COMMONWEALTH OF MASSACHUSETTS
Division of Administrative Law Appeals
Bureau of Special Education Appeals
In Re: King Philip Regional School District
BSEA # 12-2427
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 c. 71B), the state Administrative Procedure Act (MGL c. 30A), and the regulations promulgated under these statutes.
A hearing was held on December 14, 2011 in Worcester, MA before William Crane, Hearing Officer. Those present for all or part of the proceedings were:
Student
Student’s Grandmother
Chellamani Harini1 Pediatric Neurologist, Children’s Hospital, Boston
Kristin McCray Special Education Liaison, King Philip Regional School District
Alan Rudolph Specialized Teaching Assistant and Tutor, King Philip RSD
Bonnie Provost Special Education Team Chairperson, King Philip RSD
Barbara Collins Out-of-District Coordinator, King Philip RSD
Robert Wargo High School Principal, King Philip RSD
Audrey Lacher Director of Special Education, King Philip RSD
Regina Williams Tate Attorney for King Philip RSD
Tami Fay Attorney for King Philip RSD
The official record of the hearing consists of documents submitted by the Grandmother and marked as exhibits P-1 through P-3; documents submitted by the King Philip Regional School District (King Philip) and marked as exhibits S-1 through S-65; and approximately a half day of recorded oral testimony and argument. Written closing arguments were due on December 23, 2011, and the record closed on that date. King Philip’s closing written argument was received by December 23, 2011. Grandmother’s closing written argument was dated December 23, 2011 but was received on December 27, 2011. Even though it was filed after the close of the record, I have considered Grandmother’s closing written argument as well as the arguments she and Student made during the hearing.2
ISSUE
The issue to be decided in this case is whether a 45-day extended evaluation at the BICO Collaborative is necessary for Student to receive a free appropriate public education.
POSITIONS OF THE PARTIES
Grandmother’s Position
Grandmother, who is Student’s guardian, takes the position that King Philip has not provided useful educational services to her grandson in the past and is not likely to do so in the future. She also takes the position that the BICO Collaborative is inappropriate for Student and unnecessary for purposes of evaluation, and therefore a 45-day placement at this Collaborative should not be ordered.
More specifically, Grandmother argues that King Philip’s attempts to have her grandson sent to BICO for a 45-day extended evaluation is “nothing more than a vindictive move on the part of King Philip High School.” She takes the position that appropriate evaluations can and should be done when needed—for example, at Children’s Hospital where Student is treated for his seizures. Grandmother believes that putting her grandson in an “isolated classroom [at BICO], even for a day is not in his best interest and I won’t allow it.”
Grandmother is critical of King Philip’s educational services and interventions. She believes that her grandson has been tormented by other students at King Philip, that he does not have disciplinary problems, that King Philip staff have repeatedly made remarks that are “totally untrue”, and that King Philip has inappropriately blamed Student for various altercations with other students at school. She has found King Philip’s home tutoring to be of little value. In sum, she believes that “King Philip has nothing to offer my child in the way of learning what he needs to know to be successful in life at this stage in his life.”
Grandmother has taken the position that, regardless of the results of the instant dispute, she intends to home school her grandson. She believes that this is in the best interests of her grandson and that this is what he wants.
King Philip’s Position
King Philip takes the position that during this and the previous school year, Student has not made meaningful academic progress commensurate with his learning potential and that with respect to certain academic skills, he has actually regressed. King Philip notes that Student has a history of social and behavioral difficulties with other students, apparently in part because of deficits in Student’s social pragmatic abilities, with the result that one student felt unsafe and several other students have felt uncomfortable with Student in the classroom. King Philip believes that these learning deficits need to be addressed through appropriate special education services.
King Philip believes that it does not have a clear or complete understanding of Student’s disabilities or how they should be addressed. It notes that there are no recent evaluations. King Philip also is aware of Student’s history of seizures, which has resulted in several doctor’s statements recommending home tutoring. King Philip takes the position that the only way that a comprehensive and useful evaluation can occur is within the context of an extended, 45-day school evaluation and recommends the BICO Collaborative as an appropriate place for this to occur.
FACTUAL BACKGROUND
Student is a sixteen-year-old young man who lives with his Grandmother in Plainville, MA. She is Student’s guardian. Grandmother is a dedicated and determined advocate for her grandson.
Student, who is a sophomore in high school, has many strengths. He has a strong knowledge base of general information. He enjoys conversations with other students and with adults, he is always willing to volunteer in classroom discussions, read out loud and answer questions. Testimony of McCray; exhibit S-55.
Student has been diagnosed with a number of disabilities, including Attention Deficit Hyperactivity Disability (ADHD) and a seizure disorder. Student has substantial deficits in social pragmatics. He is easily distracted at school and has difficulty completing tasks independently. Student’s cognitive test scores are in the average range. He has a relative strength in written expression, a relative weakness in processing speed and a relative weakness with respect to oral language skills. Testimony of McCray; exhibits S-2, S-4, S-30
In elementary school, middle school and high school, Student has been educated primarily within substantially-separate classrooms, participating in the mainstream for non-academic subjects and activities. Student’s most recent IEPs for freshman and sophomore years have placed him within the Transitions Program at King Philip High School. Testimony of McCray; exhibits S-41, S-46, S-55.
The Transitions Program is specifically designed for students with a diagnosis on the autism spectrum or who have communication deficits. This program has a social skills curriculum and has taught specific social skills to Student. It has served as Student’s home room and a place where he can return at any time during the school day to receive assistance. Except for history during part of freshman year, Student has received all his academic instruction since September 2010 from special education staff within substantially-separate classrooms or at home. The IEPs also have called for Resource Support by a special education teacher for 57 minutes, six times per seven-day cycle and Resource Communication by a “SAC” or special education teacher for 57 minutes, six times per seven-day cycle. Student’s most recent IEPs do not propose any related services. Testimony of McCray; exhibits S-41, S-46, S-55.
DISCUSSION
It is not disputed that Student is an individual with a disability, falling within the purview of the federal Individuals with Disabilities Education Act (IDEA)3 and the Massachusetts special education statute.4
The IDEA was enacted “to ensure that all children with disabilities have available to them a free appropriate public education [FAPE] that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living.”5 The Massachusetts special education statute also includes a FAPE requirement.6 FAPE must be provided in the least restrictive environment.7
Student’s right to FAPE is assured through the development and implementation of his individualized education program (IEP).8 The IEP must be custom tailored to meet his “unique” needs so that he will receive sufficient educational benefit.9 The sufficiency of a particular student’s progress is judged within the context of the student’s individual potential or capacity to learn because the “ benefits obtainable by children at one end of the spectrum will differ dramatically from those obtainable by children at the other end, with infinite variations in between.”10
Massachusetts special education regulations call for an extended evaluation of a student if the school district’s evaluation information is insufficient for purposes of developing an IEP.11 With respect to this issue, which is the only issue in dispute, King Philip has the burden of persuasion.12
Student began his freshman year (2010-2011) in the Transitions Program in King Philip High School. He was assigned to the Transitions Program for his home room, additional supports and all academic classes. During the first month or so of the school year, Student seemed to be doing relatively well at school and the IEP Team agreed that Student would be assigned to one regular education class (history). This was done at Grandmother’s request because of her desire for her grandson to have more contact with regular education peers. However, it soon became apparent after placement into this class that Student would have difficulty keeping up with the history class. Socially and behaviorally, Student also generally did well during the first month of school, but then had some mood swings that resulted in difficult interactions with several of his peers. Testimony of Provost, McCray; exhibits S-43, S-44.
In November 2010, Grandmother was unsatisfied with what was happening with her grandson in school, particularly with how King Philip was handling the difficult social interactions that were occurring between Student and his peers. Grandmother has generally made it clear that she does not support the processing of these events by King Philip staff (for example, staff spending time with Student talking through what happened and why so that Student would understand how to avoid a similar difficult social interaction in the future), but believes that, instead, appropriate consequences should be given to her grandson and others involved. Apparently for these and perhaps other reasons, Grandmother transferred Student out of King Philip and into the Tri-County Vocational High School, where he went to school for approximately six weeks beginning in mid-November 2010. Testimony of McCray, Provost.
Grandmother quickly became dissatisfied with this placement (apparently, there were instances of bullying), and Grandmother re-enrolled Student in the King Philip High School in January 2011. Because of difficult interactions between Student and several peers when he had previously been at King Philip High School, one of his peers felt unsafe and several others felt uncomfortable with him, with the result that Student was not assigned to Transitions Program for his academics but instead was taught in the resource room. Student continued to be assigned to the Transitions Program for his home room and other support services. The IEP Team prepared a new IEP, for the period 1/24/11 to 1/24/12, which was fully accepted by Grandmother. Testimony of McCray, Provost; exhibit S-55.
Upon his return in January 2011, King Philip staff found that Student seemed more emotional and more disruptive than before. And, he continued to have difficult interactions with his peers that made them feel uncomfortable. There was concern that Student did not understand the difference between teasing and bullying, and to address this concern, in March 2011, a bullying goal was proposed by the Team to be added to his IEP. Grandmother rejected this goal as unnecessary since he “does not need help in distinguishing bullying vs. friendly banter”. Testimony of Provost; exhibits S-46, S-48, S-49, S-57.
Over the course of the remainder of the school year, Student continued to have difficulty at King Philip High School. It was a challenge for Student to stay focused on what he was doing and he had difficulty completing his assignments. Math was a particular challenge for Student. He was non-compliant with instructions from the math teacher and appeared to be shutting down in this class. Social interactions also continued to present difficulties for Student. He was observed inserting himself inappropriately into social situations, and he made inappropriate comments to his peers, making them feel uncomfortable. He became more resistant to feedback from teachers and staff. Grandmother felt that others were picking on Student, but the teachers believed that Student was often the instigator of difficult peer interactions. Testimony of McCray, Provost; exhibits S-47, S-51, S-52.
By April 2011, teachers reported that Student was not making meaningful progress commensurate with his learning potential. He had particular difficulty with organization and always needed an adult to help him complete a task. School progress reports reflected inadequate progress. Student also began making statements at school that were obviously untrue. Testimony of McCray; exhibit S-47.
In May 2011, Student started missing school because of seizures. King Philip understood that one contributing cause of the seizures was the stress of school (Grandmother disputed this). The IEP Team met on May 23, 2011 to discuss Student’s absences and his medical and educational needs. As a result, the IEP Team proposed a reduced school day and put in place home tutoring. Grandmother neither accepted nor rejected these IEP changes but did participate in the home tutoring. By May 31, 2011, Student had stopped coming to school. Student’s exams were waived, and grades were determined on the basis of school work that had been completed. Testimony of Rudolph, McCray, Provost; exhibit S-50.
During the May 23, 2011 meeting, the IEP Team also recommended a 45-day extended evaluation for Student at the BICO Collaborative that would begin in September 2011. During the summer of 2011, Grandmother met with the High School Principal to discuss the proposed extended evaluation. Grandmother and Student went to BICO to observe the program. Grandmother objected to the BICO placement. King Philip offered the South Shore Collaborative as an alternative, but Grandmother found that this would be too far away (approximately 30 to 45 minute drive each way from her home). Testimony of McCray, Provost, Collins; exhibits S-51, S-56, S-59, S-60.
In August 2011, Student’s treating pediatric neurologist (Dr. Harini) wrote a letter stating that Student would require home-based tutoring for two months because his seizures were poorly controlled. King Philip then provided her with the appropriate physician’s statement for home tutoring, which was completed by Dr. Harini. This form indicated that Dr. Harini expected Student to be able to return to school on November 1, 2011. Student did not return to school. King Philip then received another letter from Dr. Harini in which she recommended a continuation of home tutoring until neuropsychological testing is completed. Testimony of Harini, McCray
Student has not attended school during the current school year. Tutoring services have been offered for five hours per week but only approximately two hours per week of tutoring have actually been provided because of scheduling difficulties. Very recently, Grandmother cancelled the tutoring sessions that were to be provided to Student. Testimony of Provost, Rudolph.
I now consider whether, within this educational context, a 45-day extended evaluation at the BICO Collaborative is necessary for Student to receive a free appropriate public education.
The IEP Team recommended an extended evaluation because it was concerned about Student’s insufficient academic progress at school, together with his significant social difficulties and his making obviously untrue statements. The Team realized that Student may have even greater difficulty in the next school year (sophomore year) than freshman year because of increased academic expectations, and the Team was unsure whether King Philip had a special education program that would be appropriate for Student for sophomore year. Also, some of Student’s diagnoses within his educational records (for example, autism) were outdated, and the Team was uncertain from the evaluations as to the nature and extent of Student’s learning deficits. The Team proposed that the 45-day extended evaluation occur at the BICO Collaborative. Testimony of McCray, Provost, Collins, Harini; exhibits S-51, S-56, S-59, S-60, S-62.
Grandmother disagreed. She and Student have made clear their opposition to a 45-day extended evaluation. They also believe it would be inappropriate for Student to be placed at BICO for any purpose. Grandmother left the hearing before its completion, without calling any witnesses. However, Grandmother submitted three exhibits, all of which were admitted into the record.
One of Grandmother’s exhibits is an unsigned, undated letter To Whom It May Concern from Grandmother’s son, stating that Student has made adequate progress towards his IEP goals and that a 45-day placement is unwarranted and would likely cause harm to Student. Exhibit P-2. Without the testimony of Grandmother’s son, it is simply not possible to understand and evaluate the bases for these opinions or to assign probative weight to the letter.
Grandmother’s remaining two exhibits are not persuasive. One of these two exhibits is Student’s grades from the 2010-2011 school year. Exhibit P-1. These grades are based solely upon the work that Student was able to complete before leaving school in May 2011 and do not reflect Student’s many academic, social and behavioral difficulties during this school year. Testimony of Rudolph, McCray, Provost.
The third exhibit submitted by Grandmother is a letter from a counseling center director (where Student has been in weekly therapy throughout the past school year) stating that “[Student] would like to return to a school program in which he feels understood and supported.” Exhibit P-3. This exhibit does not directly address the issue in dispute.
Consequently, I find that although Grandmother’s opposition to the extended evaluation is clear, there is no probative evidence in the record that supports her position. In contrast, the testimony from King Philip staff and their exhibits were credible and persuasive that a 45-day extended evaluation is required in order to understand the nature and extent of Student’s educational deficits and how those deficits can be appropriately addressed through an IEP. Testimony of McCray, Provost, Collins; exhibits S-51, S-56, S-59, S-60, S-62.
More specifically, I am persuaded and so find that the IEP Team does not have sufficient information from evaluations and observations to determine how to appropriately address Student’s multiple educational needs. King Philip has not seen Student learning in a classroom context or interacting with his peers since May 2011. Student presents a complicated educational profile that can not be understood sufficiently through formal evaluations administered while he attends King Philip High School, or by testing to be done by Children’s Hospital with respect to Student’s seizure disorder. Rather, comprehensive, formal testing is needed in combination with daily observations of Student and his social and behavioral interactions with others over a period of time within a contained environment. Testimony of McCray, Provost, Collins; exhibits S-51, S-56, S-59, S-60, S-62.
I am also persuaded that the BICO Collaborative is appropriate for this purpose. The BICO Collaborative is a small, substantially-separate educational placement for children with educational profiles similar to Student’s educational profile. Importantly, BICO also includes clinical supports. King Philip does not have a contained environment within which it could conduct an extended evaluation. Testimony of McCray, Provost, Collins; exhibits S-51, S-56, S-59, S-60, S-62.
Finally, I consider whether Student’s seizure disorder, which has resulted in home tutoring in the past, limits Student’s ability to attend a school program such as the BICO Collaborative.
Dr. Harini, who was called as a witness by King Philip, testified that currently Student’s seizures are partially, but not entirely, controlled by medication. She recommended that Student not attend school, not because of safety concerns, but because, in her opinion, Student would likely have difficulty learning if he were to have a seizure. She therefore recommended a continuation of home tutoring. Testimony of Harini.
Dr. Harini’s testimony is not persuasive that Student should receive his education outside of a school program. She testified that Student’s seizure disorders do not require that he be confined to the home, and it is not disputed that Student regularly leaves the home for a variety of reasons, including tutoring. In addition, Dr. Harini appeared to have little understanding of the ability of a school to support a student who may have a seizure. King Philip has other students attending its schools who have a history of seizures. I find that there is no probative basis for concluding that Student is unable to attend school because of his seizure disorder. Testimony of Harini, Provost. I further find that there is no current, legally-sufficient physician’s statement to support home tutoring.13
In sum, as discussed above, FAPE is dependent upon the IEP Team’s being in a position to develop an IEP that is crafted to address Student’s unique needs. A 45-day assessment at the BICO Collaborative is needed for this purpose.
ORDER
A 45-day extended evaluation at the BICO Collaborative is necessary for Student to receive a free appropriate public education.
By the Hearing Officer,
William Crane
Dated: January 5, 2012
COMMONWEALTH OF MASSACHUSETTS
Division of Administrative Law Appeals
Bureau of Special Education Appeals
THE BUREAU’S DECISION, INCLUDING 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 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 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
Dr. Harini testified by telephone conference call.
2
Student and his Grandmother attended the first part of the evidentiary hearing, but left part way through the testimony of the School District’s third witness. Grandmother explained that she did not want to sit through any more of the hearing. Because the School District was the moving party, Grandmother and Student left the hearing prior to their calling any witnesses. However, as they were leaving, both Student and his Grandmother made oral statements and Grandmother submitted a written statement. I consider these oral and written statements to be Grandmother’s arguments in opposition to the proposed 45-day extended evaluation, and I have considered them for this purpose.
3
20 USC 1400 et seq .
4
MGL c. 71B.
5
20 USC 1400(d)(1)(A). See also 20 USC 1412(a)(1)(A).
6
MGL c. 71B, ss. 1, 2, 3.
7
The phrase “least restrictive environment” means that, to the maximum extent appropriate for the particular student, the student is to be educated with other students who do not have a disability. 20 USC 1400(d)(1)(A); 20 USC 1412(a)(1)(A); 20 USC 1412(a)(5)(A); MGL c. 71B, ss. 2, 3; 34 CFR 300.114(a)(2(i) ; 603 CMR 28.06(2)(c).
8
20 USC 1414(d)(1)(A)(i)(I)-(III).
9
Honig v. DOE , 484 U.S. 305, 311 (1988) (FAPE must be tailored “to each child’s unique needs”).
10
Bd. of Educ. v. Rowley , 458 U.S. 176, 202 (1982).
11
See 603 CMR 28.05 (2)(b). (“ Evaluation information is inconclusive. If the Team finds the evaluation information insufficient to develop an IEP, the Team, with parental consent, may agree to an extended evaluation period.” Emphasis in original. ).
12
In her hearing request, Grandmother took the position that a 45-day extended evaluation at BICO Collaborative was not appropriate, but she did not seek relief on this issue. She sought relief on other issues that were resolved informally by the parties. King Philip filed a cross complaint seeking an order on this issue and therefore is the moving party with the burden of persuasion. See Schaffer v. Weast , 546 U.S. 49, 62 (2005) (burden of persuasion in an administrative hearing challenging an IEP is placed upon the party seeking relief).
13
See 603 CMR 28.03(3)(c) (“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.” Emphasis supplied.)