Student v. Peabody Public Schools – BSEA #01-3945
COMMONWEALTH OF MASSACHUSETTS
SPECIAL EDUCATION APPEALS
Student v. Peabody Public Schools
This decision is issued pursuant to M.G.L. c. 71B and 30A, 20 U.S.C. § 1401 et seq ., 29 U.S.C. § 794, and the regulations promulgated under said statutes.
A hearing was held on September 24, 25, 26, October 19, November 19, 21, 26, 27, 28, December 6, 11, 19, 2002 at the Bureau of Special Education Appeals, 350 Main Street, Malden, Massachusetts, before Catherine M. Putney-Yaceshyn, Hearing Officer.
Peabody Public Schools (hereafter, the School or Peabody) requested a hearing on March 23, 2001. An automatic hearing date was scheduled for April 20, 2001. On March 28, 2001, the School requested a postponement which the BSEA granted and the matter was scheduled for a Pre-Hearing Conference on May 18, 2001. The Parents filed a Request for Hearing in the same matter on April 13, 2001. The School requested a second Postponement on May 16, 2001 to which the Parents objected. The Postponement request was denied and there was a Pre-Hearing Conference on May 18, 2001. The Hearing Officer issued an Order on May 18, 2001 requiring the Team to convene between July 23 and August 3 and scheduled a Hearing for September 24-26, 2001. The Hearing took place on September 24, 25, 26, October 19, November 19, 21, 26, 27, 28, December 11, 19, 2002. Parties submitted written closing arguments on January 15, 2002 at which time the record closed. On February 25, the Hearing Officer issued an Order for the Student’s placement at the Arlington School for the rest of the school year and the summer and stated that the full decision would follow.
Those present for the hearing were:
Jill A. Updegraph Attorney for the Parents
Dr. Madeleine Nathan Psychologist
Dr. Michelle Meyer Psychiatrist
Ann Crowley Observer (with Parents’ Attorney)
Kenneth McElhany Dean, The Arlington School
Matthew E. McKeon Teacher, the Arlington School
Dr. Jessica Goldstein Psychologist, the Arlington School/McLean Hospital
Jeanne Garrison Teacher, the Arlington School
William Clark Teacher, the Arlington School
Mary Gallant Attorney for Peabody Public Schools
Janis Melanson Adjustment Counselor, Peabody Public Schools
Dr. Monica Brenell Psychologist, Peabody Public Schools
Liz Freedman Administrator of Peabody Community High School
Sandra L. Dunning Director of Special Education, Peabody Public Schools
Karen McGovern Team Chairperson, Peabody Public Schools
Linda Barber Peabody Community High School
Kellie Forsythe Special Education Teacher, Peabody Public Schools
George E. Lemire Housemaster, Peabody Public Schools
Joanne Walsh Guidance Counselor, Peabody Public Schools
Catherine M. Putney-Yaceshyn Hearing Officer
The official record of this hearing consists of documents submitted by the Parents, marked 1 through 20 (Exhibit 16 was excluded), documents submitted by the School, marked 1 through 61 (exhibit 5 was excluded) and approximately 70 hours of recorded oral testimony. The parties submitted written closing arguments on January 14, 2001 and the record closed.
1. Whether the educational program provided by the Peabody Public Schools for the 1998-1999 school year was appropriate to assure the Student’s maximum possible development in the least restrictive environment.
2. Whether the educational program provided by the Peabody Public Schools for the 1999-2000 school year was appropriate to assure the Student’s maximum possible development in the least restrictive environment.
3. Whether the program provided by the Peabody Public Schools for the 2000-2001 school year was appropriate to assure the Student’s maximum possible development in the least restrictive environment.
4. Whether the program provided by the Peabody Public Schools for the 2001-2002 school year is appropriate to assure the Student’s maximum possible development in the least restrictive environment.
5. Whether the program proposed by the Parents at the Arlington School is the appropriate placement for the Student for the 2001-2002 school year.
6. Whether the Student is entitled to compensatory services for any of the above-referenced school years.
7. Whether Peabody Public School’s response to the alleged peer teasing and bullying of the Student during the 1999-2000 and 2000-2001 school year constitutes a violation of Section 504 of the Rehabilitation Act of 1973.
The Student was denied a free appropriate education by the Peabody Public Schools during the sixth, seventh, and eighth grades and is therefore entitled to three years of compensatory services. He was harmed emotionally and regressed academically because Peabody failed to address his academic, social, and emotional needs. The Student was subjected to teasing and harassment by his peers and the School’s response was inadequate which constituted a violation of § 504 of the Rehabilitation Act of 1973.
The Student required a substantially separate, therapeutic placement as early as his seventh grade. However, Peabody failed to offer the Student such a program prior to his ninth grade because it did not have such a program within its district.
The Student requires a substantially separate, therapeutic placement outside of the Peabody Public Schools. The Student and the Parents do not trust the Peabody Public Schools due to its past failure to appropriately meet his academic, social, and emotional needs. Additionally, the Parents feel that Peabody’s Community High School will not provide the Student with appropriate peers and is not geared toward college preparation. The Parents believe that the appropriate placement for the Student is at The Arlington School.
The Student had increasing difficulty with school as his tenure progressed, but his academic and emotional difficulties were not so significant in the seventh and eighth grades that the Student needed to be removed to an out-of-district placement. He did not present as a behavior problem; he often failed to complete classwork or homework. He demonstrated avoidant behaviors of tasks or situations which he disliked. He continued to have notable difficulties with attention and organization at school, but was able to sustain his attention in activities he enjoyed or preferred. As time elapsed, he demonstrated continuing academic difficulties, and he was reported to be suffering from significant emotional problems at home although these emotional problems were much less apparent at school. When presented with evidence of the Student’s increasing difficulty, the Team responded each time by increasing special education services to the Student and by making additional regular education and special education modifications. Although the increase in service delivery was not as great as the Parents wanted, the Team sought to balance the Parents’ concerns with their own observations and daily experiences with the Student and increased the modifications to his program. Peabody modified the Student’s support services in order to meet the increasing needs of the child.
At all relevant times, Peabody offered an appropriate educational program for the Student which was reasonably calculated to maximize his educational potential in the least restrictive environment. Peabody’s Community High School is the most appropriate and least restrictive program to meet the Student’s needs. The reasons asserted by the Parents for a private placement at the Arlington School are not based on legally cognizable claims. The Parents and Student prefer a placement at the Arlington School because they believe the Arlington School is superior to the Community High School. However, the Student’s reports that he does not like it there and does not trust the people at Peabody are not supported by his actual participation at the Community High School. Until mid-fall 2001, the Student was making progress at the Community High School as reported by teachers and other staff. The Student did suffer some decline in the latter part of the fall which was attributable to several factors, including: 1) his attendance at and observation of the BSEA hearing in this matter (against the advice of his treating therapist, Dr. Nathan; 2) his Parents’ clearly stated preference for the Arlington School; and 3) his Parents’ willingness to allow the Student to go home whenever he called from the Community High School and asked to be picked up early from school.
The Peabody personnel worked diligently to investigate the Student’s claims of teasing, but often could not follow through because the Student could not, or did not, provide adequate detailed information. Although the Student and his Parents informed Peabody personnel that the Student was being teased by his peers, most of the complaints were general in nature and lacking in sufficient detail to allow Peabody to conduct a full investigation. The Student was generally unwilling or unable to identify, with enough specific detail, the requisite information which would have enabled the district to follow up. The critical information abut the teasing- who, what, where, and when- was rarely provided to Peabody personnel despite their repeated requests for information. Throughout the Student’s seventh grade year, Ms. Walsh and Mr. Lemire repeatedly affirmed their ongoing willingness to work with the Parents and the Student to eliminate any harassment.
Peabody believes its Community High School is appropriate and is the least restrictive environment for the Student. Although the Student was not able to complete the 2001-2002 school year, the staff is willing and able to continue to work with the Student and the Parents.
SUMMARY OF THE EVIDENCE
1. The Student (“Student”) is a fifteen-year-old student residing in Peabody, Massachusetts. (S-2; P-11, pg. 68; Father) He has been enrolled in the Peabody Public Schools since he was in the fifth grade. (Father) Prior to attending the Peabody Public Schools, he attended the Cohen Hillel Academy in Marblehead, Massachusetts. (Father) When the Student was in the fourth grade, and attending Cohen Hillel Academy, Student was referred to the Peabody Special Education Department for testing. (Father)1 The Student experienced academic and social difficulties at Cohen Hillel Academy during the fourth grade and Parents decided to enroll him in the Peabody Public Schools. (Father)
2. The Student’s IEP for the fifth grade called for academic help 2×30/week with the L.D. staff. (S-48) The Student started out doing well, but had difficulty getting his homework done and his organizational problems became severe as the year progressed. (Father) The Team convened on June 19, 1998 to develop an IEP for Student’s sixth grade. (P-8, Pg. 5) The IEP noted Student’s cognitive ability to be in the average to above-average range and stated he had Attention Deficit Disorder, inconsistent performance and poor organizational skills. (P-8, pg.6) Modifications included allowing Student to print instead of write lengthy assignments, allowing Student extra time for written assignments and modifications to written assignments and homework as needed. A homework partner and frequent communication with the home were also recommended. (P-8, pg.6) The service delivery grid indicated that Student would receive academic help with the L.D. staff 2×40 minutes per week. (P-8, pg.9) The Parents accepted the IEP in full2 .
3. There was a meeting of the Student’s cluster teachers, Parents, and Ms. Walsh, the school guidance counselor, on October 16, 1998. (P-14, pg.2, Walsh, D-4, pg.287) The teachers’ goal was to get the Student more organized. (P-14, pg.2) There were no emotional concerns raised at the meeting and teasing of the Student was not mentioned as an issue. (P-14, pg.2; Walsh, D-4, pg.278) The Parents requested a “full academic, cognitive, and psychological evaluation” of the Student via letter addressed to Ms. Joanne Walsh dated January 21, 1999. (P-2, pg. 1) At the time of their request the Student had received the following grades on his report card: Language Arts: C-, D; Mathematics: D, F; Science: D, F; Social Studies: B-, F. (P-3, pg. 1) The Parents never received a response to their request for an evaluation. (Father) The Student was not evaluated during the sixth grade. Apparently, the Parents’ request was filed in the student’s file and not processed. (McGovern) The Student was not evaluated until late in his seventh grade year after the Parents made another request for an evaluation during the 12/22/99 Team meeting. (See # 26 below)
4. The Father testified that the Student’s teachers were not sensitive to the Student’s disability during the sixth grade and cited a letter from Mrs. McKenney, the Student’s sixth grade science teacher. The letter said, in relevant part, “At this point, it is [Student] who is letting himself down by refusing to follow the same directions as all other students.” The Student received the following grades for the third and fourth quarters of sixth grade: Language Arts: D, D; Mathematics: D, D; Science: C-, F; Social Studies: C-, F. (P-3, Pg. 1)3 The Student took the Iowa Test of Basic Skills in May 1999. (S-44, McGovern) There is no indication in the Student’s file that he received modifications during the test. The Student scored in the average to above average range in all areas except for math computation4 . Ms. McGovern, the Team Chairperson, testified that his scores indicate that he made effective progress in the sixth grade and that “he was able to maintain the skills expected of a student at his age or grade level at the time that he was tested.” (McGovern)
5. The Team convened on May 14, 1999 to draft an IEP for Student’s seventh grade. The performance profile indicated that Student’s skills were at or above grade level and teachers indicated homework completion was usually an issue. It also mentioned that Student is highly distractible and very disorganized. The IEP called for accommodations and modifications including giving visual cues, checking in with Student to make sure he understands directions; providing him with a note buddy and preferential seating; allowing Student to use a computer for written assignments. It also provided for Student to have extra time to complete assignments and tests and required Student to have his agenda book signed by his Parents and teachers daily. (P-8, pg. 26) The Service Delivery Grid included academic support in the Learning Center 3×40 minutes per six-day cycle. (P-8, pg.30) Parents accepted the IEP in full on May 14, 1999. (P-8, pg.32)
6. At a cluster meeting with Student’s 7 th grade teachers on October 5, 1999 Student’s teachers reported he had missed many homework assignments and did not want to stay after school for the extra help they were offering him. George Lemire5 stated that Student would not help himself. (P-4, pg.4; Walsh) The English teacher stated that Student could make up the work if he chose to and the Social Studies teacher, Mrs. Lapham, said it was too late to make-up the missing work. (P-14, pg. 4; Walsh) There was no discussion of teasing at that cluster meeting. (P-8, pgs.33-36; P-14, pg.4)
7. On October 20, 1999, Mrs. Lapham sent a letter to the Father in which she reiterated her homework policy that “students may turn in assignments one day late for partial credit but no later than that.” The Student’s IEP provided that the Student be given extra time to complete assignments. (P-8, pg. 30)
8. The Parents maintained contact with Ms. Walsh throughout the fall. (P-7, pgs.1-3; P-14, pgs. 5-7) On November 22, 1999, the Father informed Ms. Walsh that the Student had been “crying his way to school.” He further stated his belief that the Student was at a “crisis point” and stated a full evaluation would be coming from a psychologist. Ms. Walsh offered to call Ms. McGovern, but the Father thought they should wait for the psychologist’s report. (P-7, pg.2) The Father and Ms. Walsh spoke again the following day and Ms. Walsh reported the teachers did not see Student being picked on and believed he had a small group of friends. The teachers reported that he is relaxed and not stressed in class. Ms. Walsh reminded the Father that after school help was available to the Student. (P-7, pg. 2) A journal kept by the Parents with dates spanning from 5/14/99-2/7/01 includes entries on November 17, 18, and 30 indicating that the Student did not want to go to school. (P-7, pgs. 3-5) On November 30, 1999, the Father sent a letter to the Student’s teachers informing them of the Student’s physical symptoms of stress. He indicated that the Student was seeing a psychologist and requested that teachers “go easy on him.” He further stated that Student was complaining about peers ridiculing him while teachers’ backs are turned in the classroom and asked them to watch for this and “find out if it was a real or exaggerated perception.” (P-8, pgs. 43-47)
9. In November, the Parents brought Student to see Dr. Madeleine Nathan who had previously evaluated him in 1997, while he was a Student at Cohen Hillel-Academy.6 (Father, Nathan) The Parents felt he was having major academic problems at school and wanted to see if she could figure out what to do to motivate him. (Father, D-1,pg.172) When the family went to see Dr. Nathan, Student was not sleeping or eating properly and was lethargic and irritable. (Father) Dr. Nathan testified that the Student presented with clinical depression, had difficulty understanding social cues and was not part of a substantial peer group. She thought he was isolated and experiencing rejection and teasing. (Nathan) She was concerned by the level of depression and withdrawal with which he presented and sent a letter, dated December 1, 1999, to Ms. McGovern at the Higgins Middle School requesting an emergency team meeting. (P-4,pgs.5-6; P-9, pgs. 1-2; Nathan) She indicated that there was a predictable course to the depression based on the past few years7 . Student begins each school year with renewed energy and by Christmas time he feels defeated, shows lethargy, motor slowing, reduction of sleep and appetite. After Christmas vacation he goes back with a little more energy, and by around April, he’s showing “pretty severe decompensation.” (Nathan)
10. On December 2, 2001, Ms. Walsh met with Student to tell him that his teachers all liked him8 , but have to insist that certain work is done. She also asked Student to tell her when students picked on him. (P-9, pg. 3) Ms. Walsh spoke to the Father on December 3, 2001 and reported the Student had told her that certain Students bothered him, but did not mention names. She told the Father she had told Student to report teasing to her. (P-7, pg. 5; Walsh, Day 4, pg. 302) Ms. Walsh testified that Student’s teachers were watching for teasing and not seeing any. (Walsh, Day 4, pg. 302)
11. Father’s journal entry on December 8, 1999, indicates the Student told Dr. Nathan the names of three students who were bothering him. The entry does not indicate whether the names were shared with the School. (P-7, pg. 6)
12. A Team meeting was held on December 22, 1999.9 The following people attended the Team meeting: Karen McGovern, Father, Mother, Joanne Walsh, Dr. Madeline Nathan, Joseph Mirasolo, Kathleen Lapham, Evelyn Rauseo, and Tim Hynick. (S-39, P-9, pg. 12) The Parents presented the Team with their written recommendations for the Student’s success. (P-9, pgs. 7-8)10 Dr. Nathan presented her concerns to the Team reporting that Student’s emotional disability was impacting his ability to manage the curriculum. (Nathan) She also reported that the results she obtained in the neuropsychological evaluation she administered to Student when he was in fourth grade showed a “huge level of lack of organization.” (P-9, pg. 10) She informed the Team that Student was clinically depressed. (P-9, pg. 10-11) The Peabody personnel were surprised to learn that the Student was clinically depressed. They testified that they were not seeing the symptoms described by Parents and Dr. Nathan in School11 and they felt the Student was making effective progress. (McGovern; Walsh) The Parents and Dr. Nathan also reported that the Student was being teased by other students. Teachers reported seeing the Student interacting with them, responsive when asked questions and interacting with peers. (McGovern) Mr. Mirasola, the Student’s science teacher, reported he did not see the teasing and Student appears happy and is usually with a small group of friends. (P-7, pg. 8) There was some discussion about whether the Student could be misperceiving the teasing. (McGovern) The Parents’ journal and notes taken by Peabody staff show that the primary focus of the meeting was on academic issues and that the teasing was also discussed. (P-7, pg.8; P-9, pg. 10; S-39)
13. The Team agreed to provide the Student with some additional modifications. Ms. Walsh’s meeting notes outline the agreement reached by the Team: the Student would receive extra credit for staying after school for extra help; oral tests would be given after school; there was a “critical need” for a check-in person; weekly progress reports would be sent to the office; someone was to check in with the Learning Center regarding organizational problems; a referral would be made to the adjustment counselor; a written request would be made for a complete evaluation; and there would be follow-up regarding pharmacology reports. (P-9, pg. 10) Father’s journal entry for December 22, 1999, indicates that Peabody agreed that 1) Teachers will offer extra credit for after school work; 2) The school adjustment counselor will work with Student on how to handle bullying and teasing; 3) Ms. McGovern will consult with Mrs. DiGregorio about a check in/check out person and about teaching organizational skill in the resource room; 4) Weekly reports will be picked up in the main office on Friday afternoons or Monday mornings; and 5) Testing: Dr. Hynick will process paper work by January 10. (P-7, pg. 18) Ms. McGovern testified that the Team discussed the possibility of Ms. DeGregorio providing the check-in/check-out service or using the homeroom teacher for this purpose. She also testified that a specific person was not decided upon during the meeting. (McGovern, D-9, pgs. 42-43)
14. The Parents provided their consent for evaluation on or about January 3, 2000. (P-9, pg. 27) They signed an authorization for Student to participate in a social skills group on or about January 5, 2000. (P-9, pg. 28)
15. The Parents and the Student met with Mrs. Walsh and Mr. Lemire on January 6, 2000 to discuss the issue of teasing. (P-7, pg. 12) Ms. Walsh testified that they asked the Student to identify who was teasing him because they could not stop it if he did not tell them. (Walsh, D-4, pg. 337) She stated that they asked the Student to tell them, write it down and put it on her desk, in her mail slot, tell any teacher, or report it in any way that he was comfortable. (Walsh, D-4, pg. 227-8) The Parents’ log indicates that the Student provided 5-6 names to Ms. Walsh and she wrote them down. The log also says that the Student agreed to let teachers know who was teasing him and that the Mother suggested keeping a log at home. Parents’ journal says that Mr. Lemire wanted Ms. Walsh to maintain the log at school. (P-7, pg. 12) Ms. Walsh testified that the School felt that they were getting inaccurate information from the Student’s father and the wished to “eliminate the middleman” by having the Student report the teasing directly. (Walsh) Ms. Walsh testified that the Student gave her a list of names around March 29, 2000. (Walsh, D-6, pg. 15)
16. Ms. Walsh testified that in March of 2000, Mrs. Martwichuk, the Student’s Spanish teacher, approached her and told her that she had been providing the Student with extra papers when he misplaced his all year. She told Ms. Walsh she would not continue to provide extra papers because she thought that would be best for the Student. (Walsh; P-7, pg. 17) Ms. Walsh called the Student’s Mother to inform her and the Mother found the decision to be inappropriate. The Mother asked Ms. Walsh if Mrs. Martwichuk was aware of the Student’s disability and Ms. Walsh said that she was. (Walsh) Ms. Walsh testified that Spanish was “almost considered an advanced class” because not all children could take it. She stated that sometimes the modifications made by the Spanish teacher were “not as extensive as other areas.” Ms. Walsh testified that Mrs. Martwichuk “wanted to maintain a higher standard” and she felt that she could not “go against her professional opinion if she felt it was right to keep the Student to a higher standard.” Ms. Walsh testified that every class except for Spanish would be modified for the Student. The Student was later withdrawn from Spanish at the request of the Parents; the School did not recommend his withdrawal. (Walsh)
17. Ms. Walsh testified that she remembered two incidents of teasing during the Student’s seventh grade, one involving girls teasing him and another where the perpetrators were boys. She said the Student was vague about what the teasers had said or done to him. She recalls the Student reporting that somebody had told him to “shut up.” She testified that she spoke to the Students who were involved in the alleged incidents and that they all seemed remorseful except for one male student she referred to Mr. Lemire. (Walsh) Mr. Lemire testified that the only Student that he ever spoke to regarding teasing the Student was a student who he described as “one of the nicest kids in school” and a “good student.” Mr. Lemire testified that alleged teaser was “dumbfounded” when he told him that the Student reported he had teased him and that he called the alleged teaser’s parents to let them know. Mr. Lemire told the alleged teaser not to speak to the Student anymore. (Lemire) Ms. Walsh testified that when the Student’s father told her again in March that the Student was being teased she was willing to speak to the alleged perpetrators again, but was not sure how much better things would get. (Walsh)
18. Ms. Walsh testified that she provided the Student with some emotional support during the month of January. She stated that he started to show some of the symptoms the Team had heard about at the December meeting. He seemed very sad with flat affect. He often came to her office and sat and talked to her. She stated that he was nervous and anxious, but she was never able to get to the bottom of what was bothering him. (Walsh)
19. The Student’s teachers provided weekly reports called “Cluster-grams” to the Parents beginning the week of January 7, 2000. They show that the Student continued to have missing homework assignments in most of his classes. His overall performance was ranked as satisfactory by most of his teachers each week until March 3, 2000, at which point each teacher ranked his performance as unsatisfactory. By March 31, his science teacher rated his performance as excellent overall and his performance was ranked as satisfactory in all areas except math. By April 7 he had shown improvement in all areas except math homework. (P-10, pgs. 1-18)
20. Michelle Meyer, M.D., testified that she is a board certified adult and child psychiatrist. She evaluated the Student on January 20, 2000 after Dr. Nathan referred him to her. Dr. Meyer testified that the Student said he was depressed and looked sad in addition to describing “neurovegetative symptoms” such as change in sleep, decreased concentration and decreased appetite. He did not have suicidal or homicidal thoughts. Dr. Meyer’s impression was that the Student met the criteria for Major Depressive Disorder. She prescribed him 5 mg. of Paxil, which she described as an antidepressant that is also for anxiety. She saw the Student approximately once per month after her initial evaluation. On February 23, 2000, Dr. Meyer’s notes indicate the Student’s mood was better and his anxiety/depression was improving. She increased his Paxil dose to 10 mg. (P-6; Meyer)
21. Dr. Nathan continued to see the Student during 2000. She believed the Student suffered from school phobia and told the Parents it was critical that they require the Student to attend school in order to address said phobia. (Nathan) She testified that the Parents complied with her treatment recommendations to the best of their ability, but she would have liked to have seen him attend school even if it caused him some distress12 . (Nathan) Mrs. Walsh communicated regularly with Dr. Nathan during the spring of 2000. (Nathan, Walsh) They discussed the Student’s emotional adjustment at school. Ms. Walsh told Dr. Nathan that she had not seen evidence of teasing and thought the Student might be misinterpreting social cues. (Nathan,) Dr. Nathan testified that she agreed the Student seemed to be misinterpreting social cues, but she was concerned about the Student’s perception of social alienation and believed that there had been several incidents of real bullying confirmed. (Nathan) Dr. Nathan testified that during her sessions with the Student she worked on “building his social approach, presenting a robust appearance, surrounding himself with peers who were successful, and on presenting an affect that would stimulate a social approach from others.” She believed the Student was not “managing the environment he was in.” Ms. Walsh told her the Student looked happy in school. Dr. Nathan also testified that she recommended that the Student’s seat be changed in one class and the School changed his seat. (Nathan)
22. On March 17, Dr. Hynick, the school psychologist, spoke to one of the Parents regarding his concern over some responses the Student had given during his psychological testing. (P-7, pg. 16; Father) He told the Parents that he did not believe there was a threat to himself or others, but the Student had provided some troubling responses. Dr. Hynick described the Student’s report that he had been hearing voices; that his mood sometimes changes rapidly; that his thoughts sometimes race and he feels as if he was “about to explode.” (P-1, pg. 34; P-7, pg. 16) The Father authorized Dr. Hynick to speak to Dr. Nathan regarding the responses. (P-7, pg. 16) Dr. Meyer testified that she believed that the voices the Student was hearing were related to his depression. (Meyer)
23. During the Student’s March 29 session with Dr. Meyer, her notes reflect the Student reported the “kids don’t like him” and tease him. Dr. Nathan had contacted Dr. Meyer regarding the Student’s report to Dr. Hynick of hearing voices and she discussed the voices with the Student. The Student reported his mood was “angry” and Dr. Meyer described his affect as calm. Dr. Meyer found the Student was still depressed and increased his Paxil dose to 15mg.
24. On March 31, 2000, the Student met with Liane Linihan, a school adjustment student intern supervised by adjustment counselor, Liz Freedman, for their weekly session. He reported feeling depressed and angry and said he felt like hurting someone. Ms. Linihan asked him to rate his level of depression on a scale from 1-10 and he rated it as a level of 12. Ms. Linihan reported her concern to Mr. Lemire, Liz Freedman, and the Student’s Mother. (P-9, pg. 40)
25. The Team convened on April 12, 2000 for the Student’s triennial review. The following people attended the meeting: Karen McGovern, Tim Hynick, Denise DiGregorio, Mother, Father, Liane Lenihan, Joseph Mirasolo, George Lemire, and Joanne Walsh. (P-9, pg. 48; S-32) The teachers reported that the Student had some friends and they were not observing the teasing that the Parents reported was occurring. The teachers were paying close attention to the Student and were not observing him being teased. Homework continued to be an area of difficulty for the Student. Ms. Linihan reported observing symptoms of the Student’s depression. She said the Student was engaged during their sessions and used the sessions appropriately. The teachers reported that the Student continued to participate during classes. (McGovern)
26. The Team reviewed the results of testing completed by Denise DeGregorio on February 2, 2000 and by Dr. Hynick on March 13, 2000. Ms. DeGregorio administered the Woodcock Johnson educational achievement test, which looks at different areas of a student’s academic skills. (S-38, McGovern) The Student scored in the average to above average range in all areas except for basic math in which he scored in the low average range. (S-38) The test results showed that math calculation was an area of weakness for the Student and he appeared to require modifications or accommodations to address his weakness. (McGovern) He scored in the in the average range in the area of Broad Written Language. The Student’s broad written language skills were identified as an intra-achievement weakness. (S-38)
27. Dr. Hynick did a psychological evaluation of the Student on March 13, 2000. (S-36) He administered the WISC-III; Children’s Auditory Verbal Writing test; Story Memory; the WIAT; child self-report and teacher rating scale and test of the emotional development and student interview. The cognitive testing results were consistent with prior testing. (McGovern, S-36, P-7, pgs. 15-20) Dr. Hynick reported that “the Student is experiencing an overwhelming degree of emotional distress as indicated by his profile on the Behavior Assessment System for Children and his Self-Report of Personality.” He noted a “significant concern” regarding the Student’s description of very unusual and disturbing perceptual experiences. “He endorsed items indicating that he ‘hears voices in his head’ and ‘sometimes hears his name when he is alone.’” He reported that the Student is “confronted with an overwhelming number of troubling emotions at this time. These powerful emotional experiences may potentially become quite intrusive and destabilizing to the student to the point that the Student may be at risk for misperception or distortions.” He noted that the Student’s emotional distress appeared to be “quite internalized” based upon the discrepancy between the Student’s self-report and this presentation in the classroom. Dr. Hynick found the degree to which the Student was reporting mood disruption and atypical perceptual experiences to be “most concerning.” He also recognized that attention problems continued to present as an issue for him. He recommended that the Student receive a medical evaluation to address his mood and attention and encouraged to student to continue individual psychotherapy to address his emotional symptoms. He also recommended that the Student participate in a social skills group and meet with the school adjustment counselor. (S-36)
28. The Team agreed to add a counseling component and a social skills group for the next year. They discussed the issue of teasing at length and discussed requiring the Student to write a note when he was teased. The Parents did not want the Student to be required to write a note when he was teased and said they would keep notes at home and report teasing incidents for him. (McGovern)
29. Mr. Lemire testified that he provided a means for the Student to check in with him daily while Mr. Lemire was on duty in the cafeteria. He explained that he and the Student devised a cue whereby the Student would nod to Mr. Lemire each day if everything was fine. If the Student did not nod, Mr. Lemire would approach him and ask him if anything was wrong. Mr. Lemire testified that during the first few weeks after they initiated the nodding signal the Student nodded every day. On the first day that he did not nod, Mr. Lemire asked him if everything was okay and the Student said he was fine. After the first couple of weeks, the nodding in the cafeteria stopped. (Lemire)
30. The Student’s Father sent a letter dated April 9, 2000 to Ms. McGovern. The letter outlined the issues the Parents wished to address at the next meeting. The issues raised were teasing, the school’s “inability/ unwillingness to acknowledge that [Student] has a crippling organizational problem”, and the Parents’ dissatisfaction with the School’s handling of the Student’s depression. (P-9, pg. 42-45) Ms. McGovern testified that she investigated the allegations made in the letter and concluded that the staff was providing modifications and additional observation of the Student to watch for teasing and provide support. (McGovern)
31. On April 18, 2000, the Parents sent a letter to Ms. McGovern indicating their disappointment with the testing that was done by the Peabody Public Schools and requesting additional testing around the Student’s organizational issues. They also requested that the timetable for the testing be accelerated to allow the Team to reconvene by the end of the school year. (P-9, pg. 55) The Parents were concerned about the Student’s written language skills, so Dr. Hynick agreed to do additional testing in that area and the school agreed to test the Student in the area of speech and language. (McGovern)
32. Dr. Nathan testified that during the spring of 2000, the Student reported the teasing and bullying periodically. “That was not a very frequent complaint. The general complaint was that he didn’t feel part of the peer group, he wasn’t successful, he wasn’t liked, and there were several episodes of reported teasing or bullying.” On May 16, 2000, Ms. Walsh called Dr. Nathan and reported that Student had become very distressed at school that day and that she and others were alarmed by his presentation. Dr. Nathan had a session with the Student on May 17 and described him as “coherent, not in not in need of hospitalization, but in significant distress.” She referred him to Dr. Meyer for a medication consultation. (Nathan)
33. On May 17, 2000 Dr. Meyer saw the Student on an emergency basis. She had been scheduled to see him on June 5, but Dr. Nathan had called her and told her the Student was decompensating. The Student reported he had been doing a math problem at school and he got tearful and “kids were teasing him.” Dr. Meyer noted the Student had good eye contact, no “bizarre thoughts”, his mood was sad and his affect was anxious. She increased his dose of Paxil to 20 mg. During the last week of May the Student’s Mother called and told her the Student was having “rages and was angry and out of control.” Dr. Meyer prescribed a low dose (25 mg. x 3/day) of Seroquel which she described as a “heavy-duty” antipsychotic used for outbursts, anger, and rage. She testified that the Seroquel worked “beautifully” for the Student who was happier, less worried, and calmer. Dr. Meyer received no reports that the medication caused him to be drowsy during school. (P-6; Meyer)
34. The Team reconvened on June 6, 2000. Those in attendance were Karen McGovern, Tim Hynick, Karen Nathanson, Denise DiGregorio, Mother, Father, George Lemire, Evelyn Rauseo, and Joe Mirosola. (S-28, P-9, pg.71) They reviewed Dr. Hynick’s second evaluation and Ms. Nathanson’s speech and language evaluation. (P-1, pg. 37; P-9, pg. 40) Dr. Hynick administered the Rey-Osterreith Complex Figure Drawing, the Wechsler Individual Achievement Test (Written Expression Subtest) and a Student Interview. The Student received a scaled score of 92 on the Written Expression sub-test of the WIAT. Dr. Hynick reported that based upon the Student’s most recent Full Scale IQ score (112) the Student would have been expected to earn a scaled score of 106. “His score of 92 falls 14 points below the predicted score and very closely approached the level necessary to depict a significant ability-achievement discrepancy (16 points is the designated level).” He recommended that the Student be provided with additional assistance in written expression and listed specific techniques that may assist him13 . (P-1, pg. 38; S-29)
35. The Team reviewed Ms. Nathanson’s results on the Test of Adolescent and Adult Language (TOAL-3) and the Written Language Scale (OWLS). On the TOAL-3 the Student scored mostly in the Average range and at the Superior range in Speaking Vocabulary and the Above Average range in Speaking. Student’s OWLS results reportedly indicated that the Student performed within the average range for written expression with particular weakness in the area of Content. Ms. Nathanson reported that the Student “would benefit from outlining and simplifying written material before a written task.” (P-1, pg. 40) Teachers reported that homework continued to be an issue for the Student and his grades were inconsistent. The Team recommended that the Student continue to spend some time in regular education classes because he was able to access grade level curriculum in the regular education classroom. (McGovern)
36. The Student’s 7 th grade report card included the following grades: Language Arts: F, C-, C+, F; Mathematics: F, C-, D, F; Science: C+, D, D, C; Spanish: C-, C, F, W14 . The Student was absent 23 days, tardy 10 days and dismissed three days during the 7 th grade. (S-26) The Student took the Iowa Test of Basic Skills in May 2000. He scored in the average to above average range in all areas except for math computation in which he scored at the third percentile. (S-30) Ms. McGovern testified that she felt that the Student made effective progress during the 7 th grade based upon teachers’ assessments, his Iowa test results and the results of the Woodcock-Johnson cognitive testing. (McGovern)
37. The IEP proposed for September 2000 through June 2001 provided for more services than the IEP accepted for the 1999-2000 school year. (P-9, pg. 67; S-42) The services outlined in the service delivery grid included the following: counseling with the school adjustment counselor 1×30 minutes per 6 day cycle; inclusion mathematics, science, and social studies; study skills 3×40 minutes per six day cycle with the LD teacher and language arts 6×40 minutes per six day cycle with the LD teacher15 . (P-9, pg. 67) The Mother’s signature appears on the signature page with the date of June 2000. There is no box checked off in the response section other than the one acknowledging receipt of the Parents’ Rights Brochure. (P-9, pg. 69)
38. Dr. Meyer saw the Student on June 5, 2000 and noted his mood was “so-so” and his affect was calm/constricted. She reported that he was doing better and discussed decreasing the Seroquel slowly at the Mother’s request. She saw the Student again on July 3 and he was off the Seroquel. School was over and the student continued to have mood swings. His mood was “bored” and his affect was withdrawn/sad. She reported that he appeared withdrawn. She testified that the Parents wanted the Student to stop taking all medication until school started, so she began decreasing his Paxil dosage. During cross-examination Dr. Meyer testified that she probably would have continued to prescribe Seroquel for another month if the Parents had not requested that he stop taking it. She said she “wasn’t crazy” about the idea of taking him off all medications and she told the Mother to watch him and the medication would be prescribed again if he got worse. (P-6, Meyer)
39. Dr. Nathan did not see the Student during the summer of 2000. She and the Parents had decided to let him have the summer off unless he had symptoms that required treatment. She resumed seeing the Student on September 11, 2000. (Nathan, D-1, pg. 78)
40. Dr. Meyer saw the Student on September 14, 2000. He reported his mood was better and she described his affect as “apathetic/constricted/withdrawn.” (P-6) He was not on medication at the time and reported that there were no problems at school. Dr. Meyer reported that the Student looked worse than he had when she saw him in July and some of the neurovegatative symptoms had returned. He appeared more depressed. (Meyer)
41. Student’s eighth grade teachers and guidance counselor had a cluster meeting with the parents early in the 2000-2001 school year to address Parents’ concerns. The Father informed them of the Student’s strengths and weaknesses and his opinion as to what had worked for Student in the past. (Forsythe; P-11, pg. 1; S-25) Ms. Forsythe initially taught Student’s self-contained English and study skills classes and provided content area support for his inclusion classes. She testified that the Student had appropriate peer relationships in the fall of 2000 and was able to work cooperatively in the mainstream science and social studies classrooms. He appeared to develop friendships with three peers. She noticed that the Student seemed a little bit sad and quiet in the morning, but as the day progressed he got more animated and talkative. (Forsythe)
42. Dr. Meyer testified that on October 16, 2000, the Student’s Mother reported he was doing well in school. His mood was reportedly better and his affect was bright. Dr. Meyer reported that he was “stable off meds.” When she saw him in December, she noted his mood was labile and his affect was anxious. His Mother reported that he had missed four Tuesdays in a row and his depression had increased. She did not prescribe medication, but told the Mother to use Seroquel as needed due to reported outbursts16 . (P-6, Meyer)
43. The Parents requested an emergency team meeting to address their opinion that the Student was “decompensating in the current school setting” in letters addressed to Jane Wilson and Sandra Dunning on December 15, 2000. (P-11, pgs 20-23) They sent letters to the Student’s teachers on January 8, 2001 reiterating their opinion that the Student’s mental health was rapidly deteriorating and informing them that the Student would not be doing homework for the immediate future. (P-11, pgs.24-27) The Team convened on January 17, 2001. Those in attendance were: Karen McGovern, Sandra Dunning, Tim Hynick, Parents, Kellie Forsythe, Mark Wilson, John Manning, George LeMire, Dr. Michelle Meyer, Dr. Madeleine Nathan, Catherine Cullinane, and Janis Melanson. (P-11, pg.28) The Parents reported concern over the Student’s deterioration. Dr. Nathan described the Student as being “nonfunctioning at that point.” She was concerned that the Student would deteriorate further. (Nathan) She and Dr. Meyer recommended that the Student be placed outside the Peabody Public Schools in a therapeutic milieu. The Team was not seeing the level of dysfunction described by the Parents and the doctors and felt strongly that they could meet his needs at the Higgins Middle School. (McGovern) The Team reviewed the neuropsychological evaluation done at North Shore Children’s Hospital on December 5, 2000. The Student’s spelling score was in the 21 st percentile and his Numerical Operations score was in the 4 th percentile. (S-20) His written expression was deemed “unscorable17 .” Ms. McGovern testified that she questioned the validity of the test results because Dr. Hynick had previously administered some of the tests administered by North Shore Children’s Hospital to the Student18 .
The Team proposed that the Student be placed in an Interim Alternative Educational Setting (hereafter, IAES) consisting of remaining in Ms. Forsythe’s class for the entire day. Dr. Hynick would be available to consult with staff, there would be the addition of a social skills group 1×30 minutes per 6-week cycle; Ms. Melanson, the school adjustment counselor, would conduct a weekly mental status check. Ms. Forsythe would determine whether the Student would participate in the regular education classes. The IAES would begin on January 18, 2001 and continue until February 7, 2001 at which time the Team would reconvene. (P-11, pg. 29, 31)
44. Dr. Nathan continued to see the Student after the January Team. During their February 1 session the Student told her he was being taught from a watered down curriculum and he could not trust anybody at school. On February 28, she reported that the Student looked happier and relaxed following the reduction of his academic load. His improved affect remained apparent throughout the month of February, but by the end of March the Student reported he felt totally isolated and he was being taught with students who were at a very low academic level who were unable to read fluently. (Nathan) Ms. Forsythe testified that she saw no abrupt changes in the student during this time. (Forsythe)
45. The Team reconvened on February 7, 2001 with the following members: Karen McGovern, Kellie Forsythe, Mark Wilson, Mother, Father, John Manning, Janis Melanson, Tim Hynick, Sandra Dunning, Joan Endicott, Catherine Cullinane. (P-11, pg. 42A) Ms. Fosythe reported she was spending additional time with the Student and he was completing his homework in school. He was receiving math instruction in a small group. The Parents reported that removing homework was helping in the home. The Parents were concerned that the Student was showing some deterioration. He was not on any medication. (McGovern) Peabody presented an IEP dated February 7, 2001 through June 30, 2001. (P-11, pg. 33) The IEP identified the Student’s primary area of disability as emotional and acknowledged his learning disability in the area of written expression. The service delivery grid included the following: social/emotional consult with the school psychologist, school adjustment counselor for up to 30 minutes per week; inclusion science and social studies with support from the special education staff; social skills-small group with the special education staff 1×30 minutes/ per cycle; social/emotional-individual with the school adjustment counselor up to 30 minutes per cycle; academics: English, math, study skills with the special education staff for all classes. (P-11, pg. 38)
46. Dr. Meyer noted some school-related anxiety on February 7, 2001 and prescribed the Student 5 mg. of Paxil. The Student reported that school was “okay”, but stated that his peers were ignoring him. On March 1, 2001 the Student’s mood was better and his affect was bright. Dr. Meyer reported that his mood appeared better. (P-6) She testified that throughout the spring the school issues continued, but the Student felt better on Paxil. (Meyer)
47. Kellie Forsythe testified that the Student was in her self-contained language arts and study skills classes and later her self-contained math class. He attended regular education social studies and science classes and she and her two assistants provided support to him in those classes19 . Student came to her classroom in the morning and she helped him organize his books and assignments. At the end of each day he returned and she helped him get organized to go home. He kept his books and his coat in her classroom. She testified that she implemented modifications and oversaw other teachers making modifications to the Student’s assignments. The Student needed encouragement and praise when doing writing assignments. She felt that she was able to support the Student in her small class and that the Student was more animated in the small class setting than in larger settings. She said the Student was generally able to do his work, but his disorganization and inconsistent homework and attendance gave him difficulty. She noticed that the Student seemed a little bit sad in the mornings, but he usually became more animated as the day progressed. She consulted regularly with Ms. Melanson regarding the Student. She testified that his grades were based upon his actual performance and were not modified in any way20 . His work was modified by allowing him extra time to complete assignments or requiring him to complete fewer questions than other Students. He was taught the regular eighth grade curriculum in accordance with the Massachusetts Curriculum Frameworks. She never observed anybody teasing the Student and she was watching closely for it and directed the other teachers to do the same21 . She testified that some of the Student’s skills, including his math skills, were below the eighth grade level. He was able to work independently at the fifth or sixth grade level in math. She supplemented his math materials with worksheets to review skills that he had previously been taught, but had not mastered. She believes that the Student felt comfortable in her class and never saw a significant change in his emotional presentation or his demeanor. (Forsythe)
48. Ms. Melanson testified that she is a certified school adjustment counselor and she met with the Student for a social skills group and individually while he was in the eighth grade. During the social skills group she worked on developing the students’ social skills and discussed how to deal with conflict and how to deal with teasing and bullying. They used role playing and played games to allow the students to practice having conversations. She recalls the Student mentioning past teasing in a vague way. He was reluctant to disclose any details and seemed to think that there was no point in reporting it. He told her that he had been teased since the sixth grade and that it had lessened during eighth grade. He felt that he had not gotten relief in the past when it was worse. She consulted with Ms. Forsythe when the Student reported that he was having “racing thoughts.” The Student was responsive to her services overall. He came to every appointment willingly and was cooperative and pleasant, but his level of disclosure varied. She never observed the Student to be suicidal or at high risk. She noticed that he seemed lethargic in the morning and that he presented with “fluctuating symptoms” of depression. She did not see signs of a “rapid psychological deterioration” as the Parents had reported. Ms. Melanson thought that she had formed a connection with the Student by the middle of the year. She was surprised when the Student stopped attending school. (Melanson)
49. The Parents sent a letter to Ms. McGovern, dated March 19, 2001, in which they rejected the following relevant portions of the above referenced IEP. They indicated that they continued to believe the Student required a therapeutic milieu and rejected Peabody’s failure to provide one. They found the IEP would not provide the Student with an opportunity to effectively participate in extracurricular activities. They rejected “the absence of measurable academic goals” in the IEP. They rejected the absence of a provision stating that Parents would receive copies of all of Student’s classwork and homework. They accepted the offer of summer services. They rejected the provision of “only 30 minutes/cycle of small group counseling; less than 30 minutes per cycle of individual counseling, and only 30 minutes per cycle of consultation.” They rejected the “lack of a peer group composed of children with similar cognitive abilities, learning profiles and social-emotional functioning.” They indicated they were seeking placement in a private therapeutic school and pending such placement wished for the Student to remain in Ms. Forsythe’s class and to receive the services outlined in the IEP with several conditions. (P-11, pg. 43-47; S-12) They concluded their letter by stating that the Student was performing at grade level based upon his March 9 progress report and requested that he be assigned the same homework as all other students. (P-11, pg. 47, S-12) The School filed its Request for Hearing on March 23, 2001. (See Procedural History)
50. On April 27, 2001, during the Student’s session with Ms. Melanson he was doodling on the etch-a-sketch while they discussed stressors for the Student including peer teasing and “pressure” at home. (Melanson, P-11) As the Student prepared to leave, Ms. Melanson saw his drawing which she described as a “detailed drawing of a burning building with HMS on it.” She asked the Student whether he intended to burn the school down or had access to gasoline. He denied having gasoline or having a plan to burn the school. She was concerned because he appeared to be in distress and was weepy at times. She was having difficulty connecting with him and getting responses from him which caused her concern. She assessed the situation and determined that he was not at risk. She tried to get him to return to class and he had difficulty. She offered him a choice of going back to class or going home. The Student thought he needed to go home. She told the Student she would have to tell his Mother about the incident and she thought it was important to contact his therapist. She called Dr. Nathan and told her that the Student had appeared unhappy and called his Mother and asked that he be taken home. Ms. Melanson thought it was safe for the Student to go home with his Parents and he could process the event with Dr. Nathan. (Melanson) Dr. Nathan expressed concern that the Student was sent home given his history of school avoidance22 . Dr. Nathan testified that she did not see the incident as alarming as she was aware that the Student hates school. When she saw Student after the incident he told her he wished he didn’t have to go to school and if the school did not exist, he would be happy. (Nathan)
51. The Team convened for its annual review on May 15, 2001, with the following members: Karen McGovern, Kellie Forsythe, Mother, Father, Tim Hynick, Janis Melanson, Betty Graczyk, Sandra Dunning, Liz Freedman, Joan Endicott, and Cate Cullinane. (P-11, pg. 79) The IEP developed at that meeting called for the Student’s placement at the Peabody Community High School (hereafter, CHS) for the period from June 30, 2001 through June 30, 200223 . (P-11, pgs. 68-69) The service delivery grid provided for social/emotional consult with the school psychologist, school adjustment counselor for up to 30 minutes per week. It also called for all academic classes being taught by special education staff in a substantially separate school, social/emotional-individual/group counseling provided by the school adjustment counselor for 30 minutes per day and school counseling with the school psychologist for 30 minutes per cycle. (P-11, pg. 74)
52. The School sent a notice to the Parents on May 16, 2001, confirming their acceptance of the Student’s summer placement at the Arlington School and scheduling a reconvened Team meeting for June 11, 2001. (P-11, pg. 84)
53. On May 31, 2001, Dr. Michelle Meyer sent a letter addressed “To Whom it May Concern” recommending that the Student be allowed to remain at home with tutoring for the rest of the academic year. (P-11, pg. 85) She indicated that the Student was “unable to attend school in his current placement due to exacerbation of his psychiatric symptoms.” (P-11, pg. 85) Dr. Meyer testified that the Mother had called and reported the Student was frustrated, depressed, and could not function at school. Dr. Meyer believed that attending school was putting him at risk for further depression and “decided to let him finish at home for the rest of the year.”24 Her treatment note of May 31, 2001 indicated that the Student was taking Paxil “intermittently” which she testified lessens its effectiveness and was not recommended by her. Ms. Forsythe testified that she had not observed any significant change in the Student’s presentation or demeanor and was surprised when he began receiving home tutoring. (Forsythe) Student did not attend his eighth grade graduation or class trip because he did not want to be at school anymore. (Student)
54. The Student received the following grades on his eighth grade report card: Language Arts: B, C+, B+, A; Pre-Algebra: C-, C, B-25 ; Science: C-, C, C, A-; Social Studies: C, C-, A, A. (P-3, pg. 5) He was absent 49 days, 6 during the first quarter, 7 during the second quarter, 10 during the third quarter and 26 during the fourth quarter. (P-3, pg. 5)
55. The Student attended the Arlington School’s summer program for approximately four weeks in July 2001. (S-3) The Arlington School is a private school for students ages 13-19 who tend to score in the average to above average range on the WISC or WAIS. (Goldstein, D-2, pg. 15, 38) The Students have variety of emotional disabilities including depression, anxiety, some psychosis, obsessive compulsive disorder, and ADD. (Goldstein, D-2, pg. 15) Arlington does not usually accept students with significant behavioral disorders, or students with difficulty with aggression. They do not use restraints or have a quiet room. (Id.) The Student is less impaired and needs less formal organization and structure than many of the students who were at the summer program. (Goldstein, D-2, pg. 53)
56. Arlington’s summer session is different than its regular school year. It runs for only four weeks and there is a field trip one day per week. The day is shorter, ending at 1:00 p.m. and includes three academic periods and lunch. There is a smaller group of students during the summer and the teachers try to make things a little more interesting to get them more engaged. (Goldstein, D-2, pgs. 37-38) During the regular school year the school day is from 9:00 a.m. until 2:20 p.m. and there are six academic periods. (Goldstein, D-2, pg. 40) The teachers at the Arlington School are not all certified in special education. (Clark, Garrison26 )
57. The clinical staff at the Arlington School is comprised of a full time clinical director, a clinical psychologist, Jessica Goldstein, who is there 20 hours per week, another clinical psychologist who is there for 10 hours per week, and a clinical social worker who is there for 10 hours per week. (Goldstein, D-2, pg. 17) All the clinical staff share general responsibility for all the students because most of them are only there part-time. They all get to know all the students and help each other out. (Goldstein, D-2, pg. 16) Ms. Goldstein testified that the Student was in her “check-in” group during the summer of 2001. (Goldstein, D-2, pg. 18) She reported he was comfortable enough to share a number of things in group. (Goldstein, D-2, pg. 36) She did not provide direct clinical therapy and testified that counseling is expected to be done outpatient in the community. (Goldstein, D-2, pg. 37) She testified that the Student was able to fit in with his peer group quite well, comfortably and appropriately during the summer. He was able to easily move from working or acting independently or socially to being part of the group and was able to ask for help when he needed it emotionally and academically. He was willing to participate in class, answer teachers’ questions and follow directions. (Goldstein, D-2, pg. 48)
58. William Clark has been a science teacher at the Arlington School for over fifteen years. (Clark, pg.117) He testified that he will be using Inspiration software with his Students in the future. (Clark, pg. 124) He is not certified in special education; the librarian is special education certified. He did not know whether any other teachers were special education certified. (Clark, pg. 134-135) He testified that he could teach the curriculum at the seventh, eighth, or ninth grade level using the Curriculum Frameworks, depending on the individual’s needs. He stated that he could provide individual instruction within a class if necessary and at any given time could be teaching three different things to different students. (Clark, pgs. 140-141) He testified that he never reviewed the Student’s IEP or records during the summer. (Clark, pg. 149, 154)
59. Dr. Nathan testified that she saw a noticeable shift in the Student’s affect when she saw him on July 11, 2001, three days into his summer session at Arlington School. He felt he was an influential and accepted member of his peer group there and was very excited about the program and especially about the art program. (Nathan, D-1, pg. 95) She observed the Arlington program during the summer for approximately one hour, twenty minutes of which was Student’s art class. The duration of her visit was spent interviewing teachers, speaking to the director, and viewing the facility. (Nathan, D-1, pg. 95-97, D-5, pgs. 206-208; P-4) She was very impressed with the art program which she described as being at the college level27 . She deemed the art program significant because the Student has skills and interest in art. She testified that the teachers were of a very high caliber and very experienced. (D-1, pg. 101) She noted that students were engaged in hands-on learning including a mock trial. (Nathan, D-1, pgs. 99-100)
60. The Student also felt the teachers were very intelligent and adaptable. He reported that his peers were like him in their social awkwardness. He thought they were very bright and motivated and were there to learn. He reported that they called him by his last name which Dr. Nathan found significant because it is what would be expected during adolescence. (Nathan, D-1, pgs. 96-97)
61. Dr. Monica Bernell, school psychologist, and Sandra Dunning, Peabody’s Director of Special Education, observed the Student at the Arlington School on July 25, 2001. (S-7; Dunning, pg. 88) They observed the Student for one hour and fifteen minutes including a science class, a break, and a social studies class. (Bernell, Day 11, pg. 152) They thought the students seemed similar to those at the Peabody Community School. Dr. Bernell’s report indicates that the Student was aware that people from Peabody Public Schools were there to assess his functioning in the setting. (S-7) The Arlington School staff informed her that the Student had written a note on the day of her visit that stated, “These two visitors are bad people. They are trying to stop me from coming here. Do not give them any information unless it is court ordered, please, for my sake.” (P-13, pg. 2; Mother, D-3, pgs. 97-99)Bernell, D-11, pg. 153) The staff intercepted the note and tried to redirect him around a more appropriate way to express his feelings. (Goldstein, pgs. 57-58) Ms. Dunning testified that the Arlington School program was similar to the CHS program. She indicated that most of the teachers at the Arlington School are not certified in special education and all of the teachers at the CHS are either certified in special education or on waivers pending their certification. (Dunning, D-12, pg. 92)
62. Dr. Nathan testified to seeing the Student several times during the summer of 2001. Her treatment note of August 15, 2001 indicated that the Student “reported great sadness and anger” that Peabody placed him at the CHS. He reported that the students at the Arlington school seemed smarter, more motivated, and more in control. He said there was less swearing there and more to do. He told Dr. Nathan the teachers at the CHS did not seem excited to teach. He thought the Arlington School students were more like him and that “some of his best talents fit with Arlington.” (Nathan)
63. The Team reconvened on August 28, 2001 to review the Student’s progress at the Arlington School. (S-3) They presented an IEP that continued to call for placement at the CHS. There was an addition to the previously proposed IEP that consisted of four hours per week of home/school support from a home/school therapist and one hour of consult per month between the home school support personnel and the CHS staff. (S-3)
64. During the August 28, 2001 Team meeting, Liz Freedman, the Administrator of the Peabody Community School and former school adjustment counselor at the Higgins Middle School, discussed the therapeutic framework of the program which is based upon Dr. William Glasser’s choice theory and reality therapy. (S-3; Freedman) She has received her basic certification in choice theory reality therapy and is currently receiving ongoing training. (Freedman, D-10, pg. 16) Ms. Freedman testified as follows about the key beliefs of choice theory: 1) all behavior is purposeful; and 2) given that external control is a big piece of the world that we all live in, the belief is that the internal control and the intrinsic motivation is what is really going to help students to succeed28 . She explained that the theory suggests all behavior is purposeful in that we behave in order to get our needs met. “Often what we want is in conflict with what is happening in the world.” The idea is that they help the Student figure out how he is going to be able to get what he wants and be successful within the school’s structure. (Freedman)
65. The CHS is a therapeutic special education school for students whose primary diagnosis is social emotional and behavioral disability. The School is located in the Higgins Middle School, in the vocational school wing of the building, in a temporary setting from September until the beginning of December when the new facility was completed.29 The School is still in the vocational high school wing of the Higgins Middle School, in a newly constructed section of the building. There are brand new classrooms, counseling space, an office, kitchen space and a “beautiful” community room. The School has its own entrance with a sign, as it is a separate school. There is no time out room and restraints are not used. They now have 10 brand new computers30 . There is no science lab at the school, but they have access to whatever science equipment they require from the Higgins Middle School or PVMHS. They have Inspiration Software and Powerpoint, which Students use for graphic organizers. This year, including the Student, there are 28 students in grades 9-12. All classes have eight or fewer students except for one class of nine students, which has an aide. There are generally four to five students in each class and the opportunity for 1:1 instruction is always available. (Freedman)
66. Students at the CHS have primary diagnosis of social emotional behavioral disability. Seventy percent of the students have learning disabilities31 . They all have issues around school performance and success. The students’ cognitive levels range from right below average to above average. Approximately five percent of the students may be at the low end of low average range. Ten percent are at the high to superior range. (Freedman) All of the students have social skills deficits. Students have the following diagnoses: bipolar disorder, clinical depression, ADHD, anxiety disorders, self-mutilators, and one student has disassociative disorder. (Barber, Freedman) Half of the students have been diagnosed with social emotional disability. Some students have a history of being hospitalized psychiatrically and some are suicidal. There are some students who have needed crisis intervention to avoid hospitalization and some with issues surrounding substance abuse in addition to emotional disability. Five percent of the students present with physical acting out behaviors such as kicking a filing cabinet or throwing a chair when upset. None has been aggressive toward a person. Eighty percent of the students have significant organization and attention difficulties. All the students are resistant to school and do not feel totally successful.32 Some students at the CHS swear at times. It is dealt with pretty severely because it “breaks the belief of a respectful environment.” The staff is working on getting swears out of the students’ vocabulary. (Freedman, P-5)
67. The CHS staff believes that relationships with the students foster student success. They use a belief-based discipline model33 that goes directly with choice therapy. This year the Students decided they need the School to be a respectful place because people need to feel safe emotionally and physically. (Freedman, D-10, pg. 49) If an incident occurs, the staff asks the students, “If you are saying that you want a respectful and a safe place, is this what we are getting by your behaviors?” That is a major element of their discipline. (Freedman)
68. Each school day starts with a Community Breakfast to address the needs of the students.34 Breakfast is time when the students and staff are planning the program. It is also a time for staff and students to check in with one another and to socially interact, play games, and talk. (Freedman, pg. 50-51; Barber) The staff and students have a community meeting time every Tuesday where they get together to talk about how they are feeling about the school and what they would like to see changed. The staff and students decide the agenda. Anyone can submit items for discussion in a box in the office and it gets typed up and presented at the meeting. They talk about they way they are treating one another and ways they are able to handle themselves. Students have made changes to the program during these meetings (Freedman)
69. Academic classes at the CHS are taught in 1.5-hour blocks. Courses that are taken for half of the school year count for a full year of credit35 . The blocks allow the teachers sufficient time to use project-based learning. The goal is to use projects that are more relevant to students’ lives using curriculum in line with the Curriculum Frameworks and integrating the two to make the curriculum more exciting for students. The blocks are not entirely lecture; they do different activities during the 1.5 hours. The curriculum for the CHS is taken from the Massachusetts Curriculum Frameworks and the Peabody Veterans Memorial High School (hereafter, PVMHS) and is supplemented with higher and lower level materials36 . The students are presented with the same curriculum as their regular education peers, but they are taught in a different way that includes hands on learning and choice-theory. If a Student were to attend the CHS for four years of high school, he would be prepared to go directly to college. The CHS offers its own after school clubs/activities. This year the offerings include a web site club, a yearbook club and music lessons. (Freedman)
70. There are two school adjustment counselors and a part time psychologist on site. The program includes individual services. The school adjustment counselor is available as needed and could provide check in type services. The school psychologist could provide individual therapy. Students can also access outside therapists during the school day. There is office space available to use when an outside therapist is on site. Bringing in students’ outside therapists provides school staff and outside therapists an opportunity to check in with one another to determine how they can support the student. Group therapy is also built into program. The students will be divided into groups and will rotate through three different groups37 . For the rest of the current school year the students will be reviewing choice theory during all groups to make sure all the students understand the theory. (Freedman)
71. Along with choice theory all the teachers are well trained in a process to help students to redirect their own behavior38 . Teachers may ask a student if what he is doing is following the rules in order to give the student a chance to re-check himself. If a Student is not able to redirect himself by the third prompt, the student is asked if he would like to “take space” or “problem solve.” Taking space is for less severe behavior. If a student has a hard time settling and could use some quiet time or is feeling agitated or having a really hard time concentrating he can take space. When a student takes space, he can take up to 10 minutes quietly and then re-enter the classroom on his own. If the student needs longer than ten minutes, it is acceptable, but the process turns into problem solving. Problem solving is where the student or the teacher determines that it seems like there is more going on and the student needs some help figuring out what he wants that he is not getting. The adjustment counselor or psychologist works with the Student to figure out what is causing their behavior. (Freedman)
72. The CHS staff consists of four academic teachers, a part-time art teacher, a part-time physical education teacher, a full time school adjustment counselor a school psychologist (three days per week), and a paraprofessional. Josh Andrews, Crystal Mohan, Jill Spadorsha, and Mr. McKeon are classroom teachers. Ms. Mohan recently finished her masters degree in special education and is on a waiver from the Department of Education pending receipt of her certification. Josh Andrews is also on waiver and is working on his masters degree in special education. Jill Spadorsha recently completed the requirements for a masters degree in special education and is awaiting certification. All of the teachers received several days of training in choice theory reality therapy and most have received training in project based learning. Kerry Stubblefield, a paraprofessional who provides direct services to the Student, has a bachelors degree in music with a minor in special education. She is currently enrolled in a dual masters program in special education and music therapy. Linda Barber is full-time school adjustment counselor. Jessica Gorrell is an art teacher. She has a bachelors degree in fine arts and no special education training. (Freedman)
73. The Student is currently enrolled in the CHS and attended the school beginning in September 2001, but has been receiving home tutoring since November per order of Dr. Meyer. (P-20) The Student’s last day in attendance was November 8, 2001. Prior to then, he had missed nine days in addition to days missed due to Jewish holidays and attendance at this hearing. The majority of the Student’s absences were toward the end of October. He often went in during that time and then wanted to go home right away. Sometimes the staff talked to him for a while and encouraged him to stay, but they did not force him to stay. The staff called the Student’s Mother and she picked him up. Ms. Freedman encouraged the Mother to require the Student to stay in school and the Mother told her the Parents were trying to convince him to stay, but it was very hard because he did not like the school. Ms. Freedman testified that the Mother picked Student up four or five times. (Freedman)
74. Liz Freedman testified that she had daily interaction with the Student while he was in school. She greeted him in the morning and talked to him when he was upset. She thought the Student fit the profile of the students at the CHS because his diagnoses are similar to those of the other students and his I.Q. level falls within the same range.39 She believed that the peer group was appropriate for the Student because many were just like him with similar issues regarding isolation and peer teasing. There were students he seemed to connect with, including one student who appeared to be a close friend and three or four with whom he seemed to have positive interactions. Student played chess and talked with them. (Freedman)
75. On the first day of school, the Student was very shy and withdrawn. He did not want to be engaged with others. After the first week he opened up a little more although on some days he put his head down and withdrew. (Freedman, McKeon, Barber). He talked a little more with teachers and students and he started playing chess with students. (McKeon, Barber) He brought books about his pets and showed them to other students. (Barber) He continued to increase his interactions with peers throughout September. He did card tricks for the other students and demonstrated a “nice sense of humor.” On at least one occasion he looked at web sites with other students and laughed. (McKeon, Barber) He was capable of engaging and being very animated. His conversations with his peers were positive. (Barber)
76. The other students were receptive toward the Student and they appeared interested in what he had to say. He was accepted as part of the group. There was one student whom he appeared to particularly enjoy spending time with and they were always laughing. (Barber) During the first two weeks the Student sat with teachers at lunch and then sat with other students. During Community Breakfast, the Student was sometimes engaged and animated and other times very isolated, tired, and withdrawn. (McKeon, Barber, Freedman) The Student would tell the staff he had not slept well. Once he became engaged he was in “pretty good shape and ready to go to class.” (Barber)
77. On September 11, 2001, the Student abruptly left Mr. McKeon’s math class. (McKeon) He went to see Ms. Barber and was visibly upset and reluctant to speak about what had happened. (Barber) Mr. McKeon did not immediately know why the Student left, but knew there were staff people outside the classroom who would speak to the Student. (McKeon) He stayed with the class and Ms. Barber came in to his classroom to find out what had happened. (McKeon, Barber) The Student’s classmates encouraged the wrongdoer to come forward. Every student in the class came forward in support of the Student. (Barber) A student admitted to putting pencil shavings on the Student’s head. The offender was removed from the classroom and Ms. Freedman worked with him. Ms. Barber worked with the Student40 . (Freedman, Barber) Ms. Barber told the Student that it was a very serious incident. He had an extremely difficult time speaking about how he felt and what had happened. She had found out what happened from the other students in the class. The Student was silent and withdrawn. He began to cry when Ms. Barber was speaking to him about the incident. The Student wanted to go home. Ms. Barber encouraged him to talk to her and he went and asked another teacher to use the phone and called his Mother who came and picked him up. (Freedman)
78. The incident was not totally closed until the following day. The Student returned to school in “good shape.” He was very animated and eager to share his feelings about the September 11 tragedy. The other student was remorseful and very sorry. He apologized to the Student and Ms. Barber thought the apology brought “definite closure” to the event. The Student accepted the apology and was quite involved in resolving the conflict. She thought the incident taught the Student about resolving issues because in the beginning he was reluctant to resolve the issue. Even though the Student had left school the previous day, Ms. Barber thought it was a positive learning experience for him because bullying and teasing had been an issue in his past. She thought that seeing a situation that the Student perceived to be resolved and to hear an apology was a powerful learning moment for the Student. The Student voluntarily sat with the other at lunch that day. Ms. Barber thought that showed that the Student was happy with way things had gone. She thought the Student felt secure and protected in school and that the staff was able to take care of the incident. (Barber) Mr. McKeon testified that the Student and the other student later worked together on a history project and may have played chess. (McKeon)
79. Ms. Freedman testified that bullying and teasing is not tolerated at the CHS and does not happen often. She described the pencil shavings incident as “completely inappropriate.” Ms. Freedman talked with the student who had put the pencil shavings on the Student’s head while Ms. Barber spoke to the Student. She asked the Student if she could speak to him before he went home and he agreed. She told him he must be feeling badly and sympathized with how it must feel. She said she would really like to see him sit down with her and other student to talk about it and he refused. His Mother came and Ms. Freedman, the Student, and his Mother talked. The Student’s Mother said that the Student really did not like the school. The Student went home and returned the next day in “very good shape.” He talked at the community breakfast. He was willing to get together with the other student. The other Student apologized and said “he knew where the Student was coming from.” The Student told the other student it had hurt his feelings. They discussed the other student’s consequences and decided he would stay after school to work on a transition program to make new students in school feel welcome. Ms. Freedman asked the Student if he felt the incident was resolved and he said, “Yes.” Ms. Freedman saw the Student interact with the other student many times after that. She felt the method of intervention was effective with the Student because she heard him talking about his feelings and had not heard that before. She believes the Student is able to benefit from the problem solving approach. She thinks it helps the student tremendously when he feels like he is getting his own voice. On the same day of pencil shavings incident, the Student reported that some comments were made about him being a freshman. He was not able to provide the staff with any details and Ms. Freedman stressed to him the importance of letting someone know. Other students had been upset about the pencil shavings incident because it had upset the Student and they liked him. (Freedman)
80. Ms. Barber testified that on September 14, 2001 the Student came to school visibly upset and sat by himself in a corner with his head down. She approached him and he looked as though he might cry and said he did not want to talk. He went to class and when she saw him it appeared that his mood had improved. She saw him again at lunch and he was sitting alone which was not his usual habit and was not eating. When she approached him and asked what was wrong he put his head down and cried. He told her Dr. Bernell had told his Mother he had a good day and it had “ruined his chances of going to the Arlington School and they were going to lose their court case.” Ms. Barber understood the Student to be referring to the BSEA hearing. She was sad for him because the thought he felt so conflicted about a situation that he felt he had no control over. She told him she wanted to help him figure out how he could be happy and he said, “That is a lie.” He also said Ms. Freedman had told him the same thing which and she had also lied. He then stated that Ms. Freedman was going to be in court and said, “I’m not telling you anything.” ”He said he did not belong in their school and that he was different from all the other kids there because they had behavioral problems. Ms. Barber explained that the school was for students with social/emotional/behavioral problems. He then told Ms. Barber he did not want to talk anymore and he went to class. (Barber, S-4) She observed the Student later during a break. He was at the school store and was very animated. He had picked out some candy for the store to sell and was shouting for the witness to try them. He was a “totally different child” than she had seen at lunch, he was very involved and happy. Ms. Barber thought it was difficult for him to have fun and yet he managed to come back and participate in the day and be happy, which speaks to her of resilience. (Barber, S-4)
81. Mr. McKeon testified that the Student tended to want to give up when confronted with a difficult math problem41 . The Student’s challenge with math was relating concepts that he knew to the new things he was learning. Mr. McKeon would do frequent checks to see if he retained materials from the previous day. The Student needed a great deal of encouragement to continue and not give up. He would try to build the Student’s self-confidence so he would be motivated to work or try hard. The Student was very responsive to verbal guidance and he tended to need a lot of attention in order to complete tasks. The Student could be very talkative and Mr. McKeon would try to get him back on task. He thought the Student was comfortable in his class and noted that he had a great sense of humor. The Student did well working cooperatively. It seemed that the Student had previously been exposed to most of the concepts they reviewed in the first part of the year, but he recalled them only partially and his skills were below grade level. He is an intelligent and capable Student and is able to master some new skills and was making effective progress while he was in school. His assignments provided him with an appropriate level of challenge. The Student’s ability level was in the middle range of the students in his class and some students had mastered more advanced skills than the Student had. (McKeon)
82. The Student became increasingly engaged and less withdrawn throughout September. His progress declined in the latter half of October and November. (Barber) He did less well in October than in September. He began to miss school more regularly and he often came in and seemed very upset His attendance was erratic at the end of September and throughout October and he was less willing and less capable of trying. During that time, he would have a day when he would come in “fired up” and would make progress. As late as November the Student had a day where he made a “real breakthrough.” (McKeon) Ms. Barber testified that during the period from late October until November, the Student increasingly asked to go home. Ms. Barber thought the Student had difficulty staying, and that students with issues that are hard for them to deal with will avoid them if they can. She thinks it is the school’s responsibility to keep the students there and help them work through what is difficult and thinks the student could have stayed in school. She did not think it was in the Student’s clinical best interest for his Mother to pick him up when he called her from school. (Barber)
83. Ms. Barber testified that the Student developed a trusting relationship with her positive relationships with other staff members. The Student had a hard time processing emotional situations and controlling his own emotional reactions, which is typical of many of the CHS students. She thinks that the processing and talking she did with the Student was an effective technique and a perfect way for the Student to process situations given his rigid and linear processing style. (Barber)
84. Ms. Barber did not observe the Student to be showing any more signs of depressive symptoms than usual during his last two weeks at the CHS. He showed poor motivation, tearful moments, and social withdrawal at times, which are all aspects of depression. She would see those things on and off, but never assessed the Student as approaching a crisis level. He was asking to go home more often and things were obviously more difficult for him. She thinks he had increasing feelings of conflict, but he was handling himself. The Student was aware his Mother would pick him up. She thinks the litigation weighed heavily on the Student. The Student asked Ms. Barber what she would say at the hearing. He spent time at the hearing. He started to see Ms. Freedman and Ms. Barber going to the hearing and became worried about what they were going to say. They told him they did not know what they would be asked and neither he nor they had control over the situation, but they could control what happened at school and the entire staff was supportive of him. (Barber)
85. The Student participated in the problem solving process with varying levels of success. Near the end of his time at the CHS a teacher asked the Student to leave class because of a persistent negative attitude42 . The Student had been asked a question in class. He had not known the answer and another student had. The Student made a disparaging comment toward the Student who had known the answer43 . Ms. Barber spoke to the Student, focusing on his behavior of making a negative and disparaging comment to another student. She tried to help the Student figure out what he had wanted when he engaged in that behavior and to connect his feelings to what he had done. The Student was able to tell her that he had felt vulnerable because he had not known something and he dealt with that feeling by being negative toward a student who had known. They talked about other ways to get what you want and what the Student could have done differently in that situation. That was an effective use of choice therapy for the Student. (Barber)
86. Ms. Barber tried to use choice therapy with the Student on another occasion when he refused to his work in English class. The Teacher tried to engage him 2-3 times and then suggested that he take space to see what was going on. The Student did not want to go back to class after ten minutes44 Ms. Barber asked the Student to sit down and talk with her. He was not open to speaking to her. A student has to be willing to open up to a clinician in order for the process to work. Otherwise, she would provide the support of allowing him to wait a little bit and do some thinking in a quiet safe place at school until he felt ready to deal with it. This does not mean the student makes a phone call and gets picked up from school. On that occasion, the process did not work. Sometimes it takes some time to process an event over a couple of days. The students, staff, and parents all need to be committed to following the “problem solving” process and students who are resistant are able to “come around.” Had the Student been willing to talk, she would have asked the Student what he had wanted45 . She would have worked with the Student to determine how he would be able to do things differently and how the staff could support him. She would help him figure out a new behavior to get what he wants. She would not be making a judgment that the behavior is right or wrong, but asking him to self-evaluate. What the Student wanted may have been ‘to be out of this school” as he often responded. She would have talked to him what to do in a situation where he did not like something. The direction she takes depends on what comes from the Student. The staff remains with the Student during the process. (Barber)
87. Mr. McKeon testified to finding the Student working on a drawing of the school with “bombs coming down” during math class on October 31. He asked the Student to speak to Ms. Barber upon seeing it. (McKeon) Ms. Barber questioned the Student and decided he was safe and it was okay for him to stay at school. The Student told Ms. Barber that he wished the CHS was not there and she thought he meant he wished he did not have to come to school. (Barber) Ms. Barber tried to problem solve and he refused to discuss anything other than the safety issue. The school dealt with the drawing as a counseling issue. Ms. Barber talked to him and they called Dr. Bernell and Ms. Dunning to tell them how they had dealt with it. Nobody from the CHS contacted the Parents and Ms. Freedman testified that they did not feel that there was a safety concern. (Freedman)
88. Ms. Barber believes the CHS is the appropriate program for the Student. She saw him make progress while he was there. The school is set up to work with students who have social emotional disabilities and learning disabilities. The peers are appropriate and many are similar to the Student. He seemed to be making academic progress until he began having many absences. The School provided the Student with tremendous opportunities to be social in a highly structured environment. Appropriate or inappropriate behaviors were addressed quickly, so there was a tremendous amount of time for him to learn. (Barber) Staff members at the CHS believe the Student could return to the school and be successful. They believe they can address both his emotional and his learning needs. Ms. Barber testified that the staff would have to meet with the Student and tell him he would be placed there and ask him what his goals were and how they could support him. (Barber, McKeon, Bernell) Mr. McKeon believes that the Student had been getting the message that he would not be placed at the CHS. The Student continually told staff that he should not be there. (Freedman, McKeon, Barber) He became less and less committed to achieving success at the CHS. He would have to be encouraged to take advantage of what the school has to offer. (McKeon) Ms. Freedman testified that she thinks a home school component to the program would be beneficial to the Student and his family and would support a connection between what happens at home and what happens at school. She believes it is important to give support to the family and the Student to show him that he can be successful even though he was not placed at the school he preferred. Such a component would help everybody to see what is really going on and keep them “on the same page.” (Freedman)
89. The CHS staff could use reality therapy to help the Student to figure out what he wants. (Barber, Freedman) They would help him figure out how to choose behaviors that would get him what he wanted within their framework. They would encourage the Parents to learn about choice theory and how it can be used in their home environment because it is helpful to have consistency between home and school. (Barber, Freedman) The CHS staff would recommend that the Parents encourage the Student to stay in school all day. The staff is willing to continue to work with Student and his Parents. (Barber, Freedman, Bernell, McKeon) Ms. Freedman believes that the same issues that prevented the Student from being successful at Cohen-Hillel continue to prevent the Student from being successful. She thinks it would be a good learning experience for the Student to come back and resolve some issues instead of continually moving from place to place. She also thinks it would be important for the Student to accept counseling services. (Freedman)
90. Dr. Nathan testified that the Student initially told her that the CHS was “okay.” He told her the teachers were “nice”, but the kids were “not friendly and they were the acting out sort.” He told her they did not seem to be “serious students” as he had thought the Arlington School students were. (Nathan) When she met with the Student on September 12, 2001 he had reported that “he had witnessed a great deal of swearing and defiant behavior and the students were quite rough and have cigarettes behind their ears.” She concluded that “the Student is not happy” at the CHS” and that “He seems to feel overwhelmed by the behavioral acting out [and] feels the academic component is diminished by the behavioral distractions and demands.” She further concluded that the Student feels very unhappy about returning to Peabody and continues to feel traumatized by the “lack of response to his previous social emotional needs.” (Nathan)
91. Dr. Nathan observed the Peabody CHS twice before the new facility was completed. During the two visits, she spent a total of 15-20 minutes observing the Student participating in an academic class. (Nathan, Freedman) She described the “milieu” as “stressing safety and respect” and offering reality therapy, choice therapy, problem-solving skills and a sense of responsibility. She described the director, Liz Freedman, as committed, intelligent, creative, flexible and committed to the students and the program. (Nathan) She testified that she got the impression that CHS teachers were not as experienced as the teachers at the Arlington School and that the Arlington School teachers were “older people who had been in the education setting with special education certification for a number of years.” She raised a concern that the CHS teachers were not dually certified in the area that they taught and special education. After observing the Student in his history class for 15-20 minutes, Dr. Nathan noted, “he appears resigned”, he was “minimally engaged with peers”, his “teacher was friendly and showing colloquial attempts to engage students with hands-on activity.” She noted the “material is simplified at below a ninth grade level.” She noted that “he didn’t seem interested in the lesson”, but he participated in the discussion. “When he saw the materials were perhaps minimally interesting to him, he offered to go home and bring in additional materials to supplement those materials that were brought in by the teachers.” He was also “conversing with the kids in a polite manner.” She thought that the Student was cooperating and participating. She testified that the class was taught below the ninth grade level. The topic of the class was the Anglo-Saxons. She said the students read aloud from a textbook with a concrete description of the Anglo Saxons. There was no high order thinking as “she would expect from a class geared toward kids with above average level intelligence.” She thought that the reading level sounded to her to be below the ninth grade level. The assigned project, to create a project representing some aspect of Anglo Saxon life, had “minimal additional benefit in terms of presenting material for expanding the students’ understanding of the material” in her opinion. Her knowledge of curriculum is that this kind of project is at a fifth or sixth grade level. (Nathan)
92. Dr. Nathan testified that “[Student]’s unhappiness is very deep in Peabody. “It would be very difficult to integrate him back into Peabody as his memory of mistreatment remains strong and has been reactivated by recent mistreatment46 .” She believes the Student has come to see the Peabody system is unsupportive of his needs. She has concerns about him attending the CHS for the rest of high school for many reasons. First, she testified that the Student has experienced a great deal of disappointment and failure at the Higgins Middle School and now identifies the entire “Higgins program as not champions of his best interest.” She stated that he feels very deeply that the educators in “this town” are not interested in his best academic and social emotional advancement. Dr. Nathan believes that if the Student stays at the CHS he will not develop real social relationships with people like him who share his interests. She believes that he has shown a very drastic decline in his written language and math over a three year period. Therefore, “if he attends a school that does not make vigorous efforts to remediate those things” and “does not offer enrichment in his various talents and interests, meaning computers, arts, foreign language, his motivation and interest in developing toward a college curriculum will very likely diminish and probably disappear.” She testified that if his ability to function at a college level disappeared, “he’ll be faced with the best likelihood of attending a community college and to have some kind of job.” She would like to see him in an environment where “he feels safe and supported and after two and a half to three years of feeling socially alienated where he can feel part of a community in which he is valued.” She stated that “the supports offered to him to date have not been sufficient, so I see no reason to think they would be in the future.”
93. Ms. Freedman testified that she stopped having contact with the Parents as it got closer to the hearing unless there was a severe safety issue. She felt that when she spoke to the Parents her “words were getting twisted.” She does not think that the Student was mentally well when he left the CHS and believes the hearing took “quite a toll” on him and that he “felt betrayed by it all”47 . Right before the Student stopped attending school he began refusing to do work and falling asleep in class.
FINDINGS AND CONCLUSIONS
Student is an individual with a disability, falling within the purview of the Individuals with Disabilities Education Act (IDEA)48 and the state special education statute.49 As such, he is entitled to a free, appropriate public education which is reasonably calculated to assure his maximum possible educational development in the least restrictive environment consistent with that goal.50 Neither his status nor his entitlement is in dispute.
The dispute centers around the appropriateness of the services provided to the Student pursuant to the 1998-1999, 1999-2000, and 2000-2001 IEPs and the appropriateness of the Student’s placement at the Peabody CHS versus the appropriateness of the Parent’s proposed placement at the Arlington School. Also in dispute is the Student’s entitlement to compensatory services and the appropriateness of the School’s response to the alleged peer teasing and bullying of the Student during the 1999-2000 and 2000-2001 school years.
1998-1999 (sixth grade)
It is undisputed that the Parents made a written request that the Student be evaluated during the 1998-1999 school year and that the Student was not evaluated until late in the 1999-2000 school year. It is also undisputed that the vast majority of the Student’s grades were very poor in every subject and that his IEP indicated that his cognitive level was in the average to above-average range. (P-8, pg. 6; P-3, pg. 1) Even if the Student’s Parents had not requested an evaluation of the Student, the School should have undertaken such an evaluation based upon his consistently poor grades in light of his cognitive level. 20 U.S.C. § 1414(a)(2) instructs that “A local educational agency shall ensure that a reevaluation of each child with a disability is conducted (A) if conditions warrant a reevaluation or if the child’s parent or teacher requests a reevaluation, but at least every 3 years.” The failure to evaluate a Student after the Parents requested an evaluation was a clear violation of this provision. Arguably, the Student’s grades of mostly Ds and Fs in major academic areas is a “condition” that would “warrant a reevaluation.” Even if the Student’s grades were low because of incomplete homework assignments and classroom assignments, as alleged by Peabody, an evaluation would have been appropriate to determine whether there was a learning disability or psychological issue impacting the Student’s ability to complete homework or classroom work.
The evaluations that were eventually done by Peabody in the seventh grade showed that the Student was experiencing significant emotional distress and identified a learning disability in the area of written language. If information gleaned from the evaluation had been available to the Team during the sixth grade, the Team would have been able to provide the Student with a program that would have met his educational needs and may have impacted his level of emotional distress.
Peabody argues that the Parents’ compensatory education claims should be denied because the Peabody Public Schools provided the Student with appropriate educational programming in light of the information they had received about the Student. This argument is not persuasive because Peabody would have presumably had additional information regarding the Student if it had completed the evaluations during the sixth grade as the Parents requested. Based upon Peabody’s failure to evaluate the Student after the Parents’ request and its failure to evaluate the Student in light of his consistent poor grades contrasted with his cognitive ability, I find that the Student was denied a free appropriate public education. He is entitled to compensatory services (which will be more specifically described below) because his needs were not appropriately met from March 1999, when the requested evaluation should have been completed, until the end of the school year, June 1999.
The fact that the Parents signed and accepted the IEP for the 1998-1999 school year does not negate the Student’s right to receive compensatory services. The Parents relied upon the information that was available to them when they made their decision. They later requested that the Student be evaluated to obtain additional information which might explain why the Student was struggling academically and emotionally. (Father) The additional information which they sought was not provided and the Parents were forced to rely upon incomplete information available to them when they accepted the IEP.
1999-2000 (seventh grade)
During the Student’s seventh grade, his emotional functioning became a significant issue. There was conflicting evidence presented regarding the Student’s emotional presentation. The Parents testified that the Student was showing signs of significant emotional distress at home and the Peabody staff testified that they were not seeing any significant signs of emotional distress at school. Based upon the testimony of the Parents, Mr. Lemire, and Mrs. Walsh, and previously cited documentary evidence, I find that the Student’s emotional needs were not adequately addressed during his seventh grade.
Although Mrs. Walsh testified at length about providing support to Student in the 7 th grade, the Student’s IEP did not provide any support services or meet the Student’s emotional needs. Additionally, it is questionable whether Ms. Walsh had the requisite qualifications to provide the Student with the kind of support he required as she testified that as a guidance counselor her primary focus is around academic issues. (Walsh) She testified that she was never able to get a sense of what was bothering the Student. Despite her inability to determine what was causing the Student’s distress, she did not refer the Student to the school adjustment counselor or the school psychologist nor did she report any concerns to the Director of Special Education. The record contains no notes or documentation of any of the Student’s sessions with Ms. Walsh.
Several Peabody witnesses testified that the Peabody staff was surprised when Dr. Nathan reported that the Student was clinically depressed. However, Mr. Lemire testified that if he were looking for a child who was depressed he would look for “a child who didn’t fit in with the norm, [was] quiet, withdrawn, [had] problems with homework” and admitted that his description fit the Student. He also stated that while the Student was in his math class he appeared as though something was wrong. Despite his observations, he did not refer the Student to the school psychologist or the school adjustment counselor or anybody at Peabody. He did not inform the Parents of his observations either. Although Mr. Lemire testified that he provided a lunch time “check-in” service to the Student, his testimony showed that the check-in did not occur for very long. In fact, Mr. Lemire testified that the Student stopped nodding to him at all after a couple of weeks. (Lemire) He did not testify that he took any steps to find out why the Student stopped nodding to him nor that he notified any Peabody personnel that the Student was no longer “checking in” with him. There is no evidence in the record that the Student viewed Mr. Lemire as a supportive person to whom he could turn if he needed emotional assistance.
The record shows that the Student did not receive any services from the school adjustment counselor until February 2000. Although Peabody argued that it could not have provided said services sooner because it had not received a signed consent form for the services until February, it did not request the Parents’ consent earlier in the year despite the Student’s apparent need for such services.
Even after the Student began receiving services from Ms. Linihan, he continued to experience emotional distress during school. He did apparently receive some benefit from Ms. Linihan’s sessions as indicated by her progress notes which show that the Student was able to express his feelings to her. Although Ms. Linihan acted appropriately in reporting her concerns about the Student to Mr. Lemire, Liz Freedman, and the Student’s Mother, no additional supports were offered by Peabody to assist the Student. Even after Peabody questioned whether the Student required more sessions with Dr. Nathan, it did not offer to either provide the Student with additional emotional support at school or to pay for increased sessions with Dr. Nathan.
After the December 22, 1999 Team meeting, the Team agreed to make some modifications to the Student’s program and provide him with additional services. The IEP was not amended in contravention of 34 C.F.R. 343(c)(2)(ii) despite the fact that the Student was to be provided with additional modifications and services.
The Parents alleged that even after the December 22, 1999 Team meeting all of the teachers were not providing the agreed upon modifications. The evidence shows that Ms. Lapham had not been appropriately modifying her homework policy to meet the Student’s needs during the fall. It also shows that Mrs. Martwichuck was not providing appropriate accommodations. It is noteworthy that when Ms. Walsh testified about Mrs. Martwichuck’s refusal to accommodate the Student’s needs, she defended Mrs. Martwichuck’s “high standards” rather than conceding that she had not provided the appropriate modifications to the Student’s program. She also testified that every class except for Spanish would be modified for the Student. (Walsh) This clearly is in contravention of the law.
There is conflicting testimony regarding whether Peabody agreed to provide the Student with a check-in/check-out person or whether they simply agreed to look into whether that service was appropriate. Because Peabody did not write an IEP Amendment which memorialized the services that the Student was to receive, I must rely upon Team meeting notes and testimony to determine whether the Student should have been assigned a “check-in/check-out person.” Ms. Walsh’s notes contain the words, “critical need for a check-in person.” The Father’s journal refers to Ms. McGovern consulting with Mrs. DiGregorio about a check-in/check-out person. (P-7, pg. 18) There was no testimony indicating that the Student did not require a check-in person or that Peabody had not agreed to provide said person. There was testimony from Ms. Walsh and Ms. McGovern that Peabody did not have a staff person readily available to perform the function of a check-in/check-out person. The fact that the IEP was not amended to include the check-in/check-out person is not persuasive evidence that Peabody was not obligated to provide the service, because Peabody failed to write an IEP amendment to reflect the actual services it was providing to the Student. If Peabody agreed that there was a “critical need” for a check-in/check-out person, it was obligated to provide the Student with such a person, whether there was a Peabody staff member readily available to perform such a service or not, and such person was not provided.
The evidence shows that Dr. Hynick was sufficiently concerned by the results he obtained on the Student’s psychological testing that he contacted the Parents on March 17, 2000. Despite his level of concern, the Team did not meet to discuss his report until April 12, 2000 and there was no recommendation that the Student’s services be increased or that he meet with anyone other than Ms. Linihan. There was not even a recommendation for the Student to receive a periodic mental status check as was eventually implemented the following year. Even after the Team met and discussed Dr. Hynick’s report in which he stated that the Student’s reported mood disruption was “most concerning,” the Student did not receive any additional emotional support.
The evidence shows that the Father first informed Peabody during a telephone conversation with Mrs. Walsh in late November 1999 the Student was being teased by his peers. (P-7, pg. 9) Mrs. Walsh credibly testified that she asked the Student’s teachers if they were aware that the Student was being teased by his peers and they reported that they did not see him being picked on and believed he had a small group of friends. The Father was not able to provide Ms. Walsh with the names of the Students who were allegedly teasing the Student and the teachers agreed to increase their vigilance of the Student. (Walsh) Although Dr. Nathan testified that the Student provided her with the names of the alleged teasers, she did not testify to providing Peabody with the names of the Students.
At some point, the Student did provide Mrs. Walsh with the names of students who were teasing him. She and Mr. Lemire spoke to the students who were involved and Mr. Lemire called one of the student’s parents. Throughout seventh grade, the Student continued to tell his parents and Dr. Nathan that he was being teased, but did not provide specific information about the identity of the teasers or what the teasers were saying to him. The Student’s teachers continued to pay close attention to the Student during class and in the hallways. (Walsh, Lemire) I find that Peabody responded appropriately when they were provided with specific information and spoke to the students involved. Although it appeared as though Mr. Lemire did not believe the Student when he reported he was being teased by a student he described as “one of the nicest kids in school”, he testified that he spoke to the alleged teaser and contacted his parents. (Lemire)
There was discrepancy in the testimony regarding the method by which Peabody required the Student to report teasing. The Parents testified that the Student was initially required to verbally inform Mrs. Walsh or Mr. Lemire of teasing and was later required to write down the name of any student who teased him. Mrs. Walsh testified that the Student could report the teasing in any way that he felt comfortable including telling a staff member or writing it down. The Parents testified that they wished to report teasing incidents for the Student and Mrs. Walsh testified that Peabody wished to eliminate the “middleman” and require the Student to report the teasing himself. (Walsh) The evidence does not show that any specific reports made by any means were ignored by Peabody.
Witnesses for Peabody and the Parents alike testified that the Student misperceives social cues. Peabody personnel seemed to believe that much of the teasing which the Student complained of was actually his misperception of social situations. Additionally, the Student was often unable to tell Peabody personnel who had teased him or what the alleged teaser had done. Given the circumstances in which the Student was complaining of teasing, the fact that the teasing was not observed by any Peabody staff, and the Student being able to provide limited information if any about the alleged teasers, Peabody could do little to prevent such incidents.
Peabody appropriately increased the amount of attention that staff members provided to the Student during the transition from one class to another. Peabody should have provided the Student with some support from the adjustment counselor earlier in the year to assist him in dealing with the issues of perceived and real teasing and bullying. Once Ms. Linihan began providing services to the Student, she dealt with the issue of teasing in much the same way as Dr. Nathan testified that she dealt with it. (P-9, pgs. 37-40)
The United States District Court for the District of Massachusetts has determined that “[T]here is a cause of action under the ADA and the Rehabilitation Act for a hostile learning environment when harassment based on a student’s disability has ‘the purpose or effect of unreasonably interfering with [the]individual’s performance or [of] creating an intimidating, hostile, or offensive environment . ” Guckenberger v. Boston University , 957 F. Supp. 306, 313 (D.Mass. 1997) (citing Brown v. Hot, Sexy, & Safer Productions , 68 F.3d 525, 540 (1 st Cir. 1995). To state a claim for hostile learning environment harassment under the aforementioned statutes, a party must allege the following: “(1) that she is a member of a protected group, (2) that she has been subject to unwelcome harassment, (3) that the harassment is based on a protected characteristic, her disability, (4) that the harassment is sufficiently severe or pervasive that it alters the conditions of her education and creates an abusive educational environment, and (5) that there is a basis for institutional liability.” See Brown , 68 F.3d at 540 (citing Meritor Sav. Bank, FSB v. Vinson , 477 U.S. 57, 66-73 (1986)).
In this case, there is no dispute that the Student is a member of a protected group due to his disability. There is also evidence to support the conclusion that the Student was subjected to at least some harassment by his peers. There is, however, no evidence to support the conclusion that the harassment was due to his disability or that it was “sufficiently severe or pervasive” enough to “alter the condition of [his] education and create an abusive educational environment.” Additionally, there is no basis for institutional liability, because Peabody did not ignore the issue of the Student being teased by peers when it was brought to their attention. I find that Peabody took reasonable steps to monitor the Student and address the teasing when it was reported to them. Therefore, I find that Peabody did not violate Section 504 of the Rehabilitation Act of 1973..
2000-2001 (eighth grade)
It is undisputed that initially the Student did well academically and emotionally in the eighth grade. There was conflicting testimony regarding the Student’s presentation throughout the remainder of the year. Ms. Forsythe’s testimony showed that she understood the Student’s strengths and weaknesses and was able to make appropriate modifications to his work in all subjects. She was also mindful of his emotional state and watched for changes in his affect and consulted with Ms. Melanson and Dr. Hynick appropriately. (Forsythe; P-11) Ms. Melanson’s notes show several instances in which Ms. Forsythe consulted with her regarding the Student’s emotional presentation. (P-11)
Ms. Forsythe and her assistants provided the Student with support in his regular education classes and made modifications as needed. There is conflicting testimony regarding the Student’s presentation beginning in November 2000 when his Mother reported to Dr. Meyer that his depression had increased. The Parents felt that the Student’s mental health was “rapidly deteriorating” and the Peabody staff did not see a significant change in the Student’s functioning. The Team convened in January and after hearing Dr. Nathan and Dr. Meyer’s recommendation that the Student required an out-of district therapeutic placement, decided that they could meet his needs in district and proposed an IAES in Ms. Forsythe’s classroom. (See paragraph 43 above.)
The decision to place the Student in a smaller classroom with a teacher who had a good rapport with him and who understood his needs was appropriate. It was also appropriate to schedule a Team meeting shortly after the placement was made so that its effectiveness could be discussed and revisions could be made to the program if necessary. Peabody was obligated to place the Student in the least restrictive environment that would meet his needs and the staff was not seeing the level of mental distress the Parents, Dr. Nathan, and Dr. Meyer described. Nothing in the Student’s presentation at school indicated that he required an outside placement. Ms. Forsythe credibly testified that although the Student often appeared sad and tired in the morning, he became more animated as the day progressed and was able to successfully complete his work and participate in his classes. According to Ms. Forsythe’s testimony, he was able to participate in his regular education classes as well as his special education classes. She could not recall a time that the Student was unable to attend his mainstream classes. His grades and teacher reports indicate that he was able to make effective progress in his classes. Although the Parents, Dr. Nathan, and Dr. Meyer reported that the Student showed a higher level of distress outside of school, he had never been hospitalized nor had he ever been a threat to the safety of himself or others and there was no indication that his needs could not be met at the Higgins Middle School.
When the Team again convened to review the appropriateness of the Student’s placement in the IAES they determined that it was the appropriate placement for the Student for the rest of the academic year. The plan was designed to meet the Student’s needs in the least restrictive environment. The social emotional consult with the school psychologist and school adjustment counselor was appropriate and was utilized effectively by Ms. Forsythe especially on days when she noticed the Student seemed upset. It was appropriate to continue placing the Student in the mainstream for science and social studies because the evidence shows that he was able to do the work, he had appropriate special education supports in those classes, and he was able to work effectively in small groups with regular education peers. The social skills group was also appropriate for the Student. There is no dispute that the Student had difficulties with social interactions with peers and that he sometimes misperceived social cues. Thus, it was appropriate for the Student to participate in such a group. Ms. Melanson provided credible testimony which shows that he benefited from attending the social skills group. He was able to express his feelings to his peers about being teased and to participate in discussions regarding peer teasing. Individual counseling with the school adjustment counselor was also an appropriate service for the Student. He benefited from having a person with whom he could discuss his feelings and receive emotional support during the day. Although the Parents allege the Student did not trust Ms. Melanson, her testimony and her session notes show that the Student was able to benefit from their sessions together and that he was able to discuss his feelings with her. (Melanson, P-11) The evidence is persuasive that the Student’s presentation and performance at school did not show that he required a more restrictive placement than he was provided during the eighth grade.
The Student responded well to his placement in the IAES as confirmed by Dr. Nathan’s February 28 treatment note which indicated that he looked happier and relaxed. (P-4) Although Dr. Nathan testified that the Student was being taught from a “watered-down” curriculum, the evidence does not support that conclusion. Kelly Forsythe credibly described how she modified the Student’s assignments in terms of quantity, but not content, and that she taught the Student in accordance with the eighth grade curriculum frameworks. (Forsythe) Dr. Nathan testified that she had seen the Student’s work and that it was not grade-level work. Even after admitting under cross-examination that she had only seen about four pages of the Student’s work51 she continued to testify that he had been taught below grade-level material and that her opinion was based upon having seen the Student’s work. (Nathan)
The fact that the Student did not complete his eighth grade year at school, but received home tutoring at the request of Dr. Meyer, does not require the conclusion that Peabody failed to maximize the Student’s potential in the least restrictive environment. Although there is no dispute that Dr. Meyer reached the opinion that the Student should finish the year at home, there is no evidence that her opinion was based upon first hand knowledge of the Student’s functioning at school. When she testified at the Hearing, she credibly stated more than once that she was not an educator and could not make recommendations regarding educational programming. It appeared that her conclusions regarding the Student’s functioning in school were in part drawn from information which was provided to her by the Student, the Parents, and Dr. Nathan. She did not have communications with any Peabody staff members before deciding that the Student should finish the year at home. She testified that by the end of May there was “not much school left” and he “wasn’t getting anything out of it.” She stated that being in school was putting him at risk for further depression. She decided to “let him finish at home for the rest of the year” and she did not see him again until August. In addition to not having requested information from Peabody prior to deciding to keep the Student at home for the rest of the school year, Dr. Meyer’s note from May 31, 2001, indicates that the Student was not taking 5 mg. of Paxil as prescribed, but taking it “intermittently.” Taking Paxil intermittently lessens its effectiveness. (Meyer) Dr. Meyer had not instructed the Student to take the Paxil intermittently and continued to prescribe 5 mg. of Paxil on May 31, 2991. The Student had previously been feeling better while taking Paxil (Meyer) and there is the possibility that he could have continued to feel better if he had continued to take the medication regularly. After determining that the Student should receive home tutoring for the duration of the school year, Dr. Meyer did not see the Student for approximately one month. (P-5, pg. 25) Ms. Forsythe, who spent a great deal of time with the Student daily, and Ms. Melanson both testified to being surprised when the Student stopped coming to School. The evidence does not support the conclusion that the Student’s needs could not have continued to be met for the rest of the eighth grade.
The one striking area of weakness in the School’s eighth grade program was the level of support provided for the Student’s emotional disabilities. Although he received increased emotional support during the eighth grade from both Ms. Forsythe and Ms. Melanson, he continued to require the services of an outside psychologist during the eighth grade. In fact, the Team discussed the outside psychotherapy he was receiving at the January Team meeting and questioned whether he was receiving an adequate amount of therapy. Ms Forsythe testified that Peabody representatives felt that the Student should have increased sessions with his outside therapists. When the Mother reported that their insurance would only cover a limited amount of therapy, Peabody neither offered to increase services provided in school nor offered to provide funding for the Student to receive increased therapy outside of school.
2001-2002 (Ninth Grade)
The parties agree that the Student required a substantially separate therapeutic day school for the ninth grade. The disputed issue is whether the CHS program is appropriate to maximize the Student’s potential in the least restrictive environment.
The parties agree that CHS is run by a dedicated staff. I find that the CHS is a therapeutic special education school for students with profiles and diagnoses similar to the Student’s. Current CHS students’ IEPs confirm this. Ms. Freedman, Ms. Barber, and Dr. Bernell were credible in their testimony that the peers at the CHS were appropriate for the Student. Although some of the students have behavioral issues, the CHS staff credibly testified that none of the students has violent or “acting out” behaviors. Only a few of the students at the CHS listed college as a goal in their vision statements, but that alone does not make them inappropriate peers. Not all of the students at CHS are at the same cognitive level as the Student. Some students are at his level while some are at a higher level and others are at a much lower level. The difference in cognitive level is not overly concerning because the students are taught in small groups52 by certified special education teachers. The Student was grouped with a peer who had a very similar cognitive and emotional profile for most of his academic subjects. Even though all of the students at the CHS were not at the same cognitive level, the students were grouped with students at their own individual cognitive level for their academic subjects.
The Parents testified that they did not believe that the goal of the CHS was to prepare students to attend college. They and Dr. Nathan believed that the Arlington School teachers were better teachers than the CHS teachers and the facilities, especially the art room and science lab, at the Arlington School were superior to those of the CHS. Ms. Freedman credibly testified that the CHS follows the Massachusetts Curriculum Frameworks and offers all the courses which are necessary to prepare students for two year and four year colleges. She further testified that the staff is able to work with each individual student to set goals and determine how their goals can be met. The evidence does not support their opinion regarding the CHS teachers. In fact, the evidence shows that all of the CHS teachers are either certified in special education or on waivers awaiting the receipt of their certificate. They have the appropriate training and skills to modify the Student’s academic work as necessary. Many of them have had extensive experience working with students who had similar needs to the Student’s. The CHS prepares students to attend two-year or four-year colleges. It uses the same curriculum as the PVMHS which abides by the Massachusetts Curriculum Frameworks. I am not convinced that the CHS can not adequately prepare students for college as the parents allege. The small size of the school makes it possible for staff to work with students to determine what their goals are to and help them to meet their goals. It also makes it possible for teachers to provide highly individualized instruction to each student.
The Arlington teachers are not all certified in special education or on waivers. It is not necessary to compare every element of the Arlington School program to the CHS program, because the law requires that out of district placements be considered only after the district is found to be incapable of providing an appropriate program. (603 C.M.R. 20.06(2)(d)) Therefore, any comparison of facilities and art programs is irrelevant.
The choice theory reality therapy used by the CHS is especially useful for students who function at a high cognitive level as the Student does. (Bernell) Although choice theory reality therapy did not always work with the Student, Ms. Barber was very credible when she testified that it often took a great deal of work in order to convince a Student to embrace the theory. She stated that once the staff has a chance to work with a Student with the theory for a while it becomes easier. She indicated that the Student was not there long enough to completely accept the choice theory reality therapy. All of the staff are trained in choice theory reality therapy and there is consistency in the way in which the students’ issues are handled by the staff. The rules are well known by the students because they helped to establish them. All of the staff would react in the same manner to any student who breaks a rule and the students are aware of their options to “take space” or to “problem solve.” (Barber) The school psychologist is available several days per week to provide individual therapy to Student and there is also space available that outside therapists can use to meet with students. (Bernell) This would be especially helpful for the Student because the testimony indicates that there was not much communication between the Student’s outside therapists and Peabody. Dr. Nathan specifically recommended many of the elements described above. She recommended that the Student be placed in a “reparative milieu where he can feel safe, understood, supported and guided” and found that “he would need direct instruction in academic and social/emotional skill building”. (P-4, pg. 13; Nathan) The evidence shows that the CHS can provide the Student with what she recommended.
The Parents’ argument that the block scheduling used by the CHS is not conducive to college preparation is not persuasive. Ms. Freedman credibly testified that the staff is capable of providing the Student with a schedule that will allow the Student to take courses required by colleges even with the block scheduling. Also, she testified that if a Student had a disability in a particular subject area, the staff could ensure that the Student took an appropriate number of courses in that area so that he would not fall behind. The Student testified that the long classes were difficult for him to endure. However, Mr. McKeon testified that the class was broken up by different activities and the students were not expected to listen to a lecture for the entire class period. Ms. Freedman testified that they use the longer blocks for academic classes in order to provide the students with an opportunity to do project based learning. This type of teaching is especially appropriate for the Student because of his attentional issues. In fact, the evidence shows that he became especially engaged in the “hands-on” projects he did during his summer at the Arlington School such as the mock trial and making the skateboard park.
The CHS program is geared toward students who have difficulty interacting with peers as the Student does. It provides opportunities for students to be social in a supervised environment via the Community Breakfast. Staff observed the Student being social and engaging with peers and staff members during the Community Breakfast. Ms. Barber, a full-time adjustment counselor, is always available to assist a student in processing an issue or to talk to a student. Dr. Bernell is available part-time to provide individual counseling to the Student or to consult with the staff. Ms. Freedman, the Director of the program, is also an adjustment counselor and is readily available to provide support to students.
The CHS staff testified that the Student was shy and withdrawn when he started the program in September and he did not want to be engaged with others. They agreed that he became less shy and withdrawn and more engaged after the first week. They testified, and the evidence shows that, the Student wanted to attend the Arlington School, believed the Arlington School was superior to the CHS and was angry that he was required to attend the CHS. The Student never stopped telling CHS staff that he was supposed to be at the Arlington School. They believed that the Student was conflicted because he was aware that his Parents believed that the Arlington School was superior to the CHS and were very angry that he had not been placed there. Student’s perception that he had been placed in an inferior school along with the anger which he knew his parents felt toward Peabody made it difficult for the Student to accept his placement at the CHS.
The Student was also preoccupied with the Hearing in this matter while he attended the CHS. Even though Dr. Nathan advised against allowing the Student to attend the Hearing, the Parents allowed him to attend several days of the Hearing. He heard testimony from witnesses for the Parents and for Peabody. CHS staff members testified that the Hearing had a negative impact upon the Student. After attending days of hearing, he accused some staff members of lying and questioned Ms. Freedman as to why she had been writing notes to Peabody’s attorney during the Hearing. Being present at the Hearing appears to have increased the Student’s level of distress and to have caused him to withdraw from the CHS community. Ms. Barber and Mr. McKeon testified that the Student was not “mentally well” when he left the CHS and began receiving home tutoring. They attributed his mental state to stress caused by the Hearing.
Although the CHS has all of the necessary elements to provide the Student with a program that will maximize his potential in the least restrictive environment, the Student was not able to remain in the program for the entire year. The reasons that he was not able to access the program are delineated above. The Parents claim that the Student lost all faith in the Peabody School District and will therefore never be able to trust Peabody again, and can never be educated in the district again. I am not persuaded that that is the case. Although the Student’s needs were not adequately met during the sixth and seventh grade, Peabody provided him with an appropriate program that addressed his needs during the eighth grade and offered an appropriate placement for the ninth grade. Although the evidence suggests that the Student was teased by his peers during the sixth and seventh grade, the evidence does not show that Peabody ignored the issue. Also, the CHS is in a completely renovated wing of the Higgins Middle School with a separate entrance from the Higgins which makes it unlikely that the Student would be traumatized by being in the same building that he associates with his middle school years as alleged by the Parents. Further, the CHS does not tolerate peer teasing, deals with instances of teasing immediately, and takes such incidents very seriously. The only witness who testified that the Student would be permanently damaged by Peabody’s failure to adequately meet his needs was Dr. Nathan and her testimony in that regard was not credible. Past failure to appropriately meet the Student’s needs is not a sufficient basis for ordering a Student to be placed outside his district when an appropriate program exists within the district.
The CHS is the least restrictive environment for the Student. The law requires that students with disabilities be educated with students who are not disabled whenever possible. 42 U.S.C. 1412(a)(5)(A). Although the CHS is a substantially separate program, its students have the opportunity to participate in any academic or extra-curricular program at the PMVHS. Even if it is not appropriate for the student to participate in any of those programs at present, the programs are available to him and he can access them when he becomes ready. Also, the CHS offers its own substantially separate extra-curricular activities and clubs in which the Student could participate. (Freedman)
I relied very little upon the testimony of Dr. Nathan regarding the appropriate placement for the Student. She spent a very limited time observing the CHS program and observed only the Arlington School summer program which differs from the academic year program. When she described the strategies Arlington School teachers successfully used with the Student she named strategies which were also used by the CHS staff53 . She was often unwilling to answer questions on cross-examination and the Hearing Officer had to repeatedly instruct her to answer questions.
I am not persuaded that the Student will not be able to access the therapeutic services provided by the CHS. Although the Parents presented evidence that the Student did not trust Peabody staff, they did not present any convincing evidence that the Peabody staff had done anything to breach the Student’s trust. Although it was undoubtedly difficult for the Student to hear Peabody staff testifying about him, he also listened to Arlington School staff and his private therapists’ testimony about him. There was no allegation that he was unable to trust the latter after hearing their testimony. The CHS staff presented themselves as caring and dedicated professionals. Dr. Nathan agreed that the staff was very dedicated and testified that the Student reported that they were “nice.”
Although I believe that the CHS is ultimately the appropriate placement for the Student, the evidence does not suggest that he would be able to return immediately. There will clearly need to be some transition to prepare the Student, his Parents and the Peabody staff for his return. The Student had received home tutoring between November 2001 and February 2002 pursuant to Dr. Meyer’s orders.
Because the Student is entitled to receive compensatory education as described above, I issued an Order on February 25, 2002 for the Student’s immediate placement at the Arlington School. (See Appendix One.) The rationale for my Order was that it was unlikely that the Student would be able to reintegrate in the CHS during this school year due to his having been out of school for several months. Also, there was a considerable amount of contentiousness which had arisen between the Parents and some members of the Peabody staff by the conclusion of the Hearing54 . In order to provide the Student with compensation for the time during which his needs were not met, provide the Parents and the Peabody staff time to determine what transition services will be required and provide the Student the opportunity to become reacclimated to attending school on a daily basis in an environment where he has previously felt safe and successful, I ordered that the Student immediately begin attending the Arlington School. The Arlington School has rolling admissions and it is typical for Students to begin attending the school at various times during the year. The Arlington School staff has experience in transitioning students back to their sending districts (Goldstein) and may have insight on ways to ease the Student’s transition back to the CHS in the fall of 2002. Because the Student’s placement at the Arlington School is compensatory in nature he does not have the right to “stay put” at the Arlington School in the event of future disagreement regarding his IEP. His placement during any future dispute regarding the 2002-2003 school year shall be the CHS.
Although I found that the Student’s emotional needs were not adequately provided for during the eighth grade when staff members questioned whether he was receiving sufficient outside therapy, there was not any evidence presented that the Parents incurred expenses for providing additional therapy. Therefore, I can not Order any reimbursement for said therapy.
Parents’ Motion for Finding of Contempt Against Peabody
The Parents filed a Motion for Finding of Contempt Against Peabody on August 14, 2001 because Peabody had not produced some of the documents that the Parents had requested. The Hearing Officer heard oral argument on August 31, 2001. The Hearing Officer later told the parties she would include her ruling upon the Motion in the decision. I hereby DENY the Parents’ Motion for Finding of Contempt Against Peabody for the following reasons. I find that the redacted IEPs that Peabody did not initially produce were not intentionally withheld. I was persuaded that Peabody did not initially produce said documents because they were not able to access the documents because the Peabody special education office and CHS moved during the summer and the documents were packed for the move. I do not find that Peabody acted in bad faith. Additionally, I am unaware of any authority that would permit the BSEA to award attorney fees in this matter, and the Parents did not provide citation to any such authority.
As previously Ordered on February 25, 2002, The Student shall remain at the Arlington School for the remainder of the 2001-2002 IEP period, including his summer program, as compensation for the lack of FAPE in portions of the sixth and seventh grade.
The Student’s appropriate placement is the CHS program and it is the CHS program that shall be his placement after the summer of 2002.
The Team shall meet with members of the Arlington School staff by the end of May to determine what services need to be put in place to transition the Student back to the CHS and to draft an IEP which outlines said services. They shall determine whether they require the services of an outside consultant to assist in the Student’s transition.
The Parties shall agree upon a member of the CHS staff who will act as a Parent-School liason to assist the Parties in communicating and repairing their relationship which was strained by the Hearing.
By the Hearing Officer,
Catherine M. Putney-Yaceshyn
Dated: May 1, 2002
Student had been evaluated by David G. Learner, Ph.D. of the North Shore Medical Center on February 17, 1995, when he was eight years old and in the second grade. Dr. Learner noted Student’s “significant difficult[y] organizing and recalling complex information…[and his] difficulty manipulating information that was only presented orally”. He further noted that Student “fulfils the diagnosis of Attention-Deficit/Hyperactivity Disorder”.(P-1, pgs. 1-7)
P-8, pg. 11 is the signature page for the sixth grade IEP. There is a check mark on the box which reads, “I have accepted the IEP in full” and there is a signature which appears to be Mother’s on the signature line. There is no date beside the signature.(P-8, pg. 11)
Student was absent 1 day in the first quarter, 5 days in the second quarter, 6 days in the third quarter, and 3 days in the fourth quarter. (P-3,pg.1)
The Student’s math computation score was a grade equivalent of 3.4 and a national percentile rank of three percent. (S-44)
Mr. Lemire testified that he was Student’s math teacher at the beginning of 7 th grade, but was promoted to Housemaster approximately one month into the school year. (Lemire, D-4, pg. 202)
Dr. Nathan evaluated the Student on March 21, 1997 at the North Shore Medical Center. She noted the”[r]esults of cognitive testing reflect mostly average and above average abilities on highly structured tasks, with weaknesses suggested by relatively poor output on written and more independent tests”. She further stated, “his poorly developed grapho-motor and organizational skills make all written tasks nearly impossible for [Student] to manage on his own.” She also observed that Student showed “markedly poor and diffuse attention, consistent with a diagnosis of Attention Deficit Hyperactivity Disorder with mainly inattentive features. Additionally, he shows a written language learning disability.” (P-1, pgs.8-14)
Dr. Meyer and the Father echoed Dr. Nathan’s testimony that the Student’s depression has followed a cycle over the past few years. (Meyer, Father)
Ms. Walsh testified that the Father had told her the Student did not think his teachers liked him. (Walsh, Day 4, pg. 302)
Student’s cluster teachers submitted reports for consideration by the Team which included the following. Rauseo – English : Rarely completes classwork or homework; unable to achieve on grade level; improvement during second quarter; class attendance: irregular, high absenteeism could be major factor to poor performance. Requires constant monitoring and immediate feedback. Distractible (he often reads book hidden under desk rather than pays attention); very disorganized, unmotivated, he needs to seek teacher’s help and doesn’t, hasn’t stayed after during 1 st and 2d quarter. Selective in friendships, has chosen one or two people to be friendly with and seems to relate to them beautifully, accepts limited responsibility. The Student is a charming young man and is enjoyable to speak with. Gets quite animated on non-school related topics. She notes that he sits up front, she carefully monitors his agenda book, and she has called him in during SSR to give him the help he doesn’t seek. She wishes she knew how to be successful in motivating the Student She sees him as a student who just hates school and doesn’t want to be there. (P-9, pgs.16-18) Lapham – Social Studies : Student’s achievement level is above average. He completes all classwork; he rarely completes homework. He has irregular attendance. His work reflects understanding of oral presentations and text and visual materials; He works independently and works well in small groups. He’s almost always attentive. He has average ability to organize. He’s motivated with incentives. He has an average level of peer acceptance.(P-9, pgs. 19-21) Mirasola – Science : Average achievement; rarely completes homework. Irregular attendance. Works independently and works well in small groups. Almost always attentive. Frequently disorganized. Highly motivated. Seeks teacher attention. Average level of peer acceptance. Seeks responsibility, “looks to help.” No classroom modifications yet, but Student sits in front.
All of the recommendations pertain to academics and none refer to emotional issues.
George Lemire testified that he did not see the Student as being depressed, but later contradicted his testimony by stating that if he were looking for a child who was depressed he would look for “a child who didn’t fit in with the norm, quiet, withdrawn, problems with homework” and later admitted that his description fit the Student and that Student looked like something was wrong during the month he was in his math class. (Lemire, D-4, pgs. 255,260-261)
This conflicts with Dr. Nathan’s later testimony that “ When Student is really deteriorated to the point [the parents] feel they can no longer push him to attend that day, throwing up, crying hysterically, they have allowed him to remain home, which seems reasonable to me.”
Techniques he suggested included: brainstorming, freewriting, and listing as many words as possible surrounding a topic to help him to generate additional ideas for his written work. He also recommended providing the Student with examples of various forms of writing. He recommended providing instruction in developing outlines and graphic organizers. Ms. Forsythe testified to using many of these techniques with the Student.
The Student was withdrawn from his Spanish class at the request of the Parents to reduce the academic demands on him. The School disagreed with the Parents’ decision, but allowed the Student to withdraw from Spanish eventually. (Walsh)
Ms. McGovern testified that the Language Arts class was to be a small group class. (McGovern)
There were not any outbursts reported at school. (Meyer)
Ms. McGovern questioned whether an attentional or emotional issue influenced the Student’s performance on the written expression. (McGovern) The North Shore report stated, “The Student entered the testing room with frequent yawning and appearing fatigued, a sad facial expression, and putting his head in his hand…toward the end of the testing the Student appeared very lethargic, resting his head down often on the desk and closing his eyes and looking as if about to fall asleep.” The report also indicated that during the written expression portion, the Student “stared at the paper and wrote nothing, then appeared on the verge of tears as time ran down.” (S-20)
He administered portions of the WIAT in March 2000 and the North Shore evaluator repeated it in December 2000. Dr. Hynick administered the written language subtest of the WIAT and the Rey-Osterreith in June 2000 and the North Shore evaluator repeated the tests in December 2000. (Ms. McGovern testified that it is unusual for the WIAT or Rey-Osterreith to be given within six to nine months of one another.) Dr. Hynick also administered portions of the WISC in March 2000 which the North Shore evaluator repeated in December 2000. (Ms. McGovern testified that the WISC usually would not be administered more than once in the same year.)
She would determine each day whether the Student could manage the mainstream classes and ask him whether he was able to attend. Most days he went. If she did not attend with him one of her assistants always would. (Forsythe)
She testified that she saw him taking tests and quizzes and knows that his grades were based upon the work he did. (Forsythe)
One of her assistants told her on one occasion that the Student was upset because another student had told him to “shut up.” (Forsythe)
Ms. Melanson testified that she was not aware of any school phobia diagnosis and interpreted the incident as emotional distress and not avoidant behavior. (Melanson)
Liz Freedman testified that she provided the parents with information regarding the clinical services available at the Community High School and answered their questions about the program.
Dr. Meyer did not see the Student again until August 28, 2001. (P-6)
There is no fourth quarter grade listed for Pre-Algebra, but there is a grade, B, for Mathematics for only the fourth quarter.
Ms. Garrison is not a certified teacher and has no training in working with special education students. (Garrison, D-4, pg.164)
She noted that the art teacher was very skilled and had a rich curriculum. She felt the art class was of the same level she experienced in college and noted the art room contained clay, sculptures, collage, painting, and charcoal. (Nathan, D-1, pg. 100) She noted that there was a lot of computer media instruction and availability including digital cameras and various pieces of equipment that were exciting to the Student. (Nathan, D-1, pg. 96) She noted that the science lab was “fully functioning” with all the requisite equipment. (Nathan, D-1, pg. 100)
The premise is based on the idea that everybody has five basic needs: 1) survival; 2) loving and belonging; 3) self-worth; 4) freedom; and 5) fun.
The temporary setting included four classrooms separated with walls, but without ceilings; an office area; a community room; and a small private counseling space. Initially, they had three computers. Science lab equipment and art supplies were available to the program. (Freedman)
While the Student attended the school there were only three computers in the school with various levels of functionality. (Student, Father)
Thirty to forty percent have a co-diagnosis of ADD or ADHD.
The population differs from that at the Peabody Alternative School. The Alternative school is for students who are not able to make it in the regular high school due to truancy, drugs, etc. The school system doesn’t want to see them expelled. The students at the Alternative school have more acting out behaviors. (Freedman)
The students come up with a set of beliefs at the beginning of the year and when they are broken students face a consequence. If a student is disrespectful to somebody, they must provide some kind of restitution. The Student who broke the belief may be required to do a project or presentation. It creates a connection in the student’s mind between his behavior and the consequence. (Freedman)
They address needs with respect to belonging because relationships are an important part of the program and also the needs of sense of self-worth, freedom and fun. The survival needs are also addressed because they determine whether the students are willing to help out or pay money in order for the group to have a special breakfast. (Freedman, pgs. 50-51)
The witness explained that if a Student takes Algebra I during the first half of a year he could take math courses in a row and would be done with his math requirement halfway through his sophomore year. If consistency were a concern the school could add an additional math between the Algebra courses. If math were an area of weakness for a student they would not wait for nine months to take another math class. (Freedman)
Students at the Community High School have the opportunity to participate in any program or class at PVMHS and a paraprofessional will assist students if necessary.
The groups will address the following topics: 1) unhealthy relationships; 2) substance abuse (education/prevention); 3) conflict resolution/how to deal with conflict
The process is not used for severe behavior. If a student feels very emotional, he or she is asked to speak to the school adjustment counselor and the process would not occur. Ms. Freedman is trained in crisis prevention and de-escalating students. (Freedman)
Some students had lower I.Q.s than the Student and some had higher I.Q.s. (Freedman)
When there is a conflict between two students the students are kept separate where they work on their behaviors and the incident. The students are then brought together to resolve the issue.
Mr. McKeon taught the Student Algebra along with paraprofessional, Ms. Stubblefield. The Student received instruction in a small group with Ms. Stubblefield. Mr. McKeon would check in to see how the Student was doing and explain things to him.
A persistent negative attitude is a reason a student may be sent out of class to problem solve with her so she can find out what is going on with the student. (Barber)
“How do you know, you never know anything?” (Barber, quoting the Student)
If a Student needs more than ten minutes of space, they ask him to problem solve. The staff feels if a student needs more than 10 minutes, something is clearly going on and he may need some help with it.
It might have been that the work was too hard, “somebody had looked at him funny”, he had a bad night’s sleep. (Barber)
This is a reference to the pencil shavings incident described previously.
After attending the Hearing for several days, he asked Ms. Freedman why she was writing notes and passing them to the school’s attorney during the hearing. (Freedman)
20 USC 1400 et seq .
MGL c. 71B.
David D. v. Dartmouth School Committee , 775 F.2d 411, 423 (1 st Cir. 1985). Although the applicable legal standard changed to FAPE effective January 1, 2002, the “maximum possible educational development” standard was applicable at the time that the IEPs were developed and proposed by Peabody and therefore is the standard by which the IEP will be judged. Peabody has not disputed the applicability of this standard.
Ms. Forsythe testified that the worksheets Dr. Nathan had referred to as being below grade-level were mostly worksheets which other students had prepared for their classmates to complete as follow-up work to lessons which the classmates presented to one another.
The CHS staff testified that instruction can be individualized in small groups.
Dr. Nathan testified that the Student was exposed to the same curriculum as everybody else, there were small classrooms with individual assistance and a structured approach to writing which used Inspiration software at the Arlington School.
Ms. Freedman testified that she had ceased communicating with the Parents unless there was an emergency because she felt her words kept “getting twisted.”