Student v. Pittsfield Public Schools – BSEA #04-4760



<br /> Student v. Pittsfield Public Schools – BSEA #04-4760<br />

COMMONWEALTH OF MASSACHUSETTS

SPECIAL EDUCATION APPEALS

Student v. Pittsfield Public Schools BSEA #04-4760

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 July 12 and August 9, 2004 at the office of Catuogno Court Reporting, 446 Main Street, Worcester, Massachusetts, before Catherine M. Putney-Yaceshyn, Hearing Officer.

PROCEDURAL HISTORY

Parent requested an expedited hearing on May 14, 2004 and an expedited hearing was scheduled to proceed on June 1, 2004. Parent requested a postponement of the expedited hearing on May 24, 2004 and Hearing Officer Raymond Oliver allowed the request for postponement and scheduled a pre-hearing conference call on June 2, 2004. The School requested a postponement of the June 2, 2004 conference call and it was rescheduled for June 3, 2004. During the June 3, 2004, conference call the parties agreed to meet again within the next two weeks and submit a status update. On June 14, 2004, the Parent requested that the hearing be rescheduled and it was scheduled for June 25, 2004. The School requested a postponement of the June 25, 2004 date because its attorney was scheduled to be in court on another matter. There was a telephone conference call on June 22, 2004 and the Hearing was scheduled to proceed on July 12, 2004. On July 7, 2004 the case was reassigned to hearing officer Catherine Putney-Yaceshyn. The hearing proceeded on July 12, 2004 and August 9, 2004. The hearing officer granted the parties’ request to submit written closing arguments and both parties submitted them on August 23, 2004. The record closed at that time.

Those present for all or part of the Hearing were:

Mother

Student

Student’s Grandmother

Kit Foster Mother’s friend

James A. Shiminski Title I Director, Pittsfield Public Schools

Stephanie Case Supervisor of Special Education, Pittsfield Public Schools

Colleen Rossi Principal, Reid Middle School

Mary Jean O’Reilly School Psychologist, Pittsfield Public Schools

Michael Meyer Director of Special Education, Pittsfield Public Schools

Susan Steele Tutor

Fernand Dupere Attorney for Pittsfield Public Schools

Catherine M. Putney-Yaceshyn Hearing Officer

The official record of this hearing consists of Parent’s exhibits marked P-A through P-GG, Pittsfield’s exhibits marked S-1 through S-13 and approximately 10 hours of recorded oral testimony.

ISSUES

1. Whether Student is eligible to receive special education services.

2. Whether Pittsfield committed procedural errors in making its determination that Student is not eligible for special education services.

3. Whether Student was unlawfully excluded from school during the 2002-2003 and 2003-2004 school years.

4. Whether Student is entitled to compensatory education services.

SUMMARY OF THE EVIDENCE

1. The student (hereinafter, “Student”) is sixteen years old and recently completed her eighth grade year in Pittsfield, Massachusetts, within the Pittsfield Public School District (hereafter, Pittsfield). She has a full scale IQ of 96. (P-C, S-8) She received special education services during the second and third grade and stopped receiving special education in fourth grade. An independent evaluator determined that she had a learning disability in math and a “more mild” disability affecting word decoding and spelling. (P-C, S-8) She has been diagnosed with Oppositional Defiant Disorder. (P-C, S-7)

2. Student received the following grades for the 2001-2002 school year (seventh grade).

Language arts F

Language arts literature B-

Science C+

Math D+

Social studies F
(P-B)

3. Student repeated the seventh grade during the 2002-2003 school year. (P-B) She was the subject of discipline on a number of occasions during the 2002-2003 school year. Prior to 10/4/02, the first dated entry in Student’s Discipline Summary, Student received one day of in-school suspension and 3 detentions for insubordination, being disruptive, leaving class without permission and skipping lunch detention. In October 2002, she received two one-day out-of-school suspensions for using inappropriate language and refusing to “get rid of gum.” She received a detention and a Saturday detention for disrupting class and failing to report to the office. In November 2002 Student received a two-day out-of-school suspension for “Insubordination. Chewing gum. Refused to throw it out.” She received a one-day out-of-school suspension for being “involved in the acquisition of a note that read I got a gun.” In December 2002, her discipline record contains 11 entries. She received two one-day in-school suspensions and two one-day out-of-school suspensions for offenses such as refusing to do work, creating a disturbance in class, being rude and disrespectful, skipping Saturday detention, and “rolling on the floor play fighting, throwing things in Mr. Murphy’s class.” She also received four detentions in December. (P-A)

In January 2003, Student’s Discipline Summary contains twelve entries including three detentions, six in-school-suspensions, three out-of-school suspensions, and three detentions. Her offenses included refusing to stop talking, getting out of her seat, chewing gum and refusing to dispose of it, refusing to do work, disrupting class, skipping Saturday detention, being argumentative, being late for class, coughing in a teacher’s face, refusing to stand for the pledge, and leaving the building. Notably, on January 28, 2003, pursuant to an out-of-school suspension, the entry read, “Extremely disruptive in class. [Student] refused to cooperate with teachers. Defiant and oppositional. This has been a chronic problem. Must return with a parent.” In February 2003, Student received one detention and one in-school suspension. In March 2003 she received three detentions, three out-of-school suspensions and one in-school suspension. In April 2003 she received two out-of-school suspensions, one for “continued violation of school rules and one for skipping Saturday detention. She received one in-school suspension for “the regular bad attitude—I give up!” (P-A)

4. On March 27, 2003, Mother requested a special education evaluation of Student. (P-H) Mother consented to the evaluation proposed by Pittsfield in the areas of reading and behavior on April 4, 2003. (S-K)

5. A behavior intervention plan (bip), dated 4/03, was written for Student. The record does not indicate who wrote the plan or how it was developed. The first page contains one goal, “[Student] will remain in class.” It lists three proposed interventions including: providing Student with one prompt to redirect her; allowing her to use a “In House Support room” to refocus and being given one prompt to redirect her while in that room; and sending her home when she is unable to use the support room. The second page contains three goals: honoring teachers’ requests; participating in class; being on time for class. The proposed interventions include “teacher praise, positive comments on “reg” basis; daily check-ins, computer time, help teacher with different projects.” The plan contains blank spaces for meeting participants to sign which are unsigned. The record is unclear as to whether the plan was implemented. (P-H)

6. Mary Jean O’Reilly, Ph.D., evaluated Student and wrote a report dated June 3, 2003 and entitled “Confidential Psychological Report.” The report does not indicate the date (or dates) upon which Dr. O’Reilly evaluated Student. Dr. O’Reilly testified that it was her practice at that time to write the date of the Team meeting on the report. (O’Reilly) The report states that Student received special education support in reading during the second grade and by fourth grade was reading on grade level and was “dismissed from special education.” On the fourth grade MCAS, Student was at the proficient level in mathematics and the needs improvement level in English Language Arts. By the sixth grade, she scored at the needs improvement level in math, although her score was “slightly higher than the school and district average.” Dr. O’Reilly stated that a “Building Assistance Meeting” was held on January 24, 2003 because Student was failing all subjects except for language and theater and had been suspended and referred to the office several times. A behavioral intervention plan was “put into place.”

7. Dr. O’Reilly utilized the Behavior Assessment System for children (BASC), Student Interview, Teacher Interview, Records Review, reading subtests from the Wechsler Individual Achievement Test- Second Addition, and Comprehensive Test of Phonological Processing (CTOPP). She reported that Student presented as pleasant, respectful, and outgoing. She asked intelligent questions about the testing process, was cooperative and willing to work on the assessment tasks during each session. Dr. O’Reilly reported that on the BASC, Student’s teachers scored her in the “at risk” range in the areas of hyperactivity and aggression scales and on social and study skills. They reported “she often complains about rules, argues, talks back, and brags about getting into trouble.” She sometimes “teases, blames and bullies others and sometimes threatens to hurt others.” They reported that she “often rushes through her work and disrupts the work of others, often acts out without thinking and seeks attention while doing work.” Teachers reported difficulties with study skills including not taking careful notes, never working hard and not trying to make up missed assignments. Student rated herself in the “clinically significant” range on attitude to teachers and in the “at risk” range on attitude to school. She reported that she “hates school and feels it is a waste of time and boring.” She reported that her teachers are unfair and tend to look for the bad things that she does. During the “teacher interview,” Student’s teachers reported that she is a bright student who often does not participate or do classwork or homework. They believe she is able to work at grade level, but chooses not to do the work. They expressed frustration that she is failing classes, she passed the previous year and would like to find ways to motivate her to complete seventh grade successfully. Student reported that she is not motivated to repeat work that she already completed the prior year. She believes that being in the eighth grade would help to motivate her and she would be able to do the work.

8. Dr. O’Reilly reviewed Student’s records and noted that she has had frequent office discipline referrals during the seventh grade. Between October and April she was suspended for 13.5 days and had a total of 53 office referrals mostly for talking in class, refusing to work or go to class, and being out of her seat. On the WIAT Student scored in the average range on each sub-test. On the C-Topp, Student scored in the average or above average range on all subtests except for blending words. On blending words, her standard score was 5 as was her percentile ranking.

9. Dr. O’Reilly concluded that Student has the ability to read and do grade level material, but that “motivational issues possibly related to retention and consequent behavior problems have combined to seriously limit her overall achievement.” She recommended that the Team “carefully weigh the options for improving the situation” for Student. She recommended a behavioral contract be written between Student, Mother and next year’s teachers. She also recommended frequent home-school communication, meaningful reinforcement for classwork and homework completion and clear consequences for behaviors. She suggested that the plan focus on increasing motivation “with options for reinforcement that are meaningful to [Student] and should be monitored to see whether it is effective in reducing office referrals.”(S-11)

10. In May 2003, Student received three out-of-school suspensions (totaling five and a half days), five detentions, and one in-school suspension. Her offenses included being rude and disrespectful to teachers, refusing to work, “staring at a teacher trying to intimidate her”, roaming the halls, being disruptive and insubordinate in class. She skipped art class on May 15, 2003 and the discipline summary contained a notation, “Set up a behavior plan w/Mr. Sposato.” The record does not contain a behavior plan written by Mr. Sposato, nor any documentation showing any interventions made by Mr. Sposato.

11. Student’s classroom teachers completed “Regular Classroom Teacher Input Form[s] for IEP Meeting” dated May 9, 2003. Her social studies teacher noted, “I feel that as time goes by she has been losing ground.” She also wrote, “She needs counseling.” Her science teacher reported Student was failing because of serious behavior issues, not doing work, taking notes, or trying. She stated Student’s progress was poor because she does not do any work. She stated Student needs to control her behavior outbursts and must stop talking and getting out of her seat. Her language arts composition teacher reported Student is failing due to lack of effort. She wrote, “An alternative approach (due to behavior) might be in order.” Student’s language arts literature teacher reported Student was just barely passing and making poor progress. She stated that Student has the ability to do the work and does not need curriculum accommodations. She recommended “an alternative approach from the mainstream with much counseling” for Student. All of the aforementioned teachers rated Student’s ability to meet curriculum standards as excellent or good. They all rated her attention skills and class participation skills as fair to poor. They all rated her social relationships with groups, peers, and adults as fair to poor. Each teacher rated her attitude as poor. (S-13) Mr. Sposato’s “Special Education Assessment Form” states that Student would benefit from behavioral support. He notes that Student is currently failing the seventh grade for the second time and she needs to substantially increase the amount of work she has completed. (S-13)

12. On May 23, 2003, Jen Babis, LCSW, of Mental Health and Substance Abuse Services of the Berkshires, wrote a letter to Mother. The letter said, “This letter will verify that [Student] was seen and evaluated by both myself and Pat Creighton. She has been diagnosed with Oppositional Defiant Disorder.” (P-C) The record is unclear as to whether this letter was provided to the school.

13. The Team convened to review Student’s eligibility for special education on June 3, 2003. The Team found Student not eligible for special education and presented Mother with a “Narrative Description of School District Refusal To Act” dated June 3, 2003. The narrative states that the Team relied upon a reading assessment which showed Student is able to decode, read grade-appropriate words accurately from a list and answer literal and inferential comprehension questions based upon her silent reading of passages. Pittsfield reported that the Self BASC revealed Student was frustrated with her current status as a seventh grade student and her frustration created a situation in which she is in conflict with teachers and administrators. The report concluded that Student has the ability to read and understand grade level material and motivational issues related to her retention have impacted her performance. The Team recommended that a “behavioral contract” be generated in September containing clear expectations and consequences. The report states that Student responds well to one to one attention and will connect well to a supportive staff member. It states Student will continue to utilize the school adjustment counselor at Reid. The record contains no evidence that Student was ever assigned a supportive staff member to assist her or that she ever met with a school adjustment counselor. The document states that if Student attended school from June 4, 2003 through June 19, 2003 and attended English and Social Studies and one period with Chris Sposato and completed the assignments necessary to pass English and Social Studies she would be promoted to eighth grade. (P-H)

14. During the June 3, 2003 Team meeting, a “contract” was drafted. The document indicated that Student was failing seventh grade for the second time and the team had determined that she did not have a disability and did not require special education services. It stated, “”In order to provide [Student] with an opportunity to pass this year, an agreement was made between the school, [Student and Mother.] The agreement listed 9 “requirements” and stated Student must meet them in order to be promoted to the eighth grade. It was signed by Mother, Student, and school principal, Colleen Rossi. The conditions listed in the “contract” required Student to report to school for fourth period (social studies), lunch, and fifth period (English.) She was then to report to Mr. Sposato’s class with her homework for sixth and seventh period. If Mr. Sposato was not available during seventh period she was to report to Ms. Rogers’ class. If Student did not complete her work in social studies and English she would fail and be required to attend summer school. Student was expected to follow the school’s “regular code of conduct.” (P-H)

15. In June 2003, Student received two out of school suspensions for skipping Saturday detention, being uncooperative and refusing to leave the lunchroom when asked. (P-A)

16. Student’s received the following grades for the 2002-2003 school year (Student’s second seventh grade year).

Language arts composition F

Language arts literature D

Science F

Math F

Social studies F
(P-B)

17. Despite failing the seventh grade for the second time, Student was promoted to the eighth grade for the 2003-2004 school year. Student continued to receive numerous disciplinary referrals during the 2003-2004 school year. In September 2003, she received two detentions for walking out of class and refusing to work. She received an out of school suspension for making disrespectful remarks to Ms. Rossi. (P-A) In October she received 9 disciplinary referrals including two out-of-school suspensions, one in-school suspension, three Saturday detentions, and eight days at the Juvenile Resource Center. (P-A) Students who have suspensions of three days or more are assigned to the Juvenile Resource Center (hereinafter, JRC.) It is a program run by the school in conjunction with the sheriff’s department. Students are provided with all of their classroom work. It is an extension of the school system so that the students are not missing school. They have their books and classroom assignments and there are tutors who work individually or in small groups with students to complete their classroom work. Student was assigned to the JRC several times. Ms. Rossi testified that there were times that Student did reasonably well at the JRC, except she refused to complete social studies assignments. Toward the end of the spring, there were days that she did not show up. The last day that she was there, Student sat in front of a corrections officer for the entire day without doing any work. The JRC is located in an old jail building. People entering the building need to be buzzed in by electronic lock. Sally Wheeler, an employee of the sheriff’s department, is the director of the JRC program. Ms. Rossi testified that Pittsfield does not consider removal to the JRC to be a suspension because the program is considered part of their school program1 . (Rossi)

18. Timothy Whelan, Ph.D., conducted a neuropsychological evaluation of Student on October 27, 20032 . He recited Student’s educational history as follows. Student was diagnosed with dyslexia in first grade and received special education in first and second grade. She has not received special education services since that time. Student began struggling academically in the sixth grade and performed “terribly” in the seventh grade. She repeated the seventh grade and failed again. She was promoted to eighth grade despite failing seventh grade twice. Student’s “behavior disorder” emerged during the seventh grade. Student’s Mother suspects that a learning disability is causing Student to act out. He noted that Student does not display behavior difficulties in extracurricular activities or in her work environment. Student attributed her school difficulties to the fact that her vision is very poor (20/800, 20/600) and she does not wear her eyeglasses.

Dr. Whelan described Student’s affect as “sullen and eye contact was minimal.” She answered “don’t know” to every question he asked regarding the reasons for her evaluation and her circumstances at school. During testing Student was “exceptionally quick to discontinue effort, constantly repetitively asking why she had to do each task and complaining that they were stupid.” He noted that “she was both surly in her demeanor as well as genuinely and remarkably lacking in understanding of her situation as well as her impact on others.” He stated that “her low motivation and swift disengagement from challenging materials makes it difficult to be confident that scores reported below represent her real capacity as opposed to being a good reflection of her current functioning even with the encouragement, structure, and redirection afforded in the one-to-one context.”

Student’s overall level of intellectual functioning was assessed in the average range with a full scale IQ of 96. Dr. Whelan did not report Student’s verbal and performance IQ scores. He reported that all individual subtest scores were within 1 standard deviation of the norm except the Digit Span which showed a “peak” at the 91 st percentile and an “outlier” at the first percentile on Comprehension. He noted that comprehension of individual spoken words was measured at the 14.5-year level and she showed a “particular paucity of understanding of general social rules and conventions.” In assessing Student’s executive functioning he noted Student tended to work a bit slowly on symbol substitution tests. He also noted that when an attentionally demanding visual search task appeared to be very easy, Student worked too quickly and inaccurately. She was able to perform the same type of task with more challenging stimuli with normal speed and accuracy.

On tests of memory he noted that both story memory and verbal list learning were at the fifth percentile. Student scored in the high average range on sentence repetition, letter/number span, and design memory. He noted that Student remembered more of the stories after a delay than immediately, which lead him to question the validity of that score.

Dr. Whelan assessed Student’s word decoding skills at the 6.3 grade level (Student was in the eighth grade, having failed the seventh grade twice.) Reading fluency and passage comprehension were assessed at an 8.9 grade equivalency. Spelling was at a 5.3 grade equivalency. Student’s math calculations was at 3.8 grade equivalency and solving simple problems was at a 5.4 grade level. Applied math problems were at a 6.4 grade equivalency.

In the area of sensory, motor and psychomotor functioning, Dr. Whelan noted that Student completed the Rey Complex Figure in an “overtly impulsive manner, with resulting distortion and sparse retention unless multiple choice options were available to cue her.”

19. Dr. Whelan concluded that Student is a child of normal intellect who has “some degree of genuine difficulty with aspects of the language arts.” He referenced Student’s recent school psychological evaluation which reviewed her history of reading problems. He indicated that the school’s report contained scores as low as the fifth percent in blending words and indicated difficulties in word reading and decoding. He stated that Student’s behavior at school is “decidedly problematic, and would be consistent with an Oppositional Defiant Disorder.” He expressed concern that relationships “may be so conflictual at this point that she will need placement in an alternative program in order to reestablish motivation.” He stated that he was “impressed by what seems to be a remarkable lack of insight into her situation and an inability to take a step back and manage situations in a different way, and it may be that there is cause for counseling to assist her in that way.” (P-C; S-8)

20. In November 2003 Student received four detentions, one in school detention and a five day out-of-school suspension for insubordination and “total disregard for teacher authority in the in school suspension room.” In December 2003 Student received five detentions (including one Saturday detention) one out-of school violation, and she was placed at the JRC for three days. The disciplinary actions resulted from refusing to do work, leaving without permission, being unprepared for class, continual detention, “speaking out to get others attention, foul mood.”

21. Sally Wheeler, the director of the JRC, wrote an e-mail dated November 6, 2003 about what she has noticed in working with Student during a total of eight days suspension spent at the JRC. Ms. Wheeler stated that Student’s behavior and social interaction was good both times that she was there. She reported, “when she is in a structured, quiet program she seems to do well.” She stated Student “needs to have herself heard when a problem arises. When she is given that opportunity she seems to respond well, when she doesn’t get to be heard she goes the other way.” She stated that Student likes to be treated fairly, calmly, and respectfully. She reported Student does not feel that she is treated fairly in her social studies class and feels the teacher targets her. She stated that Student has consequently “dug in her heels” because she feels “mistreated.” She described how she has spoken at length to Student about those issues. She recommended that Student should have a mentor in her school building. She stated Student is “extremely likeable and likes to be able to make adult contact to reassure her that she is ‘valuable’ and liked.” She reported that she was planning on meeting with student twice a month to “check in” with her and suggested that someone in her school be available to “reinforce her good decisions.” (P-V) There is no evidence in the record that Ms. Wheeler’s recommendations were discussed or implemented.

22. In January 2004, Student was assigned to the JRC for three days for leaving school without permission and “cutting class.” She received three detentions including a Saturday detention for disrupting the class, shouting a curse in the hall, and refusing to take a quiz. She was sent to the JRC for a second three day period for being uncooperative during an in-school suspension.

23. Student’s teachers wrote “Educational Assessments” dated January 6, 20043 . Mr. Gilbert reported that Student’s attitude does not lead to success and “she does as she wishes and has been allowed to from grade to grade.” He wrote that she needs a “very structured environment.” He reported that her behavior is a strong factor in her lack of educational success. Ms. Bates reported that Student’s attitude seems to be preventing her from staying on task. She reported that Student does too much socializing and is “not able to stay in her seat…. I don’t know if she can sit for a period of time; I’m not sure if she has the ability to focus for a long period of time either.” She reported Student is easily distracted and has a very quick temper that is aimed mostly toward adults. She stated that Student is very sweet at times, but not for very long. Ms. Casucci reported that Student is very strong willed and does not always make choices in her best educational interest. Ms. Shepardson wrote “She is very capable academically but her difficulties outside of my sphere limit the time she spends in my class so her grades suffer.” Ms. Voltaire wrote that although Student has problems in other areas of school, she is attentive and focused in her classroom. She reported that due to her behavior problems in school, Student has missed classes and received zeros on many assignments. She believes that with the proper guidance to help monitor Student’s behavior, she should do well in her classes. (P-P)

24. On January 16, 2004, Dr. Whelan sent a letter to Mother “to clarify thoughts regarding my neuropsychological report for your daughter.” His impression was that Student “did show evidence of a learning disability in math, and that there was a more mild disability affecting word decoding and spelling.” He explained his meaning of “alternative placement” as a program for students who “have simply been unable to adjust to the standard classroom environment expectations for behavior, especially when relationships between the student and the teachers and administrators responsible for discipline have greatly degraded to a point of continual polarized conflict.” He stated that such students may benefit from a program which is more individualized, often simultaneously structured and informal. (P-C; S-9)

25. The Team convened to review Dr. Whelan’s report on January 13, 2004. Mother had sent a letter dated December 29, 2003, requesting that Student’s social studies teacher, Don Gilbert, not attend the meeting because she believed he would have a negative impact on the meeting. Despite Mother’s request, Mr. Gilbert attended the meeting and was the only regular education teacher present. Others present at the Team meeting included Mother, Student, the principal, the school psychologist, a guidance counselor and a behavior interventionist. (S-6) The Team meeting notes indicate that Mother requested that Student be placed in a different social studies class and that Ms. Rossi decided that Student would not be placed in a different class. The notes indicate that the Team was struggling with determining eligibility and interpretation of the independent evaluation. The Team meeting notes indicate that the Team reviewed the criteria for an emotional impairment. The Team agreed that Student “displays inappropriate behaviors/feelings under normal conditions.” However, they found that Student did not meet the criteria because her inappropriate behaviors and feelings arise only “in some settings.” The Team noted that there was “lots of documentation to support trouble” with the aforementioned criterion, but stated that her behaviors are “situational and in some settings only.” (P-H)

Dr. O’Reilly testified that she was reluctant to find that Student had an emotional impairment because Student’s behavior in only inappropriate in particular situations at school. She said that Student does not have behavioral difficulties at home or at her job. She testified that she was very concerned about how Student’s motivational issues impacted her. (O’Reilly)

The Team requested that Mother sign a release to allow the Team to discuss Dr. Whelan’s assessment and recommendations and agreed to reconvene. Ms. Voight was to observe Student and develop some interventions to assist Student in social studies and work with Student to pass seventh grade and move on to eighth grade. Mother requested that Student’s language arts composition teacher and science teacher be present when the Team reconvened to provide input. (S-6)

26. The Team reconvened on January 21, 2004. Attendees included a special education teacher, the principal, Mother, Student, a guidance counselor, a behavior interventionist, and the director of special education. There was no regular education teacher in attendance and none of Student’s teachers attended the meeting. The Team determined that Student did not meet the criteria for having an emotional impairment. A behavior plan drafted by Ms. Voight was presented. Mother raised concern that Student had been on behavior plans in the past and they had not proven effective. Mother was also concerned that Student’s conflict with Mr. Gilbert had lead to the high degree of Student’s absenteeism and disciplinary actions that year. The Team determined that there was a significant discrepancy between Student’s IQ and her math calculation score, but did not believe that she required specialized instruction. The Team identified specific learning disabilities in the areas of math, decoding, and spelling. It then determined that Student is making effective progress in the general education program. The Team recommended a 504 plan in the general education classroom. They discussed Student’s issues regarding math, decoding, spelling and behavioral issues and decided to develop a 504 plan and attach a behavior plan to it. They discussed Student’s math ability and determined there are “pieces missing.” The Team determined that she could add, subtract, multiply, and divide and found word problems difficult and her homework was sporadic. They determined that her “ability seems decent.” There was no math teacher present at the Team meeting. (S-6, S-7)

27. The Narrative Description of School District Proposal reiterated some of the above. It stated that the Team concluded Student did not require the level of supports that the Hibbard Alternative School provides. It stated an “alternative setting will be provided within the building in the event that [Student] is having difficulty in class.” Mother suggested placement in a private school and the district believed that the proposed 504 plan and behavior plan would meet Student’s needs. The narrative stated that teacher reports indicated Student was able to complete grade level assignments, but was receiving low grades due to skipping class, disrupting others in class, refusing to complete work, attendance and effort factors. They determined that Student worked well in the classroom. The narrative indicated that school staff would meet with Student and Mother in three to four weeks to evaluate the plan and modify it as needed. (S-7)

28. The 504 plan proposed by the Team consisted of a list of accommodations with boxes next to them to be checked by the Team. The boxes checked for Student were: “seating student near the teacher; seating student near a positive role model; increasing the distance between desks (math); writing key points on the board; providing visual aides; peer note taker (or teacher notes); making sure directions are understood; breaking longer presentations into shorter segments; teaching through multi-sensory modes; signal (nonverbal); giving extra time to complete tasks; simplifying complex directions; providing study skills training/leaning strategies (crisis); shortening assignments; breaking work into smaller segments; notebook, teacher notes (or student); untimed tests; after school help (homework club); contracting with the student (social studies); in-servicing teachers on child’s handicap.” (S-7)

29. Michael Meyer testified that he was the Director of Special Education for Pittsfield Public Schools until July 31, 2004. He testified that prior to attending Student’s Team meeting he reviewed her file and was aware that she had been found not eligible for special education at a previous meeting. He testified that it was his understanding that Student was able to do her work based upon reports of her teachers. He acknowledged that an independent evaluator had diagnosed her with a math disability, but he was not sure that the results were valid. He testified that Student only had behavior problems in some of her classrooms at school. He testified that he believes Student’s motivational issues are causing her difficulty in school. He believes that she can complete grade level assignments without special education services. He testified that he believes that ongoing counseling would benefit Student. He stated that she has difficulty with adult relationships and when she feels she is being treated unfairly she will not comply. He also thought she would benefit from mediation with her teachers or assistance in minimizing conflict. He testified that based upon the information that he heard at the Team meeting he believes Student will be successful in high school.

Mr. Meyer testified that he continues to believe Student does not require special education services. He stated that she did not meet the criteria for having an emotional disability because her misconduct is “not consistent from setting to setting.” He stated that was the reason the Team made its fining of no eligibility. He testified that he wrote Student’s 504 plan and does not know what accommodations were implemented by Student’s teachers. He also stated that when services are not effective the 504 Team should reconvene and “tweak” the plan. (Meyer)

30. In February 2004 Student received an in-house suspension for refusing to throw away her gum and disturbing the class. She had four days of out of school suspension for insubordination to the vice-principal and continued violation of school rules and for telling a teacher she would not do her class work and calling the teacher a vulgar name. (S-2)

31. In March 2004 Student received two out of school suspensions and two in-school suspensions. She was sent to the JRC for seven days due to “extremely rude and crude remarks made in the classroom” and directed at a teacher. Officer Gary Traversa, the school resource officer, filed an application for a criminal complaint against Student on March 11, 2004. His report stated, “Principal Colleen Rossi informed me that [Student] had just caused a disturbance in teacher Donald Gilbert’s classroom and that she felt it would be appropriate to pursue legal action.” Officer Traversa requested a probable cause hearing based upon Mr. Gilbert’s written statement that Student caused a “school disturbance” by “unnecessarily interrupting the learning process of an entire classroom.” Mr. Gilbert’s statement indicated that Student had been sent to Jillian Voight’s room and left his classroom stating she was not going to Ms. Voight’s room. She then returned to his classroom and loudly made an inappropriate statement about Mr. Gilbert. Mr. Gilbert asked Student to leave again and Student ignored him and remained in her seat. Mr. Gilbert continued to request that she leave and she finally got up and left. (P-S) Ms. Rossi testified that filing a criminal complaint in such a situation is not a typical response, but that Student’s issues with Mr. Gilbert were long-standing and Mr. Gilbert felt extremely uncomfortable with Student. (Rossi)

32. The record contains an undated “behavior intervention plan” prepared by Ms. Voight. Ms. Rossi testified that the plan was prepared in the spring of 2004 in response to the difficulty Student was having in Mr. Gilbert’s social studies class. The plan’s reported purpose is to assist Student in “learn[ing] and practic[ing] new ways of reacting to school rules and structure, and to her teachers’ expectations.” There are five target goals and three interventions. The first intervention is that Student will be sent to “Room 2” if she causes a classroom disturbance for academic support. The second intervention is “[Student] will learn and practice appropriate responses to classroom discipline/rules.” It does not indicate how she will learn this or who will be responsible for teaching her. The third intervention is to provide Student with “access to seating close to teacher to help prevent peer based distractions.” The plan then states that if Student does not meet the requirements of her social studies teacher she will be sent to Room 2 to complete her work. The plan then lists reasons for office referrals from Room 2. The plan indicates that Ms. Voight would closely monitor Student’s progress. The record contains no evidence of any services provided to Student by Ms. Voight. The record also contains no evidence that the plan was reviewed or monitored as it indicates it would be within four weeks. (P-H) Ms. Rossi testified that Ms. Voight was the behavior specialist at Reid Middle School. She testified that Ms. Voight is certified in moderate special needs and does not have any behavior-related certification. Ms. Rossi reported that spring of 2004 was the first time that Ms. Voight was involved with Student and she had been on maternity leave during the earlier part of the year. (Rossi)

33. Ms. Rossi testified that at some point “toward the end of the year” Student was instructed to report to the library during sixth period social studies instead of Mr. Gilbert’s classroom. She stated that Student was given a list of topics to research independently which mirrored the topics the class was covering. She testified that she thought independent work was a good alternative for Student. She stated that the librarian was available to assist Student and she did not know whether the librarian was a certified teacher. Ms. Rossi reported that she was aware of Student only completing one assignment pursuant to that arrangement. (Rossi)

34. In April 2004 Student was suspended and out of school for 11. 5 days for swearing at the principal. She was initially sent to an in-house suspension and she refused to comply with the in-house supervisor’s requests. Later in the month she was suspended and out of school for 1.5 days for being uncooperative during in-school detention. In May 2004 Student received out-of-school suspension for a total of three days, received five detentions and was sent to the JRC for the remainder of the year at some time after being suspended on May 7, 20044 . (S-2, Rossi)

35. During the 2003-2004 school year (Student’s eighth grade) Student received the following final grades on her report card:
health-F

language arts composition-F

language arts literature-D

pre-algebra-F

science-F

social studies-F

(S-1; P-B)

36. On June 9, 2004, Colleen Rossi sent an e-mail message to Linda Porter and Sally Wheeler recommending that Student be assigned to the high school program at Hibbard for the 2004-2005 school year. The e-mail states that Student failed summer school the prior year even when provided a one-to-one tutor and that Student has refused the services of the behavioral intervention teacher. The e-mail also states that Student refuses to do any work and that Sally Wheeler “will not take [Student] in the summer JRC program” and is writing a letter to explain why Student would not be appropriate for that program. (S-5)

37. Ms. Rossi testified that Student had had an unusual number of disciplinary referrals. She stated that Student is extremely oppositional and she “wants to do what she wants when she wants.” She testified that she believes Student could do the work if she wanted, but she chooses not to do it. She testified that she believed Student should be placed at the district’s alternative school. She stated that the alternative school had been proposed for Student in the past, but when pressed, admitted that it had not been “formally” proposed. She could not point to any document that proposed placement at the alternative school. (Rossi)

38. Student testified that she found the work difficult at school and did not like the teachers. She stated that she sometimes understands the material presented in class, but when she does not understand she gets frustrated. She explained that even when she asks questions she does not always understand. She stated that when she gets frustrated, she sometimes “gets loud” and acts out. She stated that happened in math and when she acted out she would be kicked out of the classroom. She explained that sometimes she asks a teacher for help and still does not understand when it is explained to her. She stated that it would be helpful for her if she could “get help” when she needs it. She testified that she feels badly when she fails her classes and she would like to graduate from high school and attend college. She reported that she liked the JRC. She described the classroom there as having seven students and a tutor who was nice and would help her. She said that if she raised her hand the tutor helped her. She also said that they were given breaks. She did not like receiving out of school suspensions because she missed work and fell even further behind. When she returned to school after being suspended she would not know what was going on in class. She was sometimes forced to take tests even though she had been suspended when the class learned the material. She explained that she would like it if her teachers helped her to understand the work that she was doing. (Student) The Hearing Officer takes administrative notice that when she was questioning the Student she had to repeat several questions because the Student did not seem to understand them.

39. Dr. O’Reilly testified that it might be worth doing more assessment of Student’s motivational issues. She stated there was a clinical psychologist on staff who could complete such assessments. She also suggested that the Team go back and review the diagnosis of oppositional defiant disorder which she classified as a “new” diagnosis. However, both January Team meetings had access to information regarding her diagnosis. (P-H)

40. Mother testified that Student did not exhibit any behavioral difficulties in school until she repeated the seventh grade. However, her grades for her first seventh grade year were terrible. She testified that during her second seventh grade she did well for the first quarter, but when she learned she would have to repeat the entire year, her grades and behavior went down hill. Mother believes that Student’s learning disabilities cause her to struggle academically and she is reluctant to “look stupid”, so she acts out and gets kicked out of school. She testified that Student is out of school more often than she is in school and she is not learning. She testified that Student has not passed a class since the sixth grade. Mother testified that she has asked Pittsfield for Student to be assigned to meet with the guidance counselor or the school psychologist and it has not happened. (Mother)

FINDINGS AND CONCLUSIONS:

Eligibility/Procedural Errors

I find that Pittsfield erred in determining that Student is not eligible for special education. Student began exhibiting academic difficulties during her first seventh grade year, when she failed two classes and barely passed a third. (Mother) Her academic difficulties continued into the seventh grade at which time her behavior became a significant issue as well. (P-A, P-D, Mother, O’Reilly) The sheer number5 of disciplinary referrals received by a student with no history of discipline problems and a history of academic difficulty during the early part of the 2002-2003 school year should have triggered at least an evaluation by the school district. Despite Student’s academic difficulties and disciplinary issues, Pittsfield did not suggest an evaluation of any kind nor did it offer any assistance to Student. It was not until Mother requested a special education evaluation in March 2003 that Pittsfield took any action with respect to Student. Although the record indicates that a behavior intervention plan was written in April 2003, it does not indicate who drafted the plan or whether it was ever implemented. The plan apparently was not effective, as Student’s behavior difficulties continued even after the plan was drafted. Student continued to receive a significant number of discipline referrals after the plan was drafted. (P-A)

Although Pittsfield acted upon Mother’s request that Student receive a special education evaluation, its evaluation did not comply with 34 CFR 300.532(g). § 300.532(g) requires that “The child is assessed in all areas related to the suspected disability, including, if appropriate, health, vision, hearing, social and emotional status, general intelligence, academic performance, communicative status, and motor abilities.” Although Pittsfield requested permission to evaluate Student in the area of behavior, the record contains no evidence that they conducted any behavior evaluation. The narrative description of the Team meeting on June 3, 2003, contains no reference to any behavioral testing. (P-H) Ms. O’Reilly testified that she had been unaware of Student’s diagnosis of Oppositional Defiant Disorder and would have assessed that further if she had been aware of it. (O’Reilly) Student’s teachers had raised concerns about Student in their teacher input forms. (S-13) One teacher indicated Student needed counseling. Another stated she required “an alternative approach due to behavior.” A third teacher recommended “an alternative approach from the mainstream with much counseling.” Ms. Rossi testified that Pittsfield never did any projective testing of Student. (Rossi) The Team did not consider an alternative approach for Student despite her teachers’ recommendations. The Team did not recommend that Student receive counseling. Despite the concerns raised by teachers and Ms. O’Reilly regarding Student’s attitude, the Team did not consider whether Student might qualify as a disabled student under the emotional impairment criteria. Despite Student’s poor academic performance, the Team determined that Student “has the ability to read and understand grade level material.” It blamed Student’s motivational issues for her poor academic and behavioral performance, but made no recommendations to assist Student with her motivation. Although the Team’s narrative report states that Student responds well to one-to-one attention, it did not provide Student with any means to obtain one-to-one attention from any staff member. The Team also recommended that Student continue to “utilize the school adjustment counselor.” There was no evidence that Student ever met with the school adjustment counselor. In fact, Mother testified that Student did not meet with the school adjustment counselor. (Mother) I find that Pittsfield failed to assess Student sufficiently in the area of behavioral functioning and failed to even follow the recommendations made by the Team.

Student’s poor behavior and academic performance continued after the June Team meeting. Student again failed the seventh grade, yet was promoted to the eighth grade. (Mother, Rossi) She continued to fail the majority of her academic classes early in the eighth grade. (P-B, S-1) She also continued to amass disciplinary referrals. (P-A) It is telling that when Student was assigned to the JRC, a locked facility run by correctional workers and employees of the sheriff’s department, she initially did very well. Student testified that she liked the structure, small group, and availability of one-to-one assistance at the JRC. (Student) Ms. Wheeler, the director of the JRC, sent an e-mail communication to Pittsfield explaining that Student functioned well in a “structured, quiet program.” She also explained that Student needs to be heard when a problem arises and recommended that Student have a mentor in her school building. Ms. Wheeler reported that Student felt that her social studies teacher targets her. There is no indication in the record that anybody at Pittsfield considered Ms. Wheeler’s recommendations.

When the Team convened on January 16, 2004 to address Dr. Whalen’s evaluation it appears that they did not sufficiently consider all of the information available to them. Student’s teachers’ assessments contained recommendations that Student required a “very structured environment.” Ms. Wheeler had already noted that Student’s performance improved both academically and behaviorally, in the structured setting of the JRC. Ms. Bates raised concern about Student’s attitude and her inability to remain on task. She also noted Student’s quick temper aimed mostly at adults. Ms. Voltaire stated that Student’s behavior problems in school caused her to miss classes and lose credit on assignments. She recommended guidance to help monitor Student’s behavior. In addition to the concerns raised by Student’s teachers, Dr. Whalen’s evaluation echoed Ms. Babis’ diagnosis of oppositional defiant disorder. Ms. Rossi denied Mother’s request to reassign Student to a different social studies class due to Student’s consistent conflict with Mr. Gilbert. However, the Team did not consider whether some assistance could be provided to Student to assist her in developing a more appropriate rapport with Mr. Gilbert. Mr. Meyer testified that Student would benefit from mediation with her teachers or assistance in minimizing conflict. However, the Team never recommended any kind of assistance for Student and continued to require that she attend Mr. Gilbert’s class.

The most notable error made by the Team at the January 16, 2004 meeting was its finding that Student did not qualify as a student with an emotional impairment, based upon the application of a state regulation that was superseded by a new regulation in January 2001. The Team meeting notes and the testimony of Pittsfield staff show that the Team relied upon 603 CMR 28.104.0(b), part of the old Massachusetts 766 regulations, in making the determination that Student did not meet the criteria of a student with an emotional impairment. The Team meeting notes clearly show that the Team agreed that Student “displays inappropriate behaviors/feelings under normal conditions,” one of the criteria that would qualify Student as having an emotional impairment under the current regulation, 603 CMR 28.02(7)(f). Pittsfield erred by utilizing a requirement of the former regulation that the “behavior arise in more than one setting”6 and finding that because the behavior only arose in school and not the community or her home, Student did not meet the criteria. The current Massachusetts regulation which mirrors the language of the federal regulation reads in relevant part:

Emotional Impairment – As defined under federal law at 34 CFR § 300.7, the student exhibits one or more of the following characteristics over a long period of time and to a marked degree that adversely affects educational performance : an inability to learn that cannot be explained by intellectual, sensory, or health factors; an inability to build or maintain satisfactory interpersonal relationships with peers and teachers; inappropriate types of behavior or feelings under normal circumstances; a general pervasive mood of unhappiness or depression; or a tendency to develop physical symptoms or fears associated with personal or school problems. (Emphasis supplied.)

Current law does not require that Student’s behavior manifest itself in more than one setting. Once the Team determined that Student “displays inappropriate behaviors/feelings under normal conditions” its analysis should have ended with a finding that Student met the eligibility requirement. The information before the Team, including teacher assessments and her disciplinary record, clearly indicated that Student’s behavior adversely affected her educational performance. The behavior had taken place over a long period of time, specifically, for more than one year.

When the Team reconvened on January 21, 2004, there was not a regular education teacher present in contravention of 34 CFR § 300.344. Mother continued to raise concerns regarding Student’s conflict with Mr. Gilbert, and the Team continued to fail to address the concern. The Team again concluded that Student did not meet the criteria of having an emotional impairment. The Team determined that Student had a disability in the area of math, decoding, and spelling, yet determined that she did not require special education in order to make effective progress. (S-7) Despite Student’s history of having passed very few academic classes in almost two and a half years, the Team determined that her “ability seems decent.” They discussed Student’s math ability and decided that there were “pieces missing.” Without the input of Student’s math teacher, or any math teacher, the Team determined that a 504 plan would adequately address Student’s math disability. The 504 plan that was drafted by the Team was intended to address Student’s identified disabilities in the areas of math, decoding, and spelling. However, it contains strikingly minimal supports. (S-7) Additionally, there is no evidence that any of its modifications were ever implemented, as none of Student’s teaches testified at the hearing. Mr. Meyer, the Director of Special Education, testified that when services on a 504 plan are ineffective, the 504 Team should reconvene and “tweak” the plan. He also stated that he was unaware of whether Student’s teachers implemented the plan. It is unclear then how he would have known whether Student’s 504 plan required “tweaking.”

Based upon the information available at the January 21, 2004 Team, Student should have been found eligible for special education under both the emotional impairment and the specific learning disability standards. The Team agreed that she had specific learning disabilities, but determined that Student did not require specialized instruction to make effective progress. (S-7) The Team continued to insist that Student was able to complete grade level assignments despite her record of failing virtually every academic subject for over two years. (S-7, Rossi) Mr. Meyer testified at the hearing that he continued to believe Student was able to complete grade level work and was ready to learn high school level material despite never having passed the seventh or eighth grades. (Meyer) The record shows no reasonable basis for the Team’s insistence that Student does not require special education services for either her behavioral or academic difficulties.

I find that the Team was incorrect in its determination that Student is not eligible for special education and that she is eligible based upon her emotional impairment and specific identified learning disabilities.

Unlawful Exclusion

Parent has not provided sufficient evidence to make a determination as to whether Student was unlawfully excluded during the 2002-2003 school year. Although she did receive a large number of disciplinary referrals, I am unable to determine whether there was a specific time at which Pittsfield should have been on notice that Student may be eligible for special education services. The record contains a letter from Ms. Babis, regarding Student’s diagnosis of oppositional defiant disorder dated May 23, 2003 which was addressed to Mother, and the record does not show that it was provided to the Team prior to the June 2003 Team meeting. However, Dr. O’Reilly’s testing revealed significant areas of concern regarding Student’s attitude toward teachers and her motivation. The Team should have done further evaluation of those areas described as “serious concerns.” (O’Reilly)

At least by the 2003-2004 school year Pittsfield should have been aware that Student’s behavioral difficulties were the result of a disability. Student’s behavior continued to be problematic. Student continued to receive numerous disciplinary referrals which should have raised concern from Pittsfield staff. Additionally, Ms. Wheeler made recommendations in November for Student to be placed in a structured and quiet environment. Instead of making accommodations for Student or trying to determine what was causing Student’s behavioral and academic difficulties, Pittsfield staff continued to punish Student for her behavior and Student continued to get frustrated and fall behind academically. Given Student’s history of difficulty academically during both seventh grade years and behaviorally during her second seventh grade year and eighth grade year, and given Parent’s request for evaluation during the second seventh grade, Pittsfield should have suspected Student had a disability and further assessed her. During the 2003-2004 school year Student should have received the protections afforded under 34 CFR § 527.

§300.527 Protections for children not yet eligible for special education and related services.
(a) General. A child who has not been determined to be eligible for special education and related services under this part and who has engaged in behavior that violated any rule or code of conduct of the local educational agency, including any behavior described in §§300.520 or 300.521, may assert any of the protections provided for in this part if the LEA had knowl­edge (as determined in accordance with paragraph (b) of this section) that the child was a child with a disability before the behavior that precipitated the disciplinary action occurred.

(b) Basis of knowledge. An LEA must be deemed to have knowledge that a child is a child with a disability if –

(1) The parent of the child has expressed concern in writing (or orally if the parent does not know how to write or has a disability that prevents a written statement­) to personnel of the appropriate educational agency that the child is in need of special education and related services;

(2) The behavior or performance of the child demonstrates the need for these services, in accordance with §300.7;

(3) The parent of the child has requested an evaluation of the child pursuant to §§300.530-300.536; or

(4) The teacher of the child, or other personnel of the local educational agency, has expressed concern about the behavior or performance of the child to the director of special education of the agency or to other personnel in accordance with the agency’s established child find or special education referral system.

(c) Exception. A public agency would not be deemed to have knowledge under paragraph (b) of this section if, as a result of receiving the information specified in that paragraph, the agency—

(1) Either—

(i) Conducted an evaluation under §§300.530-300.536, and determined that the child was not a child with a disability under this part; or

(ii) Determined that an evaluation was not necessary; and

(2) Provided notice to the child’s parents of its determination under paragraph (c)(1) of this section, consistent with §300.503.

Although Student had been deemed ineligible for special education by the June 2003 Team, as stated above, the evaluation had not been completed in all areas of suspected need, and thus cannot be relied upon by Pittsfield. Student should have been afforded the same protections as special education students with respect to the discipline that she received during the 2003-2004 school year. Student was removed from school (either for out-of-school suspension or to the JRC) for a total of at least 56 days during the 2003-2004 school year7 which amounted to a change in placement without following the appropriate procedure.

§300.519 Change of placement for disciplinary removals.

For purposes of removals of a child with a disability from the child’s current educational placement under §§300.520-300.529, a change of placement occurs if—
(a) The removal is for more than 10 consecutive school days; or

(b) The child is subjected to a series of removals that constitute a pattern because they cumulate to more than 10 school days in a school year, and because of factors such as the length of each removal, the total amount of time the child is removed, and the proximity of the removals to one another.

(Authority: 20 U.S.C. 1415(k))

Pittsfield failed to follow the procedures required by §§300.519 –300.526 which resulted in Student’s being unlawfully excluded from school for a great number of days.

Compensatory Education

In addition to failing to find Student eligible for special education, the Team failed to propose any regular education accommodations that could have improved Student’s functioning. Despite the recommendation of Sally Wheeler, Student’s teachers, and Dr. Whalen that Student attend an alternative program, the district’s own alternative program was never presented to Mother as an option for Student. Although Ms. Rossi testified that the alternative program was presented to Mother and rejected, when pressed, she stated that it may not have been formally presented. (Rossi) The record contains no documentation that would indicate that the alternative program was presented as an option for Student. In fact, the January 21, 2004 Team specifically found that Student did not require the level of supports in place at the Hibbard Alternative School and determined that her placement in the mainstream remained appropriate and she could be provided an alternative setting within the building to use when she was having difficulty in class. There was no testimony or documentary evidence that Student was provided with an alternative setting within the building. The only testimony regarding Student being placed in an alternative setting was Ms. Rossi’s testimony regarding Student reporting to the library for independent research instead of going to Mr. Gilbert’s class. (Rossi) Although Ms. Rossi testified that she thought independent research was a good option for Student, there is nothing in the record to show that Student would benefit from independent study. In fact, Student was not even provided with a certified teacher to assist her in her independent study and was required to report to the attendance office if the library was unavailable. (Rossi) The placement in the library appears to have taken place after Mr. Gilbert filed a criminal complaint against Student and does not appear to have been done to assist Student educationally.

Ms. Rossi testified that it would have been helpful for Student to have been placed in a smaller during the past academic year. Mr. Meyer testified that on-going counseling would benefit Student. He acknowledged Student’s difficulty with adult relationships and refusal to comply with adult requests when she believed she was being treated unfairly. He stated that she may benefit from mediation with teachers or assistance with minimizing conflict. Dr. O’Reilly testified that the Team could take a second look at the oppositional defiant disorder diagnosis and determine what services could be put in place to address it. She also testified that Pittsfield could do additional clinical assessments to examine Student’s motivational issues. The testimony of these three Pittsfield witnesses regarding additional assistance that could have been provided to Student, but was not, is troubling. Each of these three witnesses was a member of Student’s Team at some time. Therefore, they were privy to teachers’ recommendations that Student required an alternative approach. They were aware of Student’s academic and behavioral difficulties. They were aware of Student’s failing grades. However, the recommendations they made at the hearing were not made or not followed by the Team. This leads me to conclude that Pittsfield is either unable or unwilling to address Student’s needs. Therefore, Student must be placed in a school outside of the Pittsfield Public Schools for the 2004-2005 school year. Parent did not present any evidence via testimony or exhibits regarding any out-of-district placement, so the Team will be required to locate a program for Student. Although Parent’s closing argument indicated that she would like for Student to be placed at the Winchendon School, she did not present any evidence regarding the Winchendon School during the hearing. Pittsfield is not precluded from considering placement at the Winchendon School, but I am unable to consider it, as it was not presented during the hearing8 .

ORDER:

The Team shall immediately convene to draft an IEP for Student that addresses her needs in the areas of math, decoding, spelling, and her emotional issues.

Additionally, Student requires a placement outside of the Pittsfield Public Schools because Pittsfield has shown that it is unable or unwilling to meet Student’s needs. Teacher reports indicate that Student requires a small structured setting with access to counseling. Student may require additional assessment to determine her current grade level, but the assessment shall not delay her placement in a program that is small and structured and provides counseling. Once Student has been placed in a program, her behavior can be assessed and appropriate interventions made by the program.

Because Student’s rights were violated when she was found ineligible for special education services and when she was continuously excluded from school without receiving procedural protections to which she was entitled, she is entitled to receive compensatory educational services. Review of the record indicates that Student has made very little academic progress during the past three school years and no behavioral progress during the past two school years. Mother did not present evidence as to what services would compensate Student. It seems that an extended school year would be necessary to help Student catch up to her grade level peers. Additionally, Student may require tutoring to assist her in learning grade level material. Once Student has been placed in an out of district placement, the Team shall consult with her service providers to determine whether such tutoring is required. In the event Student’s direct service providers make such a recommendation, Pittsfield shall provide for necessary tutoring in addition to funding Student’s placement.

This Order shall be implemented immediately. While the Team is locating an appropriate placement for Student, Pittsfield shall provide Student with twelve (12) hours per week of academic tutoring in her home or at a neutral site to ensure that she does not continue to fall behind academically. This tutoring is not intended to be a long-term placement and Pittsfield shall locate an appropriate placement as quickly as practicable.

By the Hearing Officer,

____________________________________

Catherine M. Putney-Yaceshyn

Dated: September 20, 2004


1

The director of the JRC, Sally Wheeler, refers to Student’s days at the JRC as suspensions. (P-V)


2

Assessments used by Dr. Whelan include: clinical interview, Child Behavior Checklist, ADHD rating Scale, Wechsler Intelligence Scale for Children-IV, the Trail Making Test, the Symbol Digit Modalities Test, eight subtests of the Wide Range Assessment of Memory and Learning, six subtests of the Woodcock-Johnson Tests of Achievement-III, the Tapping Test, the Hand Dynamometer, the Grooved Pegboard, the Single and Double Simultaneous Stimultion Test, the Reitan-Klove Sensory Perceptual Examination, the Hooper Visual Organization Test, the Bender Gestalt, the Rey Complex figure, the Alternating Line Patterns Test, a Human Figure Drawing, a Kinetic Family Drawing, the Unrelated Paragraphs Test, the Boston Namig Test, the Peabody Picture Vocabulary Test-III, the controlled Oral Word Fluency Test, the Stroop Color and Word Test, Stub’s Test of auditory vigilance, the Wisconsin Card Sorting Test, the Conners’ Continuous Performance Test, and the Rapidly Recurring figures Test.


3

The person who wrote Student’s name, school, and date on the assessment forms erroneously wrote the date as 1/16/ 03 instead of 1/16/04. The teachers who completed the reports were Student’s eighth grade teachers for the 2003-2004 school year.


4

Ms. Rossi testified that students are limited to attending the JRC for nine days at a time.


5

Before January Student had already received three in-house suspensions, 8 days of out-of-school suspension, and 9 detentions. Between January and April she received an additional nine days of in-school suspension, eight days of out-of-school suspension and seven detentions.


6

Pittsfield also erroneously relied upon a BSEA case applying the former standard in its closing brief. See In Re: Ipswich Public Schools, 5 MSER 63 (1999) which analyzes the issue under the then current regulation.


7

The exact number of days out of school is not possible to calculate because she was sent to the JRC for the remainder of the school year at some point after May 7, 2004. The record is unclear as to what date she began attending the JRC and what day was the last day of school.


8

This decision does not address several issues raised by Mother in her closing argument either because they were not raised at the hearing or the BSEA does not have jurisdiction regarding them.


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