents’ placement of the Student at the Eagle Hill School provide the Student with an appropriate educational program?

PARENTS’ POSITION

The IEP offered/services provided to the Student during the 1999-2000 school year were not appropriate to meet the Student’s needs. The Eagle Hill School was an appropriate placement for the Student during the 1999-2000 school year. The IEP proposed by the Wachusett Regional School District was not appropriate to meet the Student’s needs. The Eagle Hill School was an appropriate placement for the Student for the 2000-2001 school year. The Parents are entitled to reimbursement for the cost of Student’s attendance at the Eagle Hill School from November 1999-June 2001.

SCHOOL’S POSITION

The BSEA does not have jurisdiction over the question of whether the parents are entitled to retroactive reimbursement for the period from November 1999-June 2000 because the Parents never rejected the IEP for the 1999-2000 school year. The Parents rejected an IEP which was drafted pursuant to a September 2000 meeting of the Team. Therefore, the Parents can not make a claim for retroactive reimbursement for the time period during which the IEP had not been rejected.

Wachusett’s proposed IEP for the 2000-2001 school year was appropriate to address the Student’s needs in the least restrictive environment. It was only after Wachusett had received the Children’s Hospital evaluations that they developed a far more restrictive IEP than prior IEPs. Even if the 2000-2001 IEP was not appropriate, the Parents cannot be reimbursed for their unilateral placement of the Student at Eagle Hill because it was not an appropriate placement for the Student.

SUMMARY OF THE EVIDENCE

1. The Student (“Student”) is a fourteen-year-old student residing in Rutland, Massachusetts, within the Wachusett Regional School District (“Wachusett”). (Mother, Father) He was a student in the Wachusett Regional School District until November 1999 at which time his Parents placed him in the Eagle Hill School. He was a student at the Eagle Hill School until June 2001. (Mother, Father)

2. The Student is of average intelligence according to WISC-III and Woodcock-Johnson scores of 1999, and has been diagnosed with ADHD and bipolar disorder. At the time of the hearing he was taking Lithium, Welbutrin, Zoloft and Depakote. (P-2, pgs. 150-151)

3. The Student was found eligible to receive special education services in May 1995, and Wachusett forwarded an IEP offering the Student services under a 502.1 prototype program IEP in an integrated classroom for the Student’s third grade. This plan, forwarded to the Parents on June 7, 1995, covered the period from June 1995-1996. (P-1, pg. 147)

4. Student remained on an IEP during each successive year. His June 1996-June 1997 IEP called for thirty minutes of consultation services per week and was accepted by the Parents. (P-143) On September 17, 1998 Dr. Steven Auster, M.D. (psychiatrist) wrote a letter to the Student’s to inform school personnel that Student had been diagnosed with a generalized anxiety disorder and obsessive-compulsive disorder and that Student was being treated for these. (P-7, pg. 688)

5. Student’s June 1998-June 1999 IEP called for consultation services in the form of monitoring twice per week for fifteen minutes each time. The Parents accepted the IEP in full. (S-69)

6. Student’s Mother testified that the Student’s workload became more difficult and he had no peers or connections with friends his own age in sixth grade. Homework was becoming increasingly difficult for the Student to complete. (Mother, Father) The Student had particular difficulty completing writing assignments and became more combative about doing homework and increasingly overwhelmed throughout the sixth grade. Writing a paragraph took the Student well over an hour while his Parents prompted and encouraged him. (Father)

7. Lincoln Waterhouse became a special education teacher at Central Tree Middle School in March 1999 and sent all parents of special education students an introductory letter. In his letter he encouraged communication from parents and suggested that parents call him with any questions. (P-10, pg. 683) Student’s Parents contacted Mr. Waterhouse to schedule a meeting to describe their son’s difficulties and begin preparing for his seventh grade. (Mother, Father) The Parents met with Mr. Waterhouse and discussed Student’s special needs which included ADHD, OCD, and generalized anxiety which caused him to touch himself in the groin area3 . The Parents also described the Student as being a loner and being harassed by his peers. Mr. Waterhouse told the Parents that he would take the matters they discussed into consideration when the Team met to draft Student’s seventh grade IEP in June. (Mother, Father)

8. Lincoln Waterhouse testified that the Parents have always been very committed to the Student. He stated that after meeting with them he did not make any recommendations regarding the Student’s emotional needs because he “wanted to get to know student a bit himself and see that himself in order to make some good recommendations.” He testified that he believed that most of the Student’s teachers were aware of Student’s emotional problems, but he did not testify to discussing his emotional needs with any of the teachers. He did not personally share any of the information he received regarding the Student with any of his teachers because he “wanted to have the opportunity to know the student before he presented what was happening.” (Waterhouse)

9. Mr. Waterhouse drafted and mailed Parents a proposed seventh grade IEP without convening a Team meeting. (Father, Mother, Waterhouse) The IEP ran from June 9, 1999 through June 8, 2000 and provided for consultation by the special education teacher to monitor the home and classroom work. (P-1, pg. 117) The Student Performance Profile of that IEP described the Student as very disorganized and indicated that motivation and interest are two major factors that seriously affect his learning and ability to perform. (P-1, pgs. 113-120) Mr. Waterhouse testified that he recalled meeting with the Parents about rewriting the IEP, but he did not have any documentation of said meeting. He further testified that he met with Student’s teachers prior to drafting the IEP, but had no documentation of that meeting either. (Waterhouse) Father testified that the IEP sent to the Parents did not contain any significant changes as a result of their meeting with Mr. Waterhouse. The Parents accepted the IEP as written. (P-1, pgs. 113-120)

10. During the summer between Student’s sixth and seventh grades the Parents enrolled the Student at the Sylvan Learning Center in a program to assist him in learning to write. After the Student had completed half of the program, the Sylvan Director, Karen Price, met with the Parents to discuss his progress. She told them that she was not sure that Sylvan could help him. She explained that although the Student was showing effort, he could not seem to get his ideas on paper. She believed his issues were more significant than simply learning to write and she refunded the Parents’ tuition for the second part of the program. (P-2, pgs. 245-252; S-64; Mother, Father) The Parents asked the director to put her thoughts regarding the Student in writing, and she wrote a letter stating that “immediate attention and remediation with specialists appear to be the Student’s only hope. Please help him to achieve the success that he needs.” She noted that his greatest difficulties were seen in formulation of expressed ideas and with the physical act of writing. (P-2, pg. 244) The Parents provided the letter to Lincoln Waterhouse on or about September 27 1999. (S-59; Father)

11. The Parents testified that the Student’s behavior changed distinctly shortly before the commencement of the 1999-2000 (seventh grade) school year. The Student became increasingly anxious. On the fourth day of school he came home and “collapsed into a puddle” in his Mother’s arms. He said he hated school and asked his Parents, “How come life is so hard?” His Parents were concerned. Although they were aware that he had some emotional issues such as bed wetting during the sixth grade, they had never seen him so upset before. Student’s Mother called Mr. Waterhouse and told him about the incident and explained the Student’s mental state and requested interventions to help him at school. (Mother, Father) Mr. Waterhouse told her that he would look into it and get back to her. (Mother, Father, Waterhouse)

12. 9/14/99: On September 14, 1999, the Parents sent a letter to the Dean of Admissions at the Eagle Hill school asking him to place Student on Eagle Hill School’s Waiting List as a day student. (S-67)

13. On September 17, 1999, the Parents requested a re-evaluation of the Student due to their concerns about Student’s academic, social, and emotional issues. (P-2, pg. 229) The Parents provided consent for the evaluation on September 24, 1999. (P-2, pg. 227; S-60)

14. The Father testified that he and his wife met with Lincoln Waterhouse within the first two weeks of school regarding their concerns that homework was overwhelming the Student. Even during the first week of school the Student was spending three to four hours completing his homework and seemed to be under a great deal of stress. The Father asked that modifications be made to the homework. (Father) Mr. Waterhouse thought that was a good idea, but wanted to get a better idea of how the Student was handling his homework and asked to see the Student after school. (Father, Waterhouse)

15. The Parents sent Mr. Waterhouse a letter, dated September 20, 1999, indicating they would like to meet with the Student’s teachers to discuss the Student’s progress and make sure the teachers were aware of his disabilities. (P-10, pg. 673; S-65) The Father testified that he and his wife were concerned because the Student was having social problems in school and on the bus and they were having difficulty getting him to school in the morning. The Student had recently “broken down” on a number of occasions and recently told the Parents, “I never really realized life could be so hard.” He told his mother that he hated his life.4 (Father, Mother)

16. The Student’s Mother received a telephone call from Ms. Fernands on September 21, 1999. Ms. Fernands told her that she was concerned that the Student had missed some homework over the past few days. The Father later spoke to Ms. Fernands regarding the homework and also informed her that the Parents were extremely concerned about the Student’s high anxiety and depression related to school. Ms. Fernands told him she thought Mr. Waterhouse was working on the homework issue. The Father told her he believed the Student needed more assistance and that if he did not get some help he could be reaching a “crisis situation.” Ms. Fernands told the Father that if the Student worked harder he could “get the job done.” The Father was concerned that Ms. Fernands “was not hearing what he was telling her.” (Father)

17. The Father testified that at approximately 2:00 p.m. on September 21, 1999, he received a phone call from Mr. McCall, the assistant principal, indicating that there was a “big problem” with the Student and he was being restrained by two teachers. He went to the school and found the Student waiting for him by the door with the nurse. The Student wanted to leave right away, but the principal wanted to meet with the Father. The principal told the Father the Student had had an incident with another Student during class and the classroom teacher said they would be required to go to peer mediation. The Student did not want to go to peer mediation because he felt he was unpopular and would lose. He got upset and told the teacher he needed to go to the office where he spoke to Ms. Fernands, the principal, and got upset and left her office. (Father; S-63) Lincoln Waterhouse testified that Mr. McCall called him and asked him to assist. He went downstairs and saw the Student running down the hall and Mr. McCall told him the Student was very upset. Mr. Waterhouse caught up with the Student and tried to get him to stop. The Student was very frustrated and upset and was breathing heavily and had a red face. He told Mr. Waterhouse that “everybody was out to get him” and he was going to “get out of there.” The Student tried to push past Mr. Waterhouse and get to the front door and Mr. Waterhouse held the Student in a “one-person standing body control” and tried to stop him. The Student swung his arms and kicked his legs and Mr. Waterhouse dropped to the ground with him and used a “sitting restraint.” (Waterhouse, S-63)

18. After the incident, the Father brought the Student to see Dr. Auster, his psychiatrist. The Student had calmed down, but became agitated when asked about the incident and yelled at the doctor. He escalated to the point that Dr. Auster told him he would need to be transported to the hospital if he did not calm down. He then collapsed into a chair and was quiet. Dr. Auster assured the Father that the Student’s medication levels remained appropriate. At the time the student was taking Welbutrin, Zoloft, Lithium, and Tenex to control his anxiety and mood. (Father)

19. The Father spoke to Ms. Fernands the following day and she wanted Dr. Auster to provide the school with instructions for dealing with the Student’s episodes and deescalating him. She wanted to meet with the Student, the Father, and Lincoln Waterhouse because she believed the Student had “broken trust” with Mr. Waterhouse by running away from him after agreeing not to run. That meeting occurred the following day. There was no Team meeting called to address the situation. (Father)

20. The meeting the Parents had previously requested that Mr. Waterhouse schedule took place on September 23, 1999. (P-10, pg. 672; S-61)) Although the meeting was not a Team meeting, Student’s major academic teachers were present. The Parents had asked to review the journal the Student kept in Ms. Tallardy’s language art class and some entries were reviewed during the meeting. The Parents were concerned by the Student’s handwriting and by the content of some of the entries. They were disappointed that Ms. Tallardy had not notified them of the content and that she had written comments directing the Student to use more effort. (Father, Mother) The school agreed to implement the following “action steps.” They would “Enter [Student] into Mentoring Program by next Friday; Introduce Matt to Angela5 and Arrange for introductory meetings by next week; Identify the period of the day where [Student] could receive tutorial; Arrange future meeting with Ellie; Complete 3-year evaluation including O.T. piece by 10/23; and check with speech and language teacher about evaluation.”(P-7, pg. 672; S-61)

21. The Parents wanted the tutorial to begin immediately after their meeting. There was some discussion about whether the Student should be removed from his German class for the purpose of receiving the tutorial session. School staff did not suggest that the Student be provided with emotional supports while they were determining how to implement the services discussed at the meeting. During this time the Student was very sad and anxious and called home from school frequently. School personnel, including the principal and vice-principal called Student’s Mother on more than one occasion and asked that she pick him up because he “seemed very agitated.” The Parents wanted the Student to meet with Angela Blais on a regular basis, but the school did not implement such a service. (Mother)

22. Mr. Waterhouse testified that he developed a “Work Mentoring Program” during the 1999-2000 school year. (P-10, pg. 676) The program was to assist students with organizational difficulties to organize their work to bring home each day. Students were required to leave their last period class a few minutes early, go to their locker and obtain all of the materials they would need to complete that night’s homework’s and report to Mr. Waterhouse to have their agenda books checked. (P-10, pg. 676, Father) Mr. Waterhouse testified that the program was not “up and running” until November. (Waterhouse) The Father testified that the program did not help the Student, but created additional anxiety for him. He was often late reporting to Mr. Waterhouse and once missed the bus home by the time he finished checking in with him. (Father)

23. On September 30, the Parents and their advocate met with Ms. Fernands to discuss the implementation of Student’s tutorial. They agreed the best solution would be to remove the Student from German class and replace it with the tutorial. Ms. Fernands did not know who would provide the tutorial at that time. (Father)

24. On October 5, 1999 Father sent a letter to Mr. Waterhouse informing him that the Student continued to have the same difficulties the Parents had been reporting in completing homework. The Father reported Student requires assistance in getting his assignments in his book each day and getting together the materials which he requires to complete his assignments each day. (P-7, pg. 665; S-58; Father) The Parents testified that no modifications were made to the Student’s homework and no further discussions took place regarding ways to assist the Student until the November 1, 1999 Team meeting. (Mother, Father)

25. Lincoln Waterhouse testified that when he received the letter from Karen Price of the Sylvan Learning Center it was a “significant direction pointer to the problems the Student was having in writing.” He believed it was “a piece of information the Team would use in the future when they start making decisions.” He testified that he did not recall ever making recommendations for modifications to the Student’s academics. He communicated regularly with the Parents regarding the Student’s homework issues and progress. He testified to meeting with the Student after school on two occasions to give himself a chance to observe the Student working in a quiet atmosphere and to observe the difficulties the Parents reported he had with written work6 . (Waterhouse) The Parents testified that the Student attended the sessions 5-6 times until late in October. (Mother, Father) Mr. Waterhouse testified that during their first meeting he spent most of the time organizing the Student’s notebooks. He never “got to observing the Student doing his homework.” During their second meeting he attempted to work with the Student on a writing assignment. He noted that even working with the Student one-to-one in a quiet setting the Student was distractible and had difficulty focusing. The Student was not able to complete the assignment in the hour they spent together. He spoke to the Student’s Mother after their session and told her that the Student was definitely struggling and “something had to change and they needed to implement more services for him at school.” (Waterhouse) Student’s Father testified that the Parents decided to stop the after school sessions after 5-6 sessions because Parents did not believe the sessions were helping the Student and no other modifications had been made to his IEP despite the concerns raised by the Parents and confirmed by Mr. Waterhouse. (Father)

26. On October 20, 1999, Mr. McCall called the Student’s Mother and reported that the Student seemed “out of sorts” and was very anxious. He told the Mother she should go and get him. There was not a Team meeting or any suggestion for services after this incident. (Father)

27. The Parents received a Student Discipline Report dated October 21, 2001 which indicated that the Student received one day of after-school detention after he took markers from the art room without permission and gave them to other children who proceeded to tell the art teacher. (P-7, pg. 653; S-55) Mother testified that during this time the Student was trying desperately to fit in with other children and was doing some strange things to get attention. He lacked social skills and was becoming increasingly distressed by his social isolation. In addition to the above incident, he was taking candy from his home and passing it out to students at school. Mother testified that the vice-principal was aware of what was happening. (Mother)

28. On October 26, 1999 Wachusett sent the Parents an invitation to participate in a Team meeting to be held on November 1 at which time, the Student’s Team met to reevaluate the Student’s program for the 1999-2000 school year. (P- 1, pgs. 91-101; P-2, pg.221; S-50) The Father testified that the Student’s homework had still not been modified and there had been little progress made regarding the “action plan” agreed upon in September. The Student had not had any pre-arranged meeting with Angela Blais, although he had independently sought her out on a day when he became upset in German class.7 (Father) There still had not been a time designated for the Student to receive his tutorial. The Team discussed the tutorial session. The Parents asked who would conduct the tutorial and were informed that they would find out after they signed the IEP, but that it would likely be Lincoln Waterhouse or an aide. (Father) There was discussion about addressing the Student’s social skills, language pragmatics, and organizational and study skills during the 45-minute tutorial. The Parents voiced concern about trying to address so many areas in a 45-minute block. (Father) The Parents also expressed concern that the tutorial had not begun even though it had first been discussed in September. One of the Wachusett staff told the Parents the tutorial had not happened and could not happen until the IEP was revised. (Father)

29. The Team reviewed and discussed the recent evaluations conducted by school psychologist, William J. Martin, NCSP, and summarized in his Educational Evaluation and Psychological Report, dated October 25, 1999 and October 18, 1999, respectively. (P-2, pg. 230-234; S-52, S-54) Mr. Martin’s Psychological Report acknowledged the Student’s known history of generalized anxiety disorder, obsessive-compulsive disorder and ADHD. He reported that Student “was more cooperative on those tasks that he felt were interesting, or when he ‘felt like’ putting forth effort.” He further surmised Student was “less willing to ‘try to do well’, actually ignoring comments to take his time, check his work and/or write or print legibly.” He further reported that “[Student]’s performance on visual motor tasks which did not require writing or printing, were apparently more interesting, and as a result were done to a much higher standard.” His report characterized the Student’s behavior during the evaluation as “controlling…in that he was ‘controlling’ what was happening to him while still complying generally.” He reported that during the Dictation sub-test he “insisted on rushing ahead and answering questions, in spite of cautions and warnings to the contrary. During the Coding sub-test he needed several reminders to copy the designs sequentially…. At various times he read aloud instead of silently, refused to check his math problems, and insisted on putting question marks on those math problems which he could not complete.” Mr. Williams classified Student’s behaviors as “provocative” and seemingly “passive aggressive.” He further commented that when he asked Student why he was having difficulties with school work Student refused to answer. (S-53)

30. Mr. Martin reported Student’s scores on the Wechsler Intelligence Scale for Children-III (WISC-III) which included a verbal IQ score of 122, a performance IQ score of 103 and a full-scale IQ score of 113. He noted the nineteen-point spread between the Student’s verbal and performance IQ and noted that Student’s written language skills are poorly developed compared to his ability. He concluded that Student had a high average ability level and noted the significance of the nineteen-point spread between his performance and achievement levels. Her also noted the significant scatter with the WISC-III scores which suggested “stronger development of his auditory/vocal modality than his visual/perceptual and motor.” He concluded that the Student did not show evidence of any specific learning disability but thought some supports were necessary to deal with his “non-reflective approach to written tasks.” He opined that Student’s “lower achievement results directly from his attitude towards the given task.” (Martin)

31. He reported the Student’s Woodcock Johnson results as follows:

Grade Equivalent | Scaled Score | Percentile

Letter-Word Identification 6.7 99 47

Passage Comprehension 8.3 106 65

Broad Reading 7.5 101 54

Math Calculation 5.2 85 16

Dictation 5.2 91 27

Writing Samples 4.4 89 24

Broad Written Language 4.8 90 24

32. Mr. Martin reported there were no significant weaknesses noted and that Student was able to perform academically at the high seventh grade level consistent with or above the level of other peers his age. He concluded that the Student’s “lower achievement results were directly related to his attitude towards a given task.” (P-2, pg. 234) Mr. Martin recommended ongoing communication between counselors and school personnel as well as between home and school. He also recommended academic supports within the regular classroom, instruction in the use of a computer, word processing and touch typing, and development of an appropriate structure within which the Student knows what is expected of him. He noted that Student may have a difficult time completing age-level tasks involving Broad Written Language. (S-51)

33. Nancy Walton administered the speech and language evaluation. She administered the Clinical Evaluation of Language Fundamentals, Third Edition (CELF-3), the Peabody Picture Vocabulary Test, Third Edition Form IIIA (PPVT-III), the Expressive Vocabulary Test (EVT), the Wepman Auditory Discrimination Test and observed the Student in the classroom. She reported that Student tested in the above average range in all areas with advanced verbal output for his age in both receptive and expressive language skills. She noted that his skills transferred well from a one-to-one situation to the classroom setting. No speech and language services were recommended for Student. (P-2, pg. 225-6; S-52)

34. On September 24, 1999, Jim Rollins, OTR/L performed an occupational therapy screening on behalf of Wachusett. (P-2, pgs.240-242) The Student was 12.3 years old at the time of this assessment which included testing as well as a review of a variety of the Student’s written samples. The Developmental Test of Visual Motor Integration showed his visual skills to be at the 10 years 6 month level while the Motor skills were found to be at 9 years 2 months with a VMI of 11 years 3 months. (P-2, pg. 241) His rate of handwriting in the WOLD Sentence Copying Test was 71.73 letters per minute which is at a 7 th grade level according to the norms developed by Freeman and Ayres. (P-2, pg. 241) When visual structure was provided the Student was found to write legibly with functional pencil control. His visual motor integration skills were age appropriate. The use of lined paper for written work, access to a computer along with development of functional keyboarding skills and establishing clear expectations for written work, were recommended. (P-2, pg. 242)

35. Mr. Waterhouse testified that he proposed the tutorial because there was not enough time during the day to make all of the modifications that the Student required on a consistent basis such as teaching the Student how to use webs and graphic organizers, and providing him with additional time to review assignments and work on them as part of a homework modification. He considered the November 1, 1999 Team meeting an opportunity to “finally implement something” they had been trying “to get going for months, the tutorial program.” He indicated that the Team would use the information from Mr. Martin’s report and the information gleaned in the “past six months of observations of [Student’s] difficulty in homework.” (Waterhouse)

36. The Wachusett IEP’s Student Performance Profile for the period from November 1, 1999 through October 31, 2000 describes the Student as a complex, shy and withdrawn boy who has an involved history of difficulties within the school due to a diagnosis of ADHD, Obsessive Compulsive Disorder and Anxiety. The student was viewed as having strengths in verbal communication and weaknesses in written communication skills. In the classroom the student was described as being highly distractible, having great difficulty with organizational skills and assignments that involve complex multi-step directions, has difficulty interpreting social cues and is very sensitive to adults and peers tone of voice. Motivation was seen as a key factor for successful performance. An increased level of performance was also associated with previously developed positive, nurturing relationships with teachers and classmates. (P-1, pg. 80)

37. The discussion at the Team meeting focussed upon the tutorial. The Parents asked school staff who would provide the tutorial and what curriculum would be used. They were told that they would have to sign the IEP before learning of the details but it would likely be Mr. Waterhouse or an aide providing the tutorial. The Father expressed the Parents’ concern that they had believed the tutorial would have been provided earlier to address the Student’s immediate needs. School staff told them that the tutorial could not be offered until the IEP was re-written. (Father, Mother)

38. There was some discussion of a social skills program which would be included as part of the tutorial. The Parents were concerned that Wachusett was trying to accomplish a great deal during a forty-five minute period. They did not think the tutorial could sufficiently address social skills, language pragmatics, organization, and study skills instruction in just forty-five minutes per day. (Father)

39. After the Team reviewed the school’s evaluations, the Parents requested an independent evaluation. (P-10, pgs. 661; Father) In a November 2, 1999 letter to Mr. Waterhouse the Parents requested the paperwork needed to start the independent evaluation process. They asked that the independent evaluator perform a TOWL because of Student’s difficulty accomplishing written tasks. (P-7, Pg. 661; S-45; Father)

40. Upon learning of Student’s poor grades in Language Arts and Social Studies caused by two unsatisfactory assignments, Father asked Mr. Waterhouse, in a letter dated November 9, 1999, why he and his wife were not made aware of this at an earlier point in the semester. Mr. Waterhouse suggested had to Mother during a telephone conversation earlier that day that Student hand in these assignments on the following Monday. Father rejected this modification and explained that Student would not have time to complete the work. In addition, Father reiterated his concern regarding Student’s difficulty completing homework assignments and asked the school for additional assistance. (P-10, pgs. 657-658; S-42)

41. The IEP was forwarded to the Parents on November 10, 1999. It offered the Student services under a 502.2 prototype program IEP and provided for: consultation with special education teacher 5x5minutes per five day cycle; academic support in the classroom 5×15 minutes per five day cycle (as needed); and tutorial 5×45 minutes per week in the areas of study skills and pragmatic language. On November 19, 1999, the Team met again to review the revised IEP. (P-1, pg. 91) On November 23, 1999, the Parents advised Wachusett that they would postpone their decision until the completion of an independent evaluation. (P-1, pg. 99; S-46; Father)

42. In an undated letter with a handwritten notation reading “sent on 11/9/99” Mr. Waterhouse informed the Parents that it has recently come to the school’s attention that the Student is struggling with motivational issues and he has become increasingly distant and uncooperative with teachers. He stated that instead of relying upon in-school support when he is feeling emotional or academic stress, Student has frequently called home and been dismissed. He stated that the dismissals have had an ill effect on the school’s ability to monitor Student’s agenda book. (S-43)

43. Mr. Waterhouse made a written record of an incident that occurred on or around November 12, 1999. The Student became agitated and defensive when Mr. Waterhouse suggested that he work on an essay. Later in the period and after report cards were handed out, Student asked Mr. Waterhouse what the “I’s” meant on his report card. Mr. Waterhouse explained that they indicated incomplete assignments and that student was “failing.” Student became upset. A few minutes later, Student asked Mr. Waterhouse if he could drop something off at his locker and Mr. Waterhouse agreed. He reminded Student to return prior to going to lunch. Student did not return and was later found in the cafeteria. He and Mr. Waterhouse discussed his behavior. Mr. Waterhouse told Student that he knew Student’s parents were considering a different school. Student, who had been told by his parents not to discuss this, was confused and uncomfortable. He abruptly ended the conversation. Student showed up at mentoring program and acted as if nothing had happened. (P-7, pg. 651; S-41)

44. Mr. Waterhouse testified that he had suspected that the Parents were considering sending the Student to a private school for some time. He and Student’s Mother discussed the possibility on the phone in late October or early November. He also testified that at some point he had spoken to the Parents about the possibility of the Student attending the Thomas Prince School in Princeton, which was part of the Wachusett Regional School District. Mr. Waterhouse thought that the Student might benefit from making a “fresh start” at the school because he felt that his past history of touching himself made it difficult for the Student to form attachments with his peers. He had seen the Student during Advisory period making “good attempts” to socialize with peers and they were not interested. (Waterhouse) Ms. Fernands also discussed sending the Student to a regular education class in Princeton to try to relieve some of his social stress. The Parents did not think making the Student take a bus out of town to a new school with new children would solve the Student’s problems. Mr. Waterhouse agreed with the Mother that moving to a new school that did not provide a special program probably would not help8 . (Mother)

45. The Team met again on 11/19/99. The Parents were presented with a revised IEP. They decided to postpone their decision regarding the IEP pending receipt of the results of the independent evaluation because they felt that they required additional input. During the meeting, the Parents stated there was option for an alternative school being explored but that this was not the goal.” (S-37)

46. The Parents wrote a letter, dated November 21, 1999, addressed to Ms. Fernands, and hand-delivered to the school on November 22, 1999, stating that they were removing the Student from school and explaining the reasons behind their decision. (P-7, pgs. 647-650; S-36) The letter indicated that the Student would be attending the Eagle Hill School on 11/29/99. They also expressed some of their recent concerns regarding Student’s difficulties during the seventh grade school year. Their main concerns were as follows. Student continued to spend an inordinate amount of time on homework. Mr. Waterhouse met the Student after school several times to address this difficulty and no IEP modifications were suggested. Even after Parents met with his teachers regarding homework concerns his Language Art teacher failed to inform Parents that Student’s homework was not satisfactory and that he had received an incomplete until after the marking period was completed. Secondly, the tutorial program that was discussed was never implemented. Thirdly, although the parties agreed that the Student required support from the guidance counselor, neither the introductory meeting nor the regular sessions occurred. However, Student sought out Ms. Blais on two separate occasions when he felt that he might reach the ‘breaking point.’ Additionally, despite the parents’ request that Student’s written language skills be assessed as part of the 3-year evaluation, it was not done. Parents were also concerned by Dr. Martin’s assessment that Student’s problems were basically behavioral and failed to acknowledge that Student had learning disabilities. Finally, Parents were concerned that it did not appear that the classroom teachers were attuned to Student’s needs, despite a list of possible modifications from Dr. Auster. They were also concerned that the regular classroom teachers were not providing Mr. Waterhouse with sufficient communication regarding Student’s progress. (P-10, pgs. 647-650; S-36)

47. On November 29, 1999 the Parents enrolled the Student at the Eagle Hill School and he began attending school there. (Father) The Parents decided to enroll the Student even though the independent evaluation had not yet been completed because they felt that the Student was in a “critical position.” He was very depressed about school and was often screaming and crying at home. The Parents were increasingly concerned because the Student was becoming more out of touch with his family and more defiant at home. There was a very significant change in his attitude over the first few months of the seventh grade. The Parents had serious concerns about the Student’s safety. They felt that the school was taking its time about providing assistance to the Student and felt the Student was in a “crisis situation.” (Father)

48. Student received the following grades for the first semester of seventh grade at Central Tree Middle School: Art: A ; German: C – ; Language Arts: Incomplete ; Pre-Algebra: B ; Science: C+ ; Social Studies: Incomplete . (P-9, pg. 583)

49. On November 30, 1999 Ronald J. Pasternak, Wachusett’s Assistant Supervisor of Special Education, wrote a letter to the Parents notifying them that the School District authorized an independent evaluation at the Learning Disabilities Program. Wachusett further agreed to a ‘neurological consult’ as part of the independent evaluation which had not been part of the school’s initial evaluation and had not been agreed to during the Team meeting. (P-7, pgs. 640-641; S-32))

50. On November 30, 1999, Principal Eleanor M. Fernands and Lincoln Waterhouse wrote to the Parents responding to several points raised by the Parents’ November 21 letter. Mr. Waterhouse explained his understanding of what the Team had agreed to do during the early part of the school year and what services he had provided to the Student. He explained that he became that Student was missing assignments in social studies and language arts on the day that grades were turned in and offered the Student additional time to complete the assignments. He clarified that the tutorial had been discussed for some time, but that a specific starting date was not identified. He stated that he never set up a meeting between Student and Angela Blais because the Student indicated that he knew her already. He stated that the Team recognized that the Student needed to have somewhere to go if he became upset, but indicated that regularly scheduled meetings were not agreed upon. (P-7, pg. 644; S-34)

51. On November 24, 1999 Karen P. Higgins, covering for Jason R. Newton, the Interim Assistant Administrator of Special Education, notified the Parents via letter that a copy of the revised IEP had been forwarded from Central Tree Middle School. The letter indicated that the TEAM recommended Student’s continued placed at the Central Tree Middle School, and not placement at Eagle Hill School. According to Wachusett, Student’s enrollment at Eagle Hill School was considered a private placement at the expense of the Parents. (P-7, pg. 646; S-33)

52. Dr. Peter McDonald testified that he has been the Headmaster at the Eagle Hill School for three years and previously was the Director of Admission for five years. He described Eagle Hill as a private boarding school for students diagnosed with learning disabilities and attention deficit disorder. He testified that Eagle Hill is not an approved Massachusetts special education school. For some period of time, Eagle Hill was an approved Massachusetts special education school, but in 1994-1995, its board of trustees determined that some of the requirements for being an approved school were “too restrictive for the program they were trying to provide, specifically, the requirements for the number of school days and the tuition rates that Massachusetts would provide. Although Dr. McDonald testified that Eagle Hill does not accept 766 or sole source funded students, he testified that there have been arrangements made between families and school committees and districts have paid Eagle Hill directly without Eagle Hill applying for sole source of care funding. There have also been parents who paid tuition and were reimbursed by their school districts. (McDonald)

53. Dr. McDonald testified that Student’s math teacher, Ms. Nahorniak is certified to teach grades one through six and is not certified in special education. Ms. Cuddeback, who taught some of Student’s pragmatics courses, is not certified in any area. Shannon Farley, Student’s adviser, is not certified in any area. Ms. Martin, Student’s writing workshop teacher, is certified in psychosocial development of young children grades one through six. Mrs. Nastasi who also taught algebra to Student is certified in nursery school through sixth grade and special education. (McDonald; S-92) Ms. Farley testified that teachers receive in-service training at the beginning of the school year and the summer session. They spend one week engaged in training and professional development which has previously consisted of a 2-day presentation on NVLD and training regarding ADHD. (Farley)

54. Shannon Farley testified that she has been employed by the Eagle Hill School since the fall of 1997 as a full-time substitute teacher (1997-1998), as a full time classroom teacher (1998-1999) and then as an advisor. She testified that the school is very structured both inside and outside the classroom. The students have assigned seats in the cafeteria which ensures that everyone has a peer group and there is staff supervision. All students are on a point card system throughout the day. The purpose of the point card system is to “stay on top of where a student may be having issues during the school day.” They carry an assignment book for recording homework assignments which teachers use to record pints earned throughout the day. Students can earn five points per period. Points are awarded for promptness/preparedness, homework, classwork, peer interaction, and staff interaction. At the end of the tenth period of the day, the points are tallied and the tenth period teacher enters them into a networked computer. Any teacher who awarded a zero in any area or observed an incident with a student such as a missed homework assignment will make an entry in the “log note system.” There are privileges that a student can not enjoy for the rest of the day if he/she has not earned all of his/her points. If the issue involves a missed homework assignment, the student is required to go back to that classroom for a “call back” and make up the assignment or speak to the teacher. When a Student is required to go for a call back he or she receives a yellow piece of paper (as opposed to a green piece of paper which is used for a positive comment) and the colored paper is used for reinforcement of behavior. There is always follow-up when a student does not earn all of his/her points. (Farley)

55. The Student’s call backs dealt with homework issues or time when he had a hard time expressing frustration with a particular situation. On one occasion he had left his sneakers in another part of the building and wanted to go get them and the teacher would not allow him to go so he misbehaved for the rest of the period. He was given a call back and was required to come back and spend time with the teacher processing what happened and what his appropriate response would have been. The log notes are sent home to the Parents every two weeks. (Farley)

56. Ms. Farley testified that she was the Student’s academic adviser when he began school in November 1999 and throughout his time at Eagle Hill. She is responsible for writing and coordinating his IEP and acting as a general liaison between the Parents and the school and the Student and his teachers. She is one of the first people the Student would come to if he had a problem during the day and she could call a meeting with him and his teachers if she noticed that more than one teacher was having a similar issue with the Student. (Farley)

57. Ms. Farley testified that she selected the Student’s classes when he first came to Eagle Hill. She reviewed his file and the classes which were already in place at Eagle Hill and “placed him as best she could” according to what she saw as his needs and what would provide him with an appropriate peer group. The Student was the youngest Student in the school at that time. She saw the Student as a very bright boy who needed help in the areas of writing, pragmatics, organization, and had attentional issues which needed to be addressed. Each student has ten periods a day. She selected a general science class for the Student because he was a “middle schooler.” All students take two English classes, one focussing on reading and one on writing. She looked for classes with students close to Student’s age and with similar issues i.e., bright, but requiring a great deal of attention. She wanted his writing class to be very supportive and placed him in a lower level class taught by a teacher who has worked with students who need “more basic help in writing,” Ms. Kelly. She placed him in what she thought would be an age appropriate math class, Basic Math 2. He did so well that he was placed in an Algebra class for the second half of the year. There was not a social studies class specific to middle school students, so the Student was placed in a current events class Ms. Farley deemed appropriate. (Farley; S-3)

58. All Eagle Hill students are required to take a pragmatics class, and pragmatics skills were a particular need of the Student. Soon after the Student came to Eagle Hill, Ms. Farley met with the Mother and his teachers and obtained information regarding the Student’s “major social issues.” She learned that the Student had not made connections with his peers in the past and had difficulty expressing frustration when he experienced it. The Student also took a woodworking class and handwriting9 and “perhaps physical education.” (Farley)

59. The Student was grouped with mostly ninth graders for major academic classes during his seventh grade. Most of the other students in his classes were fifteen years old. In several of his classes there was another seventh grader who was twelve years old. The skill levels of the students varied a great deal. Many of the other students’ skills were several grades below their expected level. (S-94)

60. The Student’s Instructional Profile of his 1999-2000 IEP called for participation in small classes in the general curriculum and individualized instruction. The profile stated that the Student ‘s “academic experience is enriched by the level of comfort and lessened anxiety that comes from having smaller classes wherein he feels accepted and appreciated. He benefits from the multi-modal teaching strategies utilized by his teachers, the highly structured point/assignment book system, and the opportunity to be a part of a supportive community wherein his social weaknesses are strengthened in pragmatics classes.” (P1, pg. 65) This IEP was issued on February 17, 2000 and was accepted in full by the Parent. (P-1, pg. 40)

61. Ms. Farley testified that she wrote the Student’s IEP. Each teacher proposed three objectives for each class and filled out a skills grid indicating what skills would be reviewed during the semester. She gathered the recommendations and wrote the IEP. She testified that some of the objectives are the same for the entire class because they are grouped according to their needs and therefore have the same objectives. Each teacher makes observations of each student throughout the semester and keeps track of what skills a student has mastered using the grid. The grids are used as IEP progress reports. The progress reports are sent home each quarter. (Farley)

62. Between November 1999 and December 1999, Shannon Farley wrote to the Parents to inform them about the status of the Student at Eagle Hill. She described him as having calmed down considerably and stated that he seemed to finally understand “how much personal responsibility [was] expect[ed] from him.” (P-7, pg. 763)

63. As the year progressed the Student was able to connect more with others and was not afraid of being persecuted. He started working in the school kitchen which gave him an opportunity to interact with the community. He was happier as the year progressed. (Farley)

64. The Parents received Student’s final log notes along with a letter from Shannon Farley dated June 21, 2000. The letter stated that Student had a successful year at Eagle Hill and responded well to the small classes and “multi-modal teaching techniques” used by his teachers. Ms. Farley noted growth in Student’s level of self-esteem and comfort with the staff. Ms. Farley also indicated that Student’s social growth allowed him to further focus his attention on academic development. (P-7, pg. 451) The Student’s 7 th grade Progress Report from Eagle Hill School reported the following final grades for the 1999-2000 school year:

Science: B+,

Reading Comprehension: B,

Basic Math II: C+,

Writing Workshop: B-,

Creative Writing: B,

Current Events: C,

Introduction to Algebra: B,

Establishing Relationships: B. (P-7, pg. 580)

65. On April 5 and 6, 2000, the Student underwent an independent evaluation at Children’s Hospital Neurology Foundation. The evaluation included a neurological evaluation, a speech and language evaluation, a reading and writing evaluation, a neuropsychological evaluation, and a psychological screening interview. (P-2, 191-20; S-29)

66. Kristine E. Strand, Ed.D, CCC-SLP, conducted an oral and written language evaluation and noted that during the one-hour evaluation, “Student moved almost constantly and demonstrated frustration when participating in timed tasks.” She found that, “His rapid and impulsive approach to many tasks appeared to be his learned compensation for his extremely slow output abilities compared to his more rapid thought processes.” She reported that Student responded well to explicit guidelines and structured tasks, but exhibited significant difficulty organizing his ideas both verbally and in writing. Dr. Strand noted that the Student had “extreme difficulty” transferring his thoughts and statements to a written format and “both the content and form of his written sample were rudimentary.” She noted that “significant motor output problems” made it difficult to read his writing sample and he appeared to have organization difficulties in both written and spoken language. She found his reading skills to be within the range for his grade. He was able to self-correct when, because of reading quickly, he made errors of imprecision on content words. The Writing evaluation showed delays as he was unable to write in complete sentences. Dr. Strand found that the Student requires a “supportive and encouraging structure, explicit instructions regarding task output requirements, and monitoring of the details of the tasks in order to successfully formulate either spoken or written output. She recommended that Student participate in a structured educational program with the emphasis on assisting the Student in the “acquisition of efficient strategies for first analyzing complex aspects of language-based tasks into appropriately sequenced steps and then organizing the steps into larger patterns or wholes.” She found it essential for Student to use a computer for all written work. (P-2, pgs. 204-212; S-29)

67. The neuropsychological evaluator, Deborah Waber, Ph.D., noted that the Student displayed an “unusual level of fidgetiness and restlessness.” She further noted his “rushed and impulsive style” and “significant output difficulties.” She found his “graphomotor output was unusually effortful and poorly controlled” and noted his high level of anxiety. She noted that in both the Rey-Osterrieth Complex Figure Test and the Story Memory test the Student benefited from repeated opportunities to try a task as he became “flooded by information so that it became confused.” In the aforementioned tests, “the quality of his immediate recall was much poorer than after a delay, as if the time and distance from the original stimulus had allowed him to clear away some of the clutter.” (P-2, pgs. 199-203; S-30)

68. Math skills were assessed by mathematics specialist, Ellen Boiselle, and found to be at the late sixth to early seventh grade level. He presented significant problems with output and was more accurate when solving problems in his head than when he was asked to put them on paper. Ms. Boiselle noted, “Difficulties with written output, precision and pace, coupled with significant organization issues, vulnerability under complexity, and behavioral issues, may well hinder [Student]’s learning and effectiveness in the domain of mathematics. (P-2; pgs. 213-220; S-28)

69. William Mitchell, Ed.D., conducted a psychological screening which included interviews with Student and Parents. Student’s interview included some projective measures. Student presented as “engaging, compliant, alert, attentive and fully oriented as well as “fidgety, generally disinhibited, and restless.” He reported having felt “unhappy and socially isolated at his old school but had made lots of friends at Eagle Hill.” The Student’s responses to the projective material suggested that he was coping much better than reports of his previous emotional status indicated. The evaluator found the cyclicity of the Student’s symptoms, in light of a history of depression with rapid mood fluctuations and poor impulse control, to be suggestive of bipolar disorder. During the administration of the Tasks of Emotional Development, Student “had trouble generating age-appropriate strategies to resolve interpersonal problems”. Dr. Mitchell found that the Student had “significant primary emotional distress exacerbated by his significant difficulties with organization and output. (P-2, pg. 196; S-26)

70. The Summary of Findings prepared by the Children’s Hospital evaluators recommended a “small, intensive, therapeutic learning environment with comprehensive, well-integrated services to address his academic, social and emotional needs.” (P-2, pg.197) They recommended Student be evaluated for use of assistive technology in the classroom and that he use a computer for all written work. They found that Student required organizational support including direct teaching of self-monitoring skills in an academically challenging program. The evaluators found the Student’s psychological needs “substantial” requiring “maximum structure, intensity of feedback, and explicitness of expectations.” They further noted he requires “social skills support—with both explicit instruction and generalized supervision across all settings.” They recommended that Student’s program “fully accommodate his learning, social, and emotional needs, in conjunction with ongoing psychotherapeutic and psychopharmacological management.” (P-2, pgs. 197-198; S-26)

71. On June 23, 2000 Mr. Martin wrote to the Parents acknowledging receipt of several evaluations from the Children’s Hospital, Learning Disabilities Program. He reported that there were only seven school days remaining in the year and that there would be insufficient time to convene the Team meeting to review the results. He further reported that the Team would not be available during the summer and that they would reconvene in September, “within the prescribed 30 school day time frame.” (P-7, pg. 638; S-25)

72. On July 14, 2000 Student’s Father sent a letter to Phil Campbell confirming their conversation regarding the correct ten-day time frame for convening the Team. The Father indicates that the process has taken longer than anticipated and states the Parents’ intention to place the Student in private school again pending the implementation of a proper IEP. Father asked to be notified of the date of the Team meeting and stated that the school had three school days remaining in their ten-day time frame. (S-23)

73. On August 4, 2000, Nancy Bassett, the Case Coordinator of the Learning Disabilities Program at Children’s Hospital sent a letter to the Parents clarifying the recommendations made in their prior reports. She stated that the Student should be in a classroom with six to twelve students and two or more professionals. She also stated that Student should receive a “curriculum based social skills training program in a group setting” and it would be ideal for the Student to receive individual counseling in the school setting on a weekly basis (S-21; P-2, pg. 190)

74. The Team convened on September 8, 200010 . (S-20) The Father testified that there had been some staff changes, so he described the Student’s history and how the parties got to their current positions. (Father) The Team reviewed the results of the Children’s Hospital evaluation. Mr. Waterhouse testified that the results showed that Student’s writing needs were significantly more than what they had originally believed. (Waterhouse) There was some discussion about people believing the Parents made the proper move the previous school year when they placed the Student at Eagle Hill and Glenn Williams said that Central Tree had not had an appropriate placement for the Student. (Father, Greene, Williams) Mr. Williams testified that he recalls saying that he could understand why the Parents might have “taken that move with the stress that they felt.” He also testified that to his knowledge, there had not been a learning disabilities program in the district during the 1999-2000 school year. He testified that during the year the Student was at Eagle Hill the district had planned a new program within the district which “began to take shape” and by September 2000 there was a program in the district. (Williams) The Team drafted a new IEP which included information from the Children’s Hospital evaluation. The significant changes to the IEP were that it called for a substantially separate classroom and provided for counseling as part of Student’s weekly schedule. The IEP also called for inclusion for specials. (Waterhouse, S-19) Placement was proposed at the Paxton Center School and the Parents agreed to observe the program to determine whether it would appropriately address the Student’s needs. (Mother, Father, Greene, Williams)

75. After the September 8, 2000 Team meeting, Mr. Waterhouse sent the Parents a copy of the revised IEP, which includes information acquired from evaluations conducted at Children’s Hospital. His cover letter included the handwritten notation: “re IEP 11/1/99.” (S-18) In addition to a number of classroom modifications, the IEP provided for consultation with the special education teacher 1 x 30 minutes per week; inclusion 5 x 45 minutes per week for related arts classes including p.e., art, and music; self contained academic instruction with the special education teacher 25 x 45 minutes per week (a substantially separate classroom); and counseling 1 x 45 minutes per week. On its face the IEP period was from 11/01/99 to 10/31/00. It called for placement at the Central Tree Middle School. (S-19) However, Dr. Williams testified that the district intended to implement the IEP at the Paxton Center School. (Williams)

76. The Parents and their advocate, Gayle Greene, observed the Paxton Center School in October. (Greene) They spent approximately one and a half hours at the Paxton Center during which they spoke to the classroom teacher and the principal and observed a twenty-minute lesson. There was a small number of students (5-8) in the sixth through eighth grades in the classroom and the number varied at times because the students went back and forth between that small classroom and regular education inclusion classes. The teacher worked with the students individually and as a class. At times, all of the Students were out of the classroom. The principal told them that the students had “mild problems” and spent one to two periods per day in that classroom. He also told them that he was the person who would provide clinical support to the program. (Father, Greene) At some point after the Parents’ observation of the Paxton program, the Parents, along with their attorney and advocate met with Wachusett personnel to discuss their observations. The Parents informed Wachusett personnel that they found the Paxton program unacceptable. The District made no other proposals at that time and Dr. Williams understood that the Parents would seek payment for the Eagle Hill program. The Team was not convened again after that meeting. (Williams)

77. On October 20, 2000, Eagle Hill forwarded the Student’s 2000-2001 IEP to the parents. It described the Student as having strengths in reading comprehension, vocabulary and his general fund of knowledge. It stated that his greatest area of difficulty is in writing and he also presents weaknesses in the ability to handle abstractions both in the academic sense as well as in social situations. It described the Student as presenting with attention deficit with hyperactivity and having a tendency to rush through his work which affects, his performance in Algebra and other areas. The bouts with hyperactivity, negative attitude and tendency to rush are effectively handled through the use of positive reinforcement and behavioral sanctions. Student’s Instructional Profile states that his “difficulty with oral and written expression makes small classes and a great deal of individual instruction vital to his success. His confidence and self-esteem are boosted as a result of being surrounded by students not unlike himself, and who treat him with respect. His weaknesses in the areas of organization and time management make the highly structured assignment book and point card system also integral to his success.” (P-1, pgs. 2-38) The Parent accepted the Eagle Hill IEP proposed on October 19, 2000 in full. (P-1, pg.2)

78. There was no Team meeting prior to the proposal of the 2000-2001 Eagle Hill IEP. The service delivery grid is standard and not individualized. Ms. Farley testified that the Student’s program was individualized for him because he was put in classes to address his needs and his strengths were challenged and encouraged to grow. She testified that for the 2000-2001 school year the Student continued in algebra because he had not mastered it in one semester. He took two pragmatics classes, Establishing Relationships and Organization and Time Management11 , because they were areas of need. He continued to take writing and took general science because that’s the science course middle school students take. He received counseling once per week in place of an elective. He also received keyboarding instruction because the physical act of writing was difficult for him. (Farley)

79. During the 2000-2001 school year the Student was placed in a supervised study hall in the evenings because homework completion continued to be an issue for the Student. The study hall was a quiet place supervised by a teacher or dorm counselor where Student did his homework. There was no direct instruction provided, but the supervisor could provide assistance if necessary. Even while participating in the supervised study hall, homework continued to be an area of difficulty for the Student. Even when he completed assignments during study hall, he did not always manage to pass them in the following day. (Farley; P-7, pg. 346A)

80. The Student’s anecdotal logs sometimes contained negative comments. On October 11, 2000 the Student failed to earn some of his homework points and was disruptive in Ms. Paul-Lewis’ class. He apologized to her after school and said he would complete his homework that evening during study hall. Between October 14 and November 1, he received many call backs due to homework issues. He continued having problems with homework throughout January and February despite the structured study hall. (Farley)

81. The Parents enclosed Student’s rejected Wachusett IEP in a letter to Glenn Williams, dated November 1, 2000. The letter indicated that the Parents would continue to work with the district to agree upon an appropriate placement for Student, but did not want to miss their deadline to respond to the IEP. (P-1, pg. 77; S-16)

82. Gayle Greene testified that she received a telephone call from Glen Williams on October 31, 2000 during which he indicated that Wachusett was willing to place the Student at Eagle Hill for the 2000-2001 school year. After she did not hear from him again for several days, she called him and asked him to put his previous offer in writing. On November 6, 2000, Dr. Williams called her and stated that they needed to withdraw their offer of placement because Eagle Hill was not a 766 approved school. (Greene)

83. On November 13, 2000, Attorney Ann Scannell wrote a letter to Glenn Williams describing the Parents’ frustration regarding Wachusett’s withdrawal of its oral agreement to resolve the dispute by paying Student’s tuition at Eagle Hill School for the 2000-2001 school year. She requested that Wachusett fund the Student’s placement for the 2000-2001 school year and reimburse Parents for the previous year’s placement at Eagle Hill and related expenses. (S-13)

84. On November 15, 2000, Glenn Williams responded to Attorney Scannell’s letter and indicated that he also was disappointed that Wachusett’s proposal could not be implemented. He indicated that he would consult with the district’s attorney and expected to respond during the week after Thanksgiving. (P-10, pg. 627)

85. On November 20, 2000, Attorney Scannell wrote to Dr. Williams informing him that her clients were incurring additional expense and emotional distress with each passing day and asking him to provide the District’s response by December 1, 2000. (S-12)

86. On November 27, 2000, Dr. Williams sent Phil Campbell an e-mail summarizing information Ron Pasternak had obtained from the Eagle Hill School and the Department of Education (hereafter, “the DOE”.) Eagle Hill was no longer accepting public funding. A representative of DOE informed him “If a private school isn’t willing to accept public funding… then the District can’t proceed under [the] sole source process.” Dr. Williams recommended informing the Parents of this and requesting “an expedited mediation.” (S-11)

87. On November 27, 2000, Glen Williams sent a letter to Attorney Scannell indicating that Wachusett was not in a position to enter into an agreement with Parents to provide services because Eagle Hill School is not an approved Chapter 766 Private School and Eagle Hill will not accept public funds. He indicated that there was no mechanism for reimbursing the Parents and suggested meeting with her and the Parents to work towards a solution. (S-10)

88. On December 1, 2000, Attorney Scannell responded to Dr. Willilams’ letter and stated that the Parents would only meet with Wachusett if the district was in a position to issue a check to the Parents for reimbursement. Otherwise, the Parents would request a Hearing. (S-9)

89. Marilyn F. Engelman, Ph.D., of Educational Directions, testified that the Parents’ advocate contacted her and asked her to review Student’s records, perform any necessary observations and evaluations and determine an appropriate placement for the Student. Dr. Engelman conducted evaluations of the Student on January 10 and 16, 2001 and provided Parents with her report. The Student was half way through the eighth grade at the time of the evaluation. (P-2, pgs. 149-161)

90. She administered a series of standardized tests. Her results were similar to those obtained by Mr. Martin and the Children’s Hospital evaluators. She testified that she did not believe that Mr. Martin’s testing was comprehensive. She conducted the Bender Gestalt Visual-Motor Integration Test to determine whether he can copy and visualize shapes and how he organizes and plans his work. She noted that he copied shapes appropriately, but his placement on the page was very disorganized, impulsive and haphazard. He did not use any systematic approach to the tasks. The other area of weakness she noted was Student’s written language test. The Student was shown a picture and asked to write a short story about it with a beginning, middle, and end. He was given fifteen minutes to complete the test, but she allowed him almost one hour to complete his work. He had difficulty with the physical act of writing so she turned on the computer and asked him to type his thoughts. He had trouble reading his own writing and did not organize his thoughts or write in complete sentences. Dr. Engelman determined that the Student had written output problems, difficulty organizing written output, and demonstrated anxiety when asked to perform a written language task. She stated that he required a great deal of encouragement to complete writing assignments. She also found that the Student’s ADHD impacted his performance and manifested itself in his impulsive style, his easy frustration, and his difficulty organizing. She testified that he requires “explicit formats” such as directed instruction and focus questions. He needs “a map in order to follow through.” She expressed concern that the gap between the Student’s verbal and performance I.Q. had widened to 19 points according to Mr. Martin’s testing. She also noted that the Student’s low average to low end of average range scores compared to his ability level in the area of written language was significant. (Engelman, P-2, pgs. 149-161)

91. Dr. Engelman observed the Student at his Eagle Hill program and spoke with his adviser and teachers in January 2001. She observed Student’s math, study skills/organization, and writing class. Student’s adviser informed her that they were treating the Student as though he had NVLD because of his output difficulties although he did not meet the criteria for having NVLD. Dr. Engelman testified that this did not concern her because the Student requires a great deal of structure due to his impulsivity, ADHD, lack of organization skills and need for frequent breaks. Student was being taught to use outlines, visual organizers and the computer. Dr. Engelman testified that the Student’s math teacher used a multi-sensory approach which included oral, visual, and manipulatives. She worked with the class as a group and with the students individually. She observed the Student completing a math assignment. The Student finished his work quickly and the teacher asked him if he checked his work which reminded him to go back and check his work before handing it in. The Student focused and went back to work checking his work. During his organization class Dr. Engelman observed that the Student required cueing to remind him to stay on task. They worked on the computer and the Student required several cues and the teacher sitting beside him to focus and complete the assignment. He was able to focus when she sat next to him and remained focussed when she walked away. He required further cueing shortly thereafter. Dr. Engelman observed the Student’s writing workshop class which had six students. The Student had difficulty getting started and the teacher had to approach him to cue him to get out his Alphasmart. Once he began working he was able to complete the assignment. Dr. Engelman observed that the teacher was astute, aware of Student’s strengths and weaknesses and able to get him back on task. The Student required cueing every ten minutes, but was willing to do the work with some reminders. (Engelman)

92. Dr. Engelman observed the Paxton Center School on April 30, 2001. She spoke to the teacher, an aide and a speech language pathologist and observed an English class. Dr. Engelman testified that the teacher told her the program was evolving. It had begun with fifth, sixth, and eighth graders, but from January on there were all sixth grade students in the program. The aide went with students to their inclusion classes. A speech language therapist provided many services to the students and most of them had language-based learning disabilities. Dr. Engelman testified that she was concerned that there were not any other eighth graders in the class and there was no eighth grade curriculum. (Engelman)

93. Dr. Engelman concluded that the Student’s needs could best be met at the Eagle Hill School. She stated that Student’s profile of ADHD, OCD/mood disorder/bipolar, written language output difficulties, and strong intellectual ability could best be served in a small classroom that can deal with his emotional and academic issues. She testified that Eagle Hill dealt with Student’s emotional needs through counseling, working on social and pragmatic skills though direct teaching and helping him to become more aware of how his behavior affects others. She found that Eagle Hill effectively dealt with his written language output problems by teaching the Student how to outline and organize his work. She found that the Student could be successfully educated with peers who were not his chronological peers as long as their disabilities were similar and they were at the same cognitive and academic level.

94. Ms. Farley testified that the Student made progress in several areas while a Student at Eagle Hill. He developed friendships with other Students. There was one particular peer with whom he was friends and others whom she considered to be Student’s peers. His writing improved in that he could not complete a multi-page writing assignment without significant redirection and assistance. He can now complete multi-page writing tasks. (Farley) The Parents testified that the Student’s emotional state improved while the Student was at Eagle Hill. The Student was taken off of a medication, Tenex, in December 2000 because the doctor found his mood to be stable. This was the first time since he began taking medications that he had been able to stop taking one. He stopped masturbating and wetting the bed. (Mother, Father)

FINDINGS AND CONCLUSIONS

Student is an individual with a disability, falling within the purview of the Individuals with Disabilities Education Act (IDEA)12 and the state special education statute.13 As such, he is entitled to a free, appropriate public education which is reasonably calculated to assure his maximum possible educational development in the least restrictive environment consistent with that goal.14 Neither his status nor his entitlement is in dispute.

The principal issue presented is whether the proposed IEPs for the 1999-2000 and 2000-2001 school years were reasonably calculated to maximize the Student’s potential in the least restrictive environment and if not, whether the Parents are entitled to reimbursement for their unilateral placement of the Student at the Eagle Hill School.

The Supreme Court has held that “[p]arents are entitled to retroactive reimbursement for their expenses in placing a child unilaterally in a program other than that proposed by the school system only if 1) the IEP and placement proposed by the school are deemed inappropriate, and 2) the placement in which the parents unilaterally place the child is found to be appropriate. Doe v. West Boylston School Committee, et al. , Civil Action No. 97-11068-DPW (1998) citing Burlington v. Department of Educ. , 471 U.S. 359, 363, 373 (1985)

Although the Parents accepted the IEP proposed for the Student’s 1999-2000 school year, I find that the inadequacy of that IEP became apparent very early in his seventh grade year. I found the Parents to be very credible historians of their son’s difficulties and their own efforts to obtain assistance for him. I find compelling evidence that Wachusett failed to provide the Student with an appropriate IEP to maximize his potential in the least restrictive environment.

The testimony of the Parents and of Lincoln Waterhouse supports the Parents’ contention that they raised their concerns about the Student’s need for academic and emotional supports as early as the fourth day of school because the Student was exhibiting signs of his academic and emotional difficulties. The Mother was already sufficiently concerned that she contacted Mr. Waterhouse to advise him of Student’s emotional state and request assistance on his behalf. Shortly thereafter, the Parents notified Mr. Waterhouse that the Student was spending an excessive amount of time completing homework and requested modifications of his assignments. Instead of taking any action to alleviate the Student’s difficulty, Mr. Waterhouse initially told the Mother he would look into her concerns. After Mother again expressed her concern he determined that before modifying Student’s homework, he needed to get a better idea of how Student was handling his homework and requested the Parents’ permission to meet with the Student after school to observe his work habits. The Student continued to struggle. (See testimony of Mother, Father, Waterhouse and paragraphs 11, 14 above.)

As September progressed, the parents sent Mr. Waterhouse a letter requesting a meeting with the Student’s teachers. They maintained regular contact with Mr. Waterhouse and continued to raise their concerns of Student’s academic and emotional struggles. Ms. Fernands, the school principal, was also aware of the Student’s struggles. When she called the Parents to report that the Student had not handed in homework, the Parents raised their concerns about Student’s anxiety and difficulty completing homework to her. She told them that Mr. Waterhouse was working on his homework issues and ignored the Father’s report that the Student needed help and was reaching a “crisis situation.” (See testimony of Mother, Father, Waterhouse and paragraphs 14-16 above.)

Although Mr. Waterhouse was always willing to speak to the Parents and meet with them, he did not implement appropriate services even after determining that services were necessary. In September Mr. Waterhouse received a letter from the director of the Sylvan Learning Center indicating that the Student has significant difficulty with writing and required remediation. He did not take any action despite his testimony that the letter was a “significant direction pointer to the problems the Student was having in writing.” He thought it would be an important piece of information to use in the future when the Team began making decisions, but did not deem it important enough to reconvene the Team to review the services the Student was then receiving. He did not testify that he recommended the Student be evaluated in the area of written language nor that he recommended that the Team convene to address the “significant direction pointer.” After he attempted to complete a writing assignment with the Student for the first time he told the Mother the Student was definitely struggling and that “something had to change and they needed to implement more services for him at school.” He did nothing to ensure that something would change or that any more services would be implemented for Student. (See testimony of Waterhouse, Mother.)

Other Wachusett staff failed to assist the Student as well. Mr. McCall called the Student’s Mother and reported that he was very anxious. Instead of offering him assistance, he asked the Mother to come to school to bring the Student home. Mr. McCall, Ms. Fernands, Mr. Waterhouse and the school nurse were all aware of the incident of September 21, 1999, which culminated in the Student’s becoming so distressed that Mr. Waterhouse restrained him. No emotional supports were put in place after the incident. The Team was not even convened to review the Student’s IEP to determine whether the services it provided were sufficient. (See testimony of Waterhouse, Mother, and paragraphs 17, 26 above.)

The work-mentoring program started by Mr. Waterhouse did not provide the Student with the desired assistance. The Father testified that it caused the Student added distress because it required him to leave class early and get his materials organized and report to Mr. Waterhouse very quickly in a short period of time. Because organization was an area of difficulty for the Student he found it difficult to obtain all of the appropriate materials and report to Mr. Waterhouse in the time allotted. It caused him additional anxiety instead of providing assistance. Although Mr. Waterhouse’s intention was to assist the Student, the intervention was not appropriate for the Student and did not provide him with any relief. (See testimony of Father.)

When the Student’s teachers met on September 23 they drafted “action steps” to assist the Student. (P-7, pg. 672; S-61) Although Mr. Waterhouse testified that all of the steps were followed, the net effect of following them provided the Student with no additional assistance through November when he left Wachusett. As previously mentioned, the work mentoring program was not helpful to the Student and actually caused him to suffer additional anxiety. The introductory meeting with the adjustment counselor was never set up because the Student mentioned that he already knew her. Nobody at Wachusett suggested that the Student meet with her regularly despite having knowledge of his emotional difficulties. The step of identifying a period during which the tutorial would take place was not done in a timely manner which would allow the Student to actually receive the tutorial. The Parents met with Ms. Fernands in late September and agreed that the Student should be removed from German class and receive the tutorial during that period. The Student did not receive any tutorial during the identified time period. As late as November Wachusett personnel was still trying to determine when the Student would receive the tutorial, who would teach him, and what curriculum would be used. Throughout the fall the Parents continued to plea for assistance while Wachusett staff continued to delay providing assistance. (See testimony of Mother, Father, Waterhouse, and paragraphs 20-22 above.)

I found Mr. Waterhouse’s testimony to be credible. He acknowledged that he did not always follow procedure in regards to documenting meetings and convening IEP Teams. He was also honest in testifying that he recognized the Student’s need for assistance early in the year and was aware that he required additional supports. He acknowledged that the Parents were very dedicated to their son and that he had a good relationship with Parents and the Student. I believe that he had good intentions with respect to assisting the Student, but he simply never provided the appropriate services for the Student. The Parents had been instructed that Mr. Waterhouse was the liaison through whom they should communicate with Wachusett staff. They relied upon him to communicate the Student’s needs to the rest of the Student’s teachers. Although Mr. Waterhouse testified that the classroom teachers were modifying the Student’s homework assignments and making modifications in the classroom, he also testified that his busy schedule allowed him to spend little time in Student’s classes. Not one of the Student’s direct service providers testified at the Hearing. Therefore, I did not hear any direct testimony that the Student’s homework was being modified or that any classroom modifications were being made for the Student. (See testimony of Waterhouse.)

Throughout the fall, the Student continued to exhibit signs of emotional distress. The Student Discipline Report sent to the Parents (P-7, pg. 653; S-55) indicated that the Student had been punished for taking markers from the art room and giving them to other students. Despite Mother’s having explained the Student’s lack of social skills and desperate attempts to fit in with his peers, the Student was punished with a detention and not offered any social pragmatics instruction or adjustment counseling. (See testimony of Mother.)

The Team finally convened in November to review the results of the updated evaluations that the Parents had requested. Mr. Martin’s report is indicative of the lack of understanding that Wachusett staff members were showing of the Student’s disabilities at that time. After acknowledging the Student’s ADHD, OCD and generalized anxiety Mr. Martin made observations of manifestations of his disabilities and attributed them to the Student’s attitude and behavior. He reported that the Student was “less willing to ‘try to do well’, actually ignoring comments to take his time, check his work and/or write or print legibly.” Instead of recognizing that the Student’s disabilities would make it difficult for him to take his time, check his work or print legibly, he insinuated that the Student was unwilling to follow his directions. He characterized the Student’s performance on visual motor tasks which did not require writing as “more interesting” and surmised that was the reason Student performed better on those tasks. He did not consider the possibility that the Student’s difficulty with writing was the reason for the discrepancy in his performance. He reported that the Student “insisted on rushing ahead and answering questions, in spite of cautions and warnings to the contrary.” He stated that Student needed several reminders to copy the designs sequentially. He reported that “Student read aloud instead of silently, refused to check his math problems and insisted on putting question marks on those math problems which he could not complete.” He concluded that the Student’s behaviors were “provocative” and seemingly “passive aggressive.” He did not conclude that the behaviors could be caused by the Student’s recognized disabilities. He seemed to blame the Student for behaving in ways that he admitted during his testimony could be caused by his disabilities. He was not terribly concerned by the 19-point gap between the Student’s verbal and performance I.Q. scores. He noted that the Student “may have a difficult time completing age-level tasks involving Broad Written Language.” He did not recommend specific interventions for remediating the Student’s written language skills despite the fact that the Student had a verbal I.Q. score of 122 and scored at the fourth grade level and at the twenty-fourth percentile in the Writing Samples and Broad Written Language sections of the Woodcock Johnson and despite having been made aware of the Student’s lack of success at the Sylvain Learning Center the previous summer. (See testimony of Martin and P-2, pgs. 230-234 and S-52, S-53, S-54.)

The Parents were well aware of the difficulties that the Student was having especially in the area of writing and after Mr. Martin failed to identify writing as an area of specific need, their request for an independent evaluation was reasonable. The Parents were understandably somewhat skeptical that one daily forty-five minute tutorial could address the Student’s writing, social pragmatic, and organizational needs. Additionally, Wachusett refused to tell them who would provide the tutorial or what curriculum would be used until after they signed the IEP. However, rather than rejecting the IEP at that point, the Parents, in an act of good faith, postponed their decision pending receipt of the results of the independent evaluation they requested on November 2, 1999. (See testimony of Mother and Father.)

I find that the Parents acted in good faith throughout the entire seventh grade school year. Despite the Parents’ growing concern regarding the Student’s level of anxiety and their frustration over Wachusett’s failure to implement additional services or make homework modifications the Parents were always willing to meet with Wachusett and discuss proposals for their son’s education. The Parents were honest when they informed the Team that they had explored the option for an alternative school, but that they hoped Student would obtain appropriate services in Wachusett. The Parents had previously informed Lincoln Waterhouse that they were considering a private school placement late in October. Although the Parents had visited Eagle Hill in September and requested that the Student’s name be placed on the wait list, the evidence supports the Parents claim that they placed the Student at Eagle Hill only after exhausting every avenue at Wachusett and making reasonable efforts to obtain appropriate services for the Student. The Parents were credible when they testified that they feared for their son’s life at the time that they decided to unilaterally place him at Eagle Hill. They continued to see the Student increasingly withdraw at home and exhibit anxiety at home and at school. The Parents had placed Wachusett on sufficient notice that they were dissatisfied with the services provided to the Student throughout September, October, and November. They had requested additional services on many occasions. School personnel were well aware of and had observed manifestations of the emotional difficulties the Student was experiencing, yet they did not provide the Student with sufficient supports. The Student’s IEP continued to call for consultation 2 x 15 minutes per week until November despite Lincoln Waterhouse’s acknowledgement of the Student’s difficulties, the Parents’ continued pleas for assistance, and the administrators’ knowledge that the Student was experiencing increased levels of anxiety which resulted in his being restrained while at school and administrators calling Parents and asking them to come and get the Student. (See testimony of Mother and Father.)

Parents testified credibly about having little time to decide whether to place the Student at Eagle Hill. They were informed of an available opening there in late November and requested that Eagle Hill allow them to try to reach an agreement with Wachusett before accepting or refusing the Eagle Hill placement. The Parents were credible when they testified that they finally were convinced that Wachusett was not going to help their son and accepted the Eagle Hill placement after the November 19 Team meeting. (See testimony of Mother and Father.)

Having found that the IEP and placement proposed by Wachusett were inappropriate, I turn to the second prong of the Burlington analysis, the appropriateness of the Eagle Hill School placement. The Supreme Court determined that “neither the IDEA nor its legislative history imposes a ‘requirement that the private school be approved by the state in parent placement reimbursement cases.’” Florence County Sch. Dist. Four v. Carter , 510 U.S. 7, at 11 (1993) Therefore, Eagle Hill’s unapproved status shall not direct my decision regarding appropriateness. In determining whether the parental placement was appropriate, the United States District Court for the District of Massachusetts applied the IDEA’s appropriateness standard. Doe v. West Boylston School Committee , 4 MSER 149, 161 (D. Mass. September 14, 1998). The Court found that it must determine “whether the school provided personalized instruction with sufficient support services to permit [the Student] to benefit educationally and services that were reasonably calculated to enable [the Student] to achieve passing marks and advance from grade to grade.” Id .

The evidence shows that Student’s most significant needs at the time of his Eagle Hill placement centered around his writing skills, his organizational skills and attentional difficulties, and his social pragmatic skills. Ms. Farley testified to selecting the Student’s classes based upon his individualized needs. She reviewed his file prior to selecting his courses and her testimony indicated that she had a clear understanding of the Student’s weaknesses and strengths. She testified that she tried to place the Student in classes that would challenge his areas of strength, such as reading, and support his areas of weakness, such as writing. The Student’s writing course selection was further “personalized” in that he was placed with students who required “more basic help in writing” as the Student struggled with the most basic of writing assignments. The instruction which was provided to the Student was personalized in that the classes were very small and teachers were able to provide the Student with one on one assistance when necessary. Although all students at Eagle Hill are required to take pragmatics courses, Ms. Farley recognized the Student’s specific need for pragmatics instruction. Because she knew that the Student struggled in the social area, she placed him in a class entitled “Establishing Relationships.” (See testimony of Farley.)

Ms. Farley testified that part of her role as Student’s adviser was to provide the Student with a person to whom he could go if he were having a problem on a particular day. She reported that the Student often stopped by her room during the day. She felt that she and the Student had a good relationship. She was also a person for his teachers to speak to if they noticed that the Student was experiencing a particular problem. If multiple teachers reported the same problem she could call a meeting. Ms. Farley’s testimony showed that she provided for the Student’s personalized instruction by selecting classes based upon his demonstrated needs and by providing a means for the Student to communicate any difficulties. (See testimony of Farley.)

One of the Student’s personal needs was for a great deal of structure. Eagle Hill provided that structure in several ways. First, by providing small classes, teachers were able to provide Student with individualized instruction. The Student required frequent cueing to remain on task and he was able to receive it. There was also structure built in to the point card system. The Student became aware of the staff’s expectations and he was held to task in that he would only earn his points if he conducted himself in accordance with their expectations. If he did not earn his points he was required to attend a call back session and his Parents were notified via the log notes. The point card system and log notes also provided a mechanism for the Student’s progress to be consistently tracked and followed. (See testimony of Farley.)

The evidence shows that the Student was able to achieve passing marks and advance from grade to grade while a seventh grader at Eagle Hill. (See paragraph 64 above.) In addition to the progress evidenced by the Student’s grades and promotion to the next grade, the Parents and Ms. Farley testified regarding the Student’s progress. I found both Parents and Ms. Farley credible in their testimony that the Student was happier and was able to form friendships while at Eagle Hill.

Wachusett’s arguments regarding the IEP process used by Eagle Hill and the format of the IEPs are not sufficient basis for finding the Eagle Hill program inappropriate. As previously stated, the Parents are required to choose a placement which provides personalized instruction and allows the Student to benefit educationally, not to maximize the Student’s potential. While it is true the teachers at Eagle Hill were not all certified, IEPs were not drafted in the same manner prescribed by the state of Massachusetts and the students in the Student’s classes were not all his exact peers, the Supreme Court found that reimbursement is not barred by a private school’s failure to meet state education standards. The Court declined to find fault in a private school placement where all teachers were not certified and IEPs were not developed for students. Florence County Sch. Dist. Four v. Carter , 510 U.S. 7, 14 (1993). Similarly, I do not find that Eagle Hill’s program was inappropriate under the Florence County/West Boylston standard.

The School’s argument that the Parents are not entitled to reimbursement despite Wachusett’s failure to provide the Student with an IEP which was reasonably calculated to maximize his potential in the least restrictive environment is not persuasive. Wachusett argues that the Parents never rejected the 1999-2000 IEP and they are therefore barred from seeking reimbursement. Its argument is unpersuasive for several reasons.

The Parents did reject the IEP proposed for the 1999-2000 school year, albeit not during the 1999-2000 school year. When the Parents postponed their decision on the 1999-2000 IEP, they indicated that their postponement would be in effect until they obtained the results of the independent evaluation. The results were not obtained until late in the school year. Wachusett determined that it would not be able to convene the Team during the remaining school days and informed the Parents that the Team would convene to review the evaluations in the fall. The Parents could not possibly decide to accept or reject the IEP until at least September when the Team reviewed the Children’s Hospital evaluations. Parents chose not to reject the IEP prior to their obtaining the independent evaluation results and their choice to await further information cannot be held against them now. The Parents informed Wachusett during the summer of their intent to place the Student at Eagle Hill again September pending the implementation of an appropriate IEP. The Team reconvened on September 8, 2000 and Wachusett proposed placement at the Paxton Street School. The Parents, again acting in good faith, agreed to observe the program prior to accepting or rejecting the IEP. After observing the Paxton Street program, the Parents decided to reject Wachusett’s proposed IEP and accepted Eagle Hill’s. (See paragraphs 37, 45, 71, 72, 74, 76, 77 above.)

It is unclear whether the IEP the Parents rejected on November 1, 2000 was a revised 1999-2000 IEP or a proposed 2000-2001 IEP. The dates on the IEP indicate that it ran from 1999-2000. (S-19) The school listed Central Tree Middle School on the IEP and not the Paxton Center School which had been discussed as the proposal for the 2000-2001 school year. The letter that Lincoln Waterhouse sent to the Parents along with the revised IEP contains the handwritten notation “11/99 IEP.” (S-18) The cover letter sent by the Parents with their rejection of the IEP refers to a deadline to respond to the proposed IEP which indicates that the Parents were mindful of the 30-day deadline to respond to a proposed IEP. (S-16)

Wachusett never drafted an IEP proposing the Paxton Center Program for the 2000-2001 school year. (S-19) Although Wachusett staff testified that the IEP parents rejected in November 2000 was actually an IEP which contained the wrong dates and the wrong school placement, it is apparent that the Paxton Center Program was never proposed in an IEP. Therefore, I find that there is ambiguity as to which IEP was proposed in October 2000 and because the Parents were not the drafters of the document, any ambiguity must be resolved in their favor. It is unclear whether the Parents believed that they were rejecting both the prior Central Tree proposal and the Paxton Center program. It is clear, however, that Wachusett was aware that neither program was acceptable to the Parents and Wachusett had advance notice that the Parents would be placing the Student at Eagle Hill. (See testimony of Mother, Father, Williams, Waterhouse.)

Wachusett was at all times aware that the Parents were not satisfied with the IEP proposed for the 1999-2000 school year. The Parents had been expressing concerns since the fourth day of school. Wachusett was not surprised when the Parents removed the Student from Wachusett and placed him at Eagle Hill. Lincoln Waterhouse had known since at least October that the Parents were exploring out-of -district options. The Parent provided written notice to Wachusett of its intention to place the Student at Eagle Hill seven days before the Student began attending Eagle Hill. There was no ambiguity in Parents’ letter dated November 21, 1999 in which they reiterated their opinion that Wachusett’s program was inappropriate and stated their intention to place the Student at Eagle Hill because they feared that harm would come to the Student if he remained at Wachusett’s placement. Despite their intention to place the Student at Eagle Hill, Parents’ letter indicated that they “still look forward to receipt of Lincoln’s amended Ed Plan and hope that it addresses our concerns in providing a program for [Student] that would allow him to reach his full educational potential.” At that time the IEP process was suspended, pending the results of the independent evaluation which would enable the Parents to accept or reject the IEP. Although the Parents had not rejected the IEP on the IEP form, their November 21, 1999 letter along with their placement of the Student is akin to a constructive rejection of the IEP in the context of the facts of this case. (See testimony of Mother, Father, Waterhouse and S-36, P-7, pgs. 647-650.)

Even if the Paxton Center School had been proposed appropriately in an IEP, it was not an appropriate placement for the Student. Although the IEP did contain the addition of counseling and a change from an inclusion model to a substantially separate setting, the actual program observed by the Parents and Dr. Engelman was not appropriate for the Student. In October 2000, when the Parents visited the Paxton Center program, there was a small number of students in grades six through eight. All of the students went back and forth between the small classroom and inclusion classes. The Student’s IEP called for a substantially separate program. The principal told the Parents that the other students in the program spent one to two periods per day in the substantially separate classroom. If the IEP were to be implemented at the Paxton Center School the Student would have been the only member of the class to remain in that classroom at all times instead of moving back and forth between inclusion classes and the substantially separate classes. It would not be appropriate for the Student to be the only member of the class whose placement was always the substantially separate classroom while other students spent only one to two periods per day in that classroom. It is also questionable whether the program would provide the emotional support the Student required because the principal told Parents he would provide the clinical support to the program. It would seem that a building principal would not always be readily available to provide the Student with the clinical support he would require. (See testimony of Engelman, Greene, Mother, Father, S-19.)

It was April 2001 by the time Dr. Engelman visited the Paxton Center program. The Student had been attending Eagle Hill for the entire school year. However, some of Dr. Engelman’s observations were relevant to the appropriateness of the program despite the fact that the Student was not attending it. The classroom teacher told Dr. Engelman that the program was evolving. Even though it had been in existence since September 2000, the program was changing. The composition of the class had changed to all sixth graders and there was a new teacher. This is relevant, because the Student would have required a structured and stable classroom environment. The Paxton Center program proved to provide neither. I am not persuaded by Dr. Engelman’s comments that the program was inappropriate because of the lack of other eighth graders or an eighth grade curriculum, but find that the program was inappropriate for the reasons outlined above. (See testimony of Engelman.)

Eagle Hill continued to be the appropriate program for the Student during the 2000-2001 school year. Additional supports were added to his IEP to address issues which arose. Individual counseling was added during the 200-2001 school year. Additionally, in recognition of the Student’s difficulty completing homework, he was provided with a structured study hall that took place in the evening. Although it did not resolve the Student’s homework issues, it allowed him to make some progress in the area of homework completion. Dr. Engelman’s observations of the Eagle Hill program in January 2001 support the Parents’ position that Eagle Hill continued to be an appropriate placement for the Student during the 2000-2001 school year. Dr. Engelman observed the Student receiving individual attention from his teachers in a small group setting. She testified that the Student responded positively to the cueing and reminders provided to him and seemed willing to work. She found that his writing teacher was “astute, aware of Student’s strengths and weaknesses, and able to get him back on task.” Her observations show that the Student was able to benefit from the education that was being provided to him. (See testimony of Farley, Engelman.)

Ms. Farley’s testimony supported the appropriateness of Eagle Hill for the Student’s 2000-2001 school year. She testified that his writing improved to the point that he could complete a multi-page writing assignment without significant redirection and assistance. She also testified that he had developed friendships with other Students. The Parents testified that Student’s emotional state improved to the point that he was taken off the medication Tenex in December 2000 when his doctor determined his mood to be stable. The Student had never before been taken off of a mood stabilizer. He also stopped exhibiting symptoms of anxiety which he previously exhibited including masturbating and bed-wetting. (See testimony of Farley, Mother, Father)

It can reasonably be surmised that Wachusett did not find the Paxton Center program to be appropriate and did find Eagle Hill to be appropriate for the Student because Wachusett offered to fund the Student’s Eagle Hill placement in October 2000. Although Wachusett staff testified that the offer was made in order to resolve the dispute, the Parents had not yet requested a due process hearing at that time. The Parents showed their good faith again by not requesting a due process hearing until February 2001, when it became obvious that Wachusett would not honor the settlement offer it had made. (See paragraphs 82-88 above.)

Wachusett’s argument that the Parents are not entitled to reimbursement because they did not comply with 20 U.S.C. § (a)(10)(C)(iii)15 in equally unpersuasive. The section provides in relevant part that “The cost of reimbursement may be reduced or denied— (italics added) (I) if—

(aa) at the most recent IEP meeting that the parents attended prior to removal of the child from the public school, the parents did not inform the IEP Team that they were rejecting the placement proposed by the public agency to provide a free appropriate public education to their child, including stating their concerns and their intent to enroll their child in a private school at public expense; or

(bb) 10 business days (including any holidays that occur on a business day) prior to the removal of the child from the public school, the parents did not give written notice to the public agency of the information described in division (aa).

The Hearing Officer is given broad discretion to determine whether to reduce the amount of reimbursement to the Parents, deny reimbursement, or allow full reimbursement due to the legislature’s use of the word may . I have chosen not to reduce or deny the Parents’ reimbursement, because the Parents provided the above described information to Wachusett throughout the fall of 1999. The School district was aware that Parents were dissatisfied with the Student’s program since September and that they were considering private placements as early as October. They had adequate prior notice of the Parents’ actions. Therefore, the fact that the Parents gave written notice to Wachusett seven days prior to enrolling Student at Eagle Hill instead of ten business days prior to his enrollment is not dispositive of the reimbursement issue. (See testimony of Mother, Father, Waterhouse; S-36, P-7, pgs. 647-650.)

“Once it is determined that a public placement violated the IDEA, as is the case in the instant action, the court is authorized to ‘grant such relief as [it] determines is appropriate. 20 U.S.C. § 1415(I)(2)(B)(iii).” Doe v. West Boylston School Committee , 4 MSER 149, 161 (D. Mass. September 14, 1998). For the aforementioned reasons, I have determined that Wachusett violated the IDEA with respect to the Student’s IEPs and that reimbursement is the appropriate remedy.

As a final note, the conduct of the hearing participants throughout the hearing bears mention. All of the participants treated one another with the utmost respect and cordiality throughout the difficult proceedings. Despite their differences of opinion, they were always willing to attempt to resolve their differences and were successful in reaching an agreement regarding Student’s 2001-2002 placement on their own. This approach to the Hearing process is likely to result in their continued ability to resolve any future differences in a like manner.

ORDER

As previously Ordered on May 3, 2002,

The Parents shall be reimbursed for the tuition they paid for the day program at the Eagle Hill School from November 29, 1999 through the end of the 1999-2000 school year. The Parents shall also be reimbursed for the Student’s transportation in accordance with the law.

The Parents shall be reimbursed for the tuition they paid for the day program at the Eagle Hill School during the 2000-2001 school year. They shall also be reimbursed for the Student’s transportation in accordance with the law.

Payment shall be made to the Parents immediately.

By the Hearing Officer,

__________________________

Catherine M. Putney-Yaceshyn

Dated: August 28, 2002


1

Scheduled for final day on September 11, 2001, pursuant to request for expedited hearing received on August 20, 2001 (explain further)


2

Ms. Silver testified via telephone as agreed to by the parties.


3

The Student’s rubbing himself had been a significant concern in the beginning of sixth grade. Dr. Auster instructed the Student to wear an athletic supporter to make him more aware of the subconscious action. Teachers were asked to ask him if he had to go to the bathroom or send him to the special education teacher if they observed the behavior. Dr. Martin told the Parents that the Student would be removed from regular education if the behavior did not cease. Dr. Auster had written a letter to the School in September 1998 (P-10, pg. 688) explaining that the Student’s behavior was related to his generalized anxiety disorder and obsessive compulsive disorder.


4

The Mother testified that she told Mr. Waterhouse about these instances and he said he would look into it.


5

Angela Blais was the school adjustment counselor.


6

He testified that his schedule did not allow him to be present in the Student’s classes very often.


7

On that day Ms. Blais gave the Student a hall pass which he could use any time he wanted to go to see her.


8

Philip Campbell testified that the program at the Thomas Prince school was a clinically supportive program for adolescents who needed additional supports to succeed in school. The students in the program presented with issues such as depression, poor social skills and difficulty interacting with peers. The Students were of “normal intelligence.” Students in the program had an opportunity to see the school psychologist throughout the day. Mr. Campbell testified that he never told the Parents about this program. Dr. Williams testified that he was not aware of the existence of the program prior to the Hearing in this matter. There is no evidence to suggest that the Parents were ever made aware of the existence of this program at the Thomas Prince School.


9

Ms. Farley testified that there were reports in the Student’s file which indicated he had a need for handwriting.


10

Glenn Williams, William Martin, Linda Limoli, Judy Frans, Robin Milaszewski, Ann Scannell, Father, Mother, Gayle Greene, and Lincoln Waterhouse attended the Team meeting.


11

This class involved the direct teaching of strategies for keeping track of one’s belongings and for getting to class on time. Strategies were discussed and used throughout the day. Student was taught prioritizing and what he should do between to classes and when the best time for doing things was.


12

20 USC 1400 et seq .


13

MGL c. 71B.


14

David D. v. Dartmouth School Committee , 775 F.2d 411, 423 (1 st Cir. 1985). Although the applicable legal standard changed to FAPE effective January 1, 2002, the “maximum possible educational development” standard was applicable at the time that the IEPs were developed and proposed by Wachusett and therefore is the standard by which the IEP will be judged. Wachusett has not disputed the applicability of this standard.


15

Wachusetts’ closing argument cites to 20 U.S.C. § 1412(a)(10)(c)(iv)(IV), but the provision referred to is found as cited above.


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