COMMONWEALTH OF MASSACHUSETTS
SPECIAL EDUCATION APPEALS
Re: Student v. Westfield Public Schools
BSEA # 01-0846 and # 02-1876
DECISION
This decision is issued pursuant to 20 U.S.C. 1401 et seq. (the “IDEA”), 29 U.S.C.794, M.G.L. chs. 30A, 71B, and the Regulations promulgated under those statutes.
A Hearing in the above-referenced matter was convened on June 11,12, 13, 26, July 2, and August 1, 2002, at Catuogno Reporting Services Office, 446 Main St., 19 th floor, Worcester, MA, before Rosa I. Figueroa, Hearing Officer. The Hearing was originally requested by the Parents on March 20, 2001. On October 24, 2001,Westfield Public Schools District (hereinafter, “Westfield”) also filed a request for Hearing on the basis that the Student had stopped attending the Westfield program and was being denied a FAPE. The two actions were consolidated via an order issued on November 2, 2001. Several postponements were requested in this matter due to unavailability of the attorneys.
The Parents’ written closing argument was received on August 31, 2002 and the School’s, on September 3, 2002. The Record closed on September 3, 2002 upon receipt of the parties’ written closing arguments.
Those present for all or part of the Hearing were:
Student’s Mother
Student’s Father
Buffy Dewey Advocate for the Student/Parents
Diane Sweeney Friend of the Parents
Linda Marie Lafontaine Speech and Language Pathologist, Curtis Blake Day School
Jack La Forte, PhD Psychologist
Dr. Cheryl Muzio Clinical Psychologist
Stewart T. Graham, Esq. Attorney for the Parents/Student
Suzanne F. Malloy, CPNP Nurse Practitioner
Dr. Rukmini S. Kenia Pediatrician
Claire L. Thompson, Esq. Attorney for Westfield Public Schools
Joseph A. Dupelle Director of Special Education, Westfield Public Schools
Elizabeth Philpott Special Education Teacher, Westfield Public Schools
Darlene Fernandez Special Education Supervisor, Westfield Public Schools
Katherine Tansey, LCSW School Adjustment Counselor, Westfield Public Schools
Parents’ Exhibits 1 through 23 and 25 through 35, and School Exhibits 2, 3, 4, 5, 6, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 19, 20, 21, 22, 23, 24, 29, 30, 31, 32, 33, 35, 36, 41, 42, 43, 44, 45, 46, 47 and 49 were admitted in evidence and were considered for the purpose of rendering this decision. Parents’ Exhibit 24 and School Exhibits 1, 7, 18, 25, 26, 27, 28, 36 and 37 were withdrawn by the Parents and Westfield respectively. Objections made by the Parents to School Exhibits 34, 38, 39 and 40 were sustained and the exhibits excluded. School Exhibit 48 (the Student’s progress reports for 1 st , 2 nd and 3 rd grades) was marked for identification only.
ISSUES PRESENTED
1. Whether the IEP proposed by Westfield Public Schools for the 2001-2002 school year offered the Student a Free Appropriate Public Education designed to maximize the Student’s individual potential in the least restrictive environment appropriate to meet his needs in accordance with State and Federal Special Education Law. If not;
2. Whether the Parents are entitled to reimbursement for their unilateral placement of the Student at Curtis Blake.
POSITION OF THE PARTIES
Parents’ Position:
No dispute exits between the parties regarding the Student’s entitlement to special education services or his areas of disability. Their disagreement stems from their views over the placement options. The Parents assert that the program proposed by Westfield, could not meet the Student’s needs.
They allege that the teachers used a fourth grade curriculum, which the Student was unable to follow, especially in Math. They contend that the staff failed to communicate to the Parents problems the Student was experiencing in school with the curriculum, and they had a negative attitude towards the Student. As a result of school-related stress, the Student started to experience stomachaches and headaches in the home. According to the Parent, these were the same symptoms he experienced in January of 2001which caused the treating physician to recommend home/hospital bound instruction from February through June 2001. Therefore, the Parents had to remove the Student from Westfield in order to protect his mental health. They placed the Student at Curtis Blake in November 2001 where he made academic progress and where his emotional needs were met over the past 8 months.
The Parents assert that the Student’s needs cannot be met in the public school district and seek reimbursement for their unilateral placement of the Student at Curtis Blake including tuition, transportation and other expenses.
School’s Position:
Westfield affirms that it offered the Student an appropriate educational program in the Language-Based Classroom at the Munger Hill School for the 2001-2002 school year. This program was more comprehensive than the one at Curtis Blake in that it offered the Student OT and counseling services. While the Parents assert that the Student’s emotional wellbeing was compromised in Westfield, the Staff there did not observe any of the alarming behaviors or symptomatic issues reported by the Parent. According to Westfield, the interruption in the school programming was created by the Parents who always intended on having the Stundent attend a private school program. Westfield was willing to work with the Parent and the Student to modify the Student’s program as needed to ensure that it would continue to be appropriate for him, but the Parent was not cooperative in this process.
Westfield denies fiscal responsibility for the Parents’ unilateral placement of the Student at Curtis Blake.
FINDINGS OF FACT
· Born on 4/25/1991, the Student is an 11 year old who was entering the 4 th grade in August 2001. (PE-1) At this time, no dispute exits between the parties regarding the Student’s entitlement to special education services or the areas of his disability.
· Early evaluation by Bob Hennessy of February 11, 1998, inclusive of the Wechsler Intelligence Scale for Children-III (WISC-III), the Bender Gestalt Motor Test and Draw-A-Person, showed that the Student had difficulties in verbal conceptualization skills and math word problems. (PE-35) The results of the WISC-III were:
Verbal IQ: 87 (low average range)
Performance IQ: 75 (borderline range)
Full Scale IQ: 79 (borderline range)
Verbal subtests were found to be in the low average range and performance subtests demonstrate that Student had “severe weakness” in problem-solving and general organizational ability. Vocabulary, mathematical reasoning and mental computation were found to be low average or below. In the Draw-A-Person he presented as someone who is shy and who finds hands-on type of learning difficult. He was found to be at risk for emotional issues. Recommendations appropriate for his learning style were made. (PE-35)
· On November 4, 1999, Dr. Timothy B. Whelan, Ph.D., performed a neuro-psychological evaluation of the Student. (PE-12) He found overall neurocognitive difficulties with scores that placed him at a mid 1 st grade level in math and a later 1 st grade level in reading despite the Student having repeated the 1 st grade. His intellectual functioning on the WISC-III placed him in the low average range of intelligence with a “low average Verbal IQ of 87, a borderline Performance IQ of 79, and a Full Scale IQ of 81 at the lower margin of the low average range, at the 10 th percentile.” ( Id. ) The Student also showed visual perceptual organization difficulties. Spatial reasoning was found to be in the low average range with some evidence of attentional difficulties as evidenced by the Connors’ Continuous Performance Test, although the Verbal Memory Index suggested that the difficulty is in processing complex language rather than an attentional disorder. On the Woodcock-Johnson academic achievement tests, Student scored in the 13 th percentile for Broad Reading, and in the 4 th percentile for Broad Math. Spelling was assessed at the 2 nd grade level. Behaviorally, Student’s profile on the Connors ADS index was “below that traditionally considered for [ADD] diagnosis.” ( Id. ) Dr. Whelan described the Student as “a child insecure about the adequacy of his efforts,” who is proceeding somewhat more slowly than most youngsters with regards to his cognitive-intellectual development. His “fine motor output problems… affect written language and drawing, and his attention may be variably impersistent, particularly when he is contending with complex language.” For these reasons, Dr. Whelan recommended classroom accomodations and continuation of speech and language therapy, OT and reading, using the Lindamood and Benchmark programs. ( Id. ) He recommended reinstatement of the math services in the Student’s IEP, as well as participation in a social-skills group and consultation with an outside counselor to address the Student’s feelings of internal distress. Dr. Whelan made several other recommendations to address the sense of confrontation and conflict between the Parents and the School personnel. (PE-12)
· In a letter written on November 13, 2000 to the Parents, Dr. Whelan briefly delineated his educational concerns for the Student and expressed his support of the speech and language and occupational therapy recommendations made by Baystate Medical Center providers. (PE-13) The speech and language evaluation was completed by Daisy Mathias, M.S., CCC/SLP on September 7 and 14, 2000, who was of the opinion that the Student’s prognosis was good for improvement if school support continued. (PE-14) She found that the Student presented with receptive and expressive language difficulties and recommended language therapy with a speech and language pathologist. She also recommended that the Student continue to receive tutoring or resource help with reading and math as well as in other areas impacted by his language disorder and several in-class modifications. ( Id. ) She later recommended therapies that addressed the Student’s specific learning disabilities in the areas of visual perceptual skills. (PE-15) With respect to hearing, a Central Auditory Processing test done on November 11, 2000 by Christina Lee, M.A., CCC-A, found that the Student had “good hearing and auditory perception, except on the Staggered Spondee Word Test, where he showed difficulty with decoding and tolerance-fading memory. These areas of difficulty are often associated with language delays, delay of response, auditory comprehension problems and reading difficulties.” (PE-15; PE-16) The Occupational Therapy evaluation was performed on November 7, 2000 by Allison Spanos-Gearing, OTR/L. (PE-17) The test results evidenced that the Student functioned “two years below his chronological age level for visual motor integration” and was also a year below age equivalence for spatial relations, visual closure and positioning in space. Ms. Spanos-Gearing recommended continued occupational therapy to address these as well as fine motor skills issues. (PE-17)
· The Student began attending the 2000-2001school year at the Abner Gibbs Elementary School in Westfield, under a partially rejected IEP. (PE-21) The IEP, which called for services under a 502.2 prototype program, had originally been accepted in full by the Parent on May 19, 2000. (SE-8) On August 8, 2000, the Parent partially rejected this IEP which covered the period from September 1, 2000 through September 1, 2001. ( Id. )
· On November 20, 2000, Michelle Rogowski, M.A., CCC-SLP, Speech and Language Pathologist in Westfield wrote to the Parents expressing her opinion that the Student did not have a language disability. (PE-34) According to her, he presented with global difficulties and specific areas of weakness and therefore, would benefit from small group language therapy 1 x 30 minutes each week outside the classroom. The goal would not be to remedy a language disability but rather “to discover strategies that would support his continued learning in the classroom.” A detailed discussion of the objectives would be discussed at a Team meeting scheduled for November 29, 2000. (PE-34) Ms. Rogowski reached her conclusions based on a Speech and Language evaluation of the Student which she conducted over multiple sessions lasting between 30 and 60 minutes each, on or about May 2000. (SE-19) The evaluation date was May 3, 2000. (SE-19)
· A “Behavioral Intervention Plan” was forwarded by the Parents’ former attorney to Westfield on September 23, 2000. (PE-22) The Plan proposed intervention strategies dealing with Student’s inattention, frustration, excessive quietness and withdrawal, inappropriate displays and social responses including impulsivity, fidgeting, excessive talking and inability to interpret visual or verbal social cues and situations with staff and peers. In addition, the Plan discussed behaviors that become apparent “after Student has struggled with ongoing, unalleviated stress.” (PE-22) “[Student] will experience very real physical ailments due to stress and anxiety. At such a time that these ailments present themselves – Everything Must Stop.” Finally, the staff is instructed as to how to handle Student’s passive-aggressive behaviors in a therapeutic and instructional manner. The plan also asserts that the Student will not be punished for his passive/aggressive behaviors. (PE-22) This plan was made part of the Student’s August 2001 IEP. (Testimony of the Parent)
· On January 12, 2001, Andy Vangrove, Ed.D., evaluated the Student on Westfield’s behalf. (PE-19; SE-16) On the WISC-III the Student’s overall cognitive abilities fell within the Low Average range. He noted weaknesses in using short-term auditory and working memory to process complex verbal information; in analyzing and synthesizing complex/abstract visual information (spatial perception) and visually sequencing socially meaningful information. “It is important to note that [Student] was able to state appropriate responses to social situations yet had extreme difficulty visually recognizing the logical flow of social events.” (Id) In the TONI-3 the Student demonstrated cognitive delays in language and motor-free measure of abstract/figural problem solving. Dr. Vangrove recommended continuation of specific special education services including direct services for reading, math, OT and speech & language. He further made recommendations regarding appropriate instructional approaches including the use of graphic organizers, and drew attention to the Student’s emotional needs. Specifically, Dr. Vangrove noted Student’s anxiety about the voices he heard (some telling him to hit his parents and other kids with a board). Dr. Vangrove noted that the Student’s interest in talking about these voices would “act as a first step in feeling less alone and hopefully less afraid…” Dr. Vangrove stressed that continued counseling was imperative, and that a psychiatric evaluation should be performed inclusive of a detailed family history that could shed light on the severity of the voices as to whether they were stress related or organic. In this regard, he noted that the Student had not acted out aggressively at school, but had some anger management difficulties in the home. (PE-19; SE-16)
· According to the Parent, the Student, who was enrolled in Westfield for the 2000-2001 school year, began to experience upset stomach problems, such as nausea, diarrhea, and cramps, as well as headaches and feeling tired, between December 11, 2000 and Sunday January 31, 2001. (PE-2; Testimony of the Parent) He was also reported to display anger. All of these symptoms were reported in the home. The Parent first contacted the Student’s pediatrician, Dr. Rukmini Kenia, M.D., or her assistant Suzanne F. Malloy, CPNP, on December 11, 2000. (PE-1) After she had a consult with the physician’s assistant on that day, the Parent returned later with the Student who was seen for complaints of headache, stomach pain and loose bowel movement. The exam was normal and no illness was found. Maalox was recommended to address the stomachaches. (PE-1) The Parent again contacted Dr. Kenia’s office on January 12 (“Mother related that Student was hearing voices telling him to hurt people, counseling recommended & ER evaluation if concerns over his safety and that of others”), January 16 (Student reported as still hearing voices), January 17, January 22 and met with Dr. Kenia on February 1, 2001 (the Parent requested that the Student be placed on home tutorial and stated that it was at Dr. LaForte’s request due to anxiety related to school). (PE-1; Testimony of Dr. Kenia) The Student was not seen at the doctor’s office on any of those dates. (PE-1; Testimony of Dr. Kenia)
· On January 25, 2001, Dr. Joseph Dupelle, Westfield’s Director of Special Services, wrote to the Parent acknowledging receipt of the Parent’s letter of January 24 th informing the School that the Student’s pediatrician had advised her that the Student should remain at home and that in her opinion the Student’s IEP was not appropriatae. (SE-21) Dr. Dupelle asked the Parents to provide the school with a physician’s note for home/hospital instruction an informed her that up to two hours daily of home tutoring could be provided for up to 60 days. ( Id. ) Along with the letter, he sent them a blank copy of the Physician’s Statement for Home Hospital Placement which the pediatrician would have to complete so that the School could commence home tutoring. (SE-44) The Parent did not agree to initiation of the tutorial services for the Student until April, 2001. (SE-22; Testimony of Dr. Dupelle)
· Based on the concerns related by the Parent and under the impression that Dr. LaForte recommended home tutoring, Dr. Rukmini Kenia, M.D., issued a Physician’s Statement for Home or Hospital Placement on February 2, 2001. (PE-3; Testimony of Dr. Kenia) She recommended that the Student remain at home for the following two to three months due to anxiety attacks and school difficulties. (PE-3) Dr. LaForte testified that the Parent told him that the recommendation for home tutoring was initiated by Dr. Kenia and he supported it. (Testimony of Dr. LaForte) On February 2, 2001, Dr. Kenia recommended that the Student continue with counseling and that he undergo a full psychiatric evaluation. (PE-1) Dr. Kenia testified that she only saw the Student on one occasion in December 2000 and did not see him again through June 2002. The Student’s medical care was followed by her nurse practitioner, Suzanne Malloy, who saw the Student on four occasions during 2001 and had several telephone conversations with the Parent during that year. (Testimony of Dr. Kenia) Dr. Kenia signed the Physician’s Statement for Home or Hospital Placement at the request of the Parent. Ms. Malloy was the person responsible for completing the form. ( Id. )
· Jack LaForte, Ph.D., a therapist, has been treating the Student for anxiety disorder since December 2000. (PE-7; PE-8) While he is a licensed psychologist, he is neither a clinical psychologist nor a school psychologist and has not worked with students in a school setting. (Testimony of Dr. LaForte) The vast majority of his experience is in the area of marriage and family counseling. ( Id. ) On February 2, 2001, Dr. LaForte wrote a letter addressed “To Whom It May Concern” at the request of the Parent. ( Id. ; PE-7) The Student’s treatment had been initiated by the parents due to concerns regarding the Student’s unhappiness and difficulty dealing with anger. (PE-7) During his interview with the Student, Dr. LaForte found him to be “experiencing an acute level of stress which [he] believe[d] [was] related to the Student’s lack of success and frustration with learning at school.” ( Id. ) As a result, it was his opinion that the Student developed a “personal sense of failure, low self-esteem, poor concentration, avoidant behaviors, and feelings of hopelessness” which, accompanied by poor sleeping and nightmares, were a manifestation of a high level of distress which placed the Student at risk psychologically. ( Id. ) In his opinion, the Student’s educational needs had not been met adequately and therefore, significant changes at school were called for to avoid that frustration stemming from the learning disorders would result in a psychological disorder. He stressed that steps to remediate the Student’s educational problems should be taken forthwith. (PE-7)
· Following a Team meeting on or about February 28, 2001,Westfield forwarded an IEP on March 20, 2001, which covered the period from March 2001 through March 2002. (SE-6) It called for services at the Abner Gibbs Elementary school. The IEP called for direct services for reading 5 x 75 minutes per week by the special education staff; written language 3 x 30 minutes per week by the special education staff; mathematics 5 x 30 minutes per week by the special education staff; OT by the OT staff 1 x 30 minutes per week; and, Language 1 x 30 minutes per week by the Speech Staff. ( Id. ) Under direct services in the general education classroom, the plan called for written language 3 x 30 minutes per week by the regular and special education staff and Mathematics 3 x 30 minutes per week by the regular and special education staff. (SE-6) It also called for MCAS accommodations in all areas. This IEP was forwarded to the Parents on March 12, 2001 and was rejected in full by the Mother on March 15, 2001. (SE-6)
· Between February 2001 and June 2001, the Student remained at home. During part of that time he received home/hospital bound instruction. His instruction and special education services began in April 2001 following a letter of April 3 rd from Dr. Dupelle alerting the family that he had not yet heard from them regarding tutoring for the Student. (SE-22; Testimony of Mother and Dr. Dupelle) The Parent testified that the delay in commencing tutoring services was at the recommendation of Dr. Kenia and/or Ms. Malloy or Dr. LaForte. However, none of them acknowledged making this recommendation and Ms. Malloy and Dr. Kenia specifically denied it. (Testimony of Ms. Malloy, Dr. LaForte, Dr. Kenia) During this time the Parent forwarded the Student’s records and applied to White Oak School and the Curtis Blake Day School, two private 766 approved day schools in Massachusetts. (SE-45; SE-46; Testimony of the Parent)
· On Februry 27, 2001, Dr. Sanford Bloomberg, M.D., psychiatrist, performed a psychiatric evaluation of the Student. (PE-6) The evaluation was prompted due to a concern over the Student’s mental status after he reported to Dr. Andy Vangrove that he heard voices in his head and that in response to them he could do something bad. (PE-6) During the interview with Dr. Vangrove, the Student also stated that people and his parents hated him. (SE-6)
· Dr. Bloomberg’s review of the Student’s records documents that Student, who was a 9 years 10 months old, third grader at the time of this evaluation, had repeated the first grade because of a learning disorder. (PE-6) Neuropsychological testing performed on November 4, 1999 reported a full scale IQ score of 81, with verbal at 87 and performance at 79, on the WISC-III. An evaluation by Dr. Whalen on November 13, 2000, documented a neurological impairment remarkable for deficits in fine motor skills, attention deficits and complex language difficulty. A more contemporaneous educational testing found the Student to perform at a 4.8 grade equivalence for reading comprehension, 3.6 in writing fluency and a 3.8 in written expression. Other learning skills were found to be in the late 1 st grade level while chronologically the Student should have been in the 4 th grade. (PE-6)
· In his report, dated March 2, 2001, Dr. Bloomberg noted that the Student had been withdrawn from school because of stress which manifested with symptoms such as frequent headaches, gastro-intestinal problems, slamming doors at home and snapping at his younger brother. To Dr. Bloomberg these behaviors suggested considerable anger. (PE-6) Dr. Bloomberg opined that the Student’s stress was caused by his “coping with feelings of inadequacy because of his failure to learn in the classroom…” (PE-6) In his report, Dr. Bloomberg stated that during the evaluation, the Student “[found] it very difficult to express feelings of any kind…ha[d] few friends but expressed a desire…to play…ha[d] never visited his few friends in their homes…denied feelings of sadness…[t]here [was] a suggestion of depression in the way he responded to questions about depression. He did admit to feeling nervous in the school environment. He also admitted his anger at his brother when his brother [broke] his toys. Affect seemed somewhat shallow but within the normal range for a boy his age and in the situation he [found] himself in.” Dr. Bloombereg reported that the Student stated that he did not like seeing Dr. La Forte, but could not state why he disliked those sessions. (PE-6) The Student dismissed the “voices” which brought him to Dr. Bloomberg as “no longer present” and stated that he could no longer remember what the voices sa Id. Dr. Bloomberg could elicit no evidence of a thinking disorder. In Dr. Bloomberg’s opinion, children sometimes refer to voices to describe unacceptable thoughts and feelings. When the Student referred to voices telling him to do something “bad” during his interview with Dr. Vangrove he may have been expressing his anger outward towards people or things, which is an indication of how angry he is. This anger that the Student internalized could be another cause of the underlying depression which Dr. Bloomberg believes the Student had. Nothing in the interview with Dr. Bloombereg suggested that the voices reported earlier by the Student were indicative of a psychotic process. (PE-6)
· Dr. Bloomberg diagnosed the Student with a “Mixed-Receptive-Expressive Language Disorder” and suggested that the Student’s difficulty in expressing feelings and thoughts could be a “function of an expressive disorder verbally”. His written expression was found to be considerably better. Dr. Bloomberg also diagnosed the Student with an Adjustment Disorder with Mixed Anxiety and depressed Mood. (PE-6) As a result, Dr. Bloomberg recommended continued psychotherapy, to help the Student’s self-esteem, anger and depression and recommended no medication. He also stressed the importance of having the Student pursue a full-time educational program where his strengths and weaknesses could be addressed by teachers trained to work with children with Learning Disorders. (PE-6)
· Another speech and language evaluation was completed by Janice Brill, M.S., CCC/SLP, on April 2, 2001, at the Holyoke Hospital. (PE-18) The Student’s receptive language skills fell well below age level expectations impacting on his “ability to follow oral directions and instructions, understanding semantic relationships and processing and recalling the content and relationships contained in spoken paragraphs.” ( Id. ) On expressive language, the Student fell below age level expectations on the ability to formulate compound and complex sentences; ability to name members of a given semantic class rapidly and efficiently; ability to correctly describe a sequence of events or to answer sequence questions; and vocabulary skills including the ability to verbally express the meanings of words in definitions. Ms. Brill found that the Student often misinterpreted the question being asked or did not process the information presented, resulting in disjointed or unrelated responses. His academic skills were limited as well. (PE-18) Ms. Brill recommended 1:1 language therapy by a licensed, speech-language pathologist 45 minutes per day, 5 days per week. Therapy must address “deficits in auditory processing, auditory memory, auditory comprehension, vocabulary, verbal expression and pragmatics”, along with strengthening of written language skills and participation in a program with teachers experienced in working with a language deficient population. A home carryover component to assist with reinforcement of language was also recommended. (PE-18)
· On April 9, 2001, White Oak School informed the Parents that the Student had a successful visit to their program but that they had no openings for him at that time or in September. The Parents were informed that if he were referred by the public school, he would be placed on a wait list. (SE-46) On April 11, 2001, Linda Gillen of the Curtis Blake Day School, notified the Parents that the Student was appropriate for their program and that he could start in September 2001. (SE-45: SE-49)
· Dr. Cheryl Muzio, Psy. D., licensed psychologist in MA and VT, performed an independent evaluation of the Student on April 30, May 14 and June 9, 2001. (PE-9; SE-15) According to Dr. Muzio, she worked hard to attempt to get the Student to cooperate as he resisted testing and needed verbal cues to attend to task. (Testimony of Dr. Muzio) In the end he did well in the sessions and seemed motivated. ( Id. ) She found no evidence of cognitive slippage (the ability to be oriented to reality demands), or psychotic process. Dr. Muzio diagnosed the Student with a disorder of Written Expression, a Mathematics Disorder, a Non-Verbal Learning Disability and auditory processing deficiencies which she identified as a Communication Disorder NOS. As a result of these diagnoses, she found him to meet the federal guidelines of a student with specific learning disabilities. (PE-9; SE-15) In her opinion, the Student had the capacity to learn. (Testimony of Dr. Muzio) In reaching her conclusions, she relied on the findings of testing completed by Dr. Vangrove, Ed.D., in January 2001 inclusive of the Wechsler Intelligence Scale for Children Third Edition (WISC-III) in which the Student obtained a Verbal IQ score of 91, Performance IQ score of 80, and a Full scale IQ score of 84, which placed him in the lower end of average range of cognitive ability. ( Id. ; Testimony of Dr. Muzio) The Student was found to have “significant weakness…in visual perception and visual fine motor functioning and abstract/figural problem solving.” (PE-9; SE-15) Previously, in 1998, Dr. Hennessy had found the Student to function in the borderline range of intellectual ability. (PE-9; SE-15) Dr. Muzio found the Student to be generally cooperative, friendly, talkative and appropriate during the sessions although he consistently resisted tasks requiring written output, and acted out after the sessions. On one occasion, he “went into the bathroom, turned up the heat to 90 degrees and removed the cover-plate from the thermostat and threw it in the toilet.” Student repeated this behavior a second time and denied doing so. (PE-9; SE-15) It was her opinion that the results of the evaluation were valid and reliable. ( Id. )
· Dr. Muzio used the California Verbal Learning Test-Children’s Edition (CVLT) to measure Student’s ability to store, recall and recognize verbally presented material. On this measure of auditory learning, she found the Student to be functioning within the low average to borderline range, performing from 1 to 2.5 standard deviations below his peer group on most CVLT subtests. (PE-9; SE-15) The Student’s results on the Test of Word Reading Efficiency (TOWRE) show a low average ability in the processing of written language. Dr. Muzio states, “it is likely that [Student’s] reading related difficulties are an artifact of his auditory processing delay, effecting the quick and accurate understanding of speech sounds.” He is in the 17 th percentile of his peer group in Total Word Efficiency; his Phonemic Decoding Efficiency Score and Sight Word Reading Efficiency Score placed him in the 16 th and 27 th percentiles respectively. The Student’s Stroop Color and Word Test (Stroop) is a tool which assesses a wide-range of neuropsychological functions, “especially as they relate to the processing of information in a flexible and efficient manner.” Student’s results placed him in the low average range, which is often indicative of mild attentional deficits. The Student performed below age level on the Bender Visual-Motor Gestalt test revealing significant difficulties with “visual-perceptual and visual fine-motor deficits such as are associated with a Disorder of Written Expression and/or a Non-Verbal Learning Disorder.” ( Id. ) His difficulties in this area were moderate to severe. His test results “point to the presence of co-morbid Disorder of Written Expression and a moderate Non-verbal Learning Disability. Academically, children with this learning profile have greater challenges in written expression, including difficulty with the formation of letters, the use of grammar and syntax, as well as poor spelling and organization” and “retaining information from the blackboard, learning spatial directions (such as map reading) and remembering science and math facts, and organizing non-verbal information.” ( Id. )
· The Student’s current academic performance as per the Wechsler Individual Achievement Test (WIAT) placed him in the low average range in basic reading (standard score of 82 on Reading Composite & Basic Reading standard score of 81) “indicating the need for continued exposure to phonemic awareness and word attack skills.” (PE-9; SE-15) He performed well below average in mathematics skills with a Weschler Composite Score of 67. Overall language skills were found to be in the low average range with a Language Composite standard score of 83. In Oral Expression, which requires the student to describe scenes, give directions and explain steps, the Student scored 83, and 87 in Listening Comprehension. His overall writing skills were also below average range with a Writing Composite score of 75. The Student’s writing “revealed poor letter formation and spacing, a lack of capitalization skills, a lack of punctuation skills, which affect the readability of his productions.” ( Id. ) Dr. Muzio, concluded that the Student presented with a Non-verbal Learning Disability, a Mathematics Disorder, a Disorder of Written Expression as well as auditory processing deficiencies identified as a Communication Disorder NOS. ( Id. ; Testimony of Dr. Muzio)
· In terms of the Student’s social/emotional functioning, as per the results of the Personality Inventory for Youth, the Rorschach, and the Thematic Apperception test, Dr. Muzio found the Student to be “emotionally complex and highly stressed.” (PE-9; SE-15) The Student’s profile was consistent with a diagnosis of Anxiety Disorder Not Otherwise Specified: Mixed Anxiety-Depressive Disorder which called for psychotherapy and/or antidepressant medication. ( Id. ) He was found to be greatly stimulated by complex or intense emotions. This contributes to his feeling of emotional turmoil which he directly or indirectly expresses as anger, or may cause him to withdraw and somaticize his distress as a way of coping with the psychological pressure he feels. He has a tendency to misperceive social cues, is in a highly aroused state, presents with a rigid and ineffective coping style, and lacks sufficient coping skills to handle the intensity of his angry and sad feelings. No delusional thought process was found. (PE-9; SE-15) The DSM-IV-TR describes the Student’s diagnosis as “characterized by dysphoric mood lasting for at least one month, difficulty concentrating, irritability, worry, anticipating the worst, and low self-esteem. The symptoms cause clinically significant distress or impairment in social, academic or other important areas of functioning.” ( Id. )
· Dr. Muzio recommended placement in “small, structured, language-based classroom, which addresses [the Student’s] reading and writing difficulties as well as phonological awareness and pragmatic language.” (PE-9; SE-15) He requires a comprehensive approach that addresses his educational needs across the curriculum so as to improve his chance for a successful reintegration into a school-based learning environment. He would also benefit from regular speech and language and occupational therapy. She suggested that he learn keyboarding skills and use a word processor to complete written assignments. “Inspiration” software, or a similar program, may assist him in organizing his written work. He should be encouraged to use “verbal mediation strategy” when writing or proofreading. In math, in addition to receiving special assistance in math computation and conceptualization, the Student should use graph paper to help him organize his math work. Because of his writing difficulties, paper and pencil tasks should be limited for Student. If notetaking is required, Student should be provided a scribe or an outline of the material. Copying from the board should be limited. He should also be allowed extended time for completing tasks, provided preferential seating and should receive study skills assistance if available. ( Id. ) In her report, Dr. Muzio states that the Student requires structure with clear rules for academic tasks, including what to do when, in a step-by-step fashion. The Student’s social and emotional status should be delineated in his IEP with “care given to the nature and amount of social and emotional stress he is subjected to.” Student would also benefit from continued psychotherapy outside the school setting, in addition to having a relationship with the school counselor or psychologist addressing school adjustment issues. Antidepressant medication may be beneficial. (PE-9; SE-15)
· On May 11, 2001, the Parent confirmed a visit by Dr. Muzio to the Munger Hill Elementary School for June 4, 2001. (PE-11)
· On June 11, 2001 the Parent wrote to Dr. Dupelle requesting that the Student’s tutoring continue through the summer as compensatory education because the District did not provide instructional services to the Student for approximately 11 weeks following his removal from school. (SE-32) Dr. Dupelle responded via letter of June 13 th agreeing to continue the tutorial through July and August as it would help the Student with reintegration to the school program in September 2001. He, however, made it clear that no compensatory education was owed to the Student since the school had been willing to provide tutoring as soon as the Student was available to receive it. The lack of services had resulted from the Student’s doctor’s indication that the Student could not attend school and was not able to receive services at home. (SE-32)
· The Student’s Team met on May 10, 2001 to develop the IEP covering the period from 08/30/2001 through 06/17/2002. (PE-20) The IEP however, was not finalized until the Team meeting of August 1, 2001. (SE-3) At the time this IEP was developed the Student was receiving home tutoring pursuant to a Physician’s Home or Hospital Placement and the plan proposed to have the Student continue to receive the tutorials through the remainder of the 2000-2001 school year. (PE-20; SE-3) During the meetings, the Parent shared concerns about the Student’s social and academic success as well as the Student’s inability to perform at grade level while he should be able to do so. The Student’s increased frustration and his health and emotional well being in the school environment were also identified by her as areas of concern. The vision statement for the Student calls for him to “be able to function at or above grade level and that he be comfortable in an inclusion environment.” (SE-3) This IEP offered the Student services in the Language-Based substantially separate classroom at the Munger Hill School in Westfield, MA and an extended year program. (PE-20; SE-3)
· The service delivery grid in this IEP offered the Student direct special education and related services in other settings as follows: reading/language 5 x 90 minutes per week by the special education staff; written language 5 x 90 minutes per week by the sped staff; mathematics 5 x 60 minutes per week by the sped staff; speech and language 4 x 30 minutes per week by the speech staff; counseling 1 x 30 minutes per week by the adjustment counselor; and, occupational therapy 1 x 30 minutes per week by the OT staff; (PE-20; SE-3) Under consultation, indirect services to school personnel and parents, the plan listed social emotional services 1 x 30 minutes per week consultation by the adjustment counselor. (PE-20; SE-3) MCAS participation was subject to the following accommodations in all areas: “administer test in a small group testing… with [Student] at front of room… with the test administrator facing [Student]… verbally clarifies instructions until the administrator is satisfied that [Student] understands… allow [Student] to use a place marker… proctor reads the test where allowed… answers dictated to a scribe (scribe may not edit or alter student responses in any way.)” (PE-20; SE-3)
· Westfield’s IEP included the following information under Additional Information: “The school adjustment counselor will remain in communication with [Student’s] outside counselor; Student should have a mentor/peer to accompany him during unstructured times (ie., lunch and recess); [Student] should be met the moment he enters the building with a visit to school beginning in August; [Student’s] schedule will be clear, and structured and predictable; Staff will need to watch for somatic complaints at school; [Student] should be allowed frequent breaks; [Student] functions best when given structured choices in his daily activities; Communications between home/school through classroom teacher or counselor; Stress may cause diarrhea, [Student] should be allowed bathroom privileges; A sign of stress may include refusal to complete a task perceived as too difficult; [Student] will begin by attending homeroom and as he becomes comfortable additional special subjects will be added one at a time; Communication between Dr. LaForte and the school adjustment counselor will be established; Paraprofessional support during unstructured periods until [Student] becomes more secure in his environment; [Student] will have access to books on tape as needed; a school to home communication log will be used on a daily basis by parents and school staff; if a situation arises where Student appears to become frustrated or distraught, [Student] can call home; A behavior plan has been provided by Dr. LaForte, [Student’s] therapist; A copy of [Student’s] weekly schedule, outlined on a day to day basis, will be given to [Student’s] parents.” (PE-20; SE-3)
· The IEP incorporated the recommendations made by Dr. Muzio, the Parents’ independent evaluator. According to Dr. Muzio, the IEP was appropriate for the Student. (Testimony of Dr. Muzio)
· Westfield forwarded the IEP, placement sheet and Parents’ Rights Brochure to the Parents on August 2, 2001. (SE-5) In the cover letter, Dr. Dupelle welcomed the Parent and Student to visit Munger Hill prior to the school opening in August. (SE-5) On August 30, 2001 the Parents accepted the IEP in full, as well as the placement offered, inclusive of the changes made as of the that date with the understanding that it was “the most comprehensive educational program to provide FAPE available to [their son] within the Westfield Public school system.” (PE-20; SE-3) The IEP also incorporated the Behavior Intervention Plan developed in September 2000. ( Id. ) The Student began attending the Munger Hill School program on August 31, 2001. (PE-20; SE-3; Testimony of the Parent, Dr. Dupelle, Ms. Philpott) At the request of the Parent, the Student did not attend specials immediately, rather, he was introduced to them slowly as the Parent felt comfortable that he could do so and the Student requested to participate in them. (PE-25;SE-12; SE-13; Testimony of the Parent, Ms. Philpott) The Parent began to keep a chart on the Student on August 31, 2001. (PE-4)
· The Parent’s chart documents that the Student reported headaches or stomachaches at home on 9 occasions between September 5 and October 4, 2001. (PE-4) These problems were not reported or observed in school. (Testimony of Ms. Fernandez, Ms. Tansey) Out of a possible 29 school days between August 30 and October 4, 2001, the Student attended only 17 days of school at Munger Hill. (SE-4; Testimony of Dr. Dupelle)
· A Behavioral Intervention Sheet maintained by Westfield shows entries on three dates during the weeks of September 3 and September 17, 2001. On September 6 th , the Student made “farting” noises during two periods; on September 19 th he returned to school after having been absent the day before (according to the Parent the absence was due to the Student not feeling well the day before.) (PE-24; PE-23; SE-12; SE-15) On the 19 th he seemed tired, needed frequent on task reminders and showed some frustration during the second period; he also acted extremely silly after lunch. On September 20 th he displayed the same behaviors during the same periods as the day before. (PE-23; SE-15) His overall behavior improved again on September 21 st according to Ms. Philpott and on September 24 th the Parent noted that the Student had a pretty good day. (PE-25; SE-12) The teacher’s note for September 24th however, states that the Student had been really distracted and had asked frequently when would he be seeing Dr. LaForte. (SE-13) In the home/school journal the Parent documented that the student had difficulties completing the math assignment, which caused him frustration, and had a rough day on one occasion (9/10). One other entry the same date (9/10) documents stomach problems, and one other that he was not feeling well (9/19). ( Id. ) While the Parent communicated that the Student was very nervous and frustrated in the home, with some displays of anger (PE-26), some of these behaviors were not displayed in school. In school, the Student was comfortable to tell the teachers when he wanted or did not want to participate in specials, seemed eager to share ideas with other students and participated nicely in his classes, helped out with computers, and acted silly on about 4 occasions or when he wanted to elicit laughter from classmates. In general, in school his effort and behavior were fine. (PE-25; PE-26; SE-12) The Student however, did present in a manner concerning to the teacher in some instances. For example, after having been out of school on Thursday September 27 and Friday September 28, 2001, he returned to school looking exhausted the following Monday October 1 st . (SE-13) Ms. Philpott wrote in her journal she had spoken to the Parent about the Student “hitting a wall in math.” The Parent insisted that the Student had been exposed to the third grade curriculum the year before and did not seem to understand the teacher’s concern regarding the math being too hard for the Student’s capabilities. The Parent insisted that the teacher’s responsibility was to meet all of the Student’s emotional and academic needs and if she could not meet them then Munger Hill was not the correct placement for the Student. (SE-13)
· Dr. LaForte’s counseling notes for this period document that the Student was very happy with school as of September 6, 2001. (PE-32) On September 18 after the Parent reported incidents at home involving slamming doors, agitation and stomach aches, Dr. LaForte discussed the Student’s feelings with the Student who reported feeling “a little stressed but just a tad.” ( Id. ) Dr. LaForte’s entry of October 4 th states that the Student had been having a hard time the last few weeks at School and that he was very stressed. This report is contrary to the information in the home/school journal including the Parent’s own entry of September 24 th stating that the Student had a “pretty good day”, the teacher however, had entered a different observation in her journal for that date. (PE-25; SE-11; SE-13) Dr. La Forte has never had any discussions with any of the Student’s providers in Westfield even though during part of the 2001-2002 school year he had a release from the Parent to speak with them. (Testimony of Dr. LaForte) The Student did not return to Westsfield after October 3, 2001, however, Dr. LaForte’s entry of October 11, 2001 states that according to the Parent, the Student was “very stressed… the school problem ha[d] increased…and was very concerned and worried about the Student’s condition. ( Id. ) Dr. LaForte’s entry, regarding his session with the Student on the same date (10/11), states that the Student was in good spirits and oriented. That same entry goes on to state that the Parent reported that the Student “had been developing somatic problems related to school” and that “the pediatrician urged her to not have [Student] continue in the public school.” (PE-32)
· On September 25, 2001, the Parent wrote to inform the BSEA that she was no longer represented by counsel and requesting that the case remain open as the Student’s placement was a trial. She stated that since the Student had started school the Parents had observed behaviors and symptoms similar to those displayed in January of 2001. (SE-29) She wrote again on October 8 th stating that in keeping with the recommendations of Dr. LaForte, Dr. Muzio and the Student’s pediatrician the Student had been removed from his program at Munger Hill. (SE-30) That same date she wrote to Dr. Dupelle withdrawing her consent for any communication between Dr. LaForte and the school personnel. ( Id. )
· On October 4, 2001, the Parent called Dr. Kenia’s office and reported that the Student was having trouble with the program at Munger Hill and that he was having stomach pains again. She related that the Student had been prescribed 5 mg of Prozac by Dr. Davidoff. (PE-1) She called again on October 5 th and reported that the Student was not sleeping. The Student did not return to the Munger Hill program after October 3, 2001. (Testimony of the Parent)
· The Student was seen by Suzanne Malloy, CPNP, at Dr. Kenia’s office for a scheduled physical exam on October 8, 2001. He weighed 66 ½ pounds (4 pounds more than at the previous exam of December 11, 2000) At that time, the Student related that he got an upset stomach from school, was having nightmares and had a runny nose. (PE-1; Testsimony of Ms. Malloy) The Parent was present in the room when the Student made these statements. (Testimony of Ms. Malloy) The Parent told Ms. Malloy that Dr. LaForte had recommended that the Student leave school because of anxiety. (Testimony of Ms. Malloy) This recommendation was not made by Ms. Malloy. (Testimony of Ms. Malloy) The Parent brought the Home or Hospital Placement forms to Dr. Kenia’s office. ( Id. ) At the Parent’s request, Ms. Malloy prepared a Home or Hospital Placement form on October 9, 2001, which Dr. Kenia signed. (Testimony of Dr. Kenia, Ms. Malloy) The reason was stated to be severe anxiety secondary to school program. (PE-5; SE-2) At the Parent’ s request, an alternative language-based program (White Oaks) was recommended. ( Id. ) Until such program was available, it was recommended that the Student receive 1 to 2 hours of home tutoring per day. (PE-5; SE-2)
· The Student and the Parent returned to Dr. Kenia’s office on October 29, 2001, 21 days after the Student had been seen for his 2001 physical examination. Ms. Malloy’s notes reflect that the Student was doing well, was not having any stomach pain or night terrors, and was happy to start at the new school the following day. His weight was 65 pounds (1 ½ pounds less than during the previous exam.) The Student was seen again on November 9, 2001, two weeks after starting school at Curtis Blake. He weighed 66 ½ pounds and was reported to be doing well. ( Id. ) Ms. Malloy only examined the Student on three occasions during 2001, October 8 th for the scheduled annual physical examination, October 29 th and November 9 th as a follow-up. (Testimony of Ms. Malloy) All other entries in Parent’s Exhibit #1 were statements made by the Parent during telephone conversations or visits to Dr. Kenia’s office during which the Student was not present. ( Id. ) Prior to October 8, 2001, Ms. Malloy had last seen the Student on December 11, 2000. (Testimony of Ms. Malloy) According to the Parent the Student had made the most progress at Westfield during the time that he was tutored in the home, between April and August 2001. (Testimony of Ms. Malloy)
· On October 17, 2001, Dr. LaForte wrote a letter to the Student’s Team sharing concerns of a reemergence of symptoms that, according to him, had been in remission for several months. (PE-8) In this letter, Dr. LaForte, recommends that the Student be removed from his educational program because of the increasing harmful emotional effect it was having on the Student and to avoid an exacerbation of symptoms. ( Id. ) Dr. LaForte states that Student’s educational needs are not being met and that significant changes are required. He recommended that the Student be “placed in a highly specialized and comprehensive language-based program delivered in a setting that will not exacerbate his secondary anxiety issues.” (PE-8) Dr. LaForte did not participate in the Student’s Team that developed the IEP for the 2001-2002 school year and although he had a release from the Parent to speak with the Munger Hill staff, he did not contact anyone with these concerns. Dr. LaForte has never visited any of the programs proposed by Westfield for the Student nor has he visited Curtis Blake. (Testimony of Dr. LaForte) According to him, he wrote this letter at the Parent’s request and he stated that the Parent told him that Dr. Kenia had recommended that the Student be removed from the Munger Hill program. (Testimony of Dr. LaForte)
· On October 18, 2001, the Student’s Team gathered. (SE-33) A Notice of Proposed School District Action was forwarded to the Parents on November 1, 2001. ( Id. ) The meeting was called by the Parent who was concerned about the anxiety she felt the Student had developed because of the school, which manifested as headaches, stomachaches, diarrhea, nightmares and failure to sleep alone. School personnel including the Student’s teacher Mrs. Philpott and Ms. Fernandez, the Special Education Supervisor at Munger Hill, had not observed the anxiety reported by the Parent. They had observed the Student participate in class, ask questions when he did not understand something, do his assignments, smile and carry himself in a respectful manner. The school counselor, Ms. Tansey, reported that they were involved in a project taking pictures of antiques in his community and that he had presented himself as liking school and doing fine. (SE-33) The school was in receipt of letters from Dr. Kenia, Dr LaForte and Dr. Muzio raising concern over a possible misfit between the Student and the program. It was agreed that home tutoring would commence pending a Hearing as per Dr. Kenia’s recommendation. (SE-33)
· The Student was unilaterally placed by the Parents at Curtis Blake Day School (hereinafter, “Curtis Blake”) on November 1, 2001. (Testimony of the Parent; See also SE-49) This school is a private special education resource which provides a full day, small group, language based program for children ages 6 through 14. (PE-27) The children receive individualized education strategies fostering academic independence and self-esteem through group experiences. The students admitted to this program are generally of average or above-average intelligence who present with difficulties in the areas of reading mathematics and/or written expression. (PE-27) During the Student’s time at Curtis Blake, he worked effectively towards achieving his goals but still required a great deal of cueing in verbal and non-verbal pragmatic skills, a goal that would need to be worked on during the following school year. (PE-28; PE-30)
· The Student did not receive counseling or OT at Curtis Blake. (Testimony of Ms. Lafontaine) The only adjustment issue observed was with the Student attending gym at the beginning. Ms. Lafontaine, the speech and language pathologist at Curtis Blake, testified that she did not observe any expressions of anxiety or stress with the Student. (Testimony of Ms. Lafontaine) The Parent endorsed and supported this placement wholeheartedly. (Testimony of the Parent)
· Dr. Muzio observed the Student for 3 ½ hours at Curtis Blake, on December 11, 2001. (PE-10) He was in a small class with five other students. She observed the use of Benchmark and Story Grammar Marker graphic organizer throughout the lessons and found that the books selected for reading were at the correct instructional level for the Student. (PE-10; Testimony of Dr. Muzio) The rest of the materials were also instructionally appropriate, interesting and developmentally well chosen for the fourth grade. ( Id. ) According to her, the Student seemed to have made a successful adjustment to the program and to feel comfortable. He seemed to manage his anxiety well. Dr. Muzio opined that the classes in the program observed appeared to meet the Student’s emotional and educational needs. (PE-10; Testimony of Dr. Muzio)
· The Student’s Team met again on February 25, 2002. (SE-35) In attendance at this meeting were: 8 Westfield school personnel, Westfield’s attorney, the Parent’s Attorney, Dr. Muzio, Dr. LaForte, Diane Sweeney (a friend who is a Parents’ advocate) and the Parent. (SE-35)
· By April of 2002, staff at Curtis Blake reported that the Student was reading at a second grade instructional level as documented by the Stanford and the Houghton Mifflin Pupil Placement Test. (PE-33; Testimony of Linda LaFontaine) Areas of weakness were found to be in oral reading comprehension and silent reading comprehension. ( Id. ) Social pragmatics was another area of great concern, as the Student was found to be very impaired. In this area, in addition to modeling he required assistance with comprehension, strategies, needed to be scripted and required opportunities to practice. (Testimony of Ms. Lafontaine) Overall, the Curtis Blake staff felt that the Student had made gains at Curtis Blake. (SE-43; Testimony of Linda LaFontaine) While at Curtis Blake, the Student exhibited some attendance problems. (SE-43; SE-44) According to Curtis Blake, the Student was absent from school a total of 15 days between November 2001 and June 2002, on: December 3 and/or 18, 2001 and January 7, 8, 9, February 1, March 11, 26, 27, April 8, 9, 11, 12, May 1 and 29, 2002. (SE-41) According to the Parent he was absent on December 3, 8, 18, 2001 and January 7, 8, 9, February 1, March 11, 25, 26, 27, April 11, 12, and she had no information on May 29, 2002. (Testimony of the Mother) On the other days identified by Curtis Blake the Student had either been late according to the Parent or she could not account for the absence. ( Id. )
· The Parent is the Chairman for the District’s Special Education Parents Advisory Council in Westfield, MA. (Testimony of the Parent) She has attended special education conferences in Boston, has trained with the Federation for Children and reviews special education regulations with the group from time to time. ( Id. ) She serves as an advocate for other students and their parents. (Testimony of Dr. Dupelle)
RULINGS OF LAW
No dispute exists that the Student presents with disabilities which fall within the purview of the IDEA and M.G.L.c. 71B, entitling him to special education services. The nature of his disability, a reading disorder, a written language disorder, a math disorder and emotional issues, is not disputed. The Parties however, disagree as to the appropriateness of the program offered by Westfield. The Parents believe that the Westfield program was causing the Student emotional distress. They assert that his academic and emotional needs have been met at Curtis Blake, and therefore seek reimbursement for this placement. Westfield disputes this allegation and asserts that the Student’s needs can be appropriately met in the District. The question before me is whether the placement offered by Westfield for the 2001-2002 school year was the least restrictive environment that could assure the Student a Free Appropriate Public Education (hereinafter, “FAPE”) where the Student’s individual potential could be maximized, in the least restrictive environment appropriate to meet the Student’s needs. David D. v. Dartmouth School Committee , 775 F.2d 411 (1 st Cir. 1985). If not, then the Parents’ proposed program, Curtis Blake, would be evaluated and if found appropriate, the Parents would be entitled to reimbursement for their unilateral placement of the Student there. Upon considering the evidence before me, I am persuaded that the program offered by Westfield constituted the least restrictive environment appropriate for the Student which could maximize his potential. My reasoning follows:
The evidence shows that the Student’s skills fall in the low average cognitive range and that he presents with co-morbid disabilities that affect written expression and mathematics, as well as a non-verbal learning disability and auditory processing deficiencies, which Dr. Muzio identified as a communication disorder NOS. (Testimony of Dr. Muzio) He also presents with social/emotional issues. (Testimony of Dr. Muzio) He requires specialized services geared toward providing assistance in organization, reading and writing. The information needs to be presented at his instructional level in all subjects. (Testimony of Dr. Muzio) The program should provide small class size in a structured language-based classroom, specialized curriculum at his instructional level, opportunities for individualized instruction and an environment in which his academic and emotional needs can be met. (Testimony of Dr. Muzio) He also requires specialized services in mathematics that specifically address computation and conceptualization. In general, the Student’s program must address both his language-based and performance- based learning disabilities and should include speech and language and occupational therapy. ( Id. ; PE-9) The Student should not undergo too many transitions during the day. ( Id. )
According to Dr. Muzio, the Student should be able to learn commensurate with his peers depending on his attention and motivation to task. He would however, require more exposure to information, repetition and breaking down of the information to be presented. (Testimony of Dr. Muzio) From a social skills standpoint, it is very important for him to be with other children. Dr. Muzio stated that the Student’s “dysphoric self-concept and rigid values currently limit his potential for understanding himself and may tend to isolate him further.” Yet, he has a “strong need for close, affective human contact. Therefore, his difficulty maintaining a satisfying social network creates the potential for loneliness or reactive depression.” (PE-9; SE-15) Given these tendencies it was Dr. Muzio’s opinion that it was important for him to be involved in a school setting. In her report, she stated that the Student’s inability to complete the 2000-2001 school year in a typical fashion had taken a significant emotional toll on him. ( Id. ) Even back in the spring of 2001, she endorsed finding an appropriate school setting outside the home. (Testimony of Dr. Muzio; PE-9; SE-15)
I. Westfield’s Program :
After the Student was evaluated by Dr. Muzio during the spring of 2001, the Student’s Team met on August 1, 2001, to discuss her recommendations and draft an IEP for the Student for the 2001-2002 school year. Dr. Muzio had an opportunity to observe a program similar to the one Westfield was proposing for the Student during the summer of 2001. (Testimony of Dr. Muzio) The IEP drafted by Westfield for the 2001-2002 school year, the Student’s 4 th grade, called for placement of the Student in the Language- Based Classroom at the Munger Hill Elementary School in Westfield. (PE- 20; SE-3)
The service delivery grid in the Student’s proposed IEP for the 2001-2002 school year offered the following services: Under direct special education and related services in other settings: reading/language 5 x 90 minutes per week by the special education staff; written language 5 x 90 minutes per week by the special education staff; mathematics 5 x 60 minutes per week by the special education staff; speech and language 4 x 30 minutes per week by the speech staff; counseling 1x 30 minutes per week by the adjustment counselor; and, occupational therapy 1 x 30 minutes per week by the OT staff; (PE-20; SE-3) Under the consultation indirect services to school personnel and parents section the IEP listed social emotional services 1 x 30 minutes per week consultation by the adjustment counselor. (PE-20; SE-3) The plan further provided that MCAS participation in all areas would be subject to the following accomodations: “administer test in a small group testing… with [Student] at front of room… with the test administrator facing [Student]… verbally clarifies instructions until the administrator is satisfied that [Student] understands… allow [Student] to use a place marker… proctor reads the test where allowed… answers dictated to a scribe (scribe may not edit or alter student responses in any way.)” (PE-20; SE-3)
Additionally, Westfield’s proposed IEP stated that the school’s adjustment counselor would establish communication and remain in contact with Dr. LaForte, the Student’s outside counselor. It also provided that the “Student should have a mentor/peer to accompany him during unstructured times (ie. lunch and recess); [Student] should be met the moment he enters the building with a visit to school beginning in August; [Student’s] schedule will be clear, and structured and predictable; Staff will need to watch for somatic complaints at school; [Student] should be allowed frequent breaks; [Student] functions best when given structured choices in his daily activities; Communications between home/school through classroom teacher or counselor; Stress may cause diarrhea, [Student] should be allowed bathroom privileges; A sign of stress may include refusal to complete a task perceived as too difficult; [Student] will begin by attending homeroom and as he becomes comfortable additional special subjects will be added one at a time; … Paraprofessional support during unstructured periods until [Student] becomes more secure in his environment; [Student] will have access to books on tape as needed; a school to home communication log will be used on a daily basis by parents and school staff; if a situation arises where Student appears to become frustrated or distraught, [Student] can call home; A behavior plan has been provided by Dr. LaForte, [Student’s] therapist; A copy of [Student’s] weekly schedule, outlined on a day to day basis, will be given to [Student’s] parents.” (PE-20; SE-3)
Dr. Muzio and the Parents participated in the development of this IEP and their concerns were expressed and addressed by Westfield. Dr. Muzio’s recommendations were incorporated into the IEP as was the behavioral intervention plan prepared by Dr. LaForte. In Dr. Muzio’s opinion it was not a realistic goal for the Student to be at grade level given his disabilities and the amount of time that he had been out of school, something that had taken a significant emotional toll on him. (Testimony of Dr. Muzio; PE-9) She found that the program described by the Westfield Team in August of 2001 was appropriate to meet the Student’s needs. In reaching her conclusion she took into account her observations of a similar program model observed by her during the summer of 2001. (Testimony of Dr. Muzio)
Dr. Dupelle forwarded Westfield’s proposed IEP, placement sheet and Parents’ Rights Brochure to the Parents on August 2, 2001. (SE-5) In his cover letter, Dr. Dupelle invited the Parent and Student to visit Munger Hill prior to the school’s first day of classes. (SE-5) The Parents accepted this IEP and placement proposal in full, on August 30, 2001 and the Student commenced classes at Munger Hill on the District’s second day of school, August 31 st . (Testimony of the Parent, Dr. Dupelle, Ms. Fernandez) In their acceptance the Parents stated that as they understood it, it was “the most comprehensive educational program to provide FAPE available to [their son] within the Westfield Public school system.” (PE-20; SE-3)
Although the Parents never formally rejected this IEP, they rejected it de facto when they enrolled the Student at Curtis Blake in November of 2001.
In reaching my conclusions, I rely on the testimony of Dr. Muzio who I found to be a credible, reliable witness. Dr. Muzio diagnosed the Student with Disorder of Written Expression, Mathematics Disorder, Learning Disorder Not Otherwise Specified (Non-verbal Learning Disability), Developmental Communication Disorder Not Otherwise Specified (Auditory Processing difficulties effecting auditory decoding and tolerance-fading memory) in addition to social and emotional challenges identified as Anxiety Disorder Not Otherwise Specified: Mixed Anxiety-Depressive Disorder. (PE-9; SE-15) In her opinion, there were a lot of contributing factors to the stress felt by the Student. School was one of them but so were others such as family issues (with a sibling and with the father) and a history of mental illness in the family. (Testimony of Dr. Muzio & LaForte)
The preponderance of the evidence supports a finding that the IEP and placement proposed by Westfield offered the Student a FAPE in the least restrictive environment appropriate to meet the Student’s needs and maximize his individual potential. This program addressed all of the Student’s areas of need as identified by the evaluators, incorporated their recommendations, especially those made by Dr. Muzio and the behavioral intervention plan designed by Dr. LaForte. Contrary to the program in Curtis Blake, it also offered the Student occupational therapy and counseling. Furthermore, the staff’s willingness to work with the Student and his family and to modify the program as needed showed a good faith effort on their part to ensure that the Student would maximize his potential there. Since the staff at Munger Hill had not worked with the Student before, it was reasonable to expect that there would have been a period of adjustment. This period of adjustment was circumvented by the Parent’s precipitous removal of the Student from the program four and a half weeks after the program started.
I do not credit the testimony of either Dr. La Forte or the Parent. Dr. LaForte has no personal knowledge of the educational programs in which the Student was involved, he had the opportunity to discuss the Student with Westfield’s personnel and did not do so even when the Parent had signed releases for there to be communication between them. Given that according to him, the Student’s emotional difficulties stemmed from participation in Westfield’s program, it is concerning that little or no effort was put into acquiring more knowledge of the Student’s performance and behaviors in school. If he had a good rapport with the Student and had earned the Parent’s trust, he was in a unique position to have facilitated the Student’s transition back to school after having spent six months at home. He could have provided guidance and insight and did not do so.
It should be noted that Dr. LaForte began his testimony by reading responses to questions prepared and discussed with the Parent’s counsel and he had to be instructed to testify from his own memory. He lacked any specific educational and or special education training and nevertheless made educational recommendations for the Student. (PE-8; Testimony of Dr. LaForte) To the extent that these recommendations went beyond his area of expertise, they are not credited. He based his recommendations partly on personal observations of the Student but also relied on statements made by the Parent. There was inconsistency in the testimony that the Parent told him that Dr. Kenia had recommended that the Student be placed on home instruction, while Dr. Kenia testified that the Parent told her that Dr. LaForte had recommended that the Student should be withdrawn from school. (Testimony of Dr. LaForte; Dr. Kenia) In the March 2001 report, Dr. Bloomberg noted the Student’s statement that he did not like seeing Dr. LaForte. The Student had treated with Dr. LaForte in December of 2000. (PE-6; PE-8).
Between February 2001 and June 2001, the Student remained at home. During part of that time he received home/hospital bound instruction. His instruction and special education services began in April 2001 following a letter of April 3 rd from Dr. Dupelle alerting the family that he had not yet heard from them regarding the tutorial services for the Student. (SE-22; Testimony of Mother and Dr. Dupelle) The Parent testified Dr. Kenia and/or Ms. Malloy or Dr. LaForte had recommended that the Student not participate in educational services until emotionally stable. Dr. Dupelle testified that the Parent specifically told him that Dr. LaForte felt that the Student could not begin home tutorial. (Testimony of Dr. Dupelle) However, none of the outside service providers acknowledged making such recommendation. Ms. Malloy and Dr. Kenia specifically denied it. (Testimony of Ms. Malloy, Dr. LaForte, Dr. Kenia)
Ms. Malloy testsified that she made the recommendation for Home or Hospital placement because she thought the Student was having problems with anxiety based on all of the information available to her, including Parent’s statements, the neuropsychological evaluation performed in 1999 and the report of Dr. Vangrove. (Testimony of Ms. Malloy) The decision however, not to make the Student available for home-based educational services between February and April 2001 was the Parent’s. During this time the Parent forwarded the Student’s records and applied to White Oak School and the Curtis Blake Day School, two private 766 approved day schools in Massachusetts. (SE-45; SE-46; Testimony of the Parent) The tutorials started after the Parent notified Dr. Dupelle in a letter that Dr. LaForte felt that the tutorial could commence. (SE-32; Testimony of Dr. Dupelle)
Dr. LaForte’s interpretation of an incident that took place in his office in October 2001 is worthy of notice. He stated that during a session, while he was meeting alone with the Mother, the Student showed anger and defiance when he took the timer for controlling the outdoor lights in Dr. LaForte’s office and after playing with it, stuffed it in the toilet. Dr. LaForte interpreted this indirect way of showing anger as a sign of depression, anger and passive aggressive behavior that indicated that the Student was feeling lack of control in his life and this was a way to try to establish some control. The Student was testing limits in the Doctor’s office. (Testimony of Dr. LaForte) The Parent was also reporting more displays of anger at home. Dr. LaForte attributed these behaviors to school stress. While it appears that school was a source of stress for the Student, Dr. LaForte failed to offer any indication as to what exactly regarding school was stressful to the Student. He also did not explain whether the Student could have been displaying anger towards him and the Mother. Although he had been treating the Student for approximately 10 months by then, he did not explore the incident in detail with the Student in October 2001 or at any time thereafter. His conclusion nonetheless was that the school was responsible. He testified that the Student was not communicative during October 2001. His notes of the therapy sessions were of little help in understanding this or other issues. (PE-32) Without the benefit of a more indepth explanation as to what the Student was experiencing and the reasons for this, I cannot credit his opinion that the School was solely responsible for the Student’s emotional distress.
Regarding his notes, he did not distinguish whether certain information or comments came from the Parent, the Student or his reading of a report. (PE-32) The most concerning of these notes are the two entries of October 11, 2001. According to Dr. LaForte, the first entry was the result of a conversation with the Parent and the second, the result of his meeting with the Student. Except for one sentence on the Student, which states, “[Student] was in good spirits, animated”, the rest of this entry as well as the other one, pertains to a conversation with the Parent. The Parent stated that the Student “had been developing somatic problems related to school and that the pediatrician urged her not to have the Student continue in School.” (PE-32; Testimony of Dr. LaForte) During his meeting with the Parent, she related that the Student was very stressed and that the school problem had increased. (PE-32; Testimony of Dr. LaForte) Dr. LaForte testified that the Parent did not mention that she had removed the Student from school on October 3 rd . The Parent’s statements that the school problems had increased and that he had been developing somatic problems related to school are contrary to the direct observation of Dr. LaForte that the Student was animated and in good spirits. Dr. LaForte testified that the request to write a letter in support of the Student’s removal from school was initiated by the Parent. In this letter, he states that in recent weeks he had seen “the reemergence of symptoms which had been in remission for several months.” His office notes however, reflect that this was information provided to him by the Parent and not direct observations by him. The Student told Dr. LaForte that he had gotten a headache during math and only admitted to feeling a little stressed, “just a tad” on September 18, 2001. (Testimony of Dr. LaForte; PE-32) His entries show that during this time it was the Mother who reported that the Student was very stressed, agitated, slamming doors and having stomachaches. (PE-32) I found Dr. LeForte’s testimony to be contradictory, lacking sufficient first hand knowledge and unreliable.
Finally, during cross-examination, he was asked whether a total of approximately 15 absences from school during a 7 month period would be of concern to him. He responded that he would be concerned and would want to investigate what the problem was, and would like to look at the educational placement, explore the possibility of school avoidance, family, organization, etc. His feeling was that the school system did not provide an emotionally safe, comprehensive environment for the Student. When he learned that the program the school’s attorney was referring to was the private program, he stated that he was talking about the public school program. (Testimony of Dr. LaForte) His answer seemed to indicate that he might have considered a different one had he understood that the School’s attorney was raising questions about absences from the private school program. Westfield argued that absenteeism was a contributing factor to the Student’s academic difficulties.
The Parent’s testimony was also found to be unreliable. She was not forthcoming with her answers especially during cross-examination, was unable to answer even the simplest questions and at one point stated that the reason that she could not answer a question was that she did not remember the response she had given earlier and did not want to contradict herself. (Testimony of the Parent) The Parent’s demeanor raised questions about the sincerity of her testimony.
The evidence indicates that the Parents intended on having the Student attend the Curtis Blake Day School in September 2001, a program to which he was accepted in April 2001. (SE-45; SE-49) The Parents reluctantly accepted Westfield’s IEP after their own expert, Dr. Muzio, found the Munger Hill program appropriate for the Student in August of 2001. The Parent testified that she did not trust Westfield. It then seemed that after the first week of school, she did not support the Student’s program in Westfield. (Testimony of Ms. Philpott) During the time that the Student was placed there, she questioned the staff about instructing the Student at grade level. Later, she obtained the support of Dr. LaForte and Dr. Kenia for a home instruction after telling each one that the other had recommended withdrawing the Student from Westfield. (Testimony of Dr. LaForte, Dr. Kenia, the Parent) The Student’s symptoms as reported by the Parent, were witnessed in the home but not in the school. (Testimony of the Parent, Ms. Fernandez) In contrast, Westfield’s school personnel described a child who interacted well with the teachers and with his peers, seemed happy, smiled, was polite, friendly and respectful. (Testimony of Ms. Fernandez, Ms. Philpott, Ms. Tansey) In school he did not complain of stomach-aches or headaches, did not have a day when he needed cueing the whole day, was never in tears, did not have diarrhea and did not ask to go to the bathroom more than any of the other children. (Testimony of Ms. Philpott) Ms. Tansey, the school adjustment counselor, testified that during both formal interviews with the Student, on September 14 and September 21, 2001, she asked the Student if he was feeling anxious or overwhelmed in school and he denied it. (Testimony of Ms. Tansey) She also asked him if he was experiencing stomachaches at home and he denied having them. (Testimony of Ms. Tansey)
Ms. Tansey informally observed the Student in the classroom and in the cafeteria. According to her, the behaviors described in his behavioral chart seemed to her those typical of a young boy. These behaviors did not present as a pattern and were not so intense that they caused her to feel that they were demonstrative of something major. Rather, they represented the concerns of the teacher for that day. (Testimony of Ms. Tansey)
Ms. Philpott testified that she attempted to bring her concerns to the Parent regarding possible problems in mathematics in an attempt to avert too much frustration for the Student. (Testimony of Ms. Philpott) The Parent herself had brought up concerns that the Student was having difficulty with the math homework and that the grandmother had attempted to help him over the telephone. (Testimony of the Parent) They both could see that the Student was headed for trouble regarding increased frustration as the math curriculum became more demanding. According to Ms. Philpott, she was expected to follow a 4 th grade curriculum but the Student lacked the necessary skills and the foundation to meet the new demands. (Testimony of Ms. Philpott) She was looking to the material ahead, they were reviewing multiplication and the Student did not recognize the multiplication sign, she became concerned that he would become frustrated and his anxiety would increase. According to her, this was setting him up for failure. (Testimony of Ms. Philpott) The Parent was not open to discussing Ms. Philpott’s concerns and insisted that the Student had been exposed to the full 3 rd grade curriculum through the tutoring. The Parent reminded Ms. Philpott of her job to meet all of the Student’s emotional and academic needs and stated that if Ms. Philpott could not meet all of the Student’s needs, then Munger Hill was not the correct placement for her son. ( Id. ; SE-13) When Ms. Philpott discussed the need for the Student to use a calculator during the MCAS and that this accommodation had to be part of the Student’s IEP, the Parent responded that if the Student had mastered a skill, then he should not use the calculator for those skills. It was explained to her that the use of the calculator on the MCAS was an “all or none” accommodation. If that was the case, the Parent wanted the teacher to state this in writing and the Parent would not allow him to use that accommodation. (Testsimony of Ms. Philpott)
While the Parent questioned the Student’s math and brought it up as an area of concern with Ms. Philpott, the Parent did little to work with the school to come up with alternatives or modifications that could solve this issue. She did not communicate to the staff that she wanted modifications to the program because in her opinion the program as a whole was not working for the Student. (Testimony of Ms. Philpott, Ms. Fernandez ) Instead of working with Westfield to make the program work for the Student she withdrew him from school on October 3, 2001. The evidence is persuasive that Westfield was willing to modify the program for the Student and would have done so if it had been given the opportunity. (Testimony of Dr. Dupelle, Ms. Philpott)
Given the amount of time this Student had not participated in a school program and in light of his academic deficiencies and social/emotional needs, the Parties should have known that reentry to the school system would likely be a challenge for the Student.
Clearly missing three days of classes and being tardy on 2 other days between August 31 and October 3, 2001did not help his situation. (Testimony of Dr. Dupelle)
The Student’s transition back to a school program was a concern to the providers. The Student had been found to be constricted, insecure and fearful of new situations where there was social interaction. (Testimony of Dr. LaForte) Dr. LaForte diagnosed him with adjustment disorder with anxiety, which in his opinion was mild. (Testimony of Dr. LaForte) The Parent testified that Dr. Muzio had recommended that the Student not participate in specials until he became acclimated with school. (Testimony of the Parent)
However, according to Dr. Muzio, whose testimony I credit, it was the Mother who was reluctant to have the Student participate in a full day program in September of 2001, while Dr. Muzio was concerned that the School should not take too long to involve the Student in a full day program. (Testimony of Dr. Muzio)
In contrast, I rely on the testimony, findings and recommendations of Dr. Muzio. She was the only expert with first hand knowledge of the Student who also had an opportunity to observe a model in Westfield similar to the program proposed for the Student. She participated in the Team meeting of August 1, 2001, and contributed information which was made a part of the Student’s IEP. (Testimony of Dr. Muzio; PE-9; SE-15) Dr. Muzio found the program proposed by Westfield to be appropriate for the Student. (Testimony of Dr. Muzio) The rest of the credible testimony, as discussed supra also supports such a finding.
Westfield affirmed that it was not fiscally responsible for the unilateral placement of the Student at Curtis Blake because the Parent did not comply with the written notice requirement. 34 CFR 300.403 (c) and (d). The Federal Regulations provide a limitation on reimbursement when the Parents unilaterally place the student in a private school program. In pertinent part the Regulation provides that:
(d) The cost of reimbursement described in paragraph (c) of this section may be reduced or denied –
1. If-_
i. 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 FAPE to their child, including stating their concerns and their intent to enroll their child in a private school at public expense; or
ii. At least ten (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 paragraph (d)(l)(I) of this section;
1. If, prior to the parents’ removal of the child from the public school, the public agency informed the parents, through the notice requirements described in Sec. 300.503(a)(l) of its intent to evaluate the child (including a statement of the purpose of the evaluation that was appropriate and reasonable), but the parents did not make the child available for the evaluation; or…
(e) Exception : Notwithstanding the notice requirement in paragraph (d)(1) of this section, the cost of reimbursement may not be reduced or denied for failure to provide the notice if-
…(2) compliance with paragraph (d)(1) of this section would likely result in physical or serious emotional harm to the child… 34 CFR 300.403 (c) et seq.
The Parent argued that she was justified in removing the Student from Westfield and in proceeding with the unilateral placement at Curtis Blake because the Student’s emotional safety was compromised. 34 CFR 300.403 (e)(2). As such, the Parent argued that she fit the exception clause that she comply with the IDEA requirement to provide the district with written notice at least ten days prior to removal. The Parent further argued that at the Team meeting of October 2001, she mentioned that she wanted the Student placed at White Oaks. (Testimony Ms. Fernandez, the Parent, Dr. Dupelle) Dr. Dupelle testified that the Parent asked why the Student could not be placed at White Oaks but did not ask the District to place the Student there nor did she send anything in writing, confirming her intentions, ten days prior to placing the Student at Curtis Blake. (Testimony of Dr. Dupelle) Given the serious problems with the Parent’s credibility, it is difficult to ascertain whether the Student was in fact at risk of serious emotional or physical harm such that the Parent would be covered by the exclusion. Since the public school program is found to be the appropriate placement, the ten-day notice becomes a moot issue.
Lastly, if the Parents decide to return the Student to the District, it is important that all of the professionals inside and outside the school serving the Student maintain communication so as to facilitate the Student’s transition back to the District. The Parents’ involvement and support of the educational program is essential to the Student’s success. Since I have found that the language-based classroom at the Munger Hill Elementary School in Westfield was the appropriate program for the Student during the 2001-2002 school year, I need not evaluate the appropriateness of the program offered at Curtis Blake.
ORDER
The program offered by Westfield for the 2001-2002 school year in the language-based classroom at Munger Hill Elementary School constitutes the least restrictive environment that could reasonably meet the Student’s needs while providing for his maximum educational benefit. David D. v. Dartmouth School Committee , 775 F.2d 411 (1 st Cir. 1985). The Parents are not entitled to reimbursement by Westfield for placing the Student at Curtis Blake between November 2001 and June 2002.
So ordered by the Hearing Officer,
Rosa I. Figueroa
Dated: September 27, 2002
September 27, 2002