COMMONWEALTH OF MASSACHUSETTS
BUREAU OF SPECIAL EDUCATION APPEALS
In re: Ann1and Tewksbury Public Schools BSEA # 05-2963
DECISION
This decision is rendered pursuant to M.G.L. Chapters 30A and 71B; 20 U.S.C. §1400 et seq .; 29 U.S.C. § 794; and the regulations promulgated under each of these statutes.
A hearing in the above-entitled matter was held on March 15, 2005 at the Bureau of Special Education Appeals in Malden, MA. The record was left open for receipt of two final documents/exhibits until April 4, 2005.
Those in attendance were:
Michelle DeAngelis Director of Special Education, Tewksbury Public Schools
Cheryl Porcaro Systemwide Team Chairperson, Tewksbury Public Schools
Patrick Galligan Special Education Case Manager, Tewksbury Public Schools
Catherine Lyons Attorney for Tewksbury Public Schools
Father
Raymond Oliver Hearing Officer, Bureau of Special Education Appeals
The evidence consisted of Tewksbury Public Schools’ Exhibits labeled S-1 through S-16; Pupil’s Exhibits labeled P-1 through P-2; and approximately 2 ¼ hours of oral testimony.
HISTORY/STATEMENT OF THE CASE
Ann is an 18 year old young woman who resides with her family in Tewksbury, MA.2 She attends the Tewksbury Public Schools (TPS) where she has always been a special education student and received special education services. She is classified as an 11 th grade student and attends the Vocational Life Skills Program at Tewksbury High School (THS) under an Indidvidual Education Plan (IEP). (See testimony, Galligan; Father.)
On December 24, 2004 the principal of THS, Dr. Ferris, wrote to the Bureau of Special Education Appeals (BSEA) requesting the BSEA’s assistance regarding: 1) an unsigned IEP for Ann/non-response from Parents despite numerous letters from TPS; and 2) Ann’s non-authorized excessive absenteeism (S-5). A Notice of Hearing was sent to the parties on December 28, 2004 scheduling a hearing date for January 14, 2005. On January 5, 2005 TPS’ Attorney entered a Notice of Appearance and requested a postponement to afford the parties an opportunity to meet to discuss Ann’s absences; attempt to reconvene the Team; and attempt to schedule a mediation. Postponement was granted with an order for a status report. A status report was submitted on January 26, 2005 indicating that Parents did not participate in a January 14, 2005 meeting to discuss Ann’s absences; raising the issue of student’s age; and requesting a pre-hearing conference. On January 28, 2005 the Hearing Officer scheduled a pre-hearing conference call for February 9, 2005. Parents did not respond to the Hearing Officer’s notice and did not participate in the pre-hearing conference call. On February 9, 2005 TPS’ Attorney wrote to the Hearing Officer indicating that in addition to not participating in the conference call, Parents had not participated in a re-scheduled meeting on February 8, 2005 with TPS regarding Ann’s unexcused absences. TPS requested that a hearing be scheduled. On February 10, 2005 the Hearing Officer scheduled a hearing for March 3, 2005. No response was received from Parents or Ann until the morning of March 3, 2005 when Father called the Hearing Officer and the mediator assigned to Tewksbury stating that his car would not start and seeking to postpone the hearing. Father eventually arrived on March 3, 2005 and, via agreement of the parties: 1) a mediation was held which proved to be unsuccessful; and 2) a pre-hearing conference was held at which a hearing was scheduled for March 15, 2005 and various forms were again given to Father by TPS. The hearing took place on March 15, 2005.
PROCEDURAL NOTE
Ann is over 18 years of age. On January 14, 2005 TPS sent Parents a letter with enclosures (P-3). The letter dealt with issues concerning Ann’s unauthorized absences; her having attained the age of majority; guardianship; and consent for a 688 referral. The enclosed forms included a 688 referral form with consents to release information; and an Age of Majority and Transfer/Delegation of Rights Form delineating who would have educational decision making authority. Such forms also had been sent to Parents previously in June 2004 (P-6). Such forms were again given to Father at the pre-hearing conference on March 3, 2005. Father represented at the pre-hearing conference, off the record at the hearing, and on the record at the hearing that Ann had authorized Parents to continue to have educational decision making authority on her behalf; and that Father had sent such forms to TPS. Based upon Father’s representations, he was allowed to proceed to represent Ann’s position at this hearing. Father was twice instructed on the record by the Hearing Officer to send such executed forms to the Hearing Officer and to opposing counsel within 2 days of the conclusion of testimony and that they would be included as Parent Exhibits. Two forms were sent to the Hearing Officer and arrived at the BSEA on April 4, 2005 (with a letter of apology) thereby closing the record on that date. The forms were either dated or signed by TPS on March 3, 2005. Both forms were signed by Ann and Father on March 10, 2005. The forms included: 1) A Chapter 688 Referral Form; and 2) A Release of/Request for Special Education Information to/from TPS and the Massachusetts Department of Mental Retardation (DMR), allowing the release of/exchange of special education information between TPS and DMR. No executed Age of Majority and Transfer/Delegation of Rights Form was included.
Therefore, I have no documentation or evidence from Ann of a transfer or delegation of rights from Ann, a legal adult, of educational decision making authority to her Father or her Parents. In Massachusetts only a finding of incompetence by a court negates an adult’s legal right to make decisions on her/his own behalf and only a court may declare an adult incompetent for one or more purposes. See Rogers v. Commissioner of Department of Mental Health 390 Mass. 489, 458 NE 2d 308 (1983). Thus, absent any transfer or delegation of educational decision making authority from Ann to her Parents; and absent any court determination of Ann’s incompetency and appontment of a substitute decision maker such as via a legal guardianship; only Ann can make educational decisions on her own behalf. See BSEA #98-3946 In re: Dudley-Charlton Public Schools 4 MSER 114 (1998).
ISSUE IN DISPUTE
Does TPS’ currently proposed Individual Education Plan (IEP) for Ann in the Vocational Life Skills Program at THS appropriately address her special education needs so as to provide her with a free and appropriate public education (FAPE) in the least restrictive educational environment?
STATEMENT OF POSITIONS
TPS’s position is that its proposed IEP for Ann in the Vocational Life Skills Program at THS is appropriate to address Ann’s special education needs so as to provide her with FAPE in the least restrictive educational environment. TPS contends that Parents’ keeping Ann at home and not allowing her to attend school/her special education program is a denial of FAPE for her.
Student’s position is unknown except that she has not attended or been allowed to attend school for most of the 2004-2005 school year.
PROFILE OF STUDENT
Ann is an 18 year old young woman who has been diagnosed with a rare genetic disorder, Cohen’s Syndrome, which is characterized by cognitive impairment, microcephaly, and various other physiological anomalies (S-12). On a psychological evaluation administered in January 2004 by TPS School Psychologist Dr. Linda Hamilton (S-12) Ann, then 17 ½ years old, received the following scores on the Wechsler Adult Intelligence Scale-3 rd Edition (WAIS-III): Verbal IQ 60; Performance IQ 56; Full Scale IQ 54. These scores place Ann in the very low range and within the moderate to severe range of mental retardation. (See S-12 for complete WAIS-III scores and analysis.)
The Woodcock-Johnson Test of Cognitive Ability-3 rd Edition ( WJ-III-Cognitive) administered to Ann in November 2003 (S-13) placed her intellectual ability in the very low range in all areas tested. Ann was then 17 years 3 months old. The vast majority of Ann’s WJ-III-Cognitive scores fell with a 3-5 year old age equivalent and a pre-kindergarten grade equivalent, with a few scores reaching a 5-6 year old age equivalent and a kindergarten – 1 st grade equivalent. On the Woodcock-Johnson Test of Achievement-3 rd Edition (WJ-III- Achievement), also administered in November 2003 (S-13), the vast majority of Ann’s achievement scores fell within a 4-5 year old age equivalent and a pre-kindergarten grade equivalent, with several scores slightly below and several scores slightly above these levels. (See S-13 for complete WJ-III-Cognitive and WJ-III-Achievement scores and analysis.)
On the Wide Range Achievement Test-3 rd Edition (WRAT-III), also administered in November 2003 when Ann was 17 years 3 months old, Ann scored on a pre-school level in reading and arithmetic and a kindergarten level in spelling. (See S-14.)
On the Speech-Language Evaluation administered to Ann in November 2003 by Speech-Language Pathologist Ann Sullivan (S-16) Ann, then 17 years 3 months old, presented significantly delayed communication skills for her age and grade level, commensurate with her intellectual/cognitive abilities. Both receptive and expressive language scores fell within the 6 year old level. Also, her speech sound production was markedly impaired at all levels with less than 50% intelligibility, even with listener familiarity. (See S-16 for complete speech-language evaluation and analysis.)
On the Test of Visual Motor Skills-Revised administered by the Occupational Therapist to Ann in January 2004 when Ann was 17 years 5 months old, Ann scored at a 5.0 age equivalent. (See S-15 for complete occupational therapy report.)
SCHOOL’S PROPOSED PROGRAM
TPS proposes that Ann continue to be educated in the Vocational Life Skills Program (VLSP) at THS where she has been educated since 9 th grade. Under TPS’ proposed IEP (S-11), which covers the time period from September 2004 through June 2005, Ann would receive all of her special education and related services in the VLSP. Ann would receive daily vocational language arts; daily vocational math skills; daily vocational life skills; and daily vocational work/activities. Each of these daily periods is 84 minutes long. Ann also would receive speech-language-communications therapy for 1 hour per week from the speech-language pathologist. On an after school basis, Ann would also receive reading/academic tutoring twice per week for 45 minutes each time . Finally Ann would receive a 4 week summer program for 4 hours per day, 5 days per week. (See testimony, Galligan; De Angelis; S-11.)
The VLSP consists of 7 students, 4 girls (including Ann) and 3 boys, and 4 staff – a certified special education teacher, a classroom aide, and 2 aides for specific students. Ann is assigned a 1:1 aide. The VLSP is a program designed for students with significant educational impairments. All Students have IQ’s within the deficient/mentally retarded range. Students access the curriculum at their own, individual levels. Skill levels range from pre-kindergarten to elementary levels. Ann is not the lowest functioning child in the class. The emphasis in the VLSP is on building functional reading, math, and writing skills; social skills; Activities of Daily Living (ADL) skills; and pre-vocational skills. Students work on learning money skills, basic budgeting skills, shopping, food preparation, eating skills, and socialization skills. Students practice prevocational skills within THS such as doing laundry, working in the library, working in the copy center, supply rooms and cafeteria. Community outings include trips to the food store, post office and restaurants where students can practice a variety of skills learned in school as well as practice appropriate socialization skills interacting within their community. (See testimony, Galligan; De Angelis; S-11.)
FINDINGS AND CONCLUSIONS
It is confirmed by the evidence presented that Ann is a young woman with special education needs as defined under state and federal statutes and regulations. The evidence is also clear regarding the nature, extent, and manifestations of Ann’s special education needs. The fundamental issue in dispute is listed under ISSUE IN DISPUTE , above.
Based upon the oral testimony and written documentation introduced into evidence and a review of the applicable law, I conclude that TPS’ proposed 2004-2005 IEP for Ann in its VLSP at THS is appropriate to address Ann’s special education needs so as to provide her with FAPE in the least restrictive educational environment.
My brief analysis follows.
The evidence is uncontroverted that Ann has significantly compromised intellectual capacity. At age 18 Ann functions at approximately a 5 year old age level and a kindergarten grade level. In addition to her significant mental retardation/developmental delay cognitively and academically, she has multiple, serious speech/language/communication delays receptively, expressively, and in terms of articulation/intelligibility. She also has serious visual motor deficits. (See PROFILE OF STUDENT , above.)
From the beginning of the school year through February 18, 2005, Ann had been absent from school for a total of 66 days (S-1). Father testified that he has kept Ann at home and totally out of school since November 2004. Therefore, as of the date of this hearing, Ann had missed over 80 days of school and as of the date of this DECISION over 100 days of school. TPS has repeatedly scheduled meetings to discuss Ann’s absences, her IEP, a 688 referral, and issues regarding Ann’s age of majority, which have been repeatedly canceled by Parents. (See S-2, 3, 4, 6, 7, 8, 9, 10.)
Father testified that Ann regressed at school. He testified that Ann takes care of herself at home and does chores but that after coming home from school she would say she was a baby, was more rebellious, and refused to get into the flow of the home. Father believed she was catered to at school. Since he has kept Ann at home and worked with her 1:1 on basic academics, life skills and ADL skills he has not observed these issues. Father testified that Ann requires an out of district placement. (See testimony, Father.)
I have numerous problems with Father’s testimony. There has been no professional, educational support via testimony or exhibits: 1) regarding any inappropriateness of the VLSP; 2) regression in school; 3) justification for an out of district placement; 4) justification for Father’s refusal to allow Ann to attend school and keeping her at home. Father testified that he has presented no medical justification for not sending Ann to school/keeping her at home. Father testified that no application has been filed to home school Ann. Father testified that TPS has never been requested to fund an independent evaluation of Ann. Father testified that Ann has never applied to any special education private day schools or residential school placements. Father testified that no BSEA hearing regarding the appropriateness of Ann’s IEP/ placement has ever been requested by Ann or her Parents in the past. 688 referral forms/consent to share information with DMR were not completed for over 9 months and then only on the eve of hearing brought by TPS. I find it utterly incomprehensible that Father can testify that Ann has only 4 years of special education entitlement left and that she requires an out of district placement – and that his sole response has been to deny her the opportunity to attend her special education placement at school.
(See testimony, Father; P-1, 2; S-2, 3,4,6,7,8,9,10.)
Based upon the evidence presented, I find that the VLSP at THS provides Ann with FAPE and does so in the least restrictive educational environment of her home community, which is entirely consistent with state and federal special education law. Based upon the evidence presented (See SCHOOL’S PROPOSED PROGRAM , above), I conclude that the VLSP at THS provides Ann with a small group special education program which provides her with services in functional academic skills, ADL skills, pre-vocational skills and socialization skills appropriate to her documented functioning levels. With its 4:7 staff to student ratio, a 1:1 aide for Ann, and extended year summer programming the VLSP provides a high degree of structure and intensity which is essential for a student with Ann’s degree of cognitive deficits. I conclude that TPS’ VLSP is reasonably calculated to enable Ann to make effective educational progress, commensurate with her significant special education needs and developmental expectations, and provides Ann FAPE within the least restrictive educational environment.
Ann is 18 years of age. She is no longer legally mandated to attend school. However, her special education entitlement runs until she turns 22 years of age. Ann has serious, significant special education needs. I strongly recommend that Ann attend the VLSP at THS and appropriately utilize the rights she is entitled to under state and federal special education law. To keep her at home without appropriate special education programming and services constitutes a denial of FAPE for Ann.
By the Hearing Officer,
__________________________
Dated: April 26, 2005
Raymond A. Oliver
1
Ann is a pseudonym chosen by the Hearing Officer to protect the privacy of the Student in publicly available documents.
2
All notices have been sent to Ann individually as well as her Parents.