Special Education Appeals BSEA #08-7930
COMMONWEALTH OF MASSACHUSETTS
BUREAU OF SPECIAL EDUCATION APPEALS
In Re: Carlia[1] BSEA #08-7930
DECISION
This decision is issued pursuant to the Individuals with Disabilities Education Act (20 USC 1400 et seq.), Section 504 of the Rehabilitation Act of 1973 (29 USC 794), the state special education law (MGL c. 71B), the state Administrative Procedure Act (MGL c. 30A), and the regulations promulgated under these statutes.
A hearing was held on April 2, 3, and 13, 2009 in Malden, MA before William Crane, Hearing Officer. Those present for all or part of the proceedings were:
Student’s Mother
Student’s Grandfather
Support Person for Parent
Consultant Attorney to Parent[2]
Student’s Private Psychologist
Teacher, Public School District
Guidance Counselor, Public School District
School Psychologist, Public School District
Tutor, Special Education Teacher, Public School District
Principal, Public School District
Director of Pupil Personnel Services, Public School District
Superintendent, Public School District
Attorney for Public School District
The official record of the hearing consists of documents submitted by the Parent and marked as exhibits P-1 through P-83, except that exhibits P-25, P-29(a), P-51 (first three pages), P-57, P-63, P-64, P-70, P-77 through P-82 were not admitted; documents submitted by the Public School District and marked as exhibits S-1 through S-39; and approximately three days of recorded oral testimony and argument. As agreed by the parties, oral closing arguments were made on April 17, 2009, and the record closed on that date.
I. INTRODUCTION
In this dispute, a bright and highly-motivated young woman (Student) became involved with a teacher during her sophomore year (the 2006-2007 school year) at the High School. A finding of neglect against the teacher was supported, and Student was diagnosed with post traumatic stress disorder (PTSD). This case involves the question of what educational services and placement should have been proposed for Student for the summer of 2008 and the following academic year in order to appropriately respond to Student’s PTSD and secondary disabilities.
Parent sought reimbursement for her unilateral placements to out-of-state, regular education residential programs during the summer of 2008 and for the 2008-2009 school year, as well as prospective placement for the remainder of the school year. Student’s private therapist testified in support of Student’s need for these kinds of programs.
The school district defended its proposed IEP which called for summer courses or tutoring, and placement at another local public high school (with academic and counseling supports) for the 2008-2009 school year. For reasons explained below, I have concluded that the district’s proposed IEP satisfied its obligations under state and federal special education laws, as well as under Section 504 of the Rehabilitation Act.
II. ISSUES
The issues to be determined at Hearing are as follows:
* Through its proposed individualized education program (IEP) and placement for the period 7/16/08 to 6/19/09 (exhibits P-1, S-30), has the school district complied with its responsibilities regarding Student’s educational rights under state and federal special education laws and under Section 504 of the Rehabilitation Act?
* Pursuant to special education laws and Section 504, is Parent entitled to reimbursement of out-of-pocket expenses for educational services for the summer of 2008 at an enrichment program?
* Pursuant to special education laws and Section 504, is Parent entitled to reimbursement of out-of-pocket expenses for (and prospective placement at) Student’s current private placement at a private residential school?
III. SUMMARY OF THE EVIDENCE
Student’s profile, IEP, and current services
1. Student is an 18-year-old bright, engaging, and highly motivated young woman who achieved high grades, often in honors courses. She currently is repeating the 11th grade. Testimony; exhibits S-1, S-2.
1. Student has been diagnosed as having PTSD, with secondary diagnoses of depression, anxiety, and executive function weakness. As a result of these disabilities, the school district found Student eligible for protection under Section 504 of the Rehabilitation Act in October 2007 and then, in July 2008, found Student eligible for special education. The school district’s IEP proposed that Student attend a regular education public high school within another school district and called for academic support for organizational issues for 45 minutes each school day and counseling from a school psychologist for 30 minutes, three times per week. Testimony; exhibits P-23, P-24, S-22, P-1, S-30.
1. Parent, who resides within the school district, rejected the school district’s proposed placement of her daughter in a regular education public high school within another school district for the 2008-2009 school year and unilaterally placed her as a residential student at a private, regular education residential school. Parent has also arranged privately for therapy for her daughter while she attends the private school, as Parent had while Student was attending the school district high school. At the private school, Student is excelling both academically and non-academically. Parent also placed her daughter unilaterally at a summer enrichment program for three weeks during the summer of 2008. Testimony, exhibits P-48, P-49, P-50, S-36, S-37, S-38.
1. Parent seeks reimbursement from the school district for placement of her daughter at the summer enrichment program and the private school, and seeks continued placement at the private school. The school district is not currently providing any educational or other services to Student. Testimony.
2006-2007 school year (10thgrade)
1. In the fall of 2006, Student complained to Parent that she was having difficulty focusing and that school work was taking an inordinate amount of time to complete. Student believed that she likely had attention deficit disorder. In order to consider this concern, Parent privately arranged for her daughter to have a neuropsychological evaluation, which occurred on April 27, 2007. Testimony; exhibits P-21, S-1.
1. The neuropsychological evaluation found that Student’s overall intellectual abilities fell within the average range, but she possessed superior verbal skills. The evaluation found “mild” deficits with attention and organization and that these deficits could “compromise the efficiency of her task completion.” The evaluation also noted that Student “may be struggling with some degree of anxiety and depression that are causing the attention problems.” The evaluation also concluded that on the basis of a 19-point split between her verbal comprehension and perceptual reasoning skills on the WISC-IV testing, as well as teacher, Student, and Parent reports, Student likely had a “mild form” of a non-verbal learning disability affecting written expression and output skills. Exhibits P-21, S-1.
1. The evaluation report recommended that Student work with a tutor who could help Student develop her study skills. The report also proposed that Student work with an individual therapist “to further explore the sources of her anxiety and depression.” Exhibits P-21, S-1.
1. Parent did not advise the school district of the neuropsychological evaluation or of the written report of evaluation at this time because she was not seeking specialized services from the school district. Parent provided the evaluation report to the school district on June 23, 2008, as discussed below. Testimony; exhibit S-1.
1. On January 19, 2007, Student met with the principal and defended what had occurred between her and the teacher. Parent testified that as a result of this meeting, as well as a meeting between Student and the principal during the previous school year regarding an alleged sexual incident, her daughter lost trust in the ability of the school district high school staff to understand what was occurring and to respond appropriately. Testimony; exhibit P-76.
1. Parent testified that in December 2006, she learned that her daughter was spending time with a school district high school teacher outside of class. Parent further testified that in January 2007, she learned that the teacher had offered to drive her daughter to and from school. On January 18, 2007, Parent met with the school district high school principal to discuss this. The principal determined that there should be no further contact between Student and the teacher. Student’s subsequent personal statement indicates that her relationship with the teacher had been on-going at least since 10th grade. Testimony; exhibit P-76.
1. Parent arranged for her daughter to receive therapy from a private psychotherapist. Student’s initial intake meeting occurred with the private psychotherapist in June 2007, and Student began seeing private psychotherapist for therapy on a bi-weekly basis in July 2007. Testimony.
2007-2008 school year (11thgrade)
1. Parent testified that when her daughter returned to school for her 11th grade year in September 2007, her daughter was determined to end her relationship with the teacher. Parent explained that her daughter began the school year functioning well. However, on September 20, 2007, during a school assembly, another student yelled out an obscenity while Student was making her way to the podium to speak. The teacher then removed this other student from the assembly, and the other student received an after-school suspension. Testimony.
1. Parent testified that as a result of the September 20, 2007 incident, as well as what Parent and her daughter believed to be an inadequate response by the school district to this incident, her daughter viewed the school district High School as a hostile environment. Parent and Student believed that the other student had not been sufficiently disciplined for this incident, and it was also concerning to them that it was the teacher who had removed the other student from the assembly on September 20, 2007, indicating to them that the teacher was, in some ways, going to continue to be involved with Student. Parent explained that at this time, her daughter became depressed because she felt powerless regarding her situation at school—in particular, because her daughter had concluded that the principal did not believe her and because the teacher remained in the school building. Parent testified that, as a result, she sought, and obtained, a referral to a child-adolescent psychiatrist who began to treat her daughter. Testimony.
1. As part of the process of initiating treatment with child-adolescent psychiatrist, Student participated in an intake meeting. As a result of information provided by Student at the intake meeting, the intake worker filed a 51A report with the Massachusetts Department of Social Services (DSS), which is currently known as the Massachusetts Department of Children and Families. The report was filed on October 10, 2007 and was filed against the teacher and the school district High School. Parent testified that her daughter cooperated with the DSS investigation, which included a DSS interview with her daughter on October 17, 2007. Testimony of Parent; exhibit P-26.
1. On October 18, 2007 (the day after her interview with DSS), Student stopped attending school. On October 23, 2007, concerned that the teacher was still working at the High School even after the school district’s receipt of the DSS report, Parent wrote an e-mail to the principal, expressing her concern for her daughter’s well-being. In response, the principal offered to meet. Testimony of Parent; exhibit P-27. On October 26, 2007, Parent met with the principal and explained that she believed the High School to be an unsafe environment for her daughter and that her daughter would not be returning to school so long as the teacher was in the school building. Testimony; exhibits P-27(g), P-29.
1. On October 26, 2007 after the meeting (discussed above) earlier that day, Parent hand-delivered to the school district a letter dated October 25, 2007 from student’s child-adolescent psychiatrist, stating that for “mental health reasons” Student will “need to be out of her current placement” for at least four weeks. At this time, the school district staff did not know anything about Student’s mental health issues (other than the child-adolescent psychiatrist’s statement that she was going to be absent for “mental health reasons”) or how long she might need to be absent from school. Testimony; exhibits S-5, P-30(b).
1. Later that same day (October 26, 2007), the school district Superintendent called Parent to tell her that tutoring was being set up for her daughter while arrangements were being made for Student to attend another high school. The Superintendent testified that relocation to another high school was intended to be a temporary placement since it was hoped that Student would eventually be able to return to the school district High School. As of October 26, 2007, DSS had not provided the school district with its findings or conclusions regarding the 51A report filed regarding Student. Testimony; exhibit P-31.
1. In response to the October 25, 2007 letter from student’s child-adolescent psychiatrist, the school district arranged for a meeting on October 29, 2007. Parent, the principal, and the school district’s director of pupil personnel services who oversees all special education services for the school district attended the meeting. Parent testified that at this meeting, for the first time, she advised the school district that her daughter was diagnosed with PTSD. The director of pupil personnel services and the principal advised Parent that tutoring was being arranged to start later that same day. Parent testified that she requested that the tutoring not begin until a week later in order that there be sufficient time for the tutor to contact Student’s teachers and be better prepared to provide the tutoring. Tutoring began on November 5, 2007. Testimony.
1. The director of pupil personnel services testified that she believed at that time that it would be difficult for Student to return to the school district High School since this was the environment in which the trauma occurred; and therefore, at the October 29, 2007 meeting, the school district offered to place Student in a high school in another school district, at the school district’s expense. The director of pupil personnel services has significant experience working with students with a history of trauma. Parent rejected this proposal, opting instead to have her daughter return to the school district High School. Testimony.
1. The October 29, 2007 meeting with Parent, the principal, and the director of pupil personnel services was also used to discuss Student’s eligibility for Section 504 of the Rehabilitation Act. The principal was the building-based coordinator for Section 504 of the Rehabilitation Act. As a result of this meeting, the school district made a determination that Student fell under the protections of Section 504. The principal and the director of pupil personnel services had requested permission from Parent to contact Student’s medical providers in order for the school district to better understand Student’s needs. Parent denied this request. Therefore, the Section 504 eligibility determination was based upon Parent’s statements and the letter from Student’s child-adolescent psychiatrist, without additional documentation or information regarding Student’s needs. The school district’s Section 504 eligibility form indicated that because of her disability, Student would not be able to attend school and should receive five to six hours of tutoring per week. Testimony; exhibit S-6.
1. The DSS report, which is dated October 19, 2007 and which was made available to the school district at the end of October 2007, found that the allegations of neglect of Student by the teacher were supported. The DSS report explained that the teacher’s actions of trying to be Student’s “therapist” and “confidant” were inappropriate since he had not been assigned these roles in his professional capacity as a school district employee. The DSS supervisor further explained in the report that the teacher’s relationship with Student “crossed the boundary of a professional relationship and this has been damaging to this child.” The report found no confirmation of sexual abuse by the teacher. Testimony of Parent; exhibit P-26.
1. The DSS report further found that the allegations of neglect of Student by the school district High School were unsupported. The report further noted that the High School principal “acted appropriately and expediently” on behalf of the school district High School. Exhibit P-26.
1. On November 1, 2007, Parent met with the Superintendent, the principal, and the director of pupil personnel services. At Parent’s request, Student’s therapist also attended the meeting. The Superintendent testified that by the time of this meeting, the school district knew that DSS had supported the 51A report with respect to neglect by the teacher. The school district was in receipt of the child-adolescent psychiatrist ’s letter (discussed above), and therefore a principal purpose of the meeting was for the school district to learn more about Student’s situation, how long she would be absent from school, and what the school district should do to support Student in light of the DSS report of neglect. Similarly, Parent testified that she sought student’s therapist’s presence at the meeting to assist the school district staff understand the clinical aspects of Student’s absences from school. Testimony; exhibits S-10, P-33, P-34.
1. The Superintendent testified that during the meeting, the school district staff sought student’s therapist’s input and recommendations for purposes of the school district staff’s working with Student. The director of pupil personnel services and the Superintendent testified that, at the meeting, Student’s therapist explained that Student had been traumatized by her relationship with the teacher, that she had acute PTSD, that the principal concern was that Student feel safe at the school district High School, and that in order for that to occur, Student needed to know that the teacher would not be at the High School. According to the director of pupil personnel services’s and the Superintendent ’s testimony, Student’s therapist made no other recommendations as to what should occur regarding Student’s return to the High School or Student’s need to attend a different school. Testimony; exhibits S-10, P-33, P-34.
1. Parent testified that at that time, she did not want her daughter to have to go to another high school. Rather, she wanted the teacher to leave the school district High School, and then hoped that with the assistance of a Section 504 plan (which would provide tutoring and support regarding her daughter’s social and emotional issues) and other support from the school district High School staff, her daughter would be able to return to the school district High School. Parent testified that she believed that this was her daughter’s desire as well. Testimony; exhibit P-76.
1. Immediately following the November 1, 2007 meeting, the Superintendent put the teacher on leave in order to keep him out of the High School. The Superintendent’s intention was to then conduct an investigation into this matter. On November 2, 2007, Parent received a call from the Superintendent who told her that the teacher was on leave and therefore would not be at the High School. The Superintendent testified that he told Parent that all personnel issues were confidential and he could not give her any definite time limit for completing his investigation, but that he would give Parent a significant amount of advance warning in the event that the teacher were to be to be re-instated or otherwise allowed to return to the High School. Testimony; exhibit P-53(a).
1. On November 9, 2007, Parent attended a meeting at the school district High School to develop an initial Section 504 plan. As a result of this meeting, the school district developed a draft 504 plan that indicated that Student was diagnosed with PTSD, which was impacting her ability to attend school, complete academic assignments, and participate in school activities. The draft plan called for home tutoring for one hour per school day missed, first quarter grades to be determined on the basis of work completed as of November 13, 2007, assignment of a female guidance counselor with whom Student would have daily access, a plan for increasing the amount of time at school, and a pass to allow Student to leave class and see the guidance counselor at any time once Student had returned to school. Testimony; exhibit P-36.
1. As noted above, tutoring began for Student on November 5, 2007. Pursuant to Student’s Section 504 plan, tutoring continued (although not consistently) through the remainder of the school year and during the summer of 2008. At Parent’s request, a number of tutors (who had specialized knowledge regarding Student’s courses) were assigned to work with Student. Student’s principal tutor testified that the school district directed her to provide whatever tutoring she was able to provide and that Parent wanted, and that the tutoring should continue as long as needed. The tutor testified that, in general, she was available three times each week, for two hours per session, plus occasional weekends. Parent testified that her daughter received only approximately 20 to 25% of the tutoring outlined in the Section 504 plan. Testimony; exhibits P-45, P-66, P-67, P-68, P-69.
1. It was not disputed by the parties that there were many days when tutoring was not provided. The tutor testified that this occurred because there were days when Student was not available for tutoring because of a family vacation or for other reasons related to her treatment needs (for example, Parent did not follow-up for purposes of Student’s receiving tutoring when she was in a residential placement), because there were days when the tutor would come to the home for tutoring but Student was not sufficiently focused or was otherwise unable to participate in tutoring, and because of scheduling and other difficulties regarding Student’s tutors. Parent opined that the amount of tutoring actually provided her daughter was not sufficient to allow her to make effective progress at school. The tutor testified that the goal is always for a student to catch up with his or her school work through tutoring, and agreed with Parent that this goal was not achieved with Student. Nevertheless, the tutor believed that if Student had completed school work over the summer of 2008 as proposed by the school district, she would have been able to achieve academic credit for her 11th grade year at the school district High School. Testimony; exhibits P-45, P-66, P-67, P-68, P-69.
1. By e-mails dated November 2007, Parent wrote to the principal with a copy to the director of pupil personnel services, stating that after consultation with Student’s medical and therapeutic team, she hoped that Student could soon return to school. Exhibits P-52, S-10.
1. Parent’s November 2007 e-mail to the principal also inquired what information would be given to Student’s teachers to educate the teachers as to the implications (to Student) of her PTSD diagnosis. By e-mail, the principal responded to Parent, requesting that Student’s private therapist come to the school district High School (at the school district’s expense) to talk to Student’s teachers regarding PTSD. Parent declined the offer, suggesting that it would be preferable for someone to speak to staff who had no relationship with her daughter. Exhibit S-10.
1. On November 15, 2007, on advice of Student’s psychiatrist, Student returned to the High School for the first time since October 25, 2007. Later that same day, during an evening session of private therapy, Student disclosed that her relationship with the teacher had been “sexual.” Parent explained that this led to another 51A report being filed with DSS, which resulted in another DSS investigation, which led to her daughter having increased anxiety. Testimony of Parent.
1. The draft Section 504 plan, developed at the November 9, 2007 meeting, was sent to Parent on or soon after that date. On November 19, 2007, Parent sent an e-mail to the principal providing her proposed changes to the school district’s draft plan. With the exception of paragraph # 8 of Parent’s re-draft (which would have required the school district guidance counselor to receive “written direction” from Student’s therapist regarding any changes to the Section 504 plan), the school district generally accepted Parent’s proposed changes. In a response to Parent, the director of pupil personnel services explained that the school district would welcome input from Student’s therapist, but that other input would also be considered in making any changes to the 504 plan. The director of pupil personnel services suggested to Parent compromise language that would call for written communication between the school district guidance counselor and Student’s therapist regarding any changes to the 504 plan. Parent neither accepted nor rejected this suggestion. Exhibits P-37, P-38, S-10.
1. Parent testified that during this time, she attempted to determine from the Superintendent whether the teacher would return to the High School since the teacher had been placed on leave but his employment had not been terminated. She also explained that the teacher was a popular teacher and she was concerned that her daughter would be blamed for his absence. Parent sent the Superintendent an e-mail dated Thursday, November 29, 2007, expressing her daughter’s concern regarding the teacher’s possible future return to the High School. Parent sent the Superintendent another e-mail the same day and then another e-mail on Sunday, December 2, 2007, expressing additional concerns regarding her daughter, the DSS report, and any information regarding her daughter that might be shared among the school district staff. Testimony; exhibit P-53.
1. By e-mail on Monday, December 2, 2007, the Superintendent responded to Parent by suggesting that Parent call him to discuss this or to arrange to meet and discuss these issues. The Superintendent’s e-mail noted that he had previously reviewed all of her concerns with her when they spoke on November 2, 2007 and when they met on November 13, 2007. Testimony; exhibit P-53.
1. By e-mail dated December 3, 2007 to Parent, the Superintendent requested an opportunity to meet directly with Student for purposes of his own internal investigation regarding the teacher. The Superintendent also stated in the e-mail that he would be “happy” to have Student’s therapist attend the meeting. The meeting, which occurred on January 23, 2008, is discussed separately below. Testimony; exhibit P-54.
1. Parent spoke by phone with the Superintendent on December 18, 2007. On December 19, 2007, the Superintendent sent Parent an e-mail as a follow-up to their conversation the day before. In his e-mail, the Superintendent noted that the teacher had not been at the High School since November 1, 2007. The Superintendent then stated that, as he had explained to Parent previously, he may not discuss with Parent any personnel matter, but he continued to assure Parent that she would be notified immediately if a change in the teacher’s status was anticipated and that he did not anticipate any change. The Superintendent further stated that he, the director of pupil personnel services, and the principal “remain confident that [Student] may return to [school] with permission of her doctor.” Exhibit P-39.
1. On January 1, 2008, Student sent an e-mail to the Superintendent and the principal, entitled “Call for Change”, for the purpose of explaining her perspective regarding what had happened to her at the High School and what actions the High School should now take in response. The e-mail from Student was received by many of the school district staff. Testimony; exhibit P-76.
1. Student’s “Call for Change” e-mail message began with a general overview of the problem of sexual abuse within the public education system in the United States, explained how sexual abuse occurs within schools, described what happened to her at the school district High School, stated what should happen now in response to what happened to her, and finally provided general guidance regarding how one should respond to disclosure of child abuse. Exhibit P-76.
1. The part of this statement that explained what the school district should do in response to her situation stated, in part, as follows:
I am incredibly disappointed that the administrators, who are entrusted as caretakers to protect the students, lacked empathy in their response to the disclosure of the abuse. Even after the teacher was informed that the 51A against him was being supported, he remained in the classroom for 2 weeks.… More than a dozen teachers and about 50 students witnessed this teacher alone with me more than once, but it was still allowed to continue. You as administrators have a chance to make this right…. You’ve evaded my questions and disrespected my family. You have taken “out of sight, out of mind” approach as long as I am not present at school. You provide lip service in both the district and high school mission statements that each student is “provided with a safe learning environment”…. My hope is that the administration will find its moral compass and rise to the occasion of protecting the students ….
1. On January 3, 2008, Student filed with the school district a grievance regarding the manner in which it addressed the allegations against the teacher. Testimony; exhibit P-55.
1. On or about January 3, 2008, the Superintendent held a meeting with the entire school district High School faculty, during which he discussed professional boundaries, what behavior is appropriate for the school district staff, and how to respond to Student. Testimony.
1. On January 4, 2008, Student returned to school [but attended fewer than five days]. Testimony; exhibit P-51.
1. In January 2008, two consultants from the North Shore Educational Consortium provided information to the school district teachers regarding PTSD and how to respond to a student who had experienced trauma for the purpose of providing support, empathy, and a safe learning environment. The teachers raised with the consultants specific questions as to how they should respond to Student. Testimony.
1. On January 15, 2008, there was a meeting with Student, Parent, and the school district staff (including the principal and the director of pupil personnel services) to review Student’s situation, including her social and emotional needs, and how to address these needs for purposes of providing Student with any additional accommodations pursuant to the 504 plan. The meeting also considered Student’s academic standing in school and her eventual return to the school district High School. Testimony; exhibits P-42, S-9, S-10, S-11.
1. Parent testified that her daughter felt that the principal did not believe her but believed others, that the needs of others were being given priority over her needs, and that nothing was being done or planned to address Student’s concerns regarding teacher boundaries and inappropriate conduct of the teacher. Parent further testified that her daughter was subject to incidents of harassment at school, that her daughter had followed the appropriate the school district protocols, but that the problems were not addressed to her daughter’s satisfaction. Parent concluded that the school district High School was no longer a safe educational environment for her daughter. Testimony; exhibits P-56, P-60.
1. The principal testified regarding each instance of alleged harassment of Student. With respect to these incidents, he explained what was done to investigate the allegations (except where Parent specifically requested that it not be investigated), whether the investigation substantiated Student’s concerns, and what, if any, discipline occurred as a result. The principal testified that, in his opinion, each incident of alleged harassment was addressed appropriately by the school district. Testimony.
1. The school district guidance counselor testified that she followed up with regard to Student’s concern that during an English class discussion regarding a book in which trauma occurred, another student had made a comment relative to the book but that the comment was also directed at her. The guidance counselor discussed this concern with the other student, who denied any intent to have made a comment that referred to Student. Student wanted to mediate this issue, but the other student declined, taking the position that she simply wanted to put this incident behind her. The guidance counselor testified that the principal followed up with respect to the other incidents of alleged harassment. Testimony.
1. On January 23, 2008, the Superintendent met with Student so that he could talk to her directly regarding his internal investigation involving the teacher. The director of pupil personnel services and Student’s therapist also attended this meeting. Student’s possible return to school was also discussed. The director of pupil personnel services and the Superintendent testified that Student’s therapist did not, during the meeting, make any suggestions or recommendations as to what should occur prior to Student’s return to school. Parent testified that, at this time, she continued to believe that the school district was not responding to address her daughter’s social and emotional issues in an appropriate manner. Testimony; exhibits P-54, P-58, P-59.
1. On January 30, 2008, Parent wrote an e-mail to the director of pupil personnel services (with a copy to the principal) asking for an update on Student’s 504 plan proposing further changes to the Section 504 plan. Parent and Student proposed a plan that would allow Student to complete 11th grade. In the e-mail, Parent indicated that her daughter “hope[d] to rejoin classes beginning with the start of the third term.” The director of pupil personnel services responded by e-mail dated January 30, 2008, indicating that Parent’s suggestions regarding grading and attendance were consistent with the existing Section 504 plan and that these items could be updated into the existing plan. On January 31, 2008, the principal (as the building 504 coordinator) responded by sending Parent a revised Section 504 plan. The school district believed that its amended Section 504 plan addressed Parent’s and Student’s concerns regarding Student’s academic credits and would allow Student to re-join school at the beginning of the third term. The school district’s proposed Section 504 plan also included a recommendation that the school district guidance counselor consult with Student’s private therapist for 15 minutes on a bi-weekly basis at the school district’s expense. The principal requested that Parent notify him if the revised plan was appropriate. Testimony; exhibits P-40, P-42, S-10, S-11, S-12.
1. On February 4, 2008, Parent responded with an e-mail message that she would not agree to verbal communication between Student’s private therapist and the school district staff. Parent proposed language in the Section 504 plan that would require the school district guidance counselor “to receive written direction” from Student’s private therapist regarding any changes to the Section 504 plan. Exhibit S-12.
1. On February 4, 2008, Parent wrote an e-mail to the Superintendent, expressing concern that some of the teacher’s personal belongings remained on his desk at the High School. On February 5, 2008, the Superintendent responded stating that “we” were not aware that personal items belonging to the teacher remained at the High School. The Superintendent stated that the principal had collected the teacher’s belongings and would return them to the teacher. Testimony; exhibit P-59.
1. February 14, 2008 was the last day that Student attended the school district High School. By this time, there was significant disagreement between Parent (and her daughter) and the school district staff regarding the appropriateness of the school district’s responses to Student’s PTSD and related difficulties. Parent and Student believed that the school district High School was not a safe environment for Student and that after many meetings and communications, the school district had not yet appropriately responded to Student’s social and emotional needs. Testimony; exhibit P-51.
1. On February 26, 2008, the school district staff received a training and workshop led by a third consultant (Dr. R, MD).[3] Dr. R provided a three-hour in-service training and planning workshop to the school district staff for the purpose of ensuring staff understood PTSD, the filing of 51A reports with DSS, and professional boundaries with Students. Dr. R also met with the school district guidance counselors to help them understand how to work with students diagnosed with PTSD. Dr. R discussed with the school district staff Student’s specific needs and how they should be met within the school environment. Testimony; exhibits P-62, S-13.
1. The principal testified that, additionally, information regarding PTSD was added to the health classes at the High School. Also, the principal testified that he met with Student’s teachers to discuss Student’s experiences at the High School. The principal further explained that he declined Parent’s suggestion that Student speak to the student body as a way of helping her address her own social and emotional needs; The principal did not believe that this would be appropriate. Testimony.
1. Parent testified that in mid-February 2008, her daughter began exhibiting unhealthy coping strategies, and the decision was made that her daughter would sign herself into a residential treatment facility, with a planned subsequent step-down to a day program. Parent explained that treatment was needed not for PTSD but for a corollary issue.[4] Parent testified that on February 18, 2008, her daughter was admitted to a residential treatment facility, where she remained until discharge on March 13, 2008. Parent advised the school district on February 19, 2008 that her daughter had been admitted to a residential treatment program. The school district offered to provide tutoring through a private organization, but Parent did not respond. Testimony; exhibits P-61, S-14.
1. Parent testified that by the time of her daughter’s discharge from the residential facility on March 13, 2008, she had made “huge strides” in addressing her trauma and was now “looking forward” in a positive way. Parent explained that immediately following her discharge from the residential facility, her daughter went to a day treatment program but only for several days, and that by the time her daughter was admitted to a different, more appropriate day treatment program three weeks later, she was determined to longer need the services of such a program. Testimony.
1. Parent testified that after her discharge from the day treatment program, her daughter initially wanted to obtain her GED and then apply to participate in City Year, but in late March or early April 2008, she changed her mind, deciding that she wanted to make plans for completing another 11th grade year and then 12th grade. Student wanted to do this within a safe academic environment where she could “minimize the damage” to her academic record and maximize her opportunities regarding admission to college. Parent explained that her daughter began researching academic programs for this purpose. By this time, Student had no intention of seeking to earn academic credit for her 11th grade year at the school district High School. Testimony.
1. Parent testified that at an executive committee meeting of the school district School Committee, she explained to the Superintendent and the principal that she was interested in having her daughter attend a private residential school and was seeking public funding from the school district for this placement. Testimony.
1. Parent testified that on May 14, 2008, she requested that school district resume tutoring of her daughter. Testimony.
1. On May 21, 2008, Parent met with the school district staff (including the Superintendent, the principal, and the director of pupil personnel services) to review and consider any adjustments to Student’s Section 504 plan. The meeting participants discussed Student’s current education status (by this time, Student had been absent from school for over three months) and how the school district would address Student’s educational needs prospectively, both during the summer of 2008 and for the 2008-2009 school year. Testimony.
1. The director of pupil personnel services’s letter to Parent, dated June 3, 2008, memorialized what the school district offered during the May 21, 2008 meeting. This letter explained that the school district had offered three possible methods (community college courses, on-line learning program, and tutoring) that could be utilized for the remaining 13 weeks between May 26, 2008 and September 1, 2008 for the purpose of Student’s obtaining course credit for her 11th grade year. (Shortly after the May 21, 2008 meeting, the school district provided Parent with detailed information regarding courses available at nearby community colleges. Exhibit S-19.) The June 3, 2008 letter further noted that Parent chose to utilize only the tutoring option, that tutoring could continue for seven weeks, and that this option would be insufficient for Student to gain course credit. The letter further advised Parent that the school district would not fund the University summer program proposed by Parent because this program was an enrichment program and not a “credit program.” Testimony; exhibits P-46, S-18, S-19, S-20.
1. As a result of the May 21, 2008 meeting, the school district sent to Parent a final, proposed Section 504 plan. This revised plan, as did the earlier Section 504 plans, indicated that Student was diagnosed with PTSD, which was impacting her ability to attend school, complete academic assignments, and participate in school activities. The draft plan called for 1) Student’s placement at a high school in another school district for her 11th and 12 grade years, 2) home tutoring for 30 minutes of instruction per course per school day missed, 3) access to female tutors, 4) tutoring to occur within the home or another mutually-agreed-upon setting, 5) identification by teachers on a weekly basis of the primary assignments that Student should complete, 6) development of a strategy for increasing the amount of time spent at school, 7) assignment of a female guidance counselor, 8) a pass to allow Student to leave class to see the guidance counselor at any time, 9) further revisions to the 504 plan as needed if requested by Parent, Student, or another member of her team, 10) permission to be released from school without consequence if Student becomes “anxious/unable to focus at school,” 11) excused absences and late arrivals to school due to Student’s on-going medical concerns, 12) modification of grades “depending upon what [Student] is able to produce at the given time,” and 13) the school district’s recommendation that there be regular contact between Student’s guidance counselor and her therapist. Testimony; exhibit S-21.
1. The school district believed that it was able generally to reach agreement with Parent and Student regarding what was included in the Section 504 plan. However, Parent was not satisfied with any of the proposed 504 plans. She believed that each of the 504 plans was insufficient to provide a safe and supportive environment for her daughter at the school district High School. Also, a continuing point of disagreement regarding the 504 plan was that Parent declined to allow the school district staff to speak with Student’s therapist. The school district continued to believe it needed to have oral communication between the therapist and the school district staff (including the guidance counselor). The school district insisted that the communication include oral communication, rather than solely in writing. Testimony.
1. The director of pupil personnel services’s letter to Parent, dated June 3, 2008 (discussed above) also reflected that the school district had previously offered (and continued through this letter to offer) Parent a psychological evaluation of Student by a third party evaluator at the school district’s expense. The director of pupil personnel services testified that she offered this evaluation because she had become concerned that Student may have serious emotional disabilities that might necessitate a therapeutic placement. The director of pupil personnel services also explained that she offered an outside evaluation, rather than one done by the school district staff, given her belief that an outside evaluation might be more acceptable to Parent in light of the difficult relationship that had developed by this time between Parent and the school district staff. The director of pupil personnel services testified that Parent declined to consent to a psychological evaluation, taking the position that her daughter did not need any additional testing. Testimony; exhibits P-46, S-18, S-20.
Proposed educational services and placement for 2008-2009 school year (12thgrade)
1. By letter dated June 9, 2008, the director of pupil personnel services advised Parent that she was making a referral of Student to special education services. The director of pupil personnel services requested that an outside neuropsychological evaluation be conducted to determine Student’s need for special education and related services. The director of pupil personnel services testified that she had become concerned that although Student was very bright, she might not be able to access her education without special education and related services. For this purpose, the school district sent Parent a notice, dated June 13, 2008, proposing “a neuropsychological evaluation to be completed by a mutually-agreed upon independent evaluator.” Testimony; exhibits S-23, S-24.
1. Parent testified that on June 10, 2008, she notified the school district that its proposal for placing her daughter in a nearby public high school was not appropriate. Parent testified that at first, she did not rule out the possibility of another public high school. However, she testified that with respect to each of the other school districts being considered, her daughter knew other students attending high school there and it would be difficult for her daughter to explain to them why she was repeating 11th grade. Parent testified that she did not want her daughter to live at home since it would be difficult for her to continue her social life without having contact with her school district High School community. Parent explained her concern that putting her daughter in a situation where she would need to talk about what happened at the school district High School would be too difficult for her, likely triggering her daughter’s trauma.
1. By e-mail dated June 20, 2008, Parent advised the director of pupil personnel services that the earlier neuropsychological evaluation conducted at Parent’s expense in April 2007, together with a statement from Student’s therapist would be provided to the school district. On June 23, 2008, the school district received from Parent this evaluation, together with a letter from Student’s therapist addressed "to whom it may concern" and dated June 6, 2008 (this letter and Student’s therapist’s testimony are summarized separately below). Parent did not consent to the school district’s proposed neuropsychological evaluation. Testimony; exhibits S-1, P-2, P-3, P-21, P-23, S-22, S-25.
1. By letter dated July 1, 2008, the director of pupil personnel services wrote to Parent thanking her for the neuropsychological evaluation and for the therapist’s letter, but also noting the school district’s need for more current evaluative information. The director of pupil personnel services suggested in her letter that if Parent would not consent to a neuropsychological evaluation, at least a clinical interview with the neuropsychologist should occur in order to assist the school district with the development of an IEP or Section 504 plan. The director of pupil personnel services testified that no one from the school district had seen Student since she was last at school on February 14, 2008, and the school district felt the need for more current information regarding Student and her needs that would impact her education. Parent did not consent to this clinical interview. Testimony; exhibits P-4, S-27.
1. In anticipation of the IEP Team meeting, the director of pupil personnel services wrote an e-mail dated June 19, 2008 to Parent, explaining that the school district would like to have Student’s private therapist attend the up-coming IEP Team meeting at the school district’s expense. Parent wrote an e-mail to the director of pupil personnel services dated July 15, 2008 stating that the therapist would not be able to attend the Team meeting, and Parent had therefore invited Student’s treating psychiatrist to attend via telephone. In July 8, 2008 letter “to whom it may concern,” Student’s therapist wrote that Student’s treating psychiatrist was part of Student’s treatment team and could provide additional information regarding Student’s psychiatric functioning. The school district and Parent made arrangements for the school district to compensate Student’s treating psychiatrist for her time. Testimony; exhibits P-5, P-6, P-7, P-20, P-24.
1. On July 16, 2008, the school district held an IEP Team meeting to review Student’s disability and need for special education and related services. At the meeting, the April 2007 neuropsychological evaluation and Student’s therapist’s June 6, 2008 letter were reviewed. Student’s treating psychiatrist participated by telephone. The IEP Team determined that Student was eligible for special education and related services. The director of pupil personnel services testified (and her meeting notes reflect) and the school psychologist similarly testified that in response to repeated questions from Team members regarding Student’s needs and how to address them, Student’s treating psychiatrist explained that Student appeared to be responding well to medications but continued to demonstrate PTSD symptoms. The director of pupil personnel services’s and the school psychologist’s testimony and the director of pupil personnel services’s notes further indicated that Student’s treating psychiatrist also explained that Student could be appropriately placed in a regular education high school with school counseling, awareness and support of teachers, and outside therapy (with the outside therapy presumably being a continuation of psychotherapy from Student’s therapist or another therapist). The director of pupil personnel services testified that Student’s treating psychiatrist did not suggest any other services or limitations regarding Student’s educational services and placement. The school psychologist testified that because the school district staff had not been able to conduct any assessments on Student and had not seen Student since February 14, 2008, it was particularly important to the IEP Team members to consider the opinion of Student’s current treating psychiatrist. Testimony; exhibits P-8, P-9, S-29.
1. There was agreement among the IEP Team members that Student required a safe educational environment. The school district Team members believed that at a different high school with a different group of peers, there would be fewer triggers that might cause Student to be re-traumatized, and that with the educational and therapeutic supports discussed immediately above, another local high school would be appropriate for Student. The school district staff testified that they have had previous, positive experiences with other students switching local high schools for a similar purpose. Testimony.
1. As a result of this IEP Team meeting, the school district found Student to be eligible for special education services and proposed an IEP for the period 7/16/08 to 6/19/09. The IEP called for Student to be placed in a regular education public high school program other than the school district High School, although the actual location had not yet been determined at the time that the IEP was issued since the school district did not yet know what other school districts would be willing to accept Student. The services to be provided pursuant to the IEP included the following direct services to Student: social/emotional services from a school psychologist for 30 minutes, three times per week; and academic support for 45 minutes each school day. The academic support was for the purpose of helping Student organize and prioritize her school work. The IEP also included consultant services from the school psychologist for 30 minutes, once per week. The IEP also called for extended year (or summer) services although the IEP itself did not specify the actual services offered. Testimony; exhibits P-1, P-13, S-30, S-31.
1. The director of pupil personnel services testified that her letter to Parent, dated June 3, 2008 and discussed above, set forth the school district’s proposed options for summer services, including tutoring for seven weeks and taking courses at a local community college. The director of pupil personnel services testified that many high school students take community college courses and that, as a result, Student would have had an appropriate peer group. The school district’s proposed tutoring of Student during the summer for seven weeks (through August 2008) was provided to Student. Testimony; exhibit S-20.
1. The IEP was forwarded to Parent by correspondence dated July 22, 2008. By letter dated August 11, 2008 to the director of pupil personnel services, Parent accepted the school district’s determination of special education eligibility based upon an emotional disability and accepted the IEP Team’s determination that her daughter should not return to the school district High School since that was where her daughter experienced trauma, but Parent rejected the proposed placement at another public high school for the reasons set forth within Student’s therapist’s letter of June 6, 2008. In her letter, Parent also explained she would be placing her daughter at an out-of-state private residential school for the 2008-2009 school year, and she requested that the school district fund this placement, as well as a University summer placement that Student was then attending. Testimony; exhibits P-12, S-31, S-32.
1. By letter dated August 13, 2008 to the director of pupil personnel services, a Massachusetts Regional School District wrote that, based upon a blind referral information submitted regarding Student, it would be willing to accept Student into the 11th grade for the 2008-2009 school year. The director of pupil personnel services testified that the Regional School District had appropriate staffing to implement the school district’s proposed IEP. By letter dated August 14, 2008, the director of pupil personnel services notified Parent of the availability of a placement at the Regional School District. Testimony; exhibits P-14, S-33, S-34.
1. Parent testified that during the summer of 2008, her daughter successfully attended a University enrichment program for three weeks. She further explained that for the 2008-2009 school year, her daughter has been attending the out-of-state residential school, where she has received grades of straight “A”s and where she is also otherwise doing extremely well. She further explained that at that school, her daughter has access to counselors for purpose of addressing school issues, and is also receiving therapy privately from an outside therapist. She noted that her daughter continues to have PTSD. Testimony; exhibits P-48, P-49, P-50, S-36, S-37, S-38
1. By letter dated September 22, 2008 to the director of pupil personnel services, Parent stated: “I wish to formally rescind my parental consent to the District’s Determination of Eligibility for Special Education relative to my daughter [emphasis in original].” During Parent’s testimony at hearing, the Hearing Officer questioned Parent regarding this letter and whether she continued to want to rescind her consent for eligibility for special education. Parent testified that her daughter does not need specialized instruction and therefore, in her opinion, does not meet the eligibility standards for special education services. Rather, Parent explained that what her daughter requires (and what she has sought and continues to seek from the school district) is a safe academic environment in which her daughter can attend school. Parent testified that she believed (and continues to believe) that with therapeutic support, her daughter would likely be successful in a regular education, safe school, and if not, then her daughter could appropriately attend a therapeutic school. Testimony; exhibit S-39.
1. Student’s therapist has been providing therapy to Student since July 2007. As of the date of her testimony (April 3, 2009) she was not seeing Student on a regular basis (because Student attends the out-of-state school), but she continued to be in contact with Student and also continued to have a therapeutic relationship with her. Student’s therapist is a clinical psychologist whose specialty is anxiety disorders (which includes PTSD), and she has substantial experience working with adolescents with a diagnosis of PTSD. Testimony; exhibit P-23, P-71, S-22.
1. Student’s therapist testified at the hearing for the purpose of explaining what she wrote in her “to whom it may concern” letter of June 6, 2008. In this letter, Student’s therapist stated her opinions for the purpose of assisting in educational planning for Student. Student’s therapist testified that she was not authorized by Student to provide testimony outside of the areas addressed in her June 6, 2008 letter, and she consistently declined to give a substantive response when the question required her to go beyond the scope of her opinions stated in this letter or her subsequent letter of July 8, 2008. Testimony; exhibits P-23, P-24, S-22.
1. What follows is a summary of the June 6, 2008 letter. Each part of the letter that is summarized is followed by Student’s therapist’s testimony regarding that part of the letter.
1. Student’s therapist’s June 6, 2008 letter began by stating that Student carries a diagnosis of PTSD, with secondary diagnoses of depression, anxiety, and executive function weakness. The letter took the position that PTSD symptoms “directly relate” to the trauma that Student experienced as a result of the behavior of the school district High School teacher. Exhibits P-23, S-22.
1. Student’s therapist testified regarding the general characteristics of a PTSD diagnosis and noted that these characteristics applied to Student. She explained that PTSD occurs following an event that is traumatic—for example, where the person experiences horror or helplessness—and that results in behavioral, cognitive, and physiological symptoms. The behavioral symptoms are characterized by avoidance of what reminds the person of the trauma. The cognitive symptoms are characterized by re-experiencing the trauma—for example, flash-backs—in a manner that that is beyond the person’s control and that is intrusive. The physiological symptoms are characterized by hyper-arousal and vigilance. Trauma is defined as a serious threat to a person’s physical or emotional well-being, and sense of self. Testimony.
1. Student’s therapist testified that the treatment for PTSD depends on the type of trauma experienced. She explained that because Student experienced a kind of trauma characterized by clandestine or secret conduct with a trusted person, there are likely to be more cognitive symptoms, and the trauma is likely to be harder (and longer) to treat, in comparison to the type of trauma that occurs, for example, as a result of an automobile accident. Testimony.
1. Student’s therapist testified that a wide variety of things (including, for example, simply a word or smell) can trigger a person with PTSD to have a flash-back, to have a flight-or-fight response, or to go into a state of hyper-arousal. When a person is in a hyper-arousal state, has anxiety, or is in a fight-or-flight response, this compromises the person’s ability to learn new information and compromises memory. More specifically, when someone is in a fight-or-flight mode, it is difficult, if not impossible, to learn since the person does not feel safe. Testimony.
1. The remainder of Student’s therapist’s June 6, 2008 letter provided her recommendations regarding Student’s earning junior year credits. This part of the letter began by stating that Student “should have a peer group, level of supervision/guidance, level of academic interaction, and course choice that is similar to a high school environment.” College courses, on-line courses, and/or self-study/tutoring “would not be sufficient.” Exhibits P-23, S-22.
1. Student’s therapist clarified in her testimony that when writing the above recommendation, she was not addressing the question of what should occur during the summer of 2008 to allow Student to make up for academic work missed during her 11th grade at the school district High School. Testimony.
1. Student’s therapist’s June 6, 2008 letter next stated that “[f]rom a clinical standpoint, it would not be appropriate for [Student] to return to the school district High School as this was the site of the trauma.” Exhibits P-23, S-22.
1. Student’s therapist testified that if the teacher who precipitated Student’s PTSD were at the school district High School, it would not be possible for Student to attend this school. In addition, even with this teacher no longer present at the school district High School, there could be triggers for Student at this school, making it difficult for Student to attend this school at least through the 2008-2009 school year. Testimony.
1. Student’s therapist’s June 6, 2008 letter next stated that “[Student’s] PTSD continues to be active, and she is vulnerable to relapse in response to PTSD triggers. From [Student’s] point of view, attendance at another local high school would be very anxiety provoking, with the possibility of exposure to PTSD triggers being very high. [Student] would require intensive psychotherapy in order to attend another local public high school in the fall, given the current severity of PTSD symptoms. The level of anxiety that she would experience might make it difficult for her to succeed academically and socially, and may contribute to PTSD relapse.” Exhibits P-23, S-22.
1. Student’s therapist testified that by the term “local high school,” she intended to refer to any high school in the general geographic vicinity of the school district High School. She further explained that for Student to avoid triggers, she should not be “any where near” the school district High School. She opined that there were too many chances for a trigger to occur at another local high school, and that if Student were to attend another local high school, she would be hyper-vigilant, always being concerned about who knows about her trauma history. She also testified that if Student had attended a local high school for the 2008-2009 school year, she would have required intensive psychotherapy and would not likely have been able to keep up academically because of the time needed for treatment and the overall difficulty she would have likely encountered in attending a school within the vicinity of the school district High School. Testimony.
1. Student’s therapist’s June 6, 2008 letter next stated that “[i]t would be helpful for [Student] to attend some sort of summer academic program, to practice functioning socially and in an academic capacity again before she begins a formal high school program in the fall…. This re-entry with successive steps will give [Student] a chance to manage her anxiety at gradually increasing levels of severity while practicing adaptive coping skills. Thus, the ideal summer program would be less intense than the fall curriculum, while still providing a peer group, level of supervision/guidance, level of academic interaction and course choice that is appropriate for high school students.” Exhibits P-23, S-22.
1. Student’s therapist testified that she believed that for Student, the summer of 2008 would appropriately be a stepping-stone to have her become partially involved in academics in preparation for full involvement in the fall of 2008. She explained that it would not have been inappropriate for Student to take community college courses during the summer of 2008 for purposes of obtaining course credit for 11th grade. However, she further opined that community college courses would not have been sufficient to allow her to return to a typical school environment in the fall of 2008 since the college courses would not have replicated a high school experience that was needed to facilitate Student’s transition back to school. Testimony.
1. Student’s therapist also testified that as of the date of her testimony, Student’s PTSD was much less active than it had been, with Student having many fewer triggers than previously. Testimony.
1. Student’s therapist also wrote a July 8, 2008 letter “to whom it may concern” that was shared with the school district staff. This letter summarized Student’s diagnostic profile. Exhibit P-24.
IV. DISCUSSION
A. State and Federal Special Education Law
It is not disputed that Student is an individual with a disability, and that at least through September 22, 2008 (the date of Parent’s letter rescinding consent to special education eligibility), she fell within the purview of the federal Individuals with Disabilities Education Act (hereinafter, “IDEA”)[5] and the Massachusetts special education statute.[6] Pursuant to the IDEA and state special education statute, Student was entitled to receive a free appropriate public education (FAPE) in the least restrictive environment.[7]
The Supreme Court has explained that under the federal statute, FAPE is intended to require special education services that provide a "basic floor of opportunity" to a disabled student,[8] allowing the student to access public education.[9] Access must be meaningful,[10] but need not maximize a student’s educational potential.[11]
Student’s right to FAPE is assured through the development and implementation of her IEP.[12] The IEP must be custom tailored to meet her “unique” needs so that she will receive sufficient educational benefit.[13]
The Supreme Court has made clear that the IEP must be "reasonably calculated" to address Student’s educational needs.[14] Utilization of the phrase “reasonably calculated” is intended to convey that the school district’s proposed IEP must be objectively reasonable (for purposes of addressing Student’s educational needs) at the time that the IEP was developed. The First Circuit Court of Appeals has further explained that an “IEP is a snapshot, not a retrospective” with the result that the appropriateness of the IEP is not to be “judged exclusively in hindsight.” The First Circuit then explained: “In striving for ‘appropriateness,’ an IEP must take into account what was, and was not, objectively reasonable when the snapshot was taken, that is, at the time the IEP was promulgated [emphasis supplied].” [15]
If the school district failed in its obligation to offer FAPE to Student through its proposed IEP, Parent may enroll her daughter in a private school and seek retroactive reimbursement for the cost of the private school.Reimbursement may be awarded only if the Hearing Officer finds both that (1) the school district had not made a free appropriate public education available to Student in a timely manner prior to that enrollment and (2) the private school placement was appropriate.[16]
As the moving party, the school district has the burden of persuading me that its proposed IEP was appropriate.[17]
B. Section 504 of the Rehabilitation Act
It is not disputed that Student is eligible for protection under Section 504 of the Rehabilitation Act. Section 504 provides, in relevant part, as follows:
No otherwise qualified individual with a disability... shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefit of, or be subjected to discrimination under any program or activity receiving Federal financial assistance....[18]
The Supreme Court has explained the basic principle of Section 504 as providing “meaningful access to the benefit that the grantee offers”—that is, in the present dispute, to a public education.[19] When addressing this issue, usually as in the present dispute, the “ultimate question is the extent to which a grantee is required to make reasonable modifications in its programs for the needs of the handicapped.”[20] Under Section 504, an accommodation or modification is not reasonable (and therefore not required) if it would result in an undue hardship, or a fundamental or substantial alteration of the educational program.[21]
Federal regulations implementing Section 504 include a requirement that disabled children in schools receiving federal funds be provided FAPE,[22] and further state that adopting a valid IEP under federal special education law is sufficient to satisfy the Section 504 FAPE requirements in this regard.[23]
C. Appropriateness of The school district’s Proposed IEP re 2008-2009 School Year
As discussed above in part IV A of this Decision, in order to comply with state and federal special education law, the school district’s IEP must address appropriately Student’s unique educational needs. Parent’s essential point regarding her daughter’s education is her need for a safe environment within which to learn. Parent does not seek now and never has sought from the school district particular special education or related services, but rather has focused her advocacy on providing a safe learning environment for her daughter.
Parent’s expert witness (Student’s therapist) testified persuasively that a person who carries a diagnosis of PTSD (as does Student) may experience flash-backs of the earlier trauma, may have a flight-or-fight response, or may go into a state of hyper-arousal. This can result in the person not feeling safe in a particular environment, thus compromising the person’s ability to learn new information and to remember. Testimony. See Summary of the Evidence at pars. 83, 85.
The school district has never disputed Student’s need for and her right to a safe educational environment, and at the Team meeting on July 16, 2008 when the IEP at issue was developed, there was agreement among the IEP Team members that Student required a safe educational environment. Testimony.
By the time of the IEP Team meeting on July 16, 2008, Parent and the school district had agreed that the school district High School would not be a safe or appropriate educational environment for Student for at least the next school year. Student’s therapist came to this conclusion in her letter of June 6, 2008. Student’s therapist further explained in her testimony that even if the teacher were not present at the school district High School, there could be triggers for Student at this school, making it difficult for Student to attend this school at least through the 2008-2009 school year. Similarly, the director of pupil personnel services (who has significant experience working with students carrying a diagnosis of PTSD) had concluded many months earlier that it would not likely be appropriate for Student to return to the school district High School, and for this reason, she had proposed at that time that Student attend another local high school. Testimony. See Summary of the Evidence at pars. 88, 89.
In the instant dispute, the essential question is whether the IEP proposed by the school district would likely provide a safe educational environment for Student for the 2008-2009 school year. And, the central question determined by the IEP Team was whether Student could be safely placed in another local public high school (such as the Regional School District which eventually agreed to accept Student), with Student continuing to live at home; or whether, as Parent argued, Student must be allowed to attend a residential school sufficiently far from home in order for the educational environment to be safe. The school district members of the IEP Team determined that a local high school would provide a safe learning environment, and the question to be decided through the instant appeal is whether this determination was “objectively reasonable” when this decision was made on July 16, 2008.[24]
As the school psychologist and the director of pupil personnel services correctly pointed out in their testimony, by the time of the Team meeting on July 16, 2008, the school district had little current information regarding Student and her needs, other than what they had learned through Parent. Student had not attended school since February 14, 2008—some five months earlier. Parent had declined all of the school district’s attempts to evaluate or clinically interview Student for the purpose of gaining current information for the IEP Team meeting. In response to the school district’s concerns that it did not have sufficient evaluative or clinical information regarding Student, Parent provided the school district with a neuropsychological evaluation done in April 2007—some 15 months prior to the Team meeting—and S tudent’s therapist s letters “to whom it may concern” dated June 6, 2008 and July 8, 2008. See Summary of the Evidence at pars. 68, 69.
The school district specifically requested that Parent bring S tudent’s therapist to the IEP Team meeting and offered to compensate S tudent’s therapist for this purpose. Parent responded by advising the school district that S tudent’s therapist was not available but that Student’s treating psychiatrist would participate by phone and requested the school district to compensate her for this purpose, which it agreed to do. See Summary of the Evidence at par. 70.
Consequently, Student’s treating psychiatrist was the only person participating in the IEP Team who both had expertise regarding PTSD and had a current understanding of Student’s needs relevant to her PTSD diagnosis. The unrebutted testimony was that in response to several questions from the school district staff during the IEP Team meeting, Student’s treating psychiatrist explained that Student appeared to be responding well to medications, that she continued to demonstrate PTSD symptoms, and that Student could be appropriately placed in a regular education high school with school counseling, awareness and support of teachers, and outside therapy. Student’s treating psychiatrist did not suggest any other services, accommodations, or limitations regarding Student’s educational services and placement. See Summary of the Evidence at par. 71.
The IEP Team was entitled to give significant weight to the fact that S tudent’s treating psychiatrist expressed no need for Student to be placed in a residential program, such as the out-of-state school chosen by parent.
Student’s therapist’s letter dated June 6, 2008 provided the following additional information:
From [Student’s] point of view, attendance at another local high school would be very anxiety provoking, with the possibility of exposure to PTSD triggers being very high. [Student] would require intensive psychotherapy in order to attend another local public high school in the fall, given the current severity of PTSD symptoms. The level of anxiety that she would experience might make it difficult for her to succeed academically and socially, and may contribute to PTSD relapse.
This part of Student’s therapist’s letter was the only clinical or educational opinion available to the IEP Team that addressed the potential difficulties of Student’s being placed within another local public high school. The letter was vague as to whether Student would likely be able to succeed academically in a local public high school as the letter simply utilized the word “might” in this regard—see the last sentence of the above-quoted language. Similarly, the letter is unclear as to what was meant by “intensive psychotherapy” that would be needed if Student were placed in another local high school and whether, with such psychotherapy, a local public high school placement would be appropriate. In sum, the letter did not rule out a placement within another local public high school, but rather spoke to the potential challenges of doing so.
As noted above, Student’s therapist was not available to attend the IEP Team meeting to clarify the intention and basis of her letter of June 6, 2008, and for many months Parent had precluded the school district staff from speaking with her. See Summary of the Evidence at pars. 64, 70.
Student’s therapist’s concerns, as stated in her June 6, 2008 letter, may be viewed within the context of her participation in meetings (and Parent’s actions on advice of Student’s therapist) over the previous months. On November 1, 2007 and on one subsequent occasion, the school district was able to include Student’s therapist within its meetings regarding Student. The November 1, 2007 meeting was specifically for the purpose of considering Student’s needs in light of the supported allegations of neglect regarding the teacher. Student’s therapist attended this meeting, together with Parent, the director of pupil personnel services, the Superintendent, and the principal. By this time, Student’s therapist had been Student’s therapist for three months, she believed Student had PTSD, and she seemed well-versed in Student’s relationship with the teacher and the implications of this relationship to Student. During this and a subsequent meeting on January 23, 2008, Student’s therapist never advised that Student should not attend the school district High School or another local public high school. See Summary of the Evidence at pars. 23, 24, 49.
Instead, during the November 1, 2007 meeting and for a number of months thereafter, Parent and Student (with the apparent agreement of Student’s therapist) sought Student’s return to the school district High School, and Student did, in fact, return on several occasions. For example, by e-mail Parent wrote to the principal with a copy to the director of pupil personnel services, stating that “[f]ollowing the most recent meeting with [Student’s] medical and theraputic [sic] team we are all encouraging [Student] to return to school for some period of time this week.” Similarly, Parent wrote to the principal on the next day, stating that her daughter’s “return to school is an integral part of her treatment” and that “it is hoped that her beginning to re-establish her routines will help her improve her level of functioning.” Exhibits P-52, S-10. See Summary of the Evidence at pars. 25, 30.
Student returned to the High School on November 15, 2007 after an absence of several weeks. It was the advice of Student’s psychiatrist that prompted Student’s return. Parent testified that Student’s psychiatrist had recommended that Student attend school because the psychiatrist believed that the medications being prescribed for Student “can only do so much” and that Student must return to school where she can address her anxieties directly. Testimony. See Summary of the Evidence at par. 32.
In November 2008, the school district found Student eligible for protections under Section 504 because of her PTSD. The various draft 504 plans were intended to address Student’s academic issues regarding credit for course work during 11th grade (the 2007-2008 school year) and also Student’s social and emotional needs with respect to her return to the school district High School during that school year. Parent indicated that she was seeking S tudent’s therapist’s advice regarding Student’s 504 plan. Parent provided comments to the school district on numerous occasions. See, for example, exhibit S-10, page 41 (e-mail from Parent to the director of pupil personnel services dated January 9, 2008, indicating that Parent would be bringing a note from S tudent’s therapist indicating her agreement that Student’s tutoring may take place at the school district High School). See Summary of the Evidence at pars. 27, 33, 45, 62, 63, 64.
On January 30, 2008, Parent wrote an e-mail to the director of pupil personnel services (with a copy to the principal) indicating that her daughter “hope[d] to rejoin classes beginning with the start of the third term.” See Summary of the Evidence at par. 50.
Thus, throughout this process, Parent made clear her interest (and her daughter’s interest) in returning to the school district High School. It was not until late March or early April 2008, that Student decided, apparently for the first time, that she did not want to return to the school district High School, that she no longer wanted to try to obtain academic credit for the 2007-2008 school year, and that instead she wanted to attend school in another setting. Student began researching other academic options at this time. On April 9, 2008, Parent first advised the school district that she was interested in having her daughter attend an out-of-state residential school and was seeking public funding from the school district for this placement. See Summary of the Evidence at pars. 58, 59.
All of this evidence provides a context within which it was reasonable for the school district members of the IEP Team to conclude on July 16, 2008 that S tudent’s therapist as well as Student’s treating psychiatrist had supported Student’s return to the school district High School during the 2007-2008 school year so long as the teacher was not present. Throughout this time period, when Student’s PTSD was in an acute phase, none of Student’s clinicians appeared to be advocating for a residential placement. The implications of this position were that a public high school close to home could be an appropriate (and safe) educational environment for Student for the 2008-2009 school year. Within this context, Student’s treating psychiatrist’s advice to the IEP Team during the Team meeting strongly supported the school district’s decision to propose another local public high school for Student, and the opinions expressed in S tudent’s therapist letter of June 6, 2008 did not preclude such a placement decision.
Parent, of course, participated in the July 16, 2008 IEP Team meeting and made clear her position that her daughter required residential services, first at the University enrichment program for three weeks during the summer and then at the out-of-state residential school. However, the school district was under no obligation to provide these services on the basis of Parent’s expressed desire, no matter how strongly stated, if its proposed services of placement in a local high school were educationally appropriate.
To prevail, Parent must point to an educational basis upon which the IEP Team should have determined that Student should be placed residentially rather than at a local public high school.[25] Although Parent’s views are extremely important for purposes of IEP Team consideration and decision-making, Parent is not an expert and her views cannot substitute for an expert opinion that Student could not be appropriately educated within a local public high school. Simply stated, Parent and Student provided the school district with no such expert opinion for purposes of the IEP Team meeting in July 2008.
Parent did provide student’s therapist’s testimony at the evidentiary hearing in April 2009. In her testimony, Student’s therapist explained the bases for the opinions stated in her June 6, 2008 letter and she explained more strongly and more clearly (than was stated in her letter) her view that she would not recommend that Student attend another local public high school. However, given the history of involvement of Student’s therapist and her previous views (summarized above), it would be objectively unreasonable to conclude that the school district should have anticipated her testimony when it developed Student’s IEP. See Summary of the Evidence at pars. 24, 49.
Parent is also seeking the school district funding of Student’s prospective placement at the out-of-state residential school. When considering the school district’s prospective obligations, I may consider Student’s therapist’s testimony for purposes of determining whether the school district’s obligations have changed (and its IEP should be amended) in light of Student’s current educational needs.
When S tudent’s therapist testified on April 3, 2009, she explained that Student’s PTSD was much less active than it had been, with Student having many fewer triggers than previously. S tudent’s therapist did not further elaborate regarding Student’s then current educational needs, thus leaving it unclear whether she believed that Student currently requires a residential educational placement for educational reasons. I also note that at the time of the evidentiary hearing, S tudent’s therapist had a therapeutic relationship with Student and was in contact with her; but because Student has been going living in an out-of-state residential school and because S tudent’s therapist’s clinical practice is based in Massachusetts, there have been no recent, regular in-person therapy sessions. Testimony.
For these reasons, I find that the school district’s proposed IEP for the 2008-2009 school year was appropriate and that there is no basis upon which I may conclude that the school district must re-consider and amend its currently-proposed IEP in order to address Student’s current needs for special education and related services. As a result, the school district is not required to reimburse Parent for her expenses for the out-of-state residential program, and the school district is not required to place Student at that school prospectively.
D. Appropriateness of the school district’s Proposed IEP re Summer of 2008
The IEP proposed by the school district also called for summer services. The state special education regulations utilize a regression standard to determine whether a summer program may be appropriate:
An extended year program may be identified if the student has demonstrated or is likely to demonstrate substantial regression in his or her learning skills and/or substantial difficulty in relearning such skills if an extended program is not provided.[26]
The federal special education regulations employ a FAPE standard:
(a) General. (1) Each public agency shall ensure that extended school year services are available as necessary to provide FAPE, consistent with paragraph (a)(2) of this section. (2) Extended school year services must be provided only if a child's IEP team determines, on an individual basis, in accordance with §§300.320 through 300.324, that the services are necessary for the provision of FAPE to the child.[27]
Although the school district’s proposed IEP itself did not specify the nature of the summer services, there is no dispute that the parties understood the school district to be offering Parent a choice of tutoring, on-line courses, or community college courses, all as described in a letter from the director of pupil personnel services dated June 3, 2008. Parent declined the on-line courses and community college courses, and accepted summer tutoring services which were provided. See Summary of the Evidence at pars. 62, 74.
The school district proposed summer services for the purpose of assisting Student to make up for course work missed as a result of her absences from school. It was reasonable for the school district to conclude that with appropriate summer services, Student would have the opportunity to gain full academic credit for 11th grade. Community college courses and on-line courses, which were offered by the school district, were sufficient for this purpose. See Summary of the Evidence at pars. 29, 74. Accordingly, I find that the IEP was appropriate in this regard.
However, by the date of the IEP Team meeting in July 2008, Parent and Student no longer sought to make up for course work missed as a result of Student’s absences from school. Rather Parent and Student had decided that Student would repeat 11th grade at another school. They envisioned summer services being utilized to re-integrate Student into an academic context on a gradual basis prior to starting school full-time in the fall of 2008. Parent testified that she believed that her daughter had become isolated, alienated, and lacking purpose. Thus, Parent explained that, in her opinion, her daughter needed an opportunity during the summer to have a successful academic experience with her peers, and that there was no need to use the summer to make up academic credit for 11th grade since her daughter wanted to repeat (rather than make up) her 11th grade year. Testimony.
Student’s therapist’s letter of June 6, 2008 supported this approach, for the purpose of allowing Student “to practice functioning socially and in an academic capacity again before she begins a formal high school program in the fall…. This re-entry with successive steps will give [Student] a chance to manage her anxiety at gradually increasing levels of severity while practicing adaptive coping skills. Thus, the ideal summer program would be less intense than the fall curriculum, while still providing a peer group, level of supervision/guidance, level of academic interaction and course choice that is appropriate for high school students.” Parent unilaterally placed Student in the University enrichment program for three weeks for this purpose. Testimony; exhibits P-23, S-22.
On the basis of Student’s therapist’s testimony at the evidentiary hearing, one might conclude that the school district should have offered something additional during the summer to allow Student to transition back into the academic environment in the fall of 2008. However, simply on the basis of Student’s therapist’s letter recommending that Student be given an opportunity to practice functioning socially in an academic environment, it was reasonable to conclude that summer services consisting of community college courses (where there would likely be other high school students) would allow Student to gain academic credit and, at the same time, transition gradually back into an academic environment. The school district was under no obligation to provide what Student’s therapist recommended, in her letter, as “the ideal summer program.”
The school district may not be held responsible for anticipating Student’s therapist’s subsequent testimony that went beyond her June 2008 letter. And, Parent’s opinions alone, while important, are not sufficient to establish an educational need under the IDEA for summer services offered at the University enrichment program.
For these reasons, I find that the school district’s proposed IEP was appropriate with respect to summer services. As a result, the school district is not required to reimburse Parent for her expenses for the University summer program.
E. Parent’s Refusal to Consent to the school district’s Evaluation
The IDEA provides that a reimbursement award (for a unilateral private placement that may otherwise be appropriate) may be reduced or denied on the basis of the parent’s denial of consent for an evaluation. The relevant IDEA language provides that reimbursement may be reduced or denied under the following circumstances:
if, prior to the parents' removal of the child from the public school, the public agency informed the parents, through the notice requirements described in section 1415(b)(3) of this title, of its intent to evaluate the child (including a statement of the purpose of the evaluation that was appropriate and reasonable), but the parents did not make the child available for such evaluation;....[28]
It is not disputed that the school district informed Parent of its intent to conduct a neuropsychological evaluation of Student or, in the alternative, at least a clinical interview by the neuropsychologist, and that Parent refused to provide consent. See Summary of the Evidence at pars. 66, 68, 69.
In determining whether to reduce or deny a reimbursement award, I consider the purpose of the statute and whether the purpose has been frustrated by the parent, with the result that the school district has been harmed. The statutory requirement of allowing a school district to obtain relevant testing prior to a parent’s removal of his or her child from the public schools serves the important purpose of giving the school system an opportunity, before the child is removed, to obtain expert, evaluative information regarding the student’s special education needs, determine whether a free appropriate public education can be provided in the public schools, and make any adjustments to its IEP.[29]
If a parent desires special education services, [he or she] must allow the school district to conduct its own assessments for the purpose of the school district’s determining the extent of the student’s special education needs and how those needs should be addressed. A parent cannot force a school district to rely exclusively on the parent’s own evaluations or written statements, and then obtain reimbursement because the school district did not understand the student’s needs and how they should be met.[30]
When the school district sought to evaluate Student, Student had been absent from school since February 14, 2008, with the result that the school district staff had no contact with Student from that date through the IEP Team meeting on July 16, 2008. In addition, the school district had never evaluated Student and had no current evaluative information from Parent. The most recent evaluation was an April 2007 neuropsychological evaluation conducted privately by Parent. S tudent’s therapist’s letters “to whom it may concern” were not evaluations, but rather conclusions as a result of providing therapy to Student. See Summary of the Evidence at pars. 68, 80, 95.
In her testimony, the director of pupil personnel services made clear the importance to the school district of obtaining current, evaluative information regarding Student in order that The school district would be able to carry out its responsibility under state and federal special education law (as well as Section 504) to understand Student’s disabilities and propose appropriate services and accommodations to address them. The testimony of the school district school psychologist further supported the need for additional testing. The school psychologist explained that because the previous neuropsychological testing was done 15 months prior to the July 2008 Team meeting and because student’s therapist’s June 2008 letter provided only a summary and did not include an assessment, the school district needed an updated neuropsychological evaluation, particularly for the purpose of assessing Student’s emotional needs. Testimony; exhibits P-4, P-23, S-22, S-27.
I find that by refusing consent, Parent precluded the school district from determining, for example, the extent of any emotional needs that should be addressed through a summer program such as the enrichment program at the University. Similarly, the school district was precluded from determining through its own evaluations (or even through conversations with S tudent’s therapist) the nature and extent of Student’s PTSD and to what extent another local public high school may present a risk of becoming an unsafe learning environment for Student.
For these reasons, I conclude that Parent’s refusal to consent to the school district’s evaluation eliminates any right that Parent may have to obtain reimbursement for her unilateral placements at the University enrichment program and at the out-of-state residential school.
F. Parent’s Remaining Arguments
Parent testified and argued that the school district High School was not a safe environment for Student and that after many meetings and communications, the school district never appropriately responded to Student’s social and emotional needs. Parent cited many considerations in support of her position, including the alleged incidents of harassment of Student that Parent did not believe were appropriately addressed, the uncertainty of whether the teacher would return to the High School, the perceived lack of support and trust by the principal, the general failure of the school district to communicate with the school community regarding Student’s situation (for example, Student sought to address a school assembly regarding what had happened to her but the school district refused to allow this, and the school district did not communicate generally with other students regarding this situation), and the perceived general lack of sensitivity and responsiveness to Student’s needs, such as allowing the teacher’s belongings to remain on his desk at the High School until February 4, 2008 when this was brought to the school district’s attention by Parent. All of these points are explained more fully within the Summary of the Evidence portion of this Decision.
Parent relied, in part, upon an article that was one of the hand-outs from Dr. R. The article is entitled “Communications” by Nora Carr. Exhibit P-62(e). The article addressed the question of what communication should occur when a “criminal or unsavory act” is committed by school personnel. The article recommended that leaders follow the following four-step process in such “crisis situations”:
* Say what happened in a factual and straightforward manner.
* Express empathy for any victims and for feelings or fears those impacted might have.
* Apologize and express dismay.
* Say what the district is going to do about the situation or what the next steps are.
Parent used this article to support her argument that the school district should have communicated generally with the school community regarding her daughter’s situation and should have shown greater empathy and dismay in response to Student’s trauma. More specifically, Parent believed that the teacher was a popular teacher and that many students and faculty were aware that there had been a relationship between Student and the teacher. Parent and Student were concerned that without a communication to the student body, Student would be blamed for the teacher’s continuing absences from school.[31]
The school district witnesses (particularly, the principal, the director of pupil personnel services, and the Superintendent) responded to Parent’s claims that the school district did not provide Student with a safe educational environment responsive to her social and emotional needs. In their testimony, they recited the following steps taken by the school district. First, the school district removed the teacher from the school district High School and he was not allowed to return. Second, a Section 504 plan was developed (and revised on several occasions) to address Student’s social, emotional, and academic needs. Third, the school district investigated and responded to each allegation of harassment. Fourth, the school district convened a meeting on November 1, 2007, that included Parent and Student’s therapist, for the purpose of seeking to understand Student’s clinical situation and what the school district should do in response. Fifth, the Superintendent addressed the entire school district faculty to advise the faculty regarding appropriate behavior and how to respond to Student. Sixth, the Superintendent convened a meeting with Student that included Parent and Student’s therapist, for the purpose of the Superintendent’s talking directly to Student regarding the teacher and expressing to Student the Superintendent’s empathy and concern. Seventh, the school district engaged three consultants with expertise in PTSD who advised and trained the school district staff on what steps should be taken to make the environment safe and how to respond appropriately to Student. Eighth, the director of pupil personnel services referred Student to special education, sought permission for further assessment by an outside psychologist, and convened a Team meeting in July 2008, at which Student’s psychiatrist participated, all for the purpose of the school district’s seeking to understand how to meet Student’s needs. Ninth, the school district denied Student the opportunity to explain publicly her situation at a High School assembly because the school district did not believe it to be appropriate. All of these points are explained more fully within the Summary of the Evidence portion of this Decision.
I need not resolve the general disagreement as to whether the school district staff did what was needed to provide Student a safe environment that was responsive to her social and emotional needs during the 2007-2008 school year. I reach this conclusion for two reasons. First, the instant dispute does not include any claim for compensatory relief based upon alleged failures of the school district to comply with special education laws and Section 504. The issues to be decided in this case involve only reimbursement and prospective claims related to the school district’s IEP developed in July 2008.
Second, were I to agree with Parent and Student with respect to their claims that the school district failed to respond appropriately to Student’s social and emotional needs and find that the school district did not provide a safe educational environment during the 2007-2008 school year, such a finding may have relevance to the question of whether the school district could provide, during the next school year, a safe learning environment within its own High School but has little or no bearing on the appropriateness of a placement outside of the school district High School for the next school year. At this juncture, neither party is suggesting that Student should or could be appropriately placed at the school district High School for the 2008-2009 school year.
In addition, Parent argued that the school district did not provide sufficient tutoring to allow her daughter to make effective progress during 11th grade, and that this in turn impacted the school district’s proposed IEP. The school district offered an extensive amount of tutoring. Scheduling and other difficulties of the school district staff accounted for some of the missed tutoring sessions, but for other tutoring sessions, Student was not available to participate in tutoring or Parent declined to utilize the offered tutoring—for example, because of a family vacation or Student’s placement into a residential treatment program. Testimony.
It is not possible to determine to what extent the school district bears responsibility for the limited amount of tutoring that was provided, nor is it necessary that this determination be made in order to resolve the issues in dispute since Student’s effective progress during the 2007-2008 school year has little bearing upon the location of Student’s placement for the 2008-2009 school year. I also note that the unrebutted testimony of Student’s tutor was that notwithstanding the limited amount of tutoring actually provided to Student, Student could have gained credit for 11th grade through summer courses offered by the school district and declined by Parent. See Summary of the Evidence at par. 29.
Also, Parent took the position that the school district should have taken advantage of the opportunity to communicate in writing with student’s therapist. Parent had denied the school district the opportunity to communicate orally with S tudent’s therapist. The school district insisted that the communication be oral, rather than solely in writing. The Superintendent, the director of pupil personnel services, and the guidance counselor testified persuasively that oral communication was necessary in order to meet Student’s needs at school and in order to share with S tudent’s therapist what was occurring at school. The school district staff testified that they believed that only through oral communication would there be a timely and productive flow of information, including opportunity for follow-up questions and answers, and opportunity for clarification so as to avoid any misunderstanding. Testimony. Based upon student’s therapist letters “to whom it may concern” as well as her contributions at meetings with the school district and testimony at the evidentiary hearing, I am persuaded that oral communication with student’s therapist would likely have significantly increased the school district’s understanding of Student’s needs, and that it is unlikely that the school district would have found it useful to communicate only in writing with S tudent’s therapist.
Finally, Parent argued that she (as well as the IEP Team in general) did not have an opportunity to consider a specific placement offered by the school district—for example, the Regional School District. To the extent that the school district did not comply with appropriate procedural requirements in this regard, its error was both understandable and harmless. It was understandable because at the time of the Team meeting in July 2008, the school district did not yet know which particular school districts would be willing to accept Student, and therefore its proposed IEP generally called for placement within another local public school. As soon as the school district knew what specific other school districts were available, it contacted Parent. However, by this time, Parent had rejected the proposed placement within the IEP and had made it clear for many months that she and her daughter would not accept any placement within a local high school.
The above findings and conclusions should not, in any respect, be understood as criticism of Parent’s decision to place her daughter unilaterally at the University program during the summer and then at the out-of-state residential school for the 2008-2009 school year. Throughout these proceedings before the BSEA, Parent demonstrated many times and in many ways her unyielding and uncompromising commitment to her daughter. Parent has advocated vigorously and relentlessly for what her daughter has wanted and for what she believed to be in her daughter’s best interests. Ultimately, Student made the decision herself that she wanted to transfer to a residential, academic environment where she could minimize the damage to her academic record and maximize her opportunities regarding admission to college, and that this would involve repeating 11th grade year. Parent has fully supported this decision by placing her daughter at her own expense at the enrichment program and the residential school. Every indication is that these two placements have been extremely beneficial to Student. It may well be that Parent’s decisions provided vitally important educational experiences for her daughter. Testimony; exhibits P-48, P-49, P-50, S-36, S-37, S-38.
However, as explained throughout this Decision, a parent’s choices, no matter how helpful to her son or daughter and no matter how well-intentioned, do not result in liability of the school district if the school district can demonstrate, as the school district has done in the instant dispute, that its IEP was reasonably calculated to provide appropriate services and placement.
G. Conclusions.
On July 16, 2008 when the IEP Team met to determine Student’s eligibility and services under special education laws, the school district’s proposed IEP and placement were reasonably calculated to provide Student with FAPE and therefore complied with state and federal special education laws. The IEP and placement continue to meet these standards.
By a letter to the school district dated September 22, 2008, Parent rescinded her consent to special education services, thereby terminating the school district’s obligations to provide services under the IDEA.[32]
Student continued to be eligible for protections under Section 504. By proposing an IEP that was appropriate pursuant to federal and state special education laws, the school district complied with its obligations under Section 504. See discussion at the end of part IV B above.
Because the school district’s IEP is appropriate and, in addition, because Parent declined to consent to the school district’s requests for evaluation, Parent is not entitled to reimbursement of out-of-pocket expenses for educational services paid for by Parent for the summer of 2008 at the enrichment program and at the out-of-state residential school.
ORDER
The School District’ proposed individualized education program (IEP) and placement for the period 7/16/08 to 6/19/09 (exhibits P-1, S-30) complied with its responsibilities regarding Student’s educational rights under state and federal special education laws and under Section 504 of the Rehabilitation Act.
Parent is not entitled to reimbursement of out-of-pocket expenses for educational services paid for by Parent for the summer of 2008 at the University’s enrichment program pursuant to special education laws and Section 504 of the Rehabilitation Act.
Parent is not entitled to reimbursement of out-of-pocket expenses for (nor is Parent entitled to prospective placement at) Student’s current private placement at the out-of-state residential school pursuant to special education laws and Section 504 of the Rehabilitation Act.
By the Hearing Officer,
William Crane
Dated: April 28, 2009
COMMONWEALTH OF MASSACHUSETTS
BUREAU OF SPECIAL EDUCATION APPEALS
Footnotes
[1] This decision has been edited to protect the confidentiality of the student and the student’s family.
[2] At the hearing, parent’s consultant attorney explained that she was not acting as Parent’s or Student’s attorney, but rather was serving in a consulting role to Parent. Parent always presented herself as pro se.
[3] Dr. R is a child-adolescent psychiatrist with significant experience and expertise working with adolescents with a history of trauma, she is employed at Cambridge Hospital as the director of child and adolescent psychiatry, she regularly consults to a number of public school systems, including the Somerville Public Schools, and she is a professor of child and adolescent psychiatry at Harvard Medical School. Testimony; exhibit S-13
[4] Until closing arguments, Parent declined to explain the nature of her daughter’s difficulties or to identify the treatment center to which her daughter was admitted. Essentially, Parent withdrew this issue from consideration by the school district and the Hearing Officer.
[5] 20 USC 1400 et seq.
[6] MGL c. 71B.
[7] 20 USC 1400(d)(1)(A); 20 USC 1412(a)(1)(A); MGL c. 71B, ss. 1, 2, 3.
[8] Hendrick Hudson Dist. Bd. of Educ. v. Rowley, 458 U.S. 176 , 201 & n.23 (1982).
[9] Rowley, 458 U.S. at 192 (1982) (“intent of the Act was more to open the door of public education to handicapped children on appropriate terms than to guarantee any particular level of education once inside”).
[10] Rowley, 458 U.S. at 192 (“in seeking to provide such access to public education, Congress did not impose upon the States any greater substantive educational standard than would be necessary to make such access meaningful”).
[11] Rowley, 458 U.S. at 197, n.21 (1982) (“Whatever Congress meant by an “appropriate” education, it is clear that it did not mean a potential-maximizing education.”).
[12] 20 USC 1414(d)(1)(A)(i)(I)-(III); Honig v. Doe, 484 U.S. 305, 311-12 (1988); Bd. of Educ. of the Hendrick Hudson Central Sch. Dist. v. Rowley, 458 U.S. 176, 182 (1982).
[13] 20 USC 1400(d)(1)(A) (IDEA enacted "to ensure that all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living"); 20 USC 1401(9), (29) (“free appropriate public education” encompasses “special education and related services,” including “specially designed instruction, at no cost to Parent, to meet the unique needs of a child with a disability”).
[14] Rowley, 458 US at 207.
[15] Roland M. v. Concord Sch. Comm., 910 F.2d 983, 992 (1st Cir. 1990). See also Town of Burlington v. Dep't of Educ., 736 F.2d 773, 788 (1st Cir. 1984), aff'd 471 U.S. 359 (1985)(“ultimate question for a court under the Act is whether a proposed IEP is adequate and appropriate for a particular child at a given point in time”).
[16] 20 USC 1412 (a)(10)(C)(ii); Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 370, 373-74 (1985).
[17] Schaffer v. Weast, 546 U.S. 49 , 62 (2005) (burden of persuasion in an administrative hearing challenging an IEP is placed upon the party seeking relief).
[18] 29 U.S.C.A. § 794(a), as amended by Pub.L. No. 102-569, § 102(p)(32) (1992) (changing “handicap” to “disability”).
[19] Alexander v. Choate, 469 U.S. 287, 300 (1985) (footnotes and citations omitted).
[20] Alexander , 469 U.S. at 299 n. 19.
[21] US Airways, Inc. v. Barnett, 535 U.S. 391 (2002); Dudley v. Hannaford Bros. Co., 333 F.3d 299 (1st Cir.2003);Reed v. LePage Bakeries, Inc., 244 F.3d 254, 259 (1st Cir. 2001); Garcia-Ayala v. Lederle Parenterals, Inc., 212 F.3d 638 (1st Cir. 2000).
[22] [34 C.F.R. § 104.33](http://web2.westlaw.com/find/default.wl?tf=-1&rs=WLW9.04&ifm=NotSet&fn=_top&sv=Full&docname=34CFRS104.33&tc=-1&pbc=F2440095&ordoc=2014754993&findtype=L&db=1000547&vr=2.0&rp=%2Ffind%2Fdefault.wl&mt=122).
[23] [34 C.F.R. § 104.33](http://web2.westlaw.com/find/default.wl?tf=-1&rs=WLW9.04&ifm=NotSet&fn=top&sv=Full&docname=34CFRS104.33&tc=-1&pbc=F2440095&ordoc=2014754993&findtype=L&db=1000547&vr=2.0&rp=%2Ffind%2Fdefault.wl&mt=122)(b)(2) (“Implementation of an [IEP under the IDEA] is one means of meeting” the substantive portion of the § 504 regulations' definition of FAPE); id. at [§ 104.36](http://web2.westlaw.com/find/default.wl?tf=-1&rs=WLW9.04&ifm=NotSet&fn=top&sv=Full&docname=34CFRS104.36&tc=-1&pbc=F2440095&ordoc=2014754993&findtype=L&db=1000547&vr=2.0&rp=%2Ffind%2Fdefault.wl&mt=122) (“Compliance with the procedural safeguards of section 615 of the [IDEA] is one means of meeting” the § 504 procedural requirements in [§ 104.36](http://web2.westlaw.com/find/default.wl?tf=-1&rs=WLW9.04&ifm=NotSet&fn=_top&sv=Full&docname=34CFRS104.36&tc=-1&pbc=F2440095&ordoc=2014754993&findtype=L&db=1000547&vr=2.0&rp=%2Ffind%2Fdefault.wl&mt=122)).
[24] The term “objectively reasonable” means reasonable in light of both what the school district knew at the time that the IEP was developed as well as what the school district reasonably should have known at that time. The detailed educational history recounted earlier in the instant Decision is relevant principally for the purpose of assisting a determination of what was “objectively reasonable” at the time that the school district convened an IEP Team meeting on July 16, 2008. See discussion above in part IV A of this Decision regarding the legal standard applicable to special education claims and the use of the phrase “objectively reasonable.”
[25] E.g., Lt. T.B. ex rel. N.B. v. Warwick Sch. Com., 361 F.3d 80, 83 (1st Cir. 2004) (“IDEA does not require a public school to provide what is best for a special needs child, only that it provide an IEP that is 'reasonably calculated' to provide an 'appropriate' education as defined in federal and state law.").
[26] 603 CMR 28.05(4)(d)1.
[27] 34 CFR 300.106.
[28] 20 USC 1412 (a)(10)(C)(iii)(II).
[29] Cf. Greenland School District v. Amy N., 358 F.3d 150, 160 (1st Cir. 2004) (explaining a similar purpose for the prior notice requirement within the same section of the IDEA).
[30] E.g., M.T.V. v. Dekalb County School District, 446 F.3d 1153, 1160 (11th Cir. 2006) (parents cannot force the school to rely solely on parents’ independent evaluation); Johnson by Johnson v. Duneland Sch. Corp., 92 F.3d 554, 558 (7th Cir. 1996) (school district has the right to conduct its own evaluation); Andress v. Cleveland Indep. Sch. Dist., 64 F.3d 176, 178-79 (5th Cir. 1995) (school district has the right to reevaluate a student using its own personnel); Dubois v. Connecticut State Board of Education, 727 F. 2d 44, 48 (2nd Cir. 1984) (school system may insist on evaluation by qualified professionals who are satisfactory to the school officials); Vander Malle v. Ambach, 673 F.2d 49, 53 (2nd Cir. 1982) (school is entitled to have student examined by qualified psychiatrist of their choosing).
[31] The evidentiary record did not establish how this article, relied upon by Parent, pertains to Student’s particular situation at the school district High School. On its face, the article is generally meant to apply when a criminal or other “unsavory act” occurs at school. The one example utilized by the author (an art teacher was caught as he was about to inject heroin) illustrates that the article was not written specifically for the situation of neglect or abuse of a student. Without expert testimony explaining how this article applies, if at all, to the particular facts of the present dispute, the article has minimal or no probative value. I also note that there was no expert opinion in support of Parent’s position that the school district should have followed any of the four-steps outlined in the article and quoted above. The mere fact that this article had been provided to the school district by Dr. R is not sufficient to allow a determination that a particular part of the article provides a standard with which the school district should have complied.
[32] See 20 USC 1414(a)(1)D)(ii)(III) (“If the parent of such child refuses to consent to the receipt of special education and related services, or the parent fails to respond to a request to provide such consent--(aa) the local educational agency shall not be considered to be in violation of the requirement to make available a free appropriate public education to the child for the failure to provide such child with the special education and related services for which the local educational agency requests such consent”).