Worcester Public Schools – BSEA # 09-3109
COMMONWEALTH OF MASSACHUSETTS
BUREAU OF SPECIAL EDUCATION APPEALS
In Re: Worcester Public Schools
BSEA # 09-3109
This decision is issued pursuant to the Individuals with Disabilities Education Act (20 USC 1400 et seq .), Section 504 of the Rehabilitation Act of 1973 (29 USC 794), the state special education law (MGL c. 71B), the state Administrative Procedure Act (MGL c. 30A), and the regulations promulgated under these statutes.
A hearing was held on December 18, 2008 and January 7, 2009 in Worcester, MA before William Crane, Hearing Officer. Those present for all or part of the proceedings were:
Harvey Botman Neuropsychologist, Private Practice
Alisha Vargo-Wood Clinician, Dr. Franklin Perkins School
Bridget Matte Clinical Coordinator, Dr. Franklin Perkins School
Lori Todd Regional Manager, Youth Villages
Micheline Davis Social Worker, Mass. Department of Children and Families
Pamela Gemme Area Resource Coordinator, Mass. Department of Children and Families
Patricia George Coordinator of Team Evaluations, Worcester Public Schools
Paul Rosen Psychologist and Consultant to Worcester Public Schools
Stephen Gannon Director of Special Education, Worcester Public Schools
Tim Sindelar Attorney for Mother and Student
Paige Tobin Attorney for Worcester Public Schools
Maureen Pires Court Reporter
Lindsey Cyr Court Reporter
The official record of the hearing consists of documents submitted by Student’s mother (hereinafter, “Mother” or “Parent”) and marked as exhibits P-1 through P-38; documents submitted by the Worcester Public Schools (hereinafter, “Worcester”) and marked as exhibits S-1 through S-11; and approximately 16 hours of recorded oral testimony and argument.
The central question in dispute is whether Student’s behavioral, emotional, and social deficits can be appropriately addressed through a combination of a therapeutic day school and intensive home-based services or whether, alternatively, effective progress regarding these deficits can only occur through a residential placement. This case reflects a complex, closely-balanced, difficult-to-decide disagreement with much at stake, particularly for Student and Mother.1
In support of her position that her son cannot make effective educational progress without a residential school, Mother presented a highly-experienced, credible expert witness as well as her own testimony detailing the extremely challenging behaviors of her son over the past six years, and the importance of addressing these behaviors through around-the-clock special education and related services. Mother’s compelling history of Student’s behavioral difficulties and their negative impact upon Student’s education, together with credible expert testimony, make a strong argument for quickly addressing (and likely improving at least in the short term) Student’s behavior through a residential placement.
Worcester agreed that Student’s special education and related needs are very challenging and Worcester’s expert has not disputed that Student’s educational programs have not always addressed Student’s behavior effectively, but Worcester maintained that Student’s educational deficits can be appropriately addressed prospectively through his current day placement at the Dr. Franklin Perkins School, in combination with intensive home-based services currently funded by the Massachusetts Department of Children and Families. In support of this position, Worcester presented a number of witnesses, including a highly experienced, particularly credible expert witness, as well as a representative of the home-based services program known as Youth Villages.
Ultimately, the resolution of this dispute turned principally on the persuasiveness of the two competing expert witnesses. Simply stated, Worcester’s expert was more persuasive than Mother’s expert regarding the central question of whether a residential placement is required at this time in order for Student to receive a free appropriate public education. As a result, Mother failed to meet her burden of persuasion on the issue of residential placement.
In order for Student to receive the special education and related services to which he is entitled, additional therapeutic, behavioral, home-based, and consultation services are found necessary. With these additions, Worcester’s proposed IEP is determined to be appropriate.
On November 14, 2008, Student and Mother, through their attorney, filed a hearing request with the Bureau of Special Education Appeals (hereinafter, “BSEA”). The BSEA set an initial hearing date of December 19, 2008.
Worcester filed a motion to join the Massachusetts Department of Children and Families (DCF), which motion was opposed by Student and Mother. After a hearing, the motion to join was denied by a ruling dated December 10, 2008.
By agreement of the parties, the evidentiary hearing was scheduled for December 18 and 19, 2008. Due to inclement weather and by agreement of the parties, the December 19, 2008 hearing date was re-scheduled to the next available date, which was January 7, 2009. The evidentiary portion of the Hearing closed on that date.
However, on January 23, 2009, Mother filed a motion to reopen the evidentiary record. The motion cited to behavioral incidents (which occurred after the January 7, 2009 hearing date) leading to Student’s being placed residentially at the Wetzel Center, and requested that the Hearing Officer consider these incidents as relevant to the ultimate question of Student’s need for a residential placement. Worcester opposed this motion. After a telephonic motion hearing, Mother’s motion was allowed by a ruling dated January 23, 2009, with Mother given until January 28, 2009 to file additional documentary evidence and Worcester given until February 4, 2009 to file any responsive documentary evidence. No further testimonial evidence was allowed, the parties filed additional documents by the above dates, and the documents were admitted into evidence.
As agreed by the parties, written closing arguments were delayed until February 11, 2009 in order for the parties to review hearing transcripts, and the record closed on that date.
The issues to be decided in this case are the following:
1. Is the IEP most recently proposed by Worcester reasonably calculated to provide Student with a free appropriate public education in the least restrictive environment?
2. If not, can additions or other modifications be made to the IEP in order to satisfy this standard?
3. If not, would residential placement at the Dr. Franklin Perkins School satisfy this standard?
1. Student’s profile. Student is an eight-year-old 2 nd grader who resides with his Mother in Worcester, MA. Mother, who is a full-time student, is the sole caretaker of her son. (Student’s Father has always lived separately from Mother and Student.) Currently, Father has court-limited visitation with his son. Testimony of Mother.
2. Student is intelligent, has strong expressive language skills, and has a history of performing academic work at grade level. Student is good at games and sports, and has participated in sports programs in the community. He is caring and loving. He is a good friend to others and has a good relationship with family members. Testimony of Mother, Vargo-Wood, Botman; exhibits P-29.
3. Student has a primary diagnosis of Early Onset Bipolar Disorder and Mood Disorder, Not Otherwise Specified. These psychiatric disabilities are considered to be serious and severe. In addition, Student may have a learning disability as testing revealed that Student has a weakness in phonics that may deter his progress in reading. Student also has a weakness in planning and organization. Student’s overall cognitive and academic functioning are age-appropriate. Testimony of Mother, Botman, Rosen; exhibits P-10, P-31.
4. Student has been described as having oppositionality, impulsivity, hyperactivity, mood shifts, irritability, defiance, agitation, anxiety, aggression, and explosive rages. Student’s disabilities result in profound deficits in self-regulation. His aggressive, uncontrolled, and sometimes violent behavioral outbursts have been directed at teachers and aides, as well as his Mother and grandmother. Testimony of Mother, Botman, Rosen; exhibits P-10 (pages 11, 12).
5. For the first time in the spring of 2008, Student began taking medications—Clonidine and Celexa—to address his mental health needs. Currently and for the past seven months, Student has been taking Abilify (for depression) and Topamax (for irritability). Mother testified that the medications have been helpful in addressing her son’s depression but not his aggression. Testimony of Mother.
6. Current IEP. Student’s most recent IEP, which had previously been accepted by Mother and was the result of a settlement agreement entered into at the end of August 2008, calls for a private day placement at Dr. Franklin Perkins School (Perkins School). The IEP also provides summer services. When not on vacation, hospitalized, or placed at the Wetzel Center (which is a step-down from a psychiatric hospital), Student has been attending Perkins School during the school year. Student also attended Perkins School for part of the summer of 2008. Testimony of Mother; exhibits P-8, S-2.
7. Educational and behavioral history . Student’s education has taken place at a number of relatively short educational placements, in each of which Student demonstrated behavioral difficulties, including tantrums, hitting others, and a significant amount of oppositional behavior. These behaviors first manifested themselves in pre-school when Student was two years old. Testimony of Mother.
8. In the fall of 2006 when Student was five-years-old, he entered the Worcester Public Schools. He was placed in a mainstream kindergarten classroom in Worcester’s Thorndike Road School. Student was observed to be agitated in the classroom, he fought with other children, he was verbally abusive, and he was generally disruptive and oppositional. Testimony of Mother; exhibit P-32.
9. In December 2006, Student was referred for possible special education services due to his behaviors in the classroom. In January 2007 after evaluations by Worcester, Student was determined by Worcester to be eligible for special education and related services due to his emotional and behavioral needs. Testimony of Mother; exhibit P-29.
10. Pursuant to an accepted IEP, Student was placed in Worcester’s First Step program at Harlow Elementary School on January 31, 2007. This program is intended for children with behavioral difficulties. Student’s IEP indicated that his disabilities affect his educational progress as follows: “[Student] presents with behaviors that hinder his school progress. He does not respect other peoples [sic] boundaries and when angry can become disrespectful both verbally and physically.” Testimony of Mother; exhibits P-27, P-28.
11. In February/March 2007, Robert Holloway, Ed.D., conducted a psychological evaluation of Student at the request of Worcester. Dr. Holloway concluded that Student’s history and pattern of behavior was compatible with a diagnosis of Early Onset Bipolar Disorder. Dr. Holloway noted Student’s protracted temper tantrums and abrupt, rapid mood swings during the day, alternating between irritability and giddy behaviors and withdrawal, which are all classic signs of Childhood Onset Bipolar Disorder. Dr. Holloway’s report made clear Student’s need for predictability, structure, and consistency, as well as the “critical” need for “prompt and effective treatment … to protect and maintain as much as possible [Student’s] developmental trajectory.” Dr. Holloway did not testify. Exhibit P-31.
12. At the First Step program, Student’s behavioral difficulties continued and were characterized by increased violence and depression. At times, Student was required to spend time in a quiet room for up to an hour, and he expressed suicidal ideations at school and home. A school progress report, dated April 23, 2007, indicated that Student had difficulty adapting to his behavior support program, he had difficulty expressing his feelings in a safe manner, and he continued to be verbally and physically aggressive. In May of 2007, Student was suspended for hitting a teacher and throwing materials in the classroom. Worcester determined that this behavior was a manifestation of his disabilities. Testimony of Mother; exhibits P-26, P-27.
13. In May 2007, Student’s IEP Team met and decided that Student should be transferred to Worcester’s Gates Lane School (which is intended to address the needs of children with autism) since the IEP Team had concluded that Student exhibited signs of autism. Student began this program at the end of May 2007 pursuant to an accepted IEP. Testimony of Mother; exhibit P-24.
14. At the beginning of the 2007-2008 school year, Student returned to Gates Lane School for 1 st grade. Student’s behavior fluctuated, sometimes having a relatively “good” week, and then having behavioral difficulties the next week. Student was assigned a 1-1 aide who was a behaviorist. A number of behavioral plans were developed and implemented. Testimony of Mother; exhibits P-16, P-20, P-21, P-22, P-23.
15. By the winter of the 2007-2008 school year, Student’s behavior had escalated to levels similar to those observed at the First Step program during the previous school year. Student was verbally abusive to staff, he had a substantial number of tantrums, and there were behavioral explosions. Testimony of Mother.
16. A January 26, 2008 entry in a Worcester report stated:
[Student] regularly physically attacks his ABA therapists and teachers. Overall, the intensity of his outbursts has intensified to a level that is putting his classmates and teacher a [sic] risk of significant physical harm. In addition to his physical acting out behavior, [Student’s] verbal aggressions have remained an ongoing distraction within his classroom and have significantly compromised the learning environment.
17. Behavior incidents continued into the spring of 2008. For example, in early March 2008, Student picked up a pencil and said that he would stab a teacher. Worcester determined that this behavior was a manifestation of his disabilities. Testimony of Mother; exhibit P-12.
18. In March 2008, the Massachusetts Department of Children and Families (DCF) became involved as a result of its finding that Student’s father (who has never lived with Student or Mother) abused and neglected Student. DCF offered voluntary services to Mother, which she accepted. Mother requested afterschool and respite services. Services were not provided immediately. Testimony of Mother, Gemme.
19. On March 10, 2008, Student’s IEP Team met again to review Student’s placement. The Team decided to transfer Student to Worcester’s Union Hill program. Student began attending this program soon thereafter, pursuant to an accepted IEP. With small classes and a 1:1 aide, this program was intended to address Student’s difficulties through emotional and clinical support. Testimony of Mother; exhibit P-13.
20. At the Union Hill program, Student’s behavioral outbursts and aggression continued unabated. Various new approaches were tried (for example, isolating Student in the library with his aide) without success. Mother testified that approximately three times each week, she would need to pick up her son at school because he had been suspended for assaultive behavior. Testimony of Mother.
21. During this time, Student’s behavior at home was similar to his behavior at school, except not as violent. Nevertheless, during this time, approximately once each week he hit Mother and had tantrums for an hour or more. Testimony of Mother.
22. On May 6, 2008, Mother had Student privately evaluated by Harvey Botman, PhD. Dr. Botman conducted a neuropsychological evaluation over the course of approximately five hours. In addition to testing, Dr. Botman reviewed available reports and records, and spoke with Mother. Subsequent to his evaluation, Dr. Botman continued his involvement through numerous consultations to Mother and by attending several meetings at Cambridge Hospital (where Student was subsequently hospitalized) regarding Student. Dr. Botman’s report and testimony are discussed separately below. Testimony of Mother, Botman.
23. In mid-May 2008, Student assaulted a teacher and was suspended for a week. At home at approximately the same time, Student was unable to wait patiently for lunch, and he began banging the wall and then the window, with the result that he put his fist through the window. He told his Mother: “get a gun and kill me” because he felt “bad” for what he had done. Mother took her son to the children’s unit at the University of Mass. Medical Center, and on May 17, 2008, Student was transferred to the Cambridge Hospital psychiatric unit for children. Testimony of Mother.
24. Student remained hospitalized from May 17, 2008 until June 4, 2008. He was physically and verbally aggressive towards staff and expressed suicidal ideations (saying he wanted to die). When Student returned home on June 4, 2008, he was not immediately provided an educational placement and therefore remained at home during the school day. At this time, Mother was able to obtain, through private insurance, Family Stabilization Treatment (FST) services, consisting of visits by a counselor who assisted Mother with making appointments (including therapy for Student), providing respite care, and arranging for extracurricular activities for Student. The counselor worked directly with Student, attempting to gain his trust and developing a behavior modification plan that included rewards for appropriate behavior. The counselor’s sessions with Student were for one hour, twice each week during June and July 2008. FST also included 24-hour/seven-days-per-week telephone consultation. Mother utilized the telephone consultation on several occasions. Testimony of Mother.
25. During this time, Student’s difficult behaviors continued at home. He was very physical with Mother. Once, he threw his bike at her, resulting in bruises to Mother. Testimony of Mother.
26. In mid-July 2008, Worcester placed Student at the summer program at the Perkins School. Initially, Student was successful, but soon behavioral difficulties emerged requiring physical restraint. Perkins reported four incidents requiring the use of therapeutic holds. During one incident on July 17, 2008, Student climbed on bleachers in the gym, was re-directed by staff, became upset and punched staff in the stomach, and was physically restrained for ten minutes. Testimony of Mother, Vagro-Wood; exhibit P-6.
27. On July 25, 2008 while the FST counselor was in the home, Student flew into an aggressive tantrum and attacked Mother, punching her with full force in her chest. When the counselor told Student that she would call an ambulance if he did not stop his outburst, he grabbed her leg. An ambulance was called, and Student was re-admitted to Cambridge Hospital. Testimony of Mother.
28. While at Cambridge Hospital, Student continued to have aggressive incidents, but he had fewer incidents than during the first hospitalization. The August 7, 2008 hospital discharge summary indicated that in contrast to his previous hospitalization, Student showed improved insight by being able to name his problems and take responsibility for his behavior and feelings. The report then opined that this progress “suggests that with continued individual and family interventions he can modify his behavior.” The report then stated:
It is extremely important to note, however, that adults need to help [Student] by reading his non-verbal cues of distress, anxiety, disappointment, sadness, frustration and anger and use this awareness to help him articulate his feelings and needs and to negotiate conflicts. Without this support from adults, he is likely to revert to expressing all of his feelings and needs through anger and aggressive behavior.
Exhibits P-9, S-6 (pages 6-7).
29. Student remained hospitalized until August 7, 2008 when he was discharged to the Wetzel Center where Student remained until he was discharged to home in late August 2008. The Wetzel Center is a secure, highly-structured residential program that is considered a step-down from a psychiatric hospital. Testimony of Mother, exhibits P-9, S-6.
30. When Student returned home from the Wetzel Center in late August 2008, the FST services continued with counseling sessions twice each week for an hour each session, and with 24-hour/seven-days-per-week consultation available by telephone. Testimony of Mother.
31. With the assistance of an attorney, Mother entered into negotiations with Worcester regarding the special education and related services to be provided Student. On August 29, 2008, Mother and Worcester entered into a written agreement, which settled all claims through the date of the agreement. The agreement provided that Worcester would place Student at the day school program at Perkins School for the 2008-2009 school year. On September 4, 2008, Student began the Perkins School day education program as a 2 nd grader. Testimony of Mother; exhibit S-3.
32. At Perkins School, Student continued to exhibit aggressiveness at times and occasionally had a difficult time following directions. Four times in September 2008, Perkins staff utilized physical holds to contain Student when he became physically aggressive. He kicked and hit others during these incidents. Perkins staff found it necessary to remove Student from the classroom on other occasions when he became irritated and his conduct escalated. Following the use of physical holds, Student was able to process the incidents with a staff member and was able to complete a therapeutic hold worksheet before returning to class. Testimony of Mother, Vargo-Wood; exhibit P-5.
33. Notwithstanding these four incidents requiring physical holds, as well as other instances where Student became upset or rude at school, Student generally performed well, both academically and behaviorally, at Perkins during September. The daily communication log between school and home reflected that Student generally participated in class, played well with peers, and completed his school work. Testimony of Vargo-Wood, Matte; exhibit S-8.
34. Mother testified that at home in September, Student’s behavior worsened, with tantrums consisting of hitting, kicking, screaming, biting, and slamming doors and walls. The tantrums lasted as long as two hours, began increasing in frequency, and very occasionally resulted in bruises to Mother. Mother’s entries in the daily communication log indicate that there were behavioral difficulties at times. Testimony of Mother; exhibit S-8.
35. Mother testified that on September 27, 2008, she felt “completely unsafe” with her son at home when he had a particularly severe tantrum. As a result, Mother re-admitted her son to Cambridge Hospital where he stayed until he was discharged to the Wetzel Center on October 21, 2008. During his hospitalization, Student had violent episodes, including hitting Mother during a visit, but overall, his behavior was much more easily managed in the hospital as compared to his previous hospitalizations. Also, during the hospitalization, his medications were changed for the purpose of better managing his aggression and irritability. Testimony of Mother, Botman; exhibits P-2, S-5.
36. Cambridge Hospital’s discharge report indicated that Student, upon discharge on October 21, 2008, was “slightly improved.” The report recommended an “out-of-home placement.” The report is unclear as to the reasons for this recommendation, and no one from Cambridge Hospital testified at the hearing in this matter. The report further explained, however, that even if Student does well in a therapeutic placement, both Student and Mother “are likely to continue habitual modes of interacting with one another in stressful situations until they learn new, more productive ones. This will require professional coaching, lots of practice and lots of support during the process.” Exhibits P-2, S-5 (page 5).
37. Student stayed at the Wetzel Center from October 21, 2008 until he was discharged to home on December 8, 2008. At the Wetzel Center, there were a number of incidents involving physical aggression, and staff occasionally utilized physical restraints to contain Student. However, the Wetzel Center discharge summary indicates that Student did “very well” in school and overall responded well to redirections. The summary further noted that although Student initially had difficulty adjusting to the routine and frequently earned consequences for assaultive behavior, swearing, and yelling, he was nevertheless able to make steady progress while at the Wetzel Center, with a decrease in aggressive and disruptive behaviors during his stay. Testimony of Mother; exhibits P-1(page 2), P-3.
38. Prior to Student’s discharge from the Wetzel Center, DCF (through its family team process) reviewed Student’s case and decided not to place Student in a residential program, concluding instead that intensive home-based services (through its Youth Villages services) should be tried first. The DCF team decision was the result of a series of meetings (October 6, 9, and 24 and November 5 and 15, 2008), a review of records, and conversations with Mother, hospital staff, and Wetzel Center staff. There were three principal reasons for DCF’s decision: (1) DCF had its vendor (Wayside) complete a CANS assessment (discussed separately below) which concluded that Student could be maintained safely and appropriately in the home with additional supports, (2) the Youth Villages services are more intensive than the FST home-based services that had been utilized previously by Mother, (3) the Youth Villages services have been demonstrated to be successful in keeping many behaviorally-involved children out of a residential placement. At the time of the Hearing in this dispute, it continued to be DCF’s opinion that Student could be appropriately cared for in the home, without the need for residential services from DCF. Testimony of Gemme, Davis; exhibit S-7.
39. The CANS assessment, dated November 17, 2008 and completed at the request of DCF, noted at the outset that Student and Mother are “extremely close.” The report further stated that Mother and Student are both intelligent and that Mother “has always been involved in caregiving and has positive coping skills to manage the stress of caring for a child with special needs.” The assessment recommended that Student and Mother would benefit from in-home services which would address Student’s struggles with oppositional behaviors. Continuation at Perkins as a day student was also recommended, as Perkins has been able to maintain his behaviors. The assessment did not find that residential services were necessary. Exhibit S-7.
40. After Student’s discharge from the Wetzel Center on December 8, 2009, Student returned to his day program at Perkins School on December 9, 2008. Perkins School staff testified on January 7, 2009 that Student is able to complete 85 to 100% of his academic work and that he is working at grade level with the accommodations set forth within this most recent IEP. Perkins staff testified that since returning to Perkins School after his discharge from the Wetzel Center on December 8, 2008, Student has been irritable at school at times, but he has not hit anyone, there have been no significant behavioral incidents at Perkins, and no physical restraints have been needed. Perkins staff are prepared to collaborate with any collateral caregivers so that Student’s behavioral difficulties can be addressed in a consistent manner. Testimony of Mother, Vargo-Wood, Matte; exhibit S-8.
41. Upon Student’s return to his home from the Wetzel Center on December 8, 2008, Mother began utilizing DCF-funded, home-based services through Youth Villages, a private vendor. The Youth Villages services included meetings within the home with a Youth Villages counselor for one hour, three times per week. The counselor assigned to Mother has a bachelor’s degree, she has at least two years of relevant experience, and she has received initial training and on-going supervision and support from Youth Villages. Each counselor has a caseload of up to five families. The counselor has a supervisor who is on call 24 hours, seven days per week. The Youth Villages services can be increased as needed, with more staff time spent in the home. Testimony of Todd, Mother, Gemme.
42. The Youth Villages counselor was present in the home during one of Student’s behavioral episodes. Mother testified that she did not find the counselor to be effective in addressing her son’s behavior. Testimony of Mother, Todd.
43. The Youth Villages services also include 24-hour, seven-days-per-week telephone consultation services—for example, to walk a parent through a process for addressing a child’s behavior incident. Telephone consultation can result in the Youth Villages counselor (or back-up staff) coming to the home at any time of the day or night, as needed. On one occasion, Student began physically attacking Mother because “he did not get his way.” Mother called the 24-hour telephone service and received a call back 20 to 30 minutes later. More recently, Mother has received call backs within five to ten minutes. Youth Villages did not offer to send someone to the home on these occasions, nor did Mother ask that anyone be sent to her home because Student had calmed down by the time she received the call back. Testimony of Mother, Todd; exhibit P-7.
44. The Youth Villages regional manager testified that the underlying philosophy of the Youth Villages program is to support a parent in whatever ways will be effective, so that the parent is able to handle difficult behavioral situations and maintain the child in the home without the need for residential placement. Parental support can also include strengthening the school-home link, accessing community services, and respite. In the event that a child is hospitalized, Youth Village staff work to minimize the length of the hospital stay. As a general rule, the Youth Villages program lasts for four to six months, but can be extended as needed. The Youth Villages regional manager testified that Student’s social, emotional, and behavioral needs (including his physically aggressive behavioral difficulties in the home) fit the profile of children appropriately served by Youth Villages. Testimony of Mother, Todd.
45. As part of its services, Youth Villages develops a behavior plan for each child for the purpose of understanding and addressing the causes of the behavioral difficulties. The behavior plan is adjusted every two weeks. Youth Villages seeks to coordinate with the child’s school program so that the Youth Villages services and interventions complement and support what is being done in school. Testimony of Todd.
46. With Mother’s participation, Youth Villages has developed a “master treatment plan” for Student. Mother agrees with the goals and objectives stated within the plan. Mother believes that residential services are needed, but she accepted the Youth Villages home-based services, believing that they may assist her with her son while he is living with her. Testimony of Mother, Todd; exhibit S-4.
47. Mother testified that since returning home from the Wetzel Center on December 8, 2008, her son has continued to be aggressive towards her, occasionally getting angry (for example, if he loses a game) and hitting her. She explained that her son’s behavior is impulsive and, within a matter of seconds, he can become unmanageable. At times when Student becomes upset, he can catch himself or he asks to take space to calm himself down; and at times, Mother is able to talk him down. At other times, Student has not been able to control himself, and Mother has not been able to de-escalate him. After a serious behavioral episode, Student often is sad and sometimes cries, he expresses remorse for what he has done, and he tries to move past the episode. Testimony of Mother.
48. Mother testified that recently her son has expressed irritability at least once an hour. These episodes can then turn into an incident involving physical aggression. For example, Mother noted that during the three week period from December 18, 2008 to January 7, 2009, Student had approximately 20 to 30 incidents during which he hit her. These incidents typically also included Student’s throwing things, verbal abuse, or yelling. Five of these behavioral incidents turned into tantrums lasting 30 minutes or more, during which Mother was unable to calm him down or re-direct him. Student has attacked Mother during these tantrums, with Mother resorting to holding her son on the floor in order to protect herself from injury. Other than a very occasional bruise, Mother has not been injured by her son as result of these behavioral incidents. Mother testified that over the years, her son’s aggression has intensified, in part because he has gotten bigger (currently, he is almost five feet tall and weighs over 110 pounds) and because he has learned how to punch harder.
49. Subsequent to the last day of the evidentiary Hearing in this dispute (January 7, 2009), Mother requested, and was granted by the Hearing Officer on January 23, 2009, the opportunity to supplement the record with several documents reflecting behavioral difficulties subsequent to January 7, 2009. Mother submitted her own affidavit (exhibit P-36), records from the Wetzel Center (exhibit P-37), and restraint reports from Perkins (exhibit P-38). In response, Worcester submitted an affidavit from the Youth Villages regional manager (exhibit S-10) and a report from its expert, Dr. Rosen (exhibit S-11). Events reflected within these documents are summarized immediately below.
50. At Perkins School, Student was physically restrained on January 13, 2009 for a period of 21 minutes after he was verbally abusive, refused to leave the classroom, kicked a chair, and punched a staff person several times. Student was physically restrained again on January 16, 2009 for a period of two minutes after he was verbally abusive, threw a pencil, kicked a chair, and punched a staff person. Exhibit P-38.
51. On January 17, 2009, Student was hitting Mother. Mother went into another room and shut the door. Student continued hitting the door and “was out of control.” Mother called the Worcester police, but when the officers arrived, her son had calmed down. Exhibit P-36.
52. The next day (January 18, 2009), Student began hitting Mother in a shopping mall. Mother told her son to stop hitting her or she would return a game that she had just purchased for him. When he did not stop hitting, the game was returned, and Student “lost all control.” Two security guards restrained Student, and he was taken by ambulance to the University of Massachusetts Medical Center, from which he was taken to the Wetzel Center where he was admitted. Mother incurred several bruises from being hit by her son on January 18, 2009, as well as a strained or pulled muscle. Exhibits P-36, S-10.
53. At the Wetzel Center, Student was physically restrained on January 20, 2009 for a period of time within the range of 11 to 20 minutes. Student had become “extremely assaultive to staff” and was determined to pose a serious threat to staff due to the level of force used in his kicking and punching. During the restraint, Student was yelling or swearing, and he attempted to bite staff. Exhibit P-37.
54. At the Wetzel Center, Student was physically restrained again on January 23, 2009 for a period of time within the range of zero to five minutes. Student had been visiting with his Mother on the unit when he was told that she would be leaving shortly. Student began yelling and throwing furniture around the conference room. Student was escorted to the time out room where he became assaultive to staff. During the restraint, Student was combative, swearing/yelling, crying, assaultive, and attempted to bite. Once in restraints, he de-escalated quickly. Exhibit P-37.
55. At the Wetzel Center, Student was physically restrained again on January 27, 2009 for a period of time within the range of 11 to 20 minutes. Student had become aggressive and violent, including kicking, punching, and trying to bite staff. During the restraint, Student was combative, swearing, crying, and assaultive. Exhibit P-37.
56. During the time period from 2004 through 2008, Mother has privately engaged therapists to work with her son, but Mother testified that the therapy appeared to have little effect on his emotional and behavioral difficulties. Testimony of Mother. In addition, Mother engaged a neuropsychologist (Dr. Botman) to provide an evaluation and consultation, and Worcester retained a consultant (Dr. Rosen), both of whom testified as expert witnesses. Dr. Botman’s written neuropsychological report, the testimony of Dr. Botman and Dr. Rosen, and Dr. Rosen’s written report commenting upon the incidents occurring after the close of the evidentiary hearing are all summarized below.
57. Neuropsychological assessment and testimony of Harvey Botman, Ph.D. At Mother’s request, Dr. Botman conducted a neuropsychological evaluation of Student on May 6, 2008. He has continued his involvement through numerous (at least twelve) consultations to Mother and attendance at three Cambridge Hospital meetings, he has reviewed records and other documents subsequent to his evaluation, and he testified at the hearing in the instant dispute. Testimony of Botman.2
58. Dr. Botman’s testimony and written report make clear that Student has good cognitive skills, but he also has severe deficits in social and emotional functioning together with disruptive and dangerous behavior. Student demonstrates sudden mood changes, violent tantrums, high level of irritability, and periodic bouts of low mood. Testimony of Botman; exhibit P-10.
59. Dr. Botman testified that in order to make educational progress in school, Student requires a specialized school that includes 24-hour psychotherapeutic services, structure, and supports for children with severe social, emotional, and behavioral deficits. Dr. Botman noted that since his evaluation of Student in May 2008, Student has required three psychiatric hospitalizations, and the intensity of Student’s behavioral outbursts has increased, with Student becoming more violent at home. Dr. Botman did not recommend a residential placement in his written report of May 2008, but he testified that Student’s more recent history has persuaded him that Student now requires a residential educational placement. Testimony of Botman; exhibit P-10.
60. In his testimony, Dr. Botman explained why he believes that Student requires a residential placement. In Dr. Botman’s opinion, Student does not have the capacity to reign in his impulses and contain his emotional outbursts. Dr. Botman believes that Student’s behavior is driven by inner turmoil, and Student does not have the skills to manage his own behavior. Dr. Botman testified that in order to make progress emotionally and behaviorally, Student requires a residential therapeutic placement where a team of people will make Student their focus 24-hours-per-day and where necessary therapeutic structure and supports can be consistently applied around the clock with the result that Student always knows what he is working on and how he is supposed to respond. Dr. Botman concluded that a residential setting is the only place where Student can receive the consistent and concerted effort sufficient to address his behavioral difficulties. Testimony of Botman; exhibit P-10.
61. Dr. Botman testified that Student’s Mother, as any parent, simply cannot provide the clinical and behavioral intervention required for Student to make it through the day safely and appropriately. Moreover, in Dr. Botman’s opinion, without a residential educational placement, Student’s therapeutic day school is separated from his afternoon and evening services, and this bifurcation inevitably results in different service providers and multiple approaches. Dr. Botman stated that Student’s behavioral history demonstrates that this approach has not and is not likely in the future to address successfully Student’s emotional and behavioral needs since it sets up complexities that go beyond Student’s abilities to benefit from the behavioral interventions. Dr. Botman also noted that Student does not have the awareness or motivation to benefit from talking about events that happened in the past. As a consequence, all effective therapy must occur in the present—that is, when the event is happening—and every treatable moment needs to be utilized. This, too, makes it imperative in Dr. Botman’s opinion that Student be placed in a residential program where consistent behavioral intervention is available and can be implemented around-the-clock each day. Testimony of Botman; exhibit P-10.
62. Dr. Botman testified as to the relationship between Student’s behavior and his educational development. He explained that central to Student’s making effective educational progress is his learning to modify his behaviors and to appropriately interact with others within and outside of the classroom. In Dr. Botman’s opinion, it is essential that Student’s emotional and behavioral difficulties be addressed so that Student can develop the study skills and ability to self-regulate in order to benefit from his education. In addition, Dr. Botman noted that Student’s behavioral history has demonstrated repeated instances where his behavioral difficulties interfered with his education—for, example, resulting in Student’s needing to be removed from the classroom, suspended from school, and psychiatrically hospitalized for significant periods of time. Student has defeated the efforts (and has been unable to use the support) of caring teachers and staff, with the result that he has not benefited educationally from the variety of specialized therapeutic and educational programs and services offered by Worcester since kindergarten. Dr. Botman added that Student’s behavior has now become “frightening” and threatens Mother’s safety. The traditional educational and therapeutic interventions short of residential placement have now been utilized and found lacking. In Dr. Botman’s experience, a child with Student’s profile is likely to make educational progress only in a residential setting. Testimony of Botman; exhibit P-10.3
63. The urgency of finding an appropriate placement for Student is emphasized in Dr. Botman’s written evaluation report. Dr. Botman’s report makes clear the importance of addressing appropriately and as soon as possible Student’s severe deficits. The report explains:
It is imperative that [Student] be placed in a therapeutic special education program that is geared to the needs of elementary school students who suffer serious psychiatric disabilities. [Student] desperately needs such a program to progress beyond the turmoil and failure he has experienced so frequently so far at school. Such a program will offer the therapeutic structures, supports and expertise that he needs to move forward in his academic and social–emotional functioning.
Exhibit P-10 (page 12).
64. Dr. Botman followed his evaluation report with a written supplement, dated October 15, 2008. In this supplement, Dr. Botman explained that during the intervening period of time (since the date of his evaluation report), Student’s behavior has been very difficult, including dangerous reactive-impulsive behaviors, such as hitting, kicking, and throwing objects. Dr. Botman also noted the series of three psychiatric hospitalizations. Taking the position that the longer Student goes without needed intensive, comprehensive, and continuous therapeutic services, the more “ingrained and intractable his difficulties will be,” Dr. Botman urged that Student be immediately placed in a residential school, Exhibit P-35.
65. Testimony and written report of Paul Rosen, PhD. Dr. Rosen testified as Worcester’s consultant. Dr. Rosen observed Student in school (for half an hour near the end of the 2007-2008 school year), spoke with staff who have worked with Student, reviewed relevant records (including hospital discharge summaries, Wetzel Center discharge summaries, Dr. Botman’s report, Worcester reports, and IEPs), and heard the testimony of all other witnesses in the instant dispute prior to testifying himself (Dr. Rosen was the last witness at the hearing). Dr. Rosen has also provided previous, informal consultation to Worcester staff regarding Student when Student was placed in the Gates Lane program. Dr. Rosen has never talked with or formally evaluated Student; he has not spoken with anyone at Cambridge Hospital, Wetzel Center, Youth Villages, or DCF regarding Student; nor has he spoken with Student’s current therapist or current psychiatrist. Testimony of Rosen.4
66. Dr. Rosen testified that Student presents as a young boy with very challenging, serious emotional disturbance, that includes a substantial deficit regarding self-regulation of behavior. He noted that Student is strong-willed, oppositional, impulsive, and capable of making poor judgments. In Dr. Rosen’s opinion, Student may be reasonably diagnosed with Early Onset Bi-Polar Disorder, but particularly because of Student’s young age, it is not possible to diagnose Student with certainty.
67. Dr. Rosen testified that for a child with Student’s profile, very careful programming is required. In Dr. Rosen’s view, it is not unusual to need to try different approaches before being able to identify an effective way of working with a child with Student’s profile. Dr. Rosen also noted the many factors (including medications, home situation, teachers, how well he is doing in school) that can impact Student’s behavior. Dr. Rosen stated that it is therefore not unusual that it is taking Worcester a relatively long period of time to find an appropriate combination of programs and services for Student.
68. Dr. Rosen testified that Student has very concerning behaviors that can be difficult to work with, especially for Mother, or any other parent. He noted that Student is old enough, big enough, and smart enough to be difficult for Mother to contend with—for example, Mother cannot address his behaviors by simply picking him up. He explained that Student is likely to continue to need physical holds at times and he will likely continue to be capable of behavior that is problematic and hurtful. Dr. Rosen explained that under these difficult circumstances, the parent-child bond can be damaged since it is difficult for any parent to maintain a warm and caring relationship with a child with these behavioral difficulties.
69. Dr. Rosen testified that notwithstanding Student’s profile and behavioral history, he views Student as presenting only a relatively “low” level of risk of harm to himself or others, including Mother. Dr. Rosen compared Student to other, more dangerous children—for example, those who use weapons, are suicidal, or run away. Dr. Rosen noted, in particular, Student’s hitting—he observed that the hitting is upsetting and difficult for Mother to deal with but is not generally considered dangerous. Dr. Rosen’s review of records further indicated to him that Student’s isolated, relatively dangerous behavior is not increasing. For example, he noted that the several incidents that carry more risk of harm (stabbing with a pencil, breaking a glass window, and throwing a bike) occurred some time ago, and there have not been any comparably-dangerous incidents since May 2008. Dr. Rosen found it to be a positive development that of the recent 20 or more behavioral incidents reported by Mother in her testimony, only five of them resulted in a major tantrum and in the other incidents, Student was able to calm down by himself or with Mother’s assistance.
70. Dr. Rosen testified that he does not believe that Student presents the profile of a child who requires residential services in order to make effective progress regarding his social, emotional, and behavioral difficulties. In Dr. Rosen’s opinion, the following factors argue against the need for residential placement: Student’s relatively young age, his average to above-average intelligence, his communication skills (allowing him to process events after they occur), his caring attitude towards others, his relatively low level of dangerousness, and his having a capable and caring parent who can learn to respond effectively to her son’s behavior. Dr. Rosen testified that with Student at Perkins School during the day, with intensive home support for Mother through Youth Villages, and with carefully-planned and consistent interventions to address Student’s behavior at school and home, the prognosis for Student’s educational development is good, and he is likely to learn to be successful both in school and at home.
71. Dr. Rosen testified that intensive, home-based services not only support Student and Mother in the home, but also serve to limit the length of any future hospitalization because Student can more quickly be returned home where supports are in place. Dr. Rosen added that there remains much work to be done to ensure that everyone working with Student, including Perkins School, Youth Villages, and Mother are all “on the same page” in responding to Student’s behavior.
72. Dr. Rosen also testified that Student’s current placement at the Perkins School provides appropriate educational services. Dr. Rosen opined that this placement has a greater therapeutic component and therefore is better suited to Student, as compared to each of Student’s previous educational placements.
73. Dr. Rosen further testified to a number of significant disadvantages of a residential placement in general and for Student in particular. First, Dr. Rosen noted that within a residential program, many of the other children would likely be more disturbed and have worse behavior than Student. In a residential setting, Student would likely model his behaviors on these other children and their more disturbing behaviors.
74. Second, if Student is separated from his Mother through placement in a residential school, it is very likely that his relationship with Mother will be weakened. The longer Student remains in a residential placement, the weaker will be Student’s bonds to his Mother, his friends, and his community, thus making it more difficult for Student to return successfully to living in the community with his family. This is a particular concern for Student because of his relatively young age—the bond between Student and his Mother has not likely fully developed, making the bond more vulnerable to being substantially weakened by a residential placement. At Student’s age, the nurturing that naturally takes place within his home cannot be replicated within a residential setting, and this parental nurturing is particularly important for Student’s appropriate development. Dr. Rosen explained how difficult it is to make up, at a later time, for these negative consequences of residential placement.
75. Third, a residential placement for Student will likely be effective at managing his behaviors through consistent structure and intervention. But, when Student eventually leaves the residential placement, he would likely find it difficult to maintain this improved behavior without the structure, surveillance, and consequences that are found within the residential placement. In addition, because Student’s behavior will likely improve within a residential setting, this will argue for maintaining him within this setting for a longer period of time. The longer he spends in this setting, the more he is likely to become dependent on the residential placement and the weaker the bonds between Student and his Mother, friends, and community. Dr. Rosen opined that even a six-month residential placement for Student would result in unavoidable harm to his relationship with Mother.
76. Fourth, although there is milieu therapy on-going within a residential placement, the actual therapy provided to Student in this setting would be limited, with the result that for significant periods of time, Student would not be receiving any treatment. In comparison, if Student remains within a family setting, there is on-going sharing of life experiences, teaching values, setting limits, and other experiences that continually occur and are likely to be of substantially greater educational and therapeutic value to Student.
77. Finally, because of the behavioral challenges presented by Student at home, there is a need for significant family work, including giving Mother additional skills for working with Student. Dr. Rosen explained that with Student in a residential placement, as compared to living at home, the family work is less effective because Student is home for less time, thereby providing less opportunity to work with Student and Mother within the home setting.
78. Dr. Rosen made clear in his testimony that the above arguments should not preclude a child from being appropriately placed residentially, but rather argue strongly in favor of being very careful to avoid residential placement when appropriate educational services can be provided within a less restrictive setting. In Dr. Rosen’s opinion, Student has a positive prognosis for making effective educational progress, including improving his behavior, while continuing to live at home and attending his current day placement at Perkins School. Dr. Rosen also stated that if Student can be maintained safely at home, he will be able to access his educational program in the Perkins day program as well or better than he would were he in Perkins’ residential placement.
79. Dr. Rosen concluded by finding Worcester’s currently-proposed IEP to be appropriate with the addition of individual therapy for half-hour each week, group therapy for half hour each week, and a behavior plan at Perkins School. Dr. Rosen noted that the behavior plan for school and home do not necessarily need to be identical but must be consistent with each other.
80. In addition to his testimony, Dr. Rosen reviewed and provided his written “clinical reactions” regarding the additional evidence provided by Mother’s affidavit of January 21, 2009, and the reports from Perkins School and the Wetzel Center. The affidavit and reports are summarized above in the Facts section of this Decision (hereinafter, “Facts”) at pars. 51 through 55. In his written “clinical reactions” report, Dr. Rosen noted, at the outset, that the Youth Villages services that were intended to help diffuse crises in the home and community, were not accessed by Mother until after Student was at the emergency mental health services. Dr. Rosen was critical of Mother’s decision to take her son to the mall to buy a video game the day after he assaulted her. Dr. Rosen wrote: “At the very least, this decision reflects a significant skill deficit in [Mother’s] parenting. Her unfortunate choice demonstrates that it remains imperative she receive intensive parent education and make decisions consistent with the behavior intervention plan.” Exhibit S-11 (par. 2).
81. Dr. Rosen was even more critical of Mother’s actions at the mall, particularly her decision to require her son to return the video game because he did not stop hitting her. Dr. Rosen wrote, in part: “For [Student], this decision was extraordinarily ill conceived. Her decision to put her young son with self-regulation problems in this situation is difficult to explain by simply stating it reflects poor parenting skills. [Mother’s] actions were extremely provocative and triggering. The resulting hospitalization is directly attributable to [Mother’s] insensitivity to her son’s emotional issues.” Exhibit S-11 (par. 3).
82. Dr. Rosen found Student’s recent behavior to be consistent with previous reports and statements of Student’s behavior, as made by several witnesses during the evidentiary Hearing. He opined that if Mother allows Youth Villages to assist, hospitalizations should have minimal impact on Student’s ability to access his education plan. Exhibit S-11 (pars. 4, 5).
Introduction . It is not disputed that Student is an individual with a disability, falling within the purview of the federal Individuals with Disabilities Education Act (hereinafter, “IDEA”)5 and the Massachusetts special education statute.6 The IDEA was enacted “to ensure that all children with disabilities have available to them a free appropriate public education [FAPE] that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living.”7 In addition, FAPE is defined by the IDEA to include state educational standards,8 and Massachusetts special education law includes a state FAPE requirement.9
The Supreme Court has explained that under the federal statute, FAPE is intended to require special education services that provide a “basic floor of opportunity” to a disabled student,10 allowing the student to access public education .11 Access must be meaningful,12 but need not maximize a student’s educational potential.13
Massachusetts and federal educational standards require that the individualized education program (hereinafter, “IEP”) be designed to enable the student to make effective progress.14 Massachusetts standards also provide that the special education services be designed to develop the student’s educational potential.15 Worcester’s proposed IEP must be custom tailored to meet Student’s “unique” needs so that he will receive sufficient educational benefit.16
Under both federal and Massachusetts law, FAPE must be provided in the least restrictive environment. The phrase “least restrictive environment” means that, to the maximum extent appropriate for the particular student, the student is to be educated with other students who do not have a disability.17 A residential placement is properly considered more restrictive than a day program, even when the day program (for example, at the Perkins School) places Student in a substantially separate special education program.18
The appropriate standard, as reflected within several First Circuit Court of Appeals decisions, for determining whether a day placement would satisfactorily address Student’s educational needs, or, conversely, whether Worcester is required to provide Student with a more restrictive, residential placement is whether the educational benefits to which Student is entitled can only be provided through around-the-clock special education and related services, thus necessitating placement in an educational residential facility.19 Parent has the burden of persuasion that residential educational services are required in order for Student to receive FAPE.20
Student’s social, emotional, and behavioral deficits . At issue in the present dispute is the manner in which Worcester should address Student’s social, emotional, and behavioral deficits. The First Circuit has made clear that, as a general rule, the IEP must also address all of a student’s special education needs, whether they be academic, physical, behavioral, emotional, or social. As the First Circuit has explained:
[An IEP] must target ” all of a child’s special needs,” Burlington, 736 F.2d at 788 (emphasis supplied), whether they be academic, physical, emotional, or social. See Roland M., 910 F.2d at 992 (explaining that “purely academic progress . . . is not the only indici[um] of educational benefit”); Timothy W. v. Rochester, N. H. Sch. Dist., 875 F.2d 954, 970 (1st Cir.) (observing that “education” under the Act is broadly defined), cert. denied, 493 U.S. 983, 110 S.Ct. 519, 107 L.Ed.2d 520 (1989); U.S. Dep’t of Educ., Notice of Policy Guidance, 57 Fed. Reg. 49,274 at 49,275 (1992) (stating that an IEP must address “the full range of the child’s needs”). . . . In the last analysis, what matters is not whether the district judge makes a series of segregable findings, but whether the judge is cognizant of all the child’s special needs and considers the IEP’s offerings as a unitary whole, taking those special needs into proper account.21
At the same time, special education and related services need not address “problems truly ‘distinct’ from learning problems.”22 Thus, the need to address Student’s social, emotional, and behavior deficits depends on whether these deficits can appropriately be considered separable from the learning process.23
It is not disputed that Student has serious social, emotional, and behavioral deficits and that these deficits impact negatively upon his learning. Worcester’s IEPs and reports reference repeatedly the need to address these deficits as part of Student’s special education, as well as their significant negative impact upon Student’s participation in school. For example, Student’s current IEP (for the period 6/20/08 to 6/19/09) states that [Student’s] disability affects his ability to be successful in the inclusive setting due to his behavior impulsivity and emotional outbursts.” Exhibits S-2, P-8 (IEP2 page 1 of 1). Under the heading “How does the diability(ies) affect progress in the indicated area(s) of other educational needs?”, the IEP describes Student’s behavioral, emotional, and social difficulties that impact upon his education. Id. (IEP3 page 1 of 1). Goals 1 and 2 of this IEP address Student’s behavioral and social deficits and their impact upon his functioning within an academic setting. Goal 3, which addresses academics, notes that academic demands on Student have been lessened because of his behavior. Id. For a discussion of earlier IEPs and written reports, all of which make clear the close relationship between Student’s social, emotional, and behavioral deficits, and his learning, see Facts, pars. 10, 11, 14, 16, 19.
Further support for the conclusion that Student’s behavioral, emotional, and social needs are intertwined with his educational needs comes from a letter dated May 29, 2008 from Cambridge Hospital to Worcester Public Schools during the course of one of his hospital admissions. The letter stated, in part: “the team feels that [Student’s] emotional disability seriously undermines his capacity to achieve his academic potential in his current educational setting. … His educational plan should directly include and address his emotional and social development as a priority.” Exhibit P-11.
I further find that in order to address effectively Student’s emotional and behavioral deficits, these deficits must be responded to appropriately not only during the school day but also during other hours of the day. There are two bases for this finding.
First, it is apparent that Student has, at times, evidenced behavior within the home that is sufficiently dangerous or out of control so as to require psychiatric hospitalization. For example, over the course of the past nine months, Student has been psychiatrically hospitalized three times, and after each hospitalization, he was placed at the Wetzel Center (a locked, secure residential facility that serves as a step-down from a psychiatric hospital). Most recently, Student was placed at the Wetzel Center without first being hospitalized. The most recent hospitalization, combined with Student’s stay at the Wetzel Center, lasted approximately seven weeks. The hospitalizations and stays at the Wetzel Center are highly restrictive placements that substantially interrupted Student’s educational program, as implemented through his IEP, at the Perkins School, and removed Student from his home and community where he has been receiving intensive home-based services. Each of the three hospitalizations and most recent admission to the Wetzel Center were precipitated by violent episodes within the home or community. This makes clear that failure to address appropriately Student’s emotional and behavioral difficulties outside of the school day is likely to impact significantly the continuity and integrity of his educational placement. Testimony of Rosen, Botman. See Facts, pars. 23, 24, 27,28, 29, 35, 37, 52.
Second, the undisputed evidence was that in order to reduce Student’s aggression and improve his behavior in general, the professional as well as non-professional caregivers (including Mother) must respond to Student in a consistent manner, regardless of the time of day or location of the incident. This requires the development and coordination of consistent behavior plans for Student that can be implemented both during the school day and after school. Otherwise, Student will encounter different expectations in different contexts for the same behavior, thereby undermining the effectiveness of each part of his educational plan as it pertains to addressing Student’s behavioral difficulties. Testimony of Rosen, Botman. See Facts, pars. 60, 70.
I now turn to the question of what type of educational placement is necessary in order for Worcester to meet appropriately and in the least restrictive environment, Student’s social, emotional, and behavioral needs during the school day and during after school hours.
Appropriateness of the Perkins day program . There is agreement among the parties that the Perkins School is an appropriate placement for Student during the school day. It is also not disputed that, as compared to each of his previous educational placements, Perkins provides a greater therapeutic component and is well-suited to address Student’s social, emotional, and behavioral deficits.
Mother and Worcester entered into a settlement agreement last summer calling for Student’s placement at Perkins day program, and both Mother and Worcester desire that Student continue to attend Perkins during the day. The acknowledged appropriateness of the Perkins placement, and the likely inappropriateness of previous placements (as acknowledged by Worcester’s expert, Dr. Rosen) make Student’s school behavioral history prior to admission to Perkins of limited relevance to the current dispute, which addresses only prospective claims. Testimony of Rosen, Botman; exhibit S-3.
In this regard, the opinion expressed by Mother’s expert (Dr. Botman) in his neuropsychological report is relevant not only to the appropriateness of the Perkins placement but also to the likelihood that this placement can help to effectively address Student’s behavioral needs. When this report was written (May 6, 2008), Dr. Botman believed that residential services were not necessary to address successfully Student’s array of disabilities. The report stated, in relevant part:
It is imperative that [Student] be place in a therapeutic special education program that is geared to the needs of elementary school students who suffer serious psychiatric disabilities. [Student] desperately needs such a program to progress beyond the turmoil and failure he has experienced so frequently so far at school. Such a program will offer the therapeutic structures, supports and expertise that he needs to move forward in his academic and social-emotional functioning.
Exhibit P-10 (page 12). It is not disputed that the Perkins day program meets Dr. Botman’s recommendation for a therapeutic special education program.
Although Student was placed in the Perkins summer program and although he began attending Perkins on September 4, 2008 for the 2008-2009 school year, Student has not been at Perkins for a significant period of time because of his hospitalizations and stays at the Wetzel Center. This makes it difficult to judge the effectiveness of the Perkins day program solely on the basis of past experience. Nevertheless, it is encouraging that since Student returned to Perkins on December 8, 2008, there have only been two incidents requiring physical holds—one hold for 21 minutes and the other hold for two minutes. Perkins has generally reported through testimony and written report that notwithstanding isolated behavioral incidents, Student has been doing well academically and that Perkins has been able to manage Student’s behavior. Perkins has not yet developed a behavior plan for Student that is consistent with his home-based behavior plan, and the development and implementation of such a behavioral plan may assist Perkins staff to reduce Student’s behavioral outbursts. Testimony of Matte, Vargo-Wood; exhibit S-8. See also Facts, pars. 31, 32, 33, 50.
I find that although Student may have had significant educational failures through day educational programs that were not able to meet his needs prior to the Perkins School placement, the Perkins School program offers an appropriate educational day program whose effectiveness is likely to increase, particularly if Student’s time spent in a hospital or the Wetzel Center is reduced and if behavioral plans utilized during the school day and after school hours are coordinated and consistent with each other.
Addressing Student’s social, emotional, and behavioral deficits outside of school . Earlier in this Decision, I found that it is not possible to address effectively Student’s emotional and behavioral deficits without doing so both during and after the school day. I now consider the essential question in the instant dispute—that is, the choice between addressing Student’s after-school-hours behaviors through home-based services or through a residential educational placement.
This requires that a very difficult judgment be made. After all of the evidence is considered and keeping in mind the legal standards summarized above, a choice must be made between two compelling perspectives, with each perspective supported by the testimony of a highly experienced expert witness and with much at stake, particularly for Mother and Student.
On the one hand, one cannot doubt the extreme challenge Mother faces on a moment-to-moment basis while her son lives at home. Student’s conduct can quickly escalate to the point where he is uncontrollably hitting Mother, requiring Mother to physically restrain her son and at times even having to lie on top of him as a form of restraint. Mother testified credibly that there are times when she does not feel safe in her own home with her son. Although Mother has not been seriously injured, she has suffered from bruises and a pulled or strained muscle on several occasions, and one cannot discount the possibility of a serious injury as a result of Student’s behavior. From Mother’s perspective, there is little doubt that a residential placement would be extraordinarily helpful, providing a respite from her son’s behavior at home, together with a reasonable expectation that Student’s behavior would be addressed appropriately, around-the-clock in a therapeutic environment, with the likely result that Student’s behavior would improve substantially. The lengthy period of time (six years) during which Student’s aggressive behaviors have continued further supports the need for a substantially-more intensive placement, such as a residential school. Any resolution of the instant dispute must carefully consider this evidence.
On the other hand, however, is the question whether, from Student’s perspective, he actually requires the restrictiveness of a residential educational program in order to address his emotional, social, and behavioral deficits so as to make effective and meaningful educational progress prospectively. If Student’s behaviors can be safely and effectively addressed while he is living at home, rather than through residential services, there are very substantial benefits to be gained. This dispute revolves around the central question of whether additional or different home-based services and supports offer a reasonable likelihood of success and therefore should be tried prior to choosing the most restrictive placement (a residential placement) or, alternatively, whether all reasonable alternatives to a residential placement have been sufficiently considered or tried, leaving residential placement as the only viable alternative to addressing Student’s emotional and behavioral deficits.
After careful consideration of the evidence, including in particular the expert testimony provided by each party as well as Mother’s testimony, I am persuaded, and so find, that Student’s continued educational placement within a day program, together with intensive home-based services and coordinated behavior plans, is reasonably likely to result in Student’s making effective and meaningful educational progress regarding his social, emotional, and behavioral deficits. Worcester must make certain adjustments and additions to the IEP, as detailed below, in order that the home-based services and behavior plans are appropriate and effective.
This finding is premised on the belief that (1) residential placement at this juncture of Student’s life carries substantial risk of sustained, long-term educational harm to Student, (2) Parent is a capable mother, she is committed to her son, she has a stable home, and she is a good candidate for learning and utilizing home-based parent education and behavioral support services, (3) because of Student’s profile, he also is a good candidate for benefitting from home-based services, (4) Parent and Student have not yet been provided appropriate and effective home-based services, and (5) Student’s behavior is not so dangerous as to require immediate residential placement. For these reasons, I believe that it would be premature to conclude that residential services offer the only appropriate and effective vehicle for addressing Student’s social, emotional, and behavioral deficits. At the same time, it is imperative that Student’s behaviors in the home and community be addressed quickly through effective services. I address each of these points in more detail below.
The implications, in general, of effective in-home behavioral support services to a child, such as Student, who has serious emotional and behavioral disabilities and who is at risk of residential placement, was made clear by Judge Ponsor in 2006 in the Rosie D. v. Romney decision .24 In Rosie D ., children with serious emotional disabilities brought a class action against the state of Massachusetts, alleging that Massachusetts had failed to provide them with services required by Medicaid, with the result that many children were being unnecessarily placed into residential facilities. Judge Ponsor found that plaintiffs had offered credible evidence that in-home behavioral support services are a medical necessity for many children with a serious emotional disability, particularly those who suffer extreme “functional” impairment. Judge Ponsor then described the results of Massachusetts’ failure to provide adequate in-home behavioral support services:
[T]housands of Massachusetts children with serious emotional disabilities are forced to endure unnecessary confinement in residential facilities, or to remain in costly institutions far longer than their medical conditions require. The shortage or inadequacy of in-home support services often results in removal of a fragile child from his or her home. While such a removal is a heartbreaking consequence in and of itself, it is equally clear that the unnecessary isolation of a child in an expensive residential facility has well-documented, objective clinical sequelae. These are reflected in exacerbated symptoms including: failure at school, inability to relate positively to others, isolating depression, and assaultive or other anti-social behavior. …
Prompt, coordinated services that support a child’s continuation in the home can allow even the most disabled child a reasonable chance at a happy, fulfilling life. Without such services a child may face a stunted existence, eked out in the shadows and devoid of almost everything that gives meaning to the gift of life. Defendants’ failure to provide adequate assessments, service coordination, and home-based supportive services for Medicaid-eligible children with serious emotional disturbances was glaring from the evidence and at times shocking in its consequences.25
Echoing Judge Ponsor’s concerns, Dr. Rosen provided extensive and compelling testimony of comparably damaging implications to Student’s education (in the broadest sense of this word) were he to be placed in a residential facility, particularly at his present age of eight years old. And, similar to Judge Ponsor above, Dr. Rosen was optimistic that appropriate home-based services for a child such as Student may preclude the need for residential placement. Facts, pars. 71, 73-77. The Second Circuit Court of Appeals has admonished decision-makers to “proceed cautiously” before recommending or ordering a residential educational placement,26 and this word of caution is particularly apt in the present dispute.
The evidence was persuasive that Parent is a capable and devoted mother to her son. For example, the CANS assessment concluded that Student and Mother are “extremely close,” that Mother and Student are both intelligent, and that Mother “has always been involved in caregiving and has positive coping skills to manage the stress of caring for a child with special needs.” All relevant testimony pointed to Mother’s cooperativeness and desire to do what was best for her son. Testimony of Davis, Vargo-Wood, Rosen; exhibit S-7. See also Facts, par. 39.
The evidence was also persuasive that Mother and Student are good candidates for utilizing and benefiting from home-based services, notwithstanding his, at times, highly aggressive and difficult behaviors. For example, Dr. Rosen noted that Parent is a capable and caring mother who can learn to respond effectively to her son’s behavior. The November 17, 2008 CANS assessment concluded that Student and Mother would benefit from in-home services which would address Student’s struggles with oppositional behaviors. The August 7, 2008 Cambridge Hospital discharge summary opined that Student’s progress “suggests that with continued individual and family interventions he can modify his behavior.” Testimony of Rosen; exhibits P-9, S-6 (pages 6-7), S-7. See also Facts, pars. 39, 70. Over the course of time during which these opinions were rendered (from August, 7, 2008 to January 7, 2009), Student’s behavior at home has been consistently aggressive, disruptive, and very difficult for Mother. See Facts, pars. 34, 47, 48.
Also, as noted in Dr. Rosen’s testimony, Student’s average to above-average intelligence, his expressive communication skills, and his remorse after behavioral tantrums, all make it likely that Student will benefit from a consistent and well-coordinated behavioral approach that includes intensive home-based services. In addition, the Youth Villages regional manager testified that Student fits the profile of children appropriately and effectively served by the home-based services provided by Youth Villages. Testimony of Rosen, Todd.
Cambridge Hospital reports have also indicated that Mother should receive home-based services, and the reports have also made clear the implications of not providing these services. The August 7, 2008 Cambridge Hospital discharge summary stated:
It is extremely important to note, however, that adults need to help [Student] by reading his non-verbal cues of distress, anxiety, disappointment, sadness, frustration and anger and use this awareness to help him articulate his feelings and needs and to negotiate conflicts. Without this support from adults, he is likely to revert to expressing all of his feelings and needs through anger and aggressive behavior.
Exhibits P-9, S-6 (pages 6-7). The Cambridge Hospital discharge summary recommended that home-based services be provided for this purpose. Id. (page 8).
The most recent discharge report from Cambridge Hospital, dated October 21, 2008, further stated that Student and Mother “are likely to continue habitual modes of interacting with one another in stressful situations until they learn new, more productive ones. This will require professional coaching, lots of practice and lots of support during the process.” Exhibits P-2, S-5 (page 5).
It is undisputed that notwithstanding the introduction of home-based services a number of months ago, Mother has not yet developed the skills necessary to respond appropriately to her son’s behavioral difficulties within the home and community. In his testimony, Dr. Botman was critical of the home-based services being provided Mother and Student, and Dr. Rosen, in his recent report of his “clinical reactions” to incidents on January 18, 2009, noted that it is “imperative” that Mother receive “intensive parent education” for purposes of responding to her son’s behavior in a more appropriate manner. The lack of effectiveness of the home-based services in addressing Student’s behavior is most clearly revealed in Student’s continuing aggressive behaviors at home and multiple hospitalizations and admissions to the Wetzel Center, as discussed throughout this Decision. It may also be true, as one witness testified, that Mother may have not fully aligned herself with the offered home-based services because of her apparent expectation that Student would soon be placed in a residential program, but it is unlikely that this, alone, could account for the lack of effectiveness of the home-based services to date. Testimony of Botman, Rosen, Todd; exhibit S-11 (par. 2). See also Facts, par. 80.
It is also undisputed that it is of central importance that Student’s after-school-hours behaviors be appropriately addressed without further delay . For example, as long ago as March 2007, it was recognized in a psychological evaluation conducted at Worcester’s request, that “[p]rompt and effective treatment [of Student] is critical to protect and maintain as much as possible [Student’s] developmental trajectory.” Exhibit P-31 (page 12). And, as discussed in greater detail in the facts section of this Decision, Dr. Botman, in his neuropsychological report and testimony, appropriately emphasized the importance of addressing Student’s behavioral difficulties as soon as possible. In addition, Dr. Rosen testified that under the current difficult circumstances of Student’s aggressive behavior at home, the parent-child bond can be damaged since it is difficult for any parent to maintain a warm and caring relationship with a child with these behavioral difficulties. Testimony of Botman, Rosen. See also Facts, pars. 63, 68.
Consequently, I find that there must be immediate and effective implementation of appropriate home-based services and, as discussed below, coordinated behavior plans between home and school. There is simply too much potential educational, emotional, and physical harm from any long-term continuation of the past pattern of aggressive physical behaviors at home, hospitalizations, placements at the Wetzel Center, and interruption of Student’s education.27
In sum, I find that the evidence is persuasive that appropriate home-based services (which include intensive parent training and behavioral supports) that are fully utilized by Mother offer a reasonably likely way to address Student’s behavioral deficits effectively in the home and community without resorting to a residential placement. There likely will continue to be occasional behavioral difficulties in the home and some of these difficulties may lead to hospitalizations or stays at the Wetzel Center, but with appropriate home-based services, their frequency and length should be reduced. Testimony Rosen.
The First Circuit has made clear that a school district may be required under the IDEA to provide home-based services (that include parent training and behavioral support services) for parents designed to help them manage a student’s behavior at home.28 I find that appropriate home-based services are necessary in order to address Student’s emotional and behavioral difficulties and are therefore necessary for Student to receive FAPE in the least restrictive environment. Worcester also has the responsibility to ensure that home-based services are developed and implemented in a manner that is effective —that is, to improve significantly Mother’s ability to manage and improve her son’s behavior in the home and community.
Accordingly, these services must be included in Student’s IEP (even if it is DCF or Medicaid that actually funds the services and even if Youth Villages continues to provide the services), thus making it clear that under state and federal special education law, Worcester bears responsibility to ensure that these services are delivered appropriately and effectively.
DCF has been providing home-based services to Mother and Student through Youth Villages, and Worcester can continue to rely upon these services, provided that these services can be adjusted to be appropriate and effective. The Youth Villages home-based services currently offer a behavior plan, a staff person in the home three times per week, on-call assistance 24 hours-per-day, and additional staff time within the home as needed. The Youth Villages regional manager testified that these home-based services can be intensified as needed. Testimony of Todd. If the DCF-funded Youth Villages home-based services cannot be made to be appropriate and effective, these services must be provided or funded by Worcester pursuant to its obligations under state and federal special education law.29
Safety within the home and community . A significant question in dispute is whether Student can be maintained safely within his home—the safety concern being principally that Mother may be seriously harmed although there is also the possibility that Student could be harmed as a result of Mother’s responses to him, for example, through physical restraint. Student’s current array of services and placement may be considered appropriate only if Student’s behaviors in the home are not so disruptive and dangerous as to make it unreasonable and unsafe for Student to remain living with his Mother. There was substantial factual and expert evidence regarding this issue.30
Mother provided credible and persuasive evidence that Student presents her, as it would any parent, with enormous behavioral challenges. Student has hit her many times in the past and may continue to hit her at times, even with appropriate educational services. Perhaps most concerning is that Student is getting bigger and stronger, and he better knows how to hurt people, all making his hitting behavior both more difficult to deal with and potentially more dangerous. Whereas Mother used to be able to hold her son to prevent him from hitting her, she now must position herself on top of him during his most violent outbursts. Mother testified that her son’s aggressive behavior has intensified over time, and that she does not feel safe in her home.
As difficult as this behavior is for Mother, I am not persuaded that the behavior is highly dangerous nor I am persuaded that the frequency of Student’s more extreme behaviors is increasing. There have been several incidents when Student exhibited potentially dangerous behavior—for example, with a pencil. But, none of these more dangerous behaviors has occurred over the past six months. It is also encouraging that during the more recent 20 or 30 incidents that Mother described in her testimony, Student has been able to calm himself down or Mother has been able to calm her son down in all but five of the incidents. These five incidents were undoubtedly challenging and upsetting for Mother, but they did not result in injury. During the past six months, Student has not tried to hurt anyone with a weapon, he has not been suicidal, and he has not tried to run away. Mother has very occasionally suffered a bruise or suffered a strained or pulled muscle (this occurred relatively recently during the incident at the mall on January 18, 2009), but she has never been otherwise injured by her son, nor is there any evidence of anyone else ever being injured by Student. It is useful to remember that although Student has gotten bigger and stronger as he has gotten older, he is still only eight years old. With the appropriate implementation and adjustment of the present programs, the reasonable expectation is that Student’s behavior will improve.
In conclusion, I find that Dr. Rosen provided persuasive testimony that the history of Student’s behavior and his likely future behavior (with the provision of appropriate services) do not justify a conclusion that it is unsafe for Student to continue living at home.31
Expert testimony and arguments to the contrary . Mother presented detailed, credible expert testimony to the contrary, arguing that Student’s needs had outstripped Mother’s ability, no matter how well supported in the home and community, to provide appropriate and safe behavioral interventions to address her son’s physical aggression. Mother’s expert (Dr. Botman) was well-informed regarding children with Student’s profile, has extensive, relevant experience regarding appropriate educational placements for severely disabled children, and presented credible, expert testimony. However, for reasons explained below, I found Worcester’s expert (Dr. Rosen) (1) to have greater expertise on certain aspects of this dispute, (2) to have a more complete understanding of the implications of a residential placement for Student, (3) to have a more informed view of Student’s need for residential services, (4) and consequently to be more persuasive regarding his expert testimony and recommendations. I reach this conclusion notwithstanding that Dr. Botman, in certain respects, knew Student better than Dr. Rosen, in that Dr. Botman evaluated Student (Dr. Rosen did not) and Dr. Botman attended a number of meetings with Cambridge Hospital staff (Dr. Rosen did not).
Dr. Rosen and Dr. Botman understood equally well the likely benefits to Student of a residential placement. Each testified that a residential placement, as compared to living at home, would offer significant advantages in providing Student with a consistent, coordinated, and highly structured environment that is most likely to be successful in managing and improving Student’s behavior. Thus, the experts agreed that a residential placement would likely offer relatively immediate, positive results in terms of improved behavior and greater safety for Mother.
Dr. Rosen also had a clear and comprehensive understanding of how such a placement would likely harm Student in multiple and significant ways over the long term. In contrast, Dr. Botman discounted any negative implications of such a placement. Dr. Rosen, as compared to Dr. Botman, included within his analysis the more long-term implications of a residential placement for children, in general, and for Student, in particular. Dr. Rosen was persuasive that any short-term behavioral gains are off-set by the likelihood that Student’s improved behavior would become dependent upon the institutional structure and consistency of the residential placement, with the result that the longer Student’s residential stay, the more difficult it would be for Student to re-integrate into the home and community setting. Dr. Botman did not appear to take into consideration these concerns. Dr. Rosen’s concerns are set out in greater detail in Facts, pars. 73-77.32
Dr. Botman testified that the Mother-Student relationship would not only survive but would likely be strengthened by a residential placement because Mother would be able relate to her son without the need to try to control him and because Mother would continue to have visits (at school and home) with her son thereby maintaining and perhaps even strengthening the parent-child bond. Dr. Rosen agreed that a warm and caring relationship between parent and child can be harmed by pervasive behavioral difficulties at home, but he also testified that a residential placement for Student, particularly because of his young age, would likely damage, perhaps irreparably, the Student-Mother relationship. Dr. Rosen has a particular expertise regarding parent-child relationships with severely disabled children, having written a book relative to this issue.33 Dr. Botman does not appear to have comparable expertise in this aspect of the case, and his opinion in this area is therefore entitled to less weight than Dr. Rosen’s opinion.
In addition, Dr. Botman’s recommendations were premised on his belief that it was unsafe for Student to continue living at home. Dr. Botman came to this conclusion on the basis of Student’s extremely challenging behavior, including hitting Mother. In his written report, Dr. Botman recommended a day, rather than residential, placement, but changed his opinion principally because he believed that the intensity and dangerousness of Student’s behaviors had increased. But, Dr. Rosen evidenced a more in-depth understanding of the actual dangerousness of this behavior, concluding that Student’s behavior although extremely challenging, was nevertheless at a relatively low risk of dangerousness.
In sum, Dr. Botman’s testimony did not rebut Dr. Rosen’s opinion that Student can be effectively educated through implementation of the current IEP, with certain modifications, but without the need for a residential placement. Accordingly, Mother did not meet her burden of persuasion.34
Coordinated behavioral plans . The undisputed evidence was that Perkins has not yet developed a behavior plan for Student during the school day. The parties’ experts each testified as to the critical importance of having behavior intervention plans at school and during after-school hours that are implemented in a consistent and coordinated manner. The implementation of consistent and coordinated behavior plans across all environments is critical to the successful management of Student’s behavior in the home and community. Testimony of Rosen, Botman.
Under state and federal special education law, it is Worcester (rather than Perkins School or Youth Villages) that bears ultimate responsibility for ensuring that these coordinated behavioral plans are actually developed and appropriately implemented, even if it is other entities that do the work of developing the behavioral plans and providing the direct services.35
Counseling services . Worcester’s expert (Dr. Rosen) agreed that the current IEP is deficient in that it does not include any counseling sessions for Student. He suggested that the IEP be amended to include weekly counseling for Student of 30 minutes per week of individual counseling and 30 minutes per week of group counseling. Testimony of Rosen.
It is not disputed that the IEP needs to be modified to add counseling services for Student.
Settlement agreement . Prior to the instant dispute, the parties entered into a settlement agreement on August 29, 2008. The settlement agreement provides, in part, that Worcester agreed to prepare an IEP for Student’s placement at Perkins day school for the 2008-2009 school year, and Mother agreed to waive all claims arising through the date of the agreement. The agreement was entered into the evidentiary record (exhibit S-3) without objection.
In its response to Mother’s Hearing Request , Worcester asserted a defense based upon the settlement agreement, taking the position that Mother has waived any claim for (and is estopped from seeking) funding from Worcester for a residential placement for the 2008-2009 school year.
Mother’s closing argument takes the position that the settlement agreement releases claims that arose on or before the date of the agreement, and that therefore Mother’s claims for residential placement, which arose after August 29, 2008, are not subject to the agreement. Mother’s closing argument, pages 24-26.
Worcester’s closing argument did not address this issue, other than in its conclusion, which requests, in relevant part, that the Hearing Officer issue an order finding that all claims prior to August 29, 2008 are waived by virtue of the settlement agreement. Worcester closing argument, page 42.
The parties appear to agree that all claims prior to August 29, 2008 are waived. Because Worcester has not sought to develop an argument of any further protection under the settlement agreement, I deem this argument waived and decline to address this issue further.36
Consultation . As discussed above, Worcester is responsible for taking all steps necessary to ensure the implementation of appropriate and effective home-based services (including intensive parenting education and behavioral support services) and coordinated behavioral intervention plans regardless of which entities (for example, Perkins, Youth Villages, DCF, or Worcester) actually provide or fund the services, supports, and plans to Student and Mother. In short, Worcester must take a hands-on, active role in monitoring and adjusting as necessary (and, if need be, providing or funding) all those special education and related services necessary for Student to be appropriately educated in a day program while living at home. The lack of success to date, requires Worcester to re-assess these services for the purpose of determining why they have not worked and what changes should occur to ensure the appropriateness and effectiveness of these services. In addition, as discussed above, there is the need for immediate implementation of appropriate and effective home-based services and coordinated behavior plans.
All of this argues in favor of Worcester providing additional consultation and monitoring services.
Worcester shall immediately engage a consultant (who shall be Dr. Rosen or another person with very substantial experience and expertise regarding these issues37 ) to meet with Mother, Youth Villages staff, Perkins staff, Worcester staff, and others as needed (1) for the purpose of determining what is necessary in order that appropriate home-based services (including intensive parenting education and behavioral support services) be made available to Mother and (2) for the purpose of determining what is necessary in order that consistent and effective behavioral intervention plans be implemented both within Perkins and by Mother in the home and community.
In developing his or her report and recommendations, the consultant shall pay particular attention to finding out directly from Mother what she will actually find useful in her day-to-day management of her son’s behavior in the home and community since it is apparent that home-based services, no matter how effective on paper, will serve no useful purpose if they do not address Mother’s own particular needs for education and support—Mother should be motivated to use the services because she believes that they are responsive to her (and her son’s) needs.
Worcester shall ensure that its consultant very quickly develops a plan for the effective implementation of intensive parenting education services, parent supports, and behavioral intervention plans, with the ultimate goal of reducing Student’s behavioral difficulties within the community and minimizing the frequency and duration of hospitalizations and stays at the Wetzel Center. The consultant’s plan shall identify any necessary action steps, responsible persons for taking any action steps, and timeframes for completion of any action steps. If need be, the consultant shall also assist in the further development of the parent education program, behavior supports in the home, and behavioral intervention plans.
As noted above, it is not sufficient that appropriate services be put in place. The critical importance of these services being actually effective to address Student’s behavior requires that there be a monitoring function. Adjustments and modifications must be made by Worcester as necessary and appropriate. This shall include consideration of residential placement either if appropriate home-based services cannot be implemented within a relatively short period of time or if appropriate home-based services are implemented, are fully utilized by Mother, but nevertheless prove to be ineffective.
Therefore, over the next six months, Worcester shall further engage the consultant to monitor on a monthly basis (or more frequently if necessary) these services, supports, and plans. Each month, the consultant shall report in writing to Worcester and Mother regarding his or her findings and recommendations. Each report shall include any recommendations as to what should occur so that Student can receive appropriate services in the community in order to address effectively his social, emotional, and behavioral difficulties.
Conclusion . In conclusion, (1) with the development and coordination of consistent behavior plans at school and home, (2) with intensive, home-based services that provide appropriate parent education and behavioral support, (3) with therapy sessions included on Student’s IEP, (4) with the continuation Student’s therapeutic educational program at Perkins School during the day, and (5) with the addition of a consultant’s initial report and monthly monitoring reports thereafter for six months, (all as specified above), I find that Student’s IEP will be reasonably calculated to result in effective and meaningful educational progress regarding Student’s social, emotional, and behavioral deficits and thereby complies with Worcester’s responsibility to provide Student with FAPE in the least restrictive environment.
Worcester’s current IEP is reasonably calculated to provide Student with a free appropriate public education in the least restrictive environment, provided that the following additions are made to the IEP: (1) home-based services that include parent training and behavioral supports, (2) coordinated and consistent behavior plans at school and home, (3) counseling services, and (4) consultation services, all as specified above. Worcester shall make these changes to the IEP. Parent’s request for a residential educational placement is denied.
By the Hearing Officer,
Dated: February 24, 2009
COMMONWEALTH OF MASSACHUSETTS
BUREAU OF SPECIAL EDUCATION APPEALS
THE BUREAU’S DECISION, INCLUDING RIGHTS OF APPEAL
Effect of the Decision
20 U.S.C. s. 1415(i)(1)(B) requires that a decision of the Bureau of Special Education Appeals be final and subject to no further agency review. Accordingly, the Bureau cannot permit motions to reconsider or to re-open a Bureau decision once it is issued. Bureau decisions are final decisions subject only to judicial review.
Except as set forth below, the final decision of the Bureau must be implemented immediately. Pursuant to M.G.L. c. 30A, s. 14(3), appeal of the decision does not operate as a stay. Rather, a party seeking to stay the decision of the Bureau must obtain such stay from the court having jurisdiction over the party’s appeal.
Under the provisions of 20 U.S.C. s. 1415(j), “unless the State or local education agency and the parents otherwise agree, the child shall remain in the then-current educational placement,” during the pendency of any judicial appeal of the Bureau decision, unless the child is seeking initial admission to a public school, in which case “with the consent of the parents, the child shall be placed in the public school program”. Therefore, where the Bureau has ordered the public school to place the child in a new placement, and the parents or guardian agree with that order, the public school shall immediately implement the placement ordered by the Bureau. School Committee of Burlington, v. Massachusetts Department of Education , 471 U.S. 359 (1985). Otherwise, a party seeking to change the child’s placement during the pendency of judicial proceedings must seek a preliminary injunction ordering such a change in placement from the court having jurisdiction over the appeal. Honig v. Doe , 484 U.S. 305 (1988); Doe v. Brookline , 722 F.2d 910 (1st Cir. 1983).
A party contending that a Bureau of Special Education Appeals decision is not being implemented may file a motion with the Bureau contending that the decision is not being implemented and setting out the areas of non-compliance. The Hearing Officer may convene a hearing at which the scope of the inquiry shall be limited to the facts on the issue of compliance, facts of such a nature as to excuse performance, and facts bearing on a remedy. Upon a finding of non-compliance, the Hearing Officer may fashion appropriate relief, including referral of the matter to the Legal Office of the Department of Education or other office for appropriate enforcement action. 603 CMR 28.08(6)(b).
Rights of Appeal
Any party aggrieved by a decision of the Bureau of Special Education Appeals may file a complaint in the state court of competent jurisdiction or in the District Court of the United States for Massachusetts, for review of the Bureau decision. 20 U.S.C. s. 1415(i)(2).
An appeal of a Bureau decision to state superior court or to federal district court must be filed within ninety (90) days from the date of the decision. 20 U.S.C. s. 1415(i)(2)(B).
In order to preserve the confidentiality of the student involved in these proceedings, when an appeal is taken to superior court or to federal district court, the parties are strongly urged to file the complaint without identifying the true name of the parents or the child, and to move that all exhibits, including the transcript of the hearing before the Bureau of Special Education Appeals, be impounded by the court. See Webster Grove School District v. Pulitzer Publishing Company , 898 F.2d 1371 (8th Cir. 1990). If the appealing party does not seek to impound the documents, the Bureau of Special Education Appeals, through the Attorney General’s Office, may move to impound the documents.
Record of the Hearing
The Bureau of Special Education Appeals will provide an electronic verbatim record of the hearing to any party, free of charge, upon receipt of a written request. Pursuant to federal law, upon receipt of a written request from any party, the Bureau of Special Education Appeals will arrange for and provide a certified written transcription of the entire proceedings by a certified court reporter, free of charge.
The very high quality of representation by each attorney, including the excellent and informative expert testimony by both parties and the exhaustive closing arguments, is acknowledged with appreciation.
Dr. Botman has been a clinical psychologist, senior consultant and chief of assessment services for Wediko Children Services in Worcester, MA, over the course of seven years. Wediko provides clinical services to Boston’s McKinley Schools which educate children with serious emotional and behavioral deficits. Through this experience, as well as other work as a clinical psychologist since 1984, Dr. Botman has evaluated and worked with a large number of children with Student’s profile. Testimony of Botman; exhibit P-34 (resume). I find that Dr. Botman has extensive experience and expertise relevant to Student’s special education and related service needs, and how those needs should be met.
Dr. Botman’s written neuropsychological report further explained that Student’s psychiatric disabilities have made his first two years in school extremely difficult with numerous out-of-control episodes, and his angry disruptive outbursts have all too frequently culminated in his being sent home from school. Dr. Botman wrote that despite its efforts, Worcester has been ineffective in programming for Student’s psychiatric needs, and he has continued to experience extremely high levels of turmoil and failure in his special education placements. In addition, Dr. Botman stated in his report that Student was found on clinical interview to already be negative about school and his chances of ever being successful there. Exhibit P-10 (page 12).
Dr. Rosen’s principal current position is the director of clinical services for the Central Mass. Special Education Collaborative, through which he provides consultation services to Worcester. Since 1986, Dr. Rosen has been an associate in psychiatry at the Department of Psychiatry, University of Massachusetts Medical Center. Of particular relevance to the instant dispute is Dr. Rosen’s extensive experience working with educational programs for extremely disturbed children, including children with profiles similar to Student’s profile. He has worked in (as well as helped develop) day and residential schools for special needs children. Dr. Rosen also has expertise regarding parenting for special needs children, and he has published in this area. Testimony of Rosen; exhibit S-9 (resume). I find that Dr. Rosen has extensive experience and expertise relevant to Student’s special education and related service needs, and how they should be met.
20 USC 1400 et seq .
MGL c. 71B.
20 USC 1400(d)(1)(A). See also 20 USC 1412(a)(1)(A).
20 USC 1401(9)(b); Winkelman v. Parma City School Dist., 550 U.S. 516, 127 S.Ct. 1994, 2000-2001 (2007) (“education must … meet the standards of the State educational agency); Mr. I. v. Maine School Administrative District No. 55, 480 F.3d 1, 11 (1 st Cir. 2007) (state may “ calibrate its own educational standards, provided it does not set them below the minimum level prescribed by the [IDEA]”). See also MGL s. 71B, s.1 (definition of FAPE, describing Massachusetts educational standards as those “ established by statute or established by regulations promulgated by the board of education”).
MGL c. 71B, ss. 1, 2, 3.
Rowley, 458 U.S. at 201 & n.23 (1982).
Rowley, 458 U.S. at 192 (1982) (“intent of the Act was more to open the door of public education to handicapped children on appropriate terms than to guarantee any particular level of education once inside”) .
Rowley, 458 U.S. at 192 (“in seeking to provide such access to public education, Congress did not impose upon the States any greater substantive educational standard than would be necessary to make such access meaningful”). The Supreme Court in Rowley also utilized the phrase “some educational benefit.” Rowley, 458 U.S . at 200 ( “ Implicit in the congressional purpose of providing access to a ‘free appropriate public education’ is the requirement that the education to which access is provided be sufficient to confer some educational benefit upon the handicapped child”). The “some benefit” phrase may be understood, in the context of the Rowley decision as a whole, to require “meaningful” benefit. See L.E. v. Ramsey Bd. of Educ ., 435 F.3d 384, 395 (3d Cir. 2006), citing T.R. ex rel. N.R. v. Kingwood Twp. Bd. of Educ ., 205 F.3d 572, 577 (3d Cir. 2000) (phrase “some educational benefit”, as utilized by Supreme Court in Rowley , requires provision of a “meaningful educational benefit”). See also Lauren P. v. Wissahickon School Dist. , 2009 WL 382529 (3 rd Cir. 2009)(IEP must confer “significant learning” and “meaningful benefit” on student); N.B. v. Hellgate Elementary School Dist ., 541 F.3d 1202, 1212-13 (9 th Cir. 2008) (under 1997 amendments to the IDEA, a school must provide a student with a “meaningful benefit” which is more than “some educational benefit”); Frank G. v. Board of Educ. of Hyde Park, 459 F.3d 356, 364 (2 nd Cir. 2006) (IDEA requires a student to be provided with “meaningful access” to education) ; A.B. ex rel. D.B. v. Lawson , 354 F.3d 315, 319 (4 th Cir. 2004) (“state must provide children with ‘meaningful access’ to public education”); Alex R.. v. Forrestville Valley Community Unit School Dist. # 221, 375 F.3d 603, 612 (7 th Cir. 2004) (question presented is whether the school district appropriately addressed the student’s needs and provided him with a meaningful educational benefit), cert. denied , 543 U.S. 1009 (2004); Deal v. Hamilton County Board of Education, 392 F.3d 840 (6 th Cir. 2004); Shore Regional High School Bd. of Educ. v. P.S. , 381 F.3d 194, 198 (3d Cir. 2004); Houston Independent School District v. Bobby R ., 200 F.3d 341 (5 th Cir. 2000); Adams v. Oregon , 195 F.3d 1141, 1145 (9 th Cir. 1999); Town of Burlington v. Dep’t of Educ ., 736 F.2d 773, 789 (1st Cir. 1984) (“federal basic floor of meaningful, beneficial educational opportunity”), aff’d 471 U.S. 359 (1985).
Rowley , 458 U.S. at 197, n.21 (1982) (“ Whatever Congress meant by an “appropriate” education, it is clear that it did not mean a potential-maximizing education.”); Lt. T.B. ex rel. N.B. v. Warwick Sch. Com., 361 F.3d 80, 83 (1st Cir. 2004) (“IDEA does not require a public school to provide what is best for a special needs child, only that it provide an IEP that is ‘reasonably calculated’ to provide an ‘appropriate’ education as defined in federal and state law.”).
Massachusetts standards: 603 CMR 28.05(4)(b) (IEP must be “designed to enable the student to progress effectively in the content areas of the general curriculum”); 603 CMR 28.02(18) (defining Progress effectively in the general education program ). Federal standards: 20 USC 1400(d)(4) (purposes of this title are . . . to assess, and ensure the effectiveness of , efforts to educate children with disabilities” (emphasis added); Lenn v. Portland School Committee , 998 F.2d 1083, 1090 (1 st Cir. 1993); Roland v. Concord School Committee , 910 F.2d 983, 991 (1 st Cir. 1990) (“Congress indubitably desired ‘effective results’ and ‘demonstrable improvement’ for the Act’s beneficiaries”); North Reading School Committee v. Bureau of Special Education Appeals, 480 F.Supp.2d 479, 489 (D.Mass. 2007 ) (educational program “must be reasonably calculated to provide effective results and demonstrable improvement in the various educational and personal skills identified as special needs”).
MGL c. 71B, s. 1 (defining the term “special education” to mean “educational programs and assignments including, special classes and programs or services designed to develop the educational potential of children with disabilities” ). See also MGL c. 69, s. 1 (“paramount goal of the commonwealth to provide a public education system of sufficient quality to extend to all children the opportunity to reach their full potential ”); 603 CMR 28.01(3) (identifying the purpose of the state special education regulations as “to ensure that eligible Massachusetts students receive special education services designed to develop the student’s individual educational potential”); Mass. Department of Education’s Administrative Advisory SPED 2002-1: Guidance on the change in special education standard of service from “maximum possible development” to “free appropriate public education” (“FAPE”), Effective January 1, 2002 , 7 MSER Quarterly Reports 1 (2001) (appearing at www.doe.mass.edu/sped) (Massachusetts Education Reform Act “underscores the Commonwealth’s commitment to assist all students to reach their full educational potential”).
20 USC 1400(d)(1)(A) (IDEA enacted “to ensure that all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living”); 20 USC 1401(9), (29) ( “free appropriate public education” encompasses “special education and related services,” including “specially designed instruction, at no cost to parents, to meet the unique needs of a child with a disability”); Honig v. DOE , 484 U.S. 305, 311 (1988) (FAPE must be tailored “to each child’s unique needs”); Lessard v. Wilton Lyndeborough Cooperative School Dist. , 518 F.3d 18, 23 (1 st Cir. 2008) (noting the school district’s “ obligation to devise a custom-tailored IEP”) .
20 USC 1400(d)(1)(A); 20 USC 1412(a)(1)(A); 20 USC 1412(a)(5)(A); MGL c. 71B, ss. 2, 3; 34 CFR 300.114(a)(2(i) ; 603 CMR 28.06(2)(c).
Walczak v. Florida Union Free School Dist ., 142 F.3d 119 (2nd Cir. 1998).
Gonzalez v. Puerto Rico Department of Education , 254 F.3d 350 (1 st Cir. 2001); Abrahamson v. Hershman , 701 F.2d 223, 228 (1 st Cir. 1983).
Schaffer v. Weast , 546 U.S. 49, 62 (2005) (burden of persuasion in an administrative hearing challenging an IEP is placed upon the party seeking relief; a party who has the burden of persuasion “ loses if the evidence is closely balanced” ).
Lenn v. Portland School Committee , 998 F.2d 1083, 1089-1090 (1st Cir. 1993). See also See also Mr. I. v. Maine School Administrative District No. 55, 480 F.3d 1, 12 (1 st Cir. 2007) (IDEA entitles eligible students to services that target all of their special needs, whether they be academic, physical, emotional, or social); Zayas v. Commonwealth of Puerto Rico, 163 Fed.Appx. 4, 5 (1 st Cir. 2005) (student may have the right, under the IDEA, to “receive an education that is tailored to her social, psychological, and educational needs”); 603 CMR 28.02(18) (“Progress effectively in the general education program shall mean to make documented growth in the acquisition of knowledge and skills, including social/emotional development . . .”).
Gonzalez v. P.R. Dep’t of Educ., 254 F.3d 350, 352 (1 st Cir. 2001).
20 U.S.C. 1414(d)(3)(B)(i) (“The IEP Team shall . . . in the case of a child whose behavior impedes the child’s learning or that of others, consider the use of positive behavioral interventions and supports, and other strategies, to address that behavior”); Indep. Sch. Dist. No. 284, Wayzata Area School v. AC , 258 F.3d 769 (8th Cir. 2001) (student’s behavior problems are not separable from the student’s learning process, and behavioral and emotional problems must be addressed through residential services if the student is to succeed academically); Rome Sch. Comm. v. Mrs. B., 247 F.3d 29, 33 n.3 (1 st Cir.2001) (noting that, in determining adequacy of IEP for emotionally disturbed boy, “[t]he question is whether [his] behavioral disturbances interfered with the child’s ability to learn”); Board of Education of Montgomery County v. Brett Y , 155 F.3d 557 (4th Cir. 1998) (“residential placement that is necessary for ‘medical, social, or emotional problems that are segregable from the learning process’ need not be funded by the local education agency.”); Mrs. B. v. Milford Board of Education , 103 F.3d 1114, 1122 (2nd Cir. 1997) (“fact that a residential placement may be required to alter a child’s regressive behavior at home as well as within the classroom, or is required due primarily to emotional problems, does not relieve the state of its obligation to pay for the program under federal law so long as it is necessary to insure that the child can be properly educated”).
Rosie D. v. Romney , 410 F.Supp.2d 18 ( D.Mass. 2006).
Id. at 23-24.
Walczak v. Florida Union Free School Dist ., 142 F.3d 119 (2 nd Cir. 1998).
20 USC 1400(d)(4) (purposes of this title are . . . to assess, and ensure the effectiveness of , efforts to educate children with disabilities” (emphasis added).
In Gonzalez v. Puerto Rico Department of Education , 254 F.3d 350, 353 (1 st Cir. 2001), the First Circuit wrote:
The district court here did not dismiss the significance of Gabriel’s problems at home. While it did not find that those problems so affected Gabriel’s ability to learn as to warrant residential placement, the court did find it necessary for the Department’s IEP to address them. Accordingly, it ordered that the IEP be expanded to include further services and training for Gabriel’s parents designed to help them manage Gabriel’s behavior at home. And there is sufficient evidence in the record as to the nature of Gabriel’s behavioral problems to support the district court’s conclusion that they can be managed effectively through such means. Accordingly, we find no error in the way in which the district court addressed the link between Gabriel’s problems at home and his educational needs.
Worcester has taken the position in its closing argument (pages 38-40) that DCF, rather than Worcester, bears responsibility for providing or funding the home-based services. Pursuant to the state special education law and regulations, my authority to order DCF to provide services is limited to those services over and above the special education and related services that are the responsibility of the school district. MGL c. 71B, s. 3; 603 CMR 28.08(3). As discussed above, I have found that home-based services are necessary in order for Student to receive FAPE. Worcester responds by arguing that, by agreement, DCF has taken responsibility for providing these services even though they may be special education or related services necessary for FAPE. I am aware of no such agreement. In addition, because DCF is not a party to this dispute, I have no authority to consider its legal responsibilities in this regard.
The parties disagree as to whether the residential component of Student’s services would be the responsibility of Worcester, DCF, or some other agency in the event that Student cannot continue living safely at home. Resolution of this question would depend on whether the residential services were required for educational reasons. See, e.g., Gonzalez v. Puerto Rico Department of Education , 254 F.3d 350, 353 (1 st Cir. 2001) (school district not required to provide a residential program to remedy a “poor home setting,” to finance foster care, or to make up for some other deficit not covered by special education law); In Re: Medford Public Schools , BSEA # 01-3941, 7 MSER 75 (SEA MA 2001) (Mass. Dept. of Mental Retardation, rather than school district, found responsible to provide residential services that were required because of safety concerns in the home). Because I conclude (for reasons set forth in the text above) that, with appropriate home-based services, Student may live safely at home, I need not address this aspect of the parties’ disagreement.
I also note DCF’s past and current opinion that Student can be appropriately maintained within the home, rather than requiring residential services. Facts, par. 38.
Dr. Rosen’s concerns regarding the long-term implications of residential placement are echoed by Judge Ponsor in Rosie D. v. Romney , 410 F.Supp.2d 18, 23-24 ( D.Mass. 2006), discussed in the text in an earlier part of this Decision.
The book, which is Rosen, P.M., Talking Listening Connecting: A Guide to Therapeutic Parenting , New York , Alpha Books (2002), is intended to help parents understand how to help their children who have significant difficulties, including serious mental illness. Testimony of Rosen; exhibit S-9.
Other than Dr. Botman’s testimony, the only recommendation for residential services is found within a Cambridge Hospital discharge report of October 21, 2008. The report recommended an “out-of-home placement” without providing any clear explanation of the reasons for the recommendation—that is, for example, the report does not explain whether the recommendation is being made because Mother is believed to be unable to continue caring for her son or because Student requires a residential placement in order to address his behavioral issues effectively. Exhibits P-2, S-5 (page 5). Neither party called a witness from Cambridge Hospital who might have clarified or explained the recommendation. Without more, this recommendation carries little, if any, probative weight.
20 USC1414(d)(3)(B)(i); Neosho R-V School Dist. v. Clark, 315 F.3d 1022, 1028 (8th Cir. 2003) (finding that a student did not receive FAPE where IEP failed to provide an adequate behavior management program); Penn Trafford School Dist. v. C.F. ex rel. M.F. , 2006 WL 840334 ( W.D.Pa. 2006) (IEP’s failure to provide a behavior management plan was a “serious omission” ); Indiana Area School Dist. v. H.H. ex rel. K.H. , 2005 WL 3970591 ( W.D.Pa. 2005) (court affirmed hearing officer’s finding that by failing to develop a behavior intervention plan through the IEP Team process, school district denied student FAPE).
See Rose et al. v. Yeaw , 214 F.3d 206, n.2 (1 st Cir. 2000) (court declined to address an issue under “the settled appellate rule that issues adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed waived”).
In the event that the consultant is someone other than Dr. Rosen, Worcester shall seek to secure someone with expertise and experience at least comparable to that of Dr. Rosen and shall give Mother an opportunity for input into the selection of the consultant.