Student v. Hamilton Wenham Regional School District – BSEA # 07-2103



<br /> Student v. Hamilton-Wenham Regional School District – BSEA # 07-2103<br />

COMMONWEALTH OF MASSACHUSETTS

SPECIAL EDUCATION APPEALS

Student v. Hamilton-Wenham Regional School District

BSEA #07-2103

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 February 16, 2007 at the Bureau of Special Education Appeals, Malden, Massachusetts, before Catherine M. Putney-Yaceshyn, Hearing Officer.

PROCEDURAL HISTORY

Parent requested a hearing on September 22, 2006 and a hearing was scheduled to occur on October 30, 2006. There were a number of conference calls held at the request of the parties. The parties participated in a settlement conference on October 30, 2006. On December 11, 2006 Hamilton-Wenham Regional School District (hereinafter, “Hamilton-Wenham”) filed a Motion to Dismiss which was denied on December 14, 2006. There was a pre-hearing conference on December 27, 2006 and the hearing was re-scheduled to occur on January 23, 2007. Prior to the hearing, Hearing Officer Sandra Sherwood retired, and the case was reassigned to Catherine Putney-Yaceshyn on January 17, 2007. There was a telephone conference call on January 22, 2007. Due to the limited availability of the parties and the hearing officer on January 23, 2007, the hearing was continued until February 16, 2007, the earliest date upon which the parties and the hearing officer were available. The hearing occurred on February 16, 2007, and the parties requested that the record remain open until March 2, 2007 to allow them to submit written closing briefs. Both parties submitted their briefs on March 2, 2007, and the record closed at that time.

Those present for all or part of the Hearing were:

Student

Student’s mother

Deborah Frontierro Out of District Coordinator, Hamilton-Wenham Regional School District

Allison Collins Interim Director of Student Services, Hamilton-Wenham Regional School District

Catherine Lyons Attorney, Hamilton-Wenham Regional School District

Joseph Presti BSEA legal intern (observer)

Catherine M. Putney-Yaceshyn Hearing Officer

The official record of this hearing consists of Hamilton-Wenham’s exhibits marked S-1 through S-10 and Parent exhibits marked P-1 through P-11, P-13(pgs. 3-6), P-23, P-39(pgs.7-8), P-42(pgs. 2-3), P-43-P-45, P-46(pgs. 2-5), P-47, P-48, P-50, P-55, P-57(pg. 1), P-60(pgs. 1-3, 5-8, 10-11), P-61, P-64(pg.5), P-65), P-67(pg.19-23), P-68 (pgs. 40-53), P-70, P-711 and approximately 2 hours of recorded oral testimony.

ISSUES

1. Whether Hamilton-Wenham’s IEP proposing placement at the Elan School in Maine is reasonably calculated to provide Student with a free appropriate public education in the least restrictive environment.

2. If not, whether Parent’s and Student’s proposed placement at the Optimum Performance Institute (hereinafter, “OPI”) in California combined with an educational program, is reasonably calculated to provide Student with a free appropriate public education in the least restrictive environment.

SUMMARY OF THE EVIDENCE

1. The student (hereinafter, “Student”) is 20-years-old and resides within the Hamilton-Wenham school district, (hereinafter, “Hamilton-Wenham”). He has been diagnosed with a unilateral hearing loss and has a record of emotional vulnerabilities and depressive symptoms. (S-1, P-68) He has not attended school since November 2002 when he left high school. Since that time he has been referred to several self-contained therapeutic programs. A November 2003 BSEA decision upheld the district’s offer to place Student at the Harbor School. Student and Parents refused the Harbor School placement and he did not attend. (S-1) Student has requested placements at Crossroads and the Chamberlain School. He attended each program for a day or two and then stopped attending. (Frontierro) Prior to the hearing Mother asked Hamilton-Wenham to send referrals to Beacon High School and the Arlington School. The district sent the referrals and the Arlington School did not believe it was an appropriate placement for Student. Beacon High School believed Student was an appropriate candidate, but was not sure whether Student would invest in the program. Beacon wanted Student to meet conditions to prove that he was invested in attending school. They would then consider whether he was appropriate for their program2 . (Frontierro)

2. Student has been the subject of multiple BSEA hearings. I take administrative notice of a prior decision (BSEA #04-1791 and 03-3932, November 3, 2003) and a prior ruling (BSEA #04-4201, May 6, 2004). In the decision, the Hearing Officer Rosa Figueroa found that “Student presents with a specific language impairment, which coexists with his hearing loss. …He also has organizational and attentional issues. …Additionally, Student has a substance abuse problem, is defiant of parental rules, and presents with other behavioral issues for which he is currently the subject of a CHINS petition.” (S-8) She found that Student “requires the structure that only a therapeutic residential setting can offer.” She found Hamilton-Wenham’s proposal to place Student residentially at the Harbor School appropriate. In response to Student’s belief that he was not like the other students at the Harbor School she found, “While it is true that his IQ may be higher than most other students at the Harbor School, when looking at his overall issues it is clear that he fits the description of the majority of the students there; he is out of control behaviorally, has learning disabilities, emotional issues, abuses illegal substances, and is court involved.” She cautioned Student that “this may be his last opportunity to build a better future for himself.” The hearing officer ordered Hamilton-Wenham to place Student at the Harbor School as part of a cost-share with D.S.S. (S-8)

3. Although Hamilton-Wenham offered the placement, Student refused to attend the Harbor School. In March 2004 Parents requested that Hamilton-Wenham send a referral packet to Swift River Academy. In an attempt to “reconcile their differences,” Hamilton-Wenham sent the packet and Student attended the Swift River Academy “for a couple of days.” On April 7, 2004, an administrator at Swift River informed the parents Student could not remain at Swift River because of “his oppositional behavior and the perceived run-risk.” Between approximately December 2002 and April 2004 Hamilton-Wenham sent out more than a dozen referrals for Student who was accepted at three different therapeutic day schools and two residential programs. Student had either refused to attend the programs or attended for one day and refused to return. In a ruling dated May 6, 2004, the hearing officer found Hamilton-Wenham had no other obligation than to continue to offer the Harbor School placement previously ordered. (S-9)

4. Student’s most recent neuropsychological evaluation was completed on December 14, 2004 and January 5, 2005 by Seth A. Doolin, Psy.D. and Jerome J. Schultz, Ph.D. at the Lesley University Learning Lab3 . (P-68) Student’s intellectual potential was measured by the WAIS-III and found to be at the high end of the average range. “With the exception of reading comprehension as an area of relative weakness, mild difficulties in visual scanning accuracy, and below average delayed recall ability, [Student]’s cognitive skills appear to be largely intact.” The evaluators found that although Student “could stand to improve in the area of attention to detail, reading comprehension, and memory and learning strategies, the current testing does not reveal symptoms associated with what would be considered a significant learning disability at this time.” The evaluators concluded that “while learning disabilities made early learning challenging for [Student], his difficulties stem more from emotional and attitudinal factors that have impeded his academic performance.” He noted Student appeared to be affected by problems at home related to stressors in the household. In reviewing prior assessments of Student the evaluators noted that most of the clinicians suggested Student’s cognitive functioning is generally intact and his emotional presentation does not suggest a serious psychiatric disorder. Many prior reports of assessments of Student referenced the need for “Student’s family to organize themselves around him and make him more accountable for his actions.”

The Lesley evaluators concluded that Student needs most attention directed at his emotional and psychological needs, “which are significant.” They strongly recommended individual therapy, “so that [Student] can be helped to rise above his entanglement in the family’s ongoing saga of sadness and stress.” (P-68)

Dr. Doolin and Dr. Schultz made a number of recommendations for Student’s educational program. They indicated that Student had expressed an interest in obtaining his GED and thought that may be preferable to attending a formal school program. They encouraged him to enroll in a GED program at North Shore Community College. They recommended family and individual therapy. They recommended support to improve Student’s reading comprehension through the use of pre and post reading discussions and questions. They recommended study skills instruction. They suggested that Student have an IEP that includes individual or small group academic skill development and a therapeutic component. The evaluators suggested a self-contained therapeutic program if Student does not or cannot take advantage of the aforementioned services. (P-68)

5. Deborah Frontierro, Hamilton-Wenham’s Out of District Coordinator, was the Director of Student Services for four years, a Team Chairperson for six years and a special education teacher for four years. She is certified as a special education teacher, a regular education teacher and a special education administrator. She has been familiar with Student for a number of years, has reviewed his evaluations and recommendations and has directly overseen the provision of his services. She described Student as having hearing loss in one ear, having a high average cognitive range, and showing some evidence of mild learning disabilities. She described him as being in the average range in language and having the ability to understand math concepts. She explained that his ability to do math calculations was weak due to a lack of instruction. She explained that his reading comprehension was a little low, but within the average range. Ms. Frontierro described his major area of need as emotional with a risk for depression and behavior issues. (Frontierro)

6. In January 2005, Student expressed interest in attending the North Shore Community College. (S-1) Hamilton-Wenham supported his placement there. (Frontierro) Student attended the North Shore Community College for a period of time during the 2005-2006 school year. Pursuant to a placement exam he was placed in a college level English class and a remedial level math class. Student was to receive both college and high school credit for the classes. (S-1, Frontierro) Student initially attended both his English and math class, but stopped attending the math classes because they were early in the morning. His attendance at the English class also eventually waned and he was not present enough to receive credit, though the work he produced for class was considered high quality. Hamilton-Wenham agreed to support Student’s classes through the summer session, but Student did not sign up for any summer classes. Student also failed to access therapy with the private therapist he chose, despite Hamilton-Wenham’s commitment to fund the sessions. (S-1, Frontierro) Ms. Frontierro spoke to Gary Williams, the school’s contact person at North Shore Community College regarding Student. He told her that he attempted to set up tutoring with Student and reached out to him a number of times. Student did not respond to any of Mr. Williams’ attempts to assist him. (Frontierro) Student was offered tutoring services at the Commonwealth Learning Center, but did not access the services. (Frontierro, Mother) Student did not contact Ms. Frontierro when he stopped attending North Shore Community College and never told anybody that he was unable to access his services. (Mother)

7. Ms. Frontierro sent a letter to Student dated January 12, 2006. (S-2) She had not heard from Student and wanted to let him know that he had a right to access services until he graduated or turned 22 years old. She included a Team meeting notice and encouraged his participation. She hoped to engage him in the process. She did not receive a response from Student or Parents. (S-2, Frontierro)

8. The Team convened on February 15, 2006. Neither Student nor Parents attended the meeting. Because Student had had difficulty accessing two classes during the prior school year, Hamilton-Wenham proposed that he attend one class and offered him therapy with a therapist of his own choosing. (S-1)

9. Ms. Frontierro sent Student a letter dated February 15, 2006. She explained various educational options available to him and expressed concern that he would not have sufficient time to attain a diploma or GED before he turned 22 if he did not begin attending school that semester. She reminded him that the Massachusetts Rehabilitation Commission had attended his 2005 Team meeting and explained the possibility of providing him services and reminded him that he may lose such services if he did not avail himself of them. She enclosed the February 15, 2006 IEP and asked him to provide her with his concerns, vision and any input. She reminded Student she was available to meet with him to discuss his program. Neither Student nor Parents responded. (S-3, Frontierro)

10. On or around June 12, 2006, Student rejected the 2/15/06-2/25/07 IEP. On the IEP, somebody wrote “[Student] has not been able to succeed at the North Shore Community College. He needs more structure and interventions in order for him to succeed. [Student] needs a residential self-contained therapeutic program as recommended by Dr. Jerome Shultz, Ph.D.”

11. Ms. Frontierro sent Student a letter dated June 19, 2006. She explained that because school was not in session a Team would not be available to convene until August. She offered to meet with Student and Parents prior to the Team meeting and testified that she would have sent out referrals if the meeting had occurred. She informed Student that she wanted to find out whether he was seeking a residential therapeutic placement because many placements had been offered to him and rejected by him in the past.

12. Ms. Frontierro explained that she received written materials regarding OPI and contacted its director. The director expressed surprise to her that a Massachusetts district would consider funding his program. He explained that the program helps young adults discover what they want and helps to motivate them. He described their mentor program in which they try to match program participants with celebrities to help motivate them in their area of interest. The program does not provide educational services, but their educational director helps students to locate educational programs in community colleges or local high schools and vocational schools. There is a therapeutic program that includes group therapy and the program could assist participants in arranging individual counseling. (Frontierro)

13. Allison Collins has been the Interim Director of Student Services at Hamilton-Wenham since July 2006. She has been familiar with Student since she was the assistant principal at the high school and dealt with Student regarding discipline and attendance issues. In a letter dated August 25, 2006, she responded to Student’s request that Hamilton-Wenham fund his placement at the Optimum Performance Institute in California. Although Ms. Collins was pleased to hear that Student was expressing interest in returning to school, she informed him of the district’s inability to place him at OPI because it is not a school. She explained that because OPI does not offer educational services, attendees at the program must make arrangements with programs such as local high schools or community colleges to receive academic instruction. Ms. Collins offered to work cooperatively with Student to identify appropriate programs, including the Hyde School and Elan School, both located in Maine. She provided Student with a release form that would allow the district to send referral packets to the schools. She also informed him of her willingness to discuss other school options and to provide services while locating an appropriate educational placement. (S-5) Student did not contact Ms. Collins. (Collins, Student)

14. In a letter dated September 11, 2006, Ms. Collins responded to Student regarding Parents’ request that Hamilton-Wenham reconsider funding Student’s placement at OPI. She explained that although the program looked interesting, she could not approve his placement there because OPI is not a school. Attendees at OPI receive their educational services outside of OPI and the services are not supervised or overseen by OPI. OPI does not employ any teachers or direct educational service providers. She explained the options that remained open to Student including placement at the Elan School and Job Corps. She provided Student with contact information regarding both options. She indicated her willingness to discuss other options with him and asked him to schedule an appointment with her. Student did not contact Ms. Collins. (S-6, Collins, Student)

15. Student did not provide consent for Hamilton-Wenham to send referrals to Elan and Hyde, so the district sent blind referrals. Hyde determined that their program was inappropriate for Student because of his age and Elan found Student to be very appropriate for their program. The Elan School has students through age 22. It is a therapeutic program. Its students are non-compliant young adults. There are 160 students and the average class size is 10. Classes are taught by certified teaches and the program is approved by the Commonwealth of Massachusetts. The school provides behavior supports through a level system. It offers both advanced and remedial courses. There is small group counseling provided and individual counseling is provided when needed. Eighty percent of Elan students go to college. Ms. Frontierro thinks Elan is an appropriate placement for Student if he will invest in the program and attend. (Frontierro)

16. In a letter dated September 19, 2006, Ms. Collins responded to Student regarding another request from Parents that Hamilton-Wenham re-consider their decision not to fund Student’s placement at OPI. She explained that she had directly confirmed that OPI is not a school and that they offer no academic classes. She reiterated the options that were open for him. She enclosed information and an application for the Elan School and confirmed the district’s willingness to immediately fund his residential placement there. She informed Student that the district was willing to consider any other options that Student may propose and offered to provide interim individualized academic instruction. She welcomed Student to contact her. Student did not contact Ms. Collins. (Collins, Student)

17. Ms. Frontierro sent Student a letter dated January 8, 2007, in which she outlined the options the district was currently offering to him. The district agreed to fund a placement at Beacon High School on the condition that Student comply with the terms that Beacon required and is accepted by Beacon. Alternatively, the district remained willing to fund Student’s placement as a residential Student at the Elan School in Maine. Student continued to have the option of enrolling in classes at North Shore Community College and weekly therapy as proposed in the most recent IEP, applying for a placement in Job Corps or enrolling in the GED program at North Shore Community College. (S-10) Student never contacted Ms. Frontierro as he had his mind set on other things. (Student)

18. Ms. Frontierro has been involved in four BSEA hearings pertaining to Student in which the Parents/Student have never prevailed. She finds it time consuming for the district to continue to try to reach out to Student and propose programs. It has felt like harassment to her at times due to Parents’ constant requests for meetings, mediations, and independent evaluations. She has found it difficult to engage Student in his education because he will not do things that he does not want to do. (Frontierro)

19. Mother testified that Hamilton-Wenham should fund Student’s placement at OPI because he really wants to go there and would feel good about himself. She explained that Student does not act out and wants to be in a program with students who want to be there that does not use restraints. She stated that OPI has a strong transitional program and can help to provide him with work skills. Additionally, she thought the extra-curricular programs would motivate him. She does not think that the Elan School is appropriate because she knows students who went there and were not successful and she does not think the students there are Student’s age. She wants Student to be allowed to go to a program where he wants to be. She stated that he was always told to go to programs were he did not want to go and OPI can provide everything that he is looking for. Neither Mother nor Student ever visited the OPI program or the Elan School. Additionally, Student did not go to visit Beacon High School or the Arlington School when Mother visited the programs. (Mother)

20. Student testified that he wants to be at a school where all the students want to be there and “the energy is positive.” OPI is not a school, but he has tried schools and what he needs is a place that can help him stay in school. At OPI they would help him to stay in community college which is “obviously something that he cannot do alone.” He thinks he needs a structured environment where he is obligated to come home early and go to sleep at a reasonable hour and is encouraged to wake up and assisted to attend school. After he comes home he can have counseling and group discussions. He needs help being responsible and not going out and hanging out with his friends all the time. If he is at OPI he will be required to be in at a reasonable hour. He would not be allowed to stay at OPI if he did not follow the rules. He has not attended any school full time for several years. He will not stay at any residential school that he does not want to be at. He cannot progress at a place where he is not content. He feels that he should only attend a program where he wants to go. Even though he has refused to attend programs and follow the rules for several years, he will attend school and follow the rules if he is able to go to OPI. Student indicated that he was not provided with assistance in accessing services at North Shore Community College, but he and Mother acknowledged that Hamilton-Wenham offered him transportation, counseling with his choice of private counselors, tutoring with the Commonwealth Learning Center, and a schedule delineating where and when his services would take place. (Student, Mother) Student denied a history of substance abuse. (Student)

21. Mother testified that Student has never been allowed to go to an appropriate program. She reported that he was unable to access the services at North Shore Community College because he could not do the work. She acknowledges that she is asking for Student to be placed in a program that is not a school, but argues that Student should be allowed to go to a program where he wants to be. (Mother)

FINDINGS AND CONCLUSIONS:

Student is an individual with a disability, falling within the purview of the Individuals with Disabilities Education Act (IDEA)4 and the state special education statute.5 As such, he is entitled to a free appropriate public education (FAPE). Neither his status nor his entitlement is in dispute. Under the FAPE standard, the IEP proposed by the school district must offer the student a free appropriate public education that meets state educational standards. This education must be offered in the least restrictive environment appropriate to meet the student’s individual needs.6 Federal law also requires that the student be able to fully participate in the general curriculum to the maximum extent possible. 20 USC § 1415(d)(1)(A)(iii); 34 CFR 300.347(a)(2)(I) and (a)(3)(ii); 64 Fed. Reg. No. 48, page 12595, column 1; See also, In Re: Worcester Public Schools, BSEA # 00-1912, 6 MSER 194 (2000).

As discussed in In re: Gill-Montague Public Schools District , BSEA # 02-1776 “the Massachusetts statute defines FAPE as ‘special education and related services as consistent with the provisions set forth in 20 U.S.C. 1400 et seq. [the IDEA], its accompanying regulations, and which meet the education standards established by statute or established by regulations promulgated by the board of education,’”7 including the Massachusetts state curriculum frameworks.8 The IDEA in turn defines FAPE as “special education and related services that:
(A) have been provided at public expense, under public supervision and direction, and without charge;

(B) meet the standards of the State educational agency;

(C) include an appropriate preschool, elementary, or secondary school education

in the State involved; and

(D) are provided in conformity with the individualized education program required under section 614 (d).”9

As stated by federal courts, the LEA is responsible to offer students meaningful access to an education through an IEP that provides “significant learning” and confers “meaningful benefit” to the student,10 through “personalized instruction with sufficient support services ….”11 The requirements of the law assure the student access to a public education rather than an education that maximizes the student’s individual potential. Lenn v. Portland School Committee , 998 F.2d 1083 (1 st Cir. 1993); GD v. Westmoreland School District , 930 F.2d 942 (1 st Cir. 1991).

The First Circuit Court of Appeals interpreted minimally acceptable standards of educational progress requiring that the IEP yield “effective results” and “demonstrable improvement” in the “various educational and personal skills identified as special needs,”12 in the context of the potential of the particular student.13

Similarly, the Massachusetts special education statute defines “special education” to mean “educational programs and assignments . . . designed to develop the educational potential of children with disabilities . . .” which permit a student to make meaningful educational progress.14 MGL c. 71B § 1, the special education statute in Massachusetts, requires that eligible students receive special education services designed to develop the student’s individual educational potential”15 consistent with the interpretation provided by other courts. The IEP is the road map that defines the services to be offered and the measurable goals embodied therein determine whether the student has made educational progress.16 See also , In Re: Arlington Public Schools , BSEA # 02-1327, issued on July 23, 2002.

In the instant case, there is no genuine dispute regarding Student’s areas of need. The dispute centers on the appropriate placement for Student. Hamilton-Wenham has offered to place Student in an approved out-of-state therapeutic residential school, the Elan School. Conversely, Student has requested that Hamilton-Wenham place him in an out-of-state, unapproved, non-educational program. He argues that Hamilton-Wenham has failed to provide him with an appropriate education for several years and that it has instead tried to force him to attend programs that he did not wish to attend. He argues that he should be able to attend the OPI because the placement will provide him with all of the services he requires and he is motivated to attend and succeed there. He and Mother believe that he should be able to go to a placement that he wants to go to. He claims that he was unable to succeed at the previously offered placement at North Shore Community College because he requires assistance in knowing when to come home and go to bed at night and waking up and getting ready for school in the morning. He claims that he has tried to attend schools in the past and has been unsuccessful, so the district should now fund his placement at a program other than a school that can offer him help in becoming successful. Student’s arguments are unpersuasive.

First and foremost, Hamilton-Wenham may not consider placing Student in an unapproved program (even if it were in fact a school) without first determining that there was no appropriate approved program available to meet Student’s needs. “When an approved program is available to provide the services on the IEP, the district shall make such placement in the approved program in preference to any program not approved by the Department” 603 CMR 28.06(3)(d). Hamilton-Wenham has identified the Elan School, an approved school that can meet all of Student’s needs as outlined by his IEP. The proposed Elan School placement is completely in keeping with the recommendations made by the evaluators chosen by Parents, Dr. Doolin and Dr. Schultz. These evaluators recommended that if Student did not or could not take advantage of the services offered to him, then consideration should be given to enrolling him in a “self-contained therapeutic program that may be better able to provide a coordinate [sic] menu of services to him.” See P-68 (pgs. 40-53). Neither party presented a great deal of evidence about the Elan School. Mother and Student presented no information to show that the school was inappropriate for Student. Neither Mother nor Student ever visited the program and neither had any direct knowledge about it. Mother testified that Student knew somebody who had gone there and been unsuccessful. However, she did not provide any information about said person’s profile or provide any credible testimony as to why the program would not be appropriate for Student.

Ms. Frontierro testified that Elan students are as old as 22 years old. The Elan program is therapeutic and is for non-compliant students. Classes are small and taught by certified teachers. It is approved by the Commonwealth of Massachusetts. Students receive behavior supports and are on a level system. There is small group and individual counseling provided. Most of the students attend college. The program has the elements that Dr. Doolin and Dr. Shultz recommended for Student in their report. Student, by his own admission, would benefit from behavior supports. He testified that he needs to be told when to come home and go to bed and requires assistance getting up and getting to school. A residential and therapeutic school can assist him in getting to school. His profile and history as well as his testimony suggests he requires and would benefit from ongoing group and individual counseling.

Student testified that he will not go to a placement that he does not want to attend. Unfortunately, that may mean that Student refuses to access the Elan School even though it can provide him with the educational and therapeutic services he requires. He testified that he would be motivated to attend OPI because he recognizes that it may be the last chance that he has to receive an education. The hearing officer in the November 2004 decision cautioned Student that attending the Harbor School placement “may be his last opportunity to build a better future for himself.” Now, two and a half years later, Student continues to refuse to access appropriate services that are offered to him. This truly may be his last opportunity to receive an appropriate education as he is now twenty years old, has earned only three high school credits and will remain eligible for special education services for only two more years. Although Student believes that only OPI can provide him with the services he requires, a belief not supported by a scintilla of expert evidence, OPI is not an option for him. Hamilton-Wenham is legally precluded from providing public funds for a placement that is neither approved by the Commonwealth of Massachusetts nor an educational program.

Hamilton-Wenham has asked that I enter a finding that by pursuing this hearing seeking a placement at an out-of-state, unapproved, non-educational placement Parent and Student have pursued a frivolous claim. I decline to make such a finding for the following reasons. First, Mother sent a letter to the previous hearing officer requesting clarification of the law pertaining to frivolous claims and the award of attorneys’ fees. There is no written response in the record. Therefore, I have no way of assessing whether Mother and Student, pro se parties, understood the legal concept of a frivolous claim or the risk of pursuing one. Secondly, the district failed to show that Student and Parents’ request for hearing “was presented for any improper purpose, such as to harass, to cause unnecessary delay, or to needlessly increase the cost of litigation” as required by 20 USC § 1415(i)(3)(B)(III).

ORDER

Based upon the foregoing, I enter the following Orders.

1. Hamilton-Wenham’s proposed placement of Student at the Elan School is reasonably calculated to provide Student with a free appropriate public education in the least restrictive environment.

2. The Team shall convene to draft an IEP for the Elan School, as the most recently proposed and rejected IEP offered Student placement at the North Shore Community College.

3. Drafting the IEP for the Elan School and offering Student placement there for this IEP period shall end Hamilton-Wenham’s obligation for the current IEP period whether or not Student avails himself of the program.

By the Hearing Officer,

____________________________________

Catherine M. Putney-Yaceshyn

Dated: March 27, 2007


1

P-71 is an excerpt from a BSEA decision. The decision in its entirety will be substituted for the excerpt.


2

Beacon’s conditions were that Student re-engage in therapy and take two classes or take one class and get a part-time job and be subject to random drug screenings.


3

Hamilton-Wenham allowed Mother to select the evaluator. (Frontierro)


4

20 USC 1400 et seq .


5

MGL c. 71B.


6

20 USC 1412(5)(A)


7

MGL c. 71B, §1.


8

See the Mass. Department of Education’s Administrative Advisory SPED 2002-1: Guidance on the change in special education standard of service from “maximum possible development” to “free appropriate public education” (“FAPE”), Effective January 1, 2002 (hereafter Mass . FAPE Advisory ), 7 MSER Quarterly Reports 1 (2001).


9

33 USC 1401(8). The federal regulations adopted pursuant to the IDEA include a similar definition of FAPE. 34 CFR 300.13.


10

For a discussion of FAPE see Hendrick Hudson Bd. Of Education v. Rowley , 458 U.S. 176, 188-189 (1992); Cedar Rapids Community School District v. Garret F., 526 U.S. 66 (1999); Burlington v. Department of Educatio n , 736 F. 2d 773 (1 st Cir. 1984). Houston Independent School District v. Bobby R ., 200 F.3d 341 (5 th Cir. 2000); Stockton by Stockton v. Barbour County Bd. of Educ., 25 IDELR 1076 (4 th Cir. 1997); MC v. Central Regional School District , 81 F.3d 389 (3 rd Cir. 1996), cert. denied 519 US 866 (1966); Ridgewood Board of Education v. NE , 30 IDELR 41 (3 rd Cir. 1999). See also GD v. Westmoreland School District , 930 F.3d 942 (1 st Cir. 1991).


11

Board of Education of Hendrick Hudson Central School District v. Rowley, 458 U.S. 176, 203, 102 S.Ct. 3034, 3049 (1982).


12

Lenn v. Portland School Committee , 998 F.2d 1083 (1 st Cir. 1993) (program must be “reasonably calculated to provide ‘effective results’ and ‘demonstrable improvement’ in the various ‘educational and personal skills identified as special needs’”); Roland v. Concord School Committee , 910 F.2d 983 (1 st Cir. 1990); Burlington v. Department of Education , 736 F.2d 773, 788 (1 st Cir. 1984).


13

Houston Independent School District v. Bobby R ., 200 F.3d 341 (5 th Cir. 2000) (a disabled child’s development must be measured with respect to the individual student, not by his relation to the rest of the class, as declining percentile scores may represent the student’s inability to maintain the same level of academic progress achieved by regular peers and not necessarily a lack of educational benefit); Ridgewood Board of Education v. NE , 172 F.3d 238 (3 rd Cir. 1999); MC v. Central Regional School District , 81 F.3d 389 (3 rd Cir. 1996), cert. denied 519 US 866 (1996); Roland v. Concord School Committee , 910 F.2d 983 (1 st Cir. 1990); Kevin T. v. Elmhurst , 36 IDELR 153 (N.D. Ill. 2002).


14

The Massachusetts Department of Education (DOE) stated that the “FAPE standard . . . requires the school district to provide personalized instruction tailored to the student’s needs, with sufficient support services to permit the student to make meaningful educational progress .” Mass. FAPE Advisory (see footnote 8 above for full title and citation of Advisory) (emphasis supplied).


15

603 CMR 28.01(3). The Massachusetts Department of Education has also noted that the Massachusetts Education Reform Act “underscores the Commonwealth’s commitment to assist all students to reach their full educational potential.” Mass. FAPE Advisory (see footnote 8 above for full title and citation of the Advisory). M.G.L. c. 69, §1 states in part that a paramount goal of the commonwealth is “to provide a public education system of sufficient quality to extend to all children the opportunity to reach their full potential.”


16

County of San Diego v. California Special Educ. Hearing Office, 93 F.3d 1458 (9th Cir. 1996) (the correct standard for measuring educational benefit under the IDEA is whether the child makes progress toward the goals set forth in IEP and not just whether the placement is reasonably calculated to provide the student educational benefits.); Evans v. Board of Education of the Rhinebeck Central School District , 930 F.Supp. 83 (S.D. N.Y. 1996) (the IEP must include measurable criteria to assess the student’s progress).


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