Student v. Attleboro Public Schools – BSEA # 09-6759



<br /> Student v. Attleboro Public Schools – BSEA # 09-6759<br />

COMMONWEALTH OF MASSACHUSETTS

SPECIAL EDUCATION APPEALS

In Re: Student v. Attleboro Public Schools

BSEA # 09-6759

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.

On May 6, 2009, Parents requested a Hearing in the above-referenced matter. Some of the issues were resolved between the Parties, and an additional issue was disposed of via Ruling on Attleboro’s Motion to Dismiss Parents’ Request for Hearing with Prejudice issued on September 29, 2009. The remaining issue was scheduled for Hearing on November 13, 2009. On the date of Hearing, Parents filed a second motion requesting recusal of the Hearing Officer, albeit under different theories of law. Attleboro Public Schools orally objected to recusal of the Hearing Officer and after hearing both Parties on the issue, and partially relying on the reasoning stated in the first Ruling on Parents’ Motion for recusal of the Hearing Officer, the reasons stated on the record and those expressed by Attleboro Public School’s Attorney, Parents’ second Motion requesting recusal of the Hearing Officer was DENIED. The remaining issue was addressed at the Hearing conducted immediately following ruling on the motion, on November 13, 2009, at the Bureau of Special Education Appeals, 75 Pleasant St., Malden, Massachusetts. Those present for all or part of the proceedings were:

Student’s Mother

Student’s Father

Michelle Dickens-Weil Student Services Coordinator K-4, Attleboro Public Schools

Sylvia J. Day Director of Special Education, Attleboro Public Schools

Regina Williams Tate, Esq. Attorney for Attleboro Public Schools

The official record of the hearing consists of documents submitted by Parents and marked as PE-1 through PE-191 , and Attleboro Public Schools (Attleboro) marked as exhibits SE-1 through SE-52 ; recorded oral testimony and oral closing arguments. The record closed on November 13, 2009.

HEARING ISSUES:

1. Whether Attleboro was responsible to provide Student transportation to Willett Elementary School during the 2008-2009 school year? If so,

2. Whether Parents are entitled to reimbursement for provision of transportation during the 2008-2009 school year?

POSITIONS OF THE PARTIES:

Parents’ Position:

Parents assert that Attleboro drafted an IEP which called for placement of Student at the Willett Elementary School for the 2008-2009 school year. Since they did not request an intra-district assignment for that school year, and since they live more than 2 miles away from Willett Elementary School, they state that Attleboro was responsible to provide transportation to Student. Accordingly, they seek reimbursement for transportation for the 2008-2009 school year.

Attleboro’s Position:

Attleboro denies that the Team placed Student at the Willett Elementary School and states that Student could have been appropriately educated in his neighborhood school, Hill Roberts School. It states that the only reason Student attended Willett Elementary School was a result of Parents’ request for intra-district school assignment in 2007, and therefore under Attleboro’s policies, it was not responsible to offer Student transportation. Attleboro further states that Student does not present with any handicapping condition that would qualify him to receive special transportation under his IEP. Attleboro states that Student’s IEP for the 2008-2009 school year does not reflect the need for transportation services.

Lastly, Attleboro asserts that to the extent that Student’s IEP covered the period from October 2007 to October 2008, overlapping with the IEP for the 2008-2009 school year, said period was covered by the previous intra-district request and Parents are not entitled to transportation reimbursement for that period of time consistent with the Ruling dismissing Parents’ request for transportation for the 2007-2008 school year.

FINDINGS OF FACT3 :

1. Born in January 2001, Student is eight years old. He has been found eligible to receive special education services (PE-25).

2. A placement determination dated June 6, 2006 called for Student to attend a pre-school program at the Studley Elementary School in Attleboro. It further provided that Student would be transported via mini-bus (PE-6). This document states that Student requires a closed classroom due to increased distractibility secondary to a diagnosis of PDD (PE-5).

3. Student’s 2006-2007 IEP states that Student requires special transportation and calls for transportation to be provided via mini-bus (PE-6). Parent accepted this IEP in full on June 10, 2006 ( Id. ).

4. On June 5, 2007, in preparation for Student’s Team meeting to consider Kindergarten options, Maureen Morgan, Ed. M., Preschool Services Coordinator, submitted her recommendations in writing (PE-8; SE-5). Ms. Morgan supported continued services for Student due to issues and “behaviors typically associated with a diagnosis of PDD-NOS.” In her report she states that

Given [Student’s] diagnosis, combined with the social-pragmatic and behavioral concerns, as well as the demands of the Kindergarten curriculum, the Team was concerned that [Student] may be a candidate for the Insights program. This is the primary reason that he was recommended to attend Willett School for September 2006 (PE-8; SE-5).

5. Student’s Team convened on or about June 12, 2007. The Team meeting notes, submitted by Michelle Dickens-Weil, K-4 Student Services Coordinator in Attleboro, and Gaylene Heppe, Principal at the Willett Elementary School in Attleboro, specifically state that

… the team does not believe that Student cannot be successful at Hill Roberts. If the parents would like [Student] to attend Willet School they need to complete the request for intra-district placement and submit it through the Superintendent’s office based upon current policy. The request must be made and considered annually (PE-12; SE-6).

6. When Student’s Team met in June 2007, his “local” or “neighborhood school” was the Hill Roberts School in Attleboro (Testimony of Mother; Ms. Dickens-Weil). Hill Roberts has been approved by the Department of Elementary and Secondary Education to address numerous special education needs (testimony of Ms. Dickens-Weil, Ms. Sylvia J. Day). The Hill Roberts School offers an open classroom environment (testimony of Mother).

7. June 14, 2007, Attleboro received Parents’ request for an intra-district placement at the Willett Elementary School based on Parents’ belief that Student would not do well with the noise levels in the open classroom environment. Student’s Team disagreed with Parents’ position on the basis that there was no evidence that an open classroom environment would negatively impact Student’s ability to succeed (PE-10; SE-7). The form signed by Parents specifically stated

I understand that requests will be approved on a space-available basis and, if request is approved, I will be responsible for arranging transportation for my child (SE-10; SE-7).

8. Pia Durkin, Ph. D., Attleboro’s Superintendent of Schools notified Parents on June 21, 2007 that their request for intra-district placement at Willet Elementary School for the 2007-2008 school year had been approved. The letter further emphasized that the approval was conditioned on Parents providing transportation for Student (PE-11; SE-8; SE-9).

9. Following a Team meeting on October 16, 2007, Attleboro drafted an IEP calling for Student’s participation in a full inclusion program at the Willet Elementary School (PE-12). Parent accepted the IEP program and placement on October 23, 2007 ( Id. ).4

10. Mother testified that in the spring 2008, Ms. Dickens-Weil informed her that she would have to file a new request for intra-district school assignment or Student would go beck to his neighborhood school, Hill Roberts School (testimony of Mother).

11. The following year, Student’s Team reconvened in October 2008 to discuss the results of Student’s re-evaluation (testimony of Ms. Dickens-Weil). On November 12, 2008, Attleboro notified Parents that it had developed a proposal to terminate services relying on Student’s three year evaluation results which suggested that Student “no longer required specialized instruction to access the curriculum and make academic progress” (PE-23). According to Attleboro, Student could continue to receive social skills counseling through a §504 plan ( Id. ).

12. At Parents’ request, the Integrated Center for Child Development conducted a neuropsychological evaluation of Student in May and June 2008 (PE-14). Parents forwarded the report from this evaluation to Attleboro in October 2008 (Testimony of Mother). Mother spoke with Ms. Day, Attleboro’s Director of Special Education and Student Support Services, and the Team was reconvened in December 2008 to re-evaluate Student’s eligibility for special education services (PE-22; testimony of Ms. Day).

13. Student’s Team met again on December 4, 2008, at which time the Team drafted an IEP calling for Student to participate in a full inclusion program at the Willet Elementary School (PE-25; SE-10). The Assigned School Information on the administrative Data Sheet of this IEP names Willett Elementary School as the school to which Student is assigned for the 2008-2009 school year. This IEP covers the period from December 4, 2008 through December 4, 2009 (PE-25; SE-10). Parent rejected the IEP in part on January 20, 2009, due to omission of transportation to and from Willett Elementary School, the decrease in classroom support, and the omission of a social skills group. Parent further communicated her intent to provide additional explanation regarding the rejected portions of the IEP in a request for Hearing she intended to file. All other portions of Student’s proposed program and placement were accepted (PE-25; SE-10).

14. As with the IEP for the 2007-2008 school year (PE-12), the box addressing transportation in the December 2008-December 2009 IEP (PE-25; SE-10) calls for no transportation needed as a result of Student’s disability stating that

Regular transportation will be provided in the same manner as it would be provided for students without disabilities. If the child is placed away from the local school, transportation will be provided (PE-25; SE-10) [Emphasis supplied].

15. Student attended the Willett Elementary School in Attleboro for the 2007-2008 and the 2008-2009 school years (PE-12; PE-25; SE-10; testimony of Mother).

16. Parents did not complete a Request for Intra-District Placement Form for the 2008-2009 school year (testimony of Mother, Ms. Dickens-Weil). Michelle Dickens-Weil is the Student Services Coordinator for grades K through 4 in Attleboro. She is the individual responsible to oversee the Team, and evaluation process, provide the correct paper work, and ensure that all documents are in order and are completed. According to Ms. Dickens-Weil, no intra-district request form had been filed for the 2008-2009 school year although she informed Parent that one would have to be filed (testimony of Ms. Dickens-Weil, Ms. Day).

17. Attleboro’s policy on Assignment of Students to Schools, approved by the school committee on March 26, 2007, addresses intra-district placement of students who reside in Attleboro and who are assigned to a school other than the one to which his/her address would ordinarily be assigned (i.e., their neighborhood school) (SE-3). This document sets numerous requirements and states that the intra-district “request is for one school year at a time”, and states that the parent/guardian is responsible to provide transportation ( Id. ).

18. Attleboro’s Logistical Guideline as delineated in its School Attendance Zones policy approved by the school committee on March 26, 2007, addresses transportation for Intra-District Placements (SE-1). This section states

As a result of the above guidelines, the factors mentioned above (stability, family composition, capacity, class size, diversity, equity, distance and transportation) will be taken into account when considering parental requests for intra-district placements. In all cases where parents request an intra-district placement, no transportation will be provided by the Attleboro School System.

The Superintendent is authorized to make exceptions to attendance zones (SE-1).

19. Another policy regarding student transportation approved by the school committee on July 18, 2005, provides that the Superintendent of Schools or his/her designees are responsible for all matters relative to transportation programs (SE-2). The document specifically provides that any exception to the guidelines delineated therein may be modified at the discretion of the Superintendent of Schools with the assistance of the bus company and the Attleboro Police Department ( Id .). This policy establishes that elementary school students living at least 1.5 miles from their assigned schools are eligible for transportation funded by the district (SE-2).

20. During the 2008-2009 school year Parents transported Student to and from the home to the Willett Elementary School. Parents home is located 6.26 miles5 from the Willett Elementary School, for a total of 12.52 miles round trip (testimony of Mother). According to Mother, out of the 180 school days during the 2008-2009 school year, Student attended 174 days.

21. Student’s Team met again on June 15, 2009 to discuss Student’s IEP for the 2009-2010 school year (SE-11). This IEP assigns Student to a substantially separate classroom (Attleboro’s Elementary ABLE program) at the Willett Elementary School from July 6 to December 4, 2009 (SE-11). Parent accepted this IEP on June 18, 2009,6 but rejected the “lack of an enclosed classroom accommodation” stating that if Student were found not to require participation in the ABLE program, the issue of enclosed classroom could become relevant (SE-11).

22. On May 22, 2009, as part of Attleboro’s Response to Parents’ Hearing Request, Attleboro provided Parents with Attleboro’s policy on student transportation, school attendance zones, and assignment of students to schools. These policies provide that when a student attends a public school other than his or her “neighborhood school”, transportation is the responsibility of parents because it is the parents’ choice that his/her child attend the other school (SE-1; SE-2; SE-3).

CONCLUSIONS OF LAW :

The Parties do not dispute that Student is an individual with a disability falling within the purview of the Individuals with Disabilities Education Act7 (IDEA) and the state special education statute.8 The sole issue before me is whether Parents are entitled to reimbursement for transportation during the 2008-2009 school year. In rendering my decision, I rely on the facts recited in the Facts section of this decision and incorporate them by reference to avoid restating them except where necessary.

As the party challenging adequate implementation of Student’s IEP, as a result of Attleboro’s alleged failure to provide transportation to and from the assigned school for the 2008-2009 school year, Parents carry the burden of persuasion pursuant to Schaffer v . Weast , 126 S.Ct. 528 (2005)9 .

In the instant case, Parents initially argued that Attleboro was responsible to provide transportation pursuant to 603 CMR 28.05(5)(a)(1), because Attleboro placed Student in a program located at a school other than the one he would have attended but for his special education needs. Parents later explained that Student attended Willett Elementary School under an accepted IEP that placed Student at said school.

Massachusetts Regulation 603 CMR 28.05(5)(a)(1), addressing transportation of eligible students, outlines school district responsibility for provision of transportation to special education students. It provides in pertinent part,

“ (5) Transportation . The Team shall determine whether the student requires transportation because of his or her disability in order to benefit from special education.
(a) Regular Transportation . If the student does not require transportation as a result of his or her disability, then transportation shall be provided in the same manner as it would be provided for a student without disabilities. In such case, the IEP shall note that the student received regular transportation, and if the school district provides transportation to similarly situated students without disabilities, the eligible student shall also receive transportation.

(1) If regular transportation is noted on the student’s IEP and the student is placed by the school district in a program located at a school other than the school the student would have attended if not eligible for special education, the student is entitled to receive transportation services to such program.” 603 CMR 28.05(5).

It is in light of this guidance that I examine the relevant documents, and/or absence thereof, in the instant case. The Parties do not dispute that Student does not need special transportation as a result of his disability. Rather, Parents contend that in order for Student to attend Willett Elementary School, the site of his special education program, Attleboro was responsible to provide Student regular transportation. Attleboro disputes Student’s entitlement to regular transportation.

The relevant documents to ascertain the responsibilities of the Parties vis a vis the issue of transportation are: a Request for Intra-District Placement for the 2008-2009 school year, Attleboro’s policies regarding transportation regarding intra-district placements as well as those relative to transportation under students’ IEPs, and Student’s IEP for the 2008-2009 school year (SE-2; SE-3). The evidence shows that Student’s IEP for the 2008-2009 year calls for Student’s program and services to be delivered at the Willet Elementary School.

Attleboro argued that Student’s IEP could have been delivered at the Hill Roberts School, his local/neighborhood school, something supported by his Team, albeit not Student’s Parents. Furthermore, Attleboro argued that to the extent that the 2007-2008 IEP covered the beginning of the school year through October 2008, Student was not entitled to transportation for that period of time consistent with the Hearing Officer’s previous ruling and Parents’ Request for Intra-District Placement. These arguments are not persuasive given the facts herein.

Attleboro’s own policies and procedures regarding Intra-District Placement Requests call for requests and approvals on a year to year basis. These requests do not run consistent with the periods covered by IEPs. Here, Superintendent Durkin’s approval of Parents’ request for Intra District Placement dated June 21, 2007 specifically states that the request was approved for the 2007-2008 school year (SE-9). Under Attleboro’s own policies, a Request for Intra-District Placement should have been made prior to the beginning of the particular school year for which the intra district placement was sought herein the 2008-2009 school year. This did not occur. Rather, Attleboro’s Team identified in all pertinent areas of Student’s IEP that Student’s IEP program and placement would be delivered at the Willett Elementary School, and the portions of the IEP for the 2008-2009 school year addressing program, placement and location for provision of services, was accepted by Parents without the Intra-District Placement Request form.

Attleboro further argues that Student’s placement at Willett Elementary School was not the result of the Team process for the 2008-2009 school year. However, I can find no statement anywhere in the IEP (PE-25) stating that Student is placed at Willett Elementary School in contravention of the Team’s recommendation and as a result of a Request for Intra-District Placement for the 2008-2009 school year. The Team meeting notes, on which Attleboro relies, address the Team’s understanding for the 2007-2008 school year, not the 2008-2009 school year (SE-6). Without a valid Request for Intra-District Placement for the 2008-2009 school year, Attleboro cannot argue that Student’s placement was the result of said request. The IEP also states that Student will receive regular transportation.

Logic would dictate then that Student was in essence “placed by the school district in a program located at a school other than the school the Student would have attended if not eligible for special education” [603 CMR 28.05(5)(a)(1)], and hence was eligible to receive regular transportation services to such program pursuant to his accepted IEP. If so, Attleboro was responsible to provide Student regular transportation to and from his home to Willett Elementary School.

Attleboro’s student transportation policy provides that elementary school students who live at least 1.5 miles from their assigned school are eligible for district funded transportation (SE-2). The record shows that Student’s home is located over 1.5 miles away from Willett Elementary School (SE-2; PE-25). Having shown that Attleboro’s policies supported regular transportation as provided to other similarly situated students on the basis of distance to and from the home to the school to which a student was assigned. I note for the record that Parents have consistently maintained that Student required Willett Elementary School because of the way in which his disability would be impacted in the open classroom environment which exists at Hill Roberts Elementary School, something that Attleboro disputes (see, 603 CMR 28.05(5)(a)(1)). Notwithstanding the Parties’ positions on this issue, I need not reach a determination regarding the aforementioned as the evidence supports Student’s entitlement to regular transportation consistent with his IEP and the Massachusetts Special Education Regulations, as well as Attleboro’s own policies.

Parents have met their burden of persuasion and are entitled to reimbursement for transportation for the 2008-2009 school year.

Since Willett Elementary is located 6.2 miles away from Student’s home, that is a total of 12.52 miles round trip (testimony of Mother), and since he attended 174 school days during the 2008-2009 school year, Parents are entitled to reimbursement at the state mileage reimbursement rate for 174 days from the beginning of the 2008-2009 school year to the end of said school year.

ORDERS:

1. Attleboro was responsible to provide transportation services to Student during the 2008-2009 school year.

2. Attleboro shall reimburse Parents at the applicable State mileage reimbursement rate for 174 days for transportation provided during the 2008-2009 academic year.

By the Hearing Officer,

___________________________________________

Rosa I. Figueroa

Dated: November 18, 2009


1

These documents were previously submitted by Parents five business days prior to the hearing dates scheduled to take place on August 24, 2009. One of Parents’ exhibits was missing the signature/acceptance page, but this document was copied and admitted in evidence on November 13, 2009, without objection by Attleboro.


2

These documents were previously submitted by Attleboro on August 19, 2009.


3

Since some of the relevant facts impacting on the issue to be decided herein are the same as those entered in connection with the Ruling on Attleboro’s Motion to Dismiss Parents’ Hearing Request with Prejudice, and these facts involve documents already discussed in the aforementioned Ruling, and since this hearing involves the remaining issue resulting from the Ruling on Attleboro’s Motion, I hereby adopt and incorporate the pertinent facts and add those resulting from the Hearing of November 13, 2009 relevant to the issue of Parental reimbursement for transportation for the 2008-2009 school year.


4

Although Parent signed and checked the box accepting the IEP program in full on October 23, 2007, but did not check the box accepting the placement decision. She explained at Hearing that her signature and date on said page indicated her consent to placement in addition to programming (testimony of Mother).


5

Using Mapquest , this Hearing Officer took administrative notice of the distance between the two.


6

This exhibit contains a second Placement Consent Form which calls for Student’s participation in a full inclusion program which was also accepted by Parent on June 18, 2009 (SE-11).


7

20 USC 1400 et seq .


8

MGL c. 71B.


9

Schaffer v . Weast , 126 S.Ct. 528 (2005) places the burden of proof in an administrative hearing on the party seeking relief.


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