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Sebastian M. et al v. King Philip Regional School District and Massachusetts Department of

March 31, 2011


The opinion of the court was delivered by: Tauro, J.


I. Introduction

Plaintiffs Sebastian*fn1 M. and his parents, Lisa M. and Michael M., bring suit against Defendants King Philip Regional School District ("King Philip") and the Massachusetts Department of Elementary and Secondary Education ("DESE") for failing to provide Sebastian with a free appropriate public education ("FAPE"). Presently at issue are Plaintiffs' Motion for Summary Judgment [#24] and Defendant King Philip's Cross Motion for Summary Judgment [#35]. For the following reasons, Plaintiff's Motion for Summary Judgment is DENIED and Defendant's Cross Motion for Summary Judgment is ALLOWED.

II. Background*fn2

Plaintiff Sebastian M. is a twenty-three-year-old man who was found eligible to receive special education services at the age of three because of developmental delays, moderate mental retardation, delays in fine and gross motor control, and express, receptive, and social language and visual perceptive deficits.*fn3 Sebastian was involved in an early intervention program and received both speech and language therapy and occupational therapy ("OT") before entering public school.*fn4

During the 1998--99 school year, Sebastian was in the sixth grade.*fn5 Pursuant to an Individualized Education Program ("IEP"),*fn6 Sebastian's placement changed from an in-district placement to a placement at the Work Lab I program of the Bi-County Educational Collaborative ("BICO").*fn7 Sebastian remained at BICO until the end of the summer of 2001.*fn8

In the fall of 2001, Sebastian's placement changed from the Work Lab I program to the Work Lab II program at the North Attleboro High School, still under the auspices of BICO.*fn9

During this time and until approximately the end of the 2004--05 school year,Seb was in the exploratory phase of [the] program[,] working at jobs on campus such as the BICO office and the BICO cafeteria. He also participated in business tours at a nursery, a few animal facilities, and a supermarket. In addition[,] people from the community came in to speak to Seb and his class about the different jobs that were available. Seb also went out into the community to the library, post office, local restaurants and businesses, attended career fairs in 2002 and 2004 and participated in job shadows, business tours and internships before participating in paid work. The purpose of the exploratory phase of the program was for BICO staff is [sic] to get an idea of what each student's stamina was and what their interests were.*fn10

In May and June of 2002, King Philip conducted a three-year evaluation of Sebastian.*fn11

The occupational therapist noted that Sebastian's range of motion and strength had improved from a diminished state to within functional limits since the last evaluation, in November 1998.*fn12

The 2002 OT evaluation also showed that Sebastian continued to have visual motor and visual spatial deficits.*fn13 Sebastian also displayed some deficits in language skills and pragmatic/social conversation skills.*fn14 Academically, "[e]ducational testing showed that [Sebastian] continued to exhibit delays in all areas."*fn15

In June 2002, the team responsible for creating Sebastian's IEPs ("the team")*fn16 met to review the evaluation and propose a new IEP for Sebastian.*fn17 The proposed IEP, which was accepted by Sebastian's parents, called for a substantially separate special education program that included speech/language therapy, OT, vocational services, and social/emotional support.*fn18

Progress reports from 2002 through 2005 showed that Sebastian was making steady progress.*fn19 But Sebastian's mother, Lisa M., did not believe these progress reports, because Sebastian "was not doing many skills independently at home."*fn20 Lisa did not, however, tell the team that she disagreed with the IEPs and indeed accepted the IEPs for the 2002--03, 2003--04, and 2004--05 school years.*fn21

During Sebastian's time at BICO, he participated in a variety of transitional and vocational programs.*fn22 During the 2003--04 school year, Sebastian moved from the exploratory phase of BICO to the community-based phase.*fn23

In May 2005, Sebastian received a three-year adaptive physical education reevaluation.*fn24

During the evaluation, Sebastian "had a difficult time with both body and spatial awareness and had very poor visual tracking."*fn25 At that time, Sebastian also received his educational three-year reevaluation, his speech and language evaluation, and his OT evaluation.*fn26 His teachers and therapists indicated that Seb was using transportation to his work sites independently and scored in the 4th grade level in word recognition and computational skills. . . . Seb could identify 39 out of 40 safety signs and although he could not give an exact definition of all the sign[s ,] he knew what to do. . . . Seb appear to have improved his ability to focus his attention and process more efficiently since the last three year reevaluation and had made slight gains in receptive language and had increased processing speed since the last reevaluation. . . . Seb demonstrated slight growth in expressive language skills and . . . he had made a two-year jump in pragmatic skills. . . . Seb had made [occupational] progress over the years, [but] . . . standardized testing of Seb's visual perceptual and motor testing were similar to results from three years ago.*fn27

On June 20, 2005, the team met to review Sebastian's evaluation results and to develop an IEP for the 2005--06 school year.*fn28 The proposed IEP maintained the quarterly vision consultation and the hour-a-week of OT and added a session of [adaptive physical education] each week, increased vocational services from 12 to 16 hours per week, increased social skills training from 45 minutes to an hour per week and greatly increased the time allocated for social communication.*fn29

On July 26, 2005, Sebastian rejected this IEP in full.*fn30 Lisa also rejected the IEP, and King Philip received the rejected IEP on August 2, 2005.*fn31 Sebastian remained in the BICO program at the North Attleboro High School.*fn32

On August 10 and August 24, 2005, the team reconvened to discuss the rejected IEP.*fn33

No resolution was reached, so Lisa retained an Advocate and the team met again on September 21, 2005.*fn34

The team met again on October 12, 2005 to review the IEP.*fn35 The team told Lisa that Sebastian was doing well in school.*fn36 Lisa told the team that she had concerns because Sebastianhad "meltdowns when he was at home during unstructured time or when there were changes to his schedule," but Lisa did not tell the team "any specifics regarding what was happening at home."*fn37 Lisa also said that she and Sebastian's father, Michael, had concerns about Sebastian's independent living skills such as shoe tying, toileting, showering, shaving, and "money management issues, functional academics, safety issues and direct safety training."*fn38 The new proposed IEP "expanded the accommodations sections, added goals in vocational and independent living skills (including shoe tying) and goals in safety and social judgment, made each goal and objective more detailed and added five hours a week in independent living skills."*fn39 The team also agreed to meet with Lisa "for scheduled monthly progress meetings and to reconvene in the fall of 2005 to discuss recommendations regarding Seb's visual needs."*fn40 King Philip did not agree, however, to explore residential programs, as Lisa and Michael had requested.*fn41

On October 19, 2005, King Philip sent Sebastian's parents the resulting IEP.*fn42 On November 29, 2005, Lisa ...

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