Bellingham Public Schools – BSEA #04-1976



<br /> Bellingham Public Schools – BSEA #04-1976<br />

COMMONWEALTH OF MASSACHUSETTS

SPECIAL EDUCATION APPEALS

In Re: Bellingham Public Schools BSEA # 04-1976

DECISION

This decision is issued pursuant to 20 USC 1400 et seq . (Individuals with Disabilities Education Act), 29 USC 794 (Section 504 of the Rehabilitation Act), MGL chs. 30A (state Administrative Procedure Act) and 71B (state special education law), and the regulations promulgated under said statutes.

A hearing was held on January 26 and 27, 2004 in Malden, MA before William Crane, Hearing Officer. Those participating in all or part of the proceedings (either in person or by conference call) were as follows:

Student

Student’s Mother

Student’s Father

Jackie Farese School Adjustment Counselor and Team Chairperson, Bellingham Public Schools

Jeanne Little Director and Teacher, MRS program at the Blackstone Valley Regional Vocational Technical High School

Stephen Folino Program Coordinator, North River School

Marijane Hackett Administrator of Special Education, Bellingham Public Schools

Regina Tate Attorney for Bellingham Public Schools

The official record of the hearing consists of documents submitted by the Bellingham Public Schools (hereafter, Bellingham) and marked as exhibits S-1 through S-172; and approximately eight hours of recorded oral testimony and argument. Written closing arguments were due on February 6, 2004, and the record closed on that date.

INTRODUCTION

On October 30, 2003, Bellingham commenced this proceeding with the BSEA because Student has been out of school since December 2002. Since that date, Parents have declined to accept school-based services. The only educational services provided Student during this time have been home tutoring.

This matter was scheduled to proceed to Hearing on December 16, 2004. Parents’ postponement request for medical reasons was allowed. Through a conference call on December 16, 2003, the parties agreed to re-schedule the Hearing to January 26, 27 and 28. Parents requested these dates in order to allow sufficient time for them to prepare for the Hearing. During the conference call, and as reflected in the written scheduling Order of December 16 th , documents and witness lists were due by January 16, 2004.

Parents did not provide documents or witness list by January 16, 2004, and did not participate in the first day of Hearing on January 26, 2004. Tapes of the proceeding were mailed to them. Parents participated in the second day of Hearing (January 27, 2004) by conference call, and Student and Father testified at that time. During the second day of Hearing, Parents requested and were given until February 6, 2004 to submit their documents as well as written argument. No documents or written argument were received from Parents by February 6 th . On February 11, 2004, Parents requested additional time to submit documents. The request was denied.

POSITIONS OF THE PARTIES

Bellingham filed the request for hearing in this dispute because it believed that as a result of Parents’ refusal to accept educational services within a school setting, Student was being denied a free appropriate public education (FAPE). Bellingham believes that Student does not meet the standards, as set forth within the Department of Education regulations and policy guideline, for receipt of educational services through home tutoring. Bellingham further takes the position that Student’s educational services, in order to be appropriate, must be provided within a school setting. Bellingham argues that the proposed services for Student, as set forth within its most-recently proposed IEP, are appropriate.

Parents disagree that educational services should be provided within a school setting. They take the position that Student should be provided his educational services entirely through home tutoring. Parents have provided support for their position through written statements from medical doctors. They further argue that Student learns best at home and that all of Bellingham’s efforts to provide a school placement have been ineffective and frustrating for Student, essentially a waste of his time.

ISSUES

Issue 1 : Is Bellingham’s most recently-proposed IEP1 reasonably calculated to provide Student with a free appropriate public education (FAPE). If not, what education services are necessary in order for Student to receive FAPE?

Issue 2 : Does Student qualify to receive educational services through home tutoring, rather than in a school setting?

FACTS

Student profile .

Student is a sixteen-year-old boy (date of birth 2/21/87) who lives with his Parents in Bellingham, MA. He is likeable and engaging, and has many friends. Student hopes to finish high school so he can join the Army and then go to college. Student is motivated to learn academic skills. He enjoys reading books, magazines and on-line articles, and he is interested in learning about the repair of automobiles or studying marine biology as possible careers. Testimony of Farese, Student, Father.

Student has been diagnosed as having specific learning disabilities, Attention Deficit Hyperactivity Disorder (ADHD), Oppositional Defiant Disorder (ODD), possibly Asperger’s Syndrome, a mood disorder that has many of the hallmarks of bipolar illness, anxiety disorder, and obsessive-compulsive disorder. Student is considered to be of average intelligence, but his academic skills are significantly below grade level. Testimony of Farese, Father; exhibits S-122, S-172.

The most recent evaluations of Student are an achievement evaluation by Allan Rooney, PsyD in March 2002 (exhibit S-64), a psychological evaluation by Joshua Esters, EdD in December 2001 (exhibit S-54), an occupational assessment by Susan Morgan, OTR/L, in October and November 2001 (exhibit S- 53) and a speech/language evaluation by Angela Consigli, MSCC/SLP, in October and November 2001 (exhibit S-52).

Dr. Rooney administered the Woodcock Johnson – III Tests of Achievement. Results of the evaluation indicated that Student’s oral language and math calculation skills were low average; broad reading, broad math, broad written language, written expression and fluency with academic tasks and ability to apply academic skills were in the low range; and Student’s academic skills cluster in the very low range. Specialized academic services were recommended, particularly with regard to Student’s reading and writing difficulties. Exhibit S-64.

Dr. Esters’ psychological evaluation found that Student has ADHD, a generalized anxiety disorder and a reading disorder. He inferred that most of Student’s academic difficulties stem from anxiety, ADHD and emotional factors. Dr. Esters concluded that given his emotional lability, it is unlikely that Student would succeed in a regular class setting at this time. Exhibit S-54.

Ms. Consigli’s speech/language evaluation found Student’s receptive and expressive language ability, and his receptive and expressive vocabulary skills to be in the low average range. The evaluator concluded that Student should be maintained in a small, structured, hands-on program where he may benefit from additional 1:1 attention and support. No formal speech/language intervention was recommended. Exhibit S-52.

Most recent IEP and the services provided pursuant to it .

The most recently proposed IEP for Student was accepted in full by Parent on March 6, 2003. The IEP calls for placement of Student at the Maintenance Repair Service (hereafter, MRS) program which is a part of the Blackstone Valley Regional Vocational Technical High School (hereafter, BVT). Student attended MRS/BVT as a 10 th grader from the beginning of the 2002-2003 school year until December 2002. Testimony of Little; exhibit S-122.

The IEP calls for all academic services to be provided within a substantially separate program by MRS teachers, although reading is listed as being provided by a reading teacher rather than by MRS staff. The IEP also calls for counseling for a half hour within each ten-day cycle. Accommodations listed within the IEP include small group instruction, multi-sensory approach to teaching, with repetition and reinforcement. Exhibit S-122.

MRS/BVT is a substantially separate educational program which provides small, language-based classrooms, with additional 1:1 instruction as needed, together with a vocational program. The academic and vocational aspects of the program alternate each week. Testimony of Little.

The Director of the MRS/BVT program (Ms. Little) testified that Student made progress within the program, for example, in the area of the completion of written assignments and relating to peers although “he still had a long way to go.” She stated that Student was at times resistant when he perceived he was not able to do something, but that Student could be coaxed along to participate or to try something. Ms. Little further explained that Student demonstrated a low tolerance for frustration, occasionally needing to utilize the behavior resource center for time out. The time out sessions were considered effective, as they allowed Student to calm down and to process the behavior incident. Ms. Little testified that, in general, the techniques and approach of MRS appeared to be working with Student. Student received generally satisfactory grades at MRS. Testimony of Little, Hackett.

Student’s attendance at MRS/BVT was sporadic, and as time went by, he missed more and more school days. During the time period he was enrolled at MRS/BVT, he attended school only 47 days. Testimony of Little; exhibit S-128.

Ms. Little testified that Student’s inconsistent attendance made it impossible for him to make significant progress. However, she opined that the MRS/BVT program has the appropriate ingredients and structure for Student and can meet all of his educational needs. Testimony of Little.

Student expressed frustration with the vocational aspects of the program because he was not given the opportunity to learn automotive skills, and because the introduction of his Wilson reading program (that had been previously provided through a tutor) was delayed for a month or longer. Student testified that he believes that he would have been more successful at MRS/BVT if he had been given more support. Testimony of Student.

Since leaving MRS/BVT in December 2002, the only educational services received by Student have been tutorial services provided within the home. Testimony of Little, Student.

Requests for home tutoring .

Student testified that last year while he was a patient of Dr. Erwin (his psychiatrist), she tried him on a variety of new medications which resulted in side effects of feeling tired and having a headache. He explained that since some time last year, he stopped seeing Dr. Erwin and went off these medications and as a result he feels better. Student testified that he stopped attending the MRS/BVT program when Dr. Erwin began making changes to his medications. Student explained that Dr. Erwin recommended that he stay at home at this time and be “OK” before returning to school. Testimony of Student.

Parent submitted to Bellingham a physician’s statement in support of home tutoring, dated December 20, 2002. The statement, signed by Student’s psychiatrist (Dr. Erwin) listed the reasons for needing home instruction as attention deficit hyperactivity disorder and severe learning disabilities. Exhibit S-116.

By letter of January 7, 2003, the Bellingham Director of Special Education (Ms. Hackett) wrote Dr. Erwin stating that Dr. Erwin had not provided sufficient justification for Student’s being unable to attend school and asking Dr. Erwin to provide additional information. Exhibit S-127. On March 4, 2003, Parent provided Bellingham with a letter (dated March 3, 2003) from Dr. Erwin, in which Dr. Erwin provided additional information and predicted that Student would require home tutoring “until such time as his behavior is stabilized on new Medication as the risk of impulsive aggression is high. He should be able to return to school by mid May.” Exhibit S-140.

In response to Dr. Erwin’s letter of March 4, 2003, Bellingham began providing tutoring to student in March 2003. Richard Walker was engaged by Bellingham to tutor Student in the Wilson reading program. Rosemary Flaherty was engaged to tutor Student in math, written language, social studies and science. The tutoring was intended to continue until May 2003 when Dr. Erwin predicted that Student would be able to return to school. Testimony of Hackett, Student.

On May 16, 2003, Parent submitted to Bellingham a physician’s statement in support of continued home tutoring. The statement, signed by Student’s primary pediatrician (Dr. Henry) and dated May 16, 2003, provided that Student would need home tutoring for the indefinite future because Student “has severe multiple learning disabilities, achieving at a 4 th grade level, as well as ADHD, Asperger’s, ODD, Adjustment/Anxiety Disorders.” In response to the question on the form which asks what criteria would need to be met before Student is able to return to a public school program, Dr. Henry wrote “The student achieves grade-level work”. Exhibit S-144.

Bellingham did not find Dr. Henry’s explanation sufficient to justify home tutoring. Ms. Hackett made several attempts to reach Dr. Henry by telephone to obtain more information, without success. By letter of June 16, 2003, Ms. Hackett wrote Dr. Henry, stating that Dr. Henry had not provided sufficient justification for Student’s being unable to attend school and asking Dr. Henry to provide additional information. Exhibit S-159. When Ms. Hackett did not receive a response to her letter, she wrote a subsequent letter dated July 15, 2003 to Dr. Henry requesting again that he provide additional information necessary to justify home tutoring. Exhibit S-163. Ms. Hackett did not receive a response from Dr. Henry until shortly before the Hearing in this dispute. Testimony of Hackett.

Bellingham subpoenaed Dr. Henry to attend the evidentiary Hearing in this dispute. Apparently in response to this subpoena, Dr. Henry wrote a letter “To Whom It May Concern” stating that he was in receipt of a “summons” regarding Student and had enclosed a letter “explaining my thoughts on this issue”. The enclosed letter from Dr. Henry, dated January 23, 2004 and addressed to “To Whom It May Concern” stated that he has been Student’s primary pediatrician for the past ten months. Dr. Henry went on to explain that Student “has severe learning disabilities (reading, expressive and written language, and math), and also suffers from ADHD, ODD (Oppositional Defiant Disorder), Asperger’s Syndrome, a mood disorder that has many of the hallmarks of bipolar illness, anxiety disorder, and obsessive-compulsive disorder.” In his letter, Dr. Henry notes Student’s difficulties and lack of success in school, Student’s feelings of frustration towards school, and the apparent success of home tutoring which is also “much less anxiety-provoking for [Student]” than attending school. Dr. Henry also noted his concern that Student needs additional assistance from a psychiatrist regarding management of his medications. Dr. Henry concluded by requesting, for these reasons, that Bellingham provide Student with home tutoring as soon as possible as “the only way to go with this student.” Exhibit S-172.

Future school placement for Student .

Bellingham’s Director of Special Education (Ms. Hackett) testified that although the MRS/BVT program is listed as Student’s placement within the last accepted IEP (exhibit S-122), it is unlikely that Student would be able to return to this program, nor would she recommend it in any event. Ms. Hackett explained that Student would have to apply to attend MRS/BVT (since it is not a Bellingham program) and because of Student’s experience there during the 2002-2003 school year, it is unlikely that he would be accepted. She opined that it would likely be in Student’s interests to start fresh, with a clean slate at a new placement. In addition, Parents and Student have made it clear that they would not accept placement at MRS/BVT. For these reasons, Ms. Hackett stated that she and her staff looked for another placement where Student would receive the academic and therapeutic support needed, together with a vocational program. Testimony of Hackett.

Ms. Hackett testified that, with the help of her staff, she identified the North River School, which is part of the North River Collaborative. She believes that this would be an appropriate placement for Student. Testimony of Hackett.

The North River School program coordinator (Stephen Folino) testified that he received from Bellingham and reviewed a “blind” (that is, redacted of identifying information) packet and was asked to review it for purposes of considering Student as a candidate for the North River School. He testified that the North River School combines vocational and academic education for students with behavioral, emotional and/or learning disabilities. He noted that instruction is through small groups, with 1:1 assistance as needed, and that two counselors and a consulting psychologist provide support as necessary in order to allow the students to be successful in his school. Testimony of Folino.

When asked whether Student would likely be an appropriate candidate for admission into the school, Mr. Folino testified that prior to any decision being made regarding Student, there would need to be an interview with Parent and Student for purposes of determining, both from the perspective of the school and from the perspective of Parents and Student, whether North River would be a good fit and whether the education and programming offered there is likely to work well for Student. Mr. Folino noted, however, that everything within Student’s IEP can be implemented at North River School. Testimony of Folino.

Student testified regarding any future educational placement. He explained that he wanted to receive home tutoring in the Wilson reading program and in his academic subjects, rather than attend school. His testimony was consistent with Dr. Henry’s letter (exhibit S-172, summarized above), in describing the schools that he has attended over the past few years as a consistently frustrating experience where he made little academic progress. When asked to describe what would be his ideal school (if he were to attend one), he talked about the possibility of attending Bellingham High School in the regular education classrooms. He also acknowledged the need for counseling. He also noted that he is behind his peers academically and concluded that he should be provided home tutoring, without attending school, as the only appropriate way for him to receive his education. Testimony of Student.

Attempts to develop a current IEP .

Bellingham’s Director of Special Education (Ms. Hackett) testified that although she has made several attempts to engage Parent and develop a new IEP, these efforts have so far been unsuccessful. For example, a Team meeting was held on June 13, 2003 in order to plan Student’s educational program for the next school year. Parent attended the meeting but declined to cooperate with Bellingham to develop a new IEP. Ms. Hackett suggested that Parent consider the North River School, but Parent did not follow through with a visit to the school. Testimony of Hackett.

Bellingham sought to schedule a Team meeting in August, but Parents did not respond to the invitation to the meeting. A Team meeting was held on September 18, 2003, and the North River School was again proposed, but Parent declined to participate in the development of an IEP, taking the position that Student could not go to any school. Testimony of Hackett; exhibits S-166, S-167, S-168.

Ms. Hackett testified that Student needs to receive support through counseling, including family counseling. A new IEP would address these needs.

DISCUSSION

Introduction .

Student is an individual with a disability, falling within the purview of the Individuals with Disabilities Education Act2 and the state special education statute.3 As such, Student is entitled to a free appropriate public education (hereafter, FAPE).4 Neither his eligibility status nor his entitlement to FAPE is in dispute.

FAPE requires that the individualized education program (IEP) be tailored to address a student’s unique needs in a way reasonably calculated to enable the student to make meaningful and effective educational progress in the least restrictive environment.5

The general issue presented is whether the programming and specialized services embodied in the School District’s proposed IEP are consistent with this legal standard . The more specific issue is whether Student is entitled to receive his education through home tutoring.

Educational services within the least restrictive environment .

Parents’ and Student strongly argue that the only effective and appropriate education that would meet Student’s unique needs is home tutoring. Student testified as to the significant frustration he has experienced over the years at a large number of schools. He believes that he has never been effectively educated within a school, has often been grouped inappropriately with older students or more disabled students, and has only wasted his time with instruction that has not helped him.

Student’s Mother and Father echo these concerns, as does his pediatrician, Dr. Henry. In his recent letter, dated January 23, 2004 (which was apparently prepared for purposes of this Hearing), Dr. Henry noted Student’s difficulties and lack of success in school, Student’s feelings of frustration towards school, and the apparent success of home tutoring which is “much less anxiety-provoking for [Student]” than attending school. Dr. Henry concluded by requesting, for these reasons, that Bellingham provide Student with home tutoring as “the only way to go with this student.” Exhibit S-172.

The federal special education law (the IDEA), however, does not support Student’s receiving education at home under these circumstances.

The IDEA mandates that a free, appropriate education be available to all eligible special needs students. Within this general mandate, the IDEA provides a specific directive prescribing the environment within which students with special needs are to receive their education. The IDEA provides that each state must establish policies and procedures to assure that:

To the maximum extent appropriate, children with disabilities . . . are educated with children who are not disabled, and special classes, separate schooling, or other removal of children with disabilities from the regular educational environment occurs only when the nature or severity of the disability of the child is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily.6

Pursuant to this requirement, Bellingham has a legal responsibility to provide Student’s education in the least restrictive environment where appropriate services can be delivered. Providing educational services only within the home, separate from a student’s peers at school, is considered the most restrictive educational setting possible.

As a result, even though Student may have experienced a significant amount of frustration and difficulty within various school placements and even though he, with the support of his Parents and physician, strongly advocate for Student’s receiving all his education at home, Bellingham has a legal responsibility to offer educational services within the less restrictive and more inclusive setting of a school, unless Student is precluded from attending school and being educated there.

Legal standards for determining whether home tutoring may be provided .

The Massachusetts Department of Education regulations set forth the legal standards for determining whether tutoring at home must be provided by a school district. The regulations provide, in relevant part, as follows:

Educational services in home or hospital . Upon receipt of a physician’s written order verifying that any student enrolled in a public school or placed by the public school in a private setting must remain at home or in a hospital on a day or overnight basis, or any combination of both, for medical reasons and for a period of not less than fourteen school days in any school year, the principal shall arrange for provision of educational services in the home or hospital. . . .7

The Massachusetts Department of Education has issued written guidelines on the implementation of these regulations through its Question and Answer Guide on the Implementation of Educational Services in the Home or Hospital, 603 CMR 28.03(3)(c) and 28.04(4) (issued February 1999, revised January 2002) (hereafter, DOE Guide).8 The DOE Guide makes clear (in question # 3) that, at a minimum, the school district must receive a physician’s signed statement which includes “the medical reason(s) for the confinement” to the home.

The DOE regulations, as clarified by the DOE Guide may be summarized, for purposes of this dispute, to mean that qualification for home tutoring requires a statement from a physician verifying that the student “must remain at home” (i.e., is confined to the home) for “medical reasons”.

Physician’s statements in support of home tutoring .

In the present dispute, there have been a variety of statements from physicians. However, because this dispute is focused exclusively on prospective relief (as opposed to any compensatory claims), I consider only those physician statements which are sufficiently recent to be relevant to Student’s current status.

The most recent physician’s form, dated May 16, 2003, was completed by Dr. Henry who is Student’s primary pediatrician. The reasons provided by Dr. Henry in support of Student’s need to remain at home and receive tutoring were that Student “has severe multiple learning disabilities, achieving at a 4 th grade level, as well as ADHD, Asperger’s, ODD, Adjustment/Anxiety Disorders.” Exhibit S-144.

Although Bellingham promptly sought additional information from Dr. Henry, nothing was provided until Dr. Henry’s letter, dated January 23, 2004 and addressed to “To Whom It May Concern” in response to Bellingham’s subpoena to testify in this dispute. Dr. Henry provided the following additional reasons for Student’s home confinement and need for tutoring: Student “has severe learning disabilities (reading, expressive and written language, and math), and also suffers from ADHD, ODD (Oppositional Defiant Disorder), Asperger’s Syndrome, a mood disorder that has many of the hallmarks of bipolar illness, anxiety disorder, and obsessive-compulsive disorder.” Exhibit S-172.

Dr. Henry’s justifications for home tutoring essentially amount to a listing of the diagnoses which Student has been given by professionals who have worked with him. I will assume, without deciding, that at least some of the listed diagnoses are medical in nature.

In order for Parents to prevail in their efforts to obtain home tutoring, their physician’s statement must provide some basis for me to conclude that Student cannot be educated within the school setting. For the reasons explained below, a simple recitation of Student’s diagnoses is not sufficient.

The unopposed testimony made clear that the diagnoses cited by Dr. Henry are routinely accommodated by Bellingham (and other school districts) within a school setting through the provision of special education and related services, as Bellingham has proposed in its most recent IEP. Testimony of Hackett, Little; exhibit S-122.

Nothing within Dr. Henry’s original submission of May 16, 2003 or in his more recent letter of January 23, 2004 explains how any of Student’s diagnoses impacts upon his ability to leave the home and receive educational services at a school. Dr. Henry has provided no basis for distinguishing Student (and his diagnoses) from all of the students with these same diagnoses who receive their educational services within a school setting. In other words, the diagnoses, without more, do not explain why Student must remain at home.

Dr. Henry stated (in his May 16 th submission) that Student would be able to return to a school setting when he “achieves grade-level work” presumably as a result of home tutoring. This is revealing in that Dr. Henry’s opinion is not, ultimately, that any of Student’s several diagnoses will keep Student from returning to school, but rather that it is only Student’s level of educational proficiency that ultimately will determine his return date. Exhibit S-144.

Dr. Henry’s January 23, 2004 letter recited the frustrations that Student has experienced within a variety of school settings, the apparent success of home tutoring, and Dr. Henry’s opinion that home tutoring would serve this Student best. Exhibit S-172.

It seems apparent from his May 16, 2003 submission and January 23, 2004 letter that Dr. Henry believes that Student should be educated through home tutoring because Dr. Henry believes this to be most educationally appropriate for Student. Unfortunately for Parents, Dr. Henry’s educational opinions can provide no basis for Bellingham or me to conclude that Student is confined to his home for medical reasons.

For these reasons, Dr. Henry’s statements fail to satisfy the DOE regulatory requirements for home tutoring.

Additional evidence regarding Student’s ability to return to school for his education .

There was no additional evidence from which one could conclude that, for any reason, Student is home-bound; nor have Parents sought to argue that Student is confined to the home. To the contrary, the evidence presented by Parents clearly indicates that Student frequently leaves home independently without any difficulty.

Student testified that he regularly leaves his home, particularly after the end of the school day. He described various things that he typically enjoys doing outside of his home within the community – for example, “hanging out” with his many friends, watching football games, seeing his girlfriend, driving a car (he has his learner’s permit). (Ms. Hackett testified that Parents would not consent to home tutoring being scheduled after school hours, because the tutoring would then interfere with Student’s spending time with his friends.)

The inescapable conclusion is that Student is not, for any reason, confined to his home.

Importance of receiving educational services within a school setting .

There are additional, and perhaps even more important, reasons why Bellingham is correct in not acquiescing to Parents’ request that Student’s education occur within the home.

Bellingham has a responsibility to propose educational services and a placement which are reasonably calculated to allow Student to develop his individual educational potential.9 As explained above, Student has average intelligence and is motivated to learn, and yet he is far behind his peers academically. It is apparent that Student has significant potential to learn, not only with respect to those academic skills which have not yet been mastered but also practical skills essential for employment and living independently as an adult. For the following reasons, I believe that education which is reasonably likely to address Student’s potential for learning can occur effectively only within a school setting.

Student has expressed his desire to learn, achieve academic success, pass the MCAS examinations, graduate from high school, join the Army, go to college and gain employment, perhaps involving the repair of automobiles. Student’s academic skills are significantly below grade level even though he has average intelligence.

Were Bellingham to provide the academic tutoring requested by Parents, Student would have little likelihood of making significant academic gains. In order to make sufficient academic progress to reach his goals, Student needs the more structured, supervised and disciplined learning environment that routinely occurs within a school environment. At school, Student will be provided the daily instruction, practice and skill development, and the more intensive learning environment that is necessary. This learning experience simply cannot be replicated effectively for Student at home, alone with a tutor for several hours each day. (It also is noted that when tutoring has been offered within the home in the past, Student made very little academic progress, other than through the Wilson reading program tutoring.) Testimony of Hackett, Little, Student; exhibit S-160.

In addition, the school setting provides an opportunity to learn within a prescribed structure, thus requiring that Student respond appropriately to a schedule, rules and expectations of others during the day. Learning to function appropriately and effectively within such a setting is essential to making a successful transition to adult environments, such as employment and/or military service in the Army. Development of these skills simply cannot be learned staying at home, receiving individual tutoring. Testimony of Little, Hackett.

Finally, I note that although Student has many friends and may socialize easily with others, he appears to be in need of better pragmatic language skills. Regarding this area of need, Student would likely benefit significantly from being with other students during the school day and exposed to as much language as possible. In addition, Student would benefit from greater self-esteem, an issue which can be addressed effectively only in a context with other students. These issues simply cannot be addressed effectively through home tutoring. Testimony of Little, Hackett.

Appropriateness of Bellingham’s IEP .

Parents have focused their evidence and argument on the need for all of Student’s education to be within the home. Parents have not presented evidence or argument for the purpose of establishing the inappropriateness of the special education and related services described within the most recent IEP. At most, the evidence presented by Parents might cast doubt on whether the most recent IEP was fully or successfully implemented and might cast doubt on whether the placement at the MRS/BVT program was (or would be) appropriate.

The most recently proposed IEP for Student was accepted in full by Parent on March 6, 2003. Exhibit S-122.10 This IEP calls for all academic services to be provided within a substantially separate program by MRS teachers, although reading is listed as being provided by a reading teacher rather than by MRS staff. Accommodations listed within the IEP include small group instruction, multi-sensory approach to teaching, with repetition and reinforcement. Exhibit S-122. If Student had attended a school on a consistent basis, it seems likely that the services described within the IEP would result in meaningful and effective progress. Testimony of Farese, Little, Hackett.

The unopposed evidence supports a conclusion that this IEP proposes appropriate special education and related services, with the exception of counseling services and placement, which are discussed below.

Ms. Hackett (Bellingham’s Director of Special Education) testified as to the need for counseling for Student, including family counseling. The most recent IEP provides only for counseling for a half hour within each ten-day cycle. The IEP Team will need to consider this issue and determine whether additional counseling should be provided.

As noted above, the Parents’ concern with the IEP appears to be the placement, rather than the services and accommodations described within the IEP. Bellingham does not suggest that Student should (or even would be accepted by MRS/BVT in order to) return to the MRS/BVT program. Rather, Bellingham proposes that Student attend the North River School.

The only evidence relevant to the appropriateness of a placement at North River School was the testimony of its program coordinator (Mr. Folino). Although Mr. Folino reviewed Student’s IEP and testified that he believed the North River School could provide the services described within it, Mr. Folino declined to answer the question of whether North River School would be an appropriate placement to meet Student’s unique educational needs. Mr. Folino testified as to the importance of an interview with Student and his Parents in determining whether such a placement would likely be successful. He explained that without the completion of the interview process, it simply is not possible for a determination to be made as to whether North River School would be an appropriate placement for Student.

On the basis of this evidence, it is not possible for me to make any finding regarding the appropriateness of Bellingham’s proposed placement at the North River School. The only placement proposed by Parents is home tutoring which is not appropriate. Accordingly, Bellingham will need to reconvene the IEP Team to discuss and determine, in the context of this Decision, an appropriate placement for Student.

Creating an educational program at the high school .

It is apparent that through this Decision that I cannot make any determination regarding Student’s placement. Nevertheless, I take this opportunity to make the following suggestions, leaving it to the discretion of the parties whether to follow them.

Student is 16 years old (soon to be 17 years) and therefore is not required, pursuant to state or federal law, to attend school. Presumably the only educational placement which Student would actually attend (and therefore would have any chance of benefiting him educationally) would be a placement that could be agreeable to all concerned. I encourage Bellingham to creatively consider what kind of a placement within a school setting might possibly be acceptable to Student.

I am convinced by the testimony in this case that Student truly is motivated to learn. I am equally persuaded that Bellingham would like to find a school placement which Student might be willing to consider attending and which could address his educational needs.

After listening to Student’s testimony, it appears that what might possibly be of interest to Student would be to attend Bellingham High School. Student’s obvious concern appeared to be that his academic skills are significantly below grade level. However, during her rebuttal testimony after listening to Student’s testimony, Ms. Hackett began to discuss the idea of a possible high school placement. She explained that many special needs students are mainstreamed at the high school, with supports and accommodations within the classroom and with additional (so-called pull-out services) to supplement the mainstreamed classes. These services and accommodations are tailored to meet the unique needs of the particular student.

A placement at the high school might possibly address Student’s concerns regarding his past placements (for example, the disabilities and behavior of other students, and the failure of the instruction to be helpful to him) and, at the same time, might give Student greater access during the day to his friends as well as to the many extracurricular activities at the high school.

I encourage both parties to consider and explore informally this (and any other) possible placement option which might be satisfactory to all concerned.

Additional evaluations .

Although not requested by either party, more current evaluations may be called for. The most recent evaluations of Student are an achievement evaluation in March 2002 (exhibit S-64), a psychological evaluation in December 2001 (exhibit S-54), an occupational assessment in October and November 2001 (exhibit S- 53) and a speech/language evaluation in October and November 2001 (exhibit S-52). Particularly, if Student and Parents would be willing to consider the development of an educational program within a school setting (for example, at the high school), additional evaluations may be helpful in providing insight into Student’s current educational needs and how they can be met.

ORDER

Bellingham’s most recent IEP is reasonably calculated to provide a free appropriate public education, with the exception of (1) the need to address family counseling (and perhaps additional individual counseling) and (2) the need to determine an appropriate placement.

The IEP Team shall convene to (1) consider arranging for more current evaluations, (2) address Student’s needs regarding counseling, and (3) propose an appropriate placement.

Student is not entitled to receive educational services through home tutoring.

By the Hearing Officer,

William Crane

Dated: February 17, 2004

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 seek 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).

Under Massachusetts General Laws, Chapter 30A, Section 14(1), appeal of a final Bureau decision to state superior court must be filed within thirty (30) days of receipt of the decision.

The federal courts have ruled that the time period for filing a judicial appeal of a Bureau decision in federal district court is also thirty (30) days of receipt of the decision, as provided in the Massachusetts Administrative Procedures Act, M.G.L. c.30A . Amann v. Town of Stow , 991 F.2d 929 (1 st Cir. 1993); Gertel v. School Committee of Brookline , 783 F. Supp. 701 (D. Mass. 1992).

Therefore, an appeal of a Bureau decision to state superior court or to federal district court must be filed within thirty (30) days of receipt of the Bureau decision by the appealing party.

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

Exhibit S-122. This IEP covered the period 12/18/02 to 12/18/03. There was a subsequent amendment to the IEP (exhibit S-123) which was written to provide for tutoring for a limited time period which has lapsed. No further IEPs or amendments were proposed. Therefore, for purposes of this Decision, the most-recently proposed IEP will refer to exhibit S-122.


2

20 USC 1400 et seq .


3

MGL c. 71B.


4

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


5

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). See also 603 CMR 28.05(4)(b) (Student’s IEP must be “ designed to enable the student to progress effectively in the content areas of the general curriculum”); 603 CMR 28.02(18) (defining the phrase “ progress effectively in the general education program”).


6

20 USC 1412(5)(A). The Massachusetts special education statute also requires that FAPE be provided in the least restrictive environment (MGL c. 71B, ss. 2, 3) and defines the term “least restrictive environment” consistent with the federal statutory language quoted above (MGL c. 71B, s. 1).


7

603 CMR 28.03(3)(c) (emphasis supplied). See also MGL c. 71B, s.2, as amended by Ch. 184, Sec. 81 of the Acts of 2002, effective July 1, 2002 (setting forth the statutory standard for home tutoring).


8

The DOE Guide may be found on the DOE website at: http://www.doe.mass.edu/sped/archive.asp


9

MGL c. 71B, s. 1 (defines “special education” to mean “educational programs and assignments . . . designed to develop the educational potential of children with disabilities . . . .”); 603 CMR 28.01(3) (identified purpose of the state special education regulations is “to ensure that eligible Massachusetts students receive special education services designed to develop the student’s individual educational potential”) See also T.R. ex rel. N.R. v. Kingwood Twp. Bd. of Educ., 205 F.3d 572, 578 (3d Cir. 2000) (assessment of what constitutes free appropriate education made in light of “individual needs and potential”); Ridgewood Board of Education v. NE , 172 F.3d 238 (3 rd Cir. 1999) (“quantum of educational benefit necessary to satisfy IDEA . . .requires a court to consider the potential of the particular disabled student before it”).


10

A subsequent amendment to the IEP allowed for Student to receive educational services at home from 3/6/03 to 5/29/03. Exhibit S-123.


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