COMMONWEALTH OF MASSACHUSETTS
SPECIAL EDUCATION APPEALS
In Re: Hamilton-Wenham Regional School District BSEA # 04-3900
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 ch. 71B), the state Administrative Procedure Act (MGL ch. 30A) and the regulations promulgated under these statutes.
The Hearing Request was filed on March 22, 2004, a Pre-Hearing Conference was held on April 29, 2004, and a one-day Hearing was held on May 17, 2004 in Malden, MA before William Crane, Hearing Officer. Those who participated in part or all of the Hearing were:
Student1
Student’s Mother
Alex Tsonas Director, Seaport Campus
Deborah Frontierro Director of Special Education, Hamilton-Wenham RSD
Catherine Lyons Attorney for Hamilton-Wenham RSD
The official record of the hearing consists of documents submitted by the Parent and marked as exhibits P-1 through P-34; documents submitted by the Hamilton-Wenham Regional School District (Hamilton-Wenham) and marked as exhibits S-1 through S-24; testimony of Mr. Tsonas and Ms. Frontierro; and approximately one day of recorded oral testimony and argument. Oral closing arguments were made at the end of the Hearing day on May 17, and the record closed on that date.
ISSUE
The issue to be decided is whether the IEP for the period 6/9/03 to 6/8/042 proposed for Student by Hamilton-Wenham is reasonably calculated to provide Student with a free appropriate public education (FAPE) in the least restrictive environment.
POSITIONS OF THE PARTIES
Parent believes that her son can be appropriately served only in a residential educational placement. Through this placement, she seeks a therapeutic environment which includes medical doctors who would be able to help her son with his mood disorder and which can address all of her son’s emotional needs. She also asks that this placement be able to address his language disabilities and teach him to become an independent learner. Parent takes the position that her son’s needs can only be met in a residential setting because he requires a significant amount of structure in order to succeed. She notes that her son, who is an adult, wants to attend a residential school.3
Hamilton-Wenham takes the position that all of Student’s educational needs can be met appropriately within a therapeutic day school, and that a residential placement is not needed for educational reasons. Hamilton-Wenham believes that Student’s most recent placement (a private, therapeutic day placement) was and continues to be appropriate. However, Hamilton-Wenham has also been seeking to identify other private, therapeutic day placements that may be appropriate, including the Bay Cove program.
PROFILE AND IEP
Student is twenty years old (date of birth 8/5/83) and resides with his Parents in Hamilton, MA, which is within the Hamilton-Wenham school district. He has been diagnosed with social and emotional deficits, as well as attention deficit hyperactivity disorder (ADHD), a learning disability and executive functioning difficulties. Student has average intelligence. Testimony of Frontierro, Tsonas; exhibits P-6, P-7, S-21.
Most recently, Student was a 12 th grader at the Seaport Campus of the Schools for Children (Seaport), which is a private, therapeutic day school in Charlestown, Massachusetts, until he withdrew in March 2004. Student has not been receiving educational services from Hamilton-Wenham since that date although a variety of educational services and placements have been offered. Testimony of Frontierro.
Hamilton-Wenham’s most recent individualized education program (IEP) for Student proposes that Student receive all academic services in a special education program. Counseling services of 42 minutes per day are also included in the IEP. Parent has rejected this IEP. Exhibits P-1, S-19.
FACTS
· Alex Tsonas testified that currently and for the past four years, he has been employed by Seaport as its Director, and immediately prior to this position, he was employed as a counselor at Seaport for two years. Mr. Tsonas has held a variety of human services positions since 1992, and holds an MSW degree which he received in 1998.
Mr. Tsonas testified that in his position as Director of Seaport, he oversees the management of the program, supervises staff, participates in admission decisions, oversees the schools’ attendance coordinator, and teaches several elective classes. He explained that he has gotten to know Student by working with him directly, teaching him in two courses (health and computers), helping with his behavioral management system, conducting his educational assessment and functional behavioral assessment, and generally overseeing his program for the 2002-2003 and 2003-2004 school years.
Mr. Tsonas testified that Seaport is a small, therapeutic day school for students aged 14 to 22 years old; it provides math, English, sciences, history and elective courses; it has certified special education teachers as well as certified regular education teachers; and it offers an array of therapeutic services, including individual counseling (once per week for 40 minutes for each student, and additional individual counseling as needed), group counseling (once per week for 40 minutes), family outreach, and social and emotional support throughout the day. He explained that there is a behavior management program, involving progressive actions from warning to time-out, as well as a level system of four tiers which allows students to earn greater responsibility and opportunities within the program.
Mr. Tsonas testified that Student attended Seaport for the 2002-2003 school year and for the 2003-2004 school year until he withdrew in March 2004. Mr. Tsonas explained that Student made progress, both academically as well as socially and emotionally. He noted that except when Student had significant absences, Student did well in the classroom, working hard, producing “good” work, making academic progress and earning grades of A, B and C in all of his courses. Mr. Tsonas further explained Student’s progress with respect to his social and emotional difficulties – Student attended and was “productive” in both his individual and group counseling sessions, taking on a leadership role in the group counseling. He also explained that Student made significant progress addressing his behavioral issues.
Mr. Tsonas testified that at Seaport, Student’s language-based disability, attention deficit and executive functioning deficits were addressed through multisensory teaching methods (including visual aides, graphic organizers, use of computers, interactions with other students and use of portfolios), through teaching of organizational skills, through small classes (up to eight students in a class) and various accommodations (including repetition of instructions and reduced assignments). Mr. Tsonas noted that while at Seaport, Student passed both the math and language arts sections of the MCAS examination. Exhibit S-20.
Mr. Tsonas testified that Student’s only significant impediment to his progress and success at Seaport was his failure, at times, to attend school on a regular basis. He explained that Seaport has a policy that if a student is absent more than eight days (out of forty-one days) in a term, the student receives a grade of F for that term. He noted that Student was absent more than eight days during the 3 rd and 5 th terms of the 2002-2003 school year, and the first two terms of the 2003-2004 school year, and therefore received a grade of F for each of these terms. Mr. Tsonas had no knowledge (except for what he informally learned from other students) as to why Student was absent from Seaport at these times. Exhibit P-21.
Mr. Tsonas testified that, in his opinion, Student’s educational needs can be met satisfactorily by a therapeutic day school (such as Seaport) where his social and emotional deficits can be met and where accommodations can be made to address his learning needs. He concluded that residential services are not necessary in order to meet Student’s educational needs.
· Deborah Frontierro testified that currently and for the past four years she has been the Director of Special Education for the Hamilton-Wenham Regional School District, and in this capacity, she oversees all of the special education staff, coordinates all of the out-of-district placements, and supervises all of the School District’s special education programs. She explained her extensive experience as a teacher and administrator beginning in 1972; she has a masters degree in counseling (1992) and a certificate of advanced graduate studies in special education administration (2004).
Ms. Frontierro testified that she became familiar with Student in 2001, is familiar with his school records and the exhibits in this dispute, has attended his Team meetings from 2001 to 2004, and has overseen his educational program during this time period.
Ms. Frontierro testified that she stayed in close communication with Mr. Tsonas regarding Student’s progress at Seaport, receiving monthly attendance reports, quarterly progress reports and frequently talking by phone. She believes that Student was successful and made significant educational progress at Seaport. She noted that even with Student’s failing all courses during his 3 rd and 5 th terms (because of excessive absences), he was able to pass (and receive academic credit for) all of his course work during the 2002-2003 school year, although Student received no course credit for the 2003-2004 school year because of excessive absences during the first two terms and then his withdrawal from Seaport in March 2004.
Ms. Frontierro testified that Student began attending Seaport because Parent had approached Ms. Frontierro suggesting placement there; Ms. Frontierro then inquired about the school and agreed that it would be an appropriate school for Student; and Hamilton-Wenham proceeded to place Student there.
Ms. Frontierro testified that she has reviewed the evaluations (and their recommendations) by Dr. Bekken and Dr. Kemper. She opined that placement at Seaport was satisfactorily addressing their concerns.
Ms. Frontierro testified that in an effort to identify other private, therapeutic day schools that might be appropriate for Student (since he and his Mother do not want him to return to Seaport), she sent out referral packets (sanitized of identifying information) to a number of private schools. She reported that Student has been accepted, subject to an intake meeting with Student, at the Bay Cove program. She opined, after reviewing this program and what it would offer Student, that it would appropriately meet Student’s social and emotional needs, as well as his learning deficits. She also noted that Harbor School has indicated a willingness to meet with Student to work towards developing an appropriate placement for him.
Ms. Frontierro testified that she believes that all of Student’s educational needs can be satisfactorily addressed within a day school with a therapeutic component and the ability to accommodate Student’s learning disability and related learning needs. She believes that there is no educational rationale that would support residential services for Student.
Ms. Frontierro testified that in the past she has placed Student into two different residential schools, both of which he left; she approved these placements in order to accommodate Parent’s and Student’s wishes even though she does not believe that such a placement is required for educational reasons.
· Kaaren Bekken, PhD, completed a neuropsychological evaluation of Student on March 18 and April 12, 2003. Dr. Bekken found that Student has ADHD, a broad based learning disability (that affects math, reading and written expression), and executive functioning difficulty (for example, planning, multi-tasking, organization). She also noted that depression is present and that “behavior is negatively affected by cognitive difficulty.”
In her report, Dr. Bekken concluded that Student would do best in a small, structured setting, with opportunities for 1:1 assistance. She further recommended reading remediation three times per week, math tutoring and work on written expression (three times per week; individual or very small group). She also suggested accommodations within the classroom to address his attentional issues, that teachers help him organize materials and assignments, that medication may be appropriate to address his depression, and that counseling be continued. Exhibits P-6, S-21.
· Robert Kemper, PhD, completed a psycholinguistic evaluation of Student on 12/11/03. Dr. Kemper made the following recommendations:
[I]t is recommended that [Student’s] educational team consider his placement in a therapeutic educational environment that is able to address an array of needs that are manifested in [Student’s] language-based learning disability, such as reading, written expression, listening comprehension, oral expression, vocational, and sociocommunicative functioning. It is important that [Student’s] educational program have a small student ratio (maximum of 8:1), and provide therapeutic counseling as well as educational activities that are presented in a highly structured, systematic, multisensory format. Because of [Student’s] need to internalize sociocommunicative skills and strategies across a variety of contexts, it is recommended that his program be residential.
Exhibit P-7.
· A letter to whom it may concern, dated April 16, 2001, from Thomas M. Seman, MD, FAAP, of the North Shore Pediatrics at Beverly Hospital, stated that the “episodes on April 14, 2001 attest to the difficulties that [Student] is having outside of a very controlled environment.” Dr. Seman then states in the letter that as Student’s primary care physician, he therefore recommends that Student be placed “in an appropriate hospital setting according to Chapter 12 of the Massachusetts General Laws in order for him to obtain the appropriate treatment for his Substance Abuse and Adolescent Adjustment difficulties.” Exhibit P-11.
DISCUSSION
1. Introduction .
Student is an individual with a disability, falling within the purview of the Individuals with Disabilities Education Act4 and the state special education statute.5 As such, Student is entitled to a free appropriate public education (hereafter, FAPE).6 Neither his eligibility status nor his entitlement to FAPE is in dispute.
FAPE requires that the individualized education program (hereafter, IEP) be tailored to address a student’s unique needs in a way reasonably calculated to enable the student to make meaningful and effective educational progress in the least restrictive environment.7
The principal issue presented is whether the programming and specialized services embodied in Hamilton-Wenham’s proposed IEP are consistent with this legal standard .
2. Hamilton-Wenham’s IEP and Placement at Seaport .
It is not disputed that Student has social and emotional deficits (including perhaps depression), as well as attention deficit hyperactivity disorder (ADHD), a learning disability and executive functioning difficulties. Student has average intelligence. Testimony of Frontierro, Tsonas; exhibits P-6, P-7, S-21. The parties also agree that a private, therapeutic school, which can address appropriately Student’s social and emotional issues as well as his learning disability and executive functioning difficulties, is appropriate for Student. A therapeutic day placement is reflected within Hamilton-Wenham’s proposed IEP. Exhibits P-1, S-19. Parent and Student seek a therapeutic residential placement.
The uncontradicted evidence was that Seaport appropriately addressed Student’s emotional issues through a combination of individual and group counseling, and milieu support. The testimony relevant to this issue supports the conclusion that Student made significant progress while at Seaport regarding his social and emotional deficits and would likely continue to do so had Student not withdrawn. Testimony of Tsonas.
The uncontradicted evidence was also that Seaport appropriately addressed Student’s learning disabilities, including his executive functioning difficulties. The testimony relevant to this issue supports the conclusion that Student’s learning disabilities were appropriately accommodated at Seaport, that he made significant and effective academic progress when he attended the program, and that he would likely continue to be successful academically had he not withdrawn from the school. Testimony of Tsonas, Frontierro.
Parent, at the Hearing, argued that Seaport had not sufficiently addressed Student’s learning disabilities, but she provided no evidence to support this contention.
Placement at Seaport is consistent with recommendations of Dr. Bekken and Dr. Kemper, except for Dr. Kemper’s recommendation for a residential placement (discussed separately below). The remedial education services recommended by Dr. Bekken are provided at Seaport. In addition, Seaport addresses Dr. Bekken’s and Dr. Kemper’s recommendations for a therapeutic educational environment with a small student/teacher ratio (maximum of 8:1), educational instruction that is presented in a multisensory format, accommodations and assistance provided to address Student’s learning needs (including his executive functioning deficits), and therapeutic counseling. Testimony of Tsonas, Frontierro; exhibits P-6, P-7, S-21.
3. Need for Residential Placement .
Parent’s contention is that Student should attend a residential, rather than a day, placement because of the need for significantly greater structure than can be provided within a day placement.
The federal and state special education statutes and regulations clearly allow for placement in a residential school in an appropriate case. The federal regulations explicitly address this issue as follows: “[i]f placement in a public or private residential program is necessary to provide special education and related services to a child with a disability, the program, including non-medical care and room and board, must be at no cost to the parents of the child.”8
Educational benefit is the “touchstone” for purposes of determining a school district’s responsibility to provide a residential placement. If such a placement is needed for reasons unrelated to Student’s educational needs, then the placement is not required in order for the student to receive the requisite educational benefit under the FAPE standard, and the school district has no legal responsibility to provide it.9
Hamilton-Wenham, through the testimony of Mr. Tsonas, provided persuasive evidence that so long as Student is willing and able to attend school, placement at Seaport (or a comparable day school) would adequately address all of Student’s educational needs. It was only Student’s absences that precluded him from being successful at Seaport. Testimony of Tsonas. No evidence was submitted from which I could determine the reasons for Student’s absences (except the first several weeks of the 2002-2003 school year when he was in jail), with the result that I am unable to reach any conclusions regarding the need for educational services to reduce these absences.
Parent provided no persuasive evidence in support of her contention that a residential school is needed for educational reasons. Parent called no witnesses in this case, relying exclusively on the documents which have been entered into evidence. Parent is able to point to only two places in the record where a residential placement is recommended.
The first place in the record which supports Parent’s contention is Dr. Kemper’s evaluation report, in which he states: “Because of [Student’s] need to internalized sociocommunicative skills and strategies across a variety of contexts, it is recommended that his program be residential.” Exhibit P-7. I find this evidence unpersuasive for the following reasons.
First, the above-quoted sentence is an isolated statement not further explained or supported within Dr. Kemper’s report. By itself, the sentence provides too little guidance as to why a residential placement is needed. Second, Dr. Kemper did not testify, and therefore there was no opportunity to understand what he intended, to subject his statement to cross-examination, or to further explore his opinion through questions from the Hearing Officer. Without his testimony, the report is entitled only to limited weight. Third, Dr. Kemper’s statement in favor of a residential placement is not supported by Dr. Bekken’s neuropsychological report. Exhibits P-6, S-21. Finally, there is nothing in the record to explain what qualifications Dr. Kemper may have to make a recommendation regarding residential placement for Student.
The second part of the record relied upon by Parent is a letter to whom it may concern, dated April 16, 2001, from Student’s primary care physician. In his letter the physician recommends that Student be placed “in an appropriate hospital setting according to Chapter 12 of the Massachusetts General Laws in order for him to obtain the appropriate treatment for his Substance Abuse and Adolescent Adjustment difficulties.” Exhibit P-11. This letter, now three-years-old, is too dated to provide a basis for my determination of Student’s current needs. In addition, of course, there was no testimony from the physician to support or explain this statement as an indication of Student’s current needs.
I do not doubt the sincerity and good intentions of Parent in her advocacy for her son. Clearly, she is seeking what she believes to be in his best interests. However, my role is not to decide what is in the best interests of Student, but rather to determine Hamilton-Wenham’s legal responsibilities to address his educational needs. In making my determination, I may rely only on the testimony of witnesses and the documents which have been entered into the record. For the reasons that I have explained above, none of this evidence provides credible or persuasive support for the conclusion that Student requires a residential school to meet his educational needs. As a result, I may not order Hamilton-Wenham to provide Student with a residential placement.10
4. Conclusion .
I conclude that Hamilton-Wenham’s IEP (including placement at Seaport) for the period 6/9/03 to 6/8/04 is tailored to address Student’s unique needs in a way reasonably calculated to enable Student to make meaningful and effective educational progress and therefore provides Student with FAPE.
I have therefore concluded that continued placement at Seaport would appropriately address Student’s educational needs and satisfy the School District’s special education responsibilities. I understand, however, that Student is not willing to continue placement there. It seems self-evident that in order for educational services or placement to actually help Student, he must be motivated to receive those services and willing to attend the particular school. Excessive absences or withdrawal will likely make it impossible for Student to make educational progress. Hamilton-Wenham clearly understands this.
Through its Director of Special Education, Hamilton-Wenham has been remarkably flexible and open to considering virtually any array of services (including community college courses) and placements (including other private, therapeutic day placements as well as specific, out-of-state residential schools identified by Parent) in an effort to find educational services/placement that would be acceptable to Student, that would likely lead to his graduation from high school (a priority for Student) and that would responsibly satisfy Hamilton-Wenham’s obligations to Student. It seems likely that regardless of my Decision in this dispute, Hamilton-Wenham may decide to continue voluntarily these efforts to find a mutually agreeable resolution and is to be commended for doing so.
ORDER
Hamilton-Wenham’s IEP is reasonably calculated to provide Student with a free appropriate public education (FAPE) in the least restrictive environment.
Hamilton-Wenham is not required to provide Student with a residential educational placement.
By the Hearing Officer,
William Crane
Dated: May 20, 2004
COMMONWEALTH OF MASSACHUSETTS
BUREAU OF SPECIAL EDUCATION APPEALS
EFFECT OF BUREAU DECISION AND RIGHTS OF APPEAL
Effect of the Decision
20 U.S.C. s. 1415(i)(1)(B) requires that a decision of the Bureau of Special Education Appeals be final and subject to no further agency review. Accordingly, the Bureau cannot permit motions to reconsider or to re-open a Bureau decision once it is issued. Bureau decisions are final decisions subject only to judicial review.
Except as set forth below, the final decision of the Bureau must be implemented immediately. Pursuant to M.G.L. c. 30A, s. 14(3), appeal of the decision does not operate as a stay. Rather, a party seeking to stay the decision of the Bureau must seek such stay from the court having jurisdiction over the party’s appeal.
Under the provisions of 20 U.S.C. s. 1415(j), “unless the State or local education agency and the parents otherwise agree, the child shall remain in the then-current educational placement,” during the pendency of any judicial appeal of the Bureau decision, unless the child is seeking initial admission to a public school, in which case “with the consent of the parents, the child shall be placed in the public school program”. Therefore, where the Bureau has ordered the public school to place the child in a new placement, and the parents or guardian agree with that order, the public school shall immediately implement the placement ordered by the Bureau. School Committee of Burlington, v. Massachusetts Department of Education , 471 U.S. 359 (1985). Otherwise, a party seeking to change the child’s placement during the pendency of judicial proceedings must seek a preliminary injunction ordering such a change in placement from the court having jurisdiction over the appeal. Honig v. Doe , 484 U.S. 305 (1988); Doe v. Brookline , 722 F.2d 910 (1st Cir. 1983).
Compliance
A party contending that a Bureau of Special Education Appeals decision is not being implemented may file a motion with the Bureau of Special Education Appeals contending that the decision is not being implemented and setting out the areas of non-compliance. The Hearing Officer may convene a hearing at which the scope of the inquiry shall be limited to the facts on the issue of compliance, facts of such a nature as to excuse performance, and facts bearing on a remedy. Upon a finding of non-compliance, the Hearing Officer may fashion appropriate relief, including referral of the matter to the Legal Office of the Department of Education or other office for appropriate enforcement action. 603 CMR 28.08(6)(b).
Rights of Appeal
Any party aggrieved by a decision of the Bureau of Special Education Appeals may file a complaint in the state superior court of competent jurisdiction or in the District Court of the United States for Massachusetts, for review of the Bureau decision. 20 U.S.C. s. 1415(i)(2).
Under Massachusetts General Laws, Chapter 30A, Section 14(1), appeal of a final Bureau decision to state superior court must be filed within thirty (30) days of receipt of the decision.
The federal courts have ruled that the time period for filing a judicial appeal of a Bureau decision in federal district court is also thirty (30) days of receipt of the decision, as provided in the Massachusetts Administrative Procedures Act, M.G.L. c.30A . Amann v. Town of Stow , 991 F.2d 929 (1 st Cir. 1993); Gertel v. School Committee of Brookline , 783 F. Supp. 701 (D. Mass. 1992).
Therefore, an appeal of a Bureau decision to state superior court or to federal district court must be filed within thirty (30) days of receipt of the Bureau decision by the appealing party.
Confidentiality
In order to preserve the confidentiality of the student involved in these proceedings, when an appeal is taken to superior court or to federal district court, the parties are strongly urged to file the complaint without identifying the true name of the parents or the child, and to move that all exhibits, including the transcript of the hearing before the Bureau of Special Education Appeals, be impounded by the court. See Webster Grove School District v. Pulitzer Publishing Company , 898 F.2d 1371 (8th Cir. 1990). If the appealing party does not seek to impound the documents, the Bureau of Special Education Appeals, through the Attorney General’s Office, may move to impound the documents.
Record of the Hearing
The Bureau of Special Education Appeals will provide an electronic verbatim record of the hearing to any party, free of charge, upon receipt of a written request. Pursuant to federal law, upon receipt of a written request from any party, the Bureau of Special Education Appeals will arrange for and provide a certified written transcription of the entire proceedings by a certified court reporter, free of charge.
1
Student participated by speaker phone for about a half hour, but did not appear in person and did not testify.
2
Exhibits P-1, S-19.
3
Student has authorized his Mother (Parent) to represent him in these proceedings. Exhibit P-20.
4
20 USC 1400 et seq .
5
MGL c. 71B.
6
MGL c. 71B, ss. 1 (definition of FAPE), 2, 3.
7
For a more complete explanation of this standard and the legal authorities upon which it is based, see In re: Arlington , 37 IDELR 119, 8 MSER 187, 193-195 (SEA MA 2002). See also the following regulatory provisions not referenced in Arlington : 603 CMR 28.05(4)(b) (Student’s IEP must be “ designed to enable the student to progress effectively in the content areas of the general curriculum”); 603 CMR 28.02(9) (“ An eligible student shall have the right to receive special education and any related services that are necessary for the student to benefit from special education or that are necessary for the student to access the general curriculum.”); 603 CMR 28.02(18) (defining the phrase “ progress effectively in the general education program”).
8
34 C.F.R. 300.302.
9
Gonzalez v. Puerto Rico Department of Education , 254 F.3d 350 (1 st Cir. 2001).
10
While it is the school district’s responsibility to prove that the IEP it recommends is appropriate, the school district does not also bear the burden of showing that an alternative, more restrictive placement suggested by a parent is inappropriate. Rather, it is the parent who bears the burden of showing that its proposed placement would provide student with an appropriate education in the least restrictive environment. T.B. v. Warwick School Committee , 361 F.3d 80, 82 n.1 (1 st Cir. 2004); Carlisle Area Sch. v. Scott P., 62 F.3d 520, 527 (3d Cir. 1995), cert. denied , 116 S.Ct. 1419 (1996); Schreiber v. Ridgewood Board of Education , 952 F.Supp. 205 (DC NJ 1997).