Attleboro Public Schools – BSEA # 06-0034



<br /> Attleboro Public Schools – BSEA # 06-0034<br />

COMMONWEALTH OF MASSACHUSETTS

BUREAU OF SPECIAL EDUCATION APPEALS

In Re: Attleboro Public Schools

BSEA # 06-0034

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.

A hearing was held on September 26, 29 and 30, 2005 in Malden, MA before William Crane, Hearing Officer. Those present for all or part of the proceedings were:

Student

Student’s Mother

Student’s Father

Mary Harten Special Education Teacher, Attleboro Public Schools

Brian Downey Assistant Dean of Students, Attleboro High School

Raymond Lamore Team Chairperson and School Psychologist, Attleboro High School

Athena Sullivan School Psychologist, Attleboro High School

Barbara Cecere Diagnostic Prescriptive Teacher, Attleboro High School

Ann Zmudsky Student Services Coordinator, Attleboro High School

Sylvia Day Director of Special Education, Attleboro Public Schools

Lawrence Mutty Admissions Director, F.L. Chamberlain School

Shelly Greene Advocate for Parents

Christina Gentile Attorney for Attleboro Public Schools

Regina Tate Observer for Attleboro Public Schools

Kathleen Yaeger Observer for Attleboro Public Schools

The official record of the hearing consists of documents submitted by the Parents and marked as exhibits P-4 through P-50 (including exhibit 10A) except that exhibit 8 is not admitted as a separate document and instead is included as an attachment to exhibit P-10; documents submitted by the Attleboro Public Schools (Attleboro) and marked as exhibits S-1 through S-37; and approximately two and one-half days of recorded oral testimony and argument. As agreed by the parties, written closing arguments were received on October 12, 2005, and the record closed on that date.

ISSUES

The issues to be decided in this case are the following:

1. Is the IEP proposed by Attleboro reasonably calculated to provide Student with a free appropriate public education in the least restrictive setting?

2. If not, can additions or other modifications be made to the IEP in order to satisfy this standard?

3. If not, would a residential placement satisfy this standard; and if so, would placement at the F.L. Chamberlain School be appropriate?

POSTION OF PARENTS

Parents’ central concern is that Student has not attended school regularly and did not attend school at all from January through June 2005 during his 10 th grade at the Attleboro High School. As a result of these attendance issues, Student is at risk of not graduating from high school.

Parents contend that Student’s absenteeism is due to an extensive history of Bipolar Disorder, depression and attention hyperactivity disorder. Attleboro has demonstrated insufficient and ineffective efforts to address all of his special education deficits and provide Student with FAPE. For Student to complete his high school education and receive a diploma, he requires placement in a residential therapeutic school that will provide sufficient structure and support on a twenty-four hour basis. An appropriate residential placement would address Student’s lack of motivation by enabling Student to develop daily habits of attending classes on a regular basis and actively engaging in the learning process, while appropriately addressing his academic, social and emotional needs.

POSITION OF ATTLEBORO

Attleboro agrees that Student’s absenteeism is the central issue in this dispute. Attleboro acknowledges that Student is at risk of not graduating from high school because of his excessive absences, and generally concurs with the importance of all students receiving a high school education and diploma.

Attleboro contends, however, that the reasons for Student’s absenteeism are, at best unclear. To the extent that Student’s absenteeism is related to his emotional deficits, Attleboro’s proposed IEP appropriately addresses this concern through counseling services and placement in a substantially separate program (Gateways) at Attleboro High School. If Student needs a residential placement, it is not for educational reasons and therefore not responsibility of the school district.

FACTS

Profile of Student.

1. Student is a seventeen-year-old young man (date of birth 8/4/88) who resides with his parents in Attleboro, MA. Student is considered to have average intelligence and is described as sociable and engaging. He enjoys his friends and spending time on his computer. His goals include obtaining a GED certificate and becoming employed in the technology industry. Testimony of Student, Father, exhibits P-4, P-8, P-35, S-2, S-6.

2. Student’s attentional deficits have been noted throughout his school years. In addition, Student is described as having low frustration tolerance, oppositional behavior and difficulty in the areas of executive functioning. For each of the past several years, Student’s school attendance has been erratic, and in January 2005 he stopped attending school altogether. Testimony of Father; exhibits P-4, P-8, P-16, P-19, P-23, P-34, P-35, P-37, P-43, S-2. S-6.

3. Student’s emotional deficits are unclear. The record references Student’s having been previously diagnosed with a Bipolar Disorder, and Student, for a period of time, took medication for this Disorder. Student attended weekly therapy sessions with a social worker from September 2004 until approximately April 1, 2005. There is no psychiatric or other evaluation in the record that establishes a Bipolar Disorder or other mental health diagnosis although the neuropsychological evaluation included findings that the evaluator considered to be “consistent with” a diagnosis of Bipolar Disorder. The neuropsychological evaluation also included a self-reporting questionnaire regarding depressive symptoms, which endorsed no significant symptoms of depression, but the evaluation nevertheless noted that Student’s history “is suggestive of periods of depression”. The neuropsychological evaluation recommended a comprehensive psychiatric evaluation by a child psychiatrist. Testimony of Student, Father; exhibits P-8, P-12, S-6, S-14.

Student’s IEP.

4. Student has been a regular education student through the last school year (2004-2005) when he was enrolled in the 10 th grade at the Attleboro High School. Student was first determined eligible for special education on June 24, 2005, with Student’s first (and only) IEP developed at a June 30, 2005 Team meeting. Testimony of Father, Lamore; exhibits P-4, S-2.

5. This IEP calls for the following direct services:

· counseling for 30 minutes, twice per week;

· social emotional services for 15 minutes, once per week;

· organization services for 15 minutes, once per week;

· task completion services for 15 minutes, once per week; and

· academic services provided by special education staff for 84 minutes, 20 times per week.

The IEP also calls for behavior management consultation services for 15 minutes, 5 times per week. Exhibits P-4, S-2.

6. The direct special education services described in the IEP are to be provided within the Gateways program at Attleboro High School. Gateways is a substantially self-contained program that serves as a “therapeutic center” for students whose social, emotional and/or behavioral difficulties have hindered their ability to be successful in school. Gateways also serves as a transitional program for students who are returning to the high school from alternative settings. Instruction is provided in a small group or 1:1 basis. Students in this program carry a full schedule of academic courses and have the option of participating in mainstreamed classes and extra curricular activities as appropriate. Exhibits P-4, S-2, S-4.

7. Father rejected the IEP but agreed that his son would try the Gateways program “until the hearing date of 9/29/05”. Exhibits P-4, S-2.

Testimony.

8. Student testified that he has attended the Gateways program at the Attleboro High School for three days during this current school year (2005-2006) and has been absent the remaining days. He explained that the program is “fine” when he is there (he explained that he likes the teachers and some of the other students), but he does not like to go to school in general.

9. Student testified that what he does not like about school is being forced to go there, and he does not like spending a lot of time at school. Student noted that when he turned 16 years old, he realized that he did not have to attend school, and from that point he opposed attending school. He explained that during 10 th grade, he went to school only to be there, but did no school work. He stated that he would do everything possible to avoid going to a residential school, indicating a clear and strong opposition to such a placement. Student explained that you “can’t force someone to do something that he does not want to do.”

10. Student testified that he would like to obtain his GED certificate, rather than complete his high school education and obtain a high school diploma. He explained that after obtaining his GED, he would hope to attend an ITT Tech school (he said there is one in Brockton) and study internet protocol telepathy.

11. Student testified that although he does not want to have counseling or therapy, he is interested in speaking with Mr. Lamore (at Attleboro High School) and others at Attleboro High School for the purpose of receiving guidance and advice. He explained, for example, that he would like to receive guidance regarding receiving a GED certificate and attending a “tech” school. He stated that he has not yet received any assistance or guidance from Attleboro regarding what he would do after high school (i.e., transitional planning and services), but recognizes that he will need help from others in order to do what he wants to do.

12. Student testified that he tried taking medication for a Bipolar Disorder, but found that the medication was not helpful in addressing his symptoms and had unwanted side effects. He explained that because he felt better not taking the medication, he discontinued it.

13. Student’s father testified that his goal is for his son to obtain a high school education and diploma. He explained that he would prefer that his son receive his high school education at Attleboro High School but believes that this is no longer possible.

14. Father testified that his son has distorted views and makes wrong decisions, so much so that Father is “afraid for [his son’s] life”. Father explained, for example, that his son does not think of going to school as “normal”, his son stole a check from him and “bounced [his] checkbook”, and his son has driven a car illegally and has been caught speeding by the police. Father noted that since a young age, his son has “had his own will”.

15. Father testified that from the beginning of his school years, his son has been fidgety and hyperactive, with difficulty paying attention and attending to tasks, and this has been a detriment to his son’s education. He noted that these difficulties have continued through the present.

16. Father testified that his son’s more significant difficulties began in 8 th grade when his son began being “a little disrespectful” in school and began doing what he wanted to do. Father noted, however, that at this time, his son continued to do his schoolwork and received good grades. Father explained that he had to go to school “many” times “to smooth things over” with teachers and staff, but Father felt that his son’s conduct at that time was still “relatively normal”. Father noted that beginning in 8 th grade, his son had many associations with peers, although only a few of these associations would be considered friendships.

17. Father testified that his son’s attendance problems became significantly worse in 9 th grade when his son was absent a total of 35 days, which was “completely unacceptable” to Parents. Father felt that his son made minimal effort at school that year – just enough to get by with passing grades.

18. Father testified that in 10 th grade (the 2004-2005 school year) there was an increased number of absences. Father characterized that school year as a “disaster”. Father explained that he began working closely with Brian Downey (Attleboro High School Assistant Dean of Students) to try to keep his son attending school. Father described Mr. Downey as “great” and someone “who went to bat for [his son]” even though these efforts ultimately proved unsuccessful. Father noted that on two or three occasions, he arranged with Attleboro to have a police officer come to the house to take Student to school.

19. Father testified that there is no reason for his son’s not attending school, other than that his son has simply decided, in his son’s words, that he is “all set” (meaning that his son believes he no longer has to attend school and can do what he wants) and that his son would rather do other things during the day such as seeing see friends. Father characterized his son as simply being “obstinate”. Father explained that neither he nor his wife is aware of any other reason for his son’s not attending school – for example, there has been no indication that anyone at school has threatened his son and no indication that his son’s moods at home have made it difficult for him to attend school.

20. Father testified that in order to try to get his son to attend school, he has become increasingly upset – first, he begged his son to attend school, then would yell at him and finally threatened him (for example, threats to take away privileges such as use of his cell phone). Father also noted that there was one physical altercation in March 2005 when Father got so upset at his son that he hit him. Father explained that none of this has had any positive effect on his son’s attendance at school.

21. Father testified that during the current school year (2005-2006), his son has attended school for only two and one-half days, and he attended school on the half day only because Sylvia Day (Attleboro Director of Special Education) came to the house to pick up his son.

22. Father testified that he privately arranged for his son to receive weekly therapy sessions from a social worker, Andrea Cowette, from September 2004 until approximately April 1, 2005.

23. Father testified that currently and for the past number of months, his son has not been receiving an education from Attleboro. Father believes that it is now necessary that his son be placed at a residential school in order for him to receive a high school education and diploma. Father explained that he therefore began exploring the possibility of a placement at the M.L. Chamberlain School as an alternative way to get his son an education.

24. Father testified that because Chamberlain is a residential school, placement there could address his son’s attendance problems. Father also noted that Chamberlain has small classes which would be an advantage for his son and, when Father visited Chamberlain, he noticed positive interactions between teachers and students. Father explained that Chamberlain would also offer his son a consistent therapeutic environment (including counseling as needed and would ensure that his son takes his medication consistently) and continual monitoring of his son’s actions.

25. Father stated that because his son does not want to attend Chamberlain, he would be prepared to make arrangements to have his son privately transported to attend Chamberlain involuntarily if necessary.

26. Father testified that although he has begun to explore the possibility of placement at Chamberlain and consulted with Chamberlain’s Director of Admissions (Lawrence Mutty), no formal application has been made to Chamberlain.

27. The Chamberlain Director of Admissions ( Lawrence Mutty ) testified that he has held his current position for the past six years; previously he was a therapist at Chamberlain for four years; and before that, he was a therapist at Brandon School for one and one-half years. He stated that he is a licensed clinical social worker and holds a masters degree in social work.

28. Mr. Mutty testified that Chamberlain is a residential school, licensed by the Mass. Department of Education. He noted that Chamberlain’s academic model includes small classes, with small group and individual instruction. He stated that a behavior management system “overarches” the whole day for each student, providing positive reinforcements for each student to comply with the expectations and rules of the school.

29. Mr. Mutty testified that the residential part of the program includes dorm life which provides a combination of recreation and chores under the supervision of staff. Mr. Mutty explained that the residential part of the program is very structured, as is the entire school, with students having a predictable schedule for all of their time.

30. Mr. Mutty testified that the clinical component of the school includes individual and group therapy for each student, as well as available family therapy. He explained that the school cannot force a student to take medications, but that staff encourage students to take their medication and inform students regarding the benefits of medication.

31. Mr. Mutty testified regarding how Chamberlain responds to students who have attendance issues, explaining that staff will use less restrictive measures first, but ultimately have the ability to escort physically a student from the residence to the classroom. Mr. Mutty stated that all students are under continual staff sight-monitoring and, in the event that a student were to attempt to leave the school, staff would either physically prevent the student from doing so (if leaving would be unsafe) or would walk with the student as an escort, seeking to persuade the student to return to school. He noted that the local police are sometimes helpful in holding a student who has run away until school staff can come to the police station and return the student to school.

32. Mr. Mutty testified that about 15% of the students at Chamberlain have attendance difficulties. He stated that in his experience, over time the issue of not wanting to attend school generally dissipates as the student becomes more connected to the school and its community. However, he noted that it may take a number of months for a student’s attendance difficulties to be satisfactorily resolved.

33. Mr. Mutty testified that Chamberlain would not be appropriate for a student for the purpose of ensuring that the student attend school where the attendance problem is based solely on the student’s not wanting to attend school. However, Mr. Mutty explained that, in his opinion, a residential student’s school attendance difficulties are always caused by mental health needs, which would be appropriately addressed by a residential school such as Chamberlain.

34. Mr. Mutty testified that he has met Student once, which was for approximately 45 minutes immediately prior to the Pre-Hearing Conference in this case on August 12, 2005. Mr. Mutty explained that at that time, he spoke with and observed Student while Student was with his Parents, and that he also talked to Father about Student when Father visited Chamberlain.

35. Mr. Mutty testified that he has reviewed the IEP proposed for Student, as well as the neurological evaluation of Student, the Attleboro learning abilities/disabilities assessment, and the letter of 3/1/05 from Andrea Cowette. Mr. Mutty explained that he has not spoken with anyone at Attleboro about Student.

36. Mr. Mutty opined that although Student has neither applied nor been accepted at Chamberlain, he believes that Chamberlain would accept Student if application were made for admission and that Student seems like a “good fit” for Chamberlain. Mr. Mutty based this opinion on the documents that he has reviewed, the time spent with Student, talking with Father about Student, and his own knowledge of Chamberlain.

37. Attleboro’s School Psychologist ( Athena Sullivan ) testified that she has held this position since September 1999. Her experience and education are further reflected in her resume. Exhibit S-36.

38. Ms. Sullivan testified that she first became familiar with Student in February 2005 when Student was referred to her for a psychological evaluation as part of the process for determining whether Student was eligible for special education services. She explained that she attended a March 29, 2005 IEP Team meeting, the original purpose of which was to review evaluations and determine whether Student was eligible. She noted, however, that at that time, she had not been able to evaluate Student because he had not been at school. She further explained that at the meeting, Parents advised Attleboro that they would be arranging for an independent neuropsychological evaluation, and because a neuropsychological evaluation would normally include what would be done in a psychological evaluation, Ms. Sullivan did not complete a psychological evaluation of Student.

39. Attleboro’s Special Education Teacher ( Mary Harten ) testified that she has held this position since September 2005. Previously, she was a special education teacher at the Bi-Co Collaborative for three years. Her experience and education are further described in her resume. Exhibit S-35.

40. Ms. Harten testified that she is Student’s special education teacher at the Gateways program which Student has attended for three days this current school year. She explained that she knows Student from working with him during this time.

41. Ms. Harten testified that Gateways is a self-contained program that includes therapeutic and academic support for students aged 15 to 17 years old. She noted that the typical student has a psychiatric diagnosis and needs academic support but is able to complete academic work at grade level. She explained that currently there are nine students in the program, with four to six students in a classroom. She stated that Gateways follows the Attleboro High School bell schedule.

42. Ms. Harten testified that Student, as well as all others attending Gateways, have a classroom management behavior program that allows Student to earn points and achieve a higher level of privilege that in turn allows Student to participate in certain activities and have greater freedom at school. She explained that points are earned for behavior (including, for example, being cooperative) and academics (including, for example, timely attendance, completing school work and participation).

43. Ms. Harten testified that Gateways also has a therapeutic component that includes a significant amount of communication between students and staff for the purpose of addressing social and emotional issues through, for example, problem-solving, goal-setting, role-playing and social scripting (modeling appropriate behavior in different situations).

44. Ms. Harten testified that she has spoken with Student about his feelings relative to school. She believes that Student feels comfortable with the staff and other students at Gateways. She noted that he has easily engaged her and others in conversation, and he seems friendly with other Gateways students. She stated that in the event that Student has any difficulties at school, he can access her or Mr. Lamore (Student’s counselor) at any time. She explained that Gateways will work with Student to encourage communication and development of coping skills in the event that he becomes upset.

45. Ms. Harten testified that Student told her on the first day he attended school that he was “all set”, meaning that he did not need to attend school, and that he would like to pursue a GED certificate rather than a high school diploma. She stated the importance of Student’s attending school in order to develop socially and emotionally, rather than simply studying and passing a test to obtain his GED, and that she has explained this to Student.

46. Ms. Harten testified that she has no opinion whether Student will likely come to school to attend Gateways in the future. She stated that in order to increase the likelihood that Student will attend the Gateways program, the next steps would be to make school a more enjoyable place for Student and to increase his involvement and connection with school – for example, get Student more involved socially at school, advise Student of non-academic opportunities at school that may interest him, place certain responsibilities on Student at school, and try to establish expectations of his peers that he attend school.

47. Ms. Harten opined that Gateways is an appropriate program in that it is able to meet Student’s academic and emotional needs and that a residential program would be unduly restrictive.

48. Attleboro Special Education Coordinator and School Psychologist ( Raymond Lamore ) testified that he currently holds the position of School Psychologist on a half-time basis and, for this purpose, is assigned to the Gateways program, beginning in September 2005; and in this position, he acts as a counselor to the Gateways students. He noted that he is also employed half time as a special education coordinator. He explained that previously he was employed by Attleboro as full-time special education coordinator for two years and before this position, was employed by Attleboro as a school psychologist since 1997. His employment history and education are further described in his resume. Exhibit S-34.

49. Mr. Lamore testified that he first met Student in March 2005 after Student was referred for evaluation to determine whether Student was eligible to receive special education services. He explained that during the current school year (2005-2006), he has met Student once at his home and three times at school, each time for 30 to 45 minutes, for purposes of counseling Student. Mr. Lamore stated that the principal focus of the counseling sessions is Student’s attendance difficulties and the factors that impact upon his attendance. He explained that during his first session with Student, he believes that he was able to establish a positive rapport. He noted that he has also spoken with Student by phone on almost a daily basis since the beginning of this school year.

50. Mr. Lamore testified that he anticipates continuing to work with Student regarding attendance issues and is willing to do whatever may be useful, including coming to Student’s home as often as necessary to encourage him to attend school. Mr. Lamore believes that it is too soon to know whether Student will continue to come to school and it is too soon to expect that Attleboro’s efforts would have successfully addressed Student’s attendance issues – it may take additional weeks or even months.

51. Mr. Lamore testified that Student has discussed with him his lack of motivation to attend school, his interest in obtaining a GED certificate (and then go to ITT Tech) in lieu of a high school diploma. He explained that he has worked previously with a significant number of students (approximately 150) with attendance problems, some of whom have a Bipolar Disorder. Mr. Lamore opined that the key ingredient is for Student to invest himself in his education; if Student is forced to attend a program, it may not be successful.

52. Mr. Lamore testified that he attended the June 24, 2005 IEP Team meeting at which Student was determined eligible for special education services on the basis of a social/emotional disability; Student’s diagnosis of Bipolar Disorder was the basis of this determination; and the Bipolar Disorder diagnosis was taken from Student’s neuropsychological evaluation. Mr. Lamore stated that, to his knowledge, there is no other reference to (or other evaluation indicating) Bipolar Disorder. He noted that the neuropsychological evaluation recommended that Student receive a psychiatric evaluation from a child psychiatrist, and he strongly supports this recommendation (which has not been implemented to date) in order to definitively diagnose Student.

53. Mr. Lamore testified that he participated in the June 2005 IEP Team meeting that determined placement at the Gateways program. He explained that he supported this decision for the following reasons. Student had not previously received special education services. It would be prudent to try Student first within special education classes within the Attleboro High School to determine whether these might address his needs prior to considering the more restrictive placement of a residential school. Also, if Student’s placement at the Gateways program is not successful, there are other placements that could and should be tried (for example, Attleboro’s Network program or a collaborative program) that would be less restrictive than a residential school. Mr. Lamore testified that, in his opinion, Gateways satisfies the first recommendation contained within the neuropsychological report regarding the services needed by Student.

54. Mr. Lamore testified that at the Gateways program this year, Student has been a “model” student – appearing comfortable in school, being cooperative with others and succeeding academically. He noted that the only issue has been Student’s attendance.

55. Mr. Lamore testified that he could develop a program to work with Student’s Parents, including a parent support group, visits to the home, and inviting Parents to the school to discuss Gateways. He explained that such a program may assist Parents to address the relationship issues between Student and his Parents.

56. Mr. Lamore testified that there has not yet been any transition planning or transition services and, as for all students, it would be important to do this with Student. Mr. Lamore noted that transition services may help identify classes or other opportunities or activities that would be of interest to Student and thereby encourage him to attend school.

57. Attleboro’s Assistant Dean of Students ( Brian Downey ) testified that he has held this position for three years and previously was a science teacher at Attleboro High School for 6 or 7 years. He explained that his current responsibilities are to maintain the safety and proper learning environment for students in the class of 2007 and the staff who work with these students.

58. Mr. Downey testified that he first became familiar with Student in the fall of the last academic year (2004-2005) when Student’s attendance became an issue. He explained that after the first quarter of the year (when Student had good grades and a good attendance record), his attendance and grades fell during the second quarter, missing one or two days of school each week. Mr. Downey stated that he began speaking by phone with Father every day that Student was absent. Mr. Downey explained that his intent was to do (and to help Parents do) whatever would be possible to have Student attend school regularly – this included setting up a meeting with the Mass. Department of Social Services to discuss the possibility of giving DSS voluntary custody of Student, and Mr. Downey’s going to the home 4 or 5 times with a uniformed police officer to escort Student to school. Mr. Downey also stated that he met with Student 10 to 15 times to discuss his absences, his grades and the consequences to Student of his continuing to miss school and receive poor grades. Mr. Downey testified that none of these efforts was successful in changing Student’s pattern of not attending school, and that as the school year progressed, Student was more and more clear that that he would not continue attending school.

59. Mr. Downey testified that from his discussions with both Parents, he knew that Parents, particularly Father, were becoming increasingly frustrated both with their inability to get Student out of bed and to school in the morning and with Student’s non-compliance with family rules. Mr. Downey also noted that from his discussions with Student’s teachers, he knew that the teachers were frustrated as well, reporting to Mr. Downey that Student was able to do the academic work and that there was nothing that they were aware of that presented any difficulty or frustration for Student in their classrooms, but that he simply was not attending school. Mr. Downey stated that he was unaware of any frustration, difficulty or other problem (for example, a conflict with a particular teacher or a student) that Student had at school.

60. Mr. Downey testified that the reasons that Student decided not to attend school appeared to be twofold. First, Student was frustrated as a result of his continuing struggle with his Parents regarding school attendance. His decision not to attend school appeared to be partly out of spite. Second, Student simply desired not to be in the school building – rather, he wanted to be any place other than school. Mr. Downey explained that Student appeared to be frustrated with the rigid structure of school in general, and the need to answer to people in authority, like Mr. Downey.

61. Attleboro’s Diagnostic Prescriptive Teacher ( Barbara Cecere ) testified that she has held this position since September 1998. Her experience and education are further described within in her resume. Exhibit S-37.

62. Ms. Cecere testified that her role includes evaluating students to determine eligibility for special education, including reviewing information from the classroom and the student’s cumulative record, and performing her own assessments. She testified that she assessed Student’s level of academic achievement during an hour and a half or two-hour Learning Abilities/Disabilities Assessment; Student’s academic achievement scores were average to high average. She noted that Student’s erratic attendance record may have lowered his test scores on the achievement testing. She stated that she did not find any learning disability through her assessment, nor did she find any other academic difficulties other than attendance. She concluded that Student has the skills to successfully pursue and obtain his high school diploma and agreed that it is generally in the best interests of all students to complete their high school education and receive their diploma.

63. The written assessment report indicates that Student was referred for an initial Team meeting due to concerns about his educational progress. The report states, in addition, that Student “has demonstrated a lack of compliance in the school environment that has interfered with his learning.” This assessment included observation and the administration of the Wechsler Individual Achievement Test, 2 nd edition (WIAT-II). The WIAT-II included subtests in the following subjects: reading, mathematics, written language and oral language. In each subtest, Student scored in the average or high average range, with relative weakness in numerical operations and relative strengths in spelling and oral expression. Exhibits P-9, S-7.

64. Attleboro’s Director of Special Education and Student Services ( Sylvia Day ) testified that she has held this position since July 1, 2004. She stated that she received her master’s degree in special education in 1977 and is licensed as a special education director. She explained that she first met Student on August 11, 2005 and has interacted with him 6 to 8 times since then. She has found him to be a bright and articulate young man who has easily and appropriately interacted with her.

65. Ms. Day testified that she has spoken with Student about his attendance, and Student has made it clear that school “is not my thing”, and has otherwise indicated to Ms. Day that he is making his own choice not to attend school. She explained that she disagreed with the parts of the IEP that indicate that Student’s attendance difficulties may be caused by other factors. She stated that Attleboro will continue to work with Student to try to provide him the opportunity to graduate from high school.

66. Ms. Day testified that transition planning and transition services are appropriate for Student, but transition planning did not occur at the June 2005 Team meetings because Student did not attend. She noted that transition planning for Student may include looking at the possibility of how Student may obtain credit for certain courses from last year.

67. Ms. Day testified that there is no record of Student having depression, and no record of Bipolar Disorder other than what appears in the exhibits in this dispute.

School attendance.

68. Student’s attendance record in 10 th grade as of 3/29/05 (exhibits S-13, P-13):

· 37 absences, 2 dismissals, 6 nurse dismissals, 6 suspended external, 1 tardy, 4 unexcused tardies

Student’s attendance record in 10 th grade as of 8/25/05 (exhibit P-10A):

· 74 absences, 3 dismissals, 5 tardy, 1 withdrawal, 26 absences after withdrawal

69. Student’s attendance in 6 th through 9 th grades (exhibits P-15 through P-18):

·9th grade through 6/24/04: 35.5 absences, 2 tardies, 17 dismissals

·8th grade through 6/18/03: 17 absences, 0 tardies, 6 dismissals

·7th grade through 6/18/02: 12 absences, 2 tardies, 4 dismissals

·6th grade through 6/22/01: 15 absences, 7 tardies, 0 dismissals

Grades.

70. Student’s grades have been as follows:

· 10th Grade: LA/English 73, Science 78, SS/History 66, Math 73, Spanish/French 68/80, PE/Health 65

· 9th Grade: LA/English C-, Science C+, SS/History D, Math C-, Spanish/French D+, PE/Health D

· 8th Grade: LA/English C, Science C, SS/History D+, Math B-, Spanish/French F, PE/Health A-, Technology B-

· 7th Grade: LA/English C, Science C, SS/History B, Math C-, Spanish/French B+, PE/Health B/A-, Technology B

· 6th Grade: LA/English B-, Science B-, SS/History C+, Math C+, PE/Health A, Technology B+, Art/Music A/A

Exhibits P-15 through P-18, S-10, S-15, S-16, S-18, S-21.

MCAS scores.

71. In 8 th grade, Student scored 230 (needs improvement) on the math MCAS and scored 240 (proficient) on the science and technology/English MCAS. Exhibits P-25, S-17.

72. In 7 th grade, Student scored 224 (needs improvement) on the English MCAS. Exhibits P-26, S-19.

73. In 6 th grade, Student scored 234 (needs improvement) on the math MCAS. Exhibits P-27, S-23.

Assessments.

74. Home Assessment (exhibit S-8): This assessment was done on 3/29/05 by Susan Rousselle. The written summary of the assessment, reflecting information provided by Parents, indicates that Student is diagnosed with depression/bi-polar and is not taking medication for this disability. The evaluator noted that, according to Parents, Student sleeps until noon, has stolen a car twice, “likes to torment people”, is “very oppositional” and does not follow the rules of the home. The summary provides that Student does not want to quit school but does not want to come to Attleboro High School, while Parents would like home tutoring to be provided and have looked into a structured environment for their son in a residential placement. Ms. Rousselle did not testify at the Hearing.

75. Neuropsychological Assessment (exhibits P-8, S-6): This assessment was done on May 5, 2005 by Terry Harrison-Goldman, EdD, Pediatric Clinical Neuropsychologist and Clinical Assistant Professor at Brown Medical School. The written report indicates that Student was referred for this assessment by his father. The assessment indicates that Student is functioning in the low average range of cognitive abilities, with a significant difference between his average verbal comprehension abilities and his mildly impaired perceptual organizational abilities. The assessment summarized Student’s neuropsychological profile as follows:

The neuropsychological profile as a whole highlights difficulty in the areas of executive functioning, attention, and behavioral/emotional dysregulation, and visual-motor integration. [Student’s] primary executive control processing difficulties are manifested as severe emotional and behavioral dysregulation, difficulties with organizational and planning skills, slowed information processing, and significant problems utilizing environmental cues to change his perceptions or behavior and problems regulating his overall mood. Overall, [Student’s] neuropsychological and behavioral pattern of functioning appears to be consistent with his prior diagnosis of Bipolar Disorder yet further psychiatric evaluation is warranted. Based on his reported history, [Student’s] behavior appears to be characterized by an alternating pattern of emotional ups and downs. [Student] demonstrates significant irritability, proneness to destructive outburst and marked changes in mood. . . . [Student] also presents with a long-standing history of problems with distractibility and attentional issues. Lastly, [Student’s] history is suggestive of periods of depression, including frequent absences from school, decreased appetite, and loss of interest in activities.

76. The assessment made the following recommendation:

Given his current profile, it is recommended that [Student] participate in an intensive program that is equipped to handle his significant social, emotional and behavioral needs. A multifaceted program that provides a combination of academic, therapeutic and emotional supports would be recommended at this time. Additionally, a program that provides and encourages family participation and family education would be beneficial. Based on [Student’s] psychiatric needs, the significant amount of family stress and the need for consistent medication management, a residential placement appears to be an option to consider. Ongoing communication between the family, school personnel, and other professionals working with [Student] will be important to monitor his progress and address any concerns as they arise.

77. There is no indication within the record that Dr. Harrison-Goldman contacted or received information from Attleboro teachers or staff; there is nothing in the record to indicate Dr. Harrison-Goldman’s experience and expertise (other than what is noted above regarding her degree and employment with Brown Medical School); Dr. Harrison-Goldman did not testify at the Hearing; and her report does not include test scores.

Letter from Student’s therapist.

78. A letter from Student’s therapist, Andrea Cowette, LICSW, dated 3/1/05, is addressed “To Whom It May Concern” (exhibits P-12, S-14). The letter states that it was prepared at the request of Student’s father for the purpose of “indicating that [Student] is currently receiving individual therapy and the issues that he is addressing within the therapy session specifically related to his Axis I diagnosis of Bipolar Disorder.” The letter explains that Student’s therapist has been meeting with Student since September 2004 for one hour per week. “[Student] chooses to actively participate in the [therapy sessions] by discussing friendships, home environment, issues related to school and symptoms related to his mood disorder.” The letter indicates Parent’s concern about erratic school attendance and that, according to Parent, “it is a constant battle in the morning to get him out of bed and off to school.”

79. The therapist’s letter then addresses this issue as follows:

[Student] and I have discussed his father’s concern during session [sic] and [Student] makes it clear that he is not exhibiting oppositional behavior concerning school to upset the home environment. [Student] explains that it is very difficult to wake in the morning at times, at other times he wakes up, gets ready for school and “looks at himself in the mirror and feels horrible about himself.” [Student] reports at times that he is having difficulty with friends at school however is always quick to state that he “could care less.”

80. The letter further comments on what would benefit Student with respect to his education:

In my opinion, I believe [Student] would benefit from attending alternative schooling. [Student] as stated previously in this letter is in need of set rules and consistent consequences as well as reinforcement. [Student] has gained control of the home environment and consequentially has set his own rules regarding school attendance. [Student] is only sixteen years old and still has two years of education to complete at the high school level. At the present time, I do not feel [Student] understands the importance of education and is need of a parental figure to act on his best behalf and I truly believe [Parents] are doing just that.

81. Ms. Cowette did not testify at the Hearing.

DISCUSSION

Student is an individual with a disability, falling within the purview of the Individuals with Disabilities Education Act1 and the state special education statute.2 As such, Student is entitled to a free appropriate public education (FAPE).3 Neither his eligibility status nor his entitlement to FAPE is in dispute.

Legal standards and issue in dispute .

In general, FAPE is intended “to open the door of public education to handicapped children”4 rather than to require the “best” possible educational services for a student.5 More specifically under state and federal special education law, FAPE requires that a student’s individualized education program (IEP) be tailored to address the student’s unique needs in a way reasonably calculated to enable the student to make meaningful and effective educational progress in the least restrictive setting.6

The issue presented in the instant dispute is whether the day placement at the Gateways program located at Attleboro High School (and the programming and specialized services provided there) as reflected in Attleboro’s proposed IEP are consistent with this legal standard or, conversely, whether Student requires a more restrictive residential placement for educational reasons and, in particular, a residential placement at the F.L. Chamberlain School. In answering this question, I consider the responsibility of Attleboro to address all of Student’s special education needs, and I also consider what kind of placement and/or services are required to address these deficits within the least restrictive appropriate setting.

The First Circuit has made clear that a school district’s proposed IEP must address all of a students special education needs, whether they be academic, physical, emotional or social.7

The IDEA provides that, where a student has behavior difficulties (for example, as a result of social or emotional deficits) and these behavior difficulties impede the student’s learning, the IEP should, when appropriate, address the student’s behaviors:

The IEP Team shall . . . in the case of a child whose behavior impedes his or her learning or that of others, consider, when appropriate, strategies, including positive behavioral interventions, strategies, and supports to address that behavior;8

Similarly (and often within the context of disputes regarding residential services), the First Circuit and other federal circuit courts have noted the need to address behavior deficits unless these deficits are determined to be separable from the learning process.9

The federal special regulations explicitly allow for placement in a residential school: “[i]f placement in a public or private residential program is necessary to provide special education and related services to a child with a disability, the program, including non-medical care and room and board, must be at no cost to the parents of the child.”10

The appropriate standard, as reflected within several First Circuit Court of Appeals decisions, for determining whether a residential placement should be ordered is whether the educational benefits to which the student is entitled can be obtained in a day program alone, or conversely whether these educational benefits can only be provided through round-the-clock special education (and/or related) services, thus necessitating placement in a residential facility.11

The IDEA requires placement within the least restrictive setting appropriate to meet a student’s special education needs.12 A residential placement is properly considered more restrictive than a day program, even when the day program (for example, Attleboro’s Gateways program) would place the student in a substantially separate special education program. The statutory preference for placement in the least restrictive environment mandates that a residential school be utilized only when Student’s educational needs cannot be appropriately addressed during the school day.13

As the Second Circuit Court of Appeals has noted, it is important to “proceed cautiously” before ordering a residential educational placement.14 Caution seems particularly warranted where, as in the instant dispute, there is an older student who has clearly articulated his opposition to any residential placement, and the school district has had the opportunity to provide less restrictive special education services only for a short period of time.

With these legal standards in mind, I consider the scope of Student’s educational needs and then Attleboro’s obligations to address those needs through special education services and placement.

Student’s special education needs .

There is general agreement of, and a long history to support, a diagnosis for Student of attentional deficits. The only evaluation that supports additional special education needs (and services to address those needs) is the neuropsychological evaluation by Dr. Harrison-Goldman. The written report of her assessment indicated that Student has difficulties in the areas of “executive functioning, attention, behavioral/emotional dysregulation, and visual-motor integration”. To address these needs, Dr. Harrison-Goldman recommended that Student participate in an intensive, multifaceted program that provides a “combination of academic, therapeutic and emotional supports” that is equipped to handle his “significant social, emotional and behavioral needs”.15 Facts section of this Decision (Facts) pars. 1, 75, 76.

With the exception of Student’s behavior of not attending school (which will be discussed separately below), all of the relevant evidence supports the conclusion that the Gateways program satisfactorily addresses all of Student’s special education needs and recommended services, including those reflected within Dr. Harrison-Goldman’s written evaluation. It also is noted that even though Student has attended Gateways for only a short period of time, both Student and Gateways staff were persuasive in their testimony that the program, its staff and other students appear to be a good fit for Student. Facts pars. 41, 42, 43, 44, 45, 47, 49, 50, 51, 53, 54, 76.

Student’s not attending school on a regular basis .

The core issue in the instant dispute is Student’s not attending school on a regular basis and thereby placing in jeopardy his graduation from high school. Both the Parents and the Attleboro witnesses expressed concern regarding Student’s attendance and its implications for his education. Facts pars. 17, 18, 68, 69, 70.

It is not disputed that Student’s attendance at school began to fall off in 9 th grade and became significantly worse in 10 th grade (the 2004-2005 school year). Student stopped attending school altogether in January 2005. Understandably, Parents have become increasingly troubled by this turn of events. Father took various approaches to change his son’s behavior, which became increasingly forceful over time. For example, Father upon occasion went so far as to obtain the assistance of uniformed police officers to escort his son to school in the morning, he has fully utilized the resources of the Attleboro High School Assistant Dean of Students, and over time he has become increasingly confrontational with his son. Facts pars. 17, 18, 20, 69.

There can be no doubt that Parents very much want what they believe to be in the best interests of their son and in this instance, it is for Student to attend Attleboro High School on a regular basis and obtain his diploma. There is no disagreement from the Attleboro teachers and staff in this case that it would be best for Student to attend school and complete his high school education. Facts pars.13, 62.

None of the efforts of Parents and others, which have now occurred over a significant period of time, appears to have had any positive impact upon Student’s attendance. To the contrary, it now appears likely that Student’s attendance issues may have become, at least in part, a negative response or opposition to his Father’s efforts to force him to attend school. Apparently, the harder Father and those in a position of authority have pushed Student to attend school, the more determined Student has become to avoid going to school. Facts pars. 20, 58.

It is also undisputed that Student’s attendance is having a significant impact upon his education. Credits were not obtained for courses for the last school year because Student did not attend school regularly and did not attend school at all after January 2005. It is not disputed that but for Student’s attendance record, he would be making effective progress and would be progressing from grade to grade at Attleboro High School. Facts pars. 59, 70.

Under these circumstances, Parents have sought what they believe to be the only avenue left open to them to secure a high school education for their son – that is, public school placement in a private residential school where their son can be more strongly encouraged and, if necessary, physically forced to attend classes. Facts par. 23.

Responsibility of Attleboro to address Student’s attendance issues though special education .

In order for Attleboro to have a responsibility to address, through special education services and placement, the behavior of lack of attendance, there must be a sufficient nexus between this behavior and Student’s special education deficits. See discussion of legal standards, above.

Attleboro’s proposed IEP for Student provides the following response to the question of how Student’s disabilities affect his educational progress: “[Student’s] history of depression, mood swings, low motivation, low frustration tolerance, [and] organizational difficulties impact his ability to attend school and successfully complete his coursework.” Exhibits P-4, S-2 (pages 3 and 5).

The IEP includes a goal # 1 to address his attendance issues, and, pursuant to the IEP, Mr. Lamore has begun providing counseling specifically to address Student’s attendance issues, as discussed in more detail below.

On the basis of Attleboro’s IEP, I find that Attleboro has conceded the nexus between Student’s attendance difficulties and his special education needs and therefore has accepted responsibility to address this issue through special education services and placement.16

Least restrictive placement and services appropriate to address Student’s attendance issues .

Attleboro has both a responsibility and an obligation to offer the least restrictive services and placement that are appropriate to address Student’s special education needs, including those needs related to his attendance. See discussion of legal standards, above.

Attleboro has sought to address Student’s behavior (attendance) difficulties through its proposed IEP. As discussed above, the IEP calls for placement in the Gateways program and proposes various special education services, including counseling for thirty minutes, twice each week. Mr. Lamore, who has been assigned to provide this service to Student, testified that the principal focus of the counseling sessions is Student’s attendance difficulties and the factors that impact upon his attendance. Mr. Lamore anticipates continuing to work with Student regarding attendance issues and is willing to do whatever may be useful, including coming to Student’s home as often as necessary, to encourage him to attend school. Mr. Lamore believes that it is too soon to know whether Student will continue to come to school on a more regular basis and it is also too soon to expect that Attleboro’s efforts would have successfully addressed Student’s attendance issues – it may take additional weeks or even months. Facts pars. 5, 49, 50, 51. I find that the services Mr. Lamore is providing to Student for the purpose of seeking to address Student’s attendance to be highly appropriate.

Student’s special education services began, for the first time, at the beginning of this school year (2005-2006). At the time of the evidentiary Hearing in this matter in September, Attleboro had only a few weeks to seek to address Student’s special education needs through the services and placement described within the IEP. I found Mr. Lamore to be a particularly credible witness and concur with his belief that it is simply too soon to make any judgment as to whether a more restrictive placement is necessary. Moreover, I agree with Mr. Lamore that in the event that a more restrictive placement than Gateways is necessary, there would be other placements (more restrictive than Gateways but less restrictive than a residential placement) that would first need to be considered. Facts pars. 4, 46, 50, 53.

In addition, there are two modifications that should be made to the IEP that may possibly have a positive impact on Student’s relationship to his education. Father has aggressively urged his son to attend school, including the use of threats and the assistance of uniformed police officers. It is undisputed that not only have these efforts been completely unsuccessful but they have added to the reasons that Student no longer wants to attend school – that is, he does not want to attend school, in part, because his Father has pushed so hard to try to make him attend. Facts pars. 20, 58, 60.

In his testimony, Mr. Lamore described services that could be provided directly to Parents. Mr. Lamore discussed the possibility of a parent support group, visits to the home, and inviting Parents to the school to discuss Gateways. He explained that these services may assist Parents to address the relationship issues between Student and his Parents, which have impacted upon Student’s attitude towards school. Services directly to Parents should be discussed and proposed by the IEP Team, with Mr. Lamore’s assistance. These services should be provided only with the agreement of one or both Parents. Facts par. 55.

Second, as Attleboro agreed at the Hearing, no transition planning and services have yet been provided to Student. Apparently this is because Student only recently became eligible for special education services and because he did not attend the September 2005 Team meeting. Involvement of Student in his transition planning is essential, in part, because transition planning is a results-oriented process intended not only to address Student’s needs but also to take into consideration his preferences and interests.17 Facts pars. 55, 66.

Transition planning offers the possibility of engaging Student to a more meaningful extent in his education. Attleboro does not dispute the necessity and importance of providing transition planning and services. They should be provided as soon as possible. Facts pars. 55, 66.

For the reasons stated above, I find that Attleboro’s IEP proposes an appropriate, least restrictive placement at the Gateways program. I further find that with the two modifications described above, the IEP proposes appropriate services to address Student’s attendance issues. These findings are sufficient to resolve this dispute in favor of Attleboro. In addition, I discuss below the lack of appropriateness of a residential placement (including but not limited to the F.L. Chamberlain School) for Student.

Lack of appropriateness of a residential placement .

I first consider the evidence in support of a residential placement.

Parents have not provided evidence that credibly supports the appropriateness of a residential placement for Student. Father testified regarding the importance of his son’s attending a residential school. Student’s Parents undoubtedly seek to do what they believe is in the best interests of their son. I do not doubt their commitment to and understanding of their son. Yet, Father’s statements at the Hearing cannot be considered expert testimony and therefore cannot independently establish Student’s educational need for a residential placement. Parents can point to no credible expert opinion that supports their position that a residential placement is educationally necessary for their son.

No witness who has either evaluated Student or worked with Student (for example, as a teacher, counselor or therapist) has recommended residential placement for Student. The only written report that could possibly be read to support a residential placement was the neuropsychological evaluation that included the following recommendation:

Based on [Student’s] psychiatric needs, the significant amount of family stress and the need for consistent medication management, a residential placement appears to be an option to consider. [Exhibits P-8, S-6.]

For the following reasons, I do not find this statement to be persuasive regarding the question of whether Student would be appropriately placed in a residential school. First, the statement is not a recommendation for a residential placement but rather a recommendation to consider residential placement as one option, presumably only after all less restrictive options have been considered and found inadequate. Second, the recommendation is made not so much on the basis of the findings in the neuropsychological report but rather on the basis of Student’s apparent psychiatric diagnosis of Bipolar Disorder. Yet, within the evidentiary record, there is no evaluation establishing this diagnosis nor testimony of a mental health professional confirming it. In fact, no one who testified seemed to know where the diagnosis originated and, perhaps for this reason, the neuropsychological report recommended a psychiatric evaluation and Mr. Lamore supported this recommendation in order to determine Student’s psychiatric profile. Finally, as noted earlier in this Decision, the fact that Dr. Harrison-Goldman did not testify limits the credibility of her recommendations since they were not subject to cross-examination and because there was no opportunity for clarification through questioning from the Hearing Officer. Also, without testimony (or at least a resume), there is no opportunity to determine Dr. Harrison-Goldman’s experience and expertise relevant to her making a recommendation of a residential placement.

Parents seek to rely on Mr. Mutty’s testimony that Chamberlain would likely be a good fit for Student and that Student would likely be accepted for admission if he were to apply. For the following reasons, I do not find Mr. Mutty’s testimony to be persuasive regarding the issue of appropriateness of a residential placement for Student. Mr. Mutty’s perspective is that of a director of admissions who is seeking to determine, from Chamberlain’s perspective, whether Student would be an appropriate admission. Regarding the question of whether Student should be educated within a residential school as the least restrictive educational placement, I do not believe that Mr. Mutty has the necessary relevant expertise, that he has adequately evaluated Student for this purpose or that he is an appropriate person by virtue of his position at Chamberlain to provide a credible professional opinion.

I next consider the evidence in opposition to the appropriateness of a residential placement for Student.

In determining the appropriateness of a residential placement, I take into consideration the testimony of Student and his well-documented history of opposition to school. Student was a poised, articulate and thoughtful witness who has considered the subject of school attendance over a substantial period of time. He made clear through his testimony that he adamantly opposes a residential placement and would do whatever is necessary to avoid attending. I do not suggest that Student’s decision not to attend school in general is necessarily a wise one. However, all of evidence indicates that over a period of time, he has taken into account the implications of not attending school and has made a voluntary and considered decision as to what he believes to be in his best interests. Facts pars. 1, 9, 51, 64, 65.

I also consider Student’s age – seventeen years old – and the fact that within a year he will turn eighteen and then will likely be making his own educational decisions. I further consider the potential negative implications of seeking to force Student to attend a residential school where he may be physically escorted to classes against his will, particularly in light of the past unsuccessful efforts to persuade him to attend school and Student’s increasing opposition to school as a result. Facts pars. 1, 9, 51.

It seems clear, in the final analysis, that the residential placement is being sought for the principal purpose of forcing Student to attend classes, rather than for educational reasons. Although Attleboro effectively conceded within its IEP (discussed above) that Student’s attendance issues relate to his special education needs, the factual evidence was that Student’s decision not to attend classes is a conscious and voluntary choice, rather than an action determined or significantly influenced by his special education needs or by any particular difficulties within the Attleboro High School.18 Facts pars. 9, 19, 59, 64, 65.

In summary, a special education residential placement may not be used solely to overcome Student’s long-considered, conscious and voluntary choice that he not attend classes. In addition, as Mr. Lamore pointed out in his testimony, it is questionable whether Student would benefit educationally were he forced to attend a residential placement for the remainder of this school year. Yet, it is easy to foresee the possibility that such a placement would further alienate Student from his education and perhaps from his Parents.

For these reasons, I find that a residential school is not appropriate for Student as a special education placement.

ORDER

With the two modifications to the IEP described above, Attleboro’s proposed IEP is reasonably calculated to provide Student with a free appropriate public education in the least restrictive setting appropriate. As soon as possible, Attleboro shall convene an IEP Team meeting for the purpose of making the two modifications to the IEP.

Attleboro does not have responsibility to place Student at the F.L. Chamberlain School or other residential placement.

By the Hearing Officer,

William Crane

Dated: October 24, 2005

COMMONWEALTH OF MASSACHUSETTS

BUREAU OF SPECIAL EDUCATION APPEALS

EFFECT OF BUREAU DECISION AND RIGHTS OF APPEAL

Effect of the Decision

20 U.S.C. s. 1415(i)(1)(B) requires that a decision of the Bureau of Special Education Appeals be final and subject to no further agency review. Accordingly, the Bureau cannot permit motions to reconsider or to re-open a Bureau decision once it is issued. Bureau decisions are final decisions subject only to judicial review.

Except as set forth below, the final decision of the Bureau must be implemented immediately. Pursuant to M.G.L. c. 30A, s. 14(3), appeal of the decision does not operate as a stay. Rather, a party seeking to stay the decision of the Bureau must obtain such stay from the court having jurisdiction over the party’s appeal.

Under the provisions of 20 U.S.C. s. 1415(j), “unless the State or local education agency and the parents otherwise agree, the child shall remain in the then-current educational placement,” during the pendency of any judicial appeal of the Bureau decision, unless the child is seeking initial admission to a public school, in which case “with the consent of the parents, the child shall be placed in the public school program”. Therefore, where the Bureau has ordered the public school to place the child in a new placement, and the parents or guardian agree with that order, the public school shall immediately implement the placement ordered by the Bureau. School Committee of Burlington, v. Massachusetts Department of Education , 471 U.S. 359 (1985). Otherwise, a party seeking to change the child’s placement during the pendency of judicial proceedings must seek a preliminary injunction ordering such a change in placement from the court having jurisdiction over the appeal. Honig v. Doe , 484 U.S. 305 (1988); Doe v. Brookline , 722 F.2d 910 (1st Cir. 1983).

Compliance

A party contending that a Bureau of Special Education Appeals decision is not being implemented may file a motion with the Bureau of Special Education Appeals contending that the decision is not being implemented and setting out the areas of non-compliance. The Hearing Officer may convene a hearing at which the scope of the inquiry shall be limited to the facts on the issue of compliance, facts of such a nature as to excuse performance, and facts bearing on a remedy. Upon a finding of non-compliance, the Hearing Officer may fashion appropriate relief, including referral of the matter to the Legal Office of the Department of Education or other office for appropriate enforcement action. 603 CMR 28.08(6)(b).

Rights of Appeal

Any party aggrieved by a decision of the Bureau of Special Education Appeals may file a complaint in the state superior court of competent jurisdiction or in the District Court of the United States for Massachusetts, for review of the Bureau decision. 20 U.S.C. s. 1415(i)(2).

An appeal of a Bureau decision to state superior court or to federal district court must be filed within ninety (90) days from the date of the decision. 20 U.S.C. s. 1415(i)(2)(B).

Confidentiality

In order to preserve the confidentiality of the student involved in these proceedings, when an appeal is taken to superior court or to federal district court, the parties are strongly urged to file the complaint without identifying the true name of the parents or the child, and to move that all exhibits, including the transcript of the hearing before the Bureau of Special Education Appeals, be impounded by the court. See Webster Grove School District v. Pulitzer Publishing Company , 898 F.2d 1371 (8th Cir. 1990). If the appealing party does not seek to impound the documents, the Bureau of Special Education Appeals, through the Attorney General’s Office, may move to impound the documents.

Record of the Hearing

The Bureau of Special Education Appeals will provide an electronic verbatim record of the hearing to any party, free of charge, upon receipt of a written request. Pursuant to federal law, upon receipt of a written request from any party, the Bureau of Special Education Appeals will arrange for and provide a certified written transcription of the entire proceedings by a certified court reporter, free of charge.


1

20 USC 1400 et seq .


2

MGL c. 71B.


3

MGL c. 71B, ss. 1 (definition of FAPE), 2, 3.


4

Board of Education of Hendrick Hudson Central School District v. Rowley , 458 U.S. 176, 192, 102 S.Ct. 3034, 3043 (1982).


5

E.g., Lt. T.B. ex rel. N.B. v. Warwick Sch. Com., 361 F.3d 80, 83 (1st Cir. 2004) (“IDEA does not require a public school to provide what is best for a special needs child, only that it provide an IEP that is ‘reasonably calculated’ to provide an ‘appropriate’ education as defined in federal and state law.”).


6

For a more complete explanation of this standard and the legal authorities upon which it is based, see In re: Arlington , 37 IDELR 119, 8 MSER 187, 193-195 (SEA MA 2002).


7

Lenn v. Portland School Committee , 998 F.2d 1083, 1089-1090 (1st Cir. 1993):

[An IEP] must target “all of a child’s special needs,” Burlington, 736 F.2d at 788 (emphasis supplied), whether they be academic, physical, emotional, or social. See Roland M., 910 F.2d at 992 (explaining that “purely academic progress . . . is not the only indici[um] of educational benefit”); Timothy W. v. Rochester, N. H. Sch. Dist., 875 F.2d 954, 970 (1st Cir.) (observing that “education” under the Act is broadly defined), cert. denied, 493 U.S. 983, 110 S.Ct. 519, 107 L.Ed.2d 520 (1989); U.S. Dep’t of Educ., Notice of Policy Guidance, 57 Fed. Reg. 49,274 at 49,275 (1992) (stating that an IEP must address “the full range of the child’s needs”). . . . In the last analysis, what matters is not whether the district judge makes a series of segregable findings, but whether the judge is cognizant of all the child’s special needs and considers the IEP’s offerings as a unitary whole, taking those special needs into proper account.

See also 34 CFR 300.300(a)(3)(i) (special education services must “address all of the child’s identified special education and related services needs . . . .”); 603 CMR 28.02(18) (“Progress effectively in the general education program shall mean to make documented growth in the acquisition of knowledge and skills, including social/emotional development . . .”). Cf. 20 USC 1401(29) (“special education” defined to mean “specially designed instruction . . . to meet the unique needs of a child with a disability . . .”); Honig v. DOE , 484 U.S. 305, 311 (1988) (FAPE must be tailored “to each child’s unique needs”).


8

20 U.S.C. 1414(d)(3)(B)(i). The federal DOE regulations include a similar requirement. 34 CFR 300.346(2)(i).


9

CJN v. Minneapolis Public Schools , 323 F.3d 630. 642 (8th Cir. 2003) (“student’s IEP must be responsive to the student’s specific disabilities, whether academic or behavioral”); Indep. Sch. Dist. No. 284, Wayzata Area School v. AC , 258 F.3d 769 (8th Cir. 2001) (student’s behavior problems are not separable from the student’s learning process, and behavioral and emotional problems must be addressed through residential services if the student is to succeed academically); Gonzalez v. Puerto Rico Department of Education , 254 F.3d 350 (1st Dir. 2001) (“question is whether these behavioral disturbances interfere[ ] with the child’s ability to learn”); Board of Education of Montgomery County v. Brett Y , 155 F.3d 557 (4th Cir. 1998) (“residential placement that is necessary for ‘medical, social, or emotional problems that are segregable from the learning process’ need not be funded by the local education agency.”); Mrs. B. v. Milford Board of Education , 103 F.3d 1114, 1122 (2nd Cir. 1997) (“fact that a residential placement may be required to alter a child’s regressive behavior at home as well as within the classroom, or is required due primarily to emotional problems, does not relieve the state of its obligation to pay for the program under federal law so long as it is necessary to insure that the child can be properly educated”); Burke County Bd. Of Educ. v. Denton , 895 F.2d 973 (4th Cir. 1990) (“If residential placement is necessitated by medical, social, or emotional problems that are segregable from the learning process, then the local education agency need not fund the residential placement”).


10

34 C.F.R. 300.302.


11

Gonzalez v. Puerto Rico Department of Education , 254 F.3d 350 (1 st Cir. 2001); Abrahamson v. Hershman , 701 F.2d 223, 228 (1 st Cir. 1983).


12

20 USCS § 1412(a)(5).


13

Walczak v. Florida Union Free School Dist ., 142 F.3d 119 (2nd Cir. 1998).


14

Id.


15

Additionally, Dr. Harrison-Goldman stated in her report that “a program that provides and encourages family participation and family education would be beneficial.” This recommendation will be addressed later in this Decision.


16

At least one court has noted a more general connection between attendance and special education services. Lamoine School Committee vs. Ms. Z, on behalf of her minor son N.S ., 353 F. Supp. 2d 18 (D.ME 2005) (“it is unarguable if N.S. was not in school [as a result of attendance and tardiness difficulties], he could not be said to be receiving ‘a free appropriate public education’”).


17

20 USC § 1401(34):

The term “transition services” means a coordinated set of activities for a child with a disability that–       (A) is designed to be within a results-oriented process , that is focused on improving the academic and functional achievement of the child with a disability to facilitate the child’s movement from school to post-school activities, including post-secondary education, vocational education, integrated employment (including supported employment), continuing and adult education, adult services, independent living, or community participation;       (B) is based on the individual child’s needs , taking into account the child’s strengths, preferences , and interests ; and       (C) includes instruction, related services, community experiences, the development of employment and other post-school adult living objectives, and, when appropriate, acquisition of daily living skills and functional vocational evaluation. [Emphasis supplied.]


18

Parents sought to have admitted into evidence a letter from Dr. Harrison-Goldman, dated 9/28/05 and addressed to whom it may concern. The letter was not admitted principally because it was not made available to Attleboro and the Hearing Officer until the last day of the Hearing. The letter seeks to make a link between Student’s attendance difficulties and his Bipolar Disorder generally and his irregular sleep patterns (which Dr. Harrison-Goldman attributes to the Bipolar Disorder) more specifically. However, even if this letter were admitted into evidence, it would have been given little weight. There is nothing in the record to indicate Dr. Harrison-Goldman’s experience with these kinds of issues. Equally important, the letter raises as many questions as it seeks to answer. Dr. Harrison-Goldman did not testify, precluding both cross-examination by Attleboro and questions from the Hearing Officer for the purpose of clarifying her statements. Without her testimony as well as some indication of relevant experience of Dr. Harrison-Goldman, the letter provides little credible support for Parents’ position.

I also note that Dr. Harrison-Goldman’s neuropsychological report generally linked Student’s emotional and executive functioning difficulties with his behavior difficulties but did not specifically reference his attendance. Because Dr. Harrison-Goldman did not testify, it was not possible to know what her opinion is regarding the nexus between Student’s special education needs and his attendance. For this reason, her report is not useful regarding this issue.


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