Student v. Attleboro Public Schools – BSEA # 09-6795

COMMONWEALTH OF MASSACHUSETTS

DIVISION OF ADMINISTRATIVE LAW APPEALS

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 September 9, 2011, Parents notified the BSEA that the above-referenced matter had been remanded to the BSEA consistent with a judgment entered by the United States Federal Court for the District of Massachusetts, on August 31, 2011. Following a telephone conference call on September 26, 2011, the matter was scheduled to proceed to Hearing on December 1, 2011. The Hearing was held on December 1, 2011, at the Attleboro Public Schools Central Office, 100 Rathbun Willard Drive, Attleboro, Massachusetts. Those present for all or part of the proceedings (in person or via telephone conference call) were:

Student’s mother

Student’s father

Maureen Morgan Preschool Services Coordinator, Early Services Center

Attleboro Public Schools

Carolyn Lyons, Esq. Attorney for Attleboro Public Schools

Joan Stein, Esq.*¹ Attorney for Chatham Public Schools

Gaileen Heppe* Elementary School Principal, Chatham Public Schools

Amie D. Rumbo Catuogno Court Reporter

The official record of the hearing consists of documents submitted by Parents and marked as exhibits PE-1 through PE-4 and PE-6 through PE-9² , and those submitted by Attleboro Public Schools (Attleboro) marked as exhibits SE-1 through SE-4, recorded oral testimony and oral closing arguments heard at the Parties’ request at the conclusion of the taking of the testimony. The record closed on December 1, 2011.

REMANDED CASE PROCEDURAL HISTORY:

This matter is a remand of a portion of a case in which a final decision was issued on November 18, 2009. The procedural history detailed below pertains only to the remanded portion of the case.

On October 11, 2011, Parents filed a Motion to Use Exhibits and Testimony of the November 13, 2009, BSEA Hearing, contained in the Administrative Record and Hearing Transcript for BSEA # 09-6759, and also filed a Motion to Supplement the Administrative Record for BSEA 09-6759 with a response by the Attleboro Public Schools to the Parents’ Complaint in U.S. District Court for the same case. On October 21, 2011, Attleboro filed a Response to Parent’s Motion to Use Exhibits and Testimony contained within the Administrative Record and BSEA Hearing Transcript and an Opposition to the Motion to Supplement the Administrative Record. A Ruling on the Remand on Attleboro’s Motion to Dismiss and on Parents’ requests was issued on November 7, 2011. This Ruling also addressed the individual objections raised by Attleboro to Parents’ proposed findings of Fact. Those facts agreed to by both Parties are incorporated in this Decision.

Parents requested that subpoenas be issued for three Attleboro staff members. The subpoenas were issued on November 16, 2011, and on November 17, 2011 Attleboro filed a Motion to Quash the subpoenas of Maureen Morgan and Lauren Mulready. Parents opposed this request on November 18, 2011 along with a Motion to further clarify the issues as delineated in the previous Ruling of November 7, 2011. A Ruling was issued, on November 23, 2011, quashing the subpoena for Lauren Mulready and addressing Parents’ request for clarification of the issues for hearing. However, after hearing Parents’ additional arguments at Hearing, Parents were allowed to call Ms. Lauren Mulready, the Early Learning Center, Special Education Teacher in Attleboro. Parents chose not to call Ms. Mulready and the taking of the testimony in Parents’ case concluded without this witness’ testimony.

Regarding the issues for Hearing, the Ruling dated November 7, 2011 specifically stated:

Regarding procedural misconduct on the part of Attleboro, Parents allege that Attleboro: 1) failed to provide notice of procedural safeguards at the Team meeting; 2) the Team failed to reach a determination regarding appropriate placement (Parent also disputed a letter of June 2007 and allegations attributed to Ms. Morgan); and 3) failed to provide Parents with the School District Proposal to Act Notice. All of the aforementioned allegations are sufficiently related to the transportation issue and therefore, warrant a Hearing. Consistent with the telephone conference call held on September 26, 2011, Parents’ allegations of coercion and of procedural misconduct by Attleboro will be heard on December 1, 2011.

Parents submitted a response to the Hearing Officer’s Order to Clarify the Issues for Hearing as well as a Motion to Strike Attleboro’s offer of Settlement from Attleboro’s Exhibit book. Clarification of the issues was offered in a Ruling dated November 23, 2011

Lastly, on November 22, 2011, Parents filed a Motion For Clarification of the Issues to be Heard in response to a Ruling issued by me on November 7, 2011. The Ruling did not specifically include Parents’ allegation that prior to the Team meeting of June 12, 2007, neither they nor the other Team members had received a letter from Ms. Morgan in lieu of her attendance (since she had been excused). Parents assert that they did not receive this letter until it was presented at the June 12, 2007 Team meeting. Parents challenge Attleboro’s factual allegations regarding this letter, and whether this letter had any influence on the Team’s decisions regarding the 2007-2008 school year.

Issue number 2 in the Ruling of November 7, 2011 included allegations attributed to Ms. Morgan’s letter, and as such is considered part of the Hearing issues.

As to the Motion toSstrike, Parents asserted that Attleboro failed to submit all of the documents related to this offer which included “Attleboro’s attempt to threaten and intimidate Parents into accepting the offer.” According to Parents, the offer pertained to the civil action filed in US District Court and not the BSEA. Parents clarified that they sought findings of fact and a determination from the BSEA regarding who was responsible for providing transportation to Student during the 2007-2008 school year. All remaining issues in Parents’ Response were addressed at Hearing and their Motion to Strike the aforementioned exhibits (SE-3 and SE-4) was overruled. Regarding the last paragraph in Parents’ Response, at Hearing, Attleboro moved to strike the portion of Parents Response which alleged professional misconduct on the part of previous counsel for Attleboro based on a misunderstanding regarding receipt of a copy of a transcript at a time when Attorney Lyons was representing Attleboro. In regard to this issue the Parties were heard on December 1, 2011, and a Ruling was entered sustaining Attleboro’s request to strike the last paragraph in Parents’ Response.

On November 30, 2011, Attleboro filed a Motion to Dismiss. Parents opposed this Motion in a written opposition and also argued their position orally, on December 1, 2011. Parents filed an opposition to Attleboro’s Motion to Dismiss on December 1, 2011 which was met with a Motion by Attleboro to Strike the last part of their opposition involving allegations regarding Attleboro’s previous counsel. The Parties were heard on oral arguments of their respective motions on December 1, 2011. The Parties were informed that the Hearing Officer would take their motion under advisement and that it would be addressed as part of the Decision in a Hearing on the merits which involved the same facts. The Ruling on these two motions is addressed in the Conclusion section of this Decision.

Prior to commencement of the Hearing on December 1, 2011, Attleboro reiterated its offer to reimburse Parents the total amount of transportation for the 2007-2008 school year and advised Parents that since this was the maximum they could obtain at a BSEA hearing, if Parents decided to proceed with the hearing Attleboro would seek reimbursement of its attorney’s fees pursuant to 20 USCS §1415(i)(3)(B)(III), dating back to the first offer of settlement in June 2010.

In reference to attorneys’ fees, 20 USCS §1415(i)(3)(B)(III) provides that attorneys fees may be awarded

… to a prevailing party who is a State educational agency or local educational agency against the attorney of a parent, or against the parent, if the parent’s complaint or subsequent cause of action was presented for any improper purpose, such as to harass, to cause unnecessary delay, or to needlessly increase the cost of litigation” 20 USCS §1415(i)(3)(B)(III).

While one of the Parents flatly refused the offer, the other Parent sought time to research and decide what to do. Attleboro agreed to postpone the hearing, and the Hearing Officer offered Parents the opportunity to suspend the proceedings to allow Parents an opportunity to research the issue and decide what to do, but after conferring briefly with each other, Parents stated that they understood the possible ramifications but chose to proceed with the Hearing nonetheless.

On December 1, 2011, Parents also objected to Ms. Heppe’s request to testify via speakerphone and to her attorney participating during Ms. Heppe’s portion of the testimony only. Ms. Heppe’s request to testify via speakerphone had been granted on November 29, 2011. One of Parents’ concerns involved the witness’ access to documents to which they may need to refer her. Parents were allowed an opportunity to identify the documents they wished the witness to review and these were faxed to Ms. Heppe and her attorney prior to taking her testimony. After hearing Parents further on their objections, their objections were overruled and Ms. Heppe testified via speakerphone.

HEARING ISSUES:

1. Whether Attleboro violated Parents’ due process rights during the Team meeting of June 12, 2007?

2. Whether Attleboro coerced Parents into signing an Intra-District Placement Form in June 2007? If so,

3. Whether Attleboro is responsible to reimburse Parents for transportation of Student to and from the Willet Elementary School for the 2007-2008 school year?

4. Whether Attleboro’s Motion to Dismiss with Prejudice should be granted?

POSITIONS OF THE PARTIES:

Parents’ Position:

Parents allege that they were coerced into signing an Intra-District Placement Form in 2007 so that Student could attend first grade at the Willett Elementary School in Attleboro.

Parents assert that Attleboro violated their procedural due process rights during the Team meeting of June 12, 2007, by failing to provide them with a letter drafted by Ms. Morgan prior to commencement of the meeting, which letter mentioned the possibility of Student receiving support from the Insight Program in Attleboro as a reason for placing Student at the Willett Elementary School. Parents state that this is a false statement. According to them, they did not know of this letter when they agreed to release Ms. Morgan from attending the meeting. They further dispute the reason given in the letter for placing Student at Willet Elementary, which they assert was solely due to Student’s need for an enclosed classroom. Parents state that Ms. Morgan’s letter negated the letter of Dr. Munir which supported their position, as a result of which Student’s Team supported changing the location for provision of Student’s services to Hill Roberts Elementary School, his neighborhood school. According to Parents, the Team decision was based on false information.

They further state that Attleboro did not provide them with the Notice of Procedural Safeguards, a Team Determination of Educational Placement, or School District Proposal to Act regarding the change of location for provision of educational services following the meeting of June 12, 2007. They state that the proposed change constituted a change in placement within the meaning of the IDEA and assert that in not being provided the aforementioned documents, they were prevented from pursuing appeal options through the BSEA and that they did not know about stay-put rights. Parents further assert that Student was denied a FAPE during the 2007-2008 school year. They state that they were coerced into signing an Intra-District Placement in order to secure Student’s continued attendance at Willett Elementary School, which had enclosed first grade classrooms.

As such, Parents assert that they are entitled to reimbursement for having provided transportation to Student to and from the Willet Elementary School during the 2007-2008 school year. They also seek findings of fact from the BSEA so that they can pursue reimbursement for attorneys’ fees and other litigation costs.

Attleboro’s Position:

Attleboro denies the procedural violations alleged by Parents, and asserts that it did not change Student’s placement in a full inclusion classroom and further, that it was within its right to change the location for provision of services to Student. Attleboro further asserts that if any procedural violation occurred, it caused no harm to Student or Parents’ ability to participate in the process.

Attleboro argues that Parents made a request for a location for provision of services not based on evaluative or research based information but rather on the opinion of a physician who lacked knowledge about the classroom settings or Student’s performance in Attleboro.

Attleboro further denies that Parents were not able to participate in the Team meeting or that Parents were coerced into signing the Intra-District Placement Form. The Parents carried the burden of persuasion regarding their allegations of coercion and this burden was not met at the Hearing. Attleboro concedes that the 2006 N1 only states that Student’s placement for Kindergarten was made because of the need for an enclosed classroom due to Student’s distractibility, but the IEP itself does not list this as a necessary accommodation. Alone, the N1 is unreliable because the Attleboro Team had other considerations when determining the location for provision of Student’s Kindergarten services. Parents’ insistence on a classroom with four walls was based on parental preference according to Attleboro.

The June 12, 2007 Team convened to determine the location for provision of services in first grade, and since, according to Attleboro, Student was making progress, by law he should be educated in the least restrictive placement, in Student’s case Hill Roberts Elementary School, his neighborhood school.

Attleboro states that it was not responsible to issue an N1 and further that Parents were given the meeting notes to help explain the purpose of the meeting. While it did not give Parents the Procedural Safeguards at the meeting, Attleboro staff had mailed it to Parents with other notices during the year. Attleboro states that it did not force Parents to sign the Intra-District Placement Form at the Team meeting or at any time thereafter. It asserts that Parents took a few days after the meeting to think about pursuing the Intra-District Placement.

Lastly, Attleboro argues that it made several attempts to reimburse Parents the cost of transportation (which is the sole remedy they can get from the BSEA), again as recently as the morning of the Hearing, but Parents rejected the offers. Attleboro therefore, seeks dismissal of the case with prejudice and states that it will pursue reimbursement of its attorney’s fees dating back to 2010.

Motion to Dismiss:

Both the Standard Adjudicatory Rules of Practice and Procedure³ governing BSEA proceedings, and Rule 17 B of the Hearing Rules for Special Education Appeals , provide that a Hearing Officer may allow a motion to dismiss if the moving party fails to state a claim upon which relief may be granted. It is under these rules that Attleboro moves to have this case dismissed with prejudice as to the remaining issue, that is, reimbursement for transportation during the 2007-2008 school year.

Motions to dismiss are analogous to Rule 12(b)(6) of the Federal and Massachusetts Rules of Civil Procedure.⁴ In deciding a Motion to Dismiss, all well-pleaded averments and all reasonable inferences must be interpreted in the plaintiff’s favor, and the motion must be denied if recovery can be justified under any applicable theory. Calderon-Ortiz v. LaBoy-Alvarado , 300 F.3d 60 (1 st Cir. 2002).⁵ Furthermore, under Ashcroft v. Iqbal , — U.S. —, 129 S. Ct. 1937 (2009), and its forerunners the matter may not be dismissed if there is a plausibility of a factual dispute between the Parties.

Dismissal in the case at bar is appropriate only if Attleboro can prove that the facts regarding reimbursement for transportation do not support Parents’ claim under any applicable legal theory, that would entitle Parents to relief that the BSEA has authority to grant. The same is true regarding Parents’ allegations of procedural due process violations. If the BSEA Hearing Officer cannot grant relief under either state or federal law, then the case may be dismissed. In Re: Norfolk County Agricultural School , BSEA # 06-0390 (Berman, 2006).

In deciding this Motion, I consider all pertinent allegations offered by Parents to be true, as well as the uncontested facts outlined in the Fact section in this Ruling, and draw all reasonable inferences in favor of the non-moving party, that is, Parents. Neither side is contesting the BSEA’s jurisdiction regarding the aforementioned issue.⁶ 603 CMR 28.08(3).

Attleboro states that the purpose of the December 1, 2011 hearing was Parents’ request for reimbursement for transportation of Student during the 2007-2008 school year. Since June 29, 2010, Attleboro has offered to reimburse Parents, but Parents have rejected this and all subsequent offers (including that made the morning of the Hearing on December 1, 2011). According to Parents, their rejection is based on their intent to pursue reimbursement for attorney’s fees, this despite the fact that they appeared pro se at the November 13, 2009 Hearing, during the appeal in federal court, and through the remand in the instant case. Since Parents cannot obtain this relief through the BSEA and since Attleboro has already offered to reimburse Parents for transportation, Attleboro argues that there is no ripe issue to litigate. The BSEA cannot grant the additional remedy sought by Parents. Attleboro states that since Parents have failed to state a claim on which relief can be granted and because Attleboro has offered them the entire relief they can obtain through the BSEA, there is no issue left to litigate and the case should be dismissed with prejudice.

Parents oppose Attleboro’s Motion to Dismiss on the basis that the offer of settlement made in conjunction with the U.S. District Court appeal fell short of Parents’ demands because it did not include reimbursement for litigation costs and attorney’s fees. Parents rejected the offer on July 7, 2010. Parents rely on the language of the Court and assert that since the case had been remanded to the BSEA, “the extent to which the Does are the prevailing party is not yet clear” as such, this issue was dismissed without prejudice by the Federal Court as unripe.

Relying on Rule 68(b) of the Federal Rules of Civil Procedure, Parents state that since the offer was rejected, it is deemed withdrawn. This rule does not preclude later offers, but bans evidence of the unaccepted offer except in a cost determination proceeding. Parents state that the rejected offer is therefore, null and void, and as such is inadmissible. Parents also state that since Attleboro’s Motion to Dismiss was filed two days before the Hearing, Parents lacked sufficient time to respond.

Parents further accused Attleboro’s previous counsel of threats and intimidation tactics, as well as of unethical conduct and stated their intent to pursue a complaint with the Attorney General’s Office and the Board of Bar of Overseers. Parents further stated “Please do not consider this a threat. This is a notice which will be followed upon at a time of my [choosing].” Attleboro Moved to Strike the last part of Parents’ Opposition, and after hearing the Parties on this issue, Attleboro’s Motion was SUSTAINED, and the entire second part of Parents’ Opposition was stricken from the record.

Upon consideration of the remaining arguments offered by the Parties, I find that the Motion to Dismiss should be DENIED. A part of Parents’ request for relief is their request for a determination that encompasses findings of fact regarding the merits of Parents’ claims, to ascertain the extent to which they could be considered the prevailing party. In this regard, they are correct that the remedy provided by the BSEA includes fact finding which is among the remedies they may obtain at the administrative level.

Regarding their opposition to allowing evidence regarding Attleboro’s settlement offer, I note that Attleboro renewed its offer in its clarification letter dated November 29, 2011, and again prior to initiation of the Hearing on December 1, 2011. Furthermore, Attleboro is using the June 2010 offer as the fact that establishes its ability to pursue recovery for attorneys’ fees in its IDEA claim against Parents. In this context, both Attleboro’s offer and Parents’ response are relevant.

Therefore, Attleboro’s Motion to Dismiss is DENIED. Having denied both Attleboro’s initial and subsequent Motions to Dismiss, I turn to analysis of the evidence and decision on the merits.

FINDINGS OF FACT:

1. Student is a ten-year-old child who has been a resident of Attleboro, Massachusetts, during all relevant times addressed in this decision. He has been diagnosed with Pervasive Developmental Disorder Not Otherwise Specified (PDD-NOS) (Mother).

2. Parents enrolled Student in a community-based preschool but when this setting could not meet his needs, Parents enrolled Student in Attleboro. Following an evaluation in 2005, Student was found to be eligible to receive “specialized instruction to meet readiness and social behavioral goals, speech therapy and occupational therapy” through Attleboro’s Early Learning Center (ELC) (PE-1, p 330).

3. Mother testified that in 2005 she received the Parents Rights Brochure. She read it but did not memorize the information (Mother).

4. At the ELC, staff observed the following behaviors typical of children diagnosed with PDD-NOS:

… imitation of inappropriate behaviors, decreased participation w/o a moderate degree of adult facilitation, significantly decreased ability to maintain attention to task, reduced social pragmatic skills (greeting peers and teacher, turn taking, maintaining topic of conversation, sharing materials” (PE-1, p 330).

5. On June 6, 2006, Student’s Team met to discuss placement for Kindergarten (Agreed upon Fact).

6. On June 8, 2006, the Team recommended that Student participate in a full inclusion classroom and made a Team Determination of Educational Placement (also known as the “N1”) in which it recommended that Student attend Studley Elementary School for his Kindergarten year, the 2006-2007 school year. The Team documented the reason for the placement determination as

[Student] requires a closed classroom due to increased distractibility secondary to a diagnosis of PDD (AR pp295, answer to question #2).

No other factors relevant to the Team’s determination are documented (AR p. 295 answer to question #5). The same information is documented in a N1 form forwarded to Parents (PE-1, p. 170-171, 294-295). Maureen Morgan, Student Services Coordinator for Early Childhood in Attleboro, testified that she did not prepare the N1, had not been asked to do so, and did not recollect who had prepared it (Morgan).

7. The IEP promulgated in October 2006, offers the following key evaluation results,

Classroom/Academic : [Student] demonstrates grade expected academic skills. Letter identification and sound associations and rote and meaningful counting skills are strong. [Student] demonstrated decreased attention and fidgety behaviors, for large and small group activities. Though he often appears off-task, he is able to respond to teacher questions and directions. [Student] demonstrates decreased social interactions including eye contact and social exchanges with peers/teachers. [Student] also demonstrates mild difficulties with fine motor skills (motor planning/ pencil grasp) needed for writing [Student] is responsive to teacher proximity, guidance and prompts, though these need to be frequent and consistent.

Speech and Language Progress : [Student] continues to demonstrate delays with receptive language and social pragmatic skills. Reduced eye contact, initiations, and communication exchanges also continue to be exhibited.

Occupational Therapy : Decreased fine motor skills including pencil grasp, motor planning for letter formations, [and] orientation on paper and pencil pressure. Sensory profile completed in 2005 indicated average/typical sensory seeking behaviors.

Functional Behavioral Assessment : [Student] exhibits frequent off task behavior. [Student] is typically redirected for off task behaviors. Loss of privileges are also applied. Antecedents to off task behavior include independent seat work, teacher demands, difficult tasks, negative social interactions, and when consequences are imposed for inappropriate behavior. Motivations include avoidance, power assertion, communication deficits, academic frustration, adult attention, intentional rule violation, and social skills deficit (PE-1, p 314).

A Behavioral Intervention Plan (BIP) was attached to the IEP under additional information (PE-1, p 314).

8. The Team agreed that the beginning of Student’s Kindergarten year in the inclusion program would be used as a six week Extended Evaluation period. An IEP covering the Extended Evaluation period from September 6 to October 22, 2006 was drafted. Student’s Team met at the end of the six week period and proposed that Student continue to participate in the full inclusion program. The list of Parents Concerns in this IEP included (PE-1, p 297-311, Morgan, Mother):

· Following directions and his tendency to wonder.

· Difficulty reading cues from his environment and functioning in a group setting, including his ability to listen to a story and answer questions related to the story.

· His conversational skills, his play skills and grasp on a pencil (PE-1, p 297-311).

The IEP offered consultation for speech and language and occupational therapy as well as direct services in these areas in the classroom in addition to personal/social services, and pull-out speech and language and motor group ( Id. ). The accommodations in this IEP called for:

· Use multi-sensory approach. Structured classroom with predictable routine and clear, consistent expectations. Clear warnings prior to transitions. Positive reinforcement and clear consequences. Gain [Student’s] attention using close proximity prior to giving directions. Check comprehension of directions given by having him repeat them back.

· Preferential seating during large group activities. Adult and peer modeling. Scripting of appropriate social interactions. Assistance from adult to solve problems with peers. Encouraging social interactions with peers by having adult accompany him to a center with peers and coaching him through in order to ensure success.

· Language modeling. Social scripting. The use of visuals to help him to comprehend the structure of his day and the expectations during transitions.

· Expansion. Repetition.

· Provide visual stimulus with auditory input.

· Verbal, visual, tactile cues.

· Be consistent.

· Establish a structured routine.

· Ensure student knows expectations.

· Set limits.

· Structure new situation for student (PE-1, p 301-302).

9. The 2006 Team made the determination that Student attend the Studley Elementary School because Student’s neighborhood school did not have enclosed classrooms for Kindergarten (Mother). At the time of this determination, the Insight Program, a program designed for children on the autism spectrum, was housed at Studley Elementary School (Morgan).

10. On June 10, 2006, Parents accepted the proposed Extended Evaluation which called for Student’s participation in a full inclusion program at Studley Elementary School starting in September 2006 (PE-1, 164).

11. During the summer of 2006, Ms. Morgan telephoned Parents and notified them that instead of attending Studley Elementary School, Student would be attending Willett Elementary School which had enclosed Kindergarten classrooms, and asked Parents if they would consent to the change for provision of services to Student. Ms. Morgan explained that although Student would be participating in an inclusion classroom, Attleboro was concerned that if he needed additional supports these should be available to him. The recommendation to change Student from Studley Elementary School to Willett Elementary School was due in part to the fact that since the Insight Program would be moving to Willett Elementary School, Student could have access to supports through that program if needed (Morgan). Parents did not object to the change in location because Willett Elementary School also had enclosed classrooms (Mother). The record contains no documentation explaining the reasons for the change in location for provision of services.

12. Student’s neighborhood school is Hill Roberts Elementary School which has an open classroom environment (Agreed upon Fact).

13. Student initiated the 2006-2007 school year at Willett Elementary School under the Extended Evaluation IEP (PE-1, p 297-311; Mother).

14. In October 2006, the Team conducted an annual review meeting. The educational Summary Form states that Student’s placement will be the Willett Elementary School (Agreed upon Fact). This IEP covers the period from October 17, 2006 to October 16, 2007. It offers Student participation in a full inclusion program at Willett Elementary School (PE-1, p 165). Student remained at Willett for the remainder of the school year (Mother). The general accommodations in this IEP called for:

· Social skills training

· Increased supervision

· Posted schedule and rules

· Contingency contracting

· Consequences for inappropriate behavior

· Positive reinforcement for appropriate behavior

· Clear, consistent rules and expectations for behavior

· Provide visual support whenever possible

· Adjust materials for success

· Provide time limits for tasks

· Break tasks into manageable segments

· Adjustments in pacing

Additional accommodations in the educational areas were listed similar to the previous IEP. Curriculum modification and multi-sensory instruction were listed under the Methodology /Delivery of Instruction Criteria to increase attention and responsiveness. This IEP also offered Student transportation via mini-bus (PE-1, p316-319).

15. Toward the end of the school year, Ms. Gaylene Heppe, Willett Elementary School Principal, telephoned Parent and informed her that if Student wanted to attend Willett Elementary for the following school year, Parent would have to complete an Intra-District Request Form. Ms. Heppe explained that placement at Willett Elementary would be granted on a space available basis and that since it was not Student’s neighborhood school Parents would be responsible for providing the transportation. Mother explained that Student had been placed at Willett by his Team because he needed an enclosed classroom (Mother, Heppe).

16. Ms. Heppe telephoned Mother the following week and informed her that she had consulted with Ms. Silvia Day, Attleboro’s Director of Special Education, who had stated that Hill Roberts Elementary School, Student’s neighborhood school, had been approved by the Department of Elementary and Secondary Education (DESE, formerly the Department of Education) for all children including those with Student’s diagnosis (Mother). Student could apply from year to year through an Intra-District Request Form and would be granted attendance at Willett Elementary School depending on space availability (Mother, Heppe). Since Student’s IEP covered the period from October 2006 to October 2007, Mother advised Ms. Heppe that Student’s placement could not be changed without a Team meeting (Mother). As a result a Team meeting was convened. Ms. Heppe had limited recollections of the events, but she testified that she did not believe that she had informed Parents of what their recourse was if they disagreed with Attleboro’s determination (Heppe).

17. Prior to the meeting, Mother contacted Dr. Kerim Munir, child psychiatrist, who had evaluated Student earlier that year, and asked him to draft a letter explaining Student’s issues and voicing his opinion that Student be educated in an enclosed classroom (Mother, PE-1, p 329).

18. On June 12, 2007, Student’s Team gathered at Willett Elementary School to discuss placement for Student’s first grade (Mother). The meeting was attended by Mother, Father, Ms. Heppe (School Principal), Ms. Dickens-Weil (K to fourth grade special education coordinator), Angela Caouette (Kindergarten Special Education Teacher), Christine David (Occupational Therapist) Carrie Fernandes (Regular Education Teacher), Anne Damrad (School Psychologist)⁷ . During the meeting some of the participants provided input regarding Student’s performance in Kindergarten (Mother, Dickens-Weil). Prior to initiation of the meeting, Parents were asked to excuse Maureen Morgan from attending because she had other meetings which she had to attend. Parents agreed to excuse Ms. Morgan. At the time, they did not know that Ms. Morgan had authored a letter with which they disagreed (Mother).

19. Available for review at the June 2007 meeting were a letter from Dr. Munir dated June 7, 2007, Ms. Morgan’s letter of June 5, 2007, Kindergarten teacher and service providers input and Parents’ input (PE-1, p 331).

20. Dr. Munir’s letter to Angela Caouette, Special Education Teacher at the Willett Elementary School, stated that he had evaluated Student in March 2007 and that Student evidenced difficulties regarding social communication and sensory distractibility. He recommended that Student participate in an environment in which distractions are minimized and recommended that Student attend school in an enclosed classroom (PE-1, p 329).

21. Ms. Morgan’s letter described Student’s entree into Attleboro, his diagnosis, eligibility for ELC, observations of at the ELC during the 2005-2006 school year and stated

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-1, 330; Morgan).

22. Mother testified that nobody had discussed the Insight Program with her before and that it had not been discussed during the 2006 Team meeting that determined placement for Kindergarten. She testified that she knew about the Insight program through conversations she had with the parent of a child who attended that program and who had been with Student in preschool (Mother).

23. The Meeting notes prepared by Michelle Dickens-Weil, K-4 Student Services Coordinator and Gaylene Heppe, dated June 12, 2007, state that the meeting was convened at Parents’ request to discuss Student’s placement for the 2007-2008 school year (PE-1, p 331). The notes reflect Parents’ concerns regarding the number of transitions Student experienced and was likely to experience in the future, as well their concern that the open classroom concept at his neighborhood school, Hill Roberts Elementary School, was incompatible with Student’ s disability and learning style because Student was easily distracted. Parents requested that Student remain at Willett Elementary and that this placement be reflected in his IEP. The notes further state that the rest of Student’s Team opined that he could be successful in any inclusion classroom and that since the open school environment had not been attempted he had not had the opportunity to demonstrate whether he could be successful in such a setting. According to the Kindergarten classroom teacher, Student benefitted from structured, predictable, routine-oriented type environments, which was the style in which Attleboro ran its classes in all Attleboro buildings. Based on the progress demonstrated in Kindergarten, Student’s Team recommended that he continue to participate in inclusion settings with accommodations, curriculum modifications and classroom supports. Attleboro’s staff did not agree that Student could not be successful at Hill Roberts Elementary School. Lastly, the notes reflect that Parents had been given the option of having Student attend Willett Elementary School through an Intra-District Placement Form which pursuant to the then current policy would have to be submitted through the Superintendent’s office (PE-1, p 331).

24. Parents were not handed a Notice of Procedural Safeguards at this meeting or immediately following the Team meeting, and Attleboro did not issue a Team Determination of Educational Placement, or School District Proposal to Act regarding the change of location for provision of educational services following the meeting of June 12, 2007 (PE-2, p 5; Mother, Dickens-Weil).

25. Student’s progress notes for Kindergarten document that he was on target to meet his goals and objectives each IEP period, and by the end of the year he had successfully met his speech and language, occupational therapy, written expression, and social/behavioral goals and objectives (PE-6; Dickens-Weil).

26. Specifically as to the social behavioral goals, improvement was noted by the first IEP period, that is, November 17, 2006. Two and a half months into his Kindergarten year, Student’s progress report prepared by his Resource Teacher, Angela Caouette, noted an increase in Student’s appropriate participation in circle time, in the quality of his work, and in his ability to complete table-top activities more efficiently and independently. His posture had improved, he was listening more attentively and his attention was more focused, although he continued to require occasional redirection to raise his hand instead of calling out. Ms. Caouette noted that Student was motivated by his behavior reward plan and was responding well to time limits to perform specific tasks, such as using the bathroom or putting his belongings away. According to Ms. Couette, the use of a time limit or giving Student a count had proven most effective. Ms. Couette further noted that Student could become easily distracted when he was not in proximity to teachers, but by the end of this first IEP period was requiring fewer redirections and guidance from the teacher to complete an activity. This period’s progress reports also noted that Student was spontaneously initiating greetings to adults and peers and was increasing his willingness to take turns to participate in activities. With teacher prompts he called on peers by their names to initiate communication and was responding appropriately to redirection when he became silly. He also was raising his hand and waited to be called more frequently (PE-6).

27. Parent visited Hill Roberts Elementary School and observed some of the first grade classes while they were in session. She testified that the classroom did not have floor to ceiling walls but rather the very large classroom was partitioned by bookcases. According to Mother, while observing one of the classes, she could hear the teacher in the neighboring enclosure (Mother). All of the classrooms in this school are oriented towards a central atrium and the classrooms are carpeted to reduce noise level (Dickens-Weil). Mother opined that the noise level in the first grade classroom would be distracting to Student (Mother).

28. On or about June 17, 2007, Parent signed and submitted an Intra-District Placement Form requesting Student’s placement at Willett Elementary School (PE-1, p 332). In it Parents noted their belief that Student would not do well with the noise level in the open classroom environment at Hill Roberts Elementary School. Parents further noted that the Team had disagreed with Parents’ position on the basis that there was no evidence that an open classroom environment would impact negatively upon Student’s ability to succeed (PE-1, p 332). The form signed by Parents stated at the bottom

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 (PE-1, p 332).

29. On June 21, 2007, Pia Durkin, Ph.D., Superintendent of Schools in Attleboro, wrote to Parents informing them that their request to have Student attend the Willet Elementary School during the 2007-2008 school year had been approved with the proviso that Parents were responsible to transport Student (PE-1, p 333).

30. Student attended Willett Elementary School during the 2007-2008 school year and Parents provided the transportation. During that year, he also attended before and after- school care at ABBACUS (Mother). According to Mother, this was difficult for him at times. Mother testified that Student tolerated the structure of a school or the ABBACUS setting for up to five hours, and after that he could decompensate quickly (Mother). Parents original plan was for Student to receive his before-and-after-school in his home or in his neighborhood as he had for pre-school and Kindergarten (Mother).

31. Student’s Team reconvened in October 2007 and an IEP was proffered calling for Student’s participation in a full inclusion program at Willett Elementary School. On October 23, 2007, Parents signed this IEP but did not check any of the response boxes (PE-1, p 166). This IEP calls for Student to receive regular transportation (PE-1, p 354).

32. In 2008, Father spoke with Silvia Day during a meeting and she informed him that Attleboro had a policy whereby the district provided a scholarship to parents who could not afford transportation. Ms. Day offered Parents funding for transportation if they met the criteria (Father).

33. Attleboro’s policy on student transportation, school attendance zones, and assignment of students to schools provides 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 (PE-1, p 457).

34. The Logistical Guideline section of the School Attendance Zones policy approved by the school committee on March 26, 2007, addresses transportation for Intra-District Placements (PE-1, p 458). 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 (PE-1, p 458).

35. Attleboro’s policy on Assignment of Students to Schools (approved by the school committee on March 26, 2007), addressing Intra-District Placement of resident students who are assigned to a school other than their neighborhood school, provides, in pertinent part, that the intra-district requests are valid for one school year and must be renewed on a yearly basis, states that the Parent or guardian is responsible to provide the transportation and notes that

Any appeal will be handled in a manner consistent with the Problem Resolution Procedure stated in the Student and Parent Handbook (PE-1, p 460).

Mother testified that Parents did not pursue an appeal with the Superintendent, and further stated that she could not remember if Parents had received the Student and Parent Handbook (Mother).

36. 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 (PE-1, p 150). The document specifically provides that any exception to the guidelines delineated therein may be modified at the discretion of the Superintendent of Schools (PE-1, p 150).

37. On June 29, 2010, Attleboro’s Attorney wrote to Parents offering to settle the case by reimbursing Parents for the cost of transportation for Student for the 2007-2008 school year at the applicable state reimbursement rate. The school’s offer stated that it was made without prejudice and that it did not constitute an admission by Attleboro that it took any action contrary to law, regulation or policy. The offer asked Parents to inform Attleboro, by July 15, 2010 if they intended to accept it (SE-3).

38. On July 8, 2010, Attleboro received Parents’ response signed by Father declining the offer of settlement because it fell short of their demands, which included reimbursing Parents for “all expenses incurred in litigating this case, including attorneys’ fees”. Parents further explained that by being the prevailing party in the 2008-2009 school year portion of the BSEA claim, they were entitled to recover all costs associated with the case. Parents also communicated their intention not to agree to a confidentiality clause (SE-4).

39. On November 29, 2011, Attleboro clarified in writing that its offer to reimburse Parents for the cost of transportation for the 2007-2008 school year was still in effect. This offer was again renewed on December 1, 2011, prior to the Hearing. Father declined the offer and Parents opted to proceed with the hearing on the merits regarding their allegations of coercion and procedural misconduct, by Attleboro on which they premised their claim and requested reimbursement.

CONCLUSIONS OF LAW :

The Parties do not dispute that for all times relevant to this Decision, Student was an individual with a disability falling within the purview of the Individuals with Disabilities Education Act⁸ (IDEA) and the state special education statute⁹ . As such, Student is entitled to a free, appropriate public education (FAPE).¹⁰ The sole issue before me is whether Parents were entitled to reimbursement for transportation of Student during the 2007-2008 school year. Parents alleged that they had been coerced into signing an Intra-District Placement Form, disregarding Student’s needs. They also raised numerous procedural violations.

Attleboro disputed Parents’ allegations and asserted first that Parents were not entitled to reimbursement, and second, that assuming arguendo , that they were entitled, numerous offers to reimburse them for the full cost of transportation at the Massachusetts state rates had been made and renewed, as recently as the morning of the Hearing. Attleboro further asserts that no harm flowed to Student from any alleged procedural misconduct on its part and that since it had offered full reimbursement for transportation, the only remedy available at the BSEA, Parents’ claim was frivolous, and designed to harass Attleboro. As such, if it prevailed, Attleboro would seek reimbursement of its attorneys’ fees against Parents, dating back to June 29, 2010 when the first offer of settlement was made. Attleboro seeks dismissal of the case with prejudice. 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.

The IDEA and the Massachusetts special education law, as well as the regulations promulgated under those acts, mandate that school districts offer eligible students a FAPE. A FAPE requires that a student’s individualized education program (IEP) be tailored to address the student’s unique needs¹¹ in a way reasonably calculated to enable the student to make meaningful¹² and effective¹³ educational progress. Additionally, said program and services must be delivered in the least restrictive environment appropriate to meet the student’s needs.¹⁴ Under the aforementioned standards, public schools must offer eligible students a s pecial education program and services specifically designed for each student so as to develop that particular individual’s educational potential .¹⁵ Educational progress is then measured in relation to the potential of the particular student.¹⁶ School districts are responsible to offer students programs and services that will allow them to make meaningful, effective progress.¹⁷

As the party challenging the adequacy of Student’s proposed IEP, Parents carry the burden of persuasion pursuant to Schaffer v . Weast , 126 S.Ct. 528 (2005)¹⁸ , and must prove their case by a preponderance of the evidence. Also, pursuant to Schaffer , if the evidence is closely balanced, the moving party, that is Parents, will lose. Id . (I note that on the Motion to Dismiss, Attleboro is the moving Party and as such it carried that burden of proof in this regard.)

Upon consideration of the evidence, the applicable legal standards and the arguments offered by the Parties in the instant case, I conclude that Student’s first grade IEP was reasonably calculated to offer Student a FAPE in his neighborhood school. The evidence further supports a finding of procedural violations, but such violations did not result in a denial of FAPE to Student. Regarding allegations of coercion with respect to signing the Intra-District Placement Form, Parents did not meet their burden of persuasion pursuant to Schaffer , and since Attleboro has offered to reimburse them for transportation since 2010, the issue of reimbursement for transportation is moot. My reasoning follows:

Procedural Due Process Violations:

Parents procedural violation allegations stem from their assertion that the June 12, 2007 meeting was a placement meeting and that they were not provided prior written notice consistent with 20 USC 1415 (c)(1). They further take issue with the fact that they were presented with Ms. Morgan’s letter at the Team meeting after they had released her from attending the meeting. As such, Parents argue that Attleboro significantly impeded their ability to participate in the decision-making process regarding Student’s educational placement.

The general interpretation of the term “location” (in the context of an IEP) provided by the federal Department of Education, is that the term refers to the environment or general type of location for providing the services delineated in the IEP rather than to a specific site.¹⁹ This is consistent with Attleboro’s argument that the type of placement provided to Student, that is, “full inclusion”, was the same in 2006 and in 2007. Furthermore, Attleboro seems to rely on court decisions addressing “stay-put” rights²⁰ which have concluded that “educational placement” is not equivalent to the specific school that the student is attending. In this context, a change of location, as when the student is transferred from one school to anther, is not equivalent to a change in “educational placement”. However, relying on a 2004 BSEA Ruling further explaining the meaning of “educational placement” in the context of the specific location where the services are to be provided, Parents argue that when a decision regarding the location of services would impact significantly upon a student’s education, then the location of student’s services falls within the phrase ‘educational placement’, as this phrase is used within the IDEA . In Re: Boston Public Schools , 10 MSER 311, 320 (Crane, July 30, 2004).

Parents argued that in the instant case the location for provision of services was significant because Student had distractibility issues and Hill Roberts Elementary School, his neighborhood school, lacked enclosed classrooms. In contrast, Willett Elementary School had enclosed classrooms. Given that the reason for convening the Team in June 2007 was to determine placement, and that the N1 issued the previous year only reflected that the reason for the Kindergarten placement determination was Student’s need for an enclosed classroom due to distractibility, Parents are correct that a new N1 (Team Determination of Educational Placement), and a Notice of Procedural Safeguards that informed Parents of their rights to appeal, should have been issued.

Addressing notification requirements 20 USC 1415 (c)(1) provides:
(c) Notification requirements : (1) Content of prior written notice. The notice required by subsection (b)(3) shall include–

(A) a description of the action proposed or refused by the agency;

(B) an explanation of why the agency proposed or refuses to take the action and a description of each evaluation procedure, assessment, record, or report the agency used as a basis for the proposed or refused action;

(C) a statement that the parents of a child with a disability have protections under the procedural safeguards of this part [20 USCS §§ 1411 et seq.] and, if the notice is not an initial referral for evaluation the means by which a copy of a description of the procedural safeguards can be obtained;

(D) sources for parents to contact, to obtain assistance in understanding the provisions of this part [20 USCS §§ 1411 et seq.];

(E) a description of the options considered by the IEP Team and the reason why those options were rejected; and

(F) a description of the factors that are relevant to the agency’s proposal or refusal.

Parents testified that following the June 12, 2007 meeting, which was convened as a placement meeting, Attleboro did not issue a Team Determination of Educational Placement, N1, and that Parents were not provided the Parents Procedural Safeguards.

Attleboro conceded that it did not provide Parents the Procedural Safeguards during or immediately after the June 12, 2007 meeting (Dickens-Weil). As stated earlier, the purpose of the meeting was to discuss placement and as such Attleboro was responsible to provide Parents with the Procedural Safeguards, even if, as it argued, all it was doing was to change the location for provision of services. Parents assert that as a result of not receiving the Procedural Safeguards they did not know that they could appeal the District’s determination through the BSEA. Given that Attleboro convened the meeting as a “placement” meeting, its failure to provide Parents the Procedural Safeguards was a procedural violation.

However, the evidence is also persuasive that Parents had received the Procedural Safeguards at other times between 2005 and 2007. Mother testified that she had received the Procedural Safeguards in 2005 and had read the document at the time but that in 2007 she did not remember what it said (Mother). Ms. Dickens-Weil testified that the Procedural Safeguards had been sent home at different times throughout the year. Father testified that he did not read any brochures or papers that came to the house unless they contained a signature, because he received a lot of things in the mail. He only cared about documents that came from the classroom or the administration. He considered the brochures “junk” which he did not bother looking at because he did not care about those (Father). Unless a document required a signature, he did not keep it. He recalled receiving numerous items but had no recollection of any specific one (Father). The evidence is persuasive that the Procedural Safeguards had been sent to the home at other times but Parents disposed of them as junk. As such, Parents allegation that Attleboro had not informed them at any time of their appeal rights through the BSEA is not persuasive. Attleboro’s responsibility was to provide the information and Parents’ responsibility was to read it.²¹ I note that Parents are eloquent, capable individuals who would have been able to understand the information contained therein.

Parents further argued that because they were not provided an N1 at the end of the Team meeting, they did not have any document that they could reject. Assuming arguendo , that as a placement meeting Attleboro was also responsible to issue an N1 amending Student’s educational placement, such a notice was not required in order for Parents to reject the proposed changes described in the meeting notes, something Parents state they did not know.

Regarding Parents ability to participate during the Team meeting, this allegation is unfounded as Parents conceded that nobody prevented them from speaking at the Team meeting, nor were they prevented from staying for the duration of the meeting. Parents voiced their opinions, and were able to present Dr. Munir’s letter. Neither Parent holds credentials, training, nor licenses, as a regular or special education teacher. Given Attleboro’s experience in educating Student, the Team was not persuaded that Student could not be successful at Hill Roberts despite his issues with distractibility which Attleboro recognized and was prepared to meet. In the end, the Team heard Parents but disagreed with them.

The evidence does not support Parents’ allegation that Attleboro intentionally wanted Parents to release Ms. Morgan so that Parents could not confront her regarding the content of the letter authored by her. The content of the letter was damming to Parents’ position, but it was not inconsistent with the considerations used in determining the location for provision of services in 2006. Generally, I found Ms. Morgan to be a credible witness and find her statement that June was a busy time of the year and that her presence at other team meetings was required, to be credible and persuasive.

Similarly, I am not persuaded by Parents’ argument that the information provided to the Team meeting was false. Ms. Morgan was a special education teacher when she first met Parents. She is certified in early childhood and as a special educator K through 3. She explained that initially Student was supposed to attend an inclusion classroom at Studley Elementary School which had enclosed classrooms. The Insight Program was located at Studley Elementary School at the time the determination to place Student at Studley Elementary School was made by the Team. Parents accepted placement in a full inclusion program at Studley Elementary School. When Ms. Morgan later sought Parents’ assent to change the location to Willett Elementary School, Parents consented because this school also offered enclosed classrooms. However, according to Ms. Morgan, the reason for seeking the change from Studley Elementary School to Willett Elementary School was that the Insight Program was being transferred to Willett Elementary School. According to Ms. Morgan, Attleboro was concerned that should Student need additional supports from this program, he could access them easily (Morgan). She testified that Student was demonstrating many skills that were age-appropriate in his partial inclusion pre-school class. There were fifteen children in his pre-school group, but going into Kindergarten, Student could be in a group of up to twenty-four students. Ms. Morgan was credible and persuasive that the initial move from Studley Elementary School to Willett Elementary School involved more than provision of an enclosed classroom as was listed in the N1. Assuming arguendo , that the only reason was the enclosed classroom, there would have been no need for Student to attend a school other than the one reflected in his IEP, that is, Studley Elementary School.

Moreover, Parents presented little evidence to ascertain how much of the Team’s decision turned on Ms. Morgan’s letter. In contrast, Ms. Dickens-Weil, testified that the Team did not solely rely on Ms. Morgan’s letter, but rather looked at Student’s performance during Kindergarten as a snapshot in time (Dickens-Weil). Student had demonstrated growth at the end of Kindergarten and was presenting differently than he presented in pre-school (Dickens-Weil). Ms. Morgan’s letter may have influenced the final outcome, but there is insufficient evidence to conclude that it was the determining factor, given Attleboro’s Team members’ experience with Student. There is also insufficient evidence to conclude that the Team would have reached a different conclusion without Ms. Morgan’s letter, or that the transportation determination influenced the Team’s placement determination.

Parents assert that Student was never considered a candidate for the Insight Program. Parents were equally concerned that Student did not have any reason to act in a way that could set him apart from his typically developing peers as a result of his disability. In this regard, they wanted an environment that minimized his distractions and in no way over stimulated him. Parents wanted to avoid Student starting first grade and not being successful. They did not want him to fall behind academically (Mother, Father). Parents are committed to assuring the best possible education for their son and have been diligent in assuring this result. They prepared and argued every aspect of their position, and researched case-law in and out of Massachusetts. But during the Hearing, it was evident that they had difficulty accepting any position that differed from their own.²²

The ultimate question regarding Parents’ allegations of procedural violations is whether Student or Parents suffered any harm related to the sole issue before me, as a result of Attleboro’s technical procedural violations.

The evidence is undisputed that Student suffered no harm as a result of Attleboro’s technical violations. During the 2007-2008 school year Student attended the Parents’ choice program for first grade at the Willett Elementary School, which had enclosed classrooms. So the question turns on whether Parents were denied the free portion of Student’s right to a FAPE.

Dating back to the 2007-2008 school year, Parents conceded that they had been offered the option of receiving a scholarship that would have covered the transportation expenses (Father, Morgan). Parents rejected this offer because they did not need “charity” and because they wanted the IEP to reflect that Student’s educational placement was Willett Elementary School (Father). In 2010, and as recently as the day of Hearing, Attleboro offered to reimburse Parents transportation expenses at the Massachusetts state rate. Parents rejected all of these offers and insisted on moving forward with a Hearing on the merits. Given the numerous offers for reimbursement, any harm regarding financial hardship due to parental provision of transportation is moot. As such, Attleboro’s procedural transgressions constitute harmless error.

Team determination :

It is undisputed that Student presented with social communication and distractibility issues secondary to his diagnosis of PDD-NOS, and that he was entitled to a FAPE.

Parents argued that the June 12, 2007 Team disregarded persuasive evidence that Student required participation in an enclosed classroom in order to receive a FAPE, relying on Dr. Munir’s letter as well as their experiences as parents in support of their position.

Without the benefit of testimony, Dr. Munir’s letter was insufficient to support Parents’ claim. His letter does not state what type of evaluation was performed. It provides little insight as to the circumstances surrounding the evaluation, does not discuss what was involved or describe the findings. This letter only mentions that 1) Student had been seen two and a half months earlier, 2) provides the same diagnosis for which he was already receiving special education, 3) recommends minimization of distractions, and 4) concludes that Student required an enclosed classroom. Regarding the first three items, the Team was already aware of these and had recommended services precisely to support Student in the least restrictive environment in accordance with the law, the inclusion classroom, with which Parents agreed. Regarding the fourth item, Attleboro persuasively noted that Dr. Munir had never visited any of the schools or classrooms proposed for Student, had never spoken to anyone in Attleboro, and had not observed Student in a classroom setting. Dr. Munir’s evaluation fails to take into account teacher and service provider expertise, proposed peer groupings, group size, additional classroom supports or accommodations. It simply supports the efforts already provided by the school district in an enclosed classroom setting. His letter was responsive to Parents’ concerns, but had limited value with respect to the appropriateness of a location for provision of services regarding which there is no evidence that he had independent, first hand knowledge. As such, while Dr. Munir’s letter was available to the Team, the Team was more persuaded by Attleboro staff’s experience teaching and servicing Student and with his performance during Kindergarten. The Team was responsible to consider the information available to it at the time it was planning for first grade, including Dr. Munir’s letter, but it was not obligated to adopt Dr. Munir’s recommendations.

In support of their request as to Student’s need for an enclosed classroom, Mother analogized an open classroom experience to that of a gymnasium experience. Mother testified that at the suggestion of an acquaintance, they signed Student up for basketball during the summer. Four other teams with their coaches shared space in the same gymnasium. Student was only able to attend two practices because he became over-stimulated and distracted and was unable to follow the drills. His coach suggested that he wear ear plugs but according to Mother, this did not work (Mother). Mother reasoned that the gymnasium experience would be analogous to the experience Student would have in an open classroom. It is not surprising that given Student’s disabilities he would have a very difficult time in a gymnasium with four other teams. Mother’s argument that it is analogous to a classroom is however, not persuasive because the level of noise in a gymnasium is very different from the level of noise to which Student would be exposed in a carpeted, classroom setting.

Parents presented insufficient evidence to conclude that Student would have been unable to access the curriculum and receive a FAPE at Hill Roberts Elementary School. Parents wanted Student to attend Willett Elementary School because the enclosed classroom would offer Student the best opportunity for academic excellence. They disagreed with Attleboro that Hill Roberts Elementary School should not be discarded because Student had not had an opportunity to be successful in an open classroom environment. Parents did not want Student to lose academic ground during first grade.

They testified that they wanted Student to obtain a solid academic foundation during the first grade and were concerned that at Hill Roberts Elementary School this would be negatively impacted by the noise interference of an open classroom setting. Parents were looking for Student to receive the best possible educational foundation. Legally, Attleboro was responsible to offer an appropriate education which allowed Student to make effective progress. The record contains insufficient evidence to conclude that Student would not have been able to receive a FAPE at Hill Roberts, and since the Parties agreed that in 2007 he was not a candidate for the Insight Program, the Team was justified in recommending that Student participate in the full inclusion program in his neighborhood school.

Allegations of Coercion :

Parents allege that they were coerced into signing the Intra-District Placement Form in order to secure placement at the Willett Elementary School. In doing so, they were forced to assume the cost of transportation for the 2007-2008 school year. The Black’s Law Dictionary defines the term “coerce” as

Compelled to compliance; constrained to obedience, or submission in a vigorous or forcible manner.

Attleboro strongly disputes that it in any way forced Parents to sign the Intra-District Placement Form. Rather, they presented this as an option which Parents voluntarily submitted.

Prior to the June 2007 Team meeting, Parents knew that the purpose of the meeting was to discuss the recommendation for Student’s placement at Hill Roberts Elementary School. This information had been shared with Mother during a telephone conversation with Ms. Heppe in May 2006. Ms. Heppe had also informed Mother prior to the meeting that Ms. Day had confirmed that the Department of Elementary and Secondary Education had approved Hill Roberts Elementary School for all students (Mother, Heppe). It was precisely for this reason that Parents requested the letter from Dr. Munir. Dr. Munir’s letter was available to the Team on June 2007. The Team also had the letter from Ms. Morgan which the attendees had an opportunity to review and discuss.

Parents testified that they participated during the meeting, and that they voiced their concerns, their preferences and objections without being threatened by any Attleboro Team member for doing so. The Attleboro staff also stated their position regarding Student’s return to his neighborhood school and informed Parents of the possibility of keeping Student at the Willett Elementary School by signing the Intra-District Placement Form. Parents were further informed that spaces were limited and that they would be responsible for providing the transportation. At the meeting Attleboro stated its position that Hill Roberts Elementary School was a change in location for provision of services but that Student would continue to receive his education in the context of a full inclusion placement. Parents did not sign the Intra-District Form at the meeting nor were they forced to do so by anyone. Rather, they signed it a few days later after Mother visited Hill Roberts Elementary School, approximately two months prior to the beginning of the school year (Mother).

During the time between the Team meeting and June 17, 2007 when they submitted the form, Parents had an opportunity to consult with anyone they chose²³ , and were not prevented by Attleboro from consulting with anyone. No deadline was established by Attleboro for Parents to return the Intra-District Placement Form although Attleboro specified that spaces were limited. Furthermore, Parents understood that in filing the Intra-District Placement Form, if Student was allowed to remain at Willett Elementary School, Parents would be responsible for providing the transportation. Parents were presented with the choice of filing the Intra-District Placement Form so that Student could attend their school of choice, or having Student attend Hill Roberts Elementary School. At no time was Student denied a placement in a full inclusion classroom.

After the school year got underway, Parents were offered a scholarship to cover the transportation expenses but this offer was rejected by them. Parents wanted the IEP to reflect that Student’s placement was Willett Elementary School and they wanted Attleboro to provide the transportation at no cost to them (Father). Presumably, a benefit of doing this would have been to ensure Student’s stay-put rights in the program location of their choice, but Parents testified that they did not know anything about stay-put rights.

The forms regarding Intra-District Placement, Zoning policies, etc., explained parental responsibilities vis a vis transportation and also explained that Parents could bring any concern to the Superintendent. This information was also contained in the Parent Student Handbook available to all students in Attleboro, which was also referenced in school attendance policy documents. Parents testified that they did not know that they had the Student Handbook, and that they did not file an appeal with the Superintendent (See Fact # 33, 34, 35 and 36).

Student attended Willett Elementary School during the 2007-2008 school year, the location preferred by Parents because of the enclosed classroom (Mother), and in October 2007, Attleboro convened for the annual review and issued an IEP calling for Willett Elementary School as the location²⁴ for provision of first grade services. As stated in the previous section, given that Attleboro offered to reimburse Parents for transportation in 2007, there is no basis for Parents’ allegation that Student was deprived a FAPE. Similarly, there is insufficient evidence to support a finding that Parents were coerced into signing the Intra-District Placement Form.

ORDER :

1. Attleboro’s Motion to Dismiss is Denied.

2. Attleboro’s Motion to Strike is Sustained and the entire second part of Parents’ Opposition is stricken from the record.

3. Parents did not meet their burden of persuasion regarding their allegations of coercion and as such, are not entitled to reimbursement for transportation for the 2007-2008 school year.

So Ordered by the Hearing Officer,

___________________________________

Rosa I. Figueroa

December 16, 2011

1

The “*” represents individuals who participated in the process via telephone conference call and only for the purpose of taking the testimony of Ms. Heppe.

2

Parents withdrew Exhibit number PE-5 and PE-10 was excluded

3

801 CMR 1.01(7)(g)3.

4

See In Re: Norfolk County Agricultural School , BSEA # 06-0390 (Berman, 2006),

… A BSEA Hearing Officer may allow a motion to dismiss if the party requesting the appeal fails to state a claim on which relief can be granted. Since this rule is analogous to Rule 12(b)(6) of the Federal and Massachusetts Rules of Civil Procedure, BSEA hearing officers have generally used the same standards as the courts in deciding motions to dismiss for failure to state a claim. Specifically a motion to dismiss should be granted only if the party filing the appeal can prove no set of facts in support of his or her claim that would entitle him or her to relief that the BSEA has authority to order. That is, a hearing officer may dismiss a case if he or she cannot grant relief under either the federal or state special education statutes or the relevant portions of Section 504 of the Rehabilitation Act.

5

See also Judge v. City of Lowell , 160 F.3d 67, 72 (1 st Cir. 1998) (quoting Conley v. Gibson , 355 U.S. 41, 45-46 (1957)).

6

“A parent or school district, except as provided in 603 CMR 28.08(3)(c) and (d), may request mediation and/or a hearing at any time on any matter concerning the eligibility, evaluation, placement, IEP, provision of special education in accordance with state and federal law, or procedural protections of state and federal law for Students with disabilities. A parent of a student with a disability may also request a hearing on any issue involving the denial of the free appropriate public education guaranteed by Section 504 of the Rehabilitation Act of 1973, as set froth in 34 CFR §§104.311- 104.39. ” 603 CMR 28.08(3)(a).

7

Gayleene Dickens-Weil testified that Christine Matta, the speech and language pathologist, may have also been present (Dickens-Weil).

8

20 USC 1400 et seq .

9

MGL c. 71B.

10

MGL c. 71B, ss. 1 (definition of FAPE), 2, 3.

11

E.g., 20 USC 1400(d)(1)(A) (purpose of the federal law is to ensure that children with disabilities have FAPE that “emphasizes special education and related services designed to meet their unique needs . . . .”); 20 USC 1401(29) (“special education” defined to mean “specially designed instruction . . . to meet the unique needs of a child with a disability . . .”); Honig v. DOE , 484 U.S. 305, 311 (1988) (FAPE must be tailored “to each child’s unique needs”).

12

Board of Education of Hendrick Hudson Central School District v. Rowley, 458 U.S. 176, 192 (1982) (goal of Congress in passing IDEA was to make access to education “meaningful”); Deal v. Hamilton County Board of Education, 104 LRP 59544 (6 th Cir. 2004); (“ IDEA requires an IEP to confer a ‘meaningful educational benefit’ gauged in relation to the potential of the child at issue”); G. by R.G. and A.G. v. Fort Bragg Dependent Schs , 40 IDELR 4 (4th Cir. 2003) (issue is whether the IEP was reasonably calculated to provide student meaningful educational benefit); Weixel v. Board of Education of the City of New York , 287 F.3d 138 (2 nd Cir. 2002) (placement must be “‘reasonably calculated’ to ensure that [student] received a meaningful educational benefit”); Houston Independent School District v. Bobby R ., 200 F.3d 341 (5 th Cir. 2000) (educational benefit must be “meaningful”); Ridgewood Board of Education v. NE for ME , 172 F.3d 238 (3 rd Cir. 1999) (IDEA requires IEP to provide “significant learning” and confer “meaningful benefit”).

13

Lenn v. Portland School Committee , 998 F.2d 1083 (1 st Cir. 1993) (program must be “reasonably calculated to provide ‘effective results’ and ‘demonstrable improvement’ in the various ‘educational and personal skills identified as special needs’”); Roland v. Concord School Committee , 910 F.2d 983 (1 st Cir. 1990) (“Congress indubitably desired ‘effective results’ and ‘demonstrable improvement’ for the Act’s beneficiaries”); Burlington v. Department of Education , 736 F.2d 773, 788 (1 st Cir. 1984) (“objective of the federal floor, then, is the achievement of effective results–demonstrable improvement in the educational and personal skills identified as special needs–as a consequence of implementing the proposed IEP”); 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(18) (“ Progress effectively in the general education program shall mean to make documented growth in the acquisition of knowledge and skills, including social/emotional development, within the general education program, with or without accommodations, according to chronological age and developmental expectations, the individual educational potential of the child, and the learning standards set forth in the Massachusetts Curriculum Frameworks and the curriculum of the district.”).

14

See generally In re: Arlington , 37 IDELR 119, 8 MSER 187, 193-195 (SEA MA 2002) (collecting cases and other authorities).

15

MGL c. 69, s. 1 (“paramount goal of the commonwealth to provide a public education system of sufficient quality to extend to all children the opportunity to reach their full potential… ”); MGL c. 71B, s. 1 (“special education” defined to mean “…educational programs and assignments . . . designed to develop the educational potential of children with disabilities . . . .”); 603 CMR 28.01(3) (identifying the purpose of the state special education regulations as “to ensure that eligible Massachusetts students receive special education services designed to develop the student’s individual educational potential…”). See also Mass. Department of Education’s Administrative Advisory SPED 2002-1: Guidance on the change in special education standard of service from “maximum possible development” to “free appropriate public education” (“FAPE”), effective January 1, 2002, 7 MSER Quarterly Reports 1 (2001) (appearing at www.doe.mass.edu/sped) (Massachusetts Education Reform Act “underscores the Commonwealth’s commitment to assist all students to reach their full educational potential”).

16

Hendrick Hudson Dist. Bd. of Educ. v. Rowley , 458 U.S. 176, 199, 202 ( court declined to set out a bright-line rule for what satisfies a FAPE, noting that children have different abilities and are therefore capable of different achievements; court adopted an approach that takes into account the potential of the disabled student ); Deal v. Hamilton County Board of Education, 104 LRP 59544 (6 th Cir. 2004); (“ IDEA requires an IEP to confer a ‘meaningful educational benefit’ gauged in relation to the potential of the child at issue”); HW and JW v. Highland Park Board of Education , 104 LRP 40799 (3 rd Cir. 2004) (“benefit must be gauged in relation to the child’s potential”); Houston Independent School District v. Bobby R ., 200 F.3d 341 (5 th Cir. 2000) (progress should be measured with respect to the individual student, not with respect to others); T.R. ex rel. N.R. v. Kingwood Twp. Bd. of Educ., 205 F.3d 572, 578 (3d Cir. 2000) (appropriate education assessed in light of “individual needs and potential”); Ridgewood Board of Education v. NE , 172 F.3d 238 (3 rd Cir. 1999) (“quantum of educational benefit necessary to satisfy IDEA . . .requires a court to consider the potential of the particular disabled student”); Mrs. B. v. Milford Board of Ed. , 103 F.3d 1114, 1122 (2d Cir. 1997) (“child’s academic progress must be viewed in light of the limitations imposed by the child’s disability”); MC v. Central Regional School District , 81 F.3d 389 (3 rd Cir. 1996), cert. denied 519 US 866 (1996) (child’s untapped potential was appropriate basis for residential placement); Roland v. Concord School Committee , 910 F.2d 983 (1 st Cir. 1990) (“academic potential is one factor to be considered”); Kevin T. v. Elmhurst , 36 IDELR 153 (N.D. Ill. 2002) (“ Court must assess [student’s] intellectual potential, given his disability, and then determine the academic progress [student] made under the IEPs designed and implemented by the District ”).

17

E.g. Lt. T.B. ex rel. N.B. v. Warwick Sch. Com ., 361 F. 3d 80, 83 (1 st Cir. 2004)(“IDEA does not require a public school to provide what is best for a special needs child, only that it provide an IEP that is ‘reasonably calculated’ to provide an ‘appropriate’ education as defined in federal and state law.”)

18

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

19

Attachment 1 – Analysis of Comments and Changes, 64 Fed. Reg. 12594, 1 st column (March 1999):

The ‘location’ of services in the context of an IEP generally refers to the type of environment that is the appropriate place for provision of the services. For example, is the related service to be provided in the child’s regular classroom or in a resource room?

20

E.g., Sherry A.D. v. Kirby, 975 F 2d. 193, 199 n.5 and 206 (5 th Cir. 1992), Weil v. Board of Elementary and Secondary Educ., 931 F 2d 1069, 1072 (5 th Cir. 1991).

21

During a meeting on or about November 2008 Attleboro attempted to give Parents the Procedural Safeguards and attempted to obtain their signature indicating receipt of the document, but Parents walked-out of the meeting without signing anything (Father).

22

Regarding their demeanor, they also had difficulty following instructions and abiding by the guidelines established. Also, while their knowledge of the documentary evidence and the legal theories on which they relied was remarkable, their focus on details prevented them from considering the big picture.

23

Including Father’s sister who is an attorney in Massachusetts and who represented Parents for a period of time in 2009.

24

The only reason that the IEP identified Willett Elementary School as the location for provision of educational services was because this is where Student’s IEP would be implemented pursuant to an approved Intra-District Placement request.