COMMONWEALTH OF MASSACHUSETTS
DIVISION OF ADMINISTRATIVE LAW APPEALS
SPECIAL EDUCATION APPEALS
Student v. Brockton Public Schools, the Department of Youth Services, and the Department of Elementary and Secondary Education
BSEA #11-3408
DECISION
This decision is issued pursuant to M.G.L. c. 71B and 30A, 20 U.S.C. § 1401 et seq., 29 U.S.C. § 794, and the regulations promulgated under said statutes.
A hearing was held on September 12, 13, and 15, 2011 and October 24 and 25, 2011 at the Bureau of Special Education before Catherine M. Putney-Yaceshyn, Hearing Officer.
PROCEDURAL HISTORY
Parent requested a hearing on January 18, 2011 and the hearing was scheduled to proceed on February 22, 2011. Brockton Public Schools (hereinafter, “Brockton”) filed a Motion to Join the Department of Elementary and Secondary Education (hereinafter, “DESE”) on January 27, 2011 and DESE was joined via ruling on February 15, 2011.
Brockton’s unopposed request to postpone the hearing was allowed on February 7, 2011. During a February 22, 2011 telephone conference call the hearing was scheduled to proceed on June 2, June 6, and June 7, 20111 . There was a pre-hearing conference on March 21, 2011. Parent’s Motion for a “Stay-Put” order was denied on April 5, 2011.
On May 5, 2011, at the request of the Parties, the hearing officer issued an order clarifying the framing of the issues for hearing because the Parent’s hearing request included issues beyond the jurisdiction of the BSEA and issues which were drafted unclearly and incomprehensibly. The Order allowed Parties until May 11, 2011 to submit any written objections to the hearing officer’s framing of the issues. None of the Parties submitted any objection or motion by May 11, 20112 .
On May 23, 2011, Parent’s advocate withdrew her appearance. On May 25, 2011 Parent, acting pro se, filed a Motion for Continuance to allow her time to retain counsel. The request for a continuance was allowed over the objection of the other Parties and Parent was ordered to provide the hearing officer with the name of her attorney by June 15, 2011. On June 15, 2011, Parent’s advocate filed a new Notice of Appearance and resumed her representation of Parent. Also on June 15, 2011 Mother requested an extended continuance of the hearing which was denied. On June 15, 2011 Parent filed a Motion to Reconsider the April 5, 2011 Ruling regarding stay-put. The Motion was denied on June 16, 20113 . The hearing was rescheduled to proceed on September 12, 13, and 15, 20114 . Exhibits and witness lists were due on September 2, 2011. The hearing proceeded on September 12, 13, and 15, October 24 and 25, 2011.
The Parties requested a postponement to submit written closing briefs and requested that the hearing officer set a deadline of December 19, 2011 for their submission. Parent5 , Brockton, and DYS submitted their closing arguments on December 19, 2011. DESE submitted its closing argument on December 20, 20116 and the record closed.
Those present for all or part of the Hearing were:
Mother
Student
Tami Joia Parent’s advocate
Stacey Bloom Attorney for the Department of Youth Services
Crispin Birnbaum General Counsel, Department of Youth Services
Taylor Shutt Legal intern, Department of Youth Services
Mary Joann Reedy Attorney, Brockton Public Schools
Marsha A. Eidin Assistant Director of Special Education, Brockton Public Schools
Olga Garriga Out of District Coordinator, Brockton Public Schools
Joshua Varon Attorney, Department of Elementary and Secondary Education
Diane Curran Attorney, Department of Elementary and Secondary Education
Sean Beasley District Manager, Department of Youth Services
Kristen Sullivan Caseworker, Department of Youth Services
Jeffrey Martin Turley Psychiatrist, consultant for Brockton Public Schools
(via speakerphone)
Jan Avallone Director, Special Education in Institutional Settings
John Shaw School psychologist, Brockton Public Schools
Marc Abbott Occupational therapist, Brockton Public Schools
Sharon Samuelson Special education teacher, Collaboration for Educational Services/SEIS
Mary Cornell Teacher/teacher coordinator, Collaborative for Educational Services
Robert Lemieux Program Director, Westboro Secure Treatment
Brenda Ginisi Court Reporter
Darlene Coppola Court Reporter
Catherine Putney-Yaceshyn Hearing Officer
The official record of this hearing consists of Parents’ exhibits marked P-1 through P-10, P-12 through P-27, P-30 through P-32, P-34 (pg. 6, 7, 9, 10, 11, 13-19, 21-23, 37-40, and 78), P-35 through P-37, P-48, and P-49 Brockton’s exhibits marked S-1 through S-11, DYS exhibits marked DYS-1 through DYS-1 through 5; SEIS exhibits marked SEIS-1 through SEIS-6 and approximately 23 hours of recorded oral testimony.
ISSUES
1. Whether DYS impermissibly caused Brockton and/or SEIS to be unable to provide Student with FAPE.
2. Whether the educational service providers who provided services to Student possessed the appropriate licensing as required by the IDEA and ch. 71B.
3. Whether the IEP proposed for Student by Brockton for the period from November 17, 2010 through November 17, 2011 was reasonably calculated to provide Student with a FAPE in the LRE .
4. Whether Brockton denied Student FAPE by removing previously accepted services from the previously drafted and accepted IEP without performing evaluations.
5. Whether Brockton denied Parent the opportunity to participate in the drafting of the IEP for the period from November 17, 2010 through November 17, 2011.
6. Whether Student’s last accepted IEP has been implemented by Brockton and or SEIS to the extent that it may be implemented in the DYS facility where he is being detained.
Scope of Hearing
As explained in the Order dated February 22, 2011, and reiterated in the May 5, 2011 Order, the time period addressed by this hearing is from October 20, 2010, the date that Brockton became programmatically and fiscally responsible for Student’s special education services, through May 25, 2011, the date on which proposed exhibits and witness lists were initially due7 . These parameters were put in place because at the time of Parent’s request for hearing in the instant case there were two other BSEA matters pending involving Student and one or more common parties. It was thus necessary to delineate time parameters to ensure that the pending hearings would not be redundant.
Additionally, as described in the February 22, 2011 Ruling on the Department of Youth Services’ Motion to Dismiss, DYS is a party to this matter solely for the presentation of evidence and legal argument relating to allegations that it violated specific obligations that it may have had under the IDEA to Student by impermissibly interfering with or preventing implementation of his accepted IEP.
Finally, at the request of the parties the hearing officer framed the issues for hearing after a lengthy pre-hearing conference during which the issues were clarified. The Parties were told during the pre-hearing conference8 that they would receive the proposed issues and would be given an opportunity to raise any objections in writing. By Order dated May 5, 2011, the hearing officer framed the issues and explained which issues were beyond the jurisdiction of the BSEA. Parties were instructed to submit any motions with respect to the framing of the issues by the close of business on May 11, 2011. None of the parties submitted any motions by the deadline. In fact, no motions were submitted with respect to the issues for hearing until Parent filed a Motion for Reconsideration on September 8, 2011, four months after the deadline set by the hearing officer and six days after the parties had submitted the proposed exhibits and witness lists.
SUMMARY OF THE EVIDENCE
1. The student (hereinafter, “Student”) is an eighteen-year-old student who resided in the Westboro Secure Treatment facility (hereinafter, “Westboro”) during the time at issue in this hearing. He has been diagnosed with bipolar disorder, PTSD, ADHD, Generalized Anxiety Disorder(primary), major depressive disorder, (moderate) R/O Dysthymic Disorder, Learning Disorder, NOS (nonverbal); Severe Trauma History, Academic Problems, Out of Home Placements, Court Involvement, and Family Issues. (P-3, S-)
2. Student was committed to DYS on July 14, 2010. (Sullivan, P-24) A juvenile court judge commits clients to DYS and DYS determines the setting where they are assigned. (Lemieux) DYS assigned Student to Westboro on or about September 13, 2010. (P-26) Westboro is a “hardware-secure” treatment unit designed for youths who have committed serious crimes and require high levels of structure and security9 . (Sullivan)
3. The last accepted IEP was drafted by the Taunton Public Schools for the time period from March 18, 2010 through March 17, 2011. Mother accepted the IEP and placement on April 5, 2010.10 The IEP included a clinical consultation with a clinician 1 x 15 minutes per week. There were no services offered in the B Grid. The C Grid contained the following services: counseling with a clinician 1 x 45 minutes per week; social/emotional with a “SPED Teacher” 6 hours/day/5 days/week; extended school year 7/6/2010-8/26/2010 with a “SPED Teacher” 6 hours/day/5 days/week; behavior with the “SPED Teacher” 6 hours/day/5 days/week; English Language Arts with the “SPED Teacher” 6 hours/day/5 days/week; Mathematics with the “SPED Teacher” 6 hours/day/5 days/week. The IEP noted that due to Student’s emotional issues, he needs a therapeutic setting to access the curriculum. (S-4)
4. The Brockton Public Schools became programmatically and fiscally responsible for Student’s special education services by an Assignment of School District Responsibility issued by DESE on October 20, 2010. According to said assignment, Mother resided in Brockton and Student had been placed at a DYS Secure Facility in Westboro. (S-1, P-1)
5. Brockton convened a Team on November 17, 201011 . It had not yet received much information from Student’s prior school district, Taunton Public Schools12 . Mother had provided some documentation regarding Student including mental health reports from Pembroke Hospital and the Brandon School. Olga Garriga, Brockton’s Out of District Coordinator, understood that Brockton was charged with drafting an IEP that could address Student’s current placement in a DYS facility. (Garriga) The Team proposed evaluations as Student was due for his three year re-evaluation. Brockton proposed and Parent consented to the following evaluations: psychological, psychiatric, occupational therapy and a functional behavioral evaluation. (Garriga)
6. Brockton proposed an IEP after the November 17, 2010 Team meeting. The Team was unable to draft an IEP during the meeting due to Parent and her advocate continuously interrupting the speaker to reiterate their concerns with Student’s placement at Westboro. (S-8). The meeting was stopped when Mother became very frustrated and made comments to other Team members deemed “uncivil” by Brockton’s attorney. (S-8) Brockton’s attorney ended the meeting by stating that Brockton would develop an IEP and present it to Mother as agreed to by Mother’s advocate and Brockton’s attorney. Mother made no objection to this agreement.13 (Garriga, S-8)
7. Brockton sent Parent an N-1 and attached IEP on or about November 23, 2010. (S-3) The N-1 indicates that Student has been identified with an emotional disability that impacts his access to the general education curriculum in addition to being committed by the courts to a DYS facility. The N-1 also stated that Mother requested that Brockton consider placing Student in a residential placement. Brockton rejected that option as Student was committed to DYS. The N-1 notes that
[R]egulation 603 CMR 28.06(9) limits the school district’s ability and responsibility to provide services to students committed to facilities operated by various state agencies, including DYS. DYS is responsible for providing residential, medical and clinical services at this time. Regulation 603 CMR 28.06(9) delineates the Department of Elementary and Secondary Education in coordination with the local school district to provide special education services.” (S-3)
8. The IEP proposed by Brockton for the time period from November 17, 2010 to November 17, 2011 includes Parent/Student concerns and Parent/Student’s Vision Statement. The IEP included the following diagnoses: “Bipolar Disorder; PTSD; Generalized Anxiety Disorder; Major Depressive Disorder, moderate; R/O Dysthymic Disorder; ADHD; Learning Disorder NOS (nonverbal); Severe Trauma History, Academic Problems, Out of Home Placements, Court Involvement, Family Issues (as documented on previous IEP)” It noted Student’s average range intelligence and full scale IQ score of 102. The IEP included goals in the areas of English Language Arts, Mathematics and Social/Emotional/Behavioral. The Service Delivery Grid contained no services in the A or B grids. The C grid included Academic/Behavior/Social with the Special Education Teacher 1 session of 5.5 hour(s) per day from November 17, 2010 through November 17, 2011 and Academic/Behavior/Social with the Special Education teacher 1 session of 2.5 hour(s) per day from July 6, 2011 through August 12, 2011. (S-3)
Because Student was in a DYS facility, Ms. Garriga understood that BPS was charged with drafting an IEP that could be implemented in his then-current placement, Westboro. Pursuant to the above noted regulatory requirement that DYS provide clinical services, Brockton did not include such services in Student’s IEP. (Garriga) Brockton was committed to implementing the residential placement required by the IEP that was accepted by the Parent once Student was released from the secure facility. (Garriga)
9. The Additional Information section of the IEP included the following provision.
The Team recognizes that [Student] requires clinical and medical services in order to access the general education curriculum. Per regulation 603 CMR 28.06(9), DYS is responsible for providing residential, medical and clinical services. Regulation 603 CMR 28.06(9)(b) delineates the Department of Elementary and Secondary Education as responsible for providing special education services in coordination with the local school district.
The Brockton School Department is aware that [Student]’s last IEP recommended a residential placement. This placement will be identified in coordination with the parent once [Student] is released from the DYS facility.
Additionally, the IEP included MCAS accommodations including use of a word processor, Alpha-Smart, or similar electronic keyboard to type the ELA Composition and/or answers to open-response questions. (S-3)
10. Student’s treatment at Westboro focused primarily on education, clinical services, and behavior management. There is a behavior management plan set up to ensure safety and security to residents, staff, and all employees. The behavior plan is followed seven days per week twenty four hours per day and its primary focus is safety and security. All clients are on a point level system which is implemented throughout the program14 . (Sullivan, Cornell) There are four levels and clients begin at the orientation level and move on to the next level by conforming to rules and participating in programming. Student received individual clinical services through DYS from Suzanne Burke, the clinical director. Clinicians meet with clients at least once per week for fifty to sixty minutes. Beyond that, individual services are provided as-needed and depending on a client’s level of crisis. The overall behavioral and DBT portion of the Westboro program was therapeutic in nature. The DBT and behavioral management level system were aimed at helping Student address the behavioral goal on his IEP. Student received therapy by a qualified clinician, there was a behavioral management process, the level system and point system and there were regular treatment meetings where Student’s progress was shared with Parent. (Lemieux)
11. Mother rejected the IEP in full on November 23, 2010. (S-3) She rejected it because it did not include the clinical services which were in Student’s prior IEP and because he was not placed in a therapeutic environment. (Mother) She did not accept the portion of the IEP providing for MCAS accommodations. The MCAS accommodation would have been available to Student if the IEP was accepted. (Garriga)
12. Mother believed that when Student first entered Westboro he was not doing any work, and was “sitting in a chair” until the November 17 Team meeting15 . (Mother, S-8) Mother stated that the progress report dated November 10, 2010 was the only progress report she received from Brockton during the relevant dates for the hearing16 . She was concerned that the curriculum provided at Westboro was watered down and she asked Brockton to send its curriculum to Westboro to use with Student. Mother testified that she knows nothing about the curriculum at Westboro except what Student told her. (Mother)
13. Program restriction is the intervention used at Westboro to address the more serious behaviors exhibited by clients in the program. (Lemieux) It is considered a very high level of a breach of the program rules and is a consequence for behaviors such as assault and making threats. (Sullivan) It is part of the program’s overall behavior modification plan and is not an educational practice. All Westboro staff complies with program restriction rules. (Lemieux, Cornell) Before a client is placed on program restriction, a group worker consults with the supervisor regarding the behavior that he or she witnessed and discusses whether it rises to the level of receiving a program restriction. The supervisor then reviews the decision with a manager or part of the administrative team. The offender is then removed from the immediate programming and he sits at a desk or a seat in the hallway. The offender is removed from the program because he poses an immediate safety concern to the program. The philosophy is that the client needs to be removed from the general population based on his current level of acting out behavior and his faulty decision making. When a client is on program restriction he does not participate in his therapeutic groups. However, he is responsible for making up and completing group work that is missed. (Lemieux) Program restriction status is reviewed twice a day. To get off of program restriction staff looks for a client to exhibit compliance, appropriate interactions, the ability to follow rules and the ability to maintain one’s own safety. The client is expected to complete school work while on program restriction and his effort to perform is reviewed. Within one day the program seeks to reintegrate clients back to their programming. Program restriction is not assigned for a set period of time. The staff looks for the client to show stable, positive compliance for a shift after the program restriction begins. The client would earn back the right to enter the classroom first. Typically, a client on program restriction sits 2-3 feet outside the classroom and is expected to complete his work. The teacher sets up the classroom and then brings school work to the client in the hallway. (Lemieux)
14. Student’s offenses which led to his being placed on program restriction can be summarized as follows. He was involved in an altercation in the gym on October 30 and attempted to assault another client. A “code” was called and Student bit a staff member. (DYS-3, pg. 5) Student received a program restriction for the offenses of creating a disturbance, attempted assault, and assault on staff. He was not allowed in class the next day as it would have caused a safety risk. Student had several other incidents while he was on program restriction that prevented him from returning to the program sooner. (DYS-3, pg. 21-22) including threatening a teacher17 . Student engaged in still other offenses while on program restriction. On November 5 he made a threatening gesture to another client. On November 6 he threatened a staff member. Between October 30 and November 6 Student’s program restriction status was reviewed daily. He did not receive any program restriction in December or early January. (Lemieux, DYS-3)
In mid-January he was back on program restriction. His status was reviewed daily and he received school work daily. In January Student exchanged negative comments with another resident and threw a cup of water at the resident. He was charged with inciting behavior and placed on program restriction. The next day Student tried to push a staff person and was restrained and became combative18 .
Student was not on program restriction again after February. His behavior improved and he became responsible about completing his work. He became a role model in terms of his floor behavior and group participation. He changed his attitude and behavior and improved his coping skills and ability to handle anger. He improved in expressing his negative thoughts or attitudes in a more positive way. (Lemieux)
Ms. Cornell explained that the program requires students to be very verbally respectful and not to touch one another for security reasons. Swearing and inciting language are not allowed because some of the residents are pretty explosive and violent. (Cornell)
Student missed school due to program restriction on September 30, October 1, October 15, October 18, October 1919 , November 1, November 2, November 3, November 4, November 5, November 8, November 9, 2010; January 20, February 7, February 8, February 9, February 10, and February 11, 2011. He missed school due to illness on March 15 and April 4, May 18, and May 26, 2011. He refused school work on all of the days he was absent other than the May dates on which there is no indication that he was offered or refused work. (ESE-4, DYS-1, 5) Of a total of 158 school days while Student was in the program he was in the classroom 137 days, on program restriction 19 days, absent due to illness 4 days. He was offered services in the hallway 21 days and refused service 21 times. (DYS-5)
15. Student was not permitted to be in a classroom if he is deemed to be unsafe or has engaged in negative behaviors. There were times that Student was not permitted in the classroom due to his behavior both inside and outside the classroom. (Sullivan)
16. Sharon Samuelson was Student’s special education teacher. She works for the Collaboration for Educational Services/SEIS at Westboro. She has worked at Department of Mental Health facilities for fifteen years and at Westboro for eight years. She is licensed in elementary education K-8. She has a bachelor’s degree in special needs and her initial license indicates she is certified to teach ages 0-22. She taught Student English Language Arts (after he was initially placed with Ms. Cornell), math, reading, MCAS prep20 , cooking, and tutoring as needed. Ms. Samuelson provided all of Student’s teachers with photocopies of his accommodation sheet and discussed how to implement them. All of the accommodations on his IEP were implemented as was his English language arts goal. Student does not know the rules of grammar, but he knows how to use spell check and grammar check. When he orally edited work with Ms. Samuelson his accuracy was about fifty percent. (Samuelson)
Student was very resistant to doing school work initially. His behavior was disruptive and disrespectful and he sometimes instigated other residents. He was sometimes required to sit in the hall as a safety precaution. During that time Ms. Samuelson always provided Student with work and check-ins. He sat right outside of the door where he could hear what was going on and Ms. Samuelson could see him. (Samuelson)
Student was very “shut down” in math. Eighty percent of the time he refused assignments and refused instruction. He never completed a worksheet and would not cooperate with any of the informal assessments to determine his level of performance. He had basic math skills and was learning algebra. He knows how to do one-step equations, but gets frustrated and quits almost immediately. He completed approximately zero to three problems per week. Ms. Samuelson believes Student was very capable of doing math work, but just did not care to do it. (Samuelson)
Ms. Samuelson prepared quarterly progress reports for Student (SEIS-2, 3, 4, 5, 6). She testified that there was always an issue wherein Student believed he understood more than he did academically. When she asked him to prove he knew a concept he was always unable or refused to do so. She always tried to challenge him with more difficult work. (Samuelson) The progress reports show that Student’s social emotional goals were being addressed by his teachers and through weekly therapy sessions. (SEIS-2, 3, 4, 5, 6)
17. Mary Cornell is the teacher coordinator and the educational administrator of the program at Westboro. She has a bachelor’s degree in English and a Master’s degree in education. She is employed by the Collaborative for Educational Services. She was Student’s social studies teacher21 from September 2010 until June 2011. She has received professional development training in social studies content and technique over the past five years. Additionally, as part of “basic training” she received when she first began working in a DYS facility, she received training in dialectic behavior therapy (DBT). She described dialectic behavior therapy as a behavior modification program that helps students control themselves when they are frustrated or getting out of control. She used DBT in her classroom every day when a student became angry, frustrated or was having a bad day. (Cornell)
Ms. Cornell is a certified in elementary education (1-6) at the professional level and English as a second language (1-6) at the initial level. (DYS-4) Additionally, she is certified as a reading specialist through the twelfth grade and has been granted a waiver under which she can teach any class through grade twelve. (Cornell)
Ms. Cornell and the other teachers at Westboro use the Massachusetts Curriculum Frameworks in all subjects. They also have DYS curriculum guides which describe what they should be teaching at certain times under certain topics. The guides follow the Massachusetts Curriculum Frameworks. (Cornell)
When Student first came to Westboro he was very disruptive and disrespectful and refused to do most assignments. He would say that he did not feel like doing the work or that he already knew the material and had done it before. Ms. Cornell could not determine whether he already knew the material because he refused to do any work. (Cornell)
When Student was in class he worked on grade level work, at the tenth grade level. When Ms. Cornell was out of the classroom she would leave worksheets for Student to complete with whoever was covering her classroom. The worksheets were an enrichment activity and were at approximately a sixth grade level. The worksheets were intended to be completed independently and there were students of varying levels in the classroom. Student received credit if he completed them. (Samuelson) When he was not allowed in the classroom he received his education in the hallway. Ms. Cornell would walk out to the hallway and give Student his work and check in on him. She would answer any questions he had and staff would constantly monitor him during the school day. (Samuelson) He refused work when he was on program restriction. He would tell Ms. Cornell, “You can give it to me, but I’m not going to do it.” At the end of the day he would return it to Ms. Cornell, saying, “Mary, here’s the work I didn’t do.” (Cornell)
Initially Student refused a great deal of work. Ms. Cornell spoke to Ms. Samuelson about Student not doing his work. They conferred regarding Student frequently. Ms. Cornell would try to encourage Student to do his work and told him he was capable of doing it. In an effort to motivate Student to complete some work they utilized a pilot program called integrated service delivery (hereinafter, “ISD”). The program encourages collaboration among all teachers to deliver services across the curriculum. The program is used when a student is refusing work, not completing work and/or constantly acting out. Under the program visiting experts22 from New England colleges met with Westboro staff and made suggestions for approaching students. Student was a frequent subject at ISD meetings which were held for one hour per week. The meeting participants23 discussed strategies for engaging Student such as determining his interests and suggesting a high interest activity about which he could write or research. Ms. Samuelson had Student write a paper about the criminal justice system. Although this topic was at the margins of what is addressed by the Massachusetts Curriculum Frameworks, the teachers allowed a special exception because it was a step forward for him in completing some work. Additionally, Student completed an independent project on Cape Verde24 . Ms. Samuelson worked with Student to engage him in the English language arts component of researching and writing. (Samuelson)
The Westboro program includes rules to be followed in the classroom. (DYS-2, pg. 20) Ms. Cornell posts the rules on the wall and enforces them. Students receive a copy of the rules on their first day and they generally receive one warning before receiving a sanction. Education is considered a key part of treatment for residents. School is a requirement of the residents’ day. (Cornell)
Student’s behavior was inconsistent; he would sometimes be disruptive and disrespectful and refuse work. He engaged in side conversations with peers around him. He would randomly start singing a rap song or throw a paper at Ms. Cornell after she passed out an assignment. He would swear and stand up and walk out. He was pretty difficult to manage, especially in the beginning. He was capable of doing his school work and the assignments that he did complete were done very well. Student refused to do a black history month project when he was not permitted to choose an inappropriate subject who was not on the list provided to him. He told Ms. Cornell and Ms. Samuelson he would only complete the assignment if he was permitted to choose the inappropriate subject of his choice. (Cornell)
Sometime around February or March Student seemed to finally buy into the program and the fact that he was there. He was more cooperative and productive in class and was more respectful. He began forming relationships and trusting people. He began behaving appropriately in school and was not on program restriction again. There were still days when he said he did not feel like doing his school work, but he did not swear or throw things. He had turned a corner in learning to control himself. (Cornell) Mr. Lemieux concluded that Student initially tried to have control in a program where he could not control much. After February Student did not continue to engage in a power struggle. (Lemieux)
Ms. Cornell described another project in one of Student’s high interest areas. Student expressed an interest in writing a cookbook. He compiled and researched recipes and he and another resident published the book and sold them to people who came to the unit. They used it as a fundraiser to buy and X-box for the unit. Student was very proud of the cookbook project. Ms. Samuelson brought a cookbook to one of the monthly staffing meetings to show Student’s mother because he was so proud of it. Mother made disparaging comments about it which seemed to bother Student. (Cornell)
18. The IEP progress report dated November 10, 2010 indicates Student attended therapy sessions once per week consistently. In school behavior he experienced difficulty regulating his emotions and was not an active participant. His English benchmarks and objectives were not able to be addressed due to his non-participation and refusal to complete assignments. In mathematics the benchmarks/objectives were unable to be addressed due to his non-participation and refusal to complete assignments. (ESE-2)
19. An IEP Progress Report dated January 28, 2011 indicated Student continued to receive counseling weekly and was invested in his treatment. His classroom behavior was inconsistent. He was thorough and motivated when completing individualized, self-selected projects. When completing teacher assignments he was negative and often refused assignments completely. He continued to use inappropriate language, but with frequent reminders would apologize and reframe his comment. When using the computer Student was able to produce well written writing assignments in English language arts. He was efficient using the Internet to perform research. In mathematics Student completed minimum assignments. He completed several one and two step linear equations and showed a good understanding of the concept and order of operations. He was resistant to word problems and open response questions. (ESE-3)
20. Student’s April 11, 2011 IEP Progress Report showed that he met with his clinician weekly as outlined in his treatment plan and achieved his social/emotional goal of managing his frustration/anger by applying coping skills or removing himself from the situation. He met the expectation of being cooperative and respectful 80% of the time during the school day. In the area of school behavior he completed treatment homework four of five days. He reduced his number of time outs by 85%, achieving his goal. He continued to require work on controlling his inappropriate language in conversation and continued to be selective about competing assignments. In English language arts he wrote well organized paragraphs 90% of the time, was independent using reference materials, identified and analyzed themes across the curriculum with 80% accuracy and revised and edited writing to improve its quality 80% of the time using spell/grammar check. In mathematics Student continued to not complete work on equations and was very unmotivated. He did not complete any homework and refused to complete assignments. (ESE-5)
21. Marc Abbott, OTR/L, completed an occupational therapy evaluation25 on January 7, 2011, at Westboro. Mother had requested the evaluation due to some concerns regarding Student’s handwriting and because he had some shaking and tremors in his hands. Mr. Abbott noted that Student had some coordination difficulty and his manual dexterity was below average for both hands. Student did not mention any concerns with dexterity for activities of daily living, but that occasionally he would spill from a spoon due to the tremors. Student was able to position his hands correctly over the home row and used both hands effectively when asked to use an alpha smart. Mr. Abbbott noted that tremors were not noted during pencil and paper tasks, but reported that accuracy is an area of weakness in all areas assessed. He explained that Student’s standard scores were below average in two areas: copying and visual motor search. He made some recommendations for accommodations including providing access to a keyboard for longer writing assignments and using paper with built in spacing cues. He did not recommend any occupational therapy services. (Abbott, S-6)
22. John Shaw has been a school psychologist for fifteen years, and has been employed by the Brockton Public Schools for nine years. He evaluated Student on December 28, 2010 at Westboro. As part of his evaluation he reviewed Student’s file, observed him during his evaluation and administered the Wechsler Intelligence Scale for Children-Fourth Edition (WISC-IV), Bender Visual Motor Gestalt Test-Second Edition (Bender Gestalt II), Behavior Assessment System for Children-Adolescent –Second Edition (BASC-2) Self Report of Personality and Teacher Rating Scale.(S-6, P-18) Mr. Shaw found Student to be of average intellectual ability with a full scale I.Q. of 96, in the average range. This finding was consistent with results of prior evaluations. Mr. Shaw concluded that although Student’s verbal comprehension skills are consistently average, the results of the Visual Puzzles subtest are significantly low when compared to two other perceptual reasoning tasks. The results indicate a relative weakness in nonverbal reasoning skills. He noted that the BASC-2 teacher rating scale was completed by Sharon Samuelson and Student completed one scale. Mr. Shaw gave a scale to Ms. Garriga to provide to Mother, but he never received it back from Mother. The BASC-2 scales completed by Student and Ms. Samuelson “yielded indicators of opposition, depression and poor adaptive skills. Student’s responses suggest frustration, low self-esteem and a lack of self-control.” (Shaw, S-6)
Mr. Shaw made some recommendations. Among them that Student continue with a therapeutic relationship to work on internalizing problems and on opposition that has been observed over time. He recommended that instruction be presented through a multi-sensory approach and that Student be taught and practice self-regulation and self-advocacy. He also made a recommendation around processing verbal directions. (Shaw, S-6)
Mr. Shaw also completed a functional behavioral assessment on December 28, 2010 and wrote a report of his findings. As part of his evaluation he noted that he interviewed Student’s clinician (whom he does not name), reviewed Student’s cumulative file and recent assessments. He acknowledged that at the time he wrote his report he had limited data available to him and that he had no idea what Student’s classroom behaviors were like during the educational portion of his day at Westboro. He assumed that he could not observe in the classroom and could not obtain information from the staff due to the secure nature of the program. He did not ask the Program Director if he could observe Student in the classroom on another day and did not seek permission to observe Student during a clinical setting. (Shaw, S-6)
23. Jeffrey Turley, M.D., a board certified child and adult adolescent psychiatrist, conducted a psychiatric evaluation of Student on January 27, 2011 and wrote a report of his findings. The evaluation was done at the request of Brockton Public Schools for whom he consults. He is also a consultant for DYS, but the evaluation was done pursuant to Brockton’s request. Dr. Turley’s January 27 meeting with Student lasted approximately ninety minutes and was the only time he ever met Student. He noted that Student answered questions politely and without elaboration and was polite and respectful in his interactions with him. Dr. Turley usually has a parental interview available when writing his report, but he did not have one available to him because Mother did not complete the interview despite being asked to more than once26 .
Dr. Turley concluded that Student would be likely to respond to “practical, cognitive-behavioral interventions.” He recommended that he be taught skills for distress tolerance, mindfulness, and emotional self-management. He also recommended a trial of medication for inattentiveness and impulsivity.27 (P-20, S-6, Turley)
24. The Team reviewed the evaluations at a February 17, 2011 Team meeting held at Westboro. Mother strenuously disagreed with Dr. Turley’s findings and complained the he did not have a complete set of Student’s records to review before he completed the evaluation. (S-8) Mother requested independent evaluations in the area of occupational therapy as well as an independent neuropsychological and an independent psychiatric evaluation. Brockton agreed to fund the evaluations once Mother provided appropriate documentation of the evaluators’ credentials and willingness to accept state rates. (Garriga) The independent evaluations were never completed because the evaluator chosen by Mother for the neuropsychological evaluation did not accept rate setting rates. Brockton never received a name or resume from any proposed occupational therapist from Mother. (Garriga)
25. The Treatment Meeting Educational Report for the period from October 20, 2010-November 17, 2010 indicates that Student was present for twelve of nineteen days of class. In math his teacher noted the Student has the ability to do very well in math, “but lacks the inclination.” His class was covering multi-step equations. Student’s English language arts grade was an incomplete. The class was reading several pieces of literature. The teacher’s comments indicate Student had been putting more effort into his work recently. He was working on grade level assignments with Ms. Samuelson in a one on one tutoring situation. When he was in class he was noted to be “curious and insightful during class discussions.” He was noted to possess great potential to be successful in ELA. Student’s science teacher reported that Student had made improvements in his behavior, volunteered to read aloud in class and had completed some of his work. His science and social studies grades were incompletes. His teacher noted the content the class was working on and reported Student had made a strong effort to improve his work habits and complete his assignments. She also noted that Student needed to make up work from his absences. (P-14)
26. Student received incompletes instead of failing grades during the October 20, 2010-November 17, 2010 reporting period because he had begun to do some work, but had not completed it. Because he was making a strong effort his teachers did not want to give him a failing grade. They thought to do so would have been detrimental to him and the momentum he had started to gain. His teachers wanted to encourage him to continue to be engaged. (Cornell)
27. During the reporting period from November 17, 2010 – December 14, 2010 Student attended class sixteen of a possible sixteen days. His math grade was a ninety-eight and his teacher noted that he had been respectful, compliant and a role model for his peers. Student’s language arts grade was a ninety-nine. Student completed an in depth research project on Cape Verde and presented his project to the program. He helped to produce a multicultural cookbook. He was focused, cooperative and clearly proud of his work. His writing skills had shown improvement over the term when he used a word processor. His science grade was a seventy five. His teacher noted Student’s significant improvement in behavior and reported Student completed his work and made positive contributions to class discussions. Student’s social studies teacher reported a similar improvement in effort. Student’s grade was a seventy. She noted that he sometimes completes assignments in class and other days worked individually with Ms. Samuelson on independent writing work. (P-14)
28. During the period from December 14, 2010 – January 19, 2011, Student maintained perfect attendance by being in class eighteen of eighteen possible days. His math grade was an eighty. His behavior was noted to be respectful and compliant. His motivation was reported to be difficult as he completed an average of five problems per class. In language arts his grade was an eighty-five. He completed several writing assignments including two poems. His writing showed improvement and his focus in classroom was better. In science his grade was a seventy and he improved his participation. He had begun, but not completed a poster project. His social studies grade was a seventy. He reportedly tried to improve his effort and focus, but sometimes argued about completing his work in class. (P-14)
29. Student missed 7 days of school due to program restriction during the time period from January 19, 2011 – February 28, 2011. He was in school for fourteen out of a possible 21 days. His math grade was a seventy and he was respectful and compliant. In language arts his grade was an incomplete. He was easily distracted and unmotivated and did not complete daily writing assignments. In science his grade was a seventy two. He improved his classroom behavior, but his need to improve in completing his written assignments was noted. In social studies he improved his effort and focus. His grade was a seventy two. (P-14)
30. During the period from February 11, 2011 – March 11, 2011 Student’s attendance was perfect. His math grade was a seventy and he was noted to refuse most assignments, stating he did not like math. In Language Arts his grade was seventy. He worked on grammar, vocabulary, word usage and essay writing during this time. He was working on a research project and reading a novel. In science Student’s grade was a seventy. He refused to do written work, but participated in class discussions. In social studies his grade was an eighty-five. He covered content in the area of World War I and maps. He completed some work and was noted to enjoy history and apply himself in class. (P-14)
31. During the period from March 25, 2011 – April 27, 2011 Student’s math grade was a seventy and he did a minimal amount of work. He was noted to enjoy computer generated assignments and was focused on laptop assignments. In language arts Student’s grade was a seventy five. He was reportedly focused and worked diligently on a research paper. His skills were noted to be strong and well presented. His teacher reported that he applied himself positively as long as he was invested in the subject matter. In science his grade improved to a seventy eight. He continued to improve his efforts in biology and was engaged and appropriate in classroom discussions most of the time. His written work remained sporadic, but he made some progress. Student’s social studies grade was eighty-five. The class covered World War I, and “The Sinking of the Titanic.” He was noted to be a serious student of history and reportedly made insightful contributions to class discussions. He made significant progress in completing assignments and behaved appropriately. (P-14)
32. During the period from April 27 through May 25, Student refused to take the MCAS28 . His grades showed a decline in some areas. His math grade was noted as failing and Student did not complete any math assignments. He was also reportedly failing English language arts. Teacher comments noted Student needed to conform to classroom expectations and complete the assigned work. In science Student’s grade was a seventy-two. He was noted to have shown a great deal of improvement in classroom behavior and was more focused and had completed most of his written work. Student’s social studies grade improved to a ninety-five and the class was studying the 1920’s. He had recently completed an independent research project on Al Capone for which he received an A.(P-14)
33. Ms. Garriga mailed a progress report dated November 10, 2010 to Mother in December 2010. She mailed a progress report dated January 28, 2011 (and received by Brockton after March 16, 2011) to Mother on March 21, 2011. She mailed an April 11, 2011 progress report (received by Brockton in June 2011) to Mother on June 6, 2011. Finally, she mailed Mother a progress report dated June 24, 2011 to Mother on June 27, 2011. (Garriga)
34. As of the time of this hearing Student had earned enough credits to be considered a twelfth grader. Ms. Garriga explained the process by which she receives transcripts from DYS which includes Student’s contact hours and grades, and she converts them into Brockton Public School credits. (Garriga)
FINDINGS AND CONCLUSIONS:
Student is an individual with a disability, falling within the purview of the Individuals with Disabilities Education Act (IDEA)29 and the state special education statute.30 As such, he is entitled to a free appropriate public education (FAPE). Neither his status nor his entitlement is in dispute.
The burden of persuasion in an administrative hearing challenging an IEP is placed upon the party seeking relief. Schaffer v. Weast , 546 U.S. 49, 126 S. Ct. 528, 534, 537 (2005) In this case, Parent/Student is the party seeking relief and therefore bears the burden of persuasion.
This case is somewhat unique in that Student was not in an educational placement during the relevant time period, but incarcerated in a DYS treatment facility, having been committed to DYS by a juvenile court judge. The issues to be decided arise from Parent’s and Student’s claims that Student’s right to receive a free appropriate public education was violated while he was at Westboro.
This case is unique because Student’s services were provided to him not within a local education agency (hereinafter, “LEA”) or an out of district placement, but within a juvenile justice facility controlled by DYS. Whereas in a typical special education dispute the LEA is responsible for implementing the IEP within a given educational setting, when a student is committed to DYS, the LEA, Brockton in the instant case, shares responsibility for the provision of services with other agencies, namely SEIS and DYS. The IDEA requires that states receiving federal funds implement “an interagency agreement or other mechanism ” (emphasis supplied) to ensure that an eligible student continue to receive special education services while committed to institutions, including DYS facilities pursuant to court order. 20 U.S.C. § 1412(a)(12); 34 CFR 300.154. In Massachusetts, there are statutes and regulations which provide a framework for the provision of services to and assign responsibility for students committed to DYS facilities. See M.G.L. c. 18A, § 7 and M.G.L. c. 71B, § 12.
M.G.L. c. 71B, § 12 states in relevant part:
The department shall establish and maintain a school department for school-age children in each institution under the control of [DYS] which provides support and care for resident children with a disability, acting jointly with the department which has control over the particular institution…Nothing contained herein shall affect the continued authority of departments operating such institutions over all non-educational programs and all treatment for residents or patients in institutions under their control.
Additionally, DESE regulations address the responsibilities of the LEA (Brockton), the state agency that controls the facility (DYS) and the Department (SEIS/DESE) at 603 CMR 28.06(9) as follows.
(9) Educational Services in Institutional Settings. The Department shall provide certain special education services to eligible students in certain facilities operated by or under contract with the Department of Mental Health, the Department of Youth Services, County Houses of Corrections, or the Department of Public Health. The Department shall retain the discretion to determine based upon resources, the type and amount of special education and related services that it provides in such facilities.
(a) Decisions about admission to and discharge from institutional facilities are within the authority of institution administrators, not the school district. However, school districts are not relieved of their obligations to students in such settings. School districts are responsible for students in institutional settings in accordance with 603 CMR 28.10. Such students have the same rights for referral, evaluation, and the provision of special education in accordance with state and federal law as students in public schools.
(b) Non-educational services such as residential, medical and clinical services shall be provided by the state agency that controls the facility. The provision of such services shall be governed by the state agency in accordance with applicable laws, interagency agreements, or agency policies.
(c) Where a student’s IEP requires a type or amount of service that the facility does not provide, it shall remain the responsibility of the school district where the father, mother or legal guardian resides, except as provided in 603 CMR 28.10(3)(c)1 and 2, to implement the student’s IEP by arranging and paying for the provision of such services.
(d) The responsible school district [shall] coordinate with the Department and ensure that the student receives an evaluation, an annual review, and special education services as identified by the Team at a Team meeting convened by the responsible school district. The Department shall participate in Team meetings for any student receiving special education services in an institutional setting. To the extent that special education services are provided by the Department in such facilities, the Department will make every effort to provide services consistent with the student’s IEP and available resources.
The issues in this hearing must be addressed mindful of the above statutory and regulatory assignments of responsibility to the various parties, and with the understanding that although not confined to an adult prison, Student was confined to a juvenile treatment center and not an educational placement.
Issue 1: Whether DYS impermissibly caused Brockton and/or SEIS to be unable to provide Student with FAPE.
Parent’s/Student’s31 claim that DYS interfered with Brockton’s or SEIS’ ability to provide Student with FAPE is based upon their claim that Student was prevented from accessing his IEP services while he was on program restriction. Despite Student’s recollection that he had been on program restriction for seven days at a time up to seven times (see Student’s testimony) and Mother’s testimony that Student spent most of his time at Westboro “sitting in a chair”, the evidence shows that Student was on program restriction and barred from the classroom fourteen times out of a total of 140 school days during the time period at issue in this hearing. The credible testimony of Ms. Cornell, Ms. Samuelson, Mr. Lemieux, and Ms. Sullivan demonstrated that even when Student was prevented from entering the classroom, he was offered his education. Most days when he was out of the classroom he remained within earshot and within the line of sight of the teacher. He was able to hear the lesson and ask questions. On the days that Westboro deemed him to be a threat to the program’s security and thus seated him in a location further away from the classroom, staff and the teachers checked on him throughout the day. He had the option of requesting that a staff person get the teacher if he required assistance with his work. Student chose not to do his school work every time he was on program restriction. (Samuelson, Cornell) A student’s refusal to accept services and complete school work is the responsibility of the student. Cf. S. v. Wissahickon School. Dist. , CIV. A. 05-1284, 2008 WL 2876567, *10 (E.D. Pa. July 24, 2008) aff’d sub nom. Richard S. v. Wissahickon Sch. Dist. , 334 App. Ct. 508 (3d Cir. 2009). Additionally, Student was required by his teachers to make up work that he did not complete (Samuelson, Cornell) Thus, the credible evidence shows that Student was offered the opportunity to participate in his education even on days that he was not permitted to enter the classroom due to security concerns.
Although Parent and Student believed Student’s rights were violated when he was placed on program restriction and not permitted to receive his education in the classroom for limited periods of time, the law does not support their contention. The IDEA does not purport to limit the ability of law enforcement agencies and courts to determine the setting or locations at which educational services are to be delivered to students committed for commission of crimes. 20 U.S.C. § 1415(K)(6)(A). The credible testimony of Ms. Samuelson, Ms. Cornell, and Mr. Lemieux demonstrates the legitimate safety and security concerns Student’s presence in the classroom immediately after a serious disciplinary incident would cause. As the primary concern of Westboro is to maintain safety and security of staff and residents, it was necessary for Westboro to provide Student his services in the hallway on the fourteen days that he was on program restriction. See, San Diego County Office of Education (CA SEA, 2003) 39 IDELR 169.
There was no testimony or other evidence to suggest that Student was not capable of completing his school work. In fact, Ms. Samuelson and Ms. Cornell testified that Student was very capable of completing his academic work. Student testified that at times he did not complete work because he had done the same work at other DYS facilities and Mother claimed that the work provided to Student was below grade level and the curriculum was watered down. The evidence, however, shows that Student received grade level work while he and his teachers were in the classroom. Ms. Samuelson explained that she occasionally had to attend a meeting during Student’s class time and left an assignment to be completed independently by the students that was an enrichment activity at a lower grade level. However, for the majority of the time Student received grade level work which followed the Massachusetts Curriculum Frameworks. Parent/Student have not met their burden with respect to demonstrating that the instruction provided to Student was not at grade level nor that it did not conform with the Massachusetts Curriculum Frameworks.
Parent argued that she was only provided with one progress report and that Student did not receive report cards. The credible evidence shows that Ms. Garriga did in fact mail all progress reports to Parent upon receipt of them. (See testimony of Garriga; footnote 16 above) Additionally, although Student did not receive report cards, Mother received a monthly Treatment Meeting Educational Report which included detailed information about Student’s curriculum, grades and progress. (P-14) Therefore, even though Student did not receive quarterly report cards, Mother received even more information than a typical report card would contain on a monthly basis. There was no harm to Student as a result of not receiving report cards, and Parent’s ability to participate in her son’s education was not impacted.
There is nothing within the record to suggest that DYS interfered with Brockton’s or SEIS’ ability to provide Student with a free appropriate public education.
Issue 2: Whether the educational service providers who provided services to Student possessed the appropriate licensing as required by the IDEA and ch. 71B.
Parent/Student provided very limited evidence with respect to their claim that Student’s educational service providers were not properly licensed. The only evidence elicited was the testimony of Ms. Samuelson and Ms. Cornell. Ms. Samuelson testified that she has a bachelor’s degree in special needs and her initial license indicated she was certified to teach ages 0-22. She is licensed in elementary education K-8. She has worked at Westboro for eight years. Ms. Cornell testified that she has a bachelor’s degree in English and a Master’s degree in education. She is certified in elementary education (1-6) at the professional level and English as a Second language (1-6). She is a certified reading specialist through the twelfth grade and has been granted a waiver under which she can teach any class through grade twelve. Although Parent’s advocate questioned each of the aforementioned teachers about their credentials and queried as to whether they were qualified to teach Student, she did not present any evidence that demonstrated that they were not qualified to teach Student. Parent did not present any evidence by any person with expertise regarding requirements/qualifications for teacher certification in Massachusetts32 . Parent had the burden of showing that the teachers did not hold sufficient credentials to be certified by the state of Massachusetts and she did not meet that burden.
Issue 3: Whether the IEP proposed for Student by Brockton for the period from November 17, 2010 through November 17, 2011 was reasonably calculated to provide Student with a FAPE in the LRE.
Issue 4: Whether Brockton denied Student FAPE by removing previously accepted services from the previously drafted and accepted IEP without performing evaluations.
Issue 5: Whether Brockton denied Parent the opportunity to participate in the drafting of the IEP for the period from November 17, 2010 through November 17, 2011.
Issues three, four, and five are interrelated and involve only the Brockton Public Schools. Thus, they will be addressed together in this portion of the decision. Both federal and state law require that an IEP be tailored to address the individual student’s unique learning needs and is reasonably calculated to permit the student to receive educational benefits and to make effective progress commensurate with the student’s educational potential.33
The IEP proposed by Brockton for the period from November 17, 2010 through November 17, 2011 mirrors the last accepted IEP drafted by Taunton in many ways. Parent’s primary complaint with the IEP was the fact that it did not include clinical services on the service delivery grid as the last accepted IEP had. Parent also argued that the services were removed without Brockton having first conducted evaluations. Additionally, Parent took great exception to Student’s placement at Westboro which this decision will not address further as it was the subject of a Motion for Stay Put Placement which was denied in an April 5, 2011 ruling.
Brockton had good reason for removing the clinical services from its proposed IEP. 608 CMR 28.06(9) specifically states that non-educational services such as clinical services shall be provided by the agency that controls the facility, namely, DYS. It also states that the provision of such services shall be governed by the state agency, DYS, in accordance with applicable laws or agency policies. Since Brockton would have no responsibility or authority with respect to clinical services it did not include them on the IEP. Brockton was very up front about its rationale in removing the services and specifically acknowledged its reasons for doing so within the IEP document. (S-3, Garriga) Additionally, Student was not deprived of clinical services. In fact, Westboro provided Student with individual therapy (in excess of the forty-five minutes per week required by the last accepted IEP), group therapy, and the use of DBT throughout the program. Parent has presented no evidence to show that Brockton’s actions were inappropriate or not in compliance with the law34 . Although Parent now seeks to argue that Student received program restriction because he was not provided with clinical services as delineated on his last accepted IEP, the evidence does not support her claims. The evidence shows that although not included in the IEP document, clinical services were very much a part of Student’s treatment program at Westboro. Brockton’s determination that it would be inappropriate to include clinical services on Student’s Brockton IEP which only DYS was authorized to provide was reasonable based upon the directives of 608 CMR 28.06(9).
Significantly, Parent did not produce any evidence of any harm to Student due to the clinical services not being included in the IEP . The credible evidence of Mr. Lemieux, Ms. Sullivan, Ms. Samuelson, and Ms. Cornell along with notations made in the IEP progress reports demonstrate that Student received clinical services as part of his overall treatment at Westboro. Thus, even if Brockton’s interpretation of its obligation with respect to the drafting of Student’s IEP was incorrect, Student was not harmed in any way and thus requires no remedy.
Aside from the absence of the clinical services, Brockton’s IEP was very similar to the last accepted IEP which was endorsed by Mother. It included goals in the areas of academics, social/emotional, and behavior to address Student’s documented needs in those areas. It also included services from a special education teacher to address Student’s areas of need. As the IEP addressed all of Student’s identified areas of need (other than those that were delegated to DYS by regulation) and Parent provided no evidence to show that the IEP was lacking, I find that Brockton’s IEP for the period from November 17, 2010 through November 17, 2011 was reasonably calculated to provide Student with a FAPE in the LRE.
Parent also failed to meet her burden with respect to the issue of whether Brockton should have conducted evaluations prior to removing the clinical services from the IEP. As stated above, Brockton did not remove the clinical services from the IEP due to any determination that Student no longer required clinical services, but due to its reasonable interpretation of 603 CMR 28.06(9). Thus, it was not necessary to conduct evaluations prior to drafting the IEP.
Finally, Parent did not present any evidence to prove she was denied an opportunity to participate in the drafting of the November 17, 2010 to November 17, 2011 IEP. In fact, the tape recording of the Team meeting shows that Parent was a very vocal participant in the Team meeting and that the meeting was ended because Parent continuously interrupted the Team and sought to discuss issues other than the preparation of the IEP. Brockton’s attorney stopped the meeting after Parent made “uncivil” remarks to a Team member and asked to meet with Parent’s advocate. Brockton’s attorney and Parent’s advocate, acting on Parent’s/Student’s behalf, agreed that Brockton would produce a draft IEP outside of the Team meeting. Their agreement was announced at the Team meeting and is contained on the recording. (S-8) Additional evidence of Parent’s participation is the inclusion of information discussed at the Team meeting in the Parent and/or Student Concerns section of the IEP. Thus, Parent failed to meet her burden with respect to the issue of whether she was denied the opportunity to participate in the drafting of the November 17, 2010 to November 17, 2011 IEP.
Issue 6. Whether Student’s last accepted IEP has been implemented by Brockton and or SEIS to the extent that it may be implemented in the DYS facility where he is being detained .
The credible evidence shows that the last accepted IEP has been implemented to the extent possible in the DYS facility. Parent has failed to demonstrate any areas of non-compliance with the IEP aside from the days that Student was removed from programming due to program restriction which was discussed above. Brockton’s responsibility to Student was primarily in the areas of IEP development and evaluation. Brockton completed its own evaluations of Student and convened a Team meeting to review the results as required. Parent disagreed with the results of the evaluations and Brockton agreed to fund independent evaluations. Parent has not yet provided Brockton with the names of evaluators willing to accept rate setting rates. Additionally, despite Mother’s testimony and concern about Dr. Turley’s evaluation, Brockton did not change Student’s diagnoses on the most recently proposed IEP35 (S-7). Thus, although Mother took great issue with the evaluations, they have had no impact on Student’s service delivery.
The evidence shows that Student received grade level instruction in both his regular education and special education classrooms. Student’s refusal to participate caused him to make slow progress for the first several months of his placement. However, Student’s teachers continued to attempt to engage him and utilized assistance from the ISD program. Student’s teachers allowed Student to select independent research projects in areas of interest to him. While Mother and Student alleged the curriculum was below grade level and did not follow the Massachusetts Curriculum Frameworks, the credible testimony of Ms. Samuelson and Ms. Cornell proved otherwise. Both progress reports and monthly Treatment Meeting Educational Reports show the varied curriculum Student received while at Westboro. The only area that was not addressed by either SEIS or Brockton from the last accepted IEP was the clinical services. As discussed above, this was and could only be provided by DYS in accordance with 603 CMR 28.06(9).
Brockton raised the issue of a conflict between statutory language requiring DYS and SEIS to be responsible for providing curriculum, staffing and services to student without any interference or contribution by local school districts except for an offset of local aid36, and DESE regulatory language, specifically 603 CMR 28.06(9)(d), which states that the LEA shall be responsible to coordinate with the Department to ensure that the student receives special education services as identified by the Team. Since Parent has not met her burden of proving a denial of FAPE to Student it is not necessary to resolve this conflict in this decision.
ORDER
Based upon the foregoing, I find that Parent/Student have not met their burden with respect to any of the issues before me. Therefore, I decline to award any relief to Parent/Student.
By the Hearing Officer,
____________________________________
Catherine M. Putney-Yaceshyn
Dated: January 12, 2012
1
The June dates were set at the request of Parent’s advocate who asked for an extended period of time to conduct discovery and pursue independent evaluations.
2
On September 8, 2011, six days after the Parties had submitted their exhibits and witness lists, Parent submitted a Motion for Reconsideration of the May 5, 2011 Order regarding the issues to be heard. During a tape recorded motion session held on September 8, 2011, the hearing officer orally denied her motion because it was untimely and lacked merit. This ruling was reiterated during the hearing.
3
There were numerous other motions filed by Parent which were ruled upon and are part of the administrative file. Additionally, there were numerous Motions to Quash stemming from Parent’s requests to issue subpoenas for approximately twenty-seven witnesses, including the Commissioner of DYS, the Commissioner of DESE, the Commissioner of EOHHS and an employee of OSEP. Rulings on said motions are in the administrative file and on the record of the hearing.
4
These dates were requested by DYS, DESE, and Brockton to accommodate their witnesses’ schedules as they had already made themselves available for the June dates and were largely unavailable for the summer. Parent assented to proceeding on the September dates.
5
Parent’s closing argument contained references to alleged facts that were not made a part of the record during the hearing. The alleged facts pertained to the date upon which Parent alleged Ms. Cornell received the waiver about which she testified. Because Parent did not submit the alleged evidence during the hearing, the hearing officer did not consider it in rendering this decision as required by Rule X of the Hearing Rules for Special Education Appeals. DYS submitted a Motion to Strike portions of Parent’s closing argument pertaining to Ms. Cornell’s waiver. It is not necessary to act on said motion, as the references to facts not in the record shall not be considered.
6
There was no objection made to the closing argument being received late.
7
This deadline for submission of proposed exhibits and witness lists ultimately changed to accommodate Parent’s request for a continuance to obtain counsel upon the withdrawal of her advocate on May 23, 2011.
8
The pre-hearing conference was tape recorded at the request of the Parent.
9
Student’s committing offenses are not relevant to the issues before me, thus it is not necessary to recite them here.
10
Although the IEP was accepted in full, Mother wrote a comment on the IEP indicating that she expected the district to send referral packets to other residential placements. (P-3, S-4)
11
Student’s last accepted IEP was still current at that time with an expiration date of March 17, 2011. (S-4)
12
At the time of the team meeting Brockton had requested, but not yet received Student’s records. Brockton received the records in January 2011. (Garriga)
13
Although Mother testified that she did not agree to this the recording of the Team meeting shows otherwise. (S-8)
14
When Student caused disruptions in class he lost a certain number of points. (Samuelson)
15
Throughout her testimony Mother referred to Student’s time on program restriction as “sitting in a chair.” (Mother)
16
However in an e-mail from Mother to Marsha Eidin dated April 4, 2011 Mother stated that she needs to discuss the IEP progress report she received in the mail from Brockton. (S-10)
17
A client committing another offense while on program restriction creates concern regarding the client’s ability to show self-control. It would create a security risk if such client was allowed back in the classroom. If serious behavior is not addressed, other clients fear for their own safety which creates an increased risk of other residents acting out. (Lemieux)
18
Student disputes the manner in which this incident was described by DYS, but the fact that he was placed on program restriction due to the incident is not in dispute. (Student)
19
The first five days that Student missed school due to the program restriction were before Brockton was assigned fiscal and programmatic responsibility for Student and thus outside the scope of this hearing.
20
Student was provided with the opportunity to attend a double block MCAS prep class five days per week. He chose not to participate. He also had an MCAS prep binder with his name on it which sat on a shelf. Ms. Samuelson was available to assist him if necessary. (Samuelson)
21
Ms. Cornell initially taught Student’s English language arts class until Ms. Samuelson took over. (Cornell, Samuelson)
22
The visiting experts had expertise in special education integration and collaboration. (Cornell)
23
Participants included Student’s subject area teachers, the physical education teacher, and the health and art teacher. (Cornell)
24
Student is very interested in Cape Verde and has a lot of knowledge about it. (Cornell)
25
Mr. Abbott used the following assessments in his evaluation: Developmental Test of Visual Perception – Adolescent and Adult (DTVP-A), WOLD Near Point Sentence Copying Test; Fine Motor section only of the Wide Range Assessment of Visual Motor Abilities (VRAVMA), and clinical observations. (S-6)
26
On December 22, 2010, Ms. Garriga sent Mother a letter requesting that she complete a parental questionnaire on Dr. Turley’s website to ensure that Dr. Turley completes a comprehensive evaluation. Ms. Garriga also offered to provide Mother a hard copy of the questionnaire which could be completed and mailed to Dr. Turley. On January 7, 2011, Ms. Garriga sent a follow-up correspondence indicating that Dr. Turley had not received her response and again requesting that Mother complete the questionnaire. (P-34) Mother did not return the questionnaire to Dr. Turley. Her advocate told her that the website was not secure. She did not contact Dr. Turley’s office to verify this and did not request a hard copy of the questionnaire to complete. (Mother)
27
Dr. Turley’s diagnoses of Student varied from many of his previous diagnoses. Additionally, Mother strenuously disagreed with the inclusion of one of Dr. Turley’s diagnoses. Since Student’s diagnoses are not in dispute for the purposes of the issues before me, I have not included the list of diagnoses as determined by Dr. Turley.
28
See Ruling dated April 11, 2011 regarding MCAS. Brockton offered MCAS accommodations including use of word processor on the IEP it proposed after the November 17, 2010 Team meeting. (S-3) Parent refused to accept the accommodation and sought to compel Brockton to offer the same accommodation as an amendment to the expired last accepted (Taunton) IEP. The ruling was denied and Parent/Student were advised that they could accept the accommodation by accepting that portion of the Brockton IEP (S-3).
29
20 USC 1400 et seq .
30
MGL c. 71B.
31
Any reference to Parent’s/Student’s, Parent’s, or Student’s claims throughout this decision refer to the claims that are brought by Parent on Parent’s/Student’s behalf.
32
Parent’s advocate noted in her closing argument that it is important to note that the hearing took place in a conference room directly across the hall from the DESE Certification department. However, despite the proximity of potential witnesses regarding certification requirements in Massachusetts, Parent did not call a witness with expertise in that area.
33
Lessard v. Wilton-Lyndeborough Coop. School District , 518 F. 3d 18 (1 st Cir. 2008); Lenn v. Portland School Comm ., 998 F. 2d 1083 (1 st Cir. 1993); Town of Burlington v. Dept of Education , 736 F. 2d 773 (1 st Cir. 1984) att’d., 471 U.S. 359 (1985).
34
On October 6, 2011, DESE issued a Technical Advisory SPED 2012-1: Certain IEP Services Not Provided by the Department in DYS Institutional Settings. Because it was issued after the relevant time period for this hearing and thus Brockton did not have the benefit of reviewing it when drafting its IEP, it is not relevant to the issues before me.
35
Also, despite Mother’s assertion that Dr. Turley did not have access to sufficient records and information about Student while completing his evaluation and report, she did not cooperate with Dr. Turley’s request that she complete a parent questionnaire. (Mother, Turley, Garriga)
36
See M.G.L. c. 18A, § 7; M.G.L. c. 71B, § 12.