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COMMONWEALTH OF MASSACHUSETTS

DIVISION OF ADMINISTRATIVE LAW APPEALS

SPECIAL EDUCATION APPEALS


In Re: Student v. BSEA #12-4227

Brookline Public Schools

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 ch. 71B), the state Administrative Procedure Act (MGL ch. 30A), and the regulations promulgated under these statutes.
Parent requested a Hearing in the above-referenced matter on December 21, 2011. Following a denial of Parent’s request for reconsideration of denial of expedited status, and a request for postponement of the IDEA hearing date by Brookline Public Schools, on January 24, 2012, the matter was scheduled to proceed to Hearing in February 2012. The Hearing was held on February 15, 16 and 24, 2012, at the Bureau of Special Education Appeals, 75 Pleasant St., Malden, Massachusetts. Those present for all or part of the proceedings (in person or via telephone conference call) were:
Student’s mother

Sherry Rajaniemi-Gregg, Esq. Parent’s Attorney

Harvey Botman, Ph.D. Neuropsychologist

Mrs. X Educational Consultant/ Parent’s friend1

Karen Shmukler Out of District Coordinator, Brookline Public Schools

Kristen A. Eposito-Balboni Assistant Superintendent for Student Services, Brookline

Public Schools

Julie McDonnell Brookline Police Department

Xenia Johnson-Bhembe, MD Psychiatrist, Consultant to Brookline Public Schools

Mitch Abblettt Manville School Clinical Director

Joslin Murphy, Esq. Attorney for Brookline Public Schools

Amie Rumbo Catuogno Court Reporter
The official record of the hearing consists of documents submitted by Parent and marked as exhibits PE-1 through PE-5 and PE-7 through PE-30, and those submitted by Brookline Public Schools (Brookline) marked as exhibits SE-1 through SE-33, recorded oral testimony and written closing arguments. The Parties’ Closing Arguments were received on March 8, 2012 and the record closed on that date.

HEARING ISSUES:





  1. Whether the IEP and placement proposed by Brookline in January 2012, offering Student residential placement at the Knight Children Center, and in the alternative, at St. Ann’s Home and School, can appropriately meet Student’s needs and offers her a free and appropriate public education (FAPE). If not;

  2. Whether Student is entitled to public funding for residential placement at the Walden Street School?


POSITIONS OF THE PARTIES:
Parent’s Position:
Parent asserts that Student requires residential placement to address her educational needs as she failed to make effective progress at Manville, requiring two hospitalizations in the fall of 2011. Parent asserts that Walden Street School, the placement recommended by several of her independent evaluators and care providers, is best suited to meet Student’s unique needs. Parent most particularly relies on the results of the neuropsychological evaluation conducted by Dr. Botman and on his recommendations for Student. Parent rejects the placement offers made by Brookline, finding numerous issues which she alleges render the programs inappropriate for Student.
Additionally, Parent raises numerous procedural due process violations, most notably Brookline’s offer of two distinct placements which, according to Parent, were not discussed at the Team meeting in January 2012. Parent states that Brookline’s procedural transgressions are sufficient to assure Student/Parent their choice of program.
Parent seeks public funding for residential placement of Student at the Walden Street School.
Brookline’s Position:
Brookline agrees that Student is eligible to receive special education services. While it does not agree that Student requires long-term residential placement, it does agree that at this point she requires short-term residential placement to gain stability in order to access a FAPE.

It asserts that the program proposed for Student at the Knight Children’s Center in Jamaica Plain, Massachusetts is appropriate and argues that alternatively, the St. Ann’s Home and School located in Methuen, Massachusetts is also appropriate. It asserts that proposal of St. Ann’s Home and School was made in response to Parent’s stated displeasure with the Knight Children’s Center program which Parent and her advocate described as “too institutionalized”.
Brookline asserts that the program proposed by Parent at the Walden School, is inappropriate for Student because it lacks an appropriate social peer group, and it would fail to offer Student an appropriate academic program.
Brookline asserts that it has acted promptly and responsibly at all times and disputes the procedural transgression which Parent alleges.
FINDINGS OF FACT:


  1. Student is an eleven-year-old resident of Brookline, Massachusetts, who is eligible for special education services under the categories of Emotional and Social Pragmatics (PE-1). Over the years, she has been given numerous diagnoses including Pervasive Developmental Disorder (PDD), Asperger’s Disorder, Non-Verbal Learning Disorder, Bipolar Affective Disorder, Generalized Anxiety Disorder, and Attention Deficit Hyperactivity Disorder (ADHD) (SE-2; PE-10). She has also been diagnosed with Post-Traumatic Stress Disorder, Oppositional Defiance Disorder, Mood Disorder, Borderline Personality Disorder, and Non-verbal Learning Disabilities, although there has been disagreement between Parent, Brookline and some of the physicians and evaluators who have treated and/or assessed her with regard to the diagnosis of Borderline Personality Disorder, Bipolar Disorder, Mood Disorder and ADHD (SE-5; PE-10; Abblettt). The Parties do not dispute that Student possesses superior cognitive abilities and that her Verbal, Perceptual Reasoning, and Working Memory Indices all fall within the Superior range, with Language Processing speed falling solidly within the average range (Whelan, Botman). (According to testing completed in March 2011, Student has a Verbal IQ of 121, a Perceptual Reasoning IQ of 121, a Working Memory IQ of 120 and a Processing Speed of 94.) On the WIAT III, Student’s academic skills fell in the above average range for reading and in the average range for writing and math. She was noted to need support and assistance with social interaction skills (PE-1).




  1. The Parties agree that Student’s emotional disability impacts her social and academic functioning. She is artistically inclined, and enjoys reading, writing, drawing and learning as well as sharing her knowledge with others. Much of her positive self-image is derived from her academic and artistic achievements (SE-19; Parent, McDonnell). According to Parent, Student desires to have friends but at present has none, she also has difficulties with “transitions and can be rigid in her coping style” (SE-8).




  1. Since preschool, Student has had numerous placements which, from first grade, have included Brookline P.S., Manville (twice), Pathways, and homeschooling for at least a portion of the fourth grade. (Parent, Shmukler). Student most recently attended an out-of-district day program at the Manville School in Jamaica Plain (SE-1; Parent, Abblettt, Shmukler).




  1. Student has had several psychiatric hospitalizations resulting from incidents involving increased aggression and agitation. According to Parent, at home, Student’s mood and behavior can suddenly shift and she can physically assault Parent, step-parent or her siblings. During some of the hospitalizations Student evidenced episodes of depressed mood with crying and tearfulness (SE-5; Parent).




  1. Student had her first psychiatric hospitalization at New England Medical Center in August 2003 (SE-23).




  1. Student’s second hospitalization occurred on May 10 and lasted through May 26, 2006, while she was in Kindergarten. At that time, Parent brought Student to the emergency room at Cambridge Hospital on the advice of her out-patient psychiatrist Janet Wozniak who treated Student following her discharge from New England Medical Center (NEMC). The Discharge Summary notes a discrepancy between Parent’s description of Student in the home and the preschool, pre-Kindergarten and Kindergarten school reports. The report also notes that Dr. Wozniak did not obtain information from the schools and it was unclear whether she had reviewed the Franciscan Hospital reports either (SE-5). The Discharge Summary further notes that Student’s


irritable moods, aggressive behavior, and pressured speech have only been noted at home. They have not been observed by school [personnel] or directly observed by medical staff, not even by the Emergency Room physician who met with [Student] when she was taken to the hospital because of behavior at home that was described as manic.

[Student] demonstrated mildly depressed mood, but no delusions, no hallucinations, no pressured speech or voice, no signs of tension. The Emergency Room psychiatrist reported signs of anxiety: i.e., sign of psychomotor agitation, excessive over activity in response to inner tension, some decreased concentration. [She] was reported to scratch the EMT on the way over to Cambridge Hospital.

The only behavioral issues consistently reported by someone other than mother, are [Student’s] boundary problems and issues with people touching her. [Student] has been reported by prior doctors as showing signs of anxiety and hyper-vigilance (increased sensations to touch and sound inputs for example).

At the time of admission to the CAU [Child Assessment Unit hospitalization], [Student] was diagnosed with Child Onset Bipolar Disorder, most recent episode manic and ADHD, Combined Type and Anxiety Disorder NOS. As the rest of this report indicates our diagnostic impressions were somewhat at variance with this (SE-5).


  1. The Cambridge Hospital Child Assessment Unit (CAU) Discharge Summary states that Student was happy, calm, engaged and focused on activities and school work, integrated well with peers and responded well to staff. She slept and ate well, complied with the demands made of her and followed the rules of the unit. She did not demonstrate any signs of clinical depression, ADHD or mania, but demonstrated signs of severe anxiety for which she was diagnosed with Generalized Anxiety Disorder (SE-5). The Summary further noted that Student was observed to become more likely to be aggressive when Parent was present and further noted that the bulk of her aggressive behavior was directed at Parent. Both Student and Parent appeared to be highly reactive to each other’s “mood, level of agitation and anxiety. [Student] would lash out, [Parent] would look frightened and either physically withdraw or threaten to do so [and Student] would escalate” (SE-5; SE-6). The staff observed that when Student became agitated, if the other person remained calm and set appropriate limits, expressed concern for Student and engaged her with curiosity and expressed willingness to help her, she would de-escalate quickly (Id.). Parent indicated her interest in learning the clinical approach followed at the CAU called “Collaborative Problem Solving” based on a book by Dr. Ross Green. Student’s discharge diagnosis was: Post-traumatic Stress Disorder, Anxiety Disorder NOS and rule out Mood Disorder NOS and Bipolar Disorder. AXIS IV noted “problems with primary supports” (SE-5).




  1. On or about January/ February 2007 Student started to attend the Manville School (Manville), a private out-of-district placement supported by Brookline. This placement was intended to address Student’s issues with attention, impulsivity, verbal and physical aggression, sensory issues, poor affect regulations and difficulties in her social interaction with peers (SE-3).




  1. Student was hospitalized at Franciscan Children Hospital between August 19 and September 2, 2008, CBAT in July 2009 and had additional psychiatric hospitalizations at Cambridge Hospital in September 2008, July 2009 and at the end of September 2009 (PE-23).




  1. Parent interrupted Student’s placement at Manville in 2009 due to Parent’s concerns over difficulties between Student and peers. At Parent’s request Student was placed at Pathways in September 2009. While at Pathways Parent become concerned over Student’s difficulties with peers and how she was being physically handled (SE-1; SE-23; Parent). Parent withdrew Student from Pathways on or about October 2009 in favor of home-schooling, after she and Manville were unable to reach an agreement as to treatment modality for Student (SE-1; Abblettt).




  1. A Franciscan Children’s Hospital (FCH) Clinical Resume describes Student’s psychiatric hospitalization for the period December 21, 2009 through January 21, 2010. Student was nine years of age at the time. Her then chief complaint was that owing to home-schooling “she was spending too much time with her mother” and offered this as an explanation for the worsening of her aggressive and impulsive behaviors in the home. Student offered that she had become frustrated with Parent, had attacked her and then thrown a mirror, and also admitted physically hurting her step-father. She stated that she was not sleeping. Student was taken off Zoloft, to which she was apparently reacting, and placed on Seroquel instead. She has had numerous trials of various medications (PE-23).




  1. During her hospitalization at FCH, Student struggled with peer interactions, requiring redirection from aggressive behaviors, but did well with her individual work with staff. Individual sessions with therapists dealt with anger-management and addressed Student’s desire for and difficulties with peer relations. The treatment team noted the difficulties for Parent in home-schooling Student, and the benefits of having teachers, staff and therapists work with Student. The treatment team also noted the benefit of having peers available to Student to address her social relation issues. The team’s diagnostic impressions were Bipolar Disorder, Anxiety Disorder, Nonverbal Learning Disorder and Attention Deficit Hyperactivity Disorder. Under AXIS IV the discharge diagnosis was “Stressors related to primary supports and social and educational environments”.2 Student was discharged on the following medications: Seroquel 150 mg pot id, Lithium ER 600mg po qhs, and Centrum M V I tab po qam (PE-23).




  1. Student was home-schooled until February/ March 2010 when the clinical staff, during Student’s hospitalization, recommended that Student be enrolled in a school program (SE-1; SE-23; Parent).




  1. Upon returning to Manville in 2010, Student was placed in a class with eight other children and continued to receive her education pursuant to an IEP covering the period May 27, 2010 to May 26, 2011, fully accepted by Parent on June 4, 2010 (SE-3; SE-18; SE-24).




  1. On January 18, 25 and February 1 and 3, 2011, Miriam Pirone, M.S., CCC-SLP performed a Speech and Language Evaluation of Student. She administered the Test of Problem Solving-3 (TOPS-3) and the Clinical Evaluation of Language Fundamentals-4 (CELF-4 –Pragmatics Profile) to assess Student’s pragmatic language skills. She also assessed Student informally by administering the I LAUGH Framework
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