Hingham P.S. BSEA #10-0592
COMMONWEALTH OF MASSACHUSETTS
BUREAU OF SPECIAL EDUCATION APPEALS
In Re: Hingham Public Schools BSEA#10-0592
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 January 6, 2010 in Braintree, MA before William Crane, Hearing Officer. Those present for all or part of the proceedings were:
Student’s Mother
Jesse Quam (by telephone) Clinical Director, SUWS of the Carolinas
Alan Reiman (by telephone) Director of Business Development, Meridell
Marsha Stevens Parent’s Educational Consultant and Advocate
Jeff Bostic Psychiatric Consultant, Mass. General Hospital
Jean Curtis Loud Director of Special Education, Hingham Public Schools
Mary Joann Reedy Attorney for Hingham Public Schools
The official record of the hearing consists of documents previously submitted by Student’s mother (hereinafter referred to as “Mother” or “Parent”) and marked as exhibits P-1 through P-51, and additional documents marked as exhibits P-52 and P-53; documents previously submitted by the Hingham Public Schools (hereinafter, “Hingham”) and marked as exhibits S-1 through S-13, and additional documents (and video) marked as exhibits S-14 through S-26; and approximately one day of recorded oral testimony and argument on January 6, 2010. By agreement of the parties, written closing arguments were filed on January 25, 2010, and the record closed on that date.
INTRODUCTION
This Decision addresses the second part of a bi-furcated case. The first part of this case addressed the question of whether Hingham’s currently-proposed IEP was reasonably calculated to provide Student with a free appropriate public education (FAPE) and if not, whether Student should be placed residentially. By Decision dated September 2, 2009, I agreed with Parent that Student was entitled to a residential placement, and Hingham was ordered to place Student in a residential school.[1] In September 2009, Hingham placed Student at the Devereaux School on a residential basis.
The second part of this case, addressed through the instant Decision, considers whether Parent should be reimbursed for her unilateral residential placements of Student at SUWS of the Carolinas in North Carolina and then at Meridell Achievement Center in Texas. These placements occurred during the time period from May 24, 2008 to December 23, 2008.
ISSUES
The issues to be decided in this case are the following:
1. Was the IEP proposed by Hingham for the period May 2008 to May 2009 reasonably calculated to provide Student with FAPE in the least restrictive environment?
2. If not, did Parent’s placements of Student at SUWS of the Carolinas and the Meridell Achievement Center during this time period meet this standard?
3. If so, is Parent entitled to be reimbursed for her out-of-pocket expenses attributable to these residential educational placements?
FACTUAL BACKGROUND
Student’s profile and educational history are described in detail within my September 2, 2009 Decision, and relevant parts will only be summarized here.
Briefly stated, Student is a seventeen-year-old young man who currently resides at the Devereaux School. He has a history of volatile, impulsive, oppositional, and unsafe behaviors within school and in the community. These behaviors are attributable in whole or in large part to Student’s constellation of disabilities and, in general, are not considered to be intentional. Student has been diagnosed with Bipolar Disorder, Anxiety Disorder NOS (Not Otherwise Specified), Attention Deficit Hyperactivity Disorder, and Oppositional Defiant Behavior. Student has also been diagnosed with a learning disability, including a non-verbal learning disability. Student may also have a chronic post-traumatic stress disorder. Student is not diagnosed with a conduct disorder. Testimony of Parent, Rein, Dowd-Pizzuto; exhibits P-1, P-2, P-3, P-4, P-5, P-6, P-12, P-15, P-18, P-19, P-43.
Immediately prior to Hingham’s proposing the IEP at issue in this dispute in May 2008, Student was attending the South Shore Collaborative Careers Program. Student, who was living at home, sometimes wandered at night. On one particular occasion, after wandering all night, he arrived at school the next day, but the school building was locked because of the early hour at which Student had arrived at school. Student proceeded to break into the school building, entered a closet, and fell asleep, not waking up until 1:00 pm that afternoon. The Collaborative called the police because of Student’s having broken into the school building. Testimony of Parent; exhibit P-18.
As a result of this incident, Student was asked to leave the South Shore Collaborative. Hingham then scheduled an IEP Team meeting that occurred on May 9, 2008 for the purpose of determining Student’s new placement. Pursuant to this meeting, Hingham developed an IEP for the period from May 2008 to May 2009. The IEP continued to propose that Student be placed in a therapeutic day school, but changed the location of the placement from the South Shore Collaborative to Granite Academy. At this meeting, Parent and her educational advocate/consultant (Ms. Stevens) sought a residential educational placement, which Hingham refused, taking the position that Student did not require residential services for educational purposes. Testimony of Parent, Loud; exhibit S-8.
The Granite Academy placement lasted three days. Student was so upset about having to leave South Shore Collaborative that he was not sleeping, he was wandering the streets of Hingham at night, and he was de-compensating emotionally. Student refused to go to school. At this time, Student began spending time with a neo-Nazi group. Testimony of Parent.
On May 24, 2008, Parent unilaterally placed Student at the SUWS Wilderness Program in North Carolina. Parent testified that she made this placement because she literally feared for her son’s life if he were to continue to live at home and associate with the neo-Nazi group. On August 19, 2008, Student was discharged from SUWS, and two days later Parent unilaterally placed her son at the Meridell Achievement Center in Texas. Parent was initially able to fund Meridell through private insurance. When her insurer discontinued payments, Parent privately paid. After approximately four months at Meridell, Parent could not continue to afford sending her son to Meridell, with the result that he was discharged on December 23, 2008. Testimony of Parent; exhibit P-30.
DISCUSSION
It is not disputed that during the time period in question, Student was an individual with a disability, falling within the purview of the federal Individuals with Disabilities Education Act (hereinafter, “IDEA”)[2] and the Massachusetts special education statute.[3] My previous Decision of September 2, 2009 sets forth my understanding of the additional legal standards regarding FAPE and, in particular, standards relevant to placement at a residential school, and that analysis will not be repeated here.
At issue in this part of the case is whether Parent is entitled to reimbursement for her unilateral placement of Student into two residential programs during the time period from May 24, 2008 to December 23, 2008. The relevant, previous IEP for Student covered the period from May 2008 to May 2009.
The essential, initial question when considering Parent’s claims for reimbursement is whether Hingham’s then-current IEP was reasonably calculated to provide Student with FAPE. Parent cannot obtain reimbursement for services without first establishing that Hingham failed to propose an appropriate IEP for the relevant time period in dispute.[4]
The vantage point from which the appropriateness of the IEP is considered is central to the inquiry. An IEP is a “snapshot, not a retrospective.”[5] Accordingly, when considering the appropriateness of an IEP, Hingham’s actions are not to be “judged exclusively in hindsight.”[6] The “IEP must take into account what was, and was not, objectively reasonable when the … IEP was promulgated.”[7] This does not preclude the admission of evidence acquired after the creation of the IEP—for example, information regarding Student’s subsequent progress or further evaluation of Student—provided that the evidence is used to evaluate whether Hingham’s IEP decisions were objectively reasonable at the time they were made.[8]
The IEP that Hingham proposed as a result of the IEP Team meeting on May 9, 2008 called for placement at a private, therapeutic day school (Granite Academy). Granite Academy is established to educate students with learning and behavioral profiles similar to those of Student. Hingham proposed this placement believing that Student continued to need a small, structured, therapeutic educational environment to address appropriately his social, emotional, behavioral and learning needs, and that a residential placement was not needed for this purpose. Testimony of Loud; exhibit S-8.
Parent takes the position that Hingham’s proposed IEP was deficient in multiple respects. For example, she argues that the IEP, on its face, failed to provide appropriate goals and objectives. She also takes the position that Hingham had insufficient evaluative information to determine appropriately Student’s needs and how they should be met, that Hingham had sufficient time to obtain further, necessary evaluative information subsequent to the February 1, 2008 incident that precipitated Student’s having to leave the South Shore Collaborative but failed to do so, and that Hingham, in general, has failed to properly evaluate Student, leaving it to Parent to arrange or pay for needed evaluations and services. Parent also argues that the IEP and N-1 form did not properly reflect the fact that there was a discussion of a residential placement during the IEP Team meeting. See Parent’s Closing Argument.
Parent may be correct in some of her many criticisms of Hingham. I do not doubt, for example, that the IEP could have been better written or that Hingham needed to further evaluate Student or that Hingham could have moved more quickly to obtain a necessary psychiatric evaluation. However, a finding in Parent’s favor regarding needed re-writing of certain goals or objectives on the IEP will not be dispositive without further, probative evidence that such deficiencies were sufficient to make the IEP, as a whole, inappropriate. Similarly, Parent cannot prevail in her reimbursement claim simply by establishing that Hingham did not follow appropriate evaluation procedures unless those procedural deficiencies can be shown to have caused the IEP to be inappropriate.
Ultimately, for purposes of her reimbursement claim, Parent must provide sufficient, probative evidence to establish that it was objectively unreasonable for Hingham to conclude that Student’s educational needs on May 9, 2008 would likely have been met appropriately by the services and placement to be provided within the therapeutic day school at Granite Academy, as set forth within the proposed IEP, or that the proposed IEP was otherwise so deficient as to deny Student FAPE. Parent has the burden of persuasion regarding this part of the case.[9]
As agreed by the parties, for purposes of this part of the case I consider all of the evidence submitted specifically for this part of the case (i.e., the reimbursement claim) as well as all of the evidence submitted for the previous part of the case (i.e., the prospective placement claim).
In my previous Decision in this case, I relied principally on the expert testimony of Student’s therapist, Richard Rein, PhD. Dr. Rein opined that Student should be placed in a therapeutic residential educational program. This expert opinion testimony was based upon Student’s success at two residential programs (at SUWS and Meridell from May 24, 2008 to December 23, 2008), Student’s consistent lack of educational success in other, less intensive educational environments (including his most recent placement at the READS Academy from January 9, 2009 to May 28, 2009), and Student’s propensity to engage in dysfunctional and potentially criminal conduct subsequent to returning to Massachusetts from Meridell, as well as a similar pattern of lack of success and dysfunctional and potentially dangerous conduct prior to being unilaterally placed at SUWS and Meridell. Testimony of Rein.
From a review of the evidentiary record and the Decision in the previous part of this case, it is not possible to know whether Dr. Rein would have concluded that, at the time of the May 9, 2008 IEP Team meeting (that is, prior to Student’s unilateral placements at SUWS and Meridell and prior to his placement at the READS Collaborative), it was objectively apparent that Student could not be appropriately educated within a therapeutic day school. No further testimony or reports by Dr. Rein were submitted in this second part of the case regarding reimbursement. For these reasons, I do not find Dr. Rein’s testimony to be probative regarding the issue of whether the May 2008 IEP was appropriate at the time that it was proposed.
The only evaluations or reports concluding (or at least inferring) that a therapeutic day placement would not be appropriate to meet Student’s educational needs were written subsequent to the IEP at issue. There are three such evaluations, each recommending residential services. Each was considered within my previous Decision in this case.
First, Sheenan Daniels, PhD, the Director of the Clinical Division of the Center for Research, Assessment, and Treatment Efficacy in North Carolina, conducted a psychological evaluation of Student in June 2008 while Student was attending the SUWS program in North Carolina. The evaluation recommended that following the SUWS placement, Student should “continue in a clinically-oriented therapeutic boarding school or residential treatment center.” This report also noted that Student’s “difficulties appear to stem from mental health or psychiatric problems rather than merely behavioral problems.” Exhibit P-3.
Second, on August 19, 2008, when Student was discharged from SUWS, the discharge report prepared by Student’s primary clinician (Jason McKeown) at SUWS stated that “Student could benefit from placement at a therapeutic residential boarding school that will allow him to work on his impulsive/reactive behaviors, learning coping skills, and address the areas of his psychological testing.” Exhibit P-30.
Third, Robert Fleming, PhD, conducted a court-ordered competency evaluation of Student on July 22, 2009 while Student was at Chauncy Hall, which is a residential treatment program funded by the Massachusetts Department of Mental Health. In addition to making a determination of competency, he opined that Student “is likely to once again decompensate if he is not placed in a therapeutic residential environment.” Exhibit P-1.
Each evaluation was written after Student had been residentially placed for a period of time, with the evaluator having the benefit of information regarding Student within that context. None of the evaluators considered Student’s educational history prior to being residentially placed in May 2008. None of the evaluators testified. I find that there is no probative evidence establishing that the recommendations in any of these reports could have been or should have been anticipated by Hingham when it developed its IEP on May 9, 2008. Accordingly, I find none of these evaluations to be probative regarding the issue of whether the May 2008 IEP was appropriate at the time that it was proposed.
The only additional, relevant evidence (in both this part and the previous part of this dispute) supporting Parent’s position regarding the alleged inappropriateness of the May 2008 IEP was the testimony of Ms. Stevens who opined that Student could only be appropriately served through residential services. Ms. Stevens made her opinion clear to Hingham during the May 9, 2008 IEP Team meeting, as well as during her testimony in each part of this dispute. Testimony of Stevens.
As noted in my previous Decision, Ms. Stevens has extensive experience in the area of special education services and placements, including evaluating students for many years. At the May 9, 2008 IEP Team meeting, she advised the Team of Student’s need for residential services. Similarly, in her testimony during this part, as well as during the previous part, of this case, Ms. Stevens made clear her expert opinion that Student cannot make effective educational progress outside of a residential, therapeutic placement. Testimony of Stevens.
As also explained in my previous Decision and as I note again here, Ms. Stevens has not, for many years, evaluated students or provided direct services, nor does she have current professional qualifications, for example, as a psychologist. Ms. Stevens has become an educational consultant and, at the same time, an advocate for parents and students with special education needs. In particular, within the present dispute, her role as advocate includes vigorously representing the interests of Parent and Student before the BSEA. In both parts of the evidentiary hearing, Ms. Stevens appeared to be testifying less as an objective expert and more as an advocate with substantial educational expertise. Testimony of Stevens; exhibit P-49 (resume). This substantially diminished the probative value of her expert testimony. As a result, I am unable to rely upon her testimony as expert opinion in support of Parent’s position that the proposed IEP, when developed, was inappropriate.
After consideration of the entire evidentiary record, I find that there was no probative evidence demonstrating that when the IEP at issue was developed on May 9, 2008, Student’s educational needs would not likely have been met appropriately by the services and placement to be provided within the therapeutic day school at Granite Academy, as set forth within the proposed IEP, or that the proposed IEP was otherwise so deficient as to deny Student FAPE.
Accordingly, I conclude that Parent has not carried her burden of persuasion regarding the appropriateness of Hingham’s May 2008 proposed IEP. Therefore, Parent is not entitled to reimbursement for her unilateral residential placements.
ORDER
Parent is not entitled to reimbursement relevant to her unilateral placement of Student at the SUWS of the Carolinas or at the Meridell Treatment Center.
By the Hearing Officer,
William Crane
Dated: February 1, 2010
COMMONWEALTH OF MASSACHUSETTS
BUREAU OF SPECIAL EDUCATION APPEALS
Footnotes
[1] In Re: Hingham Public Schools, BSEA # 10-0592 (September 2, 2009).
[2] 20 USC 1400 et seq.
[3] MGL c. 71B.
[4] A BSEA Hearing Officer may require a school district to reimburse a parent only if the Hearing Officer finds both that (1) the school district had not made FAPE available to the student in a timely manner prior to parent’s unilateral placement and (2) the private school placement was appropriate. 20 USC 1412 (a)(10)(C)(ii); Florence County Sch. Dist. Four v. Carter, 510 U.S. 7, 11-13 (1993); Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 370, 373-74 (1985); Diaz-Fonseca v. Puerto Rico, 451 F.3d 13, 31 (1st Cir. 2006).
[5] Roland M. v. Concord Sch. Comm., 910 F.2d 983, 992 (1st Cir. 1990) (internal quotations omitted).
[6] Id.
[7] Id. See also Lenn v. Portland Sch. Comm., 998 F.2d 1083, 1086 (1st Cir.1993).
[8] [Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 383 (2d Cir.2003 )](https://web2.westlaw.com/find/default.wl?rp=%2Ffind%2Fdefault.wl&vc=0&DB=506&SerialNum=2003686075&FindType=Y&ReferencePositionType=S&ReferencePosition=383&AP=&fn=top&rs=WLW7.04&mt=Federal&vr=2.0&sv=Full) (grades and test scores may qualify as objective evidence to evaluate the adequacy of an IEP that has purportedly failed to address a prior IEP's alleged shortcomings); [Roland M., 910 F.2d at 991](http://web2.westlaw.com/find/default.wl?tf=-1&serialnum=1990115878&rs=WLW9.02&referencepositiontype=S&ifm=NotSet&fn=top&sv=Full&referenceposition=991&findtype=Y&tc=-1&ordoc=2015322772&db=350&vr=2.0&rp=%2Ffind%2Fdefault.wl&mt=122) (“actual educational results are relevant to determining the efficacy of educators' policy choices”); Susan N. v. Wilson Sch. Dist ., 70 F.3d 751, 762 (3rd Cir. 1995) (“Such [after-acquired] evidence may be considered only with respect to the reasonableness of the district's decision at the time it was made.”). See also Town of Burlington v. Department of Educ. for Com. of Mass., 736 F.2d 773, 790 (1st Cir. 1984), aff’d 471 U.S. 359 (1985) (“additional evidence” submitted subsequent to the close of the administrative hearing may include expert testimony for the purpose of “bringing the court up to date on the child's progress from the time of the hearing to the trial”).
[9] See 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).