Antonio v Boston Public Schools – BSEA #02-3761
COMMONWEALTH OF MASSACHUSETTS
BUREAU OF SPECIAL EDUCATION APPEALS
IN RE: ANTONIO1 v BOSTON PUBLIC SCHOOLS
This decision is issued pursuant to M.G.L. c.71B and 30A, 20 U.S.C. §1401 et seq ., 29 U.S.C. §794, and the regulations promulgated under those statutes. A hearing occurred on August 26, 2002 and August 27, 2002 at the Bureau of Special Education Appeals (BSEA) in Malden, MA. Those present for all or part of the proceeding were:
Andrea Weiss, Ph.D. Parent’s Educational Evaluator
Debbi Adams, LICSW Social Worker; Walker ART
Marsha Stevens Parent’s Educational Consultant
Christine Stella Principal, McKinley Elementary School
Jennifer Williams Area Program Director; Boston Public Schools
Elizabeth Kurlan Assistant Corporation Counsel, Boston Public Schools
Alissa Ocasio Assistant Corporation Counsel, Boston Public Schools
Richard Ames Attorney for Parent
Joan D. Beron Hearing Officer; BSEA
The official record of the hearing consists of Parent’s documents marked P1- 61 and Boston’s exhibits marked SA-I and approximately eight hours of recorded oral testimony. The record closed on October 1, 20022 when the Hearing Officer received full closing arguments from both parties.
I. Does Boston’s Individualized Educational Programs (IEPs) and amendments designating programs at the McKinley Elementary School for the 2001-2002 and 2002-2003 School Years (SYs) provide Student with a free appropriate public education (FAPE) in the least restrictive environment (LRE)?
II. If not, will modifications and/or accommodations to these programs provide a FAPE in the LRE?
III. If not, does Student require a private day placement to appropriately address the Student’s language-based learning disabilities and emotional disabilities to achieve a FAPE in the LRE?3
IV. Has Boston committed procedural violations that denied Student a FAPE entitling him to compensatory education?
PROFILE OF THE STUDENT/EDUCATIONAL HISTORY
1. Student is a nine and one half (9 ½) year old Hispanic boy (born January 9, 1993) who resides with his mother and two year old sister in Boston, MA (Mother, J18). Student also has a twenty-two year old sister and nineteen and eleven year old brothers (SF). Student has not seen his father since at least March 2001 due to a restraining order prohibiting him from contacting Mother. She and the minor children have lived in numerous shelters and other temporary housing due to Father’s behavior ( See P56, P39, SF, Mother4 .)
2. Student is currently diagnosed with oppositional defiant disorder (ODD), attention deficit hyperactivity disorder (ADHD), post traumatic stress disorder (PTSD) and dyslexia ( see e.g. J8, J10). Although Student is 9 ½ years old, he is currently a third grader because he repeated kindergarten and 1 st grade (Mother, see SF). Student began the 99-00 SY as a Kindergartener in Kissimmee, Florida. He was referred for evaluation at that time due to trouble recognizing the letters of the alphabet, trouble beginning and attending to tasks, difficulty following directions, and also was arguing, hitting and kicking teachers and family members (J46-50, Mother).
3. Student then relocated to Boston, MA, attending Kindergarten at the Dever School. He remained there for Kindergarten and for 1 st grade until the end of April 2000 (J2, Williams, Mother, J46). Boston’s records indicate that in March of 2000 Student was consistently verbally abusive to teachers and students, physically assaultive to other children and unable to start work, attend to tasks or follow directions (P44, P45, SF). He was seen at Boston Medical Center on March 16, 2000 for out of control and assaultive behaviors (SF). Boston scheduled a TEAM meeting but it was not held because Father cancelled the meeting (J10).
4. Student then relocated to Plymouth, where he began school on Monday, May 1, 2000 (P34). After being enrolled in the Plymouth Public School for approximately two days, Student was suspended for three days due to physical and verbal disruptions on the bus, in the library, the cafeteria and the first grade classroom (P43, see P34, SF). An emergency TEAM meeting occurred on May 4, 2000 (J34, P43). The TEAM recommended that pending completion of evaluations, Student attend school from 9:00 a.m. until 11:30 a.m. with Mother providing transportation to and from school (P42).
5. Student began attending school in Fall River MA in approximately September 2000 (J10). In November 20, 2000, while he was in 1 st grade, the Fall River Public Schools found that Student was eligible for special education based on findings of “developmental delay”, possible “cognitive developmental delays” and “significant delays in the language arts areas” and a resulting failure to make effective progress in school (P6). At that time Student received pull-out language arts services four times per week, consultation and daily language arts instruction pursuant to an accepted IEP (P6). No social emotional goals and objectives were addressed; see (P6). The Fall River TEAM reconvened on February 1, 2001 and increased his pull-out language arts services from 47 minutes four times a week to two hours of daily language arts and one hour of math instruction per day (P5). The IEPs contained no behavioral services despite Student’s repeated physically abusive and defiant behavior and a suspension for fighting and breaking school rules while at Fall River ( See P2, P5, P40, P41.)5
6. Student was enrolled in the Boston Public Schools in approximately February 2001 and attended the Dever School for approximately one month (Mother). He began attending the Tynan School on approximately May 1, 2001 in a regular education first grade classroom (P31). On May 7, 2001, Student refused to separate from the Parent at the start of school, became uncontrollable, and, after transport by ambulance, was hospitalized (P34, P38, SF). On that day, Tynan School staff requested an emergency placement for Student and proposed a re-evaluation “to determine appropriate placement” (P36, P37).
7. On May 9, 2001, Boston proposed, and the Parent consented to, an emergency evaluation and temporary placement for the Student to address Student’s alleged “assaultive, abusive, disruptive behavior”(P35). An emergency Team meeting was convened on May 14, 2001 and an emergency evaluation was consented to that day by Mother. The TEAM discussed an emergency placement option of “one-to-one home tutoring” and two emergency placement options (home tutoring or placement outside of the Tynan School but at some other program within Boston’s public school system) (P33). The TEAM concluded that: “Based on [the Student’s] recent school behavior, the Team feels that [ Student] is unsafe to return to the regular educational/resource room program at the Tynan School. Upon [Student’s] release from the hospital, the Team recommends an emergency placement of home tutoring. … (P33). Mother consented to the placement (Mother, P33, see P34).
8. From May 9, 2001 to May 18, 2001, the Student was a patient in the Arbour Hospital (Arbour) partial hospital program (P50, Mother). The discharge summary called for Student to return home and reenter the Tynan School; Id. Only Student and Mother attended the discharge meeting; however Boston was aware that Student was at Arbour; (Williams, SF, P34, P31 see P50). Upon discharge on Friday, May 18, 2001, Arbour made specific educational recommendations, as follows: “With regard to school, patient would benefit from a small structured classroom with increased staff supervision. School should have access to therapeutic staff intervention, including a counselor to work with patient should he have difficulty during the school day. Patient works best when he is able to do hands-on type of work, and also does well when he is working towards an incentive. School should also create a behavior plan for patient.” Id.
9. Upon discharge, Student returned to his previous Tynan School regular educational and resource room placement; see (P31, P21). Boston conducted their emergency evaluations on May 18, 2001, May 21, 2001, June 3, 2001 and June 4, 2001 (P31, P21, P22). The teacher, in her evaluation, noted that “[Student] is currently working below grade level in all academic subjects and his behavior is an overriding concern.” While in her classroom Student was easily distracted, struggled with even the simplest words in reading, refused to participate in any math or writing activities and had poor peer interaction (P22). The school psychologist observed Student in his classroom and in his ESL class of five students. During the ESL class, Student could not complete a simple writing task, called out repeatedly and was verbally abusive; Id. He displayed low level skills in all his settings.
10. Student was cooperative, responsive to praise and requested feedback frequently during the morning of the psychological testing. He required support to continue with difficult items and would often revert to trial and error for difficult tasks; however, extended time for some performance tasks produced success. Student was then excused for lunch with his peers. During lunch Student kicked another child and had a beeper that was taken away from him. When the school psychologist attempted to complete testing in the afternoon Student refused to speak to the evaluator or initiate any activity. Due to Student’s behaviors during assessment, along with subscatter on tests and bilingual and bicultural issues, the test results were only considered to be a minimal assessment of Student’s full potential (P34).
11. Cognitive testing showed that, at a minimum, Student displayed average intelligence with weaknesses in visual processing speed and short term memory scoring at the 8-4 year old level. He scored at a Kindergarten level in word recognition with spelling scores and a 1 st grade level; Id. . Although Student could identify fourteen of fifteen upper case letters presented, his identification was very slow. He showed no decoding strategies and displayed inaccuracy in sequencing sounds. Reversals of “s”, “z”, “C”, “D”, and “F” were also noted as well as confusion for b/d and q and p. Informal written language samples were not obtained because Student did not return for the subsequent session. Emotionally, Student presented with a labile effect. The school psychologist noted that when limits were set, Student became angry, often escalating in assaultive behavior, with insistence that his needs be met immediately. He also displayed lack of respect for authority figures and peers and disregard for rules and regulations. The school psychologist diagnosed Student with dyslexia6 . She recommended that Student be placed in a small group educational setting that provided intensive remediation in reading and language arts containing linguistic rule-based instruction in a therapeutic milieu that had crisis intervention, behavioral management, time-out and group counseling to address anger management; Id.
12. On May 30, 2001, at 11:15 a.m., while in the education classroom, Student, when asked to work with the rest of the class “on writing a final writing product”, refused to do the project or comply with a student’s request to give back the cubes he took from his desk. He began to make fun of this student, his family, other class members and the teacher, then began to turn the cubes into a “gun shape”, and was swearing and threatening to shoot the principal and the other children ( See P24, P27.)
13. On May 30, 2001 at 12:50 p.m., Student, after refusing to participate with the substitute teacher or follow directions, threw two chairs, yelled verbally abusive statements and opened the room’s cabinet doors despite staff direction to not do so. When a school volunteer attempted to close the doors, Student intentionally kicked the doors closed, which caused ruptured arteries in the volunteer’s hand (P30), see also (P28, P29). On that day, Student was suspended until June 6, 2001 (P25, P26).7 Boston told its staff that when Student returned to school they were to call the office the moment Student had any problems and that Mother would be called to get him at school. ( See P23)
14. On June 7, 2001, Student’s behavior escalated when a classmate was told to go to the office with a note to report on Student’s inappropriate behavior. Student chased the student to the office grabbing the paper out of her hand and running away. Boston staff could not locate Student and called 911 and the school police. Student ran from the police officer and when caught, spit, cursed, bit and kicked at her. Student was then restrained and an ambulance took him from the Tynan School to the Boston Medical Center Emergency Department (Boston Medical) where he was diagnosed with PTSD, ODD and ADHD (P23, P20). The reporter of this incident noted that: “As with other incidents, there was seemingly nothing in particular that began this behavior” (P23). The day after the incident the school psychologist recommended “that an assessment specifically addressing physical and/or sexual abuse be completed in hospital setting.” (P31).
15. Boston Medical transferred Student to Pembroke Hospital for an inpatient psychiatric admission (P20). The Student remained at Pembroke Hospital as an inpatient from June 7, 2001 until his discharge to home on July 18, 2001 (P18). Student received no educational services while at Pembroke Hospital (Mother).
16. Boston convened a meeting of the Student’s Team on June 25, 20018 . The meeting was “rescheduled several times” to accommodate a Boston staff person who had injured her leg (Williams). Parent was living in a shelter at that time; however Boston did know how to contact her (Williams). Parent did not attend this meeting because she received an invitation after the date of the meeting (Mother). Although Student had been hospitalized at Pembroke Hospital since June 7, 2001, no one from Pembroke Hospital attended the June 25, 2001 Team meeting nor did any one from DSS even though the family was receiving voluntary services at that time. Boston is unaware of whether Pembroke knew about the Team meeting ( See P4, Williams).
17. Boston concluded that Student required a substantially separate classroom that provided intensive therapeutic support, weekly individual psychotherapy from Wediko Children’s Services (Wediko) for forty (40) minutes per week, family outreach and therapy from Wediko for a period of six weeks to be extended as the program warrants, crisis intervention and behavior management and group counseling to address anger management. Boston also recommended a multisensory linguistic or rule-based methodology to address the dyslexia and an assessment addressing physical or sexual abuse be completed in a hospital setting (P4). Boston proposed implementing these services at the McKinley Elementary School (Williams, P4). There is no evidence that the TEAM considered any other placement other than McKinley Elementary and although the McKinley summer program is mentioned, Boston does not know if the TEAM discussed whether Student required an extended school year to prevent regression (P3, Mother, Williams). This IEP ran from June 2001-June 2002. It proposed no consultation services, no behavior assessment or behavior plan, no group or family therapy goals and objectives and no evaluative criteria to indicate how academic, social-emotional goals or counseling goals were to be evaluated or measured ( See P4). The IEP was signed by Christine Ms.. Stella (Ms. Stella), in the designated capacity of Sped Administrator, on June 26, 2001. Boston did not send this IEP to Mother because a Boston staff person mistakenly believed that placement at McKinley Elementary needed to be first confirmed within the Boston system (Williams, see P2). Thus, Ms. Stella did not realize that the Student was recommended for placement at McKinley Elementary until some time in February 2002 and Mother had no written or oral communication from Boston during the summer, fall or winter of 2001 (Mother).
18. Pembroke Hospital conducted psychological testing on July 10, 11 & 12, 2001. Student’s overall level of functioning was within the average range (full scale IQ 93) with a very large and significant discrepancy between his verbal functioning (Verbal IQ 80) (low average range) and his visual motor and visual spatial functioning (Performance IQ 111) (bright normal range). Testing showed evidence of a severe language disability characterized by low average receptive language skills, poor verbal processing, impaired pragmatic and/or executive skills, variable attention and severely impaired written and oral expressive language. Academically, Student’s reading and spelling skills were on a kindergarten level with math skills at a first grade level.9 The evaluator stated that Student “needs a special class school [sic] for language based learning disabilities” and that “Student be allowed to use pictures and drawings when communicating because he cannot write”; see (P19). She further noted that [Student] “needs a stable, quiet, relatively structured living situation [because he] could be more disinhibited in unfamiliar setting [sic]”. (P19).
19. Pembroke Hospital discharged Student to Mother on July 18, 2001 with diagnoses of Depressive Disorder, NOS, and PTSD, and, on Axis II, expressive language disorder (P18). Student was described as being “in good control” responding well to consistent rules, limits and structure in the hospital unit. His prognosis was “fair with ongoing treatment and significant educational intervention”; Id. The discharge summary contains no reference to a TEAM meeting nor the school psychologists’ recommendation for a physical or sexual abuse evaluation in a hospital setting; (P18, P19). After discharge from Pembroke Hospital, Student remained at home without serious incident until the start of the 2001-2002 school year (Mother).
20. During the summer of 2001, Mother was notified by a letter from Boston that the Student had been assigned to the Condon School and was to report there at the start of the 2001-2002 school year (Mother, Williams). When Student arrived at the Condon School, he was placed in a large, general education classroom where he engaged in aggressive behaviors in the first week of school; Id. . Boston then told Mother that the Student’s placement at the Condon School had been a mistake and proposed his emergency placement at the Compass School (Compass), a private school; Id. Mother was not told that an emergency placement at Compass is not at the “level” of “a regular public or private substantially separate day school.” (Williams). Boston is unaware of whether Compass had a language-based learning program; Id.
21. Boston sent Compass information in an emergency placement request. The request provides no information as to the student’s “program” or “prototype”, and states that the “reason for this placement request” was to “Re-admit to BPS awaiting placement” (sic). Boston’s SPED Administrator dated the form on September 5, 2001, the first day of school (P54, SE). The Parent signed the form consenting to the emergency placement on September 17, 2001; (P54, SE, Parent, Williams). The emergency placement request indicated “Chapter 766 regulations 331.0, 331.1 and 331.3,10 state that an EMERGENCY PLACEMENT MAY BE SOUGHT FOR THOSE STUDENTS WHO DEMONSTRATE REPEATED INSTANCES OF DANGEROUSLY ASSAULTIVE OR SELF ABUSIVE BEHAVIOR AND MAY NOT LAST MORE THAN 15 SCHOOL DAYS. Students must return to the assigned school on or before the Emergency Placement Services end. Assessments and a TEAM meeting must be conducted and held before the fifteenth day.” (P54, SE)
22. Student was enrolled at Compass for 104 days and present at the program for 65 days (P11). No assessments were done nor was a Team meeting held at any time during Student’s tenure at Compass (Williams, Mother).
23. Compass reports indicate that Student “excelled academically as a student and maintained his current academic levels”(P11). The academic levels indicated were Kindergarten and 1 st grade levels for reading and math and 2 nd grade for science (P13) ( but see P55 showing testing at prekindergarten and kindergarten levels). The progress reports indicate that Student met academic goals between 30-80% of the time but contain no indication regarding how these percentages were calculated ( See (P13)11 . The goals used were from the June 2001 IEP containing no signature from the Parent because it had not been presented to her at any time during Student’s placement at Compass (Williams, Parent).
24. Student met his behavioral goals about 20-25% of the time (P13). He was suspended twice for a total of three days (P11, P12). [While at Compass] “much of Student’s issues were not being able to follow directions and when he didn’t like the directions staff would give him, his attitude would become very disruptive.” Time outs, hold-outs and/or restraints (including extended restraints) were given on at least fourteen occasions for making outbursts in class, threatening peers, refusal to do work or follow staff instructions, making disrespectful comments to teachers and refusal to go to time-out (P16, Mother). While Student was at Compass, staff called Mother approximately two times a week asking her to take the Student home for the rest of the day or telling her that Compass staff was bringing the Student home (Mother). Student had difficulty sleeping during the last two months of his placement at Compass, often being “up all night long, or not sleeping at all.” Student told his Mother that he could not sleep because he was upset that other students left Compass but he had to stay, that he would make friends at Compass and then they would leave, and that other students at Compass were “very abusive to him or hitting him.” (Mother)
25. On January 11, 2002 Student was rehospitalized at Pembroke Hospital for escalating behavior that began with refusal to go to bed and increased to hitting, kicking, spitting and punching with his sister and then with police (P56). Pembroke transferred Student to Walker ART on January 12, 2002. He remained at Walker ART until his discharge on June 25, 2002, a stay much longer time than typical (P56, Adams). Boston did not conduct any assessments, convene a TEAM meeting or provide any educational services while Student was hospitalized on at the Walker ART despite several calls from Walker ART’s social worker Ms. Adams (Adams, Williams, Mother).
26. Walker ART held treatment plan meetings on January 17 and 25, 2002, March 8 and March 14, 2002 and a discharge meeting on June 25, 2002 ( See P7, P8, P9, P10, P56). Boston attended only the discharge plan meeting although it was invited on several occasions to come to all the other meetings (Adams, also see P10).12
27. While at Walker ART Student received educational services from Walker staff in a classroom with eight other students and four staff (Adams). The classroom at Walker ART is provided to maintain students at whatever achievement levels they have reached at the time of hospitalization, but is not designed to advance students to higher achievement levels (Adams).
28. At some time in January or early February 2002, after Student entered the Walker ART, Walker ART told Mother that Boston had an IEP proposing the McKinley Elementary School (Mother). This was the first time Mother learned of the McKinley program even though Boston had written its IEP in June 2001 (Mother). Mother rejected this IEP on February 7, 2002 (P1, Mother). On March 7, 2002 Mother rejected this IEP on a second occasion, after a Boston secretary told her that the form with her original rejection had been lost (Mother, P1).
29. When Student first began attending Walker ART he was extremely aggressive on a frequent basis (four to five times per day) despite behavioral treatment, medication, family therapy and family intervention (P8, Adams). “After a few weeks [Student’s] holds became fewer and farther between” with Student going for days without being held. Incentive plans were implemented to eliminate Student’s aggression and level of holds (P56). However, as of January 28, 2002, Walker ART’s social worker Debbi Adams asked DSS to approve residential placement for Student because of Student’s threats to staff in individual therapy, and because of concerns regarding Student’s safety in Mother’s home if Student and his older brother were together there (P10). Ms. Adams felt that even if Student was discharged with medication and the most intensive of home-based and community services, the potential for harm would still be high ( see P56). She noted that: “It is the Walker Treatment Team’s recommendation that [Student] will require a 24 hour, seven day a week supervision in a setting where he can also receive specialized education services, physical containment when necessary, and continued therapeutic interventions such as group, individual and family therapy.” A copy of the letter was sent to Boston; Id. Walker ART gave no further information regarding these specialized services and Boston did not ask for clarification ( See P10, Adams.)13
30. On March 14, 2002 Walker ART’s child psychologist sent a letter to Boston informing them that the Walker ART could not safely discharge Student to outpatient treatment and education in a day school and urged Boston to approve residential education for Student (P8). At that time, Boston made an internal staff determination that the McKinley School placement recommendation contained in the June 2001-June 2002 IEP was appropriate and decided not to reconvene Student’s Team (Stella, Williams).
31. Brighton-Allston Mental Health Association conducted a psychological evaluation on March 4, March 6, and March 13, 2002 (P17). It was faxed to Walker on April 17, 2002 ( See P17.) Mother delivered the evaluation to Boston upon her receipt (Weiss, Mother, Adams). Boston did not reconvene the Team.14
32. The Walker ART treatment Team met on May 13, 2002 to review Student’s progress, noting that since April 2002, Student’s “behavior has greatly improved and stabilized”, noting that he had required no physical restraints, had complied with all milieu directions and limits and used individual and group therapy well (P7). The ART Team also noted that Student with Orton-Gillingham (O-G) instruction, Student had made great gains in his ability to read where he previously would escalate when asked to participate in a reading activity ( See P7, Adams.) Therefore, Walker ART determined that Student no longer required residential placement (P56, Adams).15 Boston attended this meeting and proposed implementing Student’s day program at McKinley Elementary School until the end of the school year, continuing at the McKinley/Wediko summer program and a six-week camp program from DSS.16 Walker ART staff proposed a twelve-month therapeutic day program (P7, Adams).
33. A prehearing conference was held at the BSEA on June 11, 2002. The parties explored placement options and the Hearing Officer set hearing dates for August 26-27, 2002 (Adams).17
34. On June 13, 2002, Mother, Student, and Ms. Adams visited the McKinley Elementary School intending to transition him there after attendance at Wediko. Student and Mother were anxious about the visit because Brother had attended McKinley Elementary from November 2001 through March 2002. While there, Mother, and often Student, picked up Brother about twice per week, often witnessing arrests, swearing and children in and out of the classroom (Mother). When Mother, Student and Ms. Adams visited on June 13, 2002, many students were yelling and running in and out of classrooms (Mother, Adams). During the visit Student was extremely overwhelmed and his ability to communicate had dramatically decreased. When Student was asked questions that typically would require no thought to answer Student would give an odd stare (Adams). When Student returned from the visit, Student told Ms. Adams that he would not be safe were he to be placed at McKinley and expressed great concern about his ability to do well and not regress to negative and aggressive behavior (Adams, P56). Mother also had these same concerns (Mother). After the visit, Mother rescinded the agreement for Student to attend McKinley (Mother).
35. On June 25, 2002, Student was discharged to Mother from Walker ART and attended a DSS sponsored camp program during the summer. He did not receive educational services during that time (Mother, Williams).
36. In July 2002, Marsha Stevens was asked to provide consultation regarding placement issues (Stevens).18 She concluded that Student required a language-based program in a therapeutic milieu in an environment that reduces frustration and anxiety, provides for success in the academic setting, incorporates therapy and pragmatic language instruction and has consistent medical input (Stevens). After reviewing Student’s records, Ms. Stevens found the IEP’s to be inappropriate because they did not provide appropriate goals or O-G instruction for teaching Student reading and writing and did not provide the pragmatic instruction Student requires (Stevens).
37. On July 15, 2002, Ms. Stevens observed Student’s proposed summer program. The summer school program is a separate summer school program that is run for four days each week for about five weeks run by Wediko, an independent contractor hired by the Boston Public Schools (Stevens, Stella). Staff is independently hired by Wediko’s clinical director (Stevens, Stella). Although preference is given to McKinley staff, not all are teachers who have taught at McKinley during the school year; (Stevens). The students Ms. Stevens observed were doing guided reading and writing activities at abilities at least one to two years above Student. The math activities (fractions with like common denominators) were approximately three years above Student’s level; Id. Ms. Stevens also observed a drama class that was, although well run, not language-based nor otherwise appropriate for Student due to its noise level, requirement for memorization of word sequences and exposure to peer critique (Stevens). When Ms. Stevens inquired about the other student’s abilities, she was told that the children in the Student’s assigned class were a “mixed bag”, including children with non verbal learning disorders, Aspergers syndrome or high functioning autism, and borderline retarded cognitive abilities. The Director of the program did not mention any children with language-based learning disabilities. When Ms. Stevens asked him about a program for children with language-based learning disabilities she was informed that “there is absolutely no language-based program during the summer” and there were no teachers in the summer school program who were certified in the O-G or Wilson systems (Stevens).
38. On August 13, 2002 and August 16, 2002, Boston conducted a psychological evaluation and an educational evaluation (SF). The educational evaluation re-affirmed Student’s continuing struggle with basic reading, writing and spelling skills, showing testing results at a six year old level in basic reading skills. Student was able to identify letters and simple, one syllabic words such as in, cat, can, and as, but he was not able to pronounce any words above grade 1.4.and could not read any words in the reading fluency section. Upper and lower case letters took Student more than five minutes to print and contained many reversals and omissions. Receptive vocabulary and visual-motor integration skills were well below average (kindergarten level). The school psychologist found significant discrepancies between Student’s predicted and actual achievement in Word Reading, Reading Comprehension, Decoding, Reading Composite, Numerical Operations, Math Reasoning and Composite, Spelling, Written Expression, Written Language Composite and Total Composite indicating specific learning disabilities in these areas (SF). She noted a “15-point statistically-significant discrepancy … between the Verbal and Performance Scale scores, in favor of the Performance Scale…indicating that Student may have a predominant visual and nonverbal learning style” and found “overall intellectual functioning falls in the Below Average range at the 18 th percentile”(SF). Boston’s school psychologist and Ms. Stevens however, noted that there was great intersubtest scatter within the performance scale subtests with strengths in spatial visualization, analysis and synthesis, and the ability to synthesize concrete parts into whole and visual motor planning ability. Ms. Stevens concluded that Student would be “well within the average range” once bias in certain sub-tests for school-based learning is removed; see (SF, Stevens). The school psychologist made a recommendation for “a highly structured, small group educational classroom setting within a therapeutic milieu, designed to fit his ability and achievement levels [containing] “a strong behavior management system, crisis intervention, individual and group counseling and family outreach…intensive remediation in reading, language arts and math and an intensive rule-based reading program” (SF, Recommendations 1, 10). She also recommended continuing individual psychotherapy and psychopharmological monitoring, sharing of information between home, school and service providers, and a speech/language evaluation to determine if services are needed (SF, Recommendations 1-5, 12).19 Specific accommodations suggested were chunking of information, repetition, rephrasing, demonstrations, imitation, memory games and exercises, visual cues such as color coding and highlighting, allowing extra time for processing, and ongoing praise and encouragement for continuous efforts and accomplishments (SF Recommendations 6-9, 11).
39. On August 13, and 15, 2002, Andrea Weiss, Psy.D20 also conducted psychological testing and interviews (P55). She did not contact Boston (Weiss). Boston was not aware of this testing until told by Mother during their assessment; see (SF).21 Dr. Weiss confirmed “the diagnosis of a language-based learning disability” finding a 31 point discrepancy between his verbal and nonverbal skills and a 39 point discrepancy between his verbal comprehension and perceptional organizational index (Weiss, P55). “At age 8.6” Student’s reading, spelling and language arts skills show Student to be a nonreader and nonwriter working at a kindergarten level” ( See P55, Weiss.) She recommended [placement]” in a classroom specifically for children with a primary diagnosis of language-based learning disability with at least overall average cognitive skills. She also recommended that “subjects … be taught with a speech and language pathologist”, and that a “consistent developmental, systematic syllable based language program such as O-G or Wilson Reading … be used”; (P55, Weiss)22 . Dr. Weiss also noted that the program would also need to address Student’s emotional deficits but recommended an environment as “stable as possible” because Student as a child with PTSD would “get re-traumatized when in an environment where other kids are escalating.” (Weiss). She also found that Student’s behavior problems are exacerbated by his severe language disability (characterized in testing as having a 40 point spread between verbal comprehension and perceptional organization) making school “horribly difficult” for him leading to his anxiety, depression, and acting out behavior; see (Weiss). As such, “staff would need to be “specifically trained in language-based learning disabilities” [because] “it is likely that at least part of his behavioral difficulties are directly linked to the lack of academic support and services for his language issues.” (P55, Weiss)
40. On August 20, 2002, Student’s Team reconvened for Student’s annual review and to consider the evaluations (Williams). The prior IEP had lapsed at the end of June 2002 (Williams, compare P3, SH). The Team met for about one hour (Williams). Present at the meeting were the Parent, her attorney, Dr. Weiss, Ms. Achildiyev (the school psychologist), Ms. Fanning (special education teacher), Ms. Williams (Assistant Program Director), Boston’s attorney, and the Team chairperson, Adele Chiachio (SH). At the meeting, Dr. Weiss, Ms. Achildiyev and Ms. Fanning presented their respective reports (Williams). The Team agreed that the Student required a speech and language assessment, and Mother consented to that assessment (Williams). Near the end of the meeting, the Boston Team chairperson stated that Boston was recommending that the Student be placed at the McKinley Elementary School. She also stated that since Boston was not going to change its decision and since she understood that the Parent was opposed to this recommendation, it would be futile to pursue a discussion of the placement issue (Parent, Weiss, Williams). There was no discussion about extended school year programming (Williams, Parent). Although Dr. Weiss, the Parent and the Parent’s attorney objected to the McKinley recommendation, and Ms. Achildiyev acknowledged that she had no knowledge of McKinley, there was no further discussion of the placement issue and the Team meeting was ended by the Team chair; Id.
41. The proposed IEP runs from September 2002 to June 2003 with specialized instruction at the McKinley Elementary School and a longer school year at the Wediko summer program; see (SH). The McKinley Elementary School’s objective is “to provide early intervention in a therapeutic academic setting, leading to less restrictive placement or preparing the student for future appropriate academic, vocational or technical experience.” (SA) It services up to 88 children “high-risk, multiple-problem children, five to twelve years of age, in grades K-5, with learning disabilities, behavior problems, and/or emotional problems.” (SA p.4) All or almost all are between one to four years below grade level (Stella). There are eight classes each with a teacher to student ratio of one teacher or aide to three students (SA, Stella). The elementary school has one class designed to meet the needs of learning disabled students (SA). Ms. Stella believes that 50-60% have dyslexia (Stella). Neither the McKinley Schools Program Description, (revised June 2001)(SA) nor the McKinley Schools Whole School Improvement Plan 2001-2002, (revised November 2001) (SB) make reference to a language-based learning program, nor is there any reference to O-G or any rule-based system; see (SA, SB).
42. The McKinley Elementary School is located in a large building sharing space with the McKinley Middle School and the McKinley Technical High School (Stella). The elementary school is located on the third floor of the building and can be accessed either through an entirely separate entrance way and staircase that lead directly to the Elementary School floor or through the main entrance way and corridors also used by middle school and high school students. The separate entry is usually locked except when the elementary students come in at the start of school, leave at the end of the day, or are otherwise exiting or entering with their classmates and teachers (Stella). Elementary students who come in late or must leave during the day often exit or enter through the main entrance and corridors (Stella, Mother). There is a metal detector at the main entrance and older middle school and high school children are often in the main corridors (Mother). Elementary school students who come in through the front entrance can witness arrests, swearing, and children in and out of the classroom. Older students sometimes “roam corridors”, including the elementary school corridors (Adams, Stevens, Weiss, Mother).
43. McKinley Elementary students all receive math, reading, language arts, survival skills, art, music appreciation, gym, science social studies and instrumental enrichment with supplemental courses in computers, woodworking and cooking (SA)23 . Each student has a literacy plan and receives two hours of literacy per day consisting of forty-five (45) minutes of readers workshop (guided reading;), thirty minutes of explicit reading and 45 minutes of writers workshop (guided writing). Direct decoding instruction is given using the SRA Reading Mastery approaches and those who need it receive Project Read or Wilson. Independent and home reading is part of the curriculum (SB, see also Stella). Teachers receive mandatory professional development in these areas (Stella, SB). Literacy coaches meet with elementary school teachers for approximately twenty days per year and provide training, observe and model lessons, and provide feedback to teachers on writing, guided reading and Framing your Thoughts (SB). The McKinley Elementary, Middle and Technical teachers also have access to a Literacy Specialist to provide modeling and coaching and training in Guided Reading, Writers Workshop and Literacy across the Curriculum (LAC)(SB). This specialist meets with the literacy coaches three times per year (SB). All students also receive an hour of math per day. Teachers receive instruction in LAC to ensure the link between literacy and effective math instruction and have access to the literacy and math coaches (SB). Teachers who service students who need more help in literacy receive literacy training in SRA Reading Mastery and Corrected Reading, Wisnea-Kapp and Soar to Success and many students receive Project Read, Lexia or Wilson instruction (Stella, SB). McKinley also requires professional development in SRA and Soar to Success (a guided reading program) but does not require professional development in Project Read, Wilson or O-G (Stella).
44. If Student attended the McKinley Elementary School under the proposed plan he would receive one forty (40) minute session of individual counseling per week from Wediko. Family therapy would also be available. Student would also receive 124 minutes of daily behavioral/social emotional services, including McKinley’s behavior plan. He would also be assigned a guidance counselor with whom he would check in weekly or upon his request (Stella). In addition, Student would receive two hours of daily language arts with a Special Education Teacher (Stella, SH). This would consist of 45 minutes of Readers Workshop, 30 minutes of explicit reading and 45 minutes of Writers Workshop (P57). The class would also have access to a Speech and Language Pathologist who would sometimes co-teach Language Arts (Stella). The teacher would also have access to a literacy specialist who meets with classroom teachers weekly to review literacy strategies used at McKinley such as SRA. Student would also have access to an “Alphasmart” to help with handwriting and language skills with an OT to work with him and his classmates on how to use it (Stella). Student would receive math instruction for one hour per day, forty minutes each of science and social studies three days per week and electives and “Instrumental Enrichment” (IE) once per week (SH, Stella). The IEP provides no consultation or any accommodations for district assessments; see (SH) Stella).
45. The IEP provides for the following accommodations: Small group-therapeutic setting, strong behavior management system, crisis intervention, group counseling, repetition (with kinesthetic approach), rephrasing, demonstrations, imitations, initiation-trail and error, material presented in small chunks, rule based reading program and specially designed instruction. Content is listed as “Rule Based reading program at his level-visual and hands on tasks.” Methodology/ Delivery of Instruction is listed as: “Behavioral component- therapeutic/clinical component- slow paced- multi-sensory- oral directions/material- opportunities for one-to-one small group”; (SH), also see (SJ 1-5). Although not listed on the IEP, Student would also have the “McKinley behavioral plan:” This plan would be revised by Student’s counselor and teachers with consultation with Student but the TEAM would not be reconvened (Stella).
46. Boston has proposed grouping Student with five to nine students taught by a teacher certified in Wilson or O-G (Stella).24 Redacted IEPs show that three of the five students have “borderline” cognitive abilities (SK IEP’s 1, 2, 4) and describes a child whose “delays” in expressive and receptive language skills “are consistent with his overall cognitive functioning” (SK, IEP 3). Only one of the five students has “language processing and formulation delays” (SK IEP 4). That student does not receive rule-based instruction and although the teacher has training in O-G, neither she nor support staff have certification in O-G or Wilson ( see (SK-IEP 4).
47. Dr. Weiss reviewed all of Student’s educational records, specifically reviewing Student’s June 2001-June 2002 and September 2002-June 2003 IEPs (Weiss). Dr. Weiss also reviewed Student’s proposed peer group and found it to be inappropriate because many of Student’s peers were cognitively delayed, engaged in chaotic and out of control behavior and had learning issues that were not language-based (Weiss). Dr. Weiss concluded that the goals and objectives stated in the proposed IEPs were inappropriate and needed to be “completely rewritten.” She noted that, for example, the September 2002-June 2003 contained a reading goal that is “not specific enough”, [because] it fails to identify the “rule-based program” that will be used. She recommended that these goals and objectives be rewritten to address four components; decoding, encoding, recall & retrieval of sight words, and contain literature read to the Student with specific exercises. She also concluded that the social/emotional goals were inadequate since there was nothing stated as to “what is going to get the [Student] to this place, from point A to point B.” She also found that the academic goals for math, social studies and science were inadequate because they were geared towards a student at a higher academic level (Weiss).
48. Dr. Weiss further noted that Boston’s use of Wisnea Kapp was inappropriate for the Student since it is not developmental in nature (children are allowed to move on without mastery). Dr. Weiss was also concerned that the program also does not contain a Speech/Language Pathologist who is “directly involved in the academics”. She also noted that the IEP was inappropriate because it lacks an appropriate behavior plan developed with the help of a functional behavioral assessment with input from clinicians that have worked with the Student and does not provide therapeutic supports with a counselor trained in language-based disabilities. Finally, Dr. Weiss concluded that the program does not have sufficient on-site psychiatric and psychological capacity to ensure that mental health issues can be dealt with on site without relying on “therapeutic suspensions” (i.e., sending the Student home or to a hospital) (Weiss). Based on her assessment, Dr. Weiss recommended a therapeutic language-based private day placement such as the Walker School.25
FINDINGS AND CONCLUSIONS
At issue is whether the program and services that Boston offered to Student in its IEPs from June 2001 through the present provide a free appropriate public education in the least restrictive environment. Also at issue is whether Boston committed procedural violations that denied Student a FAPE, thus entitling him to additional compensatory education.
Under the federal FAPE standard an educational program must be provided under an IEP that is tailored to the unique needs of the disabled child, and must meet all of the child’s identified special education and related service requirements, including academic, physical, emotional and social needs; 34 C.F.R. 300.300(3)(ii); Lenn v Portland School Committee , 910 F. 2d 983 (1 st Cir. 1990), cert. Denied, 499 U.S. 912 (1991) and Burlington v Mass. Dept. of Education, 736 F. 2d 773, 788 (1 st Cir. 1984).
Furthermore, special education and related services must be provided in the least restrictive environment; i.e., to the extent appropriate, with children who do not have disabilities, so that programs and services are implemented in separate settings only when, because of the nature and severity of the child’s disability, they cannot otherwise be provided effectively; 20 U.S.C. 1412 (5)(A).
Finally, FAPE also entails complying with the procedural requirements of the IDEA; a school district which violates a student’s procedural rights under federal or state law may be liable where “procedural inadequacies [have] compromised the pupil’s right to an appropriate education…or caused a deprivation of educational benefits.” Roland M. v Concord Public Schools , 910 F. 2d at 994 (1 st Cir. 1990); see also Murphy v Timberlane Regional Sch. Dist. , 22 F. 3d 1196 (1 st Cir. 1994) (“a procedural default which permits a disabled child’s entitlement to a free and appropriate education to go unmet for two years constitutes sufficient grounds for liability under the IDEA.”.
After review of the documents and testimony presented in this matter, I find that the McKinley Elementary School program would not have provided a FAPE to Student, nor would modifications make this program appropriate. I also find that Boston committed procedural violations that denied Student a FAPE entitling him to compensatory education.
There is no dispute that Student is a student with special learning needs as defined by M.G.L. 71B and 20 U.S.C. 1401 et seq. , and is thus entitled to receive a free, appropriate public education within the least restrictive environment. The parties disagree about whether the IEP contains goals and objectives geared toward Student’s Kindergarten and 1 st grade academic level. They also disagree about whether his program can be implemented at the McKinley Elementary School; however, there is no dispute regarding the nature of his special needs nor a dispute about the programming Student requires to receive a FAPE. Student has emotional disabilities that interfere with his learning as a result of his PTSD, ODD, ADHD and depression. Student also has dyslexia with wide gaps between his verbal comprehension and perceptual skills, resulting in deficits in receptive, expressive and pragmatic language skills and attention. These deficits lead to difficulty reading, writing, speaking and attending and impair Student’s academic and emotional functioning; ( See (Stevens, Weiss, Williams).
Boston’s proposed IEP correctly indicates that “Due to the diagnosis of a language based learning disability all domains of language are affected, including single word expressive and receptive vocabulary, ability to follow directions, holding onto and manipulating auditory information, verbal formulation and syntactic and semantic flexibility. [Student] also presents with deficits in reading and written language.” (S4)
Boston’s own psychological evaluation recommends placing Student in “a highly structured, small group educational classroom setting within a therapeutic milieu, [that is] designed to fit his ability and achievement levels, [and contains] “a strong behavior management system, crisis intervention, individual and group counseling and family outreach…[and] intensive remediation in reading, language arts and math and an intensive rule-based reading program” (SF). Boston’s psychologist also recommends continuation of individual therapy services and psychopharmological monitoring, sharing of information between home, school and service providers, a speech/language evaluation to determine if services are needed. She also recommends specific accommodations (chunking of information, repetition, rephrasing, demonstrations, imitation, memory games and exercises, visual cues like color coding and highlighting, allowance of extra time for processing and ongoing praise and encouragement for continuous efforts and accomplishments) (SF). Outside evaluators agree with these recommendations. See Stevens, Adams, Weiss, (evaluations Arbour, May 2001, Pembroke Hospital, Walker ART, Allston-Brighton Mental Health.)
Boston’s IEP and the proposed placement at McKinley Elementary do not incorporate these recommendations. Although Boston and outside evaluators consistently assess Student’s language arts skills at a Kindergarten to first grade level and math and science skills at a 1 st to 2 nd grade level, the goals and objectives in the IEP are geared toward students with higher language arts and academic skills. These goals and objectives need to be rewritten to address decoding, encoding, recall and retrieval of sight words, and to incorporate literature modified to Student’s reading level. See (Weiss, Stevens). In addition, all the goals and objectives (especially the social-emotional goals) need to specify how Student is going to achieve progress towards these goals or how to “get from point A to point B” (Weiss).
Furthermore, the IEP is not individually tailored to meet Student’s unique needs. Rather, the recommendations for extended year programming, therapeutic services and language arts reflect what is typically offered at McKinley and not what Student may require; compare (McKinley program descriptions, Student schedule). Boston admits that its four-week summer program is neither language-based nor is it coordinated with the McKinley school year program (Stella). It also agrees that Student should receive O-G instruction, but does not reflect this in its IEP. In addition, the teacher that Boston proposes to teach Student is not certified in O-G or in Wilson and Student’s schedule does not reflect that Student will be receiving either service. Ms. Steven’s observation of the program reflects instruction in independent and guided reading and writing activities using Wisnea Kapp and SRA reading methodologies which are inappropriate for Student because they are developmental in nature and do not require mastery before moving on (Stevens). Student’s class is made up of peers most of whom do not share Student’s average cognitive level and language-based learning disability. Although McKinley does provide some coordination between literacy coaches or math coaches and the literacy specialist, it has shown no evidence of language-based instruction across all aspects of Student’s curriculum.
The IEP does contain an appropriate recommendation for a speech/language evaluation. It does not however take into account Walker ART’s note of Student’s impaired hearing and articulation difficulties. As such, the evaluation should contain a hearing and auditory discrimination assessment26 . The IEP needs to contain goals and objectives or services to address pragmatic skill deficits and needs to provide consultation with DSS and Student’s medical providers and therapists as recommended by Boston’s school psychologist and Ms. Stevens. The IEP needs to contain a Functional Behavioral Assessment (FBA) and an individualized Behavioral Intervention Plan (BIP) based on a FBA.27
Finally, Dr. Weiss, the Arbour Hospital and Walker ART staff all have recommended that due to Student’s attention deficits and PTSD possibly caused by witnessing violence, Student requires instruction in a quiet, calm setting where he will not be distracted, frightened or re-traumatized. Boston’s IEP also indicates that Student’s possible PTSD affects his ability to learn in the traditional way (S4). McKinley Elementary does not have the small, quiet environment Student requires. The McKinley Elementary School is situated in a large facility that it shares with a middle school and a high school. Although McKinley has made efforts to insulate the elementary school students from the middle and high school students, there remain significant areas of overlap. The younger children often need to enter and exit through the main hall and entrance that are also used by the older children. This area is chaotic and frightening, where loud noise, swearing, fighting, and arrests are often witnessed. During the summer older children occasionally “roam” the corridors of the elementary school section of the building. Mother, Ms. Stevens, Ms. Adams and Dr. Weiss all have reported seeing children out-of-control in the elementary section of the building, entering and leaving their classrooms, yelling and running. For these reasons, even if McKinley could be modified to be language-based it is not currently capable of providing the therapeutic environment that the Student needs to make educational progress (Weiss).28
The record shows that from at least May 2001 to the present, Boston has made numerous procedural violations that denied Student a FAPE and as such Student is entitled to compensatory education to remedy those violations.
Student reenrolled in Boston in the spring of 2001 with an accepted IEP from Fall River.31 Boston convened the TEAM on May 14, 2001, one week after the Student was admitted to Arbour Hospital. Boston did not invite Arbour to the TEAM meeting or otherwise obtain information from Arbour; therefore, Boston did not receive Arbour’s recommendation for a small structured classroom with access to therapeutic staff intervention and a counselor as well as development of a behavior plan (see P50, Finding 7). Boston also did not, as required, implement the accepted recommendation for an “emergency placement of home tutoring.” See 34 C.F.R. 300.342(b)(1), 34 C.F.R. 300.350(a)(1). Rather, Boston returned Student to a general education classroom and resource room that was not equipped to meet his needs and was an unsafe situation.
In addition, Boston did not conduct its emergency evaluations in a timely manner. Mother consented to Boston’s request for emergency evaluations on May 9, 2001. The evaluations were not completed until June 4, 2001 and the TEAM was not convened until June 25, 2001. The previous 766 regulations specify that an emergency evaluation and placement be convened on the same day as consent is received; leading to completion of evaluations and TEAM meeting within fifteen days; 603 C.M.R. 28.330. The current 766 regulations and the IDEA are silent as to emergency evaluations; however, if a parent consents to an “emergency” evaluation that evaluation should be done in an expeditious manner, not thirty-three (33) working days later.
Further, Boston’s TEAM process was flawed. Boston failed to take reasonable measures to ensure that the Parent was given the opportunity to participate in the June 25, 2001 TEAM meeting that resulted in a recommendation for programming at McKinley Elementary. Mother was not present at this meeting because she received notice after it occurred (Mother).
“Each public agency shall take steps to ensure that one or both parents….are present at an IEP meeting or are afforded the opportunity to participate including notifying parents of the meeting early enough so that they will have the opportunity to attend; 34 C.F.R. 300.344 (a)(1). Team meetings may proceed without a parent’s participation only when meaningful but unsuccessful outreach efforts have been made and documented. The public agency must have a record of its attempts to arrange a mutually agreed on time and place, such as (1) detailed records of telephone calls made or attempted and the results of those calls; (2) copies of correspondence sent to the parents and any responses received; and (3) detailed records of visits made to the parent’s home or place of employment and the results of those visits.”; 34 C.F.R. 300.344 (d)(1)(2)(3).
Mother did not receive any written or oral notification of the meeting (Mother, Williams, see Record). Boston also does not deny that it did not attempt to obtain Mother’s consent to contact either Arbour or Pembroke Hospital to obtain information about Student thus denying Mother the right to have as part of the TEAM other individuals who have knowledge or special expertise regarding the child; see 34 C.F.R. 300.322(6). Consequently, the June 25, 2001 Team was not properly constituted, nor did Boston, as required, assess Student in all areas of his disability; see 34 C.F.R. 300.532(g). As such, the TEAM’s deliberations and the resulting IEP did not contain Arbor Hospital’s recommendation for a therapeutic small structured therapeutic classroom with creation of a behavior plan nor did it have benefit of Pembroke Hospital’s impressions, making the IEP at best, incomplete.32
Boston also did not give Mother advance notice of its intent to place Student at McKinley Elementary nor did it timely present the June 25, 2001 IEP to Mother. Whenever an LEA proposes to change a child’s special education placement it must provide prior written notice to the parents; see 20 U.S.C. § 1415 (b)(3). In addition, “[I]mmediately following the development of the IEP … the district shall provide the parent with two (2) copies of the proposed IEP and proposed placement.”; 603 CMR 28.05(7).
Further, “When the participation or consent of the parent is required and the parent fails or refuses to participate, the school district shall make and document multiple efforts to contact the parent. Such efforts may include letters, written notices sent by certified mail, electronic mail (e-mail), telephone call, or, if appropriate, TTY communications to the home, and home visits at such time as the parent is likely to be home. Efforts may include seeking assistance from a community service agency to secure parental participation; 603 CMR 28.07(1)(c).; see also 34 CFR 300.345(d) requirements ( supra ). If the above efforts are attempted and documented and the district is unable to secure parental consent to a reevaluation or placement subsequent to the initial placement in a special education program, the school district shall proceed in accordance with (b) [whereby the school district may seek resolution through the 603 CMR 28.08 dispute resolution procedures if “the school district determines that the parent’s failure or refusal to consent will result in the denial of a free appropriate public education to the student”]”; 603 C.M.R. §28.07(1)(c). In this case, Mother did not know of the existence of the IEP until February 2002 when told by Walker ART staff and received the IEP only by her request.33
Here, Boston admitted that it intentionally did not send the IEP to Mother due to a belief that it had to get internal approval for McKinley before a student could go there (Williams). A student’s program and placement is the decision of the Team based on the individualized needs of the student and can not be an internal decision; see generally 603 C.M.R. 28.05, 28.06. Even if Boston did mistakenly think that it could not produce an IEP for McKinley, its actions left the Student without any IEP or services.
In September 2001, Student was assigned by mistake to a general education classroom at the Condon School despite the Team’s determination that it would be unsafe for Student to return to a general education classroom and despite new information that Student had had two hospitalizations prior to the end of the school year. This action violated Student’s right to “remain in his or her then current education program and placement unless the parents and the school district agree otherwise.” 603 C.M.R. 28.08(7). When Student again displayed aggressive behaviors in the classroom Boston did not convene the Team to address any lack of expected progress or ask Mother for consent to receive information from Pembroke Hospital to ascertain whether there had been any evaluations or recommendations from them; see 34 C.F.R. 300.343(2)(i)(ii). School districts are required under the IDEA to “ensure a reevaluation of each child with a disability … if conditions warrant a reevaluation.”; 20 U.S.C. 1414(a)(2), see, e.g. , In Re: Peabody Public Schools, BSEA #01-3945, 8 MSER 108, 126 (consistently low grades contrasted with average to above-average cognitive ability constituted a “condition” that warranted reevaluation). A Team must also be convened whenever a reevaluation is done; 603 C.M.R. §28.05(1). Boston was aware on several occasions of major changes in the Student’s circumstances and of the availability of substantial new sources of clinical and educational information regarding the Student. Thus, a reevaluation after the Student’s Pembroke Hospital discharge would have revealed Pembroke Hospital’s neuropsychological report recommending a language-based therapeutic setting, and communications with Pembroke at that time might have produced information responsive to the Boston staff recommendation, contained in the June 2001 –June 2002 IEP, for a hospital-based assessment of “physical and/or sexual abuse.”
Boston also did not reconvene the TEAM before proposing and sending Student to the emergency placement at Compass even though this was a change of placement requiring evaluation and a TEAM meeting; 20 U.S.C. 1414. When Student was at Compass, Boston implemented goals and objectives of an IEP not sent to Mother and failed to conduct evaluations or convene a Team even though Student was not successful at Compass34 and the emergency placement form that Mother was given stated affirmatively that “assessments and a Team meeting must be conducted before the fifteenth day.”
In January 2002, and again in March 2002 when Walker ART informed Boston that Student needed a residential school placement, Boston did not obtain additional information from Walker ART regarding the need for a more restrictive placement or whether Student was capable of receiving educational services in the hospital. Nor did it, despite a change in placement, propose to conduct their own evaluations or convene a TEAM as required by 20 U.S.C. 1414(a)(2). Nor did Boston reconvene the TEAM when it received an independent evaluations from Brighton-Allston Mental Health on April 17, 2002 as required to do within ten school days of its receipt of an independent educational evaluation; see (603 CMR 28.04(5)(f).35
The McKinley Elementary IEP expired in June 2002. Boston did not conduct evaluations until August 2002 and when the TEAM convened in August 2002 it did not allow Parent to effectively participate in the TEAM discussion nor did the TEAM consider extended year programming for Student, nor did it discuss an individualized FBA for Student even though IDEA requires the TEAM to consider for those children whose behavior impedes learning, strategies, including positive behavioral interventions and supports to address behavior; see 34 C.F.R. 300.346(2)(i). As such, the resulting IEP was, in addition to substantively inappropriate, procedurally incomplete.
Parent has asserted that Boston has committed procedural violations and is entitled to compensatory education but has not specified a remedy.36 The record shows that if Boston had not committed these violations they would know or should have known by late May 2001 to early June 2001 that Student would require a language-based therapeutic program with a behavior plan. As such, Student is entitled to this type of compensatory services for a period of 16 months, the period during which services were not received: June 1, 2001 to the time that Student entered a therapeutic language-based program (October 7, 2002).
Student is currently entitled to receive a language-based therapeutic program with a behavior plan and should have received this type of program from June 1, 2001. Therefore, Boston will prospectively develop an IEP for a therapeutic language-based year round program with O-G instruction that includes consultation with Student’s social service and medical providers, a FBA, speech/language and hearing assessment and goals and objectives with benchmarks geared toward Student’s current academic performance. The Team will reconvene after completion of these assessments to determine if Student requires speech/language (including pragmatic) services and additional behavioral supports and services.
If and when Student requires less restrictive programming, the Team will meet to determine how these compensatory services shall be delivered. If the Team determines that Student, in order to receive a FAPE, continues to require a year round therapeutic language-based program until the end of his eligibility, these 16 months of compensatory services will be added at the end of Student’s eligibility period.
By the Hearing Officer,
Joan D. Beron
Date: November 15, 2002
This name is a pseudonym for case identification purposes.
The deadline for submission for closing arguments was extended on two occasions at Boston’s request to allow the parties to pursue settlement options and locate a therapeutic language-based program if Boston’s proposed program was not found appropriate.
Parent had not at hearing identified a specific program but requested that the Hearing Officer make a determination regarding the appropriateness of Student’s IEPs. Parent moved to bifurcate the hearing. Boston assented to this request and agreed to develop an IEP for the Walker School if Boston did not prevail at hearing. The Hearing Officer issued an order on October 3, 2002.
Student also has an older brother (Brother) diagnosed with ADHD, BiPolar disorder and Psychosis. Brother is in a residential program (P56, Mother). That matter has been resolved and is not the subject of this matter except as it pertains to Student. Father also does not reside in the home pursuant to a restraining order and has not seen Student since approximately March 2001.
The family did receive voluntary services from DSS from January 17, 2001-July 2001 to assist with behavior management at home (SF).
The evaluation and IEP make note of dysplexia (P4, P34). The parties agree that this was a typographical error .
A suspension hearing was held on May 30, 2001 at 2:00 p.m. Mother did not attend. There is no indication about whether Parent received notice; see (P25, P26).
This was the last day of the school year.
Student was also found to have mild articulation difficulty. The evaluation lists no articulation testing and witnesses could not provide further information at hearing.
These regulations refer to those in effect prior to issuance of the current regulations.
Compass did not testify and no one from Boston elicited this information.
DSS also did not attend meetings. Compass staff did attend. Mother had also obtained voluntary services from DMH prior to Student’s admission to Walker ART; however, DMH was not invited to treatment meetings ( See P10.)
DSS was willing to consider a cost-share but would not place Student in a residential program absent this agreement ( See P56).
The evaluator (a psychology practicum trainee) administered the Rorschach, the Roberts Apperception Test-B, the Draw a Person test, the Kinetic Family Drawing, Sentence Completion and the Early Memories Test. He did not make any recommendations deferring to Walker for specific recommendations and services (P17).
Part of the discharge planning decision to change the recommendation from a therapeutic residential placement to a therapeutic day placement was based on Brother no longer being in the home. Brother had been admitted to Walker ART in April 2002 and initially shared a room. Student began to resort to his previous behavior of swearing and noncompliance and was sad and depressed in therapy sessions. Brother has since moved from Walker ART and is living in a residential facility.
Boston later modified this proposal to placement at the Wediko residential summer program followed by a program at the McKinley summer program for the 2002-2003 SY.
This matter was transferred to this Hearing Officer in August for hearing.
Ms. Stevens is an educational consultant with experience teaching and evaluating students with language disabilities; see (P58).
Walker ART reports also note that Student has impaired hearing; see e.g. (P7).
Dr. Weiss is a licensed psychologist and certified in Massachusetts in Moderate Special Needs working in schools, hospital settings and/or private practice since 1976; see (P60).
Different testing instruments or test versions were used and Student was cooperative during testing. Neither Party asserts that either test is invalid.
Ms. Stevens recommends that Student begin with O-G because Wilson requires a higher level vocabulary and is more complex.
IE is a regular education mandatory component at McKinley that develops metacognitive, organizational and interpersonal skills (Stella).
Ms. Stella testified that Student would be grouped with nine students. The Hearing Officer requested that Boston submit IEPs. Boston submitted five redacted IEPs.
Boston does not intend to contest Student’s proposal for placement at Walker in the event that the Hearing Officer finds that Boston’s proposed program does not meet Student’s needs (SL).
Boston should also coordinate with DSS to determine if a sexual abuse evaluation may be helpful. No testimony was given regarding Student’s need for this evaluation. It does however require more exploration.
Boston has asserted that there is no pattern to Student’s escalating behavior; however, the record is consistent that Student’s behavior escalates in part during times when he is frustrated by academic tasks and that he responds to praise and incentives. This and other data needs to be collected and interpreted by a specialist and incorporated into a FBA.
Modification would require significant consultation from a learning disabilities specialist who could examine the program and implement and supervise training and provide accommodations and modifications to ensure that language-based programming occurs throughout the day. This could not be implemented in a timely manner for Student.
Although not in the IEP the parties agree that Student requires year round programming.
Boston has indicated that if its program is found not to provide a FAPE to Student it will not contest having the IEP implemented at the Walker School if Student is accepted.
The record reflects that when Student first entered the Boston Public Schools it attempted to convene a TEAM to address Student’s special needs but Father cancelled the TEAM meeting and Student moved from Boston shortly thereafter. As such, Boston is not liable for compensatory education for this time period.
Pembroke’s psychological evaluation was conducted in July 2001.
It was rejected in February 2002 but lost by Boston leading to a second rejection in March 2002.
Compass, a private school, also committed procedural violations when it instituted repeated short term removals from school (twice per week) which constituted a pattern of exclusion requiring a reconvening of the TEAM to develop a FBA plan and BIP; see 34 C.F.R. 300.519, 520.
Boston also received the Pembroke Hospital psychological evaluation during this time period but it is unclear when this evaluation was received.
Parent has not made a claim for damages.