COMMONWEALTH OF MASSACHUSETTS
DEPARTMENT OF EDUCATION
SPECIAL EDUCATION APPEALS
In re: Tewksbury Public Schools BSEA #01-1100
DECISION
This decision is rendered pursuant to the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. 1400 et seq.; Chapter 766 of the Acts of 1972, M.G.L. c. 71B; Massachusetts Administrative Procedures, M.G.L. c. 30A; Section 504 of the Rehabilitation Act of 1973, 20 U.S.C. 794; and the regulations promulgated pursuant to these statutes.
A hearing on the above-numbered case was held on October 19, 2000 at the Massachusetts Department of Education in Malden, MA. The record consists of thirty- three School documents,1 one Parent document, and approximately four hours of recorded testimony. Parents chose to provide oral closing argument at the conclusion of the hearing, and the record remained open until October 26, 2000 for receipt of the Tewksbury School Committee’s closing arguments as well as the documents requested by the Hearing Officer.
Persons present for all or part of the hearing were:
Mr. and Mrs. S. Parents of Student
Student
Michele DeAngelis Director of Student Services, Tewksbury Public Schools
Richard Sullivan Attorney for the Tewksbury Public Schools School Committee
Dorothy Pepin-Castiglione Coordinator, Lighthouse School
Sandra Sherwood BSEA Hearing Officer
ISSUE
Whether the Lighthouse School provides an educational program for Student that is reasonably calculated to maximize his educational development in the least restrictive setting, or whether an education at Tewksbury Public Schools’ Ryan School is reasonably calculated to maximize his educational development in the least restrictive setting.
PARENTS’ POSITION
Student is in a setting too restrictive for his needs, and should be returned to Tewksbury Public School’s (hereafter, Tewksbury) where he would attend the Ryan School. Admittedly, Student has emotional and behavioral needs, but they can be addressed in the public school. His difficult third and fourth grade years at the North Street School were a result of the Principal’s poor handling of Student’s behavioral problems. If Student were to attend Tewksbury’s fifth grade, it would be at the Ryan School, and he should be given this second chance. The Lighthouse School, a private school for special needs students, is overly restrictive, and has students who are inappropriate peers for Student. Many are developmentally delayed, or have emotional disabilities far more severe than Student’s. Further, the academics are not sufficiently challenging for Student.
SCHOOL’S POSITION
Student has emotional and behavioral disabilities that require a small group therapeutic environment in order for him to address skills necessary for his development. The Lighthouse School provides such a setting. He has made some progress there since his enrollment last April, but the progress is undermined by his parents’ (hereafter, Parents) clear resistance to this placement. Returning him to the public school at this time is not in Student’s best interest, for he requires additional time to address his emotional/behavioral skills. Tewksbury is willing to reconvene the TEAM in January, 2001 in order to address his progress and possible transitioning back to the public school.
STATEMENT OF THE FACTS
1. Student is an 11 year old fifth grader who has at least average cognitive skills, has achieved grade level academic skills, but has emotional and behavioral disabilities interfering with his learning. (S-20, S-5, Mother, Pepin-Castiglione)
2. Student has attended Tewksbury’s schools as a regular education student since second grade when he moved from Lowell to Tewksbury, and enrolled in Tewksbury’s North Street School where he stayed through April of 2000 of his fourth grade. (S-25, S-31) His grades during these years were rather consistent – many B’s, a few A’s, and a few C’s. However, his grades for conduct deteriorated: B- for second grade, C- for third grade, and D for fourth grade. (S-25) His fourth grade record also evidenced a deterioration during his second and third quarters in all areas of conduct, prior to his leaving the North Street School. (S-25)
3. Student’s third grade reflects “needs improvement” in the areas of respect for self and others, demonstrating self-control, and exhibiting positive interaction with others. Further, his third grade teacher reports reflect her concern for his negative attitude, his difficulties with peer relationships. She stated that his difficulties in his relationships “continue to affect his work habits and cause him unhappiness at school.” (S-28) Student’s behavior resulted in several reports. In May of 1999, it was reported that he required physical restraints on a number of occasions due to his physical abuse of others; he had to be restrained to stop him from throwing chairs and knocking things around. (S-33) On June 23, 1999, he became abusive towards children at lunch, required restraint by the Principal, and was then restrained and handcuffed to a stretcher by a police officer called to the scene, and taken to a hospital. (S-33) Tewksbury’s staff was concerned about Student’s emotional wellbeing, but not until spring of that year, were they able to persuade Parents to agree to a psychological evaluation. (S-31) The psychologist interviewed Mother and the classroom teacher, obtained teacher ratings on the Behavior Disorders Identification Scale, performed the WISC-III as well as several projective tests. On June 25, 1999, she reported several findings, confirming “significantly deviant levels of behavior … in the areas of interpersonal relations”. She reported him to be unhappy at school, and to display inappropriate behavior. She found him to be highly stressed, likely depressed, and requiring “enormous provisions of encouragement and praise” in order to remain focused on the testing. She opined that the WISC-III scores placing him in the average cognitive range may be depressed due to his anxiety. The projective testing revealed him to be angry, lonely, probably depressed, and unable to cope with the environmental demands in and out of school environments. He relies not on his good judgement, but rather on physical aggression, keeping him alienated from others, in a constant state of anger and unhappiness. Based on these testing results, she recommended psychotherapeutic intervention, a behavior management plan that would include a crisis intervention plan, and school counseling. (S-31) Tewksbury’s psychologist also obtained a Pertinent Development and Family History from Mother. In that report, Mother described Student as strong willed; he tends to be argumentative and manipulative when Parents set limits; he plays well with his sisters; he is close with relatives, but can give them hard times if he doesn’t get his way; his peer relationships are inconsistent – one moment fine, the next moment, not; and he relates better with unrelated adults than with those who know him. Mother was hopeful that with Student’s fourth grade teacher, Student would have a better year than with the third grade teacher. She had concerns however, that Student requires strict rules, and the principal should include Parents in working on Student’s behaviors. On the one hand, she willingly acknowledged that his short-comings have kept him from developing responsibility for his actions and growing in age-appropriate social development. On the other hand, she was resentful as to how the administration has been dealing with his behavior. It was the recommendation of the school psychologist that the parents and school staff should work together to develop a behavior management plan, and that they should not wait for a crisis before addressing his needs. (S-32)
4. Student’s behavioral difficulties continued during his fourth grade, although no behavioral plan or therapy was provided. (Occasional counseling was started after March of his fourth grade year.) On December 10, 1999, Student became self- abusive, slamming his hand into a concrete wall, and attempts to talk to him increased the self-abuse. He was restrained by the police officer after Student told him he would hurt himself or others. He was taken to the hospital. (S-33) These problems culminated in a TEAM meeting on April 14, 2000, at which time, the parties agreed that Student required a therapeutic day school placement, and such would be at the Lighthouse School. (S-11) During this meeting, Mother did state that he has never shown out of control behavior at home, that he had not been disciplined properly at North School, and that the school was at fault for his current condition. She did, however, agree to the placement and signed the 4 – 6/’00, and the 7/’00 – 6/’01 IEPs calling for such. (S-5, S-7, S-10)
5. In April of 2000, Student entered the Lighthouse School (hereafter, Lighthouse), a Ch. 766 approved private school in North Chelmsford. He received some counseling over the summer months, and in September, resumed his education there. Lighthouse is a day treatment program for 230 students ages 3 – 22. It is divided into two programs: one for developmentally delayed and autistic students, and one offering a psychosocial behavioral program for students at or above average intelligence. Student is enrolled in the latter. Within that program, there are several clusters; Student is in the group of approximately 48 elementary-age students, and is placed with eleven to thirteen year old students. Although all are at least of average intelligence, Student is at the higher end. Within this setting, he receives therapy sessions in a 1:1 and group setting, each once/week. Further, crisis intervention is available at all times. Finally, family therapy is provided. His homeroom class has eight students, one teacher, and two aides. The staffing consists of speech therapists, occupational therapists, a nurse, four clinicians, family therapists, and a crisis intervention team. The approach is both therapeutic and behavioral, focusing on the cognitive, affective, social, and behavioral components. Social praise as well as token economies are used. Restraints are used only after lesser approaches are ineffective: take a child aside, give a second cue, ask what will help, time out (in class and out). Behavior management plans are also implemented. Privileges are given based on a student’s level (which is based on how long he/she has been at Lighthouse, his/her understanding of the rules, achievement of goals, and age). The staff has weekly case conferences to discuss the students. For Student, the staff in fact met daily at the beginning, and now, at least weekly.
6. Lighthouse provides all of his academics (language arts, math, history, science, and physical education), but such is provided in a therapeutic milieu. Thus, his education focuses intensely on therapeutic issues. (Pepin-Castiglione) His educational goals include 1) improving emotional expression and conflict resolution skills; 2) exhibiting more flexible and adaptive ways to cope with his environment; 3-6) completing the 4 th -5 th grade English Language Arts, Math, Science, and History/Social Science curricula; 7) keyboarding, word processing and hardware and software care; and 8) improving his motor planning, peer socialization and overall physical fitness through play. (S-9) The goal #1 is addressed through objectives addressing his ability to adapt to a suggestion made by another; to build one relationship with a staff person; to identify his currently experienced feelings; and to begin problem-solving by indicating his feelings to the individuals involved. The goal #2 is addressed through objectives addressing his ability to indicate his need to another person; asking for help; accepting that they are going to do something different; and completing a challenging or frustrating task. (S-9)
7. Student’s performance at Lighthouse is mixed. His June of 2000 progress report shows very specific progress in his goals and objectives. (S-9) According to the Lighthouse staff, Student is capable and intelligent yet he gets overwhelmed and is impulsive. His out of control behavior is triggered around compliance issues – he throws papers, chairs, kicks, etc. but not intentionally. In fact, he says that he is not aware when he is doing this. He requires restraints during some of these episodes in order not to be a danger to himself/others. (His record shows that restraints are used twice daily, on average, although there can be some days with no restraints, and others with more). (S-21, Pepin-Castiglione) He has made some progress in that the number of episodes has reduced, and the intensity and length of outbursts have decreased. Further, he can more often talk through the behaviors and return back to the classes. According to the staff, Student at times appears invested and invested. However, he lately has made it clear that he will be leaving the school, and is not invested. (Pepin-Castiglione)
8. On August 24, 2000, Parents rejected Student’s current placement at Lighthouse, and they requested that he attend Tewksbury’s Ryan School. (Mother). Tewksbury immediately requested a BSEA hearing to resolve this disagreement. (S-2) In Parents’ opinion, Lighthouse has not been helpful for their son. They feel Lighthouse is “brainwashing him” by giving him work that is way to easy, and by not disciplining him appropriately. He needs to accept blame when he was wrong, and accept that things are not always “his way”. Further, they refuse to tell Parents when he was disciplined, so that they could discipline him at home also. Finally, the peers are inappropriate for their son; the students are different from Student in that they have handicaps affecting their cognitive and mental abilities. (Mother) Student asserts that the academic work is far too easy, that it is first grade work. However, when looking at the issue more closely, he stated that this year, the math, history, and science are at grade level, and only the language arts is too easy. (Student) He further asserts that he is very unhappy at Lighthouse. The frequent restraints only make him angrier. Further, many of the other students bother him, both physically and verbally. He tells them to “shut up”. Two of the students are particularly problematic for him, and he can’t “stand them”; they require too much attention. Finally, Student does not feel safe there, for he does not have confidence that staff would be able to intervene when necessary. Frequently, he volunteers to take “time out” because he is “about to explode”. (Student)
9. Parents and Student request that Student be given a chance to see if he can be successful at Tewksbury’s Ryan School. Because his problems at the North Street School centered on his relationship with that Principal, Student believes that the change in principals would allow him to handle this new school. Further, Student agrees to sign a behavioral contract in order that he would behave appropriately. He could handle the rules regarding listening to the teachers, being quiet, etc. Finally, given his strong desire to attend the Ryan School, Student’s promise to behave should be taken seriously. (Student) He did acknowledge that at least one of the students that he couldn’t stand at the North Street School is currently at the Ryan School, but he believes he can ignore him. (Student) In Parents’ opinion, they are unable to accept a private school placement unless and until the Ryan School placement is deemed unsuccessful. They recognize that Student has anger management issues requiring intervention. They further recognize that Student benefits from small groups, highly structured settings, and a behavioral programming. However, they believe that these needs can be addressed at the Ryan School. Further, they believe that Student will do better with good role models among the regular education students. They believe that Student has never been given the chance, for Tewksbury failed to notify them and include them in behavioral issues in his third and fourth grades, and failed to discipline him properly. Not until March of his fourth grade, did Tewksbury provide some counseling – sometimes twice/week, and sometimes once every other week – without an IEP. Finally, his fourth grade included around 23 students, and at least four of them had acting out behaviors, making it too difficult for the teacher to address Student’s needs. They provided him no special education services prior to sending him to Lighthouse. (Mother)
10. In the opinion of the Lighthouse staff, Student would not able to handle a regular education class of 27 students, as would be the setting at the Ryan School: his emotional needs require more flexibility than can be provided in such a setting. Further, he needs the constant therapeutic intervention, giving him feedback, teaching him problem-solving skills, etc. Although he could handle the academics, he would require many delays in order to handle emotional/behavioral issues, and in a regular class setting, Student would thereby miss much of the teaching. Further, if he were to return, he would require an aide who had a good relationship with Student in order that they work productively together. That person would require specialized training. Although the regular education students may be good role models for him, he does not yet have the necessary behavioral skills to handle such setting. (Pepin-Castiglione)
11. In October of 2000, Lighthouse conducted educational, cognitive and social-emotional evaluations. The assessors summarized their report, stating that he is plagued with anxiety and insecurity, and that this negatively impacts his productivity. They recommend a highly structured, small-group setting in which he can receive frequent feedback, appropriate positive reinforcement, and untimed tasks. In order to address his difficulty processing his feelings and exploring alternative methods of responding to them, they recommend several target insights and interventions. Specifically, they focus on experiencing, understanding, and coping with his feelings; working with expressive techniques to learn to ask for help when needed; and learning to think, feel, act and interact more independently. The evaluators recommend, among other things, that Student be an active participant in designing his learning experiences; that he develop plans for completion of projects; and that he participate in group tasks.(S-20)
12. Tewksbury’s TEAM met to discuss these Lighthouse evaluations, his progress at Lighthouse, and the appropriateness of Ryan’s school placement. Staff members from Lighthouse and from Ryan School were present, Tewksbury’s psychologist, and Parents participated in this discussion. The Team discussed the evaluations in depth, and addressed issues as to Ryan’s ability to provide sufficient staffing, crisis intervention, and supports. However, Tewksbury’s psychologist opined that even with an aide, the Ryan School can not meet his needs. That is, Tewksbury lacks the proper expertise, a safe quiet room, therapeutic intervention – Tewksbury has only one psychologist for 800 students -; and crisis intervention is the Principal’s responsibility, and he lacks the necessary expertise. (DeAngelis)
FINDINGS AND CONCLUSIONS
I find that the Lighthouse School provides Student with an educational program that maximizes his educational development in the least restrictive setting, and that Student’s desire to move back to the mainstreamed setting at Tewksbury’s Ryan School is premature at this time. My reasoning follows.
I. By all accounts, Student is a capable young boy who, if he can handle his emotional and behavioral issues, is capable of being a good and productive student and person. Further, by all accounts, Student is dealing with issues regarding anger management, accepting responsibility, accepting it when he does not get his way, and interpersonal skills. (Mother, Pepin-Castiglione, S-32, S-5) Finally, by all accounts, Student benefits from small groups, highly structured settings, and a behavioral program. (Mother, Pepin-Castiglione) Further, Lighthouse’s evaluators as well as Tewksbury’s psychologist were persuasive in their recognition that Student requires therapeutic intervention. (S-20, S-31) Parents offered no evidence that would contradict this.
The Lighthouse School provides this highly structured, small group, therapeutic and behavioral setting. It provides the individual and small group therapy, staff equipped to address the emotional/behavioral goals and objectives set out in Student’s IEP, crisis intervention, and the behavioral programming. (Pepin-Castiglione) I am persuaded that at this time, Student requires the intensity of these services in a way that they cannot be provided in a public school setting. If weekly counseling, for instance, would suffice in order to address his emotional and behavioral issues, then a public school setting could be appropriate. However, such is clearly insufficient. Rather, the evidence is persuasive that he requires a setting where the therapeutic issues are addressed throughout the day. Only in such an environment can he make the gains necessary for him to benefit from and be happy in the mainstreamed settings. (Pepin-Castiglione, S-20) It is hoped that Student will not only accept this placement, but that Student will enthusiastically learn about himself in this setting, and Parents will enthusiastically support this learning. The record is clear that this learning must occur in order that he can be successful in a mainstreamed setting. The behavioral/emotional/social issues have interfered with Student’s education and his happiness for a long time, and have only increased in severity.
Parents expressed several concerns about Lighthouse. Specifically, they expressed concerns regarding the appropriateness of the peers. Based on the evidence, it appears that Student is with appropriate peers in that they are in his age range, and are of average intelligence with emotional issues. (Pepin-Castiglione) Given the absence of any other evidence, the Parents are unpersuasive in their assertion that the grouping is inappropriate. It may be that Student is cognitively at the top of his group (Pepin-Castiglione), however, this does not render the grouping inappropriate, particularly because the emotional issues are such a predominant reason for the grouping. Lighthouse, however, should look at this issue, to make sure that Student is being appropriately challenged and stimulated academically. If more challenge and stimulation is appropriate, this may not require a regrouping, but may require enhancing his curriculum materials. Student expressed concerns regarding the level of academic work and regarding the appropriateness of restraints. The evidence, however, supports Tewksbury’s position that the academic work is appropriate. That is, Student himself recognized that, at least currently, most of the work was grade level. This fact was corroborated by Ms. Pepin-Castiglione. Student’s second concern regarding the uses of restraints was clarified by Ms. Pepin-Castiglione, i.e., the use of restraints is for safety reasons when he is out of control, and is not in itself an educational tool. Rather, the therapeutic and behavioral programming are the avenues for developing the skills.
Parents’ concerns about Student’s fourth grade year are legitimate, for clearly he should have been receiving services. That is, his third grade teacher expressed real concern, and Tewksbury’s own psychologist conducted a thorough evaluation and recommended therapy as well as behavioral planning jointly developed by school and parents. (S-31) Yet, neither was provided, and instead, the regular education teacher and principal tried to handle the situation on their own. This was insufficient, both because the services were not provided, and because it did not include the parents, as recommended. (See S-31). However, this fact that Student should have received more services last year, does not change the fact that at this time, Student requires the more intensive services offered at a place like Lighthouse.
In order to maximize Student’s learning, it is important that Student’s service providers and Parents work together, so that Parents are able to support the program and, when appropriate, carry out the learning at home. Lighthouse should make every effort to engage Parents in Student’s learning. Given the Parents current lack of support, this is not an easy task. It is suggested that family therapy be provided by a therapist with whom the parents are comfortable, whether that person be from Lighthouse or elsewhere. This therapy should be provided in order to support the family in working with Student and with his school.
I understand that in January, the TEAM will reassess the situation to determine when a transition would be appropriate. However, there would have to be significant progress before such should occur. Further, when a transition does occur, Tewksbury must not be limited to its current staffing as testified to by Ms. DeAngelis. That is, if Student requires therapy, an aide, and/or a behavior modification plan, the law requires that they must be provided. And if coordination between the therapist and teacher is appropriate, that must be provided, albeit not to the same extent as would be expected at Lighthouse.
II. Parents and Student were not persuasive in their assertion that a less restrictive placement at the Ryan School is appropriate. Even if Parents had produced testimony regarding his successful experience at camp, it would not lessen the fact that he has had several very difficult years of – and continues to have – out of control behavior. In fact, in Mother’s own description of her son, it is clear that she recognizes the problems. (S-32) She had hoped that his fourth grade would bring better success than the third grade (S-32), and yet the situation only worsened. (S-11, S-19, S-33) She asserts that more structure and discipline is the remedy. (Mother) However, I am not persuaded that this is enough. The Lighthouse evaluations, the IEP goals and objectives, Tewksbury’s own evaluation, and Ms. Pepi-Caglioni’s testimony all support structure and discipline, but stress the need for much more therapeutic interventions in order that he gain an understanding of his emotions and skills necessary to handle those emotions. A review of Student’s North Street School record, Tewksbury’s psychological evaluation (S-31), Student’s current IEP (S-5), Lighthouse’s evaluation (S-20) and behavioral intervention report (S-21), and Ms. Pepin-Castiglione’s testimony, render it clear that in a large class setting, Student could not receive the intensity of intervention, feedback, and support necessary for him to gain the essential skills. An aide could not address the goals and many objectives in his current IEP. Yet these goals and objectives are clearly appropriate for Student’s development. (See above, ¶6.) Thus, even if an aide were added to the class so that Student could attend, I am not convinced that the therapeutic services could be nearly intense enough at this time. Only with constant feedback in a highly structured therapeutic setting, will Student gain the insight and controls necessary for his maximal development. Given his many strengths, this work can only strengthen him, opening him up to many future opportunities in his educational and personal life.
ORDER
Tewksbury shall continue to provide for Student’s educational needs at Lighthouse, and ensure the provision of family therapy, as described above.
By the Hearing Officer,
_____________________
Sandra Sherwood
Date: November 15, 2000
1
Exhibits 24 – 33 were requested by the Hearing Officer and entered into the record upon their receipt on October 26, 2000. They are as follows:
S-24 10/12/’00 Team meeting notes
S-25 Student’s School Transcripts 1997 – 2000
S-26 4/’00 Iowa Test of Basic Skills
S-27 Miscellaneous school records
S-28 1998 – 1999 Teacher Comments
S-29 9/’97 Iowa Test of Basic Skills
S-30 Kindergarten Data Sheet for the Brigance
S-31 6/25/’99 School Psychological Report
S-32 6/18/’99 Parent Interview
S-33 Health Record including the 6/’99 and 12/’99 Accident Reports