COMMONWEALTH OF MASSACHUSETTS
SPECIAL EDUCATION APPEALS
In Re: Dracut Public Schools
BSEA # 02-0630
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 August 13, 2001 in Malden, MA before William Crane, Hearing Officer. Those present for all or part of the proceedings were:
Student
Student’s Mother
Student’s Grandfather
Nicola Favorito Attorney for Dracut Public Schools
Suzanne Cloutier Administrator of Special Education, Dracut Public Schools
The official record of the hearing consists of documents submitted by Student’s mother (hereafter Parent) and marked as exhibits 1 through 3 (hereafter, Exhibit P-1, etc.); documents submitted by the Dracut Public Schools (hereafter, Dracut) and marked as exhibits 1 through 7 (hereafter, Exhibit S-1, etc.); and approximately three hours of recorded oral testimony and argument, including oral closing arguments.
In order to apprise the parties in a timely manner of the decision in the case, an Order was issued in advance of the full text of this Decision. See Appendix I.
ISSUES PRESENTED
Has the Dracut Public Schools proposed an appropriate summer program for the period of August 17, 2001 to the beginning of the 2001-2002 school year?
If not, should Dracut Public Schools be required to place Student in the summer program proposed by Parent?
POSITIONS OF THE PARTIES
A. Parent’s Position .
Parent believes that Camp Kingsmont can best meet her son’s needs for the period of August 17, 2001 to the beginning of the 2001-2002 school year. Instead, Dracut has offered Student an opportunity to meet with the program director for Student’s middle school (Kristen Denty) for up to 45 minutes per day during this time period. Parent argues that these proposed services do not provide the requisite structure and routine needed by Student in order to avoid regression.
B. Dracut’s Position .
Dracut takes the position that Student does not need a program or services with significant structure and routine in order to avoid regression during the period of August 17, 2001 to the beginning of the school year, and what it has offered Student would meet his needs.
PROFILE AND HISTORY
In an earlier, related dispute between the same parties, a Hearing was held on June 21, 2001 regarding the issue of summer services for Student. The parties were in agreement that Student would likely regress without a summer program, but disputed what services should be provided. In a Decision dated June 26, 2001 (hereafter, June Decision), this Hearing Officer found in favor of the school district, concluding that Dracut should provide its proposed Merrimack Summer School Program to Student for six weeks from July 9 to August 17, 2001.1
The June Decision further explained:
Finally, I note that attendance at the Merrimack Summer School Program would leave Student with no organized structure from the end of this program (August 17, 2001) to the beginning of the school year. . . . However, neither the Parties nor any witness addressed what should occur during this period of time. . . . Dracut shall convene a Team meeting to consider and determine with Student and Parent what should be provided Student during this end-of-summer period.2
Dracut convened a Team meeting in early July 2001 and again on July 30, 2001 to address the end-of-summer period. As a result of the last Team meeting, Dracut offered to provide Student with up to 45 minutes per day with Kristen Denty (the program director from Student’s middle school).3
On July 31, 2001, Parent filed with the Bureau of Special Education Appeals (hereafter, BSEA) an appeal of Dracut’s proposal for the end-of-summer period. The appeal challenged whether Dracut had proposed an appropriate program for this period.
As reflected in an Order prior to the Hearing, the evidence, findings and conclusions of the June Decision will be relied on by the Hearing Officer in resolving the present dispute, as well as additional evidence submitted by the parties regarding the current dispute. The June Decision may be referred to for a description of Student, his special education needs and the special education services that have been provided to him during the school year and summer program.
STATEMENT OF THE EVIDENCE
Student has, at times, become oppositional towards school staff when frustrated, and he sometimes has difficulty with peer interactions. He needs an environment which addresses his feelings of occasional anger and low self-esteem. He responds well to structured activities, clear, consistent limit setting and well-established classroom rules.4
At the Hearing on June 21, 2001, the testimony of Parent and the testimony of Kristen Denty (the Program Manager for Student’s middle school who testified on behalf of Dracut) were consistent that during the times that are left unstructured, Student reverses his sleep/awake patterns, withdrawing (becoming isolated and depressed, with no friends), and refusing even to go to the beach with his mother. At these times, Student’s negative behavior is exacerbated – for example, his affect is depressed, he becomes isolated from others, and he can become oppositional.5
The June Decision found that in order to meet Student’s needs during the summer, Student requires a daily routine with as much structure as possible. The Decision stated that even for relatively short time periods that are left unstructured (for example, school vacations during the academic year), Student has been at risk of regression socially and emotionally.6
The June Decision further found that during the summer, Student continues to need social and emotional support. Although he has made impressive strides in addressing such issues as inappropriate peer interactions and oppositional behavior and has distinguished himself through his leadership abilities, Student continues to struggle with low self-esteem, and occasional frustration, depression and oppositional behavior. The June Decision concluded that he would benefit from a therapeutic environment intended to address and promote greater maturity and skill development regarding these social and emotional issues.7
The June Decision explicitly addressed the period of time from August 17, 2001 until the beginning of school, by first reciting the testimony that Student needs as much structure as possible during the summer and then concluding that there is risk of regression if Student is without a daily routine for even this short period of time.8
Student has been attending the Merrimack Summer Program from 8:15 AM to 2:15 PM, five days per week, for the six week program from July 9, 2001 to August 17, 2001. Student has successfully participated in this program although he has not been interested in a number of the activities and has not found the program to be helpful to him. Mother and Grandfather testified that Student continues to have difficulty getting to camp in the morning, missing the bus several times, just as he has done during the academic year. Student has missed at least four days of the summer program. Student’s testimony made clear that he continues to be at risk of reversing his sleeping patterns if left without significant routine and structure even for a relatively short period of time such as a week.9
Dracut introduced evidence in support of its position that a program or services with significant routine and structure during the end-of-summer period is not necessary for Student in order to avoid regression. Dracut’s evidence took the form of testimony by Ms. Cloutier and an affidavit from Mary Clisbee (Exhibit S-6). Ms. Cloutier testified that she believes that Student is not in danger of regression without a summer program or similar services during this period. Ms. Cloutier knows Student from documents, discussions with others, attending meetings and attending the previous Hearing in this matter. She formed her opinion regarding Student’s need for summer services on the basis of a discussion with Elaine Sinclair (Dracut’s out of district coordinator) and Ms. Clisbee’s affidavit (discussed below).
In her affidavit of August 8, 2001, Mary Clisbee opines that Student would not regress if he does not have a “highly structured activity schedule” for the time period in question. As Ms. Clisbee explains in the affidavit and as she previously testified, her knowledge of Student is gained from two meetings (including an initial interview with Student when he applied to the collaborative middle school program), observations of Student and discussions with others. Within her affidavit she recites various statements made by Student and Michael DeFelice (the director of Student’s current summer program) on which she relies. Student explained in his testimony that Ms. Clisbee’s recent observations of him have been quite brief and informal.10
Parent proposed that her son attend Camp Kingsmont, a residential camp in Western Massachusetts, which would provide substantial structure and routine. Wake up is at 7:45 AM. Each day includes six one-hour activities. Additional, evening activities begin a hour and a half after dinner. The camp activities are of interest to Student. The camp would also assist Student to reduce and manage his weight.11
FINDINGS AND CONCLUSIONS
Student is an individual with a disability, falling within the purview of the Individuals with Disabilities Education Act (IDEA), 20 USC 1400 et seq . and the state special education statute, MGL c. 71B. As such, he is entitled to a free, appropriate public education (hereafter, FAPE) which is reasonably calculated to assure her maximum possible educational development in the least restrictive environment consistent with that goal. David D. v. Dartmouth School Committee , 775 F.2d 411, 423 (1 st Cir. 1985).
A. The Issue in Dispute .
It is agreed by the parties that Student is generally eligible for special education services. It has been determined (by agreement of the Parties and as reflected in the June Decision) that he meets the requisite standards to receive a summer program pursuant to applicable regulatory standards. It has been determined what summer services he should receive up until August 17, 2001. The only issue in dispute is what services should be provided to Student during the end-of-summer period from August 17, 2001 to the beginning of the school year.
B. Student’s Needs Regarding the Summer .
As explained in more detail in the Statement of the Evidence, above, the evidence presented by Dracut at the June 21, 2001 Hearing was in agreement with the evidence presented by Parent regarding Student’s needs for a substantial amount of routine and structure in order to avoid regression during the summer. The June Decision found that even for relatively short time periods that are left unstructured (for example, school vacations during the academic year), Student is at risk of regression socially and emotionally. The June Decision further found that Student continues to struggle with low self-esteem, and occasional frustration, depression and oppositional behavior.12
The June Decision concluded that Dracut’s proposed summer program (Merrimack Summer School Program) is appropriate to meet these needs, except for the end-of-summer period.13
C. What Program Should be Provided Student for the End of the Summer .
Student’s needs during the end of the summer are not significantly different than during the remainder of the summer when he has been attending the Merrimack Summer School Program. He is at risk of regression, even for relatively short periods of time, without sufficient routine and structure. He would also benefit from activities that will engage him, providing social and emotional support, as he continues to struggle with low self-esteem. The June Decision provides the basis for these findings.14
During the intervening time between the June Hearing and the August Hearing, Student has neither made sufficient progress nor otherwise changed so as to eliminate the need for routine and structure during the end of summer period. Student has not found the current summer program to be helpful to him even though he has successfully participated in it. His testimony was persuasive that he continues to be at risk of reversing his sleeping patterns (which then typically leads to substantial regression) if left without significant routine and structure even for a relatively short period of time, such as a week.15
It is particularly important that Student not suffer any significant regression immediately before going back to school. Student is making a potentially difficult transition from a special education collaborative (the Merrimack School) that he attended last year to a regular education high school (the Greater Lowell Technical High School) that he will attend the next school year.16
At the same time, it is apparent that the period in question is relatively short (essentially a week and a half), making it less important that Student have the same intensity of services that are currently being provided in Dracut’s six-week summer program. And, there is more room for flexibility regarding the precise nature of the activities and support.
I find that, even though at issue in this dispute is a relatively brief period of time, the need for structure and routine in order to avoid regression is not substantially different than during the earlier parts of the summer. I further find that what remains essential in order to prevent substantial regression is a program or services that include a substantial amount of structure and routine, with activities that will keep Student engaged.
D. What Dracut has Proposed .
To meet Student’s need, Dracut has proposed only that Student meet daily with Kristen Denty for up to 45 minutes per day. The purpose of this time is to allow Student to discuss with Ms. Denty, who is the program manager from Student’s middle school program, any issues or concerns that Student may have relevant to his transition to a vocational High School for the 2000-2001 school year. This proposal was made as a result of the most recent Team meeting, which occurred on July 30, 2001.17
It is apparent that what Dracut has proposed would not the provide the routine and structure (including activities that will engage Student) that have been described above in subsection C as necessary to avoid substantial regression.
Dracut does not argue that it has offered substantial routine and structure that will engage Student. Rather, Dracut takes the position that Student does not need any significant amount of direct services or other program in order to avoid regression for the relatively short period of time (approximately one and a half weeks) from the end of his existing summer program to the beginning of school. As explained above, the findings of the June Decision are to the contrary, and these findings are further supported by the testimony of Mother and Student in the current dispute.18 Dracut seeks to reverse these findings through testimony of its special education director (Ms. Cloutier) and an affidavit from the Senior Associate Director of the Merrimack Special Education Collaborative (Ms. Clisbee).
Ms. Cloutier has no direct knowledge of Student. Instead, her knowledge is obtained through other persons and documents. Ms. Cloutier testified that in reaching her conclusions regarding Student’s needs for the end-of-summer period, she relied on the opinion of Dracut’s out of district coordinator (Ms. Sinclair) and the Clisbee affidavit. But, no evidence was submitted indicating the extent of Ms. Sinclair’s knowledge of Student and his needs for the summer.
Ms. Clisbee’s affidavit was not subject to cross-examination. Ms. Clisbee has had limited recent contact with Student (several brief, informal observations), she has never worked with Student directly, nor has she evaluated him. Her affidavit appears to rely heavily on statements (that she recites in the affidavit) by Student and by the summer program director (Mr. DeFelice). The testimony of Student, however, demonstrated that Ms. Clisbee did not accurately represent Student’s views. The recitation of Mr. DeFelice’s views is potentially helpful, but his views are provided through two layers of hearsay. Also, Parent’s testimony cast doubt on the completeness of the statements attributed to Mr. DeFelice, and Student’s testimony cast doubt as to how well Mr. DeFelice understands Student’s needs. I am therefore unable to give significant weight to the statements attributed to Mr. DeFelice.
For these reasons, I find neither Ms. Cloutier’s opinion nor the Clisbee affidavit to be persuasive with respect to Student’s needs during the end-of-summer period.
Accordingly, I find that Dracut has not provided sufficient basis to overturn what this Hearing Officer found in his June Decision regarding Student’s needs for sufficient routine and structure to avoid regression. I therefore conclude that Dracut has not offered a program or services adequate to address the risk of substantial regression during the end-of-summer period.
E. What Parent has Proposed .
Parent has proposed that her son attend Camp Kingsmont, a residential camp in Western Massachusetts, from August 16 through August 25, 2001. This camp would provide substantial structure and routine, with a range of activities (during the day and evening) that are of interest to Student. The camp would also assist Student to reduce and manage his weight, an issue important to Student’s self-esteem.19
I find that Camp Kingsmont meets the criteria necessary to address the risk of substantial regression during the end-of-summer period – that is, a program or services that include a substantial amount of structure and routine, with activities that will likely engage Student.
The requested camp period runs from August 16 through August 25, 2001. It would be difficult for Student to benefit from the camp if he were to begin the camp part way through the camp period.20
F. Conclusions .
Dracut has offered services that do not include the routine and structure needed for Student to avoid substantial regression during the end-of-summer period. Dracut has offered no alternative services or program. It is too late (with only a few days between the August 13 th Hearing and the August 17 th end of the current summer program) to ask Dracut to locate or create any other summer program or services.
Parent has identified and proposed a summer camp (Camp Kingsmont) which would satisfy Student’s needs during this period. The fact that Camp Kingsmont provides more than is necessary (for example, a residential component) should not eliminate it from consideration and thereby leave Student with no services and the likelihood of substantial regression immediately before entering his High School vocational program.
For these reasons, Dracut should place Student at Camp Kingsmont.
ORDER
Dracut Public Schools shall place Student at Camp Kingsmont for the period August 16 through August 25, 2001.
By the Hearing Officer,
William Crane
Dated: August 17, 2001
APPENDIX I
COMMONWEALTH OF MASSACHUSETTS
SPECIAL EDUCATION APPEALS
In Re: Dracut Public Schools BSEA # 02-0630
ORDER
In order to apprise the parties in a timely manner of the Decision in the case, this Order is issued in advance of the full text of the written Decision.
In order to prevent regression during the end of school period (August 17, 2001 to the beginning of the academic year), Student requires a program or services that include a substantial amount of structure and routine, with activities that will keep Student engaged.
Dracut Public Schools has not proposed either a program or other services that meet this criteria. I find that Dracut has not proposed an adequate summer program for the time period in question.
Mother has requested that her son attend Camp Kingsmont, a residential camp in Western Massachusetts, which would provide substantial structure and routine, with a range of activities during the day and evening that are of interest to Student. The camp would also assist Student to reduce and manage his weight, an issue important to Student’s self-esteem. I find that Camp Kingsmont meets the above-stated criteria and is appropriate for Student.
The requested camp period runs from August 16 through August 25, 2001. It would be difficult for Student to benefit from the camp if he were to begin the camp part way through the camp period.
For these reasons, Dracut Public Schools shall place Student at Camp Kingsmont for the period August 16 through August 25, 2001.
By the Hearing Officer,
_________________
William Crane
Dated: August 13, 2001
COMMONWEALTH OF MASSACHUSETTS
BUREAU OF SPECIAL EDUCATION APPEALS
EFFECT OF BUREAU DECISION AND RIGHTS OF APPEAL
EFFECT OF DECISION AND RIGHTS OF APPEAL
The decision of the Bureau of Special Education Appeals is final and is not subject to further agency review. Because 20 USC s. 1415(i)(1)(B) requires the Bureau decision to be final and subject to no further agency review, the Bureau cannot permit motions to reconsider or to re-open a Bureau decision, once it is issued. Any party aggrieved by the Bureau decision may file a complaint in the Superior Court of competent jurisdiction or in the District Court of the United States for Massachusetts for review of the Bureau decision. 20 USC s. 1415(i)(2). Under Massachusetts General Laws, Chapter 30A, Section 14(1), appeal of a final Bureau decision must be filed within 30 days of receipt of the decision.
Except as set forth below, the final decision of the Bureau must be implemented immediately. Under 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 USC 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,” 20 USC s. 1415(j). 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. Doe v. Brookline , 722 F.2d 910 (1st Cir. 1983); Honig v. Doe , 484 U.S. 305 (1988).
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 MGL c.30A, ss. 11(6) and 14(4), an appealing party seeking a certified written transcription of the entire proceedings, must arrange for the transcription, or portion thereof, by a certified court reporter, at his/her own expense. Transcripts prepared by the party must then be submitted to the Bureau of Special Education Appeals with appropriate court reporter certification for final review and certification. A party unduly burdened by the cost of preparation of a written transcript of the sound recordings may petition the Bureau of Special Education Appeals for relief.
COMPLIANCE
A party contending that a decision of the BSEA is not being implemented may file a complaint with the Department, whose responsibility it shall be to investigate such complaint. 603 CMR s. 28.00, par. 407.0.
In addition, the party shall have the option of filing a motion with the Bureau of Special Education Appeals, requesting the Bureau to order compliance with the decision. The motion shall set out the specific area of alleged non-compliance. The Hearing Officer may convene a hearing at which the scope of inquiry will be limited to facts bearing on the issue of compliance, facts of such nature as to excuse performance and facts bearing on a remedy. Upon a finding of non-compliance, the Hearing Officer may fashion appropriate relief and refer the matter to the Legal Office of the Department of Education for enforcement.
CONFIDENTIALITY
In order to preserve the confidentiality of the child 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.
NOTICE OF REVISED BUREAU PROCEDURES
ON RECONSIDERATION/REHEARING
The United States Department of Education, Office of Special Education Programs (OSEP) in its 1990 Monitoring Report, issued July 17, 1991, ordered the Bureau to amend its procedures to eliminate the availability of reconsideration or re-opening as post-decision procedures in the Bureau cases. Accordingly, parties are notified that the Bureau will not entertain motions for reconsideration or to re-open. Bureau decisions are final decisions subject only to judicial review.
In addition, parties should be aware that the federal Courts have ruled that the time period for filing a judicial appeal of a Bureau decision is thirty (30) days, as provided in the Massachusetts Administrative Procedures Act, MGL c.30A. See, 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.
1
The June Decision is In Re: Dracut Public Schools , BSEA # 01-4555 (June 26, 2001).
2
June Decision, page 11.
3
Testimony of Mother, Cloutier; Exhibit S-4.
4
June Decision, page 2.
5
June Decision, pages 3, 4, 8.
6
June Decision, page 8.
7
June Decision, page 8.
8
June Decision, page 11.
9
Testimony of Parent, Student; Exhibits S-6, P-2.
10
Exhibit S-6; Testimony of Student; June Decision, page 5.
11
Testimony of Parent, Student; Exhibit P-3.
12
June Decision, page 8.
13
June Decision, page 10.
14
June Decision, pages 8, 11.
15
Testimony of Student, Parent.
16
June Decision, page 8.
17
Exhibit S-4. Dracut has had informal discussions with Parent regarding other possible summer activities or programs but never formally proposed to her anything other than the 45 minutes per day with Ms. Denty. Testimony of Mother, Cloutier.
18
See footnotes 14 and 15, and accompanying text, above.
19
Testimony of Parent, Student; Exhibit P-3; June Decision, page 4.
20
Testimony of Parent regarding a conversation with the co-owner of the camp. I also note that the cost of this camp to Dracut will be the same regardless of whether Student begins on August 16, 2001 or after August 17, 2001 when his current summer program concludes.