Charlie S. and Triton Regional School District and Georgetown School District – BSEA # 07-0082

<br /> Charlie S. and Triton Regional School District and Georgetown School District – BSEA # 07-0082<br />

COMMONWEALTH OF MASSACHUSETTS

SPECIAL EDUCATION APPEALS

Charles S.1 and Triton Regional School District and Georgetown School District

BSEA #07-0082

DECISION

This decision is rendered pursuant to the Individuals with Disabilities Education Act (20 USC 1400 et seq.), Section 504 of the Rehabilitation Act of 1973 (29 USC 794), the state special education law (MGL ch. 71B), the state Administrative Procedure Act (MGL ch. 30A), and the regulations promulgated under these statutes. A hearing on this matter occurred on October 17 and 25, 2006 before Hearing Officer Sandra Sherwood. Oral closing arguments were heard on October 27, 2006, and the record closed on that day. The record consists of School Exhibits 1 – 24, and Parent’s Exhibits 1 – 68 and 95 – 98.

Persons present for all or part of the proceedings were:

Parent Parent of Charles

Ray Wallace Attorney for Charles and Parent

Tom Hays Educational Director, Franklin Academy

Gina Ritchie Counselor, Franklin Academy

Christine Kneeland Administrator of Pupil Services, Triton Regional School District

Mary Ellen Sowyrda Attorney for Triton Regional School District

Alisia St. Florian Associate attorney for Triton Regional School District

Jessica Ritter Associate attorney for Triton Regional School District

Kathleen Smallcomb Speech/Language Therapist, Triton Regional School District

Barbara Oswald Occupational Therapist, Triton Regional School District

Dr. John Carvotta School Psychologist, Triton Regional School District

Perry Hayden School Psychologist, Triton Regional School District

Dr. Thomas Scott Out-of-District Coordinator, Triton Regional School District

Patricia White Lambright Director of Special Education, Georgetown School District

Thomas Nuttall Attorney for Georgetown School District

Matthew MacAvoy Attorney for Georgetown School District (October 25, 2006)

Laurie Jordan Court Reporter

Heidi Bates Court Reporter

On August 11, 2006, Charles’ mother (Parent) filed for a hearing before the Bureau of Special Education Appeals (BSEA), seeking a determination that a) Charles continues to be eligible for special education services and requires a residential special education placement, and b) his stay-put placement pending resolution of this dispute, is Franklin. The parties disputed this stay-put placement, and on October 13, 2006, the Bureau of Special Education Appeals ruled that the Franklin School was Charles’ stay-put placement pending resolution of the current dispute. Charles has continued attending and currently attends Franklin.

ISSUES

I) Whether it is premature for the Bureau of Special Education (BSEA) to address the Triton Team decision that Charles is no longer eligible for services, and if so, what services are necessary for Charles to receive a free and appropriate public education? If the issues are properly before the BSEA,

II) Whether Charles is a student with a disability and in need of special education services? If so,

III) Whether Charles’ educational needs can be addressed within the public school, or whether he requires a residential educational setting in order to receive a free and appropriate public education in the least restrictive setting?

POSITIONS OF THE PARTIES

Charles’ mother (Parent) asserts that Charles has characteristics of Asperger Syndrome, a non-verbal learning disability affecting his social skills and his executive functioning, and an anxiety disorder, rendering him unable to progress effectively in the general education program without specially designed instruction. In fact, his needs are sufficiently severe that he requires a residential educational setting such as offered at the Franklin School to receive an appropriate public education in the least restrictive setting. Parent also asserts that the March of 2006 Team process resulting in a finding of no eligibility was procedurally flawed, and that he has been terminated from special education services illegally. Accordingly, Triton should be ordered to reconvene the Team to address the issue of eligibility. Finally, assuming that Charles is deemed eligible for services, the Team has not yet convened to address the issue as to appropriate educational services (FAPE). Accordingly, it is premature for the BSEA to address this issue of FAPE, and the Hearing Officer should order Triton to convene a Team to address that issue.

The Triton Regional School District (Triton) asserts that Charles does not have a disability that renders him unable to progress effectively in the general education program without specially designed instruction, and would flourish as a regular education student in Triton’s high school. Further, if Charles is deemed eligible, a residential educational setting is overly restrictive for him, and further, the Franklin School students are not appropriate peers for Charles. Triton asserts that this issue of FAPE is properly before the Hearing Officer, for the Team had all necessary information to determine services, and decided that those requested services were not necessary for Charles.

Georgetown Public Schools (Georgetown) relies on Triton’s position as to Charles’ educational needs, as it is limited to fiscal responsibilities for Charles’ out-of-district educational programs2 . It asserts that it holds no financial responsibility for Charles’ residential educational placement. Like Triton, Georgetown asserts that the issues of eligibility and of FAPE are properly before the Hearing Officer.

FACTS

Charles, a seventeen-year old eleventh grader residing in Georgetown, Massachusetts, is a Triton school-choice student who attended Triton’s public schools up through his sixth grade and the first three weeks of his seventh grade. According to Mother, he was an “A” student up through his sixth grade year, however he gradually evidenced socially immature behaviors, difficulty interacting with peers, problems during times of transition, and difficulty with managing his homework and written work. She also reported that he misinterpreted the intentions of peers, had a low tolerance for the behaviors of others, couldn’t maintain perspective, and tended to remain on the outskirts of social groupings. He related more comfortably with adults or younger children. Charles entered Triton’s Middle School for his seventh grade. After three weeks, Parent observed Charles to be extremely anxious, depressed, and self-isolated. He developed a social phobia that prevented him from going to school. He stayed at home for medical reasons and received the services of a tutor throughout his seventh grade year. (Parent.)

Pursuant to Triton’s 2002 – 2003 IEP, Charles repeated his seventh grade at a private special education day school, the Hillside School, where he experienced significant progress socially and academically. Charles felt that he was well accepted by his peers: “The kids like me and I don’t get bullied.” (Parent Exh. 21 at pg. 4.) On the other hand, Parent believed that Charles still struggled in connecting socially and emotionally with his peers. Charles stayed at the Hillside School through his eighth grade year. (Parent.) During his eighth grade year, Charles stopped using Zoloft anti-depressant medication and did not work with a counselor or therapist. (Parent Exh. 21.) Due to public school administrative issues as well as Charles’ desire to attend a high school for four years, Charles did not continue at Hillside (which goes only up to ninth grade). (Mother, Parent Exh. 22.)

In April of 2004 of Charles’ eighth grade year, Charles’ treating child psychiatrist, Dr. Daniel Rosenn, wrote to Triton’s Special Education Administrator, detailing his understanding of Charles’ profile, his experience with Charles over the years, and his recommended educational setting for Charles. He described Charles as having a complex and ill-defined learning disability, anxiety, and issues around self-esteem, resulting in his seventh grade refusal to go to school. He described how Charles does not fall easily into any single, clear-cut diagnostic category, that he has features of right hemispheric weakness “which at times, have the aspect of a Nonverbal Learning Disability,” that his anxiety is an obstacle to learning, and that his environment can interfere with his ability to concentrate or process in the classroom. Dr. Rosenn stated that his impairments are commonly seen in Asperger Syndrome, though Charles does not meet the full criteria for that disorder either. Dr. Rosenn recommended small group classes, a structured and nurturing environment, a setting experienced in handling students with the more “ill-defined but significant” learning disabilities, a social setting that would not be overwhelming for Charles, and a strong academic program. He ruled out schools that had a significant number of students with right hemisphere difficulties including Asperger Syndrome and other types of learning disabilities more severe than Charles’. Further, he ruled out prep schools offering social settings too overwhelming for Charles. Rather, he recommended a school such as Chauncy Hall/Chapel Hill. In discussing these various options, he stated “We have also discussed specialized residential schools for Charles, such as Eagle Hill. Putting aside for the moment the substantially increased cost of residential programming, Charles himself would much prefer to live at home for high school. I am also not at all convinced that Charles requires a residential educational program at this point in time.” (Parent Exh. 22.)

In this same month, Charles underwent a neuropsychological assessment conducted by Dr. Goldstein of the Andover Counseling Center. Dr. Goldstein conducted the WISC-IV as well as the Woodcock-Johnson, Third Edition Tests of Cognitive Ability and Achievement. She concluded that his intellectual abilities were consistent with previous testing, with very high scores in his verbal abilities, receptive and expressive language, working memory, short-term memory, and fluid reasoning. He scored statistically significantly below the mean of his broad intellect in his processing speed and visual-spatial thinking, auditory processing, and phonemic awareness. In sum, Dr. Goldstein characterized Charles as a bright young man with significant learning disabilities in processing speed, visual tracking and awareness, and in areas of auditory processing. “The pattern of cognitive strengths and weaknesses found on this battery along with Charles’ historical learning information and this examiner’s observations of him over three days of assessment support the diagnostic pattern of a non-verbal learning disability and mild language impairments that significantly impact his executive functioning abilities.” In addition to having some of the characteristics of a non-verbal learning disability, Dr. Goldstein found Charles to have a moderate and generalized anxiety and social disorder that has features of school phobic behaviors and a worrisome mood. Finally, while not ruling out Asperger Syndrome, she did not think that his profile was consistent with this pervasive developmental disorder. Rather, she opined that Mother’s description of Charles is more indicative of a moderate social anxiety disorder versus a pervasive developmental disorder. Based on her review of Charles’ history, behavioral observations, parent interviews and projective testing, Dr. Goldstein concluded that his emotional challenges are consistent with an anxiety disorder profile including “an immature and emotionally intense and narcissistic personality, that has great feelings of inadequacy, can be fearful, worrisome, and feel isolated and defenseless.” Dr. Goldstein recommended that Charles consult with a psychiatrist regarding medication for a suspected anxiety disorder; work with an individual therapist; participate in a social skills group, and be provided extended time for all academic testing. She recommended a challenging academic environment with small size classes taught by staff familiar with non-verbal learning disabilities, access to an inclusive sports program, and structured social activities. (Parent Exh. 21.)

Charles attended the Eagle Hill School summer program as a residential student. He was quite successful academically and socially. (Mother, Parent Exh. 53 – 61.) In the opinion of the Dean of Admissions, the residential aspect of the program was of particular benefit to Charles, helping him make critical connections with peers and faculty. In an August 2004 letter to Parent, she states:

Charles has a difficult time recognizing where he fits in socially and, at times, lacks the confidence to open himself up to his peers in the social setting. As a result, Charles can be reserved and detached in both novel situations and challenging social situations. In the classroom, Charles can rely upon the “script” of teacher/student etiquette whereby he does not share the responsibility of establishing connections. Outside of the classroom, there is no such script and Charles is left to his own devices. In these settings Charles is likely to withdraw because he is overwhelmed by the pressure of being responsible for his social well-being. His lack of confidence can manifest itself in what can be perceived as an aloofness or negative persona. We have come to see that that is not an accurate representation of who Charles is. The advantage of the boarding arrangement for Charles is that he is able to receive accurate and immediate feedback in his social interactions. Charles is not able to withdraw or hide from the social demands of his adolescent life. He is able to practice all that he has been instructed to do in class. Charles clearly wants to do well and he is motivated by peer acceptance. The boarding component of our school has afforded him ample opportunity to experience success…. Boarding life also provides continuity of structure and consistency of expectations that are almost impossible to duplicate in a day school environment, but essential to Charles’ success.
(Parent Exh. 61.)

In September of 2004, Triton’s Team decided that Charles required a residential special education placement; Parent accepted this IEP. Charles enrolled in the Forman School, a private residential special education school. (Parent Exh. 3.) Charles was successful academically, and he made many friends, learning how to make friends and keep them. (Parent Exh. 33, 34.) However, apparently, Charles had been fatigued for two weeks near the end of April, and Forman would not allow him to return until he could do the entire day. Due to his anxieties, he was unable to return. (Parent.) The parties decided to send an admission packet to Franklin Academy. (Parent Exh. 12.)

On May 31, 2005, Triton convened a TEAM and reissued an IEP, placing Charles at the Franklin Academy (Franklin) for the remainder of the November of 2004 – November of 2005 IEP period. Parent accepted this IEP on June 29, 2005. (Parent Exh. A.) Franklin is an unapproved private boarding and day school in E. Haddam, Connecticut, serving approximately one hundred students with nonverbal learning differences in grades 8 – 12. It “helps students with Non-Verbal Learning Disabilities manage their unique strengths and weaknesses as they pursue college career goals.” (Parent Exh. 31.) Of the sixteen teachers, four are special education teachers. Charles’ education is overseen by one of the special education teachers as team leader for Charles’ team of teachers. This team leader oversees his program as well as consults with the teachers. (Hays.) The classes are small, and the teaching staff rotates coverage in the residential portion of the program, thus, creating a closely-knit community throughout the day and evening. Further, the school is divided into four teams of students and staff – approximately 25 students in a team – , and the team’s staff meets daily to ensure coordination and good communication regarding the needs of the team’s 25 students. In addition to the academics, Franklin offers a class addressing social skills development. Franklin also provides a residential curriculum addressing social issues, organizational skills, appropriate hygiene, budgeting, etc. Finally, Franklin offers life space interventions throughout the day, providing on the spot 1:1 support when needed. (Ritchie.)

By all reports, Charles has been successful at Franklin, academically, emotionally, and socially. (Parent Exh. 23-27, Hays, Ritchie, Parent, Charles.) As of October of 2005, he was “continuing” on Prozac 20 mg a day, and had not had any recurrences of the depression he experienced in his ninth grade year. Although Dr. Rosenn had previous advised against a residential school placement, he now highly recommended that Charles remain at Franklin that “both specializes in NLD and has created an ambiance that is conducive to Charles’ emotional health.” He also noted that one aspect of Charles’ success “has been his having the opportunities to increase his self-esteem and broaden his social experiences in various extracurricular activities, including athletics, weekend activities, and music lessons. …Without the support of the school system, Charles would be in a far different place emotionally, psychologically and educationally than he is today.” (Parent Exh. 20.) Charles tended to be more organized, less stressed during the first half of the year, and as the academics became more challenging, he became more disorganized and more anxious. His ability to initiate was tied to his ability to organize. His counselor opined that counseling could be helpful, but it would be up to him as to whether it would mitigate his organizational difficulties. (He had started counseling, but quickly chose not to continue. He is, however, about to recommit to counseling.) His social skills are strong in his ability to start, maintain, and conclude conversations and engaging appropriately with peers. However, his weakness is his ability to see things from another person’s perspective, and thus he is less empathic than he might be. In fact, he at times has an air of superiority and this can be harmful or at least hurtful to some of the other students. Charles also struggles with identifying his weaknesses and recognizing the need for improvement, and therefore he has difficulty creating goals. Charles has many interests and initiated his participation, for instance, in Model UN, soccer, student council, saxophone lessons, and the paranormal group. (Ritchie.) In Dr. Hays’ opinion, Charles has made very good progress, but in preparation for college, he continues to have deficits in organizational skills, emotional regulation, and writing. (Hays.)

In September of 2005 after Charles began attending Franklin, the funding of this placement quickly became an issue, for Franklin refused to participate in the Massachusetts Department of Education’s (DOE) “sole source process” necessary for public funding. That is, on September 21, 2005, Franklin wrote a letter to Triton stating that as a policy, Franklin is not a special education facility and would not accept public funding. (School Exh. 1.) Accordingly, Parent started paying for the placement while Triton sought assistance from the Massachusetts Department of Education (DOE) and the Bureau of Special Education Appeals (BSEA) in resolving the funding dilemma. (BSEA case #06-1676.) With the assistance of the DOE and the BSEA in November of 2005, Triton, Georgetown, and Parent achieved an agreement wherein Parent would pay the tuition, Triton would reimburse her, and Georgetown would reimburse Triton, thus facilitating the funding of this placement “for as long as Franklin remains his placement.” Part of this agreement was that Triton would initiate the three-year reevaluation process and the search for an appropriate, Chapter 766 approved placement. (See Ruling on Parent’s Motion to Join and Motion for Stay-put Placement issued October 13, 2006 at page 3.) After three months, the evaluations were completed:

· On February 16, 2006 Triton’s speech/language pathologist, Ms. Smallcomb, evaluated Charles. She summarized Charles’ profile as a tenth grader with high average to above average skills in receptive and expressive language, with the exception of word retrieval difficulties. Phonemic cues were most effective in retrieving the desired word. Ms. Smallcomb recommended wait time to formulate responses, phonemic cueing, use of word banks on tests and for writing projects, and an outline or word bank of key ideas within the content areas for use in discussions. (Parent Exh. 13, School Exh. 10.)

· On February 15, 2006, Triton’s school psychologist, Dr. Perry Hayden, conducted a cognitive assessment. He reported Charles’ WISC-IV scores of Verbal Comprehension score as 121, Perceptual Reasoning score as 117, Working Memory score as 141, and Processing Speeds score as 91. The full-scale score was 123. Dr. Hayden concluded that the discrepancy between the three higher scores and the lower processing speed score was statistically significant. Further, the discrepancy between the higher Working Memory and lower Verbal Comprehension and Perceptual Reasoning was also statistically significant. He stated that “these well-developed skills have helped him to listen to and assimilate verbal information across various settings, and that his areas of weakness fall well within the average range and may be a cause of frustration in relation to his higher level skills. He will need to learn compensatory strategies to overcome this.” However, because of his executive functioning deficits, the staff may need to provide him with some assistance. Accordingly, Dr. Hayden recommended a learning environment with clear expectations and guidelines; the use of templates, story webs and other graphic organization tools as well as study skills instruction; and possibly extended time for tests, reports, research projects or a reduced amount of work. ( Parent Exh. 14, School Exh. 8.)

· On February 25, 2006, Triton’s school psychologist, Dr. Carvotta, conducted a psychological evaluation. He ruled out symptoms of clinical depression, but noted issues related to sadness, anger and frustration, and hostility. He showed difficulties relating to parental figures. There were issues related to hypochondriacs, and he evidenced poor self-esteem and a low self-image. Dr. Carvotta found that Charles’ cognitive functioning did not appear to be affected by his emotional issues. He recommended individual and family counseling and opined that with this, Charles should be able to “become re-involved” with a public school system. (Parent Exh. 15, School Exh. 7.)

· On February 15, 2006, Triton’s occupational therapist, Barbara Oswald, evaluated Charles. She assessed him as having visual motor integration skills within the average to above average range, average fine motor precision skills, below average bilateral motor skill development, an inefficient use of his two hands together, and an immature grasp development. His visual perceptual skills were assessed to be within the very superior range . She recommended no occupational services, a supportive seat, use of large writing tools, use of print rather than cursive writing, and extra time for written work. (Parent Exh. 16, School Exh. 9.)

After several months obtaining the evaluations, on March 13 and 14, 2006 Triton convened a Team to consider the completed evaluation reports. The Team used a DOE Special Education Eligibility Determination form in guiding the discussion and determined that Charles was no longer a student eligible for special education services. In doing so, the Out-of-District Coordinator wrote comments on the form, stating that the Team found no serious impairment, that any impairment does/has not impacted his educational progress, and also noted his emotional stability. She noted his average to superior WISC IV scores, his expressive language difficulties with word retrieval, his executive functioning weaknesses in his organization skills, and his emotional issues related to family but not impacting his cognitive functioning. (Parent Exh. 67, 68, School Exh. 2.)

On September 11, 2006, Triton developed an “Administrative IEP” as its proposed stay-put placement returning Charles to the public high school and providing the agreed-upon special education services there, pending resolution of the eligibility dispute. (School Exh. 23.) However, pursuant to the Bureau’s stay-put ruling, Charles has continued attending and currently attends Franklin. (Parent.)

Triton’s high school offers advanced placement academic classes that tend to have relatively small class sizes of 10 – 20 students. Further, it offers an extensive array of extra-curricular activities and clubs, including music, public speaking, and cultural activities. It is able to offer special education teachers, counselors, and social skills groups. (Kneeland.)

FINDINGS AND CONCLUSIONS

I find that the appeal of Triton’s Team decision regarding Charles’ ineligibility for special education services is properly before the Bureau. Further, if Charles is indeed eligible for services, the issue as to whether he requires a residential educational setting is properly before the Bureau. I find that Charles is a child eligible for special education services, however, Parent’s requested residential educational placement is overly restrictive for Charles. Rather, with special educational support in his emotional/social and organizational skill development, Triton’s high school offers Charles a free and appropriate public education in the least restrictive setting (FAPE). My reasoning follows.

I. PROCEDURAL ISSUES

Parent asserts procedural irregularities in Triton’s March of 2006 Team process, rendering it premature for the Bureau to address Charles’ eligibility. Parent asserts that the Bureau should order Triton’s Team to reconvene to address the issue of eligibility. I find no procedural errors concerning the March 2006 Team meeting that could have affected the outcome in this case.

· It did not consider the April of 2004 neuropsychological evaluation report, however, this is not problematic. First, Triton’s Team had already considered that evaluation report at the previous September 2004 Team meeting and issued an IEP – just a few months after that evaluation report issued. (Parent Exh. 3.) Second, the March of 2006 Team addressed the previously identified various manifestations of disabilities through Triton’s two February 2006 psychological evaluations that included cognitive as well as projective testing. (Parent Exh.14, 15, School Exh.7, 8.) It was not obligated to revisit the neuropsychological evaluation.

· Parent also asserted that the Team failed to include a psychiatrist at the meeting. Given that there was no psychiatric evaluation, a psychiatrist was not necessary. Rather, the psychologist who had conducted the projective testing was present at the Team meeting.

· Although not raised by Counsel, the Team failed to include any current educational provider. Although this should have happened, it does not justify redoing the Team process, for Parent had had many months to raise this issue and has not. Further, it was the private school staff that was expected at the meeting, and only at the day of the Team meeting did Triton become aware of their canceling out, and furthermore, the Team at least had Charles’ Franklin progress reports. A reconvening of the Team would have not produced any different outcome. (Kneeland.)

· Parent also alleges that the Team failed to address Charles’ late-in-the-year absences from the Forman School. However, that had occurred before his current Franklin School placement where Charles’ current status could more easily be addressed. If there was important, relevant information, Parent should have provided it to the Team.

· Finally, Parent asserts that the Team failed to consider whether Charles had fulfilled the goals of Triton’s IEP at Franklin. Presumably, this would be important information in determining whether Charles was ready for a less restrictive placement, however, Triton correctly pointed out that Franklin refused to implement that Triton IEP, rendering it irrelevant to the conversation. Rather, the Team had available to it the Franklin Quint Reports in considering Charles’ progress at Franklin. (Kneeland.)

Parent also asserts that the issue as to Charles’ need for a residential educational setting is not properly before the Bureau, asserting that Triton’s Team has not yet addressed this issue. Parent refers to a Bureau decision by Hearing Officer Crane wherein he refused to consider an IEP offered at the first day of the hearing, based on the fact that the Team had not first addressed such plan. (BSEA #04-4998.) Counsel raises a legitimate concern. However, after careful consideration, Counsel’s argument fails. Had Triton’s March of 2006 Team found Charles eligible for services and discussed Charles’ need for a residential services, the outcome is clear: the Team would have determined that Charles did not require residential services, but could be educated in a less restrictive setting. The Triton staff clearly did not support the need for a residential placement, and the only people there to support Parent’s/Charles’ position were Parent and Charles; no educators, therapists, or evaluators. (Parent Exh. 67, School Exh. 2.) In fact, a close look at the notes from that Team meeting show that Parent clearly had opportunities to discuss Charles’ educational needs and the advantages of Franklin’s very structured residential setting. As a result, the Team had all that Parent planned on providing in support of a residential setting, and the Team rejected her position. (Parent Exh. 68 at page 6.) To now say that the Team should reconvene to consider his need for a residential setting is putting form over substance and only delaying a resolution to this case while Charles remains in a stay-put placement. Clearly, the Triton Team’s position is clear: he does not require a residential educational setting.

The question remains whether Triton should convene a Team to discuss and determine Charles’ special education needs within the high school. But again, the Team essentially addressed this issue, for it carefully reviewed each evaluation report with its recommendations for services (or no services) before finding that Charles can handle the general education program without any supports other than that provided to regular education students. (Parent Exh. 68.) Accordingly, this decision addresses Charles’ eligibility, educational needs within the high school setting, as well as the asserted need for a residential educational placement.

II. ELIGIBILITY

A determination as to whether or not Charles is a child eligible for special education services is based on carefully crafted state and federal regulations defining the protected disabilities and eligibility for services, found at 603 CMR 28.02 and 34 CFR §300.8. The relevant sections are as follows:

A Child with a Disability eligible for services under federal law is:

A child evaluated in accordance with [34 CFR]§300.304 through §300.311 as having … a serious emotional disturbance (hereafter referred to as emotional disturbance), …, autism, …, or a specific learning disability, and who, by reason thereof, needs special education and related services. 34 CFR §300.8(a). Autism means a developmental disability significantly affecting verbal and nonverbal communication and social interaction, generally evident before age three, that adversely affects a child’s educational performance. Other characteristics often associated with autism are engagement in repetitive activities and stereotyped movements, resistance to environmental change or change in daily routines, and unusual responses to sensory experiences. Autism does not apply if a child’s educational performance is adversely affected primarily because the child has an emotional disturbance … A serious emotional disturbance means a condition exhibiting one or more of the following characteristics over a long period of time and to a marked degree that adversely affects a child’s educational performance: A) An inability to learn that cannot be explained by intellectual, sensory, or health factors; (B) An inability to build or maintain satisfactory interpersonal relationships with peers and teachers; (C) Inappropriate types of behavior or feelings under normal circumstances; (D) A general pervasive mood of unhappiness or depression; or (E) A tendency to physical symptoms or fears associated with personal or school problems. A specific learning disability means a disorder in one or more of the basic psychological processes involved in understanding or in using language, spoken or written, that may manifest itself in the imperfect ability to listen, think, speak, read, write, spell, or to do mathematical calculations, including conditions such as perceptual disabilities, brain injury, minimal brain dysfunction, dyslexia, and developmental aphasia. A speech or language impairment means … a language impairment … that adversely affects a child’s educational performance.

34 CFR §300.8(c).

A Child with a Disability under Massachusetts law is:

A child with one or more of the following impairments: a) Autism as defined in federal law, … (e) Neurological Impairment – The capacity of the nervous system is limited or impaired with difficulties exhibited in one or more of the following areas: the use of memory, the control and use of cognitive functioning, sensory and motor skills, speech, language, organizational skills, information processing, affect, social skills, or basic life functions. … (f) Emotional Impairment – As defined under federal law at 34 CFR §300.73 , the student exhibits one or more of the following characteristics over a long period of time and to a marked degree that adversely affects educational performance: an inability to learn that cannot be explained by intellectual, sensory, or health factors; an inability to build or maintain satisfactory interpersonal relationships with peers and teachers, inappropriate types of behavior or feelings under normal circumstances; a general pervasive mood of unhappiness or depression; or a tendency to develop physical symptoms or fears associated with personal or school problems. … (j) Specific Learning Disability – The term means a disorder in one or more of the basic psychological processes involved in understanding or in using language, spoken or written, that may manifest itself in an imperfect ability to listen, think, speak, read, write, spell, or to do mathematical calculations. Use of the term shall meet all federal requirements given in federal law at 34 CFR §300.7(c)(10)4 and §300.541.

603 CMR 28.02(7).

Whenever an evaluation indicates that a child has a disability on the autism spectrum, which includes autistic disorder [autism], Asperger’s disorder, pervasive developmental disorder not other wise specified, childhood disintegrative disorder, and Rhett’s Syndrome …, the IEP Team shall consider and shall specifically address the following: the verbal and nonverbal communication needs of the child; the need to develop social interaction skills and proficiencies; the needs resulting from the child’s unusual responses to sensory experiences, the needs resulting from resistance to environmental change or change in daily routines; the needs resulting from engagement in repetitive activities and stereotyped movements; the need for any positive behavioral interventions, strategies, and supports to address any behavioral difficulties resulting from autism spectrum disorder; and other needs resulting from the child’s disability that impact progress in the general curriculum, including social and emotional development.
c. 57 of the Acts of 2006, amending M.G.L. c.71B §3.

A Child eligible for special education services under Massachusetts law is:
a [child]… who has been determined by a Team to have a disability(ies), and as a consequence is unable to progress effectively in the general education program without specially designed instruction or is unable to access the general curriculum without a related service. …

603 CMR 28.02(9).

In this case, it is Triton who bears the burden of persuasion, for it is seeking relief from its responsibility to provide Charles a residential educational placement. See Schaffer v. Weast, 546 U.S. _ (2005). It is true that Parent requested this BSEA hearing, however, she did so because Triton was refusing to provide his stay-put placement. That relief she sought and won. Now, it is Triton who is seeking the relief.

Charles has no diagnosis that easily falls into a clinical category. However, he manifests many characteristics of Asperger Syndrome, non-verbal learning disability, and anxiety disorder, none of them sufficient for a specific diagnosis, but the combination creates sufficiently serious impairments that interfere with his learning. Triton is unpersuasive that Charles, with this profile, is ineligible for services under federal and state special education regulations.

Charles’ impairments are covered under state and federal law in that his anxiety disorder and his social skills deficits qualify as a serious emotional disturbance. His anxiety over school-related issues has been intense and long standing. As stated by his psychiatrist, “Charles’ excessive and freestanding anxiety … represents an obstacle to learning. Tones of voice, classroom environments, and peer pressure all can exacerbate his internal discomfort to the point where he cannot concentrate or process in the classroom.” (Parent Exh. 22 at page 1-2.) Further, Charles’ difficulty in building or maintaining satisfactory, interpersonal relationships with peers has been longstanding and sufficiently intense to interfere with his school experience. In seventh grade, after attending only three weeks, his anxiety over these issues rendered him unable to attend school for the rest of the year. Accordingly, I find that Charles satisfies the definition of a “serious emotional disturbance” in the above-quoted federal regulations and the definition of an “emotional impairment” in the above-quoted state regulations. (Parent Exh. 21-22, Parent.)

In addition to his emotional impairment, Charles’ characteristics of a non-verbal learning disability qualify as a “neurological impairment” under the above-quoted state regulations. That is, deficits in his organizational skills, information processing, affect, and social skills, all result from his neurologically based non-verbal learning deficits. This was clearly stated by Dr. Goldstein in her April of 2004 neuropsychological evaluation report. (Parent. Exh. 21.)

Given his disabilities, the question is, is he able to progress effectively in the general education program without specially designed instruction or able to access the general curriculum without related services? By a preponderance of the evidence, he is not. Triton is unpersuasive that Charles’ success in the Franklin School setting equates to success as a regular education student at Triton’s high school setting. It is true that a review of this past year’s school reports and of Franklin staff testimony shows Charles as a rather confident, capable young man with leadership skills, capable of interacting well with peers as well as with staff. Such interactions occur in school, in his travels abroad with his peers, in his interactions with the boy scouts, etc. He is well respected by his peers as a leader. He has clearly made significant gains in his social skills, handling his anxieties, and to some extent, his organizational skills. However, these success stories do not preclude a finding that he continues to have a disability interfering with his ability to make effective progress in Triton’s general education program. His gains are occurring in a setting designed to address his deficits, despite the fact that Franklin is not listed as a special education school. It offers an intimate setting where the staff provides support throughout the day around social, emotional, and organizational issues, the curriculum allows for breaks throughout the day, and the program is highly structured. It offers special education consultation that is integral to the program. (Hays, Ritchie.) Yet even in this nurturing setting, Charles has “melt-downs” requiring staff intervention, and his level of anxiety and disorganization increases during the year as the academic challenges increase. (Ritchie.) Finally, his counselor described issues that significantly interfere with his ability to develop friendships with his peers. That is, he continues to have deficits in his ability to empathize with others, rendering him easily judging others. His ability to self-assess has interfered with his ability to make gains in such areas. (Ritchie, Hays.) Indeed, Parent is persuasive that Charles’ constellation of deficits would interfere with his ability to handle the general education curriculum without special education support.

III. RESIDENTIAL EDUCATIONAL PLACEMENT

Having found Charles to be eligible for special education services, the question remains as to whether an appropriate education (FAPE) for Charles requires the most restrictive placement at a residential school, or whether his needs can be addressed at Triton’s high school.

Triton’s position that Charles requires no special education services is not persuasive. Rather, with appropriate supports, Triton is persuasive that Charles can benefit and in fact flourish as a student at its public high school setting, and therefore is not in need of a residential educational setting. The evidentiary record, including Triton’s own evaluation reports, support a finding that a free and appropriate public education for Charles must include counseling, a social skills group, limited executive functioning support, and some classroom accommodations. Triton asserts that counseling and executive functioning support and untimed tests are available to regular education students. However, Ms. Ritchie is persuasive that Charles requires goals and services around his emotional/social skills issues, and given Charles’ propensity for anxiety and deterioration in executive functioning skills when overwhelmed, erring on the side of caution, Charles should be provided goals and specialized support for this. Further, as recommended by Triton’s own evaluators, Triton should provide the accommodations stated in Ms. Smallcoomb’s recommendations listed in her report (Parent Exh. 13, School Exh. 10) and Dr. Hayden’s recommendations listed in his report (Parent Exh. 14, School Exh. 8). Dr. Hays and Ms. Ritchie, and in 2004, Dr. Goldstein and Rosenn, recommended that Charles be educated in small classes. Although I am persuaded by Dr. Hays, Ms. Ritchie, and Parent, that Charles requires a nurturing setting – which small classes can provide – he does not necessarily require small classes. There is nothing in his academic or social/emotional profile that would call for this. Rather, he requires the nurturing, structured setting with direct and consulting counseling services as well as organizational supports. However, it will certainly be advantageous that many of the advanced placement classes have relatively small class sizes.

The record is replete with evidence supporting Triton’s position that a residential educational setting is overly restrictive for Charles and not appropriate for him. First, all of Triton’s evaluators concluded this, based on his intellectual as well as social and emotional skills. (Parent Exh. 13-16, School Exh. 7-10, Carvotta, Hayden.) Second, his gains made at Franklin support this. Charles now possesses leadership skills, maturity, and many interests – all supportive qualities for successful social experiences. At Franklin, he has been a resident supervisor, staff members and peers respect him, he has learned to negotiate make-up work, and he successfully and capably has traveled abroad with his peers. (Ritchie, Hays.) During the summer at a boy-scout camp, he was a lifeguard working with young scouts. (Parent, Charles.) All this shows he has good abilities getting on with people, and that with supports, he can be successful at the high school. (Hays, Ritchie, Scott, Parent Exh. 23-30.) Finally, Triton is able to offer the needed counseling, the social skills, the organizational supports, and accommodations such as untimed tests. (Carvotta, Kneeland.) I am persuaded by Dr. Hays and Ms. Ritchie’s description of Charles, that these supports should be identified on an IEP with appropriate goals, etc., in order to ensure the special education expertise as well as the consistency of support and coordination among the staff throughout the school day and potentially, the extra-curricular activities, if they be the source for social skill development. Further, Triton’s high school offers the advanced placement academic classes appropriate for Charles – classes that will be challenging and offered in relatively small class sizes. Triton also offers a large array of extra-curricular activities in Charles’ interest areas such as music, public speaking, politics, and cultural experiences. (Kneeland) Indeed, the evidence supports a finding that Charles not only could handle this setting, but he could thrive in it.

Dr. Hays’ concern about Triton’s ability to provide accommodations and services equivalent to Franklin’s is unwarranted. He noted examples such as a Franklin School teacher stopping in the middle of class to deal with emotional regulation issues, or a teacher spending after-school hours and evening hours helping students with homework issues, or Franklin’s scheduling flexibility regarding school start times for a particular student, or break times throughout the day to help students (such as Charles) de-stress and regain energy for work. It is true that Triton would not offer staff assistance in the evening. However, there is no evidence that Triton staff cannot offer assistance after school, or that Charles’ organizational needs cannot be addressed during the school day by providing him the necessary organizational supports to handle his homework in the evening. Further, there is no evidence that Charles requires a different start time or that he requires therapeutic intervention during a class. And if in fact he needed this on occasion, there is no reason why a Triton counselor cannot provide regularly-scheduled as well as as-needed therapeutic intervention. (Kneeland.) If Charles becomes overly anxious or fatigued, Triton, in fact, should and can address this. As stated by Dr. Hays, when overly anxious, Charles’ level of productivity can deteriorate. As recommended by Dr. Hays and Ms. Ritchie, he benefits from weekly counseling and as-needed counseling, consultation between his counselor and his academic teachers, and scheduling breaks during his academic day. Triton can provide for this. Finally, Triton can offer transition services to support Charles in his transition into the high school.(Carvotta, Kneeland, School Exh. 23.)

Parent has provided little to counter Triton’s position that would support Charles’ need to continue in a residential educational setting. In fact, the record is slim as to the basis for Charles’ original need for a residential placement (at Forman). Despite their awareness of the bullying and Charles’ social/emotional difficulties, neither Charles’ treating psychiatrist, Dr. Rosenn, or Charles’ neuropsychologist evaluator, Dr. Goldstein, or any other evaluator, included a residential setting as one of their recommendations for Charles. (Parent Exh. 21,22.) In fact, Dr. Rosenn specifically stated that he did not recommend a residential setting. The only support for a residential setting was an August 2004 letter from the Eagle Hill School’s Dean to Parent. Apparently, Charles had attended Eagle Hill School’s summer program and had a successful experience. In the letter, the Dean set out the benefits of a residential setting for Charles. (Parent Exh. 61.) Based on this apparently, Triton’s Team recommended a residential placement. That issue, however, is not before me. Rather, does Charles currently need a residential educational placement in order to receive FAPE? I find that he does not.

There is not a single evaluation report since the April of 2004 reports or after, calling for a residential setting. Parent relied on Charles’ history within the public school to support her position that Charles requires a residential setting, yet this argument provides little support for her claim: it was during this difficult public school experience that neither the neuropsychologist nor the treating psychiatrist recommended a residential setting. (Parent Exh. 21, 22.) The only supportive document in the record is an October of 2005 letter from Charles’ treating psychiatrist, Dr. Rosenn, wherein Dr. Rosenn makes very positive comments about Franklin providing Charles a setting addressing NLD as well as an emotionally supportive environment; he endorsed Charles’ continuing at Franklin. (Parent Exh. 25.) This is insufficient to support a claim that Charles’s difficult public school experience renders him in need of a residential educational program.

Parent also relied on the Franklin staff’s testimony to support her case. Yet, neither Dr. Hays nor Ms. Ritchie was persuasive that Charles requires a residential educational placement in order to receive FAPE. They were persuasive that Charles was benefiting from his stay at Franklin, and that he requires a nurturing setting and a structured setting, but not that he requires a residential setting. Dr. Hays was asked whether Charles could receive an appropriate education without a residential component, and he responded that Charles does not require a residential treatment program, but the residential portion of Franklin Academy is “extremely beneficial to him.” When asked if he could make appropriate progress without it, Dr. Hays answered that he could make progress, but could make more progress with it. “By definition if you think of normal skill and skill development is high on task, the fact that a residential component gives you more time on task, he can make more progress.” This testimony does not support a finding that Charles requires this most restrictive educational setting in order to receive an appropriate educational program. First, that it is “extremely beneficial” is not the same as requiring this most restrictive placement to ensure an appropriate education. And it is not sufficient evidence that he can make more progress with it as opposed to without it, particularly given Dr. Hays’ lack of information about Triton’s high school programs. Second, Dr. Hays had extreme difficulty in answering this question and several times requested further definitions of “residential” and “appropriate”. Given his answers and his difficulty in answering, his testimony is not a credible support for the position that Charles needs a residential educational placement in order to receive an appropriate education. Rather, Dr. Hays and Ms. Ritchie were persuasive that Charles would continue benefiting from counseling, helping him to better understand and address his part in any social difficulties. (Ritchie, Hays.) To the extent that Charles experiences anxiety at school, Triton’s counseling services and social skills groups are appropriate forums for addressing these concerns. (Carvotta, Scott, Kneeland.)

ORDER

Triton Public Schools shall convene a Team to develop an IEP in accordance with this decision. Given that Charles’ educational needs can be addressed within Triton’s high school, Georgetown Public Schools holds no financial responsibility for Charles’ out-of-district schooling.

The parties had agreed to bifurcate this hearing in order to establish Charles’ educational placement as soon as possible. Accordingly, by December 12, 2006, the parties shall file a status report as to any outstanding issues raised in the hearing request that require resolution.

By the Hearing Officer,

____________________________________________

Date: November 27, 2006


1

Charles S. is a pseudonym selected by the Hearing Officer to protect the privacy of the student in publicly available documents.


2

Because Charles resides in Georgetown, Massachusetts, and is a school-choice student with Triton, Triton is programmatically responsible, and Georgetown Public Schools (Georgetown) is financially responsible, for Charles’ residential special education placements.


3

34 CFR §300.7 is 34 CFR §300.8 in the newly promulgated federal regulations.


4