Abrahamson v. Hershman

• Decision Date: 24 February 1983
• Docket Number: No. 82-1201,82-1201
• Citation: 701 F.2d 223
• Parties: 9 Ed. Law Rep. 837 Daniel ABRAHAMSON, etc., Plaintiffs, Appellees, v. Corrine HERSHMAN, et al., etc., Defendants, Appellants.
• Court: U.S. Court of Appeals — First Circuit

Page 223

701 F.2d 223

9 Ed. Law Rep. 837

Daniel ABRAHAMSON, etc., Plaintiffs, Appellees, v. Corrine HERSHMAN, et al., etc., Defendants, Appellants.

No. 82-1201.

United States Court of Appeals First Circuit.

Argued Oct. 5, 1982.

Decided Feb. 24, 1983.

Barry L. Mintzer, Boston, Mass., with whom Mintzer, Stibel & Biren, Boston, Mass., was on brief, for defendants, appellants.

Thomas A. Mela, Boston, Mass., with whom Barbara B. Clurman, Boston, Mass., was on brief, for plaintiffs, appellees.

Before PECK, ^* Senior Circuit Judge, CAMPBELL and BREYER, Circuit Judges.

LEVIN H. CAMPBELL, Circuit Judge.

Daniel Abrahamson is a severely retarded 16-year-old child whose parents have brought a civil action in the United States District Court for the District of Massachusetts under the authority of the Education for All Handicapped Children Act of 1975 (the Act), 20 U.S.C. Sec. 1401 et seq. (1978). The Abrahamsons challenge the individualized educational plan (IEP) ¹ which Daniel's local school board, in Sharon, Massachusetts, proposes for him and which was upheld as sufficient by various Massachusetts reviewing agencies. Instead of day school training only, Daniel's parents seek a residential placement for him. The district court ruled that Daniel's right to a "free appropriate public education" within the meaning of the Act would not be met by the proposed IEP and ordered a residential placement. The Sharon School Committee (hereinafter Sharon), which bears the primary financial responsibility for any program provided to Daniel, has appealed. ²

I.

The district court found that Daniel has the mentality of a one- to four-year old, cannot dress, eat, go to the bathroom or otherwise care for himself unaided, and except for uttering one or two sounds, which he probably does not understand, cannot speak. He sometimes responds to simple commands like "stop," "wait," "sit down," and "stand up," but his responses are erratic and unpredictable. He does not recognize danger to himself and may step in front of traffic, move through open windows, or be burned while investigating a stove. He exhibits compulsive running behavior, although this has somewhat diminished recently. The district court ended its description of Daniel as follows:

Running is only one of many types of conduct that significantly interfere with Daniel's ability to learn. His behavior, past and present, is replete with examples that, taken together, indicate a lifelong pattern of engaging in what has been described as "manipulative attention-seeking behavior." This pattern of behavior, combined with Daniel's history of exhibiting ritualistic behavior such as obsessive sorting and stacking, supports the characterization of Daniel's mechanisms for coping as "autistic-like." These serious emotional problems, Daniel's severe mental retardation, and his educational disorders in combination make Daniel a truly "atypical child" for whom learning is extraordinarily difficult.

(Footnotes omitted.)

Daniel's medical history began in 1969, when he entered a preschool day clinic. Thereafter he attended a number of day programs until May 1975, when he entered a private residential program at the Crystal Springs School in Assonet, Massachusetts. At this time, the district court found Daniel was making little educational progress in the day program: he would not respond to his name, did not seem to understand anything at all, and had to be locked into the classroom to prevent him from running off. The March 29, 1975 IEP providing for Daniel's transfer to the program at Crystal Springs described Daniel's educational needs as follows a residential placement in an intensive, constantly maintained and individually designed program involving immediate and sustained rewards for acceptable behavior using accepted and proven techniques with the necessary staff to support an expectation of success in the establishment of basic self-help skills and academic readiness. This program should continue until such time as the skills he has acquired enable him to function in as normal a setting as possible.

Despite the satisfactory progress Daniel was making at Crystal Springs, his stay there turned out to be brief because the school was unable to ensure his safety given his running away problem. After being discharged from the Crystal Springs residential program in November 1975, Daniel temporarily attended the Crystal Springs day program until a suitable residential placement could be located. In August 1976 he was placed in accordance with the March 1975 IEP at the Spear Educational Center in Framingham, Massachusetts.

At Spear, a strict behavioral modification approach was to be used in teaching Daniel such basic skills as toileting, motor integration, expressive and receptive communication, and the ability to recognize danger. He was to receive training both day and night, with the evening "residential component" designed to reinforce what was learned during the day. Due to institutional problems, such as lack of adequate staff, however, Spear's program was unable to meet its goals for Daniel. In September 1980 Spear lost its license and at the request of the Massachusetts Department of Education (DOE), its facilities were taken over by Efficacy Research Institute (ERI). Daniel has remained at ERI throughout this litigation.

In August 1979 Sharon presented Daniel's parents with an IEP for Daniel that called for him to be placed in a special day program in the public school run by the CHARMSS collaborative. ³ The IEP provided no other plans for Daniel's education, although the director of CHARMSS told Daniel's parents that he would only be accepted in CHARMSS if a residential component could be found to supplement the day program.

Daniel's parents rejected the proposed IEP and appealed to the Massachusetts Bureau of Special Education Appeals (BSEA). The BSEA hearing officer found that Spear was an inadequate placement and that CHARMSS would provide Daniel with an appropriate education. The officer also found that Daniel required residential care, but decided that such needs were not "educational" in nature and therefore not the responsibility of the Sharon School Committee to offer. The hearing officer referred the case to the Central Interdepartmental Team, a committee representing several Massachusetts agencies serving children. ⁴ The committee was unable to reach an agreement as to which agency was responsible for providing Daniel with residential care.

Daniel's parents appealed the BSEA decision to the State Advisory Commission (SAC), an administrative board within the DOE. SAC reaffirmed the BSEA decision but also ordered that Daniel be kept at his current placement pending further appeal.

The Abrahamsons then appealed the BSEA decision to the district court under 20 U.S.C. Sec. 1415(e)(2). Sharon filed a cross-complaint against DOE's order that Sharon fund Daniel's residential placement pending appeal. On January 29, 1981 the district court issued a preliminary injunction requiring Sharon to continue paying for the placement. On February 1, 1981, the district court remanded the case to the BSEA for reconsideration in light of the interim decertification of Spear and its replacement, at the request of DOE, by ERI. On remand the hearing officer reaffirmed his earlier decision.

After the BSEA rendered its second opinion, the district court took additional evidence, hearing two experts who had not testified before the agency. On January 22, 1982 the district court issued an opinion and order. The court stated that,

The dispute in this case is not over whether CHARMSS offers an adequate day program, but rather over whether Daniel must be provided with more continual instruction and reinforcement than can be furnished in a school day in order to make educational progress.

The court reviewed the evidence and noted that Dr. Paul Touchette, an eminent education psychologist who had observed Daniel for approximately six to seven months, found that Daniel was an unusual child who needed "greater continuity and consistency of approach than is available in a day program." Dr. Touchette stated that Daniel needed round-the-clock attention in order to catch up and that Daniel's earlier placement in day programs had hurt him educationally. The district court also found that Dr. Schell, a clinical child psychologist, testified that Daniel needed a 24-hour educational program "in order to avoid regression and benefit from his training." The court additionally noted that Mr. Spague, the director of CHARMSS, affirmed that he had written to the Abrahamsons that Daniel would only be accepted at CHARMSS if a residential placement could be found because Daniel needed consistency and continuity in training in order to reinforce the skills he would be taught at CHARMSS.

On the basis of this evidence, the district court found that

[Daniel] requires a greater degree of continuity and consistency in approach and programming than can be provided ... at CHARMSS alone. If Daniel is to benefit from the strict behavior modification educational instruction he receives during the day, he must have qualified and competent people applying these behavior modification techniques and reinforcing during the evening hours the things he has been taught during the day. He requires a highly structured environment in order to learn.... [I]f this unusual child is placed in the ... CHARMSS day program, without an accompanying "residential" component in which trained staff follow through in a highly coordinated fashion with the educational training he has received in the day program, Daniel will not only fail to make educational progress; he will also very likely suffer regression.

The court found further that Daniel "would make satisfactory progress" if he were enrolled in either his current placement in the residential program at ERI or in a day program such as the one at CHARMSS along with a residential...