Student v. Lincoln Public Schools and Lincoln-Sudbury Public Schools – BSEA #03-0357
COMMONWEALTH OF MASSACHUSETTS
SPECIAL EDUCATION APPEALS
In Re: Student v. Lincoln Public Schools and Lincoln-Sudbury Public Schools
BSEA # 03-0357
This decision is issued pursuant to 20 U.S.C. 1401 et seq. (the “IDEA”), 29 U.S.C.794, M.G.L. chs. 30A, 71B, and the Regulations promulgated under those statutes.
A Hearing in the above-referenced matter was requested by Parents on July 18, 2002, but at the joint request of the parties, the Hearing was convened on April 2, 3, 4, 8 & 15, 2003, at the BSEA, 350 Main St., Malden, MA, before Rosa I. Figueroa, Hearing Officer.
Parents’ written closing argument was received on May 20, 2003 and the School’s on May 21, 2003. The Record closed on May 21, 2003 upon receipt of the Lincoln Public Schools’ (hereinafter, “Lincoln”) and Lincoln-Sudbury’s (hereinafter, “Lincoln-Sudbury”) written closing arguments. Thereafter, at the request of the parties an Order was issued on July 10, 2003. The Order directed Lincoln-Sudbury to place Student in the Riverview School Program residentially beginning in the summer of 2003. The Parties were advised that additional orders would follow and it was agreed that any rights of appeals would be triggered upon issuance of the full decision.
Those present for all or part of the Hearing were:
Student’s Father’s Spouse
Heather Gold, Esq. Attorney for Student/Parents
Sarah Ward Speech and Language Pathologist
Barbara Bruno-Golden Clinical Neuropsychologist
William D. Singer, M.D. Pediatric Neurologist
Sara K. McLeod, Ph.D. Child Psychologist
David Gotthelf Director of Student Services, Lincoln-Sudbury Public Schools
Sandra Moody, Esq. Attorney for Lincoln and Lincoln-Sudbury Public Schools
Dr. Ann Helmus Pediatric Neuropsychologist
Theresa Watts Administrator of Student Services, Lincoln Public Schools
Theresa J. Nathanson Special Education 8 th grade Liaison, Lincoln Public Schools
Meredith E. O’Reilly Special Education 9 th grade Liaison, Lincoln-Sudbury Public Schools
Lynn Fagan-Wolter Speech and Language Pathologist, Lincoln Public Schools
Jennifer Ann Reen Clinical Counselor, Lincoln-Sudbury Public Schools
Lynne Hunter School Speech and Language Pathologist, Lincoln-Sudbury Public Schools
Rebecca Reitz Special Education Department Coordinator, Lincoln-Sudbury Public Schools
William C. Plott Jr. Teacher, Lincoln-Sudbury Public Schools
Ann Harriett Kramer English Teacher, Lincoln-Sudbury Public Schools
Parents’ Exhibits 1 through 18 and all of the subsections in these exhibits and Lincoln’s and Lincoln-Sudbury’s joint Exhibits (hereinafter, “SE”) 1 through 19 were admitted in evidence and were considered for the purpose of rendering this decision. The Parties stipulated that the BSEA decision would carry through June 2004.
Parents’ request for Hearing in the above-referenced matter was received on July 18, 2002, against Lincoln Public Schools challenging the program offered for the 2001-2002 and 2002-2003 school years, seeking reimbursement for summer placements going back three years from the time of filing of the request for hearing, and seeking placement of Student in the residential program at the Riverview School. Following both Schools’ request for postponement of the Hearing, Parents filed a Motion for Interim Order for Placement on August 2, 2002. The same date, Lincoln Public Schools filed a Motion for Joinder of the Lincoln-Sudbury Public Schools, which was unopposed by Parents. On August 6 th , the Schools opposed Parents’ Motion for Interim Order, which was followed by Parents’ request to be heard on the motion and to solidify Hearing dates during the week of August 19, 2002, to which the Schools objected.
A Hearing on the Motion was held on August 19, 2002. A Ruling denying Parents’ request was issued on August 20 th and the matter was set to proceed to Hearing on September 18,19 and 20, dates available to the Parties. Following other Motions regarding discovery, on September 13 th , the Parties jointly requested a postponement of the Hearing until April of 2003, after Student’s Team had an opportunity to meet in January 2003 and an IEP was issued for the 2003-2004 school year. Parents would amend their request for Hearing to include the 2003-2004 school year if necessary. Since the Motion session held on August 19 th included seven hours of factual testimony, the Parties asked that I retain jurisdiction and with their assent the testimony covered during the Motion session and the exhibits admitted in evidence were incorporated into the April Hearing and in this decision. The Parties also filed a Stipulation regarding Transportation. The Parties’ requests were granted and the Hearing was scheduled for April 2003. Parents then filed an amended hearing request dated March 26, 2003.
1. Whether Parents are entitled to reimbursement from Lincoln Public Schools for their unilateral placement of Student in the Riverview Summer Program for the summer of 2000;
2. Whether Parents are entitled to reimbursement from Lincoln Public Schools for their unilateral placement of Student in the Riverview Summer Program for the summer of 2001;
3. Whether Parents are entitled to reimbursement from Lincoln Public Schools for their unilateral placement of Student in the Riverview Summer Program for the summer of 2002;
4. Whether the IEP proposed by Lincoln Public Schools for the 2001-2002 school year offered Student a Free Appropriate Public Education (hereinafter, “FAPE”) in the least restrictive environment appropriate to meet Student’s needs and maximize her potential in accordance with state and federal special education law;
5. Whether the IEP proposed by Lincoln-Sudbury Public Schools for the 2002-2003 school year offered Student a FAPE in the least restrictive environment appropriate to meet Student’s needs in accordance with state and federal special education law;
6. Whether the IEP proposed by Lincoln-Sudbury Public Schools for the 2003-2004 school year offered Student a FAPE in the least restrictive environment appropriate to meet Student’s needs in accordance with state and federal special education law. If not,
7. Whether the residential program at Riverview constitutes an appropriate placement for Student for the 2003-2004 school year;
8. Whether Lincoln-Sudbury Public Schools is responsible to offer Student an extended school year program for the summer of 2003, and whether the Riverview Summer Program meets the criteria as the appropriate program;
9. Whether Student is entitled to compensatory education from Lincoln and/or Lincoln-Sudbury for their failure to provide services to the Student during the years in question in violation of Student’s legal rights.
POSITION OF THE PARTIES
The Parties do not dispute Student’s entitlement to special education services but view Student’s areas of disability and degree of disability differently. Student presents with right hemisphere learning disorder, language based disability, developmental dysgraphia, ADHD, Dysexecutive Syndrome, Fine Motor Disorder, Visual Accommodative Dysfunction, Cognitive Fatigue and Auditory and Phonological Processing Disorder. These stem from an acquired brain injury, which resulted from a history of congenital heart defect and stasis post cardiac surgery.
According to Parents, Lincoln Public Schools (hereinafter, “Lincoln”) is responsible to reimburse Parents for their unilateral placement of Student in the Riverview School Summer Program during the summer of 2000, 2001, 2002, given student’s severe needs, the recommendations of the service providers and the Team’s recognition that Student warranted summer services. However, extended school year programs were not included in Student’s IEPs, nor were any services provided by Lincoln during those summers. While Parents concede that Lincoln and they cost-shared the expenses for Student’s participation in the Riverview School Summer Program for the summers of 1999 and 2000, Parents argue that they are entitled to the full amount because no program was offered by Lincoln. Parents further challenge the IEP offered by Lincoln for the 2001-2002 school year and assert that it failed to provide Student a FAPE and was not designed to maximize her potential. Additionally, they assert that Lincoln failed to offer services delineated in Student’s IEP for that year. Parents cite the above as reasons for which the Schools should be responsible to offer Student compensatory services for the interruptions in services.
Parents also allege that Lincoln-Sudbury Public Schools (hereinafter, “Lincoln-Sudbury”) is responsible to reimburse Parents for their unilateral placement of Student in the 2002 Riverview School Summer Program. They further challenge the appropriateness of the REACH program offered by Lincoln-Sudbury for the 2002-2003 and the 2003-2004 school years, which IEPs they rejected. Parents assert that the combination pull-out/inclusion model, the lack of appropriate peers and real opportunities for socialization, the lack of a home program to provide Student consistency and an opportunity to truly internalize skills so that she can generalize from one setting to another, lack of real opportunities to acquire language skills, the programs’ failure to appropriately address functional life skills and issues around Student’s safety render these IEPs/programs inappropriate. Given Student’s multiple serious disabilities resulting from her acquired brain injury and medical issues, she requires the structure and consistency of a residential placement that uses a whole language model, where academics are taught at her level by providers who understand her disabilities, and where she has access to a pool of like-peers. According to Parents, the Riverview Program is the appropriate placement and they seek placement of Student in that program for the 2003-2004 school year, along with compensatory education services for the inappropriateness of the program offered by Lincoln-Sudbury during the 2002-2003 school year.
Lincoln’s and Lincoln-Sudbury’s Position:
Lincoln and Lincoln Sudbury acknowledge Student’s serious multiple disabilities and assert that they have offered Student appropriate programs during the years at issue. Lincoln acknowledges that the Teams discussed the need to offer summer services and that it was willing to offer tutoring during the 2001 and 2002 summers but Parents sought only placement at the Riverview School. Regarding the summer of 2000, Lincoln contributed to Student’s summer placement in the Riverview School by entering into a cost-sharing agreement with Parents. Lincoln challenges this program as a recreational summer camp and not educational. Therefore, it maintains that it was not responsible to fund it for the summers of 2001 and 2002. Lincoln-Sudbury makes a similar challenge in that it asserts that it is not responsible to offer summer programming and that Riverview is inappropriate.
Lincoln also asserts that it does not owe Student compensatory education for any interruption in services up to June of 2002 and states that the programs it offered Student met the recommendations of the providers and were appropriate. Student’s lack of participation in the after-school Hanscom Base Program was due to her own desire to participate in the school play, which she did successfully.
Lincoln-Sudbury asserts the appropriateness of the REACH program offered during the 2002-2003 and the 2003-2004 school years. These programs were appropriate, offered Student a FAPE and Lincoln-Sudbury’s expert found the 2002-2003 school program appropriate. It maintains that Student benefits from mainstreaming, exposure to typically developing peers and also has access to peers with issues similar to hers. Student wants to be normal, wishes to be accepted and has friends in Lincoln-Sudbury. It argues that it is not responsible to offer a home component and asserts that it does not see in school the types of problems Parents describe in the home.
Lincoln-Sudbury is adamant that Student’s safety is not an issue, and that any glitches, such as the bus incident where Student was left on Route 2 to walk home, were corrected immediately. It does not believe that Student requires special transportation but was willing to make special arrangements to appease parental concerns. Student is able to ride in the regular bus. Should any problems be found with its program it is confident that it can modify it to make it appropriate.
FINDINGS OF FACT
· Born on 3/19/1987, Student was a 16-year-old in the 9 th grade in March 2003. (PE-18A) At this time, no dispute exists between the parties regarding Student’s entitlement to special education services or her areas of disability.
· Early evaluation by Barbara Bruno-Golden, Ed.D (PE-2B) in October 1996 noted Student’s medical and psychosocial history. (PE- 3C) This evaluation was performed at the request of Dorothy Olsen, Director of Pupil Services in Lincoln Public Schools. It states that Student was born with a “congenital transposition of the great vessels of the heart, with additional problems of a bicuspid mitral valve ventricular and atrial septal defects and pulmonic stenosis.” (PE-3C) At approximately one year of age Student experienced additional medical complications including cardiac arrest a few months after her first cardiac surgery, that led to subsequent brain damage. ( Id. ) She also experienced a grand mal seizure 48 hours following the cardiac arrest. Student has had no additional surgeries. (PE-3C) On 10/4/90 Paul Marshall, M.D. diagnosed Student with ADHD, secondary to her acquired brain injury. (PE-3C)
· At three years of age Student was evaluated and found to be eligible to receive special education services in a substantially separate preschool program. (PE-3C) She began attending the Lincoln Public Schools at the age of six when she was enrolled in kindergarten and was provided with an aide and special education services, including speech and language, physical and occupational therapies. (PE-3C)
· At the time of Dr. Bruno-Golden’s evaluation in October 1996, Student was described as exhibiting a significant degree of ADHD, difficulties with peer interactions, and generally below level academic skills. (PE-3C) During the evaluation, Student exhibited a significant degree of hyperactivity, restlessness, distractibility, and impulsivity, requiring several sessions to complete the evaluation. Dr. Bruno-Golden administered the Weschler Intelligence Scale for Children (WISC III) with the following results:
Verbal IQ: 75 (borderline)
Performance IQ: 58 (mildly impaired)
Full Scale IQ: 64 (mildly impaired range)
Her Verbal Comprehension score of 83 (low average range), a Perceptual Organization score of 60, a Freedom From distractibility score of 69, and a Processing Speed score of 64 all fell within the mildly impaired range. (PE-3C) Because of the significant degree of intra-scale variability (17 point difference between Verbal and Performance IQ) and the inter-scale variability (sub-test scores ranged from .3 percentile to 50 th percentile in both the Verbal and Performance scales) the Toni-2 was administered. (PE-3C) Student earned a basal and ceiling age at the 10-12 year level, which surpassed all items in the 8-9 year level and demonstrated an IQ of 87 (low average non-verbal intellect). Performance on this test was commensurate with her Verbal Comprehension score on the WISC-III. (PE-3C) Dr. Bruno-Golden’s evaluation included further neuropsychological and neurobehavioral tests. (PE-3C) In addition to the low average range intellectual ability and scale variability, Student’s neuropsychological evaluation results demonstrated impairments in the areas of motor speed, attention, constructional skills and dysgraphia, visual perception and organization, word retrieval, executive skill and memory. (PE-3C) Neurobehaviorally, Student presented a severe degree of ADHD “as evidenced in impulsivity, hyperactivity, distractibility, and difficulties with maintaining focus to task.” (PE-3C) Student’s issues were found to be situational and likely to appear more often in a one-on-one situation or unstructured situation (such as at home), versus a structured environment with available peer models (such as the classroom). ( Id. ) Dr. Bruno-Golden also observed Student leaning over written work and bringing it close to her face, symptoms consistent with visual convergent insufficiency, accommodative dysfunction and visual perception difficulties. (PE-3C) Recommendations appropriate for her needs and learning style were also made, including speech/language and occupational therapy, a comprehensive behavioral program, home tutorial and a referral to Dr. Celia Henricks, a functional optometrist. ( Id. )
· Dr. Lorna N. Kaufman, Ph.D., performed an educational evaluation on October 23 and 28, 1996, when Student was in the third grade. (PE-5) She conducted a classroom observation, administered the Woodcock-Johnson Psycho-Educational Battery Revised (WJ-R), and the Test of Written Language (TOWL). (PE-5) Dr. Kaufman found deficits in phonological processing skills resulting in weak decoding abilities. Reading, spelling and writing skills were below 1 st grade level and math skills at a K.8 grade level. Dr. Kaufman recommended daily individualized tutorials in math, and weekly in reading using a multi-sensory structured language approach (Orton Gillingham), and that occupational therapy, speech and language, and physical therapy services be intensified for the remainder of that school year. Student’s academic progress should be re-assessed in May 1997 to determine whether the interventions were sufficient to have her participate in an inclusion classroom in the 4 th grade. (PE-5) Dr. Kaufman also recommended participation in a special needs summer camp as well as implementation of a behavior management program that provided support for the reported behavioral problems at home. (PE-5) Dr. Kaufman noted that if the suggested changes did not result in significant academic progress, it would be necessary to provide Student instruction in a small group fully integrated program. ( Id. )
· In November and December of 1997, Student’s fourth grade, Lincoln performed an educational assessment, administering the Woodcock Johnson-R. (PE-9C) Student demonstrated improvement (as measured by her percentile rank by grade) in the Letter-Word and Word Attack sub-tests. Additionally her scores demonstrated a grade equivalent increase from 1.5 to 2.0 and 1.3 to 3.8, respectively. Her percentile rank for the Passage Comprehension sub-test decreased, dropping from the fifteenth to the eighth percentile. (PE-9C) In the math sub-tests, Student increased her percentile rank, but remained below grade level, scoring a 1.9 grade equivalent in Calculation and a 1.5 grade equivalent in Applied Problems. (PE-9C)
· On January 23 and 29 of 1998, Dr. Bruno-Golden again performed a neuropsychological evaluation of Student at the request of Dorothy Olsen of the Lincoln Public Schools. (PE-3B) The evaluation was intended to assess Student’s then current behavioral and cognitive functioning and assist in making recommendations for Student’s “educational program and overall care.” (PE-3B) During this evaluation, Student exhibited some hyperactivity and restlessness, but such behavior was found to be mild in comparison with the previous evaluation of 1996. ( Id ; see PE-3C). Results from the WISC-III showed significantly improved sub-scores in Comprehension and Picture Arrangement. Because of score variability and Student’s history of language problems, the Toni-2 was also administered, revealing an average intellectual ability. (PE-3B) The Finger Oscillation Test, Pegboard Test, Hand Movement sub-test from Kaufman Assessment battery for Children, the Beery-Buktenica Development Test of Visual-Motor, Motor Free Visual Perception Test, Visual Cancellation Test, Peabody Picture Vocabulary Test (Revised), V Sub-test of the Token Test for Children, Cookie Theft (Boston Diagnostic Aphasia Exam), Wide Range Achievement Test-3 rd Revision, Trail Making Test, the Wisconsin Card Sort Test, Rey Osterrieth Complex Figure Drawing, selected sub-tests of the Wide Range Assessment of Memory and Learning, California Verbal Learning Test (Children’s Version), Connor’s Continuous Performance Test (Computerized Version), and the Home situation Questionnaire-Revised, were given. (PE-3B) Student was found to be functioning in the borderline (WISC-III, verbal measure) and average (Toni-3, non-verbal measure) ranges of intellectual capacity. While improvement was noted when compared to the results obtained in 1996, the overall test results in 1998 revealed “impairments in the areas of attention, sensorimotor functions, constructional skill and dysgraphia, visual perception and organization, word retrieval, cognitive flexibility, and memory.” (PE-3B) Student’s neurobehavioral presentation demonstrated situational ADHD, with overall improvement in demand performance testing situations, and at home in less structured situations. (PE-3B) The improvement in cognitive and behavioral development was seen as the result of increased special education services over the previous year. ( Id. ) Dr. Bruno-Golden recommended continuation of implementation of the previous recommendations and added preview and review of vocabulary and new information to address Student’s deficits in acquiring general information, and use of a computer for written assignments because of Student’s sensorimotor difficulties. Referrals were made to her pediatrician, to an occupational and physical therapist familiar with children exhibiting acquired brain injuries and to a functional optometrist. Modifications were also recommended during the Massachusetts High Risk Tests. ( Id. )
· In May of 1999, Student’s 5 th grade, Lincoln administered the Stanford Achievement Test. (PE-16) Student’s performance standard in all three areas, reading, math and language, fell in the lowest level (one) in all but one category, demonstrating “little or no mastery of fundamental knowledge and skills” in those areas. She demonstrated “partial mastery of the knowledge and skills that are fundamental for satisfactory work” only in the Language Composing category where she scored into level two. (PE-16)
· On June 7, 1999 the Team met to draft the IEP for Student’s sixth grade year, covering the period from September 1999 through June of 2000. (PE-18E) The IEP offered Student services under a 502.3 prototype program whereby Student would participate in an inclusion program and receive ongoing academic support from a tutor. She would also receive speech and language services in the regular education classroom twice per week for 30 minutes. (PE-18E) Student’s special education services in other settings included language arts and math in individual or small group settings 5 x 45 minutes per week each; speech and language services 1 x 30 minutes per week; social skills and fine motor services 1 x 30 minutes per week each, by the school counselor and the occupational therapist, respectively. (PE-18E) Under this plan, a daily 15-minute occupational therapy consultation would be offered as well as a 30 minute daily teacher consultation by the regular education and special education teachers, the counselor and the speech and language therapist. (PE-18E) The services under this plan would become effective on September 2, 1999. It offered no extended school year services. (PE-18E) A three-year re-evaluation was scheduled for December 1999.1 (PE-18E) The plan was forwarded to Parents on or about June 18, 1999. (PE-18D)
· As part of Lincoln’s three year re-evaluation of Student, Jeanne M. Goranson, M.Ed, performed the educational evaluation in November of 1999. (PE-9B) Tests administered included: Key Math-R (1989) Form A, the Test of Written Language-3 (TOWL-3), The Woodcock Johnson Psychoeducational Battery-Revised (WJ-R, 1989) and the Weschler Individual Achievement Test (WIAT) which evaluates level of function in specific areas. (PE-9B) Ms. Goranson found Student to be cooperative, focused and motivated. ( Id. ) Test results revealed that writing was a significant area of weakness for which direct individual instruction and use of a formal story plan were recommended. Student’s basic reading skills and reading comprehension were found to be at a second grade level, well below average range in overall reading skills. At the time Student was in the sixth grade. ( Id. ) She had difficulty recognizing high frequency words and decoding unfamiliar words. Student also fell well below the average range in Math, at a K.9 grade equivalent, doing only better than 1% of students her age. (PE-9B). A number of recommendations were made by Ms. Goranson such as use of “Think-Aloud” procedure for processing information, and general classroom strategies including: “visual stimuli, overhead transparencies; repeating directions in different forms; guided lecture with graphic organizers; chunking strategies; cognitive mapping as opposed to linear notes; modeling projects; multiple choice tests, short answer, fill in the blank; develop background information; build vocabulary; look at headings in text; track reading, highlight important data; curriculum compacting: summarize middle of story before completing; provide concrete strategies-step by step instruction; consistent review of prior studied concepts; graph paper in math to align numbers; recognizing number families in addition.” (PE-9B)
· On December 7, 1999 Student was seen by Joan Axelrod, M.Ed. to review Student’s academic status as part of the three-year evaluation. (PE-12) Ms. Axelrod observed Student during an individual math lesson, listened to her read and reviewed a story written by Student, and administered formal and informal reading as well as math measures. Student was found to have made “slow and steady gains” in all academic areas. (PE-12) Ms. Axelrod acknowledged Student’s ability to read at the late second to early third grade level. She was better able to self-correct mistakes using phonetic decoding skills. Student still struggled to develop concepts such as place value and decade concepts, but was gradually mastering the ability to identify and add coins, read a calendar and a clock. (PE-12) Ms. Axelrod noted that Student still struggled with executive functions such as “(the ability to execute a complex task from beginning to end) including organization, self-monitoring and cognitive flexibility.” For example, Student had difficulty organizing tasks and could become confused or perseverative if interrupted instead of shifting her thinking and self-correcting. (PE-12) Student was “deceptively competent in the social arena at least in casual/ surface social interactions.” General instructional strategies were recommended including reiteration and practice. (PE-12)
· On December 13, 1999 the Team met again to discuss the results of the three-year re-evaluation. (PE-18D) The IEP proposed by Lincoln covered the period from December 13, 1999 through December 13, 2000 and proposed to reduce services in all areas with the exception of speech and language services in the regular education classroom, which was increased by 30 minutes weekly. ( Id. ) Under this 502.3 prototype IEP, Student would continue to participate in an inclusion classroom with the assistance of a special education tutor (aide), and would receive speech and language services by the speech and language provider twice per week for 45 minutes each. (PE-18D) She would also receive direct special education services outside the regular education classroom for language arts five times per week for 40 minutes each; math five times per week 40 minutes each; and social skills with the counselor one day per week for 30 minutes. (PE-18D) Occupational therapy was discontinued and instead, a once per month 30-minute occupational therapy consultation was offered. The services in this IEP represented a reduction in services from the previous one. This IEP was forwarded to Parents on February 7, 2000, and on March 15, 2000, Parents responded postponing their decision on acceptance until an independent evaluation was completed. (PE-18D) Thereafter, on September 25, 2000, Parents rejected specific portions of the IEP and proposed an observation period until the annual review in December 2000. They specifically outlined once per day reading and writing in the resource room, once per day math in the resource room, science and social studies each once per day in class with the parallel curriculum and appropriate age group social skill cueing, Thursday afternoon “Hanscon” program for cognitive peer group related skills; and music, art, PE (with modifications) in/out of the classroom. (PE-18D) On November 22, 2000 an IEP Amendment was forwarded to Parents extending the IEP period until the last week of January 2001 (at Parental request) and agreeing to make no changes to the existing IEP while maintaining the September 25, 2000 service delivery “observation proposal” in effect. (PE-18D)
· On December 8 and 20, 1999 Barbara Stromsted, Certified School Psychologist from Lincoln, performed a psychological assessment. (PE-10) WISC-III results showed that Student could understand and work with words better than with non-verbal materials. She obtained a Verbal score of 69, Performance scale score of 48 and Full scale score of 55, placing her within the intellectually deficient range of cognitive functioning. (PE-10) Ms. Stromsted recommended continuation of the recommendations in Student’s IEP and noted that Student’s strengths in problem-solving and verbal performance be supported. (PE-10) Specifically she recommended that instructions be “broken down into small sequential steps; to present material in a structured, sequential manner; and to present it in a variety of ways.” She recommended the use of “manipulatives, visual aids, projects, hands-on activities, and teacher modeling. The value of presenting information in short clear sentences; accompanying it with aids of this type; and of returning to review and refresh what [Student] has learned cannot be overemphasized.” (PE-10)
· On December 23, 1999 Lynn Fagan, MS CCC-SLP, Student’s Speech and Language therapist in Lincoln, performed a Speech and Language Evaluation as part of the three-year re-evaluation. (PE-8B) Student was 12 years 8 months old at the time of this evaluation. Ms. Fagan administered a variety of formal and informal tests and noted that articulation, voice and hearing were adequate and within normal limits. Student scored below average in vocabulary testing (age equivalency of 10 years, 10 months). Performance would improve with additional cues/prompts or visual supports, some of which were not allowed by the testing protocol and therefore, not used. (PE-8B) Student’s performance improved when information was presented at a slow rate. Grammatical comprehension and use were strengths while listening comprehension skills contained strengths and weaknesses with auditory memory for numbers and sentences below average. (PE-8B) Difficulties were noted in Student’s ability to remember information and the ability to manipulate it in order to formulate a response. A multi-modal presentation approach was therefore recommended. On a task involving one to two steps with one to three critical meaning elements she scored within the low average range with greatest difficulty following directions that involved temporal locative or sequential components. In narrative comprehension she had difficulty with the longer passages that required more inferential reasoning. (PE-8B) Regarding verbal skills, Ms. Fagan commented that although Student was quite verbal, “the meaning behind her message [was] at times unclear. Difficulties in retrieving words and organizing her thoughts may impact the ease of her verbal expression,” and therefore, she would benefit from a structured format. (PE-8B) Difficulties were also noted in “tasks that assessed nonverbal reasoning skills.” ( Id. ) She was found to require assistance in starting writing assignments particularly with organization of ideas and information. (PE-8B) Continuation of speech/language services was recommended and specific strategies were suggested to address Student’s difficulties, such as chunking, restate/rephrase directions, buddy system, use of manipulatives, reviewing, cueing, vary the intensity of the scheduled day as well as activities, and others. (PE-8B)
· Parents requested that Lincoln fund Student’s residential placement at the Riverview School Summer Program during the summer of 2000. (Testimony of Parent) Lincoln declined but agreed to cost-share this placement with Parents and Student attended the program. (Testimony of Parent, Ms. Watts)
· On January 26 and March 14 of 2001, Dr. Bruno-Golden performed another neuropsychological evaluation, intended to serve as a basis from which educational and clinical recommendations could be made. (PE-1Cii) Parents sought a better understanding of Student’s then current cognitive and behavioral functioning, as they were concerned with her social and emotional development. ( Id. ; PE-1Dii). During the evaluation, Student was impulsive, distracted and had difficulty focusing on tasks although she was compliant and motivated. (PE-1Cii) These behaviors required the first session to end early and be rescheduled. Dr. Bruno-Golden noted that Student had not taken her midday Ritalin, she had however done so during the session on 3/14/01 when the evaluation continued, and Dr. Bruno-Golden found that “there was no noticeable increase in activity level on the Ritalin.” (PE-1Cii) Because the Ritalin did not appear to be at a level that help Student with attention and her executive disorder, she was referred to Dr. William Singer, a pediatric neurologist, (PE- 2C) for a neuropsychopharmacological evaluation. (PE-1Cii) Additionally, during the evaluation, Student was observed leaning her head over written materials, which evidenced her visual accommodative dysfunction and, again, was referred to a functional optometrist. (Id.; see PE-3B, PE-3C) The WISC-III and TONI-3 results revealed borderline verbal intellectual ability and average non-verbal intellectual ability (IQ of 99 in the TONI-3). (PE-1Cii) In the WISC-III she obtained the following scores:
Verbal IQ: 78 (borderline range, compared to a score of 78 in 1998)
Performance IQ: 57 (mildly impaired range, score of 62 in 1998)
Full Scale IQ: * (mildly impaired range, score of 71 in 1998)
Other scores included a Verbal Comprehension Index of 84 (low average range), a Perceptual Organization Index of 59 (mildly impaired range), a Freedom From Distractibility Index of 69 (mildly impaired range), and a Processing Speed Index of 64 (mildly impaired range.) (PE-1Cii) In general, Student’s performance appeared comparable to that of 1998 except for deterioration in attention to visual detail as evidenced by the Picture Completion sub-test. ( Id. ) Student’s neuropsychological evaluation was significant for impairments in the areas of “attention, sensory motor functions, constructional skills and dysgraphia, visual perception and organization, verbal and non-verbal retrieval, and cognitive flexibility.” (PE-1Cii) Neurobehaviorally she presented with ADHD, which did “not appear to be remitted with medication.” (PE-1Cii) Dr. Bruno-Golden noted that Student’s cognitive, sensory motor, and behavioral deficits were consistent with her early medical history of asphyxia and early acquired somatic encephalopathy. Little evidence of cognitive and behavioral improvement since the 1998 was revealed. ( Id. ; compare with PE-3B) She noted that “children who have an acquired head injury require optimal intervention in all cognitive rehabilitation therapies throughout their education in order to prevent worsening of their problems.” (PE-1Cii). At the time of this evaluation, occupational therapy was not being offered. Dr. Bruno-Golden referred Student to an occupational therapist familiar with children who had an acquired head injury and to a speech and language pathologist specializing in pragmatic disorders to identify how much of Student’s inability to comprehend and produce nonverbal social language was affected by her verbal language based deficits. (PE-1Cii) Student “exhibited a reduced ability to learn new information and to generalize new learning to novel situations” and would have difficulty connecting old and new information and to learn and process independently without cueing. (PE-1Cii) Dr. Bruno-Golden reasoned that at that juncture Student’s attention/executive problems required extensive one-to-one instruction and small group language-based, multi-sensory models, in all basic academic areas including Science and History. (PE-1Cii)
· Dr. Bruno-Golden stated that proper placement for Student was “a private school setting where the curriculum and therapeutic approach [was] based upon teaching both verbal and nonverbal language and executive function skills” because of her complex and not easily labeled language learning disability. (PE-1Cii) Both Dr. Bruno-Golden and Dr. McLeod (PE-2A) agreed that an out of district placement was appropriate for Student and would provide her with a peer group in which she would be accepted. (PE-1Cii; PE-1Dii). According to Dr. Bruno-Golden, Student demonstrated difficulty in processing signals from the environment, which would normally help in making good decisions and controlling emotions. She reasoned that this behavior stemmed from Student’s “disexecutive syndrome,” which allowed her to accommodate her behavior but prevented her from changing it. ( Id. ) In response, Dr. Bruno-Golden recommended a comprehensive neurobehavioral management program, tailored with specific questions related to her in-class behavioral contingency analysis in order to provide structure and predictability at home and in school. She reiterated her recommendation for use of a computer to assist Student with the acquired developmental dysgraphia and fine motor disorder. ( Id. ; see PE-3B). To address auditory and phonological processing difficulties, Dr. Bruno-Golden recommended use of a comprehensive reading program such as Wilson and Project Read. (PE-1Cii)
· On January 30, 2001 Parents wrote to the Lincoln Public Schools and submitted a vision statement and their concerns to be included in the 2002 IEP and, referring to Dr. McLeod’s evaluations, Parents requested that placement of Student at the Riverview School be considered. (PE-6B)
· On January 31, 2001 and again on May 14, 2001 the Team met for Student’s annual review and to discuss Student’s placement for the remainder of the seventh and the beginning of the eighth grades. (PE-18Ci) The actual IEP appearing in the record was not forwarded to Parents until May of 2001. However, between January and May Student underwent independent evaluations. (PE-18Ciii) During the meeting in May 2001, the oral report of Lynn Fagan’s speech and language evaluation and the written evaluation reports of Sara McLeod and Dr. Bruno-Golden (who was present at the meeting) were discussed. ( Id. ) The IEP produced at this meeting, which covered the period from September 2001 through June 2002, offered Student regular /special education consultation once per week for 20 minutes. Under direct services in the general education classroom it offered: academic support 4 times per week for 40 minutes, science and social studies services 5 times per week for 40 minutes each. ( Id. ) Under direct services outside the regular education classroom, Student was to receive communications and life skills four times per week for 40 minutes; counseling once per week for 40 minutes; math five times per week for 40 minutes; occupational therapy once per week for 40 minutes; and, reading five times per week for 40 minutes. (PE-18Ci) The Parent and or Student concerns in this IEP listed: reading-decoding; reading-comprehension; writing-conventions; writing-coherence; math-computations skills; math-concepts; independent academic functioning; communication; community life skills; occupational therapy; and counseling. (PE-18Ci) This IEP, which did not offer Student an extended school year program, was forwarded to Parents on or about May 17, 2001, but they did not respond until January of 2002. (PE-18Ci) Additional requests for services were made at that time. (PE-6B)
· On April 2, 2001 Sara McLeod, Ph.D., (PE-2A) wrote to Parents regarding a series of four interviews she had with Student. In this letter, Dr. McLeod detailed her discussions with Student. (PE-1Dii) Dr. McLeod noted that Student was delightful and regarded herself as happy, having friends and enjoying school dances. (PE-1Dii) However, while Student was interested in what other children her age discussed, Dr. McLeod noted that Student watched and listened rather than participated in conversations. Student indicated that she liked spending time with a group of fourth grade boys because they responded to her questions and stated that she and her seven-year-old sister interacted as peers. Outside interactions with siblings and family friends, Dr. McLeod noted several instances where Student was rebuffed by peers when attempting to interact or was teased regarding her deficits. (PE-1Dii) Student was found to be rather isolated from her peers. Dr. McLeod opined that Student’s denial of her differences and minimization of her difficulties relating to peers was how she coped with her placement in Lincoln. (PE-1Dii) This strategy placed Student at risk for victimization, dangerous manipulation by others and increased her vulnerability to depression. Given Student’s limitations, Dr. McLeod expressed concern regarding Student’s placement in the regular high school. (PE-1Dii) She stated that students with cognitive deficits or other disabilities, like Student, were at greater risk of being sexually assaulted or abused. (PE-1Dii) Student reported that her most satisfactory peer interactions occurred during the summer programs at the Riverview School. (PE-1Dii) Dr. McLeod stressed the importance of an accepting social group and recommended that, in choosing a high school placement, a setting that met Student’s social, and not only her academic needs, should be considered. (PE-1Dii)
· On April 11, 2001 Student took the long composition portion of the MCAS along with the rest of the seventh graders, with the accommodations listed in her IEP. (PE-16)
· On October 1, 2001 the Team met again to discuss the Parent’s reasons for not accepting the IEP of May 17, 2001, and to further discuss services during the 2001-2002 school year. (PE-18Ci; PE-18Cii) At that time Student was in a general education inclusion program receiving support from an aide, she received individualized or small group instruction and support for some subjects and community life skills classes at the Hanscom School and in Lincoln. These services were aimed to address skill development in academic and social/emotional areas. (PE18-Ci) This IEP offered Student essentially the same services that had been outlined in the IEP of May 17, 2003, PE-18Ciii. (PE-18Ci; PE-18Cii) At the meeting, Lincoln agreed to develop a neurobehavioral management program but denied the Parents’ request to place Student in a comprehensive special education program with like peers in a residential setting. (PE-18Ci; PE-18Cii) Lincoln also denied the Parents’ request for provision of an extended school day, homework support, additional direct services including a physical therapy evaluation as well as services, and special transportation. (PE-18Ci; PE-18Cii) The parties agreed to meet in January 2002 to discuss Student’s transition to high school and summer programming. (PE-18Ci; PE-18Cii)
· On October 16, 2001, Parents sent an e-mail to the school requesting that Lincoln fund an independent physical therapy evaluation. Lincoln had failed to provide Student physical therapy three times per week for 30 minutes as per the last agreed upon IEP and placement. (PE-6B) Lincoln responded that it had sent home a permission slip to conduct the assessment, which had not been returned, and agreed to perform the assessment when permission was granted. Parents had been waiting for a response regarding the independent evaluation before they returned the permission slip. (PE-6B; SE-1)
· On November 15, 2001 Sarah Rozehnal Ward, M.S., CCC/SLP (PE-1A), performed a speech and language evaluation of Student which included an interview with Parents. (PE-1Bii; PE-1Biii) Student had been referred to Ms. Ward by Dr. Bruno-Golden. (PE-1Bii; PE-1Biii) After administering several tests, Ms. Ward found Student to present with attention and organization based deficits as well as with difficulties in understanding and using language. The deficits affected listening, reading, speaking, writing, pragmatics and also impacted Student’s behavior. (PE-1Bii) She found that Student’s expressive language skills were delayed and that she presented serious difficulties understanding the meaning of words and the context to which the words pertained. This resulted from “her reduced semantic knowledge and impaired organizational skills for verbal and nonverbal information.” (PE- 1Bii) She had difficulties processing information when reading and listening, that is, she did not always understand, recognize, categorize or know the information coming in. Her processing problems resulted in Student’s inability to consistently perform the operations needed for new learning described as “memory, convergent thinking, divergent thinking, evaluative thinking and judgement.” (PE-1Bii) On word retrieval skills, Student demonstrated difficulty, which affected her sentence formulation strategies. Ms. Ward opined that some of Student’s conduct may be the result of her difficulty in retrieving words, noting that when she searched for words she often lost her train of thought, became fidgety, laughed inappropriately, or changed the topic. (PE-1Bii) On receptive language skills, Student exhibited a reduced ability to follow directions whether they were multi-step or single-step, and had serious difficulties in understanding longer, more complex, auditorily presented information. ( Id. ) Ms. Ward inferred that as an auditory stimuli exceeded Student’s capacity for auditory working memory, Student’s recall and interpretation of the information presented declined dramatically. If she were only asked to listen and then repeat back the information, she would perform in the below average range. (PE-1Bii) However, when she had to use higher order thinking skills and process information she performed below average. (PE-1Bii) Ms. Ward noted that Student would become “stuck” if unable to process a word and missed the rest of the information presented. Her inability to determine the meaning of a word prevents her from using context to help with comprehension or to identify her processing mistakes. (PE-1Bii) Written language was found to be extremely challenging for Student. It was difficult for her to organize ideas in her mind and then remember them long enough to write them down in integrated sentences. Rather, she wrote many single details. Because decoding was not automatic, reading and spelling were extremely challenging. Student’s reduced ability to take in information, assimilate it, process it, and bring it back out again was suggestive of a primary organizational deficit. (PE-1Bii) Ms. Ward concluded that Student’s inability to make mental representations of the world and its events and to relate pieces of information resulted from this deficit. Student’s organizational difficulties, from a language perspective, “manifested themselves in impoverished speaking and writing, reduced retrieval or words, weak comprehension of extended discourse and a reduced ability to organize the symbols of language for effective reading.” (PE-1Bii) This makes it difficult for Student to complete a given task, she is unable to organize information or merge the pieces into a whole, instead, she processes each piece separately. The result is that Student jumps to conclusions, has difficulties planning tasks and acts impulsively. (PE-1Bii) These organizational difficulties result in “marked weaknesses on tasks requiring language and executive function skills.” (PE-1Bii) According to Ms. Ward, Student was unable to use language to learn as she was still learning language. (PE-1Bii)
· Ms. Ward recommended that Student be provided a highly structured, consistent routine, so that she could organize and make sense of her environment and her actions. (PE-1Bii) Typical routines and actions had to be internalized so that she could determine what to do next. In order for Student to progress academically she required immersion in a program “where she [was] shown how to transfer and implement the strategies learned in school into all activities and contexts outside of academia.” (PE-1Bii) Ms. Ward opined that Student had not internalized the basic socialization skills expected of students her age, such as the ability to tell time, how to interact socially with peers, etc. What separated Student from her age-like peers was likely to become greater as she advanced in grade impacting negatively on her sense of self. ( Id .) Her rudimentary social-pragmatic skills interfered with her ability to develop strong mutually satisfying and supportive relationships with peers. (PE-1Bii) Student was observed to become mentally fatigued by the end of the two-hour evaluation, which in turn led to inattention. As she became distracted her ability to process and encode certain obvious and/or key details was impacted negatively, thereby rendering her comprehension of information insubstantial. (PE-1Bii) She was unable to process multiple pieces of information simultaneously. These attention- based deficits would result in: “a) an increase in distractibility in the classroom setting, b) a fragmented understanding of tasks and c) problems completing work both in and outside of the classroom. As her attention deficit results in poor retention and retrieval of information her ability to learn new information and to generalize this new learning is likely to be compromised.” (PE-1Bii) Ms. Ward inferred that similar fatigue and attention difficulty was likely to occur in the classroom setting. (PE-1Bii)
· According to Ms. Ward, Student’s “executive function deficits were characterized by impulsivity, impaired reasoning and problem solving, reduced initiation and limited mental flexibility.” (PE-1Bii) This impulsivity will result in a “reduced ability to process information, stay on task and to get into situations where her physical safety was compromised, decreased organization.” (PE-1Bii) Behavioral difficulties exhibited by Student included a “decreased tolerance for frustration, a wide range in mood swings and a rapid escalation in temper”, many of which “are disproportionate to the precipitating stimuli.” (PE-1Bii) Student would learn best when the information presented was intensively repetitive and extremely redundant. Ms. Ward recommended that Student participate in a language-based classroom, where she was taught basic language and concepts. Student required to be taught metacognitive strategies while she was taught the basics of how to process language, attend and remember. (PE-1Bii) Ms. Ward raised concerns regarding Lincoln’s use of and reliance on the aide in the classroom as she believed that given Student’s attentional issues this served as a distraction which affected Student’s ability to encode information. (PE-1Bii) She stated that in a regular education classroom where information was interpreted and modified for her by the aide, as she turned her attention to the aide she was likely to lose information presented by the teacher to which she was attending earlier. (PE-1Bii) The overall teaching style should address Student’s language-based and cognitive/executive function difficulties as a whole. Ms. Ward opined that Student’s then current academic setting and plan restricted Student’s ability to make academic, cognitive-linguistic, and social progress. (PE-1Bii) She supported placement in a residential academic setting with cognitive like peers “where the concepts to be learned are applicable across domains and are carried over into non-academic and social tasks” thereby boosting her academic, social and daily living skills. (PE-1Bii) The service providers should have extensive experience working with brain injured children, be knowledgeable of the techniques and strategies required to compensate and build attention, language and organization based skills as well as pragmatics, verbal and non-verbal skills. They must also be trained in behavior management techniques, must be able to teach metacognitive skills and show her how learned skills can be carried over across all settings and into all aspects of life. (PE-1Bii) Ms. Ward echoed Dr. McLeod and Dr. Bruno-Goldens concerns that failure to act could result in possible victimization and/or depression from social isolation. ( Id. ; Testimony of Ms. Ward)
· On November 19, and 26, 2001 Parents wrote to Lincoln informing them that Student had been accepted to the Riverview School beginning in January 2002 and attached information regarding the Riverview Program. (PE-6B; SE-1)
· On November 26, 2001, Dr. McLeod (PE-2A) wrote to Parents and discussed her observations of Student of October 29, 2001, at the Brooks Middle School, performed at their request. (PE-1Di) Dr. McLeod assessed Student’s social interactions and the degree to which Student enjoyed “appropriate and satisfactory” peer relationships in Lincoln and the extent to which said program met Student’s needs, but did not comment on the academic appropriateness of the program for Student. (PE-1Di) Dr. McLeod observed Student in her individual math and English classes in the resource room and in her science, social studies, music and art classes in the regular classroom. She noted that an aide traveled with Student to all her regular education classes to assist with class, accommodations for class and homework. (PE-1Di) These accommodations included extra help in preparing Student’s science lab reports and individualized homework assignments. (PE-1Di) Student was observed to initiate communication with peers twice throughout the school day, during homeroom in the morning, before lunch and during recess, though none of these interactions lasted more than a few minutes or seconds. Even when Student had an opportunity to socialize during class, lunch and recess, she did not have meaningful interactions. In contrast, other students were observed to speak among themselves during those activities. (PE-1Di) Staff was observed to greet Student warmly in the halls, but students did not. (PE-1Di) Dr. McLeod spoke with Student and also with her special education teachers, who stated that Student was reluctant to initiate conversation or other social interaction even thought teachers helped her learn skills regarding proper initiation and participation in conversation, as well as coping with social situations. (PE-1Di) Dr. McLeod learned that Student was expected to move on to the REACH Program at Lincoln-Sudbury for high school. There would be between 8 and 15 students total in the REACH program in a school of about 2000 students. (PE-1Di) Minuteman Vocational-Technical High School was also considered as a possible high school placement. Dr. McLeod opined that Student was isolated and aware of her isolation from her peers, and stated that Student reported her preference for a learning environment with peers “like” her. (PE-1Di) Dr. McLeod expressed concern over Student’s ability to “experience herself as successful in this setting…she sees herself as “different” at a point in her development when kids do not want to be seen as different.” ( Id. ) The description of the REACH Program provided no insight as to whether the group would be appropriate for Student’s continued work on social development. Dr. McLeod stated that Student’s wish to be liked and accepted by peers could place her at risk for being victimized or manipulated by more socially and cognitively advanced high school students. (PE-1Di) Dr. McLeod expressed concern that given how attractive Student was it may not be obvious for typically developing students to realize her disabilities and in the alternative once they became apparent she could be pursued because of her vulnerability and “ because she may be seen as potentially willing to trade sex for affection or attention.” (PE-1Di According to Dr. McLeod’s this would place Student at a disadvantage in trying to make decisions regarding sexual behavior and relationships. Dr. McLeod recommended that Parents seek additional information about the REACH Program and that they meet with an educational consultant to explore proper placement options outside Lincoln. (PE-1Di) Dr. McLeod indicated that an environment in which Student could see herself as a success was needed in order to avoid isolation, depression and victimization. (PE-1Di) The report of Dr. McLeod’s observation was forwarded to Lincoln on December 12, 2001. (PE-6-B)
· On November 27 and December 4, 2001 Lisa Cura, P.T. conducted a Physical Therapy Evaluation of Student, at the request of Parents. (PE-13; SE-2) Student was cooperative during the test but appeared to have difficulty transitioning from one activity to another and at times continued with a task after having been instructed to stop. Ms. Cura noted that because of Student’s cardiac history, her heart and respiratory rates were closely monitored prior to and following the running portion of the test. The Bruininks-Oseretsky Test of Motor Proficiency was administered and considered in conjunction with Student’s entire school performance to ascertain her true ability. (PE-13; SE-2) In the running speed/agility portion of the test Student fell in the average range but fell in the below average range for balance, bilateral coordination and strength. Despite these difficulties, her gross motor skills did not appear to prevent her from participating in physical activities. (PE-13; SE-2) Student was able to physically move throughout the school independently. Although Student was motivated to participate in aerobic activities such as Physical Education, her cardiac history prevented involvement in aerobic activities as determined by her physician. (PE-13: SE-2) Ms. Cura recommended continuation of Adaptive Physical Education, with instructions and activities broken into small steps. (PE-13; SE-2)
· On December 12, 2001 and on January 30, 2002 Parents wrote to the school relying on Dr. McLeod’s report to request Student’s placement at the Riverview School. (PE-6B)
· On December 19, 2001 the school completed progress reports relating to the IEP proposed in October and November 2001. (SE-3; see also PE-18Cii) The reports noted improvement in most areas while continued instruction and support was required to progress towards meeting her goals. (SE-3)
· On January 29, 2002, Parents responded to the IEP proposed for the 2001-2002 school year by accepting it in part and rejecting it in part. (PE-18Cii) The proposed placement was rejected and Parents requested several modifications. (PE-18Cii) Specifically, the letter stated that based on the reports of the experts, available to the Team as of December 18, 2001, the IEP failed to provide the following: an appropriate peer group learning environment, implementation of a neurobehavioral management program, an extended school day/year program, special physical education that could accommodate her congenital heart defect and brain injury issues, and private transportation. (PE-18Cii) Parents stated that they wished for Student to be placed in a comprehensive special education program with peers who were intellectually similar to her, and rejected continuation of the inclusion model. (PE-18Cii)
· Two days later, on January 31, 2002 another Team meeting was held to discuss Student’s transition to the high school. (PE-18Ciii; SE-2) At this meeting, the reports of the evaluations performed by Elise Domas, Terri Nathanson (SE- 9) and Lisa Cura were discussed.2 (SE-2)
· Student’s progress reports for the period covering February through March of 2002 noted improvement in all areas although Student still required work to meet her goals. (SE-3) The English/Language Arts teacher noted that Student continued to have days when she came to school fatigued, which impacted negatively on her performance, and described her as impulsive and argumentative. ( Id .) It was noted that Student could answer some “Wh” questions orally when reading selected grade level material, could distinguish between fact and opinion, understood vocabulary in context, retold main events, identified the story plot, climax and conclusion, recalled factual information if dealing with a controlled amount of concrete information, etc. (SE-3) The math teacher reported that Student could count change with occasional assistance, could identify the correct operation for addition and subtraction word problems, had improved accuracy adding and subtracting multi-digit numbers, and was learning to multiply two digit numbers by one-digit numbers. (SE-3) Student was described as becoming more independent. The progress notes indicated that instead of continuing with the Thursday afternoon Community Living Class at Hanscom Base, which focused on daily and community life skills, Student was allowed to participate in the Spring production. (SE-3)
· On March 6, 2002 the Team proposed an IEP for the 2002-2003-school year which proposed Student’s placement in the REACH program in Lincoln Sudbury Regional High School. (PE-18B) This IEP, which covered the period from September 20, 2002 through June 20, 2003, offered Student a combination of services in a substantially separate classroom and within the regular classroom, where she would be accompanied by an aide. Under direct services in the general education classroom it offered: support/ remediation by the special education and or the inclusion specialist 5 x 75 minutes per 10 day cycle to address goals 2 and 3, 2 x 40 minutes per cycle to address goals 2 and 3, 5 x 75 minutes per cycle to address goals 2 and 3, and 2 x 40 minutes per cycle to address goals 2 and 3.3 (PE-18B) Goals 2 and 3 addressed English Language Arts. Under direct services in other settings the IEP proposed: 4 x 75 minutes per cycle for Math by a special educator; 2 x 75 and 2 x 45 vocational education per cycle by a special educator; academic support 2 x 75 and 8 x 40 minutes per cycle by the special educator; occupational therapy 2 x 45 minutes per cycle by the occupational therapist; physical therapy 2 x 45 minutes per cycle by the physical therapist; reading 4 x 75 minutes per cycle by the special educator; community./social group 1 x 75 minutes per cycle by the clinical counselor; and, speech 4 x 30 minutes per cycle by the speech therapist. (PE-18B) This IEP also contained a second service delivery grid which covered the period from January through June 2002. This second grid called for the following services: 1 x 20 minutes per cycle consultation by the special education staff; under direct services in the general education classroom it offered 5 x 40 minutes per cycle supported/modified science by the regular/special education teachers; and 5 x 40 minutes per cycle supported/modified social studies by the regular/special education teacher. Direct services in other settings included: 5 x 40 minutes per cycle reading and written language by the special education teacher; 5 x 40 minutes per cycle math by the special education teacher; 1 x 80 minutes per week community life skills by the special education teacher; 1 x 40 minutes per cycle speech and language by the speech and language therapist; 1 x 40 minutes per cycle social/ emotional by the social worker; 1 x 40 minutes per cycle occupational therapy by the occupational therapist. (PE-18B) In the present levels of educational performance section of the IEP, it states that Student’s disabilities affect progress in all areas of the curriculum in that “she is not able to access the general curriculum without modifications and adult support. Factors associated with intellectual deficits hinder [Student’s] ability to effectively address curriculum material. [Student] requires a multi-modality approach to learning with concrete visual models and cues. She requires ongoing spiraling back to previously taught material to facilitate memory and reduce confusion and forgetting.” (PE-18B) The IEP calls for regular transportation and for Student to participate in an extended school year program. (PE-18B) However, no summer services are described. On May 14, 2002 Parents rejected the IEP as developed and requested placement of Student at the Riverview School. ( Id. )
· On March 29, 2002, Jeanne Pacheco, Director of Admissions and Placement for the Riverview School (hereinafter, “Riverview”) notified Parents that Student had been found eligible to attend the 2002-2003 school year program at Riverview. (PE-1E) Riverview is a Massachusetts Chapter 766 approved school located in East Sandwich, MA. (PE-1E) It offers residential services to male and female students between the ages of 11 and 22 who present with learning disabilities, language impairments, attention-deficit disorder, Non-Verbal Learning disabilities, developmental delays and Asperger’s Syndrome. The school’s environment fosters language development through an integrated academic curriculum with a team-based approach. The student teacher ratio is approximately 5 to one. (PE-1E) The social skills program is ongoing throughout the day and across the residential portion of the program, and focuses on life skills and leisure activities. (PE-1E) The hallmark of the Riverview program is “utilization of ‘Social Autopsies’ to remediate social skills deficits.” (PE-1E) Its charter mission is to educate adolescents who present complex and pervasive language/ learning disabilities. (PE-1E)
· The summer program at Riverview combined academics such as math, science, language arts, organization, reading, social skills and computers using an integrated thematic approach, with a variety of camp style activities. (PE-1E; PE-17) Students also enjoyed barn dances, visits to the National Seashore and the Woodshole Oceanographic Aquarium, Red Sox and other baseball games, outside camping, etc. (PE-1E; PE-17)
· In a letter of May 15, 2002, Dr. Bruno-Golden agreed with Ms. Ward in her support of a placement of Student outside Lincoln. (PE-1Ci) In Dr. Bruno-Golden’s opinion placement in the high school under the proposed IEP would be insufficient to meet Student’s needs. ( Id .; PE-1Bii) Like Ms. Ward, Dr. Bruno-Golden opined that Student required a program and placement designed for students with acquired brain injuries that addressed cognitive, behavioral, social wellbeing and safety and fostered a positive self-image. She warned that failure to do so could result in a decline in social skills and aggravation of deficits. (PE-1Ci)
· On June 14, 2002 the school completed the last set of progress reports relating to the IEP proposed in October and November of 2001. (SE-3) Continued progress was noted in all areas with significant growth in Student’s social interactions with peers. Student was an active member of Kids for Change, the Student Council, chorus, and in Art class. (SE-3) The eighth grade teachers anticipated continued success in high school. (SE-3)
· On June 10, 2002, Ms. Ward interviewed the director of the Riverview and toured the campus extensively. (PE-1Bi; Testimony of Ms. Ward) She observed two of the language arts classes and noted that Riverview has a “whole child philosophy.” (PE-1Bi) Riverview is a 24-hour a day, seven-day a week program. Each student is assigned an advisor and forms part of a team of eight students with a head teacher and two or three additional instructors who teach all subject areas. (PE-1Bi) The teachers meet daily for 1 ½ hours to update one another on students’ progress and the head teacher meets daily with the residential staff to monitor students’ sleeping and eating routines, or ascertain whether emotional issues are manifested. (PE-1Bi) Classes are taught using a multi-sensory approach. The advisor is a licensed social worker who helps the students with “self-advocacy, conflict resolution and how to take an active role in determining the solution of a problem.” (PE-1Bi) There are two fulltime speech and language pathologists who work directly in the classroom. In Riverview, students receive therapy in class as opposed to receiving them under a pull-out model. (PE-1Bi) A significant portion of the program teaches students how to cope with stress and tolerate frustration so as to prevent losing their temper. They also learn how to identify emotions such as anger or jealousy and how to respond appropriately to such emotions. The consistency and carryover across all settings allows students to internalize the scripts for managing different emotions. (PE-1Bi) Emphasis is also placed on teaching social pragmatic skills. The overall program at Riverview is based on structure, routine, social and academic development as well as learning how to address “glitches” when something falls outside plan. (PE-1Bi; Testimony of Ms. Ward) Ms. Ward remarked on the coping strategies used by the teachers during a language arts class to help students adapt to change in their routine when an unexpected guest arrived to read for the students. (PE-1Bi) She also noted that “the teachers did an excellent job of using analogy to teach language and semantic association” and that they used effective techniques to keep students focused when they began to fatigue. Small sensory breaks and flexibility were used to promote attention to task in a socially acceptable manners. (PE-1Bi; Testimony of Ms. Ward)
· Ms. Ward visited Lincoln-Sudbury on June 20, 2002. She interviewed three of the proposed providers for Student in the REACH Program. (PE-1Bi) These were a social worker with experience in non-verbal disabilities, Lynne Hunter, a speech and language pathologist with experience in acquired brain injury and a special educator. (PE-1Bi) According to them, there would be seven students in the program, three of whom were girls, who the providers considered to be cognitive peers of Student. (PE-1Bi) In the REACH program students receive one-on-one and small group instruction tailored to meet their social and academic needs, and they are mainstreamed into as many classes as possible within the regular education environment. A teaching assistant helps students attend to class and modifies the curriculum to their cognitive and academic level. (PE-1Bi) Extensive collaboration between the teachers and specialists in the REACH program was reported. Students were expected to follow the 10-day cycle used in the high school. (PE-1Bi) Teachers in the REACH program worked with students around organizational skills for planning and problem solving, and life skills were said to be integrated into all aspects of students’ life. (PE-1Bi) Social pragmatics was taught by the speech and language therapist. (PE-1Bi) Ms. Ward found that while the public school program was impressive, and the teachers qualified, supportive and kind, the inclusion model failed to provide the functionally-oriented, outcome-based program with sufficient flexibility required to meet Student’s needs. The inclusionary program approach would be too distracting and Student would be able to process very little information. Ms. Ward opined that, “Student [did] not benefit from being mainstreamed; it only isolat[ed] her further from the learning process…the complexity of material taught at the high school level, even at a slower pace of delivery, far exceed[ed] her existing general knowledge base and only [took] time away from her need to learn and generalize basic information and skills.” (PE-1Bi) Ms. Ward recommended a residential program where learning could be carried over across all settings and explained that it would offer a higher level of consistency, a more functional and rehabilitative program to meet her needs. (PE-1Bi) This was because Student’s greatest weakness was in the area of metacognitition and because she had limited executive function ability which affected her ability to carryover skills she learns in the classroom into different contexts. (PE-1Bi) She concluded that Student required a program providing intensive supports in context (in a classroom setting with cognitive peers, in a dormitory learning to live independently, in a lunchroom with many socially matched peers) with the goal of ultimately withdrawing supports as she became independent, or increasing the difficulty level of tasks, or both. (PE-1Bi) Ms. Ward recommended immediate placement at Riverview. (PE-1Bi)
· On June 27, 2002 and again on July 12 th , Parents wrote to Lincoln-Sudbury requesting that Student be placed at the Riverview School. (PE-6B)
· Via letter of July 5, 2002 Ms. Ward recommended that Student be placed in a remedial residential program. (PE-1Bi) Ms. Ward reasoned that Student had made slow and limited progress over the past eight years in an inclusion model and required a classroom with peers who were cognitively at her same level The program should offer a very small teacher to student ratio. (PE-1Bi) Ms. Ward described her observations and conversations with staff during visits to the Brooks School, the Riverview School and the REACH program at Lincoln-Sudbury. (PE-1Bi) She described her observations of a December 17, 2001 visit to the Brooks School in Lincoln where she observed a one-on-one language arts class. Ms. Ward related that Student independently brought the required materials for vision therapy but had been unable to self-organize to get to the correct page and consistently forgot what page she was on. Ms. Ward commented that it had been effective for Student to do the vision therapy exercises in a highly structured setting at a predicted time in school. (PE-1Bi) After vision therapy, she read aloud, completed a K-W-L chart, and wrote sentences about a scene from the book with teacher assistance, requiring ample scaffolding cues. (PE-1Bi) Ms. Ward noted that Student had no internal script for what to do first when reading. Although in her opinion, using the K-W-L chart was a good strategy, the teacher had not explained to Student why it was being used. (PE-1Bi) Student recalled a paragraph read the previous day but she could only remember random details as opposed to the gestalt of the story. When reading, she made many errors and guessed at words more than she decoded them. (PE-1Bi) In writing, the overall structure was missing. While she was coached well on how to write a sentence, she was not coached on how to internalize the basic components of a sentence, which is an executive function and general knowledge based skill. Again it was observed that in analyzing the scene Student was required to describe she lacked the internal script of the routine which she had to describe in writing. (PE-1Bi) Student began the session smiling and was interactive but during the sentence writing became fatigued and frustrated, causing the task to be terminated early and replaced with time at the computer. Student’s frustration with the task resulted in frustration with the teacher. (PE-1Bi; Testimony of Ms. Ward)
· On July 18, 2002, Parents requested a Hearing before the BSEA challenging Lincoln-Sudbury’s proposed placement in the REACH program for the 2002-2003 school year and requesting that Student be placed at Riverview. They also challenged the appropriateness of Lincoln’s inclusion program and sought reimbursement for their unilateral placement of Student in Riverview over the past several summers.
· During the summer of 2002 Student participated in Riverview’s summer program at parental expense. (PE-1E) On August 3, 2002, Riverview wrote to Parents and informed them that as this had been Student’s third year in this program, she had taken on the role of leader in her peer groups and had set examples for others in her dorm. (PE-1E) Also, in place of sports in which she could not participate, Student had chosen to take extra reading classes. The staff noted that Student often offered relevant verbal input in class. (PE-1E) Progress reports and evaluations of Student’s performance during the 1999 and 2001 summers are found at PE-17.
· Student started the 2002-2003 school year at the REACH program in Lincoln-Sudbury. (Testimony of Parent)
· On September 10, 2002, Lincoln-Sudbury forwarded an IEP Amendment to Parents covering the period from September 5, 2002 through June 26, 2003. (PE-1F; PE-18B; SE-10) The plan proposed a combination of inclusion in the regular education classroom with direct services in the REACH program at Lincoln-Sudbury. An aide would accompany Student in the mainstream. The program also offered participation in a social skills group, speech and language, occupational and physical therapy. (PE-1F: SE-10) This IEP offered Student the following services: 1 x 20 minutes per cycle consultation by the special education staff and the “as”. (PE-1F: SE-10) Under direct services in the general education classroom 5 x 75 minutes per cycle classroom support by the special education staff; 2 x 45 minutes per cycle classroom support by the special education staff; 5 x 75 minutes per cycle classroom support by the special education staff; 2 x 45 minutes per cycle classroom support by the special education staff; 1 x 45 minutes per cycle physical therapy by the physical therapist. (PE-1F: SE-10) Under direct services in other settings the IEP proposed: 4 x 75 minutes per cycle reading by the special educator; 2 x 75 minutes per cycle math class by a special educator/TA; 2 x 75 minutes vocational education per cycle by a special educator/TA; academic support 5 x 75 and 2 x 45 minutes per cycle by the special educator/TA; occupational therapy 1 x 45 minutes per cycle by the occupational therapist; physical therapy 1 x 45 minutes per cycle by the physical therapist; communication/social group 1 x 75 minutes per cycle by the clinical counselor; and, speech 4 x 30 minutes per cycle by the speech therapist. (PE-1F: SE-10) This IEP was forwarded to Parents on September 6, 2002, and on November 19 th Parents rejected the IEP as developed and the placement but allowed Lincoln-Sudbury to provide Student with services “until an appropriate placement ha[d] been determined.” (SE-10) Parents concerns regarding this placement involved Student’s difficulties navigating through the school, continued victimization and safety issues during transportation in the public school bus, vulnerability to sexual victimization in the high school and Student’s feelings of isolation. (PE-1F: SE-10) Parents agreed with Ms. Ward’s and Dr. Bruno-Golden’s recommendations that Student required participation in a small classroom with a “like” peer group, few classroom changes, one-to-one services in speech and language, OT, PT, visual therapy social skills and pragmatics in a very structured environment where she could learn to generalize skills across all settings; an environment that enabled Student to develop her self-esteem. (PE-1F: SE-10; Testimony of Parent)
· Lincoln-Sudbury’s IEP included the following information under Additional Information: “ It is anticipated that [Student] will graduate in June of 2006; [Student]’s high school program will include a combination of academic, pre-vocational and independent living skills; No public agency has been identified at this point. Such an agency should be identified in order for a 688 referral to be made before her 16 th birthday. Parents have been informed that educational decision responsibilities will be transferred to [Student] on her 18 th birthday. Foreign language requirements are waived due to the nature of her disability. Academic areas of weakness will be addressed through general education and individual instruction. [Student]’s date of completion of special education services may end at age 22, but the TEAM will assess this plan on a yearly basis. Transition to a more vocationally oriented program should be considered for [Student] from ages 18-22.” (PE-1F; PE-18B; SE-10)
· On September 11, 2002, the school bus driver dropped Student off on the side of Route 2, a two way divided highway with no sidewalk. (PE-6B; Testimony of Parent) Student knew that she was not supposed to get off in that location but the driver insisted that she, like the other students, had to walk the ½- ¾ mile home. Student was supposed to have been driven home. The Parent testified that Student’s previous year school bus driver saw her walking and crying, and she picked Student up and drove her home. (Testimony of Parent) Parents wrote to Lincoln-Sudbury expressing their frustration and concern regarding Student’s health, given her heart condition, and safety. (PE-6B; Testimony of Parent) Thereafter, the parties agreed to special transportation arrangements. ( Id .)
· The Progress reports of October 20, 2002, noted progress in all areas though she continued to work and perform similarly to how she performed in eighth grade in all content areas. (SE-13) An occupational therapy progress note dated October 30, 2002, by Maryanne Blahut, OTR/L, MPH reported that Student’s difficulties with eye/hand coordination, motor planning and visual spatial tasks impacted on her classroom performance. During OT, Student benefited from coupling motor activities with verbal cues. Student’s OT sessions would emphasize “higher level spatial skills for analysis and planning” and Student’s interest in learning cursive writing would be explored. (SE-13) The physical therapist raised concern over Student’s posture when sitting and standing. (SE-13) She recommended 30 minutes of PT per cycle as well as 30 minutes of consultation. In math, Student continued to work on the same areas she worked on in the 8 th grade (exchange value of coins and counting coins, addition and subtraction problems with the use of a calculator, learning to tell time) and still required teacher assistance in some areas. (SE-13) Socially, it was noted that she greeted upper classmen who were friends of her older sister in the hallways as well as peers. At the beginning of the school year she yelled out inappropriate remarks such as “Do you have a dollar?” or “I need a drink!”. (Id.; Testimony of Parent) Conflicts between peers in the REACH Program and resolution were addressed during her social skills group. (SE-13)
· On December 4, 2002 and January 31, 2003, David Gotthelf, Ph. D., (SE-6) Director of Student Service in Lincoln-Sudbury, forwarded an evaluation consent form to Parents for Student’s upcoming evaluation. (PE-6B; SE-11) He also requested that Parents complete the proper form for rejection of the IEP services and placement and provide clarification regarding the services they wished to continue, specifically regarding OT and PT. (PE-6B; SE-11) Parents’ written consent was received on January 31, 2003. (SE-6B)
· On December 3, 2002, January 14, 2003 and February 12, 2003 Dr. Bruno-Golden conducted a neuropsychological evaluation of Student to address parental concerns regarding educational programming, and appropriate placement to address academic and overall social and emotional issues. (PE-3A) At the time of this evaluation, Student was titrated from Concerta to Amantadine and it was noted that her mood was enhanced. (PE-3A) She was somewhat impulsive, distracted by her own conversation at times, but exhibited perseverance for tasks. Student required that the examiner repeat instructions, as she had attentional difficulties. (PE-3A) When asked if she was experiencing any problems in general during the interview, Student responded:
“ I want to go to Riverview School. They know how to make reading fun. It is a better environment for me. People [students] there have the same problems, and we are all friends. I don’t feel that I am learning anything at my school. They are repeating a lot of the things that I already used to do. I also have got two detentions this year. I was late to class twice”… she stated that she had a lot of friends at Riverview and only one friend in the Boston area. (PE-3A)
· As part of the evaluation, Dr. Bruno-Golden visited Lincoln- Sudbury where she spoke with Dr. Gotthelf, Jennifer Reen, the clinical counselor, Meredith O’Reily, the special education teacher and Lynne Hunter, the speech and language therapist, and observed Student in a regular education science class. (PE-3A) One other student from the REACH program sat with Student at a table during the class, both assisted by the aide while they worked on a worksheet, in what appeared to be a form of cooperative execution. The aide was not observed to cue Student as to improving her posture while working. (PE-3A)
· A battery of tests was administered by Dr. Bruno-Golden during the evaluation. (PE-3A) In the Weschler Abbreviated Scales of Intelligence, Student obtained a score of 85 Verbal I.Q., 75 Performance I.Q. and a Full Scale I.Q. of 77, revealing low average verbal intellectual ability and borderline nonverbal intellectual ability, overall placing Student in the borderline range of intellectual ability. (PE-3A) The Matrix Reasoning sub-test, which measures perceptual skill and problem solving, revealed average range nonverbal intellectual reasoning skills commensurate with previous assessments. (PE-3A) In the vocabulary sub-test, which measures language skill, she continued to reveal inefficient ability to define words. (PE-3A) Student continued to be significantly impaired in the areas of attention, sensory motor functions, constructional skills and dysgraphia, visual spatial processing, psychomotor speed, and organization, verbal and nonverbal retrieval and executive skills. ( Id ; see also (PE-3C; PE-1Cii) The results of the WISC-III showed that Student appeared to be deteriorating in all of the sub-tests areas of the WISC including the comprehension sub-test which measures verbal abstract reasoning and social judgement. (PE-3A) The deterioration could be not only the result of lost skills, or lack of increase of skills in her repertoire, but could be the result of an age-related change regarding task complexity. (PE-3A) The deterioration in attentional and nonverbal processing speed could be the result of depression and/or her visual accommodation disorder. ( Id .) In a separate test, the expected relationship between the dominant and non-dominant hand was not observed. Student’s neurobehavioral presentation continued to be consistent with her history of early childhood asphyxia and early acquired somatic encephalopathy. (PE-3A; see also PE-3C; PE-1Cii) Student’s cognitive and behavioral development continued to show little evidence of improvement which Dr. Bruno-Golden attributed to Student’s significant degree of attention/executive disorder requiring one-to-one remedial instruction in all basic academics. (PE-3A) The Wide Range Achievement Test-3 rd revised revealed that Student was functioning at the second grade level while she was now in the ninth grade. (PE-3A; see also PE-3C; PE-1Cii) Dr. Bruno-Golden maintained her recommendations from January of 2001, and noted the change in medication. (PE-3A; see PE-1Cii) She stressed that Student’s educational needs did not begin and end with the start and close of the school day. (PE-3A) Given Student’s social/emotional and educational development, Dr. Bruno-Golden emphasized the need for Student to be placed in “a comprehensive 12-month educational program that [was] designed for children who exhibit traumatic brain injury and associated learning disabilities. (PE-3A) She stated
It is judged that [Student] cannot use her current language based skills to learn. She needs to be taught language. The basic curriculum needs to be an integral part of her learning the fundamental skills of language and processing (listening, visualizing how to do higher order thinking, reading, comprehension, how to write, how to use punctuation and grammar, etc.). In a regular education program, language is expected to be automatic, and student is expected to use language abilities to learn. [Student’s] language based processing difficulties are so severe that in order for her [to] make progress in the regular education classroom she would need to have the curriculum completely broken down, modified, defined and delivered exclusively for her. Given that the regular education teaching is not designed to meet her specific needs, [Student] continues to be dependent on the services of an inclusion specialist with a curriculum which can be adapted at best and modified in general. (PE-3A)
· Dr. Bruno-Golden further recommended that Student undergo a behavioral optometric re-evaluation, physical therapy and an evaluation by an orthopedist to ascertain whether she was developing new problems regarding her history of poor posture and left sided weakness. (PE-3A) Student was also referred for eligibility determination for “Books on Tape” with the Perkins School for the Blind due to her parents’ concern that recreational reading no longer interested her. (PE-3A) Student was also referred for a driver’s evaluation at the Braintree Rehabilitation Hospital in order to address her Parents’ concerns that she was anticipating obtaining her learner’s permit upon turning sixteen. (PE-3A)
· Lincoln-Sudbury’s progress reports of January 16, 2003, stated that Student’s performance remained consistent or had improved in every area though continued progress in each area was required to achieve the goals. (SE-13) Coin counting and sentence structure, in particular, were identified as areas requiring more development. (SE-13) On January 31, 2003, Jennifer Reen, C.A.G.S., Clinical Counselor and co-leader of the social group, reported that Student had transitioned well into Lincoln-Sudbury and had made “great gains” in the social group. ( Id .) Although Student was reported to be easily distracted in her REACH classes she responded to redirection. She was described as attentive and an active participant in both the REACH and mainstream classes. (SE-13) Meredith O’Reilly (SE-8), Paula DiManno and Lynne Hunter (SE-8) prepared a report describing their social observations of Student between September 2002 and January 2003. (PE-11; SE-13) They noted that in “wellness” class Student expressed a dislike for participating in any kind of special services, such as physical therapy, in the mainstream. It was further noted that if receiving these services in the mainstream, Student would become upset, cried and yelled. (PE-11; SE-13) In acting class Student was observed to have approached a classmate and asked her to be her partner when the teacher broke the class into groups of two. Student was also an active participant in the “games group,” an activity club open to REACH, mainstream, Link and Learning Center students, which promotes learning to get along with others. In this setting, cueing to control Student’s voice level and keep her focused had decreased over the course of the year. (PE-11; SE-13) Student attended art media with an aide, whose presence she desired, but preferred to work independently. (PE-11; SE-13) At least on one occasion, Student attended a school hockey game at the New England Sports Center with her older sister and a friend of her sister. (PE-11; SE-13; Testimony of the Parent) These progress reports were discussed during the Team meeting of January 2003.
· On January 17, 2003 Lincoln-Sudbury wrote to Parents regarding Student’s eight absences and four tardies. (PE-6B) Parents responded on January 27 th explaining that the majority of Student’s absences were due to educational testing of which the school was aware, and expressing their concern regarding the lack of coordination/communication between the REACH program and the attendance office. (PE-6B)
· Student’s Team convened on January 31, 2003. (SE-12) The Team discussed Student’s progress vis-a-vis the goals in the IEP, and agreed to extend the evaluation process. (SE-12)
· As part of Student’s three year re-evaluation Meredith O’Reilly. M.Ed. (SE-8) administered a variety of educational tests to Student on February 5, 2003. (PE-9A) Ms. O’Reilly noted that Student was generally able to stay on task and since her recent medication change was better able to maintain her focus as evidenced during the testing. (PE-9A) In the Woodcock-Johnson III Student obtained a standard score of 55 on Letter-Word Identification, 59 in Reading Fluency, 49 in Calculation, 59 in Spelling, 50 in Passage Comprehension, 62 in Applied Problems, 75 in writing samples, 77 in Word Attack, 91 in Picture Vocabulary, 77 in Reading Vocabulary, 87 in Academic Knowledge, 54 in Broad Reading, 66 in Basic Reading Skills, 63 in Reading Comprehension, 46 in Academic Skills, and 52 in Academic Applications. (PE-9A) The Woodcock-Johnson III Math Calculation and Applied Problems revealed that Student demonstrated mastery of simple addition and subtraction, and that her errors in basic computations were impacted by the fact that she was not allowed to use a calculator. (PE-9A) In Reading Fluency, out of 98 questions, Student answered 16 questions, 12 of them correctly, within the three-minute time period. Ms. O’Reilly reasoned that Student could accurately read and comprehend specific information when given sufficient time. (PE-9A) The Passage Comprehension portion indicated that Student experienced more success when she read and learned in context rather than being presented random disjointed concepts. She experienced success remembering details or highlights if these were related to things she had experienced in her own life. (PE-9A) Regarding Reading Vocabulary, Ms. O’Reilly stated that Student’s “difficulties with analogies seemed to relate to general vocabulary recognition, rather than her ability to make connections between the word groups. Exercises designed to develop [Student’s] vocabulary should be incorporated into her reading and writing activities with opportunities to spiral back so that she [could] increase her general spoken and written vocabulary.” (PE-9A) In Word Attack, Student demonstrated relatively strong basic phonetic decoding skills, which were emphasized in her individualized reading program. (PE-9A) Ms. O’Reilly recommended continuation of the EDMARK Reading Program. Regarding Letter Word Identification, focus should be on automatic word identification skills which would help Student increase her ability to decode and read words in isolation. (PE-9A) In summary, despite low percentile scores, Ms. O’Reilly noted that Student had “a strong phonetic base which she utilize[d] to decode and encode familiar words.” (PE-9A) Picture Vocabulary and Academic Knowledge were areas of relative strength for Student. In writing, although Student demonstrated ability to express ideas, she had difficulty constructing sentences and using correct grammar and punctuation, areas in which she needed support. (PE-9A) Ms. O’Reilly recommended a continuation of the level of structure and support Student was receiving, including support in general education classes, small group instruction, physical therapy, occupational therapy and speech and language. (PE-9A) Ms. O’Reilly opined that Student benefited from multi-modal activities, which provided ample rehearsal of content material in all subject areas and opportunities for review. (PE-9A)
· Lincoln-Sudbury’s physical therapy evaluation of Student was performed by Elizabeth Shealy, PT, on February 12, 2003. (SE-13) Ms. Shealy performed a functional evaluation to ascertain whether any physical limitation restricted Student’s academic potential. Student was observed to move easily around the school and cafeteria. However, she had difficulty opening her combination lock, which she was able to open approximately 75% of the time, an experience that caused her a great deal of frustration. (SE-13) The operation involved remembering three numbers, and rotating the dial clockwise and counter-clockwise in a set pattern to open the lock. She carried her books in a one-strap backpack, which was found to be detrimental to her posture and was a source of back pain for Student. (SE-13) Ms. Shealy noted that in class, Student sat with rounded shoulders (a kyphotic spine and protracted shoulder girdle) which caused her to become fatigued when sitting longer than 45 minutes at a time. (SE-13) Student complained of back-pain. Ms. Shealy expressed concern regarding Student’s posture in standing and sitting. (SE-13) She recommended that Student wear a two-strap backpack, that she change the lock in her locker to one she could open independently and that to reduce fatigue, Student should have the long sitting blocks in the morning, with short breaks for stretching, and use the afternoons for active classes/activities. (SE-13) Direct physical therapy services were recommended at a rate of one 30-minute session per cycle, and one 30- minute consultation per cycle. (SE-13)
· On March 5, 2003 Dr. Gotthelf wrote to Parents acknowledging their rejection of the IEP proposed on January 31, 2003 and seeking Parents’ consent to the continuation of services such as PT and OT. (SE-11) He also sought Parents’ consent to perform additional behavior testing and to allow a neuropsychologist who consulted to Lincoln-Sudbury to observe Student. (SE-11)
· On behalf of Parents, Ms. Ward observed Student in the REACH Program on March 10, 2003. (PE-4) She observed Student’s “wellness” and acting classes, which were mainstream specials. (PE-4) In Wellness, an aide followed Student while she exercised. Student demonstrated enthusiasm for the class. During the transition period between classes, Student showed Ms. Ward the REACH room, some of her work and a book she was reading. When Ms. Ward asked about the book’s topic Student could not remember, however, with scaffolding and cues Student was able to remember some vague details. (PE-4) In acting, Student participated successfully in a group activity but was observed to sit alone during the break while the other students talked to each other, had a snack or left the room. (PE- 4) The students worked on a monologue, which they practiced, and then performed in front of the class to be judged. Although the speech pathologist had modified Student’s monologue, Ms. Ward worried that it still exceeded Student’s reading ability. (PE-4) Student was able to complete the rest of the class activities and appeared to enjoy them. (PE-4) Ms. Ward was impressed with Student’s gains regarding her physical strength and the integration of social pragmatics through Student’s acting monologue. (PE-4) She was not able to observe Student in classes such as English or science, which she scheduled to do at a later time, but reviewed some of Student’s work product. Ms. Ward found Student’s teachers to be terrific and invested in addressing Student’s needs but despite their heroic efforts “to integrate [Student] into the high school” Student was still not progressing academically. ( Id .; see PE-3A) Historically, Student had shown little improvement when educated in inclusion classes as evidenced by the most recent neuropsychological evaluation by Dr. Bruno-Golden of 2003. (PE-4) Ms. Ward opined that time spent on adapting the ninth grade curriculum, which was seven years above Student’s functioning level, should be spent instead teaching her basic language skills at her own level. ( Id .) Instead of EDMARK Reading Program to improve reading skills she should have received Orton-Gillingham as recommended by Ms. Kauffman. Student’s difficulties generalizing information as a result of her weak memory-based skills called for intense repetition and submersion of the material across all academic contexts. (PE-4) Ms. Ward noted that the curriculum adaptations and constant one-on-one help made Student dependent on others and, while well intended, lead Student towards learned helplessness and away from academic independence. (PE-4) Ms. Ward continued to recommend that Student be placed in an academic setting with a six to one student teacher ratio class size where the curriculum was at Student’s cognitive level so she could learn the fundamentals of language, and where her attention, memory and executive function issues were addressed. This would promote generalization of new learning across all contexts. (PE-4) The program should also provide her with opportunities to develop social relationships with peers at her same cognitive level in a setting that is safe and supportive. (PE- 4)
· On March 8 and March 12 2003, a speech evaluation was performed by Lynne Hunter, M.Ed., CCC-SLP as part of the three year evaluation. (PE-8A) Student was familiar with Ms. Hunter as they worked on an individual basis and in small group settings. ( Id .) During the evaluation Student was observed to use self-help strategies to self-correct. (PE-8A) Test results revealed strengths and weaknesses in expressive and receptive language. (PE-8A) In expressive language, she demonstrated “significant weaknesses in her ability to organize and construct sentences” as well as in word retrieval, syntax when formulating thoughts, and “with complex structures such as subordinating conjunctions.” (PE-8A) Student performed best when tasks were presented using more than one modality, e.g., auditory and visual, or when presented in context. Her expressive weaknesses were evidenced in the use of morphological or grammatical structures. (PE-8A) In receptive language, Student’s greatest difficulty was with following multi-step commands in sequential order. While Student was able to store most of the information presented, she was not able to organize it in the correct order. (PE-8A) Student was also observed to become easily distracted, and disinterested. Her strengths were in her ability to stay focused on key elements of lengthy verbose messages, interpreting multiple meaning words in context and with comprehension skills of various language functions. (PE-8A) Ms. Hunter recommended continuation of the services delineated in Student’s IEP, which included mainstreaming Student with modifications, support and an aide, along with a multi-modal approach to instruction. ( Id .) Speech and language support, participation in groups to work on socialization skills, conflict resolution and opportunities to experience a variety of communication interactions were also recommended by Ms. Hunter. (PE-8A)
· On March 10 through March 17, 2003, Dr. Gotthelf, Director of Student Services at Lincoln-Sudbury, conducted a behavioral assessment of Student on behalf of the school. (PE-7) His evaluation was intended to expand upon the report provided by Dr. Bruno-Golden in February 2003 (PE-3A) by including the rating scales and observations from Student’s teachers at Lincoln-Sudbury. (PE-7) Teachers and members of the REACH staff completed the Conner’s Teacher Rating Scale-Revised: Long Version. (PE-7) The results revealed differences among the teachers and the staff in the REACH program. All of the providers agreed that attention was an area of concern, while hyperactivity and impulsivity were ranked within the normal range by the classroom teachers but borderline by the REACH staff. (PE-7) Social problems, anxiety or shy behavior were not seen as clinically significant although there was some discrepancy as to how different teachers viewed Student in different settings. (PE-7) Cognitive problems/inattention was another area found to be concerning and ranked as clinically significant by all of the providers. (PE-7) Regarding oppositional behavior and emotional lability, the general education teachers did not consider it a problem while the REACH staff raised concerns in these areas. Dr. Gotthelf explained that in the REACH room environment Student was able to share her feelings and frustrations more easily. (PE-7) In all settings, her behavior could be managed and or re-directed with verbal cues. Dr. Gotthelf concluded that Student’s behavior did not preclude her participation in either the general education classroom or the overall school environment. (PE-7) He recommended that the Team develop strategies for Student to increase her independence in school and that the Team work with Parents to increase participation in activities outside the school. (PE-7)
· On March 19, 2003, Student’s Team convened to develop an IEP for the period from 3/19/03-3/19/04. (PE-18A) The plan developed at the meeting continued placement of Student in a combination of inclusion model and substantially separate instruction through the REACH program, designed for cognitively impaired students, at Lincoln-Sudbury. (PE-18A; SE-19) Under this IEP within the general education classroom Student would receive the following direct services within a ten day cycle: classroom support by the special education staff 5 x 75 minutes per week, 2 x 45 minutes per week, 5 x 75 minutes per week 2 x 45 minutes per week; and physical therapy by the physical therapist 1 x 45 minutes per week. (PE-18A) Under direct services in other settings during the ten day cycle the IEP offered: reading by the special educator 4 x 75 minutes per week; vocational education by the special education teacher/TA 2 x 75 minutes per week; mathematics class by the special education teacher/TA 4 x 75 minutes per week; academic support by the special education teacher/TA 5 x 75 minutes per week; academic support by the special education teacher/TA 2 x 45 minutes per week; speech by the speech therapist 4 x 30 minutes per week; community/social group with the clinical counselor/SLP 1 x 75 minutes per week; occupational therapy by the occupational therapist 1 x 45 minutes per week; and, physical therapy by the physical therapist 1 x 45 minutes per week. (PE-18A) The IEP called for participation in an extended year program that addressed functional math, reading and social skills, to prevent substantial loss of previously learned skills. (PE-18A) Lincoln-Sudbury envisioned Student’s high school program to include a combination of pre-vocational development, academic and independent living skills. Dr. Gotthelf forwarded the IEP to Parents on March 21, 2003, and on March 23 rd and 25 th Parents rejected the IEP and placement. (PE-6B; PE-18A)
· On March 21, 2003 Ann A. Helmus, Ph. D., clinical neuropsychologist (SE-18) performed a school program observation at the request of Lincoln-Sudbury. (SE-19) Dr. Helmus was asked to evaluate the school-hours portion of Student’s program in Lincoln-Sudbury and to offer an opinion regarding its appropriateness for Student. (SE-19; Testimony of Dr. Helmus) Dr. Helmus based her opinion on a morning observation of the REACH program, consultation with the REACH teachers and Dr. Gotthelf, and her review of the proposed IEP and evaluations performed since January 2001. (SE-19) It was noted that marked improvements in Student’s functioning had been observed since her medication had been changed to Amantadine in December 2002. (SE-19)
· Dr. Helmus remarked that Student’s areas of strength were her cheerfulness, curiosity, drive and investment to master the material presented to her, which was corroborated by her teachers. (SE-19; Testimony of Dr. Helmus) At Lincoln-Sudbury, Student had an opportunity to interact with a diverse group of students while receiving specialized or modified instruction. In the REACH program she was grouped with two other girls who seemed to function at a similar cognitive, academic and social-emotional level. (See PE-1G; SE-4; SE-5) When in the mainstream classes for English, acting, science and wellness, Student was provided the support of a paraprofessional. (SE-19) She also received support in learning skills class to preview and review the material covered in the mainstream, receives remedial functional math and reading instruction, using the EDMARK Reading Program in the REACH room. (SE-19) She received occupational therapy, physical therapy, speech and language therapy and attended a co-taught social skills group and a games group to work on pragmatics, and also participated in a social skills class for adolescents. (SE-19)
· Upon arrival on March 21 st , Dr. Helmus observed Student and two other girls during a math lesson in the REACH room. (SE-19; Testimony of Dr. Helmus) Student offered correct answers and was observed to use manipulatives to solve fractions. Student was then observed to walk with another student to her mainstream science class, which provides lab work and opportunities for multi-sensory experiences. ( Id .) During the science lesson, Student sat next to the aide who took notes and explained information to Student several times. The teacher used an overhead projector to present a visually complex, small print, geologic time table, which the evaluator found difficult to follow. (SE-19) The aide later volunteered that the information presented would have to be modified because it was too difficult and dense for Student. The class was given a worksheet to complete independently which Student completed in a cooperative group model at the table with the aide and the other two REACH students. (SE-19) During the learning skills class in the REACH room, Student and the other two girls reviewed and practiced lines for a vocabulary word skit and an English vocabulary quiz. The observer remarked that Student’s reading ability during that exercise exceeded the second grade level. (SE-19) Ms. O’Reilly reported to Dr. Helmus that in many instances Student had difficulty defining words presented individually, but was better able to define words used in context. Dr. Helmus noted that this was an example of the “negative impact of Student’s retrieval and expressive language difficulties on her ability to demonstrate knowledge.” (SE-19) Student was then observed to go to the cafeteria, purchase her lunch, put it in a bag and return to eat it at the REACH room with a friend. Student was observed to eat in a manner that was somewhat atypical but it was Dr. Helmus’ impression that she would have responded to some concrete guidelines that would have made her eating behavior more typical. ( Id .; Testimony of Dr. Helmus.)
· Dr. Helmus noted that, within the structure of the school program, Student appeared to function at a higher level than suggested by her test scores. (SE-19) Dr. Helmus attributed the discrepancy to the positive effects caused by Student’s recent change in medication, and to the possibility that test scores may not capture Student’s true abilities. Dr. Helmus opined that Student possessed greater conceptual understanding and more knowledge than can be demonstrated through testing, especially when the environment is highly structured and supportive. (SE-19) Student’s performance however, was found to be uneven, making it difficult to monitor her true academic progress. ( Id .) Student clearly had executive functioning issues that interfered with her academic independence to complete work, but demonstrated good adaptive skills in the school context and could function quite independently in that environment. Dr. Helmus found the teachers to be very skilled and dedicated and found the program to be well staffed in terms of the student teacher ratio. (SE-19) Dr. Helmus stated that while she rarely found the inclusionary model to be appropriate for children with similar profiles to Student, in her opinion Student was benefiting from the REACH program both from an academic as well as a socio-emotional standpoint. (SE-19) She recommended that Student continue to participate in the REACH program, but noted that addressing Student’s executive function deficits was critical particularly in regard to generalization of skills. (SE-19; Testimony of Dr. Helmus) Dr. Helmus further recommended that a behavioral specialist evaluate and addresse issues regarding parental concerns over Student’s independent functioning at home. (SE-19) She testified that she had not met or spoken to Parents, and that while she opined that in order for Student to receive an appropriate education she required a school and home program, she had not been asked to evaluate anything other than the 8:00 a.m. to approximately 2:00 p.m. program in the school. (Testimony of Dr. Helmus) An evaluation of the home environment was called for in order to make appropriate educational recommendations for Student. She further opined that a home component was an essential aspect of Student’s programming. ( Id .)
· In late March 2003, Parents agreed to extend the services described under the 3/2003-3/2004 IEP through the end of the school year to avoid any disruption in services. (PE- 6A) In general, the record reflects continued cooperation and communication between Parents and Lincoln–Sudbury during the period between January 30, 2001 and March 31, 2003. ( PE-6B; SE-16)
CONCLUSIONS OF LAW:
There is no question that Student is an individual who falls within the purview of the Individuals with Disabilities Education Act, IDEA and state special education law. (20 U.S.C. 1400 et seq., M.G.L.c, 71B) The Parties do not dispute her eligibility or her entitlement to special education, and while they see her needs in a similar manner, they strongly disagree with her capabilities, the degree of her needs, and the type of placement necessary to afford her a FAPE.
To ascertain whether the programs offered by Lincoln and by Lincoln-Sudbury were appropriate, Student’s complex profile and needs must be understood.
She has been diagnosed with a Right Hemisphere Disorder and Attention Deficit Hyperactivity Disorder as a result of an anoxic brain injury suffered when she was approximately 9 months old. (PE-3B; PE-3C; Testimony of Dr. Bruno-Golden, Ms. Ward) This history includes “early childhood asphyxia, early acquired somatic encephalopathy, early childhood seizure activity and medications associated with significant side effects.” (PE-3C) Student’s impairments manifest in the areas of “motor speed, attention, constructional skills and dysgraphia, visual perception and organization, word retrieval, executive skill and memory and ADHD.” (PE-3(C) Neurobehaviorally, she presents with impulsivity, hyperactivity, distractibility and difficulty maintaining focus to task which can be worse in unstructured settings. ( Id. ) By 1998, she had also been diagnosed with dysexecutive syndrome. (PE-1(C); Testimony of Bruno-Golden, Ward) This syndrome, which affects the frontal lobes (the portion of the brain that regulates process to different parts of the brain) causes difficulty with planning, anticipating, regulating and internalizing information. It affects memory, language development and makes it difficult for Student to take information she learns in one setting and generalizing it in another setting. ( Id. ) She has difficulty “processing signals from the environment in order to make good decisions and to control her emotions”, which impacts the way in which she masters academics, interacts with those around her and uses her social skills. ( Id .) Her executive function and language deficits also cause her increased impulsivity, decreased organization and impaired reasoning and problem solving. (Testimony of Ms. Ward, Dr. Singer)
The issues in this matter span over four years of Student’s life and include the appropriateness of the programs offered by Lincoln and by Lincoln-Sudbury, summers and compensatory education for interruptions in services, beginning in 2000. As such, two different standards govern Student’s rights under special education law.
For the period covering the summer of 2000 through January 2001, Massachusetts required that eligible students receive a free appropriate public education (hereinafter, “FAPE”) inclusive of special education and related services, specifically designed to maximize the student’s potential consistent with David D. v. Dartmouth School Committee , 775 F.2d 411 (1 st Cir. 1985), offered in the least restrictive environment appropriate to meet the individual needs of the Student. 603 CMR 28.110.0, 118.0.
For the period covering 2001 through 2004, Student was entitled to receive a FAPE, the federal standard adopted in Massachusetts in January 2001.4 This standard requires that the individualized education program offered by the district address Student’s unique needs in a way that allows the Student to make meaningful and effective educational progress. The program must also be offered in the least restrictive setting appropriate to meet the student’s needs.5 In Massachusetts, effective progress in the general education program has been defined as:
To make documented growth in the acquisition of knowledge and skills, including social/emotional development, within the general education program, with or without accommodations, according to chronological age and developmental expectations, the individual educational potential of the child, and the learning standards set forth in the Massachusetts Curriculum Frameworks and the curriculum of the district. The general education program includes pre-school and early childhood programs offered by the district, academic and non-academic offerings of the district and vocational programs and activities. 603 CMR 28.02 (18)
603 CMR 28.02 (19) defines special education as:
Specially designed instruction to meet the unique needs of the eligible student or related services necessary to access the general curriculum and shall include the programs and services set forth in state and federal special educaiton law.
The Federal Courts have explained that meaningful educational progress must be evaluated in the context of the student’s educational potential. Lenn v. Portland School Committee , 998 F.2d 1083 (1 st Cir. 1993); Roland v. Concord School Committee , 910 F.2d 983 (1 st Cir. 1990); Burlington v. Department of Education , 736 F.2d 773, 788 (1 st . Cir 1984). Under the FAPE standard the student is assured access to a meaningful public education but his individual potential need not be maximized. Lenn v. Portland School Committee , 998 F.2d 1083 (1 st Cir. 1993); GD v. Westmoreland School District, 930 F.2d 942 (1 st Cir. 1991)
Considering the legal standards stated supra and in light of the totality of the facts described in the findings of fact section of this decision, which I adopt and incorporate here by reference, I find that both Lincoln’s and Lincoln-Sudbury’s programs offered to the Student during the years at issue fail to meet the requirements of federal and state law. The evidence shows that in spite of heroic efforts and good will on the part of the Schools’ teachers, the programs did not provide Student a FAPE. Similarly the IEP covering the summer of 2000 was not reasonably calculated to maximize Student’s potential.
While Lincoln’s and Lincoln-Sudbury’s witnesses attempted to persuade me that the Student had made effective progress in their programs, the evidence showed otherwise. I am persuaded by the credible testimony of Dr. Singer, Dr. McLeod, Dr. Bruno-Golden, Ms. Ward and Parent in reaching this conclusion. Their expertise cover several areas namely, neurology, neuropsychology, speech and language and psychology. (PE-1A; PE-2A; PE-2B; PE-2C) The programs failed to address Student’s social, functional life-skills, language-based issues appropriately and ignored Student’s need for an extended school year program and she did not have the required peer group described by the evaluators mentioned infra . (Testimony of Dr. Singer, Dr. McLeod, Dr. Bruno-Golden, Ms. Ward)
Since 1996 the evaluators have recommended that Student be provided with structure across all settings. (PE-3C) Dr. Kaufman stressed the need for Student to develop her math and language skills so that she could function as an independent adult in the community. (PE-5) Dr. Bruno-Goldman and Dr. Kaufman repeatedly related concerns regarding Student’s academic and social development, as well as her inability to generalize knowledge across all settings. (PE-5; Testimony of Dr. Bruno-Golden) Dr. Kaufman stressed the need for support in the home environment to address behavioral issues and warned that failure to address the totality of Student’s issues could result in the need for a more restrictive fully integrated program where her education was not fragmented. (PE-5; Testimony of Dr. Bruno-Golden) Lincoln and Lincoln-Sudbury disregarded many of these warnings, while Parents continued to work cooperatively with Lincoln and Lincoln-Sudbury over the years to address Student’s needs in those environments. (Testimony of the Parent, Ms. Nathanson, Ms. Fagan)
Regarding the years at issue, the evidence shows that since 2001 Student has not made effective progress, and in fact may have regressed or lost skills during that time. The results of her WISC-III over this period of time are very concerning as is the fact that she consistently failed to meet the goals and objectives delineated in her IEPs. (PE-1Cii; PE-3B; PE-3C; Testimony of Ms. Ward, Dr. Bruno-Golden) Between 1996 and 2001 she obtained the following scores in the WISC-III:
2001 1998 1996
Verbal IQ: 78 (borderline) 78 75
Performance IQ: 57 (mildly impaired) 62 58
Full Scale IQ: (mildly impaired) 71 64
Verbal Comprehension Index: 84 (low average) 87 83
Perceptual Organization Index: 59 (mildly impaired) 65 60
Freedom From Distractibility Index: 69 (mildly impaired) 75 69
Processing Speed Index: 64 (mildly impaired) 64 64 (PE-1Cii; PE-3B; PE-3C)
A close review of the record shows that Student is capable of progressing if given the appropriate supports, individualized attention and services. The evidence indicates that on or about 1998 she was progressing and acquiring skills. (PE-3B) At that time, her services were intensified, she participated in a summer program and was receiving Orton-Gillingham Reading Program 5 x per week, occupational therapy 2 x per week, speech and language-therapy 3 x per week, social skills training and additional supports with academics. (PE-3B) This is consistent with the results of the WISC as well as other testing discussed in the “Findings of Fact” section. Furthermore, Lincoln and Lincoln-Sudbury ignored Parents’ plea to provide Student with assistance with her behavior and functional living skills in the home after school hours, something that even Dr. Helmus, the Schools’ expert witness, recognized as an area that had to be evaluated and serviced. (Testimony of Dr. Singer, Dr. Bruno-Golden, Ms. Ward, Dr. Helmus, Parent) As Student was getting older, Parents related concerns regarding Student’s money management skills, her ability to structure leisure time, and to function independently and safely in the environment including safety on public transportation. (SE-19)
Both Lincoln and Lincoln-Sudbury were aware of the Parents’ concerns, the findings and recommendations of Dr. Bruno-Golden, an expert originally engaged by Lincoln to evaluate Student,6 Dr. McLeod, Dr. Kaufman and Ms. Ward. Following an evaluation of November 2001 and again in July 2002, Ms. Ward recommended that Student be taught in a classroom setting that offered a very small student to teacher ratio, where she was among cognitively similar peers, given Student’s need to develop basic linguistic skills and metacognition. (PE-1B) Ms. Ward stressed that Student be provided direct instruction in all of the basic components of language arts, that instruction be provided at her current level of intellectual functioning, that her learning be paced and be within an appropriate learning context. (PE-1B) This recommendation echoed previous ones made by Dr. Bruno-Golden, Dr. Kaufman and Dr. McLeod.
Dr. Bruno-Golden stated that “in order for [Student] to make progress in the regular education classroom she would need to have the curriculum completely broken down, modified, defined and delivered exclusively for her…[Student] would be more successful and capable of becoming independent in a school where the curriculum is already designed to teach students who are her intellectual peers and exhibit similar significant language based learning disabilities.” (PE-3A; see PE-1Cii) These as well as other important recommendations did not meet the reality of the programs offered and in which Student participated in Lincoln and in Lincoln Sudbury which now result in Student’s need for residential placement. Further discussion of the particular issues follows.
Summer of 2000
Extended school year services must be provided when they are necessary to afford students a FAPE. 34 CFR §300.309. It is an individually-based determination that must be reached by the student’s Team and may include
…Special education and related services that-
(1) Are provided to a child with a disability-
i. Beyond the normal school year of the public agency
ii. In accordance with the child’s IEP; and
iii. At no cost to the parents of the child and
(2) Meet the standards of the SEA.34 CFR §300.309
Massachusetts allows a student to participate in extended year programs if the student demonstrates, or is likely to demonstrate, substantial regression of the skills learned or if the student will face substantial difficulty in relearning skills if s/he does not participate in an extended year program. 603 CMR 28.05:(4)(d)1. The Team is charged with the responsibility to determine the need and duration of extended day and extended school year programming. 603 CMR 28.05:(4)(d) Massachusetts further excludes programs provided solely for recreational purposes that have no corresponding IEP goals or specially designed instruction from being considered extended year programs. 603 CMR 28.05:(4)(d)4.
During the summer of 2000, Lincoln did not offer Student an extended school year program, nor did Lincoln agree to fund the residential summer program at Riverview, chosen by Student’s Parents. (PE-18E; Testimony of Parent, Ms. Watts) When the Parents asked Lincoln to fund her placement in Riverview, Lincoln declined to do so, but agreed to make a financial contribution towards said placement. ( Id. ) In essence the Parties cost-shared the placement selected by Parents. While the evidence supports a finding that Student required participation in a summer program, and none was offered, Student is not entitled to reimbursement. When Lincoln failed to offer Student participation in a summer program, Parents had the option of disputing said finding and having the issue decided by the BSEA. Instead, Parents accepted the contribution made by Lincoln which resulted in Student’s participation in the Riverview Summer Program for 2000. I am persuaded that the parties entered into a cost-share agreement in good faith and Lincoln fulfilled its end of the agreement. Parents are therefore, not entitled to reimbursement for their out of pocket expenses associated with Student’s placement during the Summer of 2000.
Summer of 2001
The evidence shows that at the Team meeting of May 2001, Parents requested that Student be offered an extended day/year program. (PE-6B; Testimony of Ms. Fagan) However, while Lincoln agreed that she required summer services, the IEP offered the Student did not include a summer program for the 2001 summer. (PE-18Cii; Testimony of Ms. Nathanson, Ms. Fagan) The denial of summer services occurred despite Parents’ requests, recommendations by independent evaluators and the Team’s awareness of Student’s social and academic needs. (PE-6B; PE-18B; PE-1F; PE-18Ci; PE-18Cii; PE-18Ciii; SE-1; Testimony of Parent, Ms. Ward) The evidence in this case supports a finding that Student required summer services in 2001, and every other summer through 2004, in order to receive a FAPE, to prevent regression and /or loss of learned skills.
The Team meeting notes found in PE-18Cii mention Lincoln’s suggestion that Student receive tutorial services but in the end nothing was offered in Student’s IEP. The notes state that “in the past the school has offered to provide tutoring in the summer…the family has elected not to take advantage of this offer as they feel that [Student] also needs both an academic and recreational component to her summer…the team acknowledged Student’s social and academic needs.”( PE-18Cii) Given the totality of Student’s needs, the tutorial was insufficient to meet her needs. The evidence is clear and convincing that Student required an extended year program that addressed all of her areas of need.
Faced with Lincoln’s reluctance to provide Student a summer program, Parents again placed Student in Riverview Summer Program which Student had previously attended in the summers of 1999 and 2000. (PE-6B; Testimony of Parent)
At Riverview, Student participated in a residential program, which included whole language instruction using the Orton-Gillingham method, and a variety of recreational activities with like-peers and activities of daily living. (Testimony of Ms. Ward, Father) It combined academics such as math, science, language arts, organization, reading, social skills and computers using an integrated thematic approach, with a variety of camp style activities. (PE-1E; PE-17) Student also attended variety of extracurricular activities such as barn dances, visits to the National Seashore and the Woodshole Oceanographic Aquarium, Red Sox and other baseball games, outside camping, etc. (PE-1E; PE-17) Student had an opportunity to practice social skills with other students with similar ability and these social interactions yielded meaningful friendships some of which she maintains to date. ( Id .) In April 2001, Dr. MacLeod had expressed concern, from a psychological standpoint, that Student have true peer interactions, such as the ones in Riverview, something she lacked in Lincoln. (PE-1Dii; Testimony of Dr. Ms. McLeod) At Riverview, Student was accepted and liked while in contrast, she was often rebuffed and made fun of by students in Lincoln.
Lincoln’s argument that the program offered recreational opportunities and therefore, was inappropriate and excluded by the Massachusetts Special Education Regulations, is not persuasive. 603 CMR 28.05 🙁 4)(d)4 excludes programs that are solely for recreational purposes which are unrelated to the goals in the student’s IEP. Contrary to Lincoln and Lincoln-Sudbury’s arguments, Riverview addressed Student’s areas of need. Furthermore, given the myriad of social and daily living difficulties presented by Student, participation in recreational activities was an appropriate way of teaching her much needed skills, at her level, with like peers. These areas of need were also identified in her IEP.
The evidence is convincing that Riverview’s summer program was appropriate for Student in that it offered her a structured consistent environment with academics, whole language instruction, opportunities to develop her social skills with an appropriate peer group and worked on activities of daily living. Therefore, Lincoln is responsible to reimburse Parents for expenses associated with placement of Student in Riverview for the summer of 2001.
The 2001-2002 School Year
The IEP promulgated by Lincoln, following the Team meetings of January 31, 2001 and May 14, 2001 addressed Student’s placement for the remainder of the seventh grade and the beginning of the eighth grade. (PE-18Ci) The actual IEP appearing in the record, covering the period from September 2001 through June 2002, was not forwarded to Parents until May of 2001. During the May meeting the Team discussed the reports of the independent evaluations by Sara McLeod and Dr. Bruno-Golden, who was present at the meeting. (PE-18Ciii) Lynn Fagan’s speech and language therapist in Lincoln also offered an oral report. ( Id .) By then, the Team was aware of Dr. McLeod’s concerns regarding the lack of an appropriate peer group and Student’s risks for being victimized. (PE1Dii) The IEP promulgated after the May meeting offered Student regular/special education consultation once per week for 20 minutes. Under direct services in the general education classroom it offered: academic support 4 times per week for 40 minutes, science and social studies services 5 times per week for 40 minutes each. Under direct services outside the regular education classroom, Student was to receive communications and life skills four times per week for 40 minutes; counseling once per week for 40 minutes; math five times per week for 40 minutes; occupational therapy once per week for 40 minutes; and, reading five times per week for 40 minutes. (PE-18Ci) This IEP was forwarded to Parents on or about May 17, 2001. Parents responded in January of 2002, at which time additional requests for services were made by Parents. (PE-18Ci; PE-6B)
On August 29, 2001, Parents again shared their concerns regarding the lack of an appropriate peer group for Student at Lincoln and the risk for victimization and depression as raised by Dr. McLeod. (PE-6B)
Her program in Lincoln in the eighth grade consisted of a one-on-one tutorial for Math, English, physical therapy and physical education, in addition to participation in regular education classes for social studies, science, music, art and chorus, to which she was accompanied by an aide. (PE-1Di ; Testimony of Ms. Nathanson)
Ms. Ward noted in her evaluation of Student that by November of 2001 Student had not mastered basic skills such as the days of the month, days of the week or the hours in one day and did not understand nor could she demonstrate “touch math”, the math method used in Lincoln. (PE-1Bii) According to Ms. Ward, because Student was still learning language, she was unable to use language to learn. (Testimony of Ms. Ward) Ms. Ward concluded that a day placement in an inclusion setting did not work for Student. ( Id. )
The Parent and or Student concerns in this IEP listed: reading-decoding; reading-comprehension; writing-conventions; writing-coherence; math-computations skills; math-concepts; independent academic functioning; communication; community life skills; occupational life skills; occupational therapy; and counseling. (PE-18Ci) The evidence however, shows that little attention was paid to development of life skills, and that she was not an actual member of the community as she was unable to foster peer relationships with Lincoln students outside school. (Testimony of Parent, Ms. Ward)
The evidence shows that Student was not placed with appropriate peers in Lincoln and that the opportunities for socialization at the Community Life Skills Program at the Hanscom Air Force Base (hereinafter, “Hanscom”), which Student attended one afternoon per week, was insufficient to meet her psycho-social and life skills needs or otherwise compensate for the lack of an appropriate peer group in Lincoln. According to Ms. Nathanson, the Hanscom program had been offered to address Student’s social development by participating in a program with peers of similar ability with whom she could develop friendships. Had Student participated in the Hanscom program twice per week she would not have had the opportunity to participate in Lincoln’s school play. (Testimony of Ms. Nathanson) Student was unable to form or maintain friendships with either the students at Hanscom or those in Lincoln. (Testimony of the Father, Ms. Nathanson)
In April of 2001, after two interviews with Student, Dr. McLeod concluded that Student was quite isolated from her peers in Lincoln and that Student’s denial of her differences and her minimization of her difficulties relating to peers appeared to be the way in which she coped with her placement in Lincoln. (PE-1Dii) Dr. McLeod warned that said strategy in light of Student’s limitations placed her at risk of victimization, dangerous manipulation by other children and increased Student’s vulnerability to depression. Dr. McLeod noted several instances where Student had been rebuffed by peers when attempting to interact with them, and was teased regarding her deficits. (PE-1Dii) Dr. McLeod stressed the importance of an accepting social group and noted that, in choosing a high school placement, a setting that met Student’s social, and not only her academic needs, should be considered.
In January of 2002 Parents rejected the placement decision and requested additional services. (PE-18Cii; Testimony of Parent)
Summer of 2002
The Team notes for the 2001-2002 school year reflect that the Team had decided to postpone a determination as to whether Student should participate in an extended school year program until the meeting of January 20027 . Lincoln’s IEPs for the 2001-2002 school year did not offer Student an extended school year program despite the Team’s awareness of Student’s social and academic needs, Parents’ requests, or recommendations by independent evaluators. (PE-18B; PE-1F; PE-18Ci; PE-18Cii; PE-18Ciii; Testimony of Parent, Ms. Ward) The only mention of services during the summer was made informally and can be found in the Team meeting notes identified as PE-18Cii, which proposes only tutorial services. Given the totality of Student’s needs, said suggestion by Lincoln was inappropriate. The evidence is clear and convincing that Student required an extended year program that addressed all of her areas of need for the summer of 2002.
In July 2002, Ms. Ward issued a report recommending that Student be placed in a year round residential, whole language program such as the one offered in Riverview. (PE-6B; Testimony of Ms. Ward) Parents forwarded the report to Lincoln and to Lincoln- Sudbury and requested that Student be placed residentially in Riverview for the summer of 2002 and for the 2002-2003 school year. (Testimony of Parent) When Lincoln failed to offer an extended school year program, Parents unilaterally placed Student in Riverview’s Summer Program, which was essentially the same as the one described in the “Summer 2001” section supra , and was found to be appropriate. (PE-6B; Testimony of Parent) The evidence shows that Student required an extended school year program in 2002, that Lincoln offered nothing, and since, as discussed before, I found the Riverview Summer Program appropriate, Lincoln is ordered to reimburse Parents for expenses associated with that placement including transportation.
The 2002-2003 School Year
At the time the Team met in March 2002 to discuss the appropriate IEP services and placement for Student for the 2002-2003 school year, Ms. Ward, Dr. Bruno-Golden and Dr. McLeod had all recommended that Student be placed in an out of district program that could provide cognitive rehabilitation and address Student’s social and life skills issues, in a school specifically designed to meet the needs of children with acquired brain injury. (PE-1Ci; Testimony of Ms. Ward, Dr. Bruno-Golden, Parent) Nevertheless, Lincoln and Lincoln-Sudbury recommended that she be placed in a combination inclusion/ substantially separate services in the REACH program (hereinafter, “REACH”) in Lincoln-Sudbury. (PE-18B; Testimony of Parent)
REACH is a substantially separate program for students who present with intellectual impairment and significant academic deficits at the Lincoln-Sudbury High School. (SE-17; Testimony of Ms. O’Reilly) The program’s brochure describes it as a supportive model that combines experiences in both small-group classroom settings and the mainstream, through a multi-modal instructional approach. (SE-17) Classes in the mainstream include science, English, computer, history, wellness, art, music and language. ( Id. ) REACH students participate in life skill development, which include community-based experiences, daily living skills and pre-vocational training. (SE-17)
The IEP proposed that Student receive one-on-one reading, math and speech and language services in the resource room and participate in a social skills group with three other girls who receive services through the REACH program. She would attend regular education classes with other ninth graders for science, English, wellness, acting, FYI and best buddies. Two of the girls in the REACH program participate in these regular education classes. All three students would receive assistance from an aide when in their mainstream inclusion classes. (Testimony of Ms. O’Reilly, Ms. Ward) One other boy and the third girl would attend FYI and acting with Student. ( Id. ) Most of Student’s meaningful relationships in school take place with these four students, three girls and one boy. ( Id. ) Parents’ experts/observers all made positive comments about the level of commitment displayed by the staff in Lincoln and in Lincoln-Sudbury but opined that the program was insufficient to meet Student’s needs. (PE-1Di; PE-1Dii; PE-18Ciii; PE-6B; Testimony of Dr. McLeod, Ms. Ward)
The program as designed presented several problem areas including lack of an appropriate peer group, insufficient opportunities to work on social and life skills, a deficient/ inappropriate language based program, inappropriate modifications to a curriculum as opposed to actual direct instruction, lack of a home/behavioral component and issues with transportation since Student’s safety was compromised on at least one occasion. The credible testimony offered by Dr. Bruno-Golden and Ms. Ward regarding their observations of Student in Lincoln-Sudbury, confirmed that in the regular education classroom the curriculum was modified, not adapted for Student. She was not expected to learn or demonstrate the same level of mastery of a subject matter as did her typical peers. (Testimony of Dr. Bruno-Golden and Ms. Ward) Given her limitations she was missing more material than she was acquiring. A modified curriculum allowed Student to follow the general curriculum but did not provide her with the basic skills required by her for meaningful learning. (Testimony of Ms. Ward) The inclusion program also failed to offer Student real opportunities for meaningful participation in the mainstream so that she could develop real friendships that carried outside the school, and develop the social skills she needed. ( Id. )
The evidence shows that Student’s safety was compromised on the first day of school when the bus driver told her to get off the bus on Route 2, a divided four-lane highway with no sidewalk. Student implored with the bus driver to take her home, as she was not allowed to walk alone especially in that area, to no avail. (Testimony of Parent, Dr. Gotthelf) Student began to walk home crying when she was spotted by her old bus driver who picked her up and drove her home. ( Id. )
Lincoln-Sudbury chose to ignore the wealth of information available to it which showed that Student’s needs, and therefore, services, are not limited to the regular school day, 8:00 a.m. to 2:40 p.m. Student’s overall lack of coping skills to address emergent situations appropriately, her inability to generalize skills across settings, her need for implicit structure throughout Student’s waking hours were ignored, beyond the length of the school day. (Testimony of Dr. Bruno-Golden, Ms. Ward, Parent, Dr. McLeod) Dr. Bruno-Golden explained that Student,
… is not a child whose educational needs begin and end with the start and close of the school day. By report, [Student’s] ability to manage her daily living skills, activities of recreation and leisure time are frequently observed at home as inept and at times distressing. There is little opportunity for [Student] to participate within normal adolescent activities, both with her peers and also in an environment which provides her the opportunity to be socially successful and safe. Thus there is concern for her social and emotional development. (PE-3A)
Lincoln-Sudbury failed to address Student’s social and life-skills needs outside the school setting and has never acknowledged the need for a home component to Student’s program. Since at least August 2002 Lincoln-Sudbury has been aware of Student’s needs, as well as the recommendations to service her in this area, and knew that Parents requested these services. Given that Student was in the REACH program for several months before the hearing, it had ample opportunity to improve its program, and yet, chose not to do so. Taking the position at hearing in April 2003, that it could modify its program to include such services when it had not even evaluated what the needs in that area were, and therefore, what services should be offered, is too little too late. This possibility was only presented after its own expert witness, Dr. Helmus, testified to the need for an after school behavioral/home program. (Testimony of Dr. Helmus) Most concerning was Dr. Helmus testimony that she had specifically been told to assess only the appropriateness of the in school program. ( Id. ) She testified that the home portion was important, that it should be evaluated and that Student’s educational services should include an after school home component. While Lincoln-Sudbury acted appropriately in bringing Dr. Helmus to evaluate the Student in Lincoln-Sudbury, limiting her ability to evaluate all of Student’s needs across all settings was a grievous mistake. Lack of a home component to Student’s program contributed to Lincoln-Sudbury’s denial of FAPE to Student.
The record also shows that Student missed several months of physical therapy due to a misunderstanding between Parents and the school. (Testimony of Dr. Gotthelf, Parent)
According to Ms. Ward, speech and language pathologist, REACH and the inclusion portions of Student’s program fell short and in some instances deprived Student of the type of intervention required to address the language needs given Student’s executive function issues. Student needs to learn the basics of language, which can help her become more independent in all of her environments. She has not yet learned to generalize what she learns in school to other areas of life and still requires work with functional life skills. For instance, she had been taught to place an index card under words when she reads in school or use her finger but she does not use these strategies when asked to read outside school. Similarly, she was not able to conduct touch math out of the class. (Testimony of Ms. Ward) Also while she is taught to read using the EDMARK Reading Program, this program is not used in any of her regular education classes including English. (Testimony of Ms. Kramer, Ms. O’Reilly) Also, in 1996, Dr. Lorna Kaufman had recommended that Student use the Orton-Gillingham program. (PE-5)
Further concerns were raised with the amount of reliance placed on the aide when Student was in the mainstream. Constant reliance on the aide in a sense makes the Lincoln-Sudbury program more restrictive for Student than Riverview. After two observations of Student, Ms. Ward concluded that Student made poor progress with the inclusion model upon which the REACH program is predicated. (PE-4; Testimony of Ms. Ward) The evidence supports Ms. Ward’s opinion that after several years following this model, Student continues to perform at the second grade level and is not developing “on-line metacognitive skills”. The inclusion model is leading Student down a path of learned helplessness. ( Id. )
The evidence shows that Student responded positively to the intensity of services offered in Lincoln between 1996 and 1999. Testing performed during that period of time showed that Student progressed in reading from the first grade to the third grade level as shown by the results of the Woodcock-Johnson administered during those years. (PE-5; PE-9C; PE-9B; PE-12; Testimony of Parent, Ms. Ward) Between 1996 and 1997 her math calculation also improved from a 0.8 grade equivalency to a 1.9. In 1999, Lincoln proposed to change Student’s services to include much more participation in the mainstream through an inclusion model. Student’s math skills fell back to the 1.4 grade equivalency level. ( Id. ; PE-12) Woodcock-Johnson testing conducted in 2003 by Ms. O’Reilly yielded the following results: Letter Word identification .1 percentile (versus 4 th percentile in 1999); Word Attack 7 th percentile (versus 25 th percentile in 1999); Passage Comprehension .1 percentile (versus 8 th percentile in 1999); and, .1 percentile in Calculation. (PE-9A; PE-12, Testimony of Ms. Ward) Testing performed by Lincoln-Sudbury in 2003, considered reliable by its personnel, also found Student to perform at a second grade level in Reading. (PE-7; PE-8A; PE-9A; Testimony of Ms. O’Reilly) The evidence shows that Student’s skills stagnated between 1998-99 and 2003.
Student does not learn in a typical manner because her working memory does not function well. (Testimony of Dr. Singer) The part of her brain that holds on to information long enough to be stored in her long-term memory is impaired. Her inability to hold on to information and skills for long periods of time make it imperative that she be in an environment where she receives constant reinforcement through scaffolding in a very structured setting. Only then can the information become a part of her long-term memory and thus functional. (Testimony of Dr. Singer, Dr. Bruno-Golden, Ms. Ward) She must be taught in a systematic implicit manner if she is to become independent. (Testimony of Ms. Ward)
I credit Dr. Bruno-Golden’s testimony that at this time Student requires a comprehensive 12-month educational program design to address the needs of children who exhibit traumatic brain injuries and associated learning disabilities. The program must address Student’s social, emotional and educational needs including her severe language-based processing difficulties. In Lincoln-Sudbury’s mainstream classes Student is very dependent on the assistance of her aide to access a curriculum which is clearly not designed for her and is approximately 7 years above her intellectual ability. (Testimony of Dr. Bruno-Golden) Instead, she requires a curriculum designed to meet her needs at her level. ( Id. ) She would benefit from a small class setting with students who are her intellectual peers and exhibit similar language-based difficulties. (Testimony of Dr. Bruno-Golden)
Regarding peers, Student requires the opportunity to develop social relationships with cognitive peers in a safe and supportive environment. (Testimony of Ms. Ward) At Lincoln-Sudbury, she has not developed true friendships that carry outside the school building or school hours. Her only “friends” are her older sister’s friends who looked after her and protected her, whom Student considers her bodyguards. (Testimony of Ms. Ward, the Parent; Dr. Bruno-Golden) Student considered her peers from Riverview her true friends. ( Id .)
Concerns regarding Student’s lack of true peer interactions at Lincoln-Sudbury were raised by Dr. McLeod who testified that in a mainstream environment Student’s participation in conversations was limited to watching and listening rather than participating. (Testimony of Dr. McLeod) As a result Student was not truly integrated. Ms Ward testified that during her observation of Student’s acting class during 2003, Student stood alone during a break while typically developing peers mingled or left the room. During Wellness, Student and two other girls from REACH worked on weights in a separate part of the room while the rest of the students engaged in a different activity. (PE-4; Testimony of Ms. Ward) Student stated to Dr. McLeod that she had friends in school but Dr. McLeod and the Parent noted that these so-called “friendships” were not carrying over to the home and into the community. (Testimony of Dr. McLeod, Parent; Ms. Ward) Dr. McLeod stated that Student is eager to be accepted and liked and wishes to deny that she is different from her peers but she lacks the ability to recognize nuances that appear obvious to typically developing peers. (PE-1Dii; Testimony of Dr. McLeod)
Her desire to fit in places her at risk socially and emotionally. (Testimony of Dr. McLeod) Parents, Ms. Ward, Dr. McLeod and Dr. Bruno-Golden expressed concerns that in a typical high school she may face social isolation, become depressed or be victimized. (PE-1Dii) Lincoln’s and Lincoln-Sudbury’s argument that Student was integrated in school and had friendships with typically developing peers is not supported by the evidence. (PE-4; Testimony of Dr. McLeod, Ms. Ward, Parent) At both schools Student resisted participating in social activities, except for attending an occasional game with her older sister, who is a senior at the same school, and her sister’s friends, whom Student regarded as her “bodyguards.” Her negative experiences during dances8 and other social activities made her resist participating in them and more than once she claimed to be sick, or said she had to be elsewhere, to avoid attending. (Testimony of Parent) The evidence is also persuasive that she maintained no true friendships with the other four students in REACH. Seven months into her placement in Lincoln-Sudbury she had only had one telephone conversation outside school with a girl from REACH. (Testimony of Ms. Ward, Parent) Sharing space with typically developing peers and exchanging pleasantries in passing with students and staff cannot be defined as having a real relationship. As Ms. Ward testified, at REACH Student was “correlated, not included”. Having true peer relationships are essential for Student to be able to develop self-esteem, understand her place in the world and learn pragmatics, and she needs to learn this in context and with peers that are like her.
In contrast, she was liked and accepted by students at Riverview and maintained friendships with some of them throughout the year. (Testimony of Parent, Dr. McLeod, Ms. Ward) For her birthday in March of 2003, she chose to celebrate it with her friends from the Riverview School summer camp and did not invite her peers from REACH.
The evidence also shows that Lincoln-Sudbury did not address Student’s life-skills needs and behavioral issues appropriately, especially after school hours or during the summer, in spite of Parents’ requests and the outside consultants’ (including Lincoln-Sudbury’s Dr. Helmus) recommendations. (Testimony of Parent, Ms. Ward, Dr. Singer, Dr. Bruno-Golden, Dr. McLeod, Ms. O’Reilly, Dr. Gotthelf, Ms. Reen) While both Lincoln and Lincoln-Sudbury had ample opportunity to evaluate and address these issues, nobody from Lincoln-Sudbury ever requested to come to or visit the home to assess the situation regarding life-skills or the relationships with peers and siblings, or observed her in Riverview during the summers. (Testimony of Ms. O’Reilly, Dr. Gotthelf, Ms. Reen, Ms. Nathanson) Lincoln-Sudbury did not know that Student was having problems with self-care during her menstruation. (Testimony of Parent, Ms. O’Reilly, Dr. Gotthelf, Ms. Reen) Lincoln-Sudbury and the REACH staff knew that Student wanted to attend Riverview but did not know how frustrated Student was in Lincoln-Sudbury. The staff was unaware that Student believed that she had to maintain good relationships with the other REACH students or the staff would be mad at her. (Ms. Ward, Ms. O’Reilly) The testimony was uncontradicted that Student tries very hard, that she tries to make the best out of every situation, that she wants badly to fit in with her peers, and tries to fit into any environment. (Testimony of Parent, Ms. Nathanson, Dr. McLeod, Dr. Bruno-Golden, Ms. Ward, Ms. Reen, Ms. Kramer) Assuming therefore, that she tried her best at Lincoln-Sudbury, her lack of effective progress in all of the areas of need support the conclusion that the program as designed was insufficient to meet her needs. Furthermore, the evidence is convincing that in order to receive a meaningful education that provides a FAPE, Student requires a program that spans beyond the 8:00 a.m. to 2:40 p.m. which Lincoln-Sudbury failed to provide.
Dr. Helmus supported Student’s need for a program that included after school hours services, that is, a home component to address Student’s life skill and social issues. She however, did not visit the home, meet with Parents, or speak to any of Parents’ experts who serviced Student over the previous several years or tested Student. (Testimony of Dr. Helmus) In contrast, Dr. McLeod, Ms. Ward and Dr. Bruno-Golden observed and evaluated Student in different settings, spoke to Student about her desires and perception, and Ms. Ward visited Student in the home. (Testimony of Ms. Ward, Dr. Bruno-Golden, Dr. McLeod) Dr. Helmus testified that she had not reviewed Dr. Bruno-Golden’s letter of 2002 and her report of 2003, Ms. Ward’s report of 2003, Dr. Kaufman’s report of 1996, or Dr. McLeod’s report of 2001. (See PE-9; PE-5; PE-1D; SE-9) Her evaluation consisted of observing Student in Lincoln-Sudbury, reviewing reports produced mostly by school personnel and speaking to the staff in school. (Id.) While I find Dr. Helmus to be a credible witness, I find that her conclusions and recommendations are not reliable given that she did not observe Student in multiple settings, and lacked relevant crucial information from Parents and Parents’ experts. She did not visit the home, did not discuss Student with Parents’ experts and did not review their reports. (Testimony of Dr. Helmus) According to her, the limitations on the extent of her inquiries were set by Lincoln-Sudbury. She concluded that Student’s program between 8:00 a.m. and 2:30 p.m. in REACH seemed appropriate, but lacked a behavioral component. According to Dr. Helmus, Student required more than she was receiving in Lincoln-Sudbury, though she could not comment on the specifics as she had only observed Student during school hours. Dr. Helmus recommended further evaluation of Student’s needs in the home and after hours to ascertain what type of services might be appropriate. (Testimony of Dr. Helmus) An appropriate educational program in her opinion should include a behavioral home component. ( Id. )
The evidence shows that Lincoln-Sudbury failed to offer Student a FAPE that allowed her to make meaningful progress as time and time again it chose to ignore Student’s needs in school and beyond regular school hours necessary to render the services offered meaningful and appropriate. The day program presented inadequacies that resulted in Student’s lack of effective progress and may have even caused her to regress. (Testimony of Ms. Ward, Dr. Bruno-Golden, Dr. Singer) Lincoln-Sudbury’s continued reluctance to look at Student as a whole appropriately assess all of her needs and service her accordingly is surprising. Its expert, Dr. Helmus was not even retained until after the hearing had started and did not observe Student until March 21, 2003; by then Parents’ experts had already testified. Lincoln-Sudbury had multiple opportunities to rectify its position and offer Student what she truly needed. Instead, it chose to put on blinders and saw only what it wanted, not what Student needed to make meaningful progress. It tried to force Student to fit into the program it already had, the REACH program, as opposed to creating or locating a program that met all of her needs.
Dr. Bruno-Golden, Dr. Singer, Dr. Kaufman and Ms. Ward all found that Student’s needs could not be met through a day placement as her disabilities interfere with her ability to generalize from one setting to another. Dr. Bruno-Golden, Dr. Singer and Ms. Ward recommended that she be placed in a year-round residential program that provides the implicit environment Student requires.
For the reasons stated above, I find that Lincoln-Sudbury failed to provide Student with a program designed to allow her to receive a FAPE during the 2002-2003 school year.
Summer of 2003
Student’s Team reconvened on March 19, 2003 to develop Student’s IEP for the period covering March 2003 through March 2004. (PE-18A) While this IEP does indicate that Student requires a longer school year program to address reading, functional math and social skills, Lincoln-Sudbury did not identify the specific summer program and placement it would offer Student during the summer of 2003. (PE-18A) The IEP further states that Student required said program “to prevent substantial loss of previously learned skills.” ( Id. ) Also, the IEP’s grid does not state the length of the summer program. (PE-18A) At the time of this Team meeting, the Hearing in this matter had already commenced and Lincoln-Sudbury was well aware that summer services were an issue. Lincoln-Sudbury itself recognized Student’s need for a summer placement. Having recognized the need to provide Student with a summer program, Lincoln-Sudbury failed to present Parents any concrete program and services for their consideration. In light of the totality of the circumstances, this procedural violation of Student’s rights is significant. I find that Lincoln-Sudbury was responsible to offer Student an appropriate extended school year program designed to address her needs. Since Parents requested that Student be placed residentially in the Riverview Summer Program, discussed earlier in this decision, and since that program has been found appropriate, Lincoln-Sudbury shall place Student there for the 2003 summer.
The 2003-2004 School Year and the Summer of 2004
The IEP developed in March 2003 for the period from March 2003 through March 2004, is similar to the one offered for the 2002-2003 school year which I found denied Student a FAPE. (PE-18A) Specifically, this IEP fails to take into account Student’s inability to generalize learned skills into a variety of settings, does not address life-skills issues, does not offer an appropriate pool of like-peers or effectively address Student’s social skills issues. It proposes to continue the combination inclusion/ substantially separate program for most of her academic subjects, which has been found to be inappropriate for Student. (PE-18A; Testimony of Ms. Ward, Dr. Bruno-Golden)
Lincoln-Sudbury had an opportunity to work with Student and modify its program to address all of the issues raised by the Parent and Parents’ experts, including the behavioral portion in the home. As stated, Dr. Helmus opined that a home program was warranted and yet one was not offered, as it was Lincoln-Sudbury’s position that it was not responsible to offer one and that it was not warranted. (Testimony of Dr. Singer, Ms. Ward, the Parent, Dr. Helmus, Dr. Bruno-Golden ) I am disturbed by the fact that although aware of Student’s executive function/memory/language issues, it specifically limited Dr. Helmus’ observation to what went on between 8:00 a.m. and 2:40 p.m. Lincoln Sudbury did not include Parents’ experts in the Team meeting, nor did it solicit their input. It sought no information from the Riverview staff that serviced Student during the several previous summers. This failure placed the Team in a very difficult position as it lacked relevant information that may have led the Team to reach a different conclusion regarding the appropriate program and placement for Student. Dr. Gotthelf testified that he did not visit Riverview until April 1, 2003, after Student’s Team had convened. (Testimony of Dr. Gotthelf) Dr. Gotthelf stated that he had attempted to visit earlier but April 1 st was the first available day for Riverview. Even then, he did not visit the school on behalf of Student, but rather, he and Lynn Hunter observed the GROW program, Riverview’s post secondary school program, not the program in which Student would participate. (Testimony of Dr. Gotthelf)
Given the deficiencies and difficulties with Student’s program in Lincoln-Sudbury and her lack of effective progress with the IEP and in the REACH program during the 2002-2003 school year, the new IEP developed in March 2003 is inappropriate to meet Student’s needs. At this time because of the intrinsic design of REACH in light of Student’s disabilities, and given Lincoln-Sudbury’s continued reluctance to address crucial issues with Student’s education, modifications to the proposed program would be insufficient to meet Student’s needs. Her skills require the consistency, structure, repetition and opportunities to practice offered in a 24-hours program. She needs small group instruction with peers like her and she needs to learn in context. (Testimony of Dr. Bruno-Golden. Ms. Ward, Dr. Singer, Dr. McLeod) Without these necessary elements she will not be able to avail herself of a FAPE that will allow her to progress effectively and work towards independence.
The Riverview Program
Dr. Bruno-Golden, Dr. Singer, Dr. Mc-Leod, Ms. Ward and even Ms. Fagan and Ms. Nathanson to a certain degree, were of the opinion that Student requires a program that runs all year, with service providers who understand the types of disabilities displayed by Student. Furthermore, in order to provide the level of consistency that will allow her to learn and internalize the skills taught to her the program must be a 24-hour residential placement. (Testimony of Dr. Bruno-Golden, Dr. Singer, Dr. Mc-Leod, Ms. Ward) All aspects of her day must be highly coordinated through implicit structure. (Testimony of Dr. Singer) She must be taught with a language-based approach. (Testimony of Ms. Ward) Her social and life-skills must be addressed throughout her waking hours and she must have access to a real pool of like peers from which she can choose and form a real peer group. (Testimony of Dr. Singer, Dr. McLeod) Appropriate social skills must be learned at her pace, with peers like her who will not tease her when she makes mistakes and who make mistakes themselves. She needs to feel that she is not always the last one to “get it”, that she can be a leader, so that she can develop a healthy sense of self. This will give her the confidence to learn and to feel good about herself. Dr. Singer, Ms. Ward and Dr. McLeod stressed the importance of allowing Student to choose her own peer group as opposed to having one chosen for her. Even Dr. Helmus agreed that having access to an appropriate peer group was very important for Student. (Testimony of Dr. Helmus) She must have access to an appropriate peer group that is similar to her cognitively, academically, socially and emotionally. (Testimony of Dr. Bruno-Golden, Dr. Singer, Dr. Mc-Leod, Ms. Ward)
Riverview is a Massachusetts Chapter 766 approved school located in East Sandwich, MA. (PE-1E) It offers residential placement to male and females between the ages of 11 and 22. The students’ profiles include learning disabilities, language impairments, attention-deficit disorder, non-verbal learning disabilities, developmental delays and Asperger’s Syndrome. (PE-1E) The credible testimony by the Parent, Dr. Bruno-Golden, Dr. Singer, Dr. Mc-Leod, Ms. Ward supports a finding that educationally Riverview can offer Student the structure and services Student requires at this time. It offers the implicit, in context structure and a reasonable pool of cognitively, emotionally and socially like peers. (Testimony of Ms. Ward) Students at Riverview are divided into small groups of approximately eight students with a head teacher and two or three additional instructors who teach all subjects. (PE-1Bi) The day staff meets daily for approximately 1 ½ hours and maintains close communication with the evening staff to monitor students’ sleeping and eating routines, or ascertain whether emotional issues are manifested. (PE-1Bi) Classes are taught using a multi-sensory approach. There are two fulltime speech and language pathologists who work directly in the classroom. In Riverview, students receive therapy in class. (PE-1Bi) Riverview uses the Orton-Gillingham reading program and is staffed by skilled professionals. (Testimony of Ms. Ward)
The school has a whole child philosophy. (PE-1Bi) The advisor is a licensed social worker who helps the students with self-advocacy and conflict resolution. (PE-1Bi) A significant portion of the program teaches students how to cope with stress and tolerate frustration so as to prevent losing their temper. They also learn how to identify emotions such as anger or jealousy and how to respond appropriately to such emotions. The consistency and carryover across all settings allows students to internalize the scripts for managing different emotions. (PE-1Bi) Emphasis is also placed on teaching social pragmatic skills. The overall program at Riverview is based on structure, routine, social and academic development as well as learning how to address “glitches” when something falls outside the plan. (PE-1Bi; Testimony of Ms. Ward) Ms. Ward remarked on the coping strategies used by the teachers during a language arts class to help students adapt to change in their routine when an unexpected guest arrived to read for the students. (PE-1Bi) She also noted that “the teachers did an excellent job of using analogy to teach language and semantic association” and that they used effective techniques to keep students focused when they began to fatigue. Small sensory breaks and flexibility were used to promote attention to task in a socially acceptable manners. (PE-1Bi; Testimony of Ms. Ward) Parents and Student were informed that Riverview has openings for the summer of 2003, as well as for the 2003-2004 school year.
While Student is not so disabled that she is unable to dress or feed herself, she still has numerous difficulties around self-care, money management, food preparation, socialization issues. Student still needs to be cued and scripted by her parents regarding showering, using cream rinse to avoid tangles in her hair, having breakfast, completing homework, knowing how to place her pads correctly during menstruation, and how often to change them to avoid accidents. She is also unable to make change to pay for things such as food during lunch, etc. (Testimony of Ms. Ward, Parent) At this time, she requires the intensity of a residential placement with like peers who are facing similar issues to incorporate the strategies that will allow her to become more independent and be able to manage a mainstream setting in a meaningful effective way.
Lincoln-Sudbury did not support placement of Student in Riverview, and its staff believed that Student functioned well in Lincoln-Sudbury. (Testimony of Ms. O’Reilly, Ms. Reen, Ms. Hunter) Dr. Gotthelf testified that the type of student he recommended for residential placement was one with behaviors that could not be controlled in the public school setting, which was not the case with Student. (Testimony of Dr. Gotthelf of August 19, 2002) According to him, Student would also not be eligible for a private day school placement because the type of Student recommended for such placement would be one that wondered off campus even under supervision, a student who refused to comply with staff requests or one who was a danger to himself or others. According to Dr. Gotthelf, all other issues could be handled in Lincoln-Sudbury. He did not see issues regarding safety or Lincoln-Sudbury’s 10-day rotating schedule because the aide or a staff would accompany Student to her classes. (Testimony of Dr. Gotthelf) None of the staff at Lincoln-Sudbury observed Student at home or in Riverview; encounters in the community were too brief and informal to have substantive value. (Testimony of Dr. Gotthelf, Ms. Reen, Ms. Hunter, Ms. Fagan, Ms. Nathanson)
Given Student’s age it is also important to consider her views. She was legally entitled to participate in the Team meetings. During a conversation with Ms. Ward in 2001 she stated, “I learn better there [at Riverview], I have more help and then I am more confident to do stuff. At Riverview everyone understands.” (PE-1Bii) “I am the star there, people look to me and I decide what we will do.” (Testimony of Ms. Fagan) Student told other providers and teachers that she wanted to go to Riverview. (Testimony of Ms. Reen, the Parent) She felt happy at Riverview, was a part of the community and considered her peers there her friends. (Testimony of Parent, Ms. Nathanson, Ms. Fagan, Ms. McLeod) In contrast, she felt singled out in Lincoln and did not feel comfortable raising her hand or speaking out in class because peers “laugh at me.” (PE-1Bii; Testimony of Ms. Ward) She is aware that she is different to other students in Lincoln and in Lincoln-Sudbury. (Testimony of Dr. Singer, Ms. Ward) The Parent testified that Student has made spontaneous remarks such as “I am transparent,” “People don’t listen to me,” “I have no friends,” “no one calls me,” “I feel lonely”. Student also told Dr. McLeod that Student’s older sister’s friends were her bodyguards because Lincoln-Sudbury was “ a big school and its scary” so “they look out for [her].” (Testimony of Dr. McLeod, the Parent)
At this time Student warrants residential placement at Riverview. This placement can address all of her needs and will allow her to generalize the learned skills across all areas of her life.
Compensatory Services Parents’ further request that compensatory services be awarded for Lincoln’s failure to offer services delineated in the IEP, and because of the inappropriateness of the program offered which lacked an extended school year component in 2000, 2001 and 2002. Parent’s challenge to Lincoln-Sudbury relates to the lack of summer programming for 2003, and non-provision of a behavioral/home program. The summer program portion of Parents’ request has already been addressed so I turn to the legal authority regarding compensatory services and the Parents’ challenges regarding the inappropriateness of the programs offered by both schools. As discussed in In Re: Medford , BSEA #02-0640, October 31, 2002, 8 MSER 329 (SEA MA 2002) The First Circuit Court of Appeals has long recognized the right of a student to receive compensatory education as a form of relief to remedy previous deprivations due to a deficient IEP. Pihl v. Massachusesetts Department of Education , 9 F. 3d 184 (1 st Cir. 1993). Where a denial of essential special education services or a significant interruption in the provision of those services has occurred during the period of the Student’s entitlement9 to special education, compensatory services may be awarded. Stock v. Massachussetts Hospital School , 467 NE. 2d 448, 392 Mass. 205 (1985). In Massachusetts, the BSEA is authorized to review the evidence and when appropriate, award compensatory services in special education cases. Murphy v. Timberlane , 973 F.2d 13 (1 st Cir. 1994); 603 CMR 28.08 et seq . In determining whether said form of relief should be granted, several factors, such as the conduct of the parties, the specific period of time during which the specific service was denied, the appropriateness of the services offered to the student and the type and extent of harm caused to the student as a result of any denial of a FAPE must be weighed. In deciding whether this form of relief is appropriate, the hearing officer must also take into account the parent’s actions. If a parent is found to have been given a real opportunity to participate in the team meeting, and if thereafter, the parent knowingly and voluntarily accepted the IEP, then compensatory education should not be considered for that period. W.B. v. Matula , 67 F. 3d. 484 (3 rd Cir. 1995). A parent’s refusal to allow the student to access services deemed to be appropriate, or rejection of services that would otherwise render an IEP appropriate for the student, would also bar the student’s claim as to those periods. In Re: Taunton Public Schools , BSEA # 01-0462 (2001); In Re: Silver Lake Regional School District , BSEA # 01-1370 (2001); In Re: Sharon Public Schools , BSEA # 02-1490 (2002). Massachusetts has recognized the following standard in determining whether an IEP was implemented: “1) failure to implement an IEP must not be a complete failure, 2) the variance from special education and related services specified in the IEP must not deprive the student of FAPE; and 3) the provision of special education and related services must make ‘progress’ toward the achievement of the goals stated in the IEP.” Ross v. Framingham , 44 F. Supp 2d 104 (D. Mass. 1999). Where the elements described infra favor the Student’s claim, then compensatory services is an acceptable form of relief to be awarded by the BSEA. See Murphy v. Timberlane , 973 F.2d 13 (1 st Cir. 1994). The evidence shows that Parents did not ask for placement of Student in a more restrictive setting until January of 2002 when they formally rejected the IEP sent to them by Lincoln in May 2001. (PE-18Ci) The Parents listed a number of concerns with the program offered regarding academics including language and math computation/concept issues, community life skills, occupational therapy, counseling, extended school day/year programs, inappropriate peer group, need for a neurobehavioral-management program, special physical education, and transportation. (PE-6B; PE-18Ci; PE-18Cii) They reiterated a previous request that Student be placed in an out of district residential program. Parents postponed acceptance/rejection of Student’s IEP until her evaluations were completed during the 2001-2002. Another Team meeting was held in March 2002, to discuss the 2002-2003 school year and Student’s anticipated transition into Lincoln- Sudbury’s High School. Lincoln mailed this IEP in March 2002 and Parents’ rejection dated May 14, 2002 was received by the school after July 5, 2002. (Testimony of Parent) The evidence shows that while Parents’ requested additional services and outside placement for Student in 2001, their formal request and rejection of the IEP came in January 2002. (PE-6B; PE-18Ci; PE-18Cii: Testimony of Parent) In the instant case, considering the information available to the Team at the time the IEP was drafted, in 2002, which included Student’s performance, her test results, the recommendations of Dr. Bruno-Golden, Ms. Ward, Dr. McLeod, Dr. Kaufman, and input by Lincoln’s service providers and Parents, the Team should have drafted an IEP that called for more services than the one developed, and should have seriously considered Parents’ request for an outside placement. During the Spring semester Student’s participation in the Hanscom Base program decreased to once per week because Student wished to participate in Lincoln’s Spring production. (SE-3) Taking into account the totality of the information presented at hearing and mindful of Parent’s actions, I find that Student is not entitled to compensation from Lincoln beyond reimbursement to the Parent for Student’s summer placement in Riverview. While the program offered was not totally appropriate, it did not fail completely either. The Parents were aware of the decrease in sessions in the community life-skills program in Hanscom Base, and knew that the decrease was due to Student’s wish to participate in the Spring production, which she did. The problems with Lincoln’s program were inherited by Lincoln-Sudbury when the latter failed to amend the IEP to include all of the services it should have included to afford Student a FAPE, after Parents had requested residential placement for their daughter. While I agree with Parents’ argument that Lincoln-Sudbury’s program failed to offer Student a FAPE for the 2003-2004 school year, I am not persuaded that such failure translates into compensatory services in residential placement beyond what I have ordered. The totality of the circumstances in this matter warrant placement of Student in Riverview for the 2003-2004 school year inclusive of the extended year program during the summer of 2004. However, because of the intensity and high level of restrictiveness of a residential program, I am not persuaded that Student is entitled to any additional compensatory services and therefore, decline to order any at this time. Residential placement is a highly restrictive environment, which will offer Student a great deal of structure and consistency. Its services are much more intense than those a public school program could ever offer, because they are designed to teach and reinforce skills during the students’ waking hours. This intensity is geared towards helping students internalize learned academic, social and life skills, so that students can access and use their skills automatically across all settings. Given this intensity it is not reasonable to equate a year in a public school program to a year in a residential facility. While the evidence is persuasive that Riverview is the appropriate program capable of offering Student a FAPE for the 2003-2004 year, I am persuaded that in time, when Student has internalized sufficient skills to successfully avail herself of an education in a less restrictive environment, she should return to the District. Prior to considering whether Student should move to a less restrictive environment, Lincoln-Sudbury should be prepared to assess Student’s needs in school and in the home, and must be prepared to offer a home component to Student’s program if she needs one. If as stated in Student’s IEP, the long term goal is independence, given her disabilities, it is likely that any effective program will require an extended day to address Student’s issues in the home, as well as social skills and functional living skills effectively. Her need for continued participation in a summer program that combines academic, social, functional life skills and recreation should be evaluated seriously, given her need for repetition, consistency and to avoid losing skills she acquires. At this point, these elements are consistent with the recommendations of the Parents’ experts and Dr. Helmus, but they will have to be evaluated in connection with Student’s presentation and progress following her experience in Riverview through 2004. Dr. Helmus testified that she was impressed with Student’s appearance and demeanor and concluded that she must have derived some benefit from her exposure to typically developing peers whether at home or school. She also commented on Student’s awkwardness when eating. Student’s physical appearance is that of a normal child because her disability was acquired as a result of a brain injury at 9 months of age. This combined with the fact that she desperately wants to fit in the environments in which she is placed (as explained by Ms. Ward and Dr. McLeod) contribute to her appearance and demeanor. But it is clear that she still has a long way to go before she reaches the goal for independence stated in her IEP. True independence for this Student implies her ability to function in society to the extent she is able. She needs to find her place in society. To this extent it is conceivable that when she is ready, to the extent that exposure is meaningful, with the appropriate program in place she should return to a less restrictive setting. Exposure to typically developing peers is a part of life and she must learn to deal with real life situations when she has the skills to handle it. Given her strengths, too long exposure to an unnatural setting without typical peers may cripple her from a social standpoint. Finding the appropriate balance between inclusion and substantially separate settings appropriate for this Student will not be easy because of the complexity of her disabilities and total presentation. It is however, clear that Parents will play a key role in ascertaining the appropriate level of restrictiveness among the different settings. Equally important would be to obtain input from Dr. Bruno-Golden or Dr. Helmus, neuropsychologists, and Ms. Ward, speech and language pathologist, all of whom possess extensive experience in treating children with brain injuries. Lincoln-Sudbury should assure their participation in the Team meeting. Riverview service providers should also be a part of the Team. 1. Lincoln shall reimburse Parents for their unilateral placement of Student in the Riverview Summer Program for the summers of 2001 and 2002. 2. Lincoln-Sudbury shall place the Student in Riverview’s summer program for the summer of 2003. 3. Lincoln-Sudbury shall place Student residentially at Riverview for the 2003-2004 school year inclusive of an extended school year program during the summer of 2004. 4. Lincoln-Sudbury shall conduct the home evaluation before convening the Team to plan for the 2004-2005 school year. So Ordered by the Hearing Officer, _______________________________________ Rosa I. Figueroa Dated: 2/6/2004 February 6, 2004
The copy of this plan, PE-18E, is unsigned by Parents.
The meting date on the IEP attached to the attendance sheet is May 14, 2001.
Cycles at the Lincoln Sudbury High School are 10 days long.
FAPE discussed: Hendrick Hudson Bd. Of Education v. Rowley , 458 U.S. 176, 188-189 (2992); Cedar Rapids Community School District v. Garret F., 526 U.S. 66 (1999); Burlington v. Department of Education , 736 F. 2d 773 (1 st Cir. 1984). Houston Independent School District v. Bobby R ., 200 F.3d 341 (5 th Cir. 2000); Stockton by Stockton v. Barbour County Bd. of Educ ., 25 IDELR 1076 (4 th Cir. 1997); MC v. Central Regional School District , 81 F.3d 389 (3 rd Cir. 1996), cert. denied 519 US 866 (1966); Ridgewood Board of Education v. NE , 30 IDELR 41 (3 rd Cir. 1999). See also GD v. Westmoreland School District , 930 F.3d 942 (1 st Cir. 1991).
See In re: Gill-Montague Regional School District , BSEA #02-1776, August 27, 2002, 8 MSER 245, 255-256 (SEA MA 2002)(footnotes omitted), citing In re: Arlington , 37 IDLR 119, 8 MSER 187, 193-195 (SEA MA 2002) for a detailed explanation of the FAPE standard.
Dr. Bruno-Golden’s 1996 and 1998 neuropsychological evaluations were done at the request of Lincoln.
The notes state January “2001” but given that the meeting was held in October 2001 I assume the drafter meant January of 2002.
During a dance in Lincoln she spent the night crying in the bathroom but when asked by her parents how the dance went, she said fine. (Testimony of Parent)
See M.G.L. c. 71B §1 establishing that the disabled student’s period of entitlement runs from the time s/he is 3 years of age until s/he attains a high school diploma (or its equivalent), or the day of the student’s twenty second birthday, whichever comes first. 603 CMR 28.02 (9).
Parents’ further request that compensatory services be awarded for Lincoln’s failure to offer services delineated in the IEP, and because of the inappropriateness of the program offered which lacked an extended school year component in 2000, 2001 and 2002. Parent’s challenge to Lincoln-Sudbury relates to the lack of summer programming for 2003, and non-provision of a behavioral/home program. The summer program portion of Parents’ request has already been addressed so I turn to the legal authority regarding compensatory services and the Parents’ challenges regarding the inappropriateness of the programs offered by both schools.
As discussed in In Re: Medford , BSEA #02-0640, October 31, 2002, 8 MSER 329 (SEA MA 2002)
The First Circuit Court of Appeals has long recognized the right of a student to receive compensatory education as a form of relief to remedy previous deprivations due to a deficient IEP. Pihl v. Massachusesetts Department of Education , 9 F. 3d 184 (1 st Cir. 1993). Where a denial of essential special education services or a significant interruption in the provision of those services has occurred during the period of the Student’s entitlement9 to special education, compensatory services may be awarded. Stock v. Massachussetts Hospital School , 467 NE. 2d 448, 392 Mass. 205 (1985). In Massachusetts, the BSEA is authorized to review the evidence and when appropriate, award compensatory services in special education cases. Murphy v. Timberlane , 973 F.2d 13 (1 st Cir. 1994); 603 CMR 28.08 et seq . In determining whether said form of relief should be granted, several factors, such as the conduct of the parties, the specific period of time during which the specific service was denied, the appropriateness of the services offered to the student and the type and extent of harm caused to the student as a result of any denial of a FAPE must be weighed. In deciding whether this form of relief is appropriate, the hearing officer must also take into account the parent’s actions. If a parent is found to have been given a real opportunity to participate in the team meeting, and if thereafter, the parent knowingly and voluntarily accepted the IEP, then compensatory education should not be considered for that period. W.B. v. Matula , 67 F. 3d. 484 (3 rd Cir. 1995). A parent’s refusal to allow the student to access services deemed to be appropriate, or rejection of services that would otherwise render an IEP appropriate for the student, would also bar the student’s claim as to those periods. In Re: Taunton Public Schools , BSEA # 01-0462 (2001); In Re: Silver Lake Regional School District , BSEA # 01-1370 (2001); In Re: Sharon Public Schools , BSEA # 02-1490 (2002). Massachusetts has recognized the following standard in determining whether an IEP was implemented: “1) failure to implement an IEP must not be a complete failure, 2) the variance from special education and related services specified in the IEP must not deprive the student of FAPE; and 3) the provision of special education and related services must make ‘progress’ toward the achievement of the goals stated in the IEP.” Ross v. Framingham , 44 F. Supp 2d 104 (D. Mass. 1999). Where the elements described infra favor the Student’s claim, then compensatory services is an acceptable form of relief to be awarded by the BSEA. See Murphy v. Timberlane , 973 F.2d 13 (1 st Cir. 1994).
The evidence shows that Parents did not ask for placement of Student in a more restrictive setting until January of 2002 when they formally rejected the IEP sent to them by Lincoln in May 2001. (PE-18Ci) The Parents listed a number of concerns with the program offered regarding academics including language and math computation/concept issues, community life skills, occupational therapy, counseling, extended school day/year programs, inappropriate peer group, need for a neurobehavioral-management program, special physical education, and transportation. (PE-6B; PE-18Ci; PE-18Cii) They reiterated a previous request that Student be placed in an out of district residential program. Parents postponed acceptance/rejection of Student’s IEP until her evaluations were completed during the 2001-2002. Another Team meeting was held in March 2002, to discuss the 2002-2003 school year and Student’s anticipated transition into Lincoln- Sudbury’s High School. Lincoln mailed this IEP in March 2002 and Parents’ rejection dated May 14, 2002 was received by the school after July 5, 2002. (Testimony of Parent) The evidence shows that while Parents’ requested additional services and outside placement for Student in 2001, their formal request and rejection of the IEP came in January 2002. (PE-6B; PE-18Ci; PE-18Cii: Testimony of Parent)
In the instant case, considering the information available to the Team at the time the IEP was drafted, in 2002, which included Student’s performance, her test results, the recommendations of Dr. Bruno-Golden, Ms. Ward, Dr. McLeod, Dr. Kaufman, and input by Lincoln’s service providers and Parents, the Team should have drafted an IEP that called for more services than the one developed, and should have seriously considered Parents’ request for an outside placement. During the Spring semester Student’s participation in the Hanscom Base program decreased to once per week because Student wished to participate in Lincoln’s Spring production. (SE-3) Taking into account the totality of the information presented at hearing and mindful of Parent’s actions, I find that Student is not entitled to compensation from Lincoln beyond reimbursement to the Parent for Student’s summer placement in Riverview. While the program offered was not totally appropriate, it did not fail completely either. The Parents were aware of the decrease in sessions in the community life-skills program in Hanscom Base, and knew that the decrease was due to Student’s wish to participate in the Spring production, which she did. The problems with Lincoln’s program were inherited by Lincoln-Sudbury when the latter failed to amend the IEP to include all of the services it should have included to afford Student a FAPE, after Parents had requested residential placement for their daughter.
While I agree with Parents’ argument that Lincoln-Sudbury’s program failed to offer Student a FAPE for the 2003-2004 school year, I am not persuaded that such failure translates into compensatory services in residential placement beyond what I have ordered. The totality of the circumstances in this matter warrant placement of Student in Riverview for the 2003-2004 school year inclusive of the extended year program during the summer of 2004. However, because of the intensity and high level of restrictiveness of a residential program, I am not persuaded that Student is entitled to any additional compensatory services and therefore, decline to order any at this time.
Residential placement is a highly restrictive environment, which will offer Student a great deal of structure and consistency. Its services are much more intense than those a public school program could ever offer, because they are designed to teach and reinforce skills during the students’ waking hours. This intensity is geared towards helping students internalize learned academic, social and life skills, so that students can access and use their skills automatically across all settings. Given this intensity it is not reasonable to equate a year in a public school program to a year in a residential facility.
While the evidence is persuasive that Riverview is the appropriate program capable of offering Student a FAPE for the 2003-2004 year, I am persuaded that in time, when Student has internalized sufficient skills to successfully avail herself of an education in a less restrictive environment, she should return to the District. Prior to considering whether Student should move to a less restrictive environment, Lincoln-Sudbury should be prepared to assess Student’s needs in school and in the home, and must be prepared to offer a home component to Student’s program if she needs one. If as stated in Student’s IEP, the long term goal is independence, given her disabilities, it is likely that any effective program will require an extended day to address Student’s issues in the home, as well as social skills and functional living skills effectively. Her need for continued participation in a summer program that combines academic, social, functional life skills and recreation should be evaluated seriously, given her need for repetition, consistency and to avoid losing skills she acquires. At this point, these elements are consistent with the recommendations of the Parents’ experts and Dr. Helmus, but they will have to be evaluated in connection with Student’s presentation and progress following her experience in Riverview through 2004.
Dr. Helmus testified that she was impressed with Student’s appearance and demeanor and concluded that she must have derived some benefit from her exposure to typically developing peers whether at home or school. She also commented on Student’s awkwardness when eating. Student’s physical appearance is that of a normal child because her disability was acquired as a result of a brain injury at 9 months of age. This combined with the fact that she desperately wants to fit in the environments in which she is placed (as explained by Ms. Ward and Dr. McLeod) contribute to her appearance and demeanor. But it is clear that she still has a long way to go before she reaches the goal for independence stated in her IEP. True independence for this Student implies her ability to function in society to the extent she is able. She needs to find her place in society. To this extent it is conceivable that when she is ready, to the extent that exposure is meaningful, with the appropriate program in place she should return to a less restrictive setting. Exposure to typically developing peers is a part of life and she must learn to deal with real life situations when she has the skills to handle it. Given her strengths, too long exposure to an unnatural setting without typical peers may cripple her from a social standpoint. Finding the appropriate balance between inclusion and substantially separate settings appropriate for this Student will not be easy because of the complexity of her disabilities and total presentation. It is however, clear that Parents will play a key role in ascertaining the appropriate level of restrictiveness among the different settings. Equally important would be to obtain input from Dr. Bruno-Golden or Dr. Helmus, neuropsychologists, and Ms. Ward, speech and language pathologist, all of whom possess extensive experience in treating children with brain injuries. Lincoln-Sudbury should assure their participation in the Team meeting. Riverview service providers should also be a part of the Team.
1. Lincoln shall reimburse Parents for their unilateral placement of Student in the Riverview Summer Program for the summers of 2001 and 2002.
2. Lincoln-Sudbury shall place the Student in Riverview’s summer program for the summer of 2003.
3. Lincoln-Sudbury shall place Student residentially at Riverview for the 2003-2004 school year inclusive of an extended school year program during the summer of 2004.
4. Lincoln-Sudbury shall conduct the home evaluation before convening the Team to plan for the 2004-2005 school year.
So Ordered by the Hearing Officer,
Rosa I. Figueroa
February 6, 2004