Student v Boston Public School District – BSEA #02-4553



<br /> Student v Boston Public School District – BSEA #02-4553<br />

COMMONWEALTH OF MASSACHUSETTS

SPECIAL EDUCATION APPEALS

In Re: Student v. Boston Public Schools District

BSEA # 02-4553

Ruling on Boston Public Schools’ Motion to Join the Department of Mental Health and The Department of Mental Health’s and the Parents’ Oppositions to said Motion

On June 12, 2002, Boston Public Schools District (hereinafter, “Boston”) filed a Motion to Join the Department of Mental Health (hereinafter, “DMH”) and a Memorandum in support of said Motion. DMH filed its Opposition to Joinder and Memorandum on June 14, 2002, and requested an opportunity to be heard. On June 20, 2002, the Parents filed an Opposition to the Joinder of DMH and a Request that Boston issue an IEP for a therapeutic residential program. Boston then filed a Response to Parents’ Opposition to Joinder and another Response to DMH’s Opposition to Joinder. The Parties were heard at the BSEA on June 27, 2002 at which time Parents’ Exhibits 1 through 16, and School Exhibits A through G1 were admitted in evidence. For the purpose of issuing this Ruling the aforementioned exhibits, the Motions and accompanying Memorandums and the Parties’ oral arguments were taken into account.

Issue:

1. Whether the DMH should be joined as a party in the above referenced case?

Position of the Parties and DMH:

Boston: Boston argues that DMH should be joined because the Student’s need for a residential placement is based on his organic mental health issues, i.e., his social, emotional and behavioral needs, as opposed to his educational needs. The higher level of care required by Student to manage and control his mental health disorder is not based on an educational need but rather on a psychiatric medical need. As such Boston states that an evidentiary hearing is necessary to determine whether Boston or DMH is responsible for providing the residential portion of the Student’s placement. Boston is willing to provide the therapeutic day placement. According to Boston, joinder is appropriate because complete relief cannot be granted between those who are already parties. It further asserts that DMH has an interest relating to the subject matter of this appeal, that the Student is a client of said agency and that DMH is so situated that the case cannot be disposed in DMH’s absence.

Boston further argues that while the Student’s mental health disorder is responsible for his absenteeism, hospitalizations, unsafe behaviors, suspensions and need for time out, in spite of that, the Student made progress while at McKinley. The Student is assaultive at home toward his parents and sibling. According to Boston, the case at bar is directly on point with In Re: Medford Public Schools , 7 MSER 75, at 82 et seq . (2001) and therefore DMH should be joined.

DMH: DMH accepts the statements of fact offered by Boston and the Parents for purpose of this motion only, and accepts Boston’s argument that the Student requires a residential placement because of his serious emotional disturbance. While it does not dispute the limited authority of the BSEA to join a state agency in certain cases, “ ‘in accordance with the rules, regulations and policies’ of the state agency, that services shall be provided ‘in addition to the program and related services to be provided by the school committee,’” DMH asserts that said authority does not apply in the case at bar. MGL c.71B §3.

DMH asserts that in considering joinder, the presence of the party to be joined must be essential to the granting of complete relief and that in the absence of that party the case cannot be disposed of, or that a party will be prejudiced in its absence. It argues that even if the BSEA authority extended here, joinder is unnecessary under the Department of Education’s rules for joinder which, consistent with the federal provisions for resolution of interagency disputes, should not be taken to authorize cost-share for programs and related services that the LEA agrees the Student needs to receive FAPE . See : 603 CMR 28.08(3) referencing 34 CFR 300.142. DMH stresses that the federal regulations make it clear that the LEA should provide the required placement to a student without delay and deal with issues of payment or reimbursement subsequently. 34 CFR 300.142. For the aforementioned reasons, DMH opposes joinder.

According to DMH, Boston’s assertion that the Student is eligible to receive services from DMH is a “red-herring” because it failed to suggest that services unique to DMH are warranted here. No statute, regulation, or policy of DMH can be construed as mandating that agency to partake in cost-sharing of educational placements. While eligibility to receive services from an agency may be a pre-requisite to require that another state agency participate in a BSEA proceeding, it alone is insufficient to join it as a necessary party. DMH can provide knowledge and assistance in developing a plan for a student without being joined.

Lastly it asserts that joinder in this matter is premature as there has been no determination of the services required by the Student in order to receive a free appropriate public education (hereinafter, “FAPE”) which the LEA is responsible to provide. Only if the LEA believes that DMH is obligated to provide or fund those services, and DMH refused to fulfill its responsibility, would the BSEA jurisdiction be invoked to determine whether DMH has such an obligation. Otherwise, needless delays may be caused in resolving the fundamental issues in this matter between the parties, which is a determination of which are services necessary to assure the Student FAPE.

Parents: The Parents agree with the arguments proffered by DMH and oppose joinder. According to the Parents, the Student’s disabilities inclusive of attention, receptive language deficits, impulsivity, aggressive behavior, oppositional and defiant behavior, mood regulation, egocentricity and empathic failure affect the Student’s ability to progress effectively in his current educational placement. He is not achieving effective progress in either academics or in his emotional/social development as identified in his IEP. He has been unable to consistently manage his feelings, behavior or relationships in or outside school environments. He requires therapeutic direct teaching services throughout the day and evenings to progress, something that can only be achieved through a therapeutic residential placement. Boston is responsible to address the Student’s socio-emotional and behavioral needs and failure to do so constitutes a breach in its obligation to provide a FAPE.

Facts:

1. Born on April 10, 1991, Student is an 11 year old fifth grader. He resides in Boston, MA. (PE-1) The Student presents with severe socio-emotional deficits. (Id.) The Student has a history of psychiatric hospitalizations, aggression, oppositionality, mood-swing, excessive anger and a bipolar disorder diagnosis. (PE-1; PE-16) He is currently on Depakote 375 grams in the morning, 125 grams at noon and 375 grams at “HS”, Seroquel 50mg in the morning and 75mg at night, Paxil 10 mg at 8:00am, and Lithium 900 mg per day. (PE-3; PE-16)

2. A Wediko Children’s Services Comprehensive Psychological Assessment of February 5, 2001, conducted by H. I. Botman, Ph.D., made several recommendations regarding the Student’s program. The recommendations included that the Student participate in a self-contained special education program with a low student-teacher ratio that provides a very tight structure, consistent routines, reliable behavioral management practices, individualized therapeutic feedback, stimulating academic instruction, social skills training, and individual and family psychotherapy. (PE-13)

3. As of the summer of 2001, the Student’s diagnosis included: Opposition Defiant Disorder, Depression, Disruptive Behavior Disorder, Intermittent Explosive Disorder and, Dysthimic Disorder. (PE-14; PE-9) He was also seen as “high risk for developing a Conduct Disorder as he moved toward adolescence if he did not receive effective therapeutic services.” (PE-9)

4. During the Summer of 2001 he participated in the Wediko residential summer program in New Hampshire where he required a highly structured individualized program in order for him to be able to successfully complete the summer. (PE-9) According to the staff there his problem areas included: deficits in receptive language which impacted his interactions, impulsivity, aggressive behavior issues, propensity for oppositional defiant behaviors, deficits in mood regulations, egocentricity and empathic failure. (Id.) The Summary and Recommendations section of the program’s report state that he made moderate gains but “remained at substantial risk to become disruptive in response to increasing developmental demands for autonomy, industry, and intimacy if he did not continue to receive comprehensive therapeutic services appropriate to his special needs.” (PE-9)

5. The Student’s IEP dated April 12, 2001, covering the period from April 2001 through April 2002, offered the Student services in a substantially separate setting in a public day program. (PE-12) Goal #1 in his IEP is to improve social emotional skills in the area of emotionality. (PE-12) Other goals focused on improvement of academic areas, motor abilities, art, reading and language arts. Under the heading “related areas” under each goal throughout the IEP it states that social emotional skills must be addressed. (Id.) The service delivery grid called for provision of all services in a substantially separate classroom in addition to addressing behavior/socio-emotional needs for 40 minutes per day 5 days per week and counseling for 40 minutes once per week. (PE-12)

6. Student is of average intelligence, achieving an 8.5 grade equivalence in the Star Reading Test and a 6.3 and a 4.6 grade equivalence in the WIAT as of October of 2001, the beginning of his fifth grade. Most of his struggles in school are of a behavioral nature rather than academic. (SE-A) He also has good writing skills and possesses knowledge of world events. (PE-1)

7. During this school year, 2001-2002, in School the Student has acted either very angry or depressed and tried to avoid school-work. He worked at a very slow pace and tended to complete less work than the rest of his classmates. He required constant teacher reinforcement of the lesson’s expectations, and frequent breaks which had to be monitored to prevent his staying out for much longer periods of time. (SE-A) The quality of his completed work however, has been good and he was able to retain the learned skills. (Id.) The Student’s performance fluctuated depending on his mood and he required a lot of “hand-holding” to get him to complete certain subjects. (SE-B; SE-C)

8. A National School Bus Service, Inc. Incident Report, dated 10/09/2001, states that the Student started to walk up and down the aisle in the bus, swearing at the monitor and finally jumped out the back door of the bus and ran while the bus was going through a light. (SE-D) On 1/28/2002 he was reported to have walked out of the classroom during planing time. (SE-F) He repeated the same behavior the following day, 1/29/2002, and had no idea why he had done it. (SE-G)

9. Boston filed a C.H.I.N.S. Petition on March 13, 2002. (PE-7)

10. The Student’s behavior deteriorated both at home and in school and he presented with numerous rageful, aggressive and oppositional episodes. The Student’s aggressive behavior is directed toward teachers, peers, family members and others. (PE-1; PE-8; PE-9; PE-13) He was having homicidal/suicidal thoughts and was hospitalized at Boston Medical on March 13, 2002. (PE-1; PE-8) At the time of admission he required chemical restraints. (PE-8) Upon discharge from Boston Medical, he was transferred to Pembroke Hospital where he remained between March 14, 2002 and March 25, 2002. (PE-6) From there, he was transferred to the Italian Home’s A.R.T. unit where he remained from March 25 th through April 5, 2002. His medication was adjusted during that time. (PE-3; PE-6)

11. A Boston Center for Children Discharge Plan and Information states that the Student was admitted between March 25, 2002 and April 5, 2002, due to withdrawn and aggressive behaviors. (PE-3)

12. A Special Education Student Progress Report of February through April, 2002, states that the Student’s “volatile aggressive behavior, so evident from Dec. has decreased significantly over the past 3 months. The concern now has focused on Student’s manipulative behavior around avoiding school work either by sleeping, wondering around or acting up, thereby taking himself out of the classroom.” (SE-E)

13. A psychotherapy Service Provider Report of April 2, 2002 by David J.Gehrenbeck-Shim, Ph.D., states that the Student received weekly individual therapy. Also, monthly case and family consultation was provided in order to improve the Student’s ability to collaborate with peers and manage angry feelings better as part of his educational program at the McKinley Elementary School. The report states that the Student made gains between September 2001 and April 2002. (SE-4; see also PE-5)

14. The Student’s most recent IEP dated May 9, 2002, covers the period from April 2002 through April 2003. The vision statement in this IEP is to help the Student transition into middle school and improve his behavior. (PE-1) Goal #1 in his IEP is to improve socio-emotional skills in the area of emotionality, conversation and communication. (PE-1) Other goals focus on improvement of academic areas, motor abilities, adaptive physical education, occupational therapy and mentioned under the heading “related area” in each goal throughout the IEP that social emotional skills should be addressed. (Id.) The service delivery grid called for provision of all services in a substantially separate classroom as well as addressing behavior/socio-emotional needs in 10 minutes per day 5 days per week and counseling for 40 minutes once per week, to be offered in a public day school. The Parents rejected this IEP and placement on May 21, 2002 because they believed that the Student required a more intensive, 24- hour milieu in order to progress effectively. (Id.)

15. On May 21, 2002, the Student had been displaying disruptive out of control behavior at the McKinley Elementary School and became increasingly aggressive throwing chairs and desks at the victims before they were able to control him. Boston responded by having the Student arrested and filing charges against him. (PE-2A, PE-2B and PE-2C) A delinquency complaint was filed on May 21, 2002 for assault and battery of Sharice Horton by means of a deadly weapon, namely a chair, and another also for assault and battery of Sgt. Bob Ayala with a dangerous weapon, namely a desk. (PE-2B and PE-2C) Earlier that month, on May 1, 2002 a juvenile delinquency complaint was filed by Lee Cameron. It alleged assault and battery by means of a deadly weapon of Myrna Scott. (PE-2A)

16. The Student was hospitalized again between May 29 and June 13, 2002, at the Hunter Center of the North Shore Medical Center. (PE-16) This psychiatric hospitalization was due to escalating aggressive behavior in school, which required physical restraint and police intervention. (PE-16) A referral to a short-term residential program was considered but deferred given that the Student would participate in a highly structured camp during the summer, possibly the Wediko program in New Hampshire. (Id.) Dr. Daniel Wyatt expressed concern over the Student’s history of rapid decompensation during unstructured times. Participation in a short-term residential program such as the Italian Home was recommended if the Student’s behavior escalated rather than a psychiatric hospitalization. Lastly, Dr.Wyatt suggested that the Team be convened on an emergency basis as the Student’s history suggested that he could not be managed safely in his current school placement at the McKinley Elementary School. (PE-16)

17. The Student has been accepted to the Wediko ESY day program in Boston which runs from 7:40am through 1:45pm, four days per week, for four weeks, starting on July 8, 2002. This program basically offers the same structural components as the program in which the student participated during the school year. (Boston and Parents’ undisputed statements.) He has been placed on “High” wait list for Wediko’s 2002 New Hampshire Summer Program scheduled to begin on July 4, 2002. (PE-15)

18. There is no disagreement between the parties that the Student requires a more structured environment such as what can be provided in a therapeutic residential placement.

Ruling:

There is no dispute between the parties that the Student is entitled to receive special education services or that at this point he requires a highly structured residential placement. The argument stems from Boston’s claim that the residential portion of the program is the responsibility of DMH. As such, Boston seeks to join DMH to this proceedings so that fiscal responsibility for the Student’s placement can be assigned solely or in part to DMH.

The Parties and DMH agree that the BSEA has been granted authority to determine, in accordance with the rules, regulations and policies of the respective agencies, what responsibilities those agencies have towards a particular child “in addition to the program and related services to be provided by the school committee” in BSEA proceedings. See Chapter 159, section 162 of the Acts of 2000, amending M.G.L. c.71B § 3. Both, DMH and the Parents dispute that said authority applies in the case at bar and oppose joinder. MGL c.71B §3. See 603 CMR 28.08 (3).

Upon review of the evidence, the Parties’ arguments and memoranda, and in light of the applicable laws and regulations, I hereby DENY Boston’s request and find that at this time joinder of DMH is not warranted.

In order for an entity to be joined as a party to a proceeding the party seeking joinder must be able to show, at least in a preliminary way, that it will be able to present evidence at a Hearing that may result in that entity being found responsible to offer some service, no matter how trivial, to the student.

Boston argues that DMH should be joined because the Student’s need for a residential placement is based on his organic mental health issues, that is, his social, emotional and behavioral needs as opposed to his educational needs. Review of the Student’s IEPs show that the Student’s identified areas of need involve behavioral, social and emotional issues. (PE-1, PE-12) Boston further asserts that the Student has made effective progress throughout this year but the documentary evidence offered by the parties is insufficient to reach such a conclusion at this stage. In contrast to the In Re: Medford case, on which Boston relies, the Student’s difficulties are manifesting in multiple settings. In the Medford case the student was able to progress academically in the day school to which all parties agreed she should return. There, the student’s assaultive behavior was being displayed only in the home towards a sibling, making it impossible for the student to return home. In the case at bar the problematic behaviors negatively impact the Student in every setting, school, home, summer programs and hospitals. (PE-2A, PE-2B, PE-2C, PE-3, PE-4, PE-5, PE-9, PE-10, PE-13, PE-14, PE-16, SE-D, SE-E, SE-F, SE-G)

Here, Boston has failed to demonstrate that DMH is necessary to reach a determination regarding provision of FAPE to the Student, or that it may be found responsible to offer services which are the responsibility of that particular agency and not the responsibility of Boston. Not having met this threshold, Boston cannot prevail in its request and thus, its request for joinder must be denied.

Therefore, I find that DMH is not a necessary party at this juncture and should not be joined to the above referenced case.

By the Hearing Officer,

___________________________________

Rosa I. Figueroa

Hearing Officer

Dated: July 3, 2002

My reasoning follows:

Boston argues that DMH should be joined because the Student’s need for a residential placement is based on his organic mental health issues, that is his social, emotional and behavioral needs as opposed to his educational needs. I find that Boston mistakenly equates educational needs with academic progress and seems to ignore the Student’s identified areas of need as stated in his IEP which are precisely behavioral, social and emotional. (PE-1, PE-12)

603 CMR 28.02 (7) (f) provides under the definition of Emotional Impairment that:

As defined under federal law at 34 CFR 300 §7, the student exhibits one or more of the following characteristics over a long period of time and to a marked degree that adversely affects educational performance; an inability to learn that cannot be explained by intellectual, sensory, or health factors; an inability to build or maintain satisfactory interpersonal relationships with peers and teachers; inappropriate types of behavior or feelings under normal circumstances; a general pervasive mood of unhappiness or depression; or a tendency to develop physical symptoms or fears associated with personal or school problems. The determination of disability shall not be made solely because the student’s behavior violates the school discipline code, because the student is involved with a state court or social service agency, or because the student is socially maladjusted, unless the Team determines that the student has a serious emotional disturbance.

Under the aforementioned definition, emotional needs are within those qualifying a student to receive FAPE. Here, the Student clearly meets the criteria under emotional impairment and the Parties and DMH agree that it is this disability that impedes his ability to progress effectively in his current placement at McKinley. The Student therefore requires a more restrictive setting.

I agree with the DMH’s argument that Boston’s statements regarding the Student’s failure to succeed at McKinley, together with multiple suspensions, hospitalizations, and Boston’s resort to filing criminal charges and a C.H.I.N.S. petition in an effort to address the out of control behaviors displayed in school can only be interpreted as indicative that the McKinley program cannot provide adequately for the Student’s needs. Boston itself agrees that the Student requires a more restrictive setting than it can provide at McKinley, namely a highly structured therapeutic residential placement. Moreover, the problematic behaviors are displayed in other settings as well. In this respect, this case can be distinguished from In Re: Medford. In the Medford case the student could make academic progress in the day school to which all parties agreed she should return, and the assaultive behavior was being displayed in the home towards a sibling. In the case at bar the problematic behaviors are being displayed in every setting, school, home, summer programs and hospitals. (PE-2A, PE-2B, PE-2C, PE-3, PE-4, PE-5, PE-9, PE-10, PE-13, PE-14, PE-16, SE-D, SE-E, SE-F, SE-G)

Residential placement for educational reasons are among the myriad of placement options available to students for which districts can be responsible where a student cannot be appropriately educated in a less restrictive environment. Under the facts of this case, the Student requires a therapeutic residential placement for educational reasons. As such, joinder of DMH is not warranted.

Therefore, I find that DMH is not a necessary party at this juncture and should not be joined to the above referenced case.

By the Hearing Officer,

___________________________________

Rosa I. Figueroa

Hearing Officer

Dated: July 2, 2002


1

At the beginning of the Motion Session I mislabeled the school exhibits submitted by Boston and omitted S-G in error. This exhibit was used in issuing this Ruling.


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