Quetzal v. Springfield Public Schools – BSEA # 08-3309



<br /> Quetzal v. Springfield Public Schools – BSEA # 08-3309<br />

COMMONWEALTH OF MASSACHUSETTS

BUREAU OF SPECIAL EDUCATION APPEALS

In Re: Quetzal and the Springfield Public Schools1

BSEA # 08-3309

Decision

This Decision is issued pursuant to M.G.L.c. 71B and 30A; 20 U.S.C. § 1401 et seq ; 29 U.S.C. § 794, and the regulations promulgated under these statutes. The parties submitted this matter to the Hearing Officer on documents and arguments alone as permitted by BSEA Rule XII and 801 CMR 1.01 (10)(b). Closing arguments were received by April 15, 2008, and the record closed on that date.

Issues2

1a) Whether the Student’s repeated absences during the 2007-2008 school year obligated the School District to reconvene the Student’s Special Education Team? and

1b) If so, whether the failure to reconvene the Team resulted in the denial of a free, appropriate public education to the Student?

Findings of Fact

The pertinent facts are not in dispute and may be briefly summarized:

1. Quetzal was initially found eligible for special education on February 13, 2007, when he was in the 8 th grade. A psychological evaluation conducted by the Springfield Public Schools found Quetzal to have impaired cognitive functioning. Teacher reports highlighted Quetzal’s difficulties with attention, concentration, lack of background information, and overall poor academic skills. The Team noted that Quetzal demonstrated significant and persistent behavioral and discipline issues. He was inappropriate and disruptive in all school settings. He also had a history of poor school attendance. (P-5; P-6; P-7; P-4)

2. The Team developed an IEP calling for Quetzal to receive intensive, specialized instruction in math and English language, as well as academic support, in a substantially separate classroom program. It also provided for special education assistance in all other school settings; for counseling and for implementation of a behavior plan. The proposed February 2007 – February 2008 IEP was accepted in May 2007. (P-2; S-7; S-8; see also P-10) The plan was implemented at the Kennedy Middle School during the remainder of the 2006-2007 school year. The Plan continued to be in effect when Quetzal transitioned to High school for 9 th grade in the 2007-2008 school year.

3. Quetzal reached the age of 16 in August 2007. (P-2)

4. Quetzal moved out of Springfield in January 2008. He enrolled in an adjoining school district on January 14, 2008. (S-10)

5. Between the beginning of Springfield’s school year in September 2007 and his move out of Springfield in January 2008, Quetzal missed 33 days of school. (P-3; S-2; S-12) Quetzal’s special education Team did not reconvene as a result of these absences. Springfield took no other independent action to address Quetzal’s absenteeism. (P-9)

6. Between September 2007 and January 2008, Quetzal received supervision and services from time to time from the Department of Social Services and the Department of Youth Services. (S-1)

7. The special education placement and services offered to Quetzal, and accepted by his guardian, remained available to Quetzal throughout the life of the 2007-2008 IEP and specifically between September 2007 and January 2008. (S-1)

8. The Educational Surrogate Parent requested a Team meeting on November 30, 2007. The Team reconvened on December 20, 2007. It developed a new Individualized Education Plan for Quetzal calling for his placement in a partial inclusion social/emotional/behavioral support program within the regular high school. (S-12, P-2)

9. The Springfield Public Schools High School attendance policy provides that after four days of absence in a marking period no credit will be awarded for an affected course. It further states that:
any student who accumulates 13 or more absences during the academic year will be ineligible to move successfully from one grade to the next unless there are valid extenuating circumstances and a successful appeal.

(P-9) The policy further sets out specific actions to be taken by the attendance officer and the building principal including phone contacts, investigations and referrals to attendance support and enforcement agents.

10. There is no indication in this record that Susan Carplunk, the Educational Team Liaison listed on Quetzal’s accepted IEP, contacted the Student or his guardian to determine why he did not attend school in the fall of 2007. There is no indication in this record of any contact by any high school administrative staff, counselors, special education teachers, attendance officers, or other public school personnel, with Quetzal or his guardian during the fall of 2007.

11. Springfield generated official records of Quetzal’s attendance during the fall of 2007. (P-3; ) These records show that Quetzal had missed four days of at least one period of class by September 19, 2007. The record also shows that Quetzal had accumulated 13 full days marked “TRU” by October 24, 2007. There are no report cards, progress notes, or other teacher generated reports in the record.

Findings and Conclusions

Resolution of this matter turns on the answer to one simple question: does a school district have an affirmative duty to reconvene a special education team when a student with disabilities over the age of compulsory school attendance is absent from school without a valid excuse?

Until January 2001, Massachusetts special education regulations required a building principal to determine whether a student who had accumulated more than 15 days of absences during one marking quarter should be referred for a special education evaluation, and to notify the parents of the school’s determination and their own right to make a special education referral.3

Since then, though that may be the prudent and educationally sound course of action, there has been no explicit statutory or regulatory directive establishing the responsibility of the district when a student who is eligible or potentially eligible for special education is chronically absent from school.

Current Massachusetts special education regulations require only that a Team be reconvened at the request of any Team member, at least annually, or sooner “if necessary.” 603 CRM 28.04(3). In this matter, prior to November 30, 2007, no Team member called for Quetzal’s Team to reconvene, nor was his annual review due. Thus Springfield would have been obligated to reconvene the Team only if it were “necessary.”4 “Necessary” is not defined in the regulations. Its common meaning: essential; or needed to achieve a certain result or effect5 , must be considered then in the context of Springfield’s ongoing responsibility to ensure that Quetzal was receiving a free, appropriate public education. At a minimum, Springfield had a continuing obligation to ensure that the IEP it had developed for Quetzal, and which was accepted, was being implemented. 20 U.S.C. §1412 (a)(1)(A), 34 CFR §300.101(a).

Neither the state nor the federal regulations specifies the circumstances under which reconvening a Team is “necessary.” Springfield asserts, therefore, that it is “not necessary” to reconvene a Team just because a student with an IEP is not attending school. It further contends that imposing such an obligation would be onerous and unproductive. The student argues, on the other hand, that the district must reconvene to determine whether there is a nexus between the student’s disability and the student’s nonattendance and, if there is, to develop a program and services to specifically address that component. The interpretation of regulatory language and intent must be reasonable in its context. In this context I must determine whether it is reasonable to expect an active response to a pattern of absences as “essential” to or “needed to achieve” Springfield’s overall obligation to provide a free, appropriate public education to Quetzal.

Fortunately there are several useful statutory and regulatory analogies to provide guidance. First there is the Massachusetts Compulsory School Attendance law. Section 18 of that statute provides:

No student sixteen years of age or older shall be considered to have permanently left public school unless an administrator of the school which such student last attended has sent notice within a period of ten days from the student’s fifteenth consecutive absence to the parent or guardian of such student in both the primary language of such parent or guardian and English, stating that such student and his parent or guardian may meet with the school committee or its designated representatives prior to the student permanently leaving school, within ten days after the sending of the notice.

M.G.L.c. 76§18.

This statute applies to all Massachusetts students, including those with disabilities. The legislature has thus determined that a public school is obligated to undertake some sort of inquiry or action in response to absenteeism of more than fifteen days. The selection of 15 days is important as a marker. It indicates that the legislature considered 15 absences sufficient both to indicate a potential impairment of a student’s education and to trigger heightened level of scrutiny from the school.

Building on that statute, Springfield’s official attendance policy states that students absent from a course for four or more days during a marking period will not receive credit for the course, and students who accumulate more than 13 absences throughout the school year will not be promoted to the next grade (P-9)6 . Springfield’s attendance policy is consistent with the Commonwealth School Attendance Statute. Indeed it reduces the number of allowable absences to 13, indicating Springfield’s determination that no student, with or without disabilities, can make effective educational progress if absent from school for more than 13 days.

While neither the statute nor the attendance policy specifically addresses the responsibilities of the school district when the chronically absent student has an approved IEP, they do set out a timeframe, 4 to 15 school days, within which it may reasonably be expected that any student will suffer some degree of educational deprivation. I note also that both the statute and Springfield’s attendance policy set out specific duties for school personnel responsible for addressing student absenteeism. There is no indication in this record that the school district took any of the actions contemplated by the statute or its own attendance policy despite contemporaneous school records showing that Quetzal was absent for more than four days in one quarter and remained absent for more than 15 (and hence more than 13) consecutive days in the fall, 2007. While not outcome determinative in this matter, it is apparent that the failure of the school district to fulfill its regular school attendance assurance obligations contributed to its failure to ensure that Quetzal’s IEP was being implemented in the fall of 2007.

Federal special education regulations do not directly address a school’s duty to examine a student’s chronic absenteeism. They do, however, set out some circumstances in which it is “necessary” or “warranted” for a school to act, supervise, and provide alternate educational services to an absent student with disabilities. For example, federal regulations establish a ten day maximum period for exclusion from an agreed upon special education program for disciplinary reasons before the student’s Team must reconvene to consider amendments to the student’s current IEP or to develop an alternate educational placement. 20 U.S.C. 1415(k); 34 CFR 300.530. Massachusetts follows the federal regulations concerning the maximum number of days a school may exclude a student with disabilities for disciplinary reasons before a Team develops a re-entry or redirection plan. Thus, albeit in a different context, both guarantors of special education have determined that student rights to appropriate educational programming may not be abridged for more than 10 days without some input and direction from the Team.

Another provision of the Massachusetts special education regulations takes a similar view on the length of time a student may appropriately be without educational services. 603 CMR 28.04 (3)(c) requires a school district to provide educational services to a student who has been out of school for more than 14 days at the direction of physician.

These various sources, while addressing situations different from the one at hand, nevertheless point to a common response to the needs of students who are not attending school. There appears to be a general consensus that absence from school for a period of time in the 10 to 15 day range creates a presumption that a student is not making effective educational progress and requires a school to take some sort of affirmative action in response.

Springfield argues that the program it proposed for Quetzal at the High School was available to him at all times during the fall of 2007, and that it could not compel a 16 year old student to attend. It asserts that it should not be held accountable for a student’s choice not to attend an otherwise appropriate special education program. These arguments have superficial appeal. After all, students with disabilities cannot be compelled to attend school beyond the age of 16 if their non-disabled counterparts are legally permitted to leave school then. The School’s argument, however, ignores the fact that in this case, Springfield failed to conduct the required inquiries, send the required notices, hold the required meetings, or otherwise take any “necessary” action contemplated by Massachusetts law and its own attendance policy after Quetzal had been absent for more than 13 days in the fall 2007. Further, the district’s argument fails to take into account the heightened duty it holds towards students with disabilities to actively ensure that their special education programs are appropriate and available, even beyond compulsory school attendance age, so long as the students remain eligible. Springfield had a continuing duty to Quetzal in particular as the first goal on his IEP, which concerned his social-emotional needs, was to improve “the handling of school responsibilities.” Certainly the most basic school responsibility for a student is attendance. (P-2; S-7; 5-8; P-6) Without ensuring Quetzal’s attendance, Springfield could not ensure implementation of his IEP and the delivery of a free, appropriate public education to him.

Therefore I find that Springfield had an affirmative duty to take responsive action when Quetzal was absent without a valid excuse for more than thirteen consecutive days in the fall of 2007. I further find that both federal and Massachusetts special education law presumes that an absence of more than ten days will have an effect on a disabled student’s ability to make effective educational progress. Thus an absence of more than 10 days triggers as “necessary” and “warranted” the school district’s duty to determine whether and how the absent student is continuing to receive the free, appropriate public education guaranteed by 20 U.S.C. 1401 et seq . and M.G.L.c. 71B. Reconvening the student’s Team is one way, though not necessarily the only way, to fulfill the school’s ongoing responsibility to provide FAPE to a chronically absent disabled student over the age of compulsory school attendance.

Since it took no action at all to address, or even acknowledge, Quetzal’s chronic absenteeism during the fall of 2007, I find that Springfield failed to fulfill its responsibility to provide a free, appropriate public education to him at that time. As discussed, infra , special education law presumes ill effects from lack of appropriate programming for more than ten days. Though this record lacks a particularized showing of lack of progress or loss of educational benefit attributable to Springfield’s failure to respond to Quetzal’s absenteeism, Springfield acknowledged its responsibility to provide compensatory educational services to Quetzal soon after the hearing request was filed. (S-1; S-2) I find that its offer of supplemental educational programming during the summer of 2008 is reasonable, practical and equitable under the circumstances.7

Order

In order to ensure appropriate implementation of his 2007-2008 IEP, Springfield had an affirmative duty to respond to Quetzal’s chronic absenteeism during the fall of 2007. Its failure to do so in a timely manner resulted in the denial of a free, appropriate public education to Quetzal during the fall of 2007. Therefore, Springfield shall, consistent with its offer, provide special educational services equivalent to not less than 23 school year days during the summer of 2008. Springfield shall consult with the student’s current school district to design an appropriate summer schedule of services and shall submit its plan to the ESP, the Student, and the Hearing Officer, no later than June 18, 2008.

______________________ ________________________

Date: June 2, 2008

Lindsay Byrne

Hearing Officer

COMMONWEALTH OF MASSACHUSETTS

BUREAU OF SPECIAL EDUCATION APPEALS

EFFECT OF BUREAU DECISION AND RIGHTS OF APPEAL

Effect of the Decision

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

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

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

Compliance

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

Rights of Appeal

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

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

Confidentiality

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

Record of the Hearing

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


1

“Quetzal” is a pseudonym chosen by the Hearing Officer to protect the privacy of the Student in documents available to the public.


2

Initially the Educational Surrogate Parent requested BSEA Findings on 6 issues. All but one were resolved by the parties or mooted by changed circumstances. The remaining issue was developed by the parties during a prehearing conference and memorialized in a scheduling Order issued on February 8, 2008. (S-13; P-1)


3

603 CMR 310 provided:

No later than five (5) days after the occurrence of any of the conditions described in ¶¶310.1 through 310.3, each school committee shall insure that the following categories of children are referred to the person described in each paragraph for a determination of whether either pre-referral efforts pursuant to ¶309.0 or a referral for an evaluation should be made.

310.1(a) The principal, or his/her designee, of the school attended by such child shall determine whether pre-referral efforts pursuant to ¶309.0 or a referral for evaluation should be made if any of the following conditions exist and shall promptly and in writing notify the parents which condition exists, if a referral is being made, and of their right to make such referral.

310.1(a) Any child who at mid-year presents a substantial risk of non-promotion. For purposes of this paragraph, a substantial risk of non-promotion shall be considered to exist if a child is failing in two or more non-elective subjects.

310.1(b) Any child who fails to be promoted at the end of the year.

310.1(c) Any child who has been suspended for more than five (5) school days in any quarter or excluded from school.

310.1(d) Any child who has been absent without medical excuse more than fifteen (15) school days in any quarter.

310.1(e) Any child ages sixteen through twenty-one who is planning to leave school without a high school diploma.


4

Federal regulations use similar wording, requiring a re-evaluation if the school determines that the student’s needs “warrant” it. 34 CFR 300.303(a)(1).


5

American Heritage Dictionary of the English Language 3 rd Ed. , Houghton-Miffin, 1992.


6

SPRINGFIELD SCHOOL COMMITTEE ATTENDANCE POLICY – SECONDARY SCHOOLS

Absences: No Credit (NC)

A student in the Springfield Public School system cannot be absent for 4 or more days a marking period or he/she will receive no credit for all courses pending an appeal. The grades will be reported on his/her report card as “No Credit” pending appeal (NC). All courses will show “NC” for the current report card. Any student who accumulates 13 or more absences during the academic year will be ineligible to move successfully from one grade to the next unless there are valid extenuating circumstances and a successful appeal.
(P-9) Other sections of the Springfield attendance policy create active obligations for attendance specialists and building principals when a student is absent from school. See e.g.:

GENERAL INFORMATION REGARDING ATTENDANCE

The Home/School Attendance Specialist will support schools in addressing attendance in middle and high schools and in the prevention and intervention for chronic truants. The specialist will communicate with the parent/guardian by telephone calls through the attendance hotline or other referrals and may go on location to intervene to support the student’s return to school. As necessary, the specialist will respond to community concerns regarding attendance and related issues and, in some instances, may accompany certified personnel to escort students back to school or to the Assessment Center.

Responsibility of Principals

The principal shall:

· Have the responsibility of keeping attendance records in accordance with rules of the School Committee.

· Impose discipline based on the provisions of the Code of Conduct for truant students.

· Identify the habitual truant, investigate the cause(s) of the behavior, and refer the student to appropriate student support services.

· Ensure that students with approved absences be allowed a reasonable number of days, at least equivalent to the number of days absent, to make up work.

· Assure that a notice is issued to any parent or guardian who fails to comply with the compulsory attendance statute within three (3) days of any proceeding brought under the statute. Such notice shall inform the parent or guardian of (a) the dates on which the absences occurred, (b) that the absences were not approved and in violation of law, (c) that the parent must be so notified and informed of his/her liability under law for the absences of the student, and (d) that further violation during the school term will be prosecuted without notice.


7

Phil v. Massachusetts Department of Education , 9 F. 3d 184 (1 st Cir. 1993).


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