COMMONWEALTH OF MASSACHUSETTS
SPECIAL EDUCATION APPEALS
Ralph C. Mahar Regional School District v. Student
BSEA #10-7697
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 said statutes.
A hearing was held on June 14, 2010 at the Bureau of Special Education Appeals before Catherine M. Putney-Yaceshyn, Hearing Officer.
PROCEDURAL HISTORY
The Ralph C. Mahar Regional School District, hereinafter, “Mahar”, filed a request for hearing on May 26, 2010. The matter was scheduled for a hearing on June 14, 2010. There was a telephone conference call on June 9, 2010. Parents did not participate in the telephone conference call. The matter was reassigned to the undersigned hearing officer on June 11, 2010. The hearing was held on June 14, 2010. Parents did not attend or participate in the hearing. Mahar’s request to postpone the closing of the record and submit a closing brief was allowed. Parents were sent copies of the hearing tapes and provided with an opportunity to submit a statement of their position by June 23. Mahar submitted a written closing argument on June 22, 2010. Neither Parent submitted a written statement and the record closed on June 23, 2010.
Those present for all or part of the Hearing were:
Michael Baldassarre Superintendent and Special Education Director, Ralph Mahar Regional School District
Amy Leuchte Attorney for Ralph Mahar Regional School District
Catherine Putney-Yaceshyn Hearing Officer
The official record of this hearing consists of Ralph Mahar Regional School District’s exhibits marked S-1 through S-10 and approximately two hours of recorded oral testimony.
ISSUES
1. Whether the BSEA should provide substitute consent to allow the school district to release Student’s IEPs, evaluations, and other documents to the CAPS Collaborative and Communities Collaborative in order to determine if they can implement his IEP.
SUMMARY OF THE EVIDENCE
1. The student (hereinafter, “Student”) is a seventeen year old student with a diagnosis of Autism, PDD (S-4). He attends school at Seven Hills in Devens, Massachusetts. (S-1) He has resided at the Callan House in Worcester, Massachusetts since May 18, 2007. (S-4)
2. “ Student exhibits behaviors such as eating non-food items (Pica), and requires constant monitoring.” He communicates using gestures and Mayer Johnson picture symbols. He can interpret the symbols’ meanings when they are organized for communication purposes and used in a standardized format. Student requires a structured environment and becomes anxious when his routine changes unexpectedly. His anxiety can lead to aggression. Student is able to communicate his need to use the bathroom by using gestures and a communication board. He “requires verbal to gestural prompts to use his communication board and occasionally will initiate the use of the board independently.” He requires verbal prompts to complete his hygiene routine. Recently, Student has begun to visit his family at home and the visits have gone well. (S-4)
3. Student’s Team convened for an annual review meeting on January 6, 2010. His teachers stated that Student works well with his one to one aide. He likes edible reinforces to get work completed. Student “has been working doing recycling trips and works best when it is quiet.” He is able to respond “yes” or “no” when asked if he needs to take a break. (S-5)
Approximately one month prior to the Team meeting Student unbuckled his seatbelt during his forty minute van ride from his residence to school and “aggressed toward the staff and students on the van.” There was no known antecedent to the behavior and it was the only incident during the school year. (S-4, Baldassarre) Student is not frequently aggressive during the school year. He does not require restraint, but is redirected by staff members who are aware of his antecedent behaviors. Screaming and jumping is as aggressive as he has been at school. Student’s greatest gains have been in his social skills. He has improved in the area of greeting and farewell and has been good about requesting to take turns. (S-5)
4. Pursuant to the January 6, 2010 Team meeting an IEP was presented to Parents. The IEP continued Student’s placement at the Seven Hills Academy and the Callan House in Worcester. The IEP indicated that Student would be due for his three-year re-evaluation in December 2010 and that consent for evaluations would be sent to Mother. The IEP included a consultation with the speech language pathologist 1 x 30 minutes per week and a consultation with the occupational therapist 1 x 30 minutes per week. It called for direct services from the speech language pathologist 1 x 30 minutes per week and from the occupational therapist 1 x 30 minutes per week. In the C grid it included “academic” services from a special education teacher 5 x 360 minutes per week and “1:1” provided by an instructional assistant 5 x 360 minutes per week. The IEP runs from January 6, 2010 through January 5, 2011. In the additional information section of the IEP is the following statement.
The possibility of [Student]’s individual learning and residential needs being provisioned [sic] in an educational program and residential placement closer to home was discussed at the meeting1 . By signing this IEP [Mother] will allow the Ralph C. Mahar Regional School District the opportunity to explore options for [Student] that are closer to her home in [omitted] MA. This will allow the Ralph C. Mahar Regional School District permission to release [Student]’s IEP, testing information, and other information related to his education to the CAPS Educational Collaborative and the Communities Collaborative, Inc. (S-1)
5. Mother rejected the above quoted portion of the IEP on February 8, 2010. She accepted the remainder of the IEP and accepted the placement. (S-1)
6. Mr. Baldassarre is the Special Education Director and Superintendent of the Ralph Mahar Regional School District. He testified that in the course of conducting Student’s annual IEP review he felt it would be appropriate to determine whether there was an appropriate program for Student within the district in keeping with the district’s obligation to provide Student’s services in the least restrictive environment. He believes Student would be appropriate for the program that runs within the district where Student could participate in activities such as lunch and “common events of celebration” as opposed to the facility where he is currently placed with only disabled peers. (Baldassarre)
Mr. Baldassarre sits on the board of directors at the CAPS program and there is a strong relationship between the staff at CAPS and the staff at Mahar. There are currently two programs for students who are severely disabled at Mahar, one for students who are 13 to 17 years old and one for 18-22 year olds. Because he is in the building every day he is able to see that there are students with similar disabilities to Student’s. From what he knows of Student he envisions him being able to participate in lunch, physical education, and perhaps in community events with his general education peers. He believes Student may be able to participate in classes like art and music. (Baldassarre)
7. Mr. Baldassarre spoke to Mother at Student’s January 6, 2010 IEP meeting and sought consent to send Student’s records to other placements. During the meeting he told Mother there were opportunities for Student to be educated closer to home. At the time Mother was unhappy with Seven Hills’ requirement that parents provide money for students’ clothing2 . Mr. Baldassarre told Mother that because of the distance between Mahar and Seven Hills it is hard for Mahar to provide “extreme oversight” to the program. He told her that there were opportunities for placements that would be closer to her home that would allow her to be more involved with her child, and Mother expressed some interest in that suggestion. One of the staff members from Seven Hills objected to that proposal, and told Mother that she feared that if Student left the program some of the behaviors that he had previously engaged in would re-emerge3 . (Baldassarre)
8. Mr. Baldassarre later met with Mother, Edward McCall, Director of CAPS Collaborative, and with James Regan, the Director of the Communities Collaborative to explain to her what opportunities there could be if Student was deemed to be appropriate for the programs. Mother met with the directors, and spoke to them on the phone. It appeared as though she had agreed to look at other placements. After about a week of no communication, the IEP was returned to Mahar with Mother’s notation indicating that she did not want Student’s information to be shared with any other placements. Mr. Baldassarre tried to contact Mother to discuss her refusal to provide consent and she did not return his phone calls.
Mr. Baldassarre would like to send Student’s IEP and other information to the CAPS Collaborative and the Communities Collaborative to ask the programs if they believe Student would be appropriate for the programs that currently exist. This would all be done before Student’s three-year evaluations in the fall. If the collaboratives found Student to be a good fit, Mr. Baldassarre would ask the evaluators in the fall to predict the impact that changing Student’s educational and residential placements would have. (Baldassarre)
9. Mr. Baldassarre testified that he will be unable to determine whether the programs would be able to meet Student’s needs without the BSEA providing substitute consent for him to do so. Mother has provided Dr. McCall with sufficient information that he was able to say that it appears as though Student may be a good fit for the program. In follow-up conversations with Dr. McCall, he has said that he is looking forward to reviewing the documents because he thinks he could help Student. (Baldassarre)
10. The Communities Collaborative “creates a home to meet the child’s needs.” They work with various state agencies and create twenty four hour care for students. In order for Mr. Regan to determine whether his collaborative can meet Student’s needs he will need to review Student’s IEP, his educational testing, his independent evaluations, his independent living evaluations, and information from Seven Hills and Student’s residential facility so that he can evaluate Student’s behavior and his interactions over time, so as to enable Communities Collaborative to create the environment that he needs. In order for Mahar to know whether it is even possible to transfer him Student’s records need to be reviewed. If Student stays where he is currently placed he is likely to remain there until he is 22 years old without ever having the possibility of exploring a “better place for his life.” Mr. Baldassarre believes that the collaborative programs can improve Student’s quality of life and his educational experiences. He believes the CAPS collaborative provides more robust services than Seven Hills and he is able to observe the program every day as opposed to every several months as is the case with Seven Hills. (Baldassarre)
11. The reason Student was initially placed residentially was because he was unable to be safely transported. Mr. Baldassarre does not think that anybody with Student’s level of disability should be required to be transported on a van for eighty minutes per day. (Baldassarre)
12. Mr. Baldassarre referenced one other incident in which Student was transported to the emergency room for ingesting a non-food item and Mother was not notified for several weeks. He questioned the level of communication between Mother and Seven Hills. He believes Mahar could provide a better placement for Student. (Baldassarre)
FINDINGS AND CONCLUSIONS:
Student is an individual with a disability, falling within the purview of the Individuals with Disabilities Education Act (IDEA)4 and the state special education statute.5 As such, he is entitled to a free appropriate public education (FAPE). Neither his status nor his entitlement is in dispute.
In the instant case, Mahar seeks to override the Parent’s refusal to consent to Mahar’s request to send referral packets to placements which it believes may be able to provide appropriate services to Student. The district cites M.G.L. ch. 71B and 603 CMR 28.08(3) and (5) as well as 20 USC 1415(K) and 34 CFR 300.521 as giving the BSEA jurisdiction over this request, however, it does not cite to any legal standard applicable to the request to override Parents’ refusal to consent to the sending of referral packets. In order to provide a legal framework in which to analyze the district’s request, I look to the standard for overriding a parent’s refusal to consent to a reevaluation.
The Massachusetts Special Education Regulations provide
If subsequent to initial evaluation and initial placement and after following the procedures required by 603 CMR 28.00, the school district is unable to obtain parental consent to a reevaluation … the school district shall consider with the parent whether such action will result in the denial of a free appropriate public education to the student. If, after consideration, the school district determines that the parent’s failure or refusal to consent will result in a denial of a free appropriate public education to the student, it shall seek resolution of the dispute through the procedures provided in 603 CMR 28.08. Participation by the parent in such consideration shall be voluntary and the failure or refusal of the parent to participate shall not preclude the school district from taking appropriate action pursuant to 603 CMR 28.08 to resolve the dispute. 603 CMR 28.07(1)(b)
In the instant case, the district has not demonstrated that Student will be denied a free appropriate public education due to the Parent’s failure to provide consent. In fact, the district has not provided the hearing officer with any justification for granting their request for substitute consent. The evidence in the record shows that Student is placed at Seven Hills pursuant to a current and accepted IEP. (See S-1) The term of the IEP is from January 6, 2010 through January 5, 2011. Neither the Parent, the staff of Seven Hills, nor the staff at Callan House has expressed any concern about the appropriateness of Student’s placement. Likewise, neither the Parent, Seven Hills’ staff, or the staff of Student’s residential placement, Callan House, have expressed any concerns about the appropriateness of the placement or the length of Student’s daily commute.
There has been no change in circumstances since both the district and Parent deemed Student’s educational and residential placements to be appropriate for the Student. Student has had only one aggressive incident during the school year which occurred while he was being transported on the school van. The incident occurred prior to the Team meeting and did not cause the Team to recommend any change to Student’s placement. The incident did not recur and did not require any changes to Student’s transportation arrangements. Although Mr. Baldassarre made several references to the length of time Student spends on the school van, he testified that Student’s commute is approximately forty minutes each way. The commute complies with the requirement that a student not be transported in a vehicle for more than one hour each way absent approval of the Team. (See 603 CMR 28.06(8)(a).)
The fact that the district personnel now believe that there is a possibility that an in district program could meet Student’s needs, does not justify an override of Parent’s refusal to consent to the sending of referral packets while an accepted IEP is in place. If the district believed that it might have an appropriate in-district program for Student as of the date of the Team meeting it should have then requested consent to the sending of referral packets, pursued substitute consent if Parent refused, and proposed that placement. It could have then requested a hearing to determine whether its proposed placement was appropriate. There is nothing in the law to justify overriding a parent’s refusal to consent to the sending of referral packets when a student is placed in a program deemed appropriate by the Team pursuant to an unexpired accepted IEP.
ORDER
Mahar’s request that the BSEA provide substitute consent to allow the school district to release Student’s IEPs, evaluations, and other documents to the CAPS Collaborative and Communities Collaborative is DENIED.
By the Hearing Officer,
____________________________________
Catherine M. Putney-Yaceshyn
Dated: July 16, 2010
1
The Team meeting notes make no mention of a discussion regarding exploring placement options closer to Student’s home. (See S-5)
2
According to Mr. Baldassarre, Mother had recently paid Seven Hills $200.00 for clothing and she was questioning where that $200.00 had gone.
3
Mr. Baldassarre did not believe that the staff member had appropriate credentials to make that prediction. (Baldassarre)
4
20 USC 1400 et seq .
5
MGL c. 71B.