COMMONWEALTH OF MASSACHUSETTS
SPECIAL EDUCATION APPEALS
Student v. Salem Public Schools BSEA #04-4364
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 May 20, 2004 at the Bureau of Special Education Appeals, 350 Main Street, Malden, Massachusetts, before Catherine M. Putney-Yaceshyn, Hearing Officer.
PROCEDURAL HISTORY
Student’s Guardian, (hereinafter, “Guardian”) requested an expedited hearing on April 21, 2004 and a hearing was scheduled for May 3, 2004. Salem requested a postponement of the hearing on April 27, 2004 and Guardian objected to the postponement. The postponement request was denied on April 29, 2004. On April 30, 2004, the case was reassigned to hearing officer Catherine Putney-Yaceshyn. On May 3, 2004, Guardian did not attend the scheduled hearing. The hearing officer reached her by telephone and a Pre-Hearing Conference was held via telephone conference call. The hearing was rescheduled for May 20, 2004. On May 20, 2004, Guardian did not attend the hearing. Reece Erlichman, Assistant Director of the BSEA, tried to reach Guardian by telephone unsuccessfully. The hearing officer proceeded in Guardian’s absence as she had previously told Guardian she would proceed if Guardian did not attend the hearing. The hearing proceeded on May 20, 2004. After approximately one and a half hours of testimony had been heard, the Assistant Director informed the hearing officer that Guardian was on the telephone and wished to be connected via speaker phone. The hearing officer denied Guardian’s request because she had explicitly told her she would be required to be present for the hearing and she would not be allowed to participate via speakerphone. The hearing officer relayed to Guardian that she would be provided with copies of the tape made of the hearing and would have an opportunity to file a written response. Salem requested that the deadline for submitting closing arguments be June 3, 2004 and the hearing officer allowed its request. The tape of the hearing was sent to Guardian. On June 3, 2004 Salem submitted its closing argument and the Guardian submitted her closing argument. The record closed at that time.
Those present for all or part of the Hearing were:
Christine Tramondozzi Psychologist, Salem Public Schools
Susan Crimble Special Education teacher, Salem Public Schools
James O’Connor Director of Pupil Personnel Services, Salem Public Schools
Kathleen Curtis Out of District Coordinator, Salem Public Schools
Elizabeth Rennard Attorney for Salem Public Schools
Catherine M. Putney-Yaceshyn Hearing Officer
The official record of this hearing consists of Guardian’s exhibits marked P-Exhibits (unnumbered) and Salem’s exhibits marked S-1 through S-11 and approximately 2.5 hours of recorded oral testimony.
ISSUES
1. Whether the Student’s “stay put” rights were violated when she was suspended “until further notice” on December 19, 2003.
2. Whether Salem’s proposal of placing Student at the Bentley School Early Childhood Program to receive instruction from 3:00 p.m. – 4:00 p.m. Monday through Thursday would provide Student with a free appropriate education in the least restrictive environment.
3. Whether Student’s guardian should be compelled to consent to Salem’s request for permission to send Student’s records to the SEEM Collaborative.
SUMMARY OF THE EVIDENCE
1. The student (hereinafter, “Student”) is a four-year-old pre-school student residing in Salem, Massachusetts, within the Salem Public School District (hereafter, Salem). She attended a pre-school screening on 3/3/03 during which she spoke in one-word responses and some words were unintelligible. During the screening, conducted by Christine Tramondozzi, the team chairperson for the early childhood center at the Bentley School and the school psychologist who conducts evaluations, she was observed to be highly active, inattentive and distractible. Her ability to sit still and remain focused was severely delayed for a child her age. Ms. Tramondozzi testified that she requested consent for Salem to conduct a psychological, speech language, and home and health evaluation but Guardian refused to consent to a full evaluation. She later agreed to the speech and language evaluation which was conducted on July 9, 2003 and a Team meeting was held July 17. (Tramondozzi) Student’s verbal IQ is 102, her performance IQ is 97 and her full scale IQ is 100. (S-6) Aside from the speech language evaluation and occupational therapy evaluations referenced below, there is little formal testing data regarding Student.
2. Barbara Grizzell, M.A., CCC/SLP, evaluated Student on July 9, 2003, when Student was three years, 10 months old. She reported Student was adorable and talkative and initially tolerated formal table top assessments. “Once disinterest and fatigue set in, [Student]’s activity level began to escalate.” She reported that Student engaged in unsafe behaviors while attempting to “get where she wanted to go.” Ms. Grizzell observed Student taking a picture off a wall, trying to open drawers and repeatedly trying to take a flag from a table even after being told to stop. Student’s voice became louder as her behavior became “more out of control.” Student did not establish eye contact with others easily. She had difficulty shifting her focus from one question to another. Ms. Grizzell did not complete formal testing because of Student’s significant difficulty sustaining her attention. Ms. Grizzell summarized that Student demonstrated significant difficulties with attention, focus and completion of formal test measures. Her behavior was notable for high activity level, difficulty shifting focus, and refusals to cooperate within a structured environment. She concluded that it is difficult to determine precise levels of overall language comprehension and production due to “behavior interference.” Expressive language weaknesses were noted in “moderately reduced vocabulary repertoire, decreased articulation clarity, semantic errors, and an overall immature quality to spontaneous language.” Ms. Grizzell “suspected” Student has a communication disorder because her skills do not match the skills expected at Student’s age level. She reported Student has “difficulty slowing down to allow language input in and to respond as expected to language.” She stated that Student’s “significant difficulties with structure and attention will negatively impact her ability to learn and socialize appropriately with peers.” She did not make any recommendations pertaining to appropriate services for Student, but stated that recommendations would be made at the Team meeting. (S-7)
3. The record contains no documentation pertaining to the scheduling or the convening of the July 17 Team meeting. Ms. Tramondozzi testified that the speech and language evaluation showed that Student had a communication disability. She stated that due to the evaluation results and some of Student’s behaviors that evaluators observed during the testing, the Team determined that placing Student in the integrated pre-school program would be more appropriate than just providing speech and language services. There is no IEP in evidence that was drafted pursuant to the aforementioned Team meeting. It is unclear from the record whether an IEP was ever drafted.
4. Ms. Tramondozzi testified that the Team recommended additional testing to assess Student’s overall learning style and difficulties with processing, attention and behavior and Guardian agreed to the psychological evaluation which was conducted on August 12, 2003.
5. Ms. Tramondozzi conducted a psychological assessment of Student on August 12, 2003 utilizing the Wechsler Pre-school and Primary Scale of Intelligence-III, Parent Report, and record review. The concerns leading to the referral were “difficulties with attention, focus and impulsivity affecting her ability to perform as expected.” Student was 3.10 years old at the time of the evaluation. Student had been screened during pre-school screening and concerns were raised regarding her speech intelligibility, her high activity level, her inattention and her ability to comply with adult requests. Ms. Tramondozzi reported Student was very excited and eager to participate in the testing. She required reminders to stay seated and focused and was “very redirectable.” She did not become upset when she was told she could not do something. She reported that Student’s verbal utterances were short and at times unintelligible. Her eye contact was fleeting, “due to high interest level with the room and its contents.” Ms. Tramondozzi reported that previously Student had demonstrated “great difficulty sustaining attention, complying with adult requests and a tantrum escalated to the point of screaming.” She did not observe any of those behaviors during her evaluation. (S-7)
6. Student’s performance on the Wechsler yielded a verbal IQ score of 102, a performance IQ score of 97 and a full scale score of 100. Ms. Tramondozzi concluded that Student’s intellectual functioning is in the average range as are her verbal and performance skills. She concluded that Student does not present with a disability in terms of her intellectual ability. She stated that Student “requires structure, predictability and consistency to focus and attend. She is able to delay gratification when she knows the limits and boundaries.” She reported that her language delays impact her intelligibility and she has a short attention span and requires frequent breaks between tasks. (S-7)
7. Ms. Tramondozzi testified that the Team meeting to review the psychological evaluation was held on August 8, 2003. The chronology of events drafted by Ms. Crimble and Ms. Tramondozzi also states that the Team meeting was held on August 8, 2003. (S-1) Ms. Tramondozzi’s report states that she evaluated Student on August 12, 2003. The record contains no documentation regarding the scheduling or convening of a Team meeting on either August 8 or August 12, 2003. Ms. Tramondozzi testified that during the meeting the Team determined Student should be placed in the integrated pre-school program and should receive speech language services. The record does not contain an IEP drafted pursuant to the August Team meeting and it is unclear from the testimony whether the Team drafted an IEP for Student.
8. Susan Crimble testified that prior to being a special education pre-school teacher in the Salem Public Schools for seven years she was a paraprofessional in an integrated pre-school for three years. Student entered her integrated pre-school classroom on September 9, 2003. (Crimble, S-1) There were 15 students, one teacher, and two paraprofessional in the classroom and the program ran Monday through Thursday from 8:30 to 11:00 a.m. She testified that she also taught an afternoon integrated program that differed from the morning program only in that there were 12 students instead of 15. Ms. Crimble testified that the class would have “table time” activities first thing in the morning and students worked on fine motor skills. During that time Student became impulsive and aggressive and was very distractible. She engaged in forceful play that endangered herself and others. She was highly active and unaware of the consequences of her behaviors. She was continuously “on the go.” She would jump off tables without looking where she was going to land. She used her body forcefully and bumped into children and furniture. Ms. Crimble testified that Student’s behaviors either got worse or maintained a steady level of “lack of control” throughout the year. She regularly spoke to Guardian. She could not find a reinforcer for Student and discussed items that might work for Student with Guardian. (Crimble)
9. Ms. Crimble testified that Student has hurt other students in class both purposefully and without being aware of it. She repeatedly hit one child on the head with a block and the child went to the nurse and required ice for an “egg” on his head. Student could not attend circle time because she was too active. She threw items such as dollhouse furniture or “anything else she [could] find” without thinking about where the items would fall and has injured students that way. She climbed on things and fell off. The majority of Student’s behaviors involve safety issues. She ran out of the classroom and out of the building and ran away whenever she had a chance. Guardian instructed Salem staff not to touch Student at all. She later informed staff that they could gently contain her, but they were not to restrain her. None of the staff in Ms. Crimble’s classroom was trained in restraints, but an adjustment counselor who is certified could be called for assistance. (Crimble)
10. Mariette Guaragna, M.Ed.1 , wrote a report entitled “An Observation” dated September 11, 2003 (Student’s third day of school). The report does not state how long the observation lasted or its purpose. Ms. Guaragna wrote that Student refused to sit in the circle with the class and wandered around the room and jumped on the sand table and jumped up and down. A staff member helped Student down and she went to the bathroom and shut the door. Student then ran to the easel and tried to open the paint containers, watching Ms. Guaragna. Ms. Guaragna removed the paint from Student and she yelled and ran away. She reported that Student continued to walk around the room dumping games on the floor and throwing things. She went to her cubby and took out her snack. When told it was not time for her snack she went to other students’ cubbies and threw their food on the floor. Ms. Guaragna told her, “No.” and she cried and ran through the classroom into areas she was not supposed to be. Student then returned to the circle carrying a toy that a staff member took away from her. Student got up and ran from the circle back to her cubby to get her snack. She was then told to clean up the mess she made in the room. Ms. Guaragna concluded that Student was “determined to do what she wanted to do when she wanted to do it.” She described Student as “oppositional, defiant, calculating and controlling.” She concluded Student was “not only a danger to herself but to all children and staff in her environment.” She wrote, “She requires constant adult attention as a moment alone is a moment of opportunity.” (S-6)
11. Ms. Guaragna wrote a second report entitled “An Observation” dated September 23, 2003. Again, she does not state the purpose of her observation or the amount of time that she spent observing Student. She reported that Student threw a “crayon disk” at the teacher while sitting in the circle and then ran to the bathroom. When a staff member told her to return to the circle she ran to the puzzle area and “defiantly” pushed the puzzle rack. She went to another area of the classroom and took clothes from the dress up area and “tore it to pieces.” She tore down a curtain from the dress up area and continually looked at the teacher apparently looking for a reaction. Ms. Guaragna opined that Student “appears to be on a search and destroy mission.” Student returned to the dress up area and began to try on all of the clothes and frequently looked over at the circle area. She put a shirt on her head and walked to the circle area. She then returned to the block area and “angrily” flipped the tool bench over. She then took the dress-up clothes and began draping them all over the other children sitting at the circle. When the teacher continued to ignore her, she sat down with the other children and rested her head on a chair. Shortly after she ran to the lego table and sat on it. She then ran to the circle and hit a child with a toy and climbed up on the sand table. When it was time for music, Student was told to pick up the clothes before joining the group. She ran to the instruments, tipped over the box, grabbed the rhythm sticks and swung them. The teacher held Student in her lap and she continued to grab at sticks and toys. The teacher was unable to contain her and she ran away from the circle. At snack time she grabbed at another student’s snack and pushed a staff member. She crawled under the table. Student ran out the door to the playground and was brought back by another teacher. Student cried and wandered around. She slapped a student and threw a spoon at another. She threw all the blocks off a shelf and threw sand at the sand table. When it was time for recess she was told she had to clean up first. She complied and went out to play. (S-6)
12. Ms. Tramondozzi testified that an emergency team meeting was held on September 22, 2003 to discuss Student’s difficulties at school. The record contains no documentation pertaining to the scheduling or convening of a Team meeting on September 22, 2003. There is no IEP in the record that was drafted or modified pursuant to a September 22 Team meeting. Ms. Tramondozzi testified that the Team recommended that Student receive an O.T./sensory processing evaluation and Guardian signed a consent form during the meeting. The purpose of the evaluation was to determine whether OT issues were impacting Student’s ability to get through the day. (Tramondozzi)
13. A third report, entitled “An Observation” is dated October 23, 2003. Again, there is no mention of the duration of the observation or its purpose. Apparently, Student was brought to Ms. Guaragna’s classroom for the observation. There were students in the classroom working at “work centers.” Student wandered around the room and touched buttons on a stereo. She was told, “No.” She continued to wander and “quietly left the room unnoticed.” Student was found in the hall and willingly returned to the classroom. She joined another student playing at the sand table and began pulling toys away from him. The teacher spoke to her and she continued to wander around the room. During circle time Student was told to join the group, refused and ran to a different area of the class. Student joined the group when she heard that the children would receive a piece of candy. She stayed at the circle for a short time, attempted to leave the room, was stopped just outside the door and she dropped to the ground and screamed. She hit and kicked the staff and was brought back to the room. She ran around the room knocking things to the floor and tried to leave again. She was stopped by staff and she dropped to the floor and protested loudly while kicking a staff member blocking the door. The staff member went outside the door and held it shut from the outside and Student removed bells from the door handle and “attempt[ed] to break the window.” Student then ran around the room throwing things. A staff member called the guidance counselor to assist with Student. He was unable to calm Student and she pulled a cardboard chest of draws from the window ledge to the floor. She continued her “search and destroy” mission. She threw the drawers from the cardboard chest and found a garden spade and threw it at the staff and students sitting in the circle. The principal was called and brought Student back to her own classroom. (S-6)
14. Jennifer A. McKee-Heinstein, OTR/L, conducted on occupational therapy evaluation of Student on October 17, 2003. Ms. McKee-Heinstein described Student as pleasant and very active and stated that she easily engaged in many activities and had no difficulty transitioning. Student was able to sit in a chair and attend to an activity for about five minutes and then required movement breaks. She reported that she had observed Student in the classroom and was concerned by Student’s “decreased safety awareness; disregard of peer feelings or desires; being self-directed; having destructive and disruptive behavior; being impulsive, and having decreased attention.” She stated that Student appears to learn best in a quiet, one on one, low stimulation learning environment. Ms. Crimble and Guardian each completed a Sensory Profile as part of the evaluation. The results indicated that Student “is demonstrating difficulties in the areas of sensory seeking, emotionally, reactive, inattention/distractibility.” Ms. McKee-Heinstein reported that low scores in the aforementioned areas are “often consistent with the patterns of behaviors that are observed in children who have ADHD.” On the Peabody Developmental Motor Scale, Student scored in the 9 th percentile. Ms. McKee-Heinstein reported that a score below the 16 th percentile is indicative of a mild delay in fine motor skills and she concluded Student had a mild delay. On the Berry Test of Visual Motor Integration Student scored in the 30 th percentile, the low average range. In summary, Student’s fine motor and visual motor skills are mildly delayed. Ms. McKee-Heinstein did not make any recommendations, but wrote, “Recommendations will be made at the team meeting.” (S-7)
15. Ms. Crimble wrote notes regarding Student’s behavior on November 4, 2003. She noted that Student climbed on the teacher’s chair, screamed when asked to get down and crawled under the teacher’s desk. Ms. Crimble ignored Student who proceeded to stand on the lego table and then the sand table. She then returned to the teacher’s desk and crawled under it. She then pulled out a bookcase and went behind it and refused to come out. Ms. Crimble took her hand to help her out and Student screamed and threw herself to the floor kicking and screaming. She then crawled under a table. Student climbed on the sand table again and jumped off repeatedly. She “blindly [fell] in the direction of the children sitting at circle endangering them and herself.” “A staff person was with her continuously.” At 9:30 a staff member called Guardian and requested that she pick up Student due to her uncontrollable behavior. (S-6)
16. Ms. Crimble wrote a report dated 11/5/03 indicating that Student had jumped off the lego table and landed very close to a chair and other students. At snack time she ran around the cafeteria provoking other children to chase her and yelling. She violently flailed her arms and dropped to the floor when asked to sit down and squirmed away from the teacher and under a table. She came out from under the table and ran from the two staff members who tried to redirect her. She went down the stage stairs face first on her stomach, stood up and ran quickly away from the staff. She ran from the cafeteria and when caught, she dropped to the floor screaming and kicking. A staff member called Guardian at 9:30 and Guardian came to the school and stayed in class until 10:15. (S-5)
17. Ms. Crimble wrote a report entitled Educational Assessment dated November 6, 2003. She reported that Student had had small successes, but great difficulty settling in to the structure and routine of the classroom. She described her as “a child with her own agenda who has difficulty responding appropriately when limits are set and enforced in the classroom environment. She becomes defiant, oppositional and aggressive. She engages in highly active, forceful play and takes great risks challenging her own safety as well as the safety of her peers.” She stated Student “engages in highly active, forceful play and takes great risks challenging her own safety as well as the safety of her peers. … [Student] seeks out continuous, dangerous sensory/physical stimulation.” She concluded that Student is a “very impulsive, aggressive, inattentive, distractible child who also demonstrates decreased safety awareness.” She stated that “these behaviors are negatively affecting her ability to learn and her ability to acquire positive social interactions with peers and adults.” (S-5)
18. Ms. Tramondozzi testified that a Team meeting was held on November 6 2003, to discuss the OT evaluation and Student’s unsafe behavior. (Tramondozzi, S-1) Although the school exhibits do not contain any documentation showing that a Team meeting was held on November 6, 2003, Guardian’s documents include a notice (dated October 30, 2003) of a Team meeting on November 6, 2003. The purpose of the meeting was “to review occupational therapy evaluation.” (Guardian’s exhibits) The meeting notice is attached to an IEP, with a meeting date of November 6, 2003. The IEP is signed by Guardian and dated November 6, 2003. The IEP is not signed by any Salem staff. Ms. Tramondozzi testified that the IEP was not even presented to Guardian until November 20, 2003. She concluded that if Guardian signed the IEP it was not on November 6, 2003 and it was not returned to Salem. (Tramondozzi)
19. Ms. Crimble wrote notes dated November 12, 2003. She reported that when Student was asked to come over to the table she stated, “I don’t like to, Mrs. Crimble.” Student sat at a table with another adult playing with and identifying animals for about twenty-five minutes. She then played cooperatively with a peer with teacher facilitation. Student then climbed under the table, climbed on the lego table and jumped off and ran over to the book area. During circle time Student was successful initially, but returned to the other table to play with the animals. She played quietly at first, but heard a story being read at the circle and “forcefully [fell] over a student at circle to find a place to sit.” She returned to the other table and attempted to clean up the toys, but “left unsuccessfully.” A teacher redirected her attention to cleaning up and she returned to circle and hit a student and pulled toys off of shelves and ran to the teacher’s desk and knocked things to the floor. When she calmed down, the teacher asked if she wanted to go for a walk with her to the office to help her calm down. She walked calmly to the office, but once there she pulled things off the secretary’s desk and ran back to the classroom. She rejoined her peers, but when she did not like their activity, she screamed and ran to the book area.
During snack time she ran around the room interrupting another class at another table. She laid on a table and rolled off on to the floor and showed no pain or discomfort when she hit the floor. She left the cafeteria and ran into another classroom interrupting their activity. She then ran out of the classroom and kicked the trash barrel on her way out. Student continued to run around her own classroom and threw things on the floor. She took the rhythm sticks and drummed on everything she could find and threw them when Ms. Crimble tried to take them. She ran from her and curled up cowering behind the bookcase. Student then climbed onto a counter to look out the window with binoculars. She fell off the counter and her feet hit a toy on a shelf and the shelf broke. Her body hit the floor and she showed no signs of any pain. Student calmed down and Ms. Crimble brought her to the gym to meet her class. She ran away from Ms. Crimble in the hallway and ran to the gym and began playing with a ball. Student would not stay with the class. When the class left the gym she refused to leave. She ran from Ms. Crimble and rolled all over the gym floor. Ms. Crimble chased her around the gym and then watched her climb on equipment. Student ran from the gym and around the school foyer. Ms. Crimble could not catch her and other staff attempted to help.
Student ran upstairs and into the boys’ bathroom. Boys came out screaming. She ran from the bathroom and Ms. Crimble caught her. She threw herself to the floor and knocked down Ms. Crimble. She kicked and flailed her arms and screamed. She ran down the stairs toward her classroom. Once in the classroom she climbed and jumped on furniture, climbed under tables, yelled and screamed loudly. She climbed under the sand table. Ms. Crimble caught her when Student came out screaming. One student sat on the floor, curled up in a ball, frightened of Student. A staff member called Guardian and told her that Student was out of control and not safe to get on the bus. Student continued to run around the room climbing on things and jumping off of them. She attempted to run to the door which was crowded with children being dismissed. She crouched and “literally dove toward the doorway, missing the opening and bumping her head hard on the corner of a cubby.” She rubbed her head, but did not cry. She developed an “egg” on her head and Ms. Crimble brought her to the nurse’s office. Student continued to try to leave the nurse’s office until Guardian arrived. When Guardian arrived she gathered Student and said she was taking her to the hospital. Kathy Hayes, acting under the authority of Principal Coffill, told Guardian not to bring Student to school the following day. (S-5; Crimble)
20. Ms. Tramondozzi testified that she attended an informal meeting with Ms. Crimble and Guardian on November 17, 2003 to review the IEP being proposed and to add occupational therapy services. She explained that Student was placed on an “extended evaluation IEP” which added OT services, an additional classroom paraprofessional and a behavior intervention plan and Guardian was informed of Student’s behavioral outbursts. Guardian did not sign the IEP, but took it to review with her attorney. She testified that a team meeting was held on November 20 at Guardian’s request. The meeting was attended by Ms. Tramondozzi, Ms. Crimble, and Ms. Coffill, the school principal. Guardian informed them that she rejected the extended evaluation and wanted an IEP instead. Ms. Tramondozzi testified that the IEP was provided to Guardian on November 20, 2003 and has not been signed. (Tramondozzi)
21. Salem’s exhibits include a notice dated November 20, 2003 indicating that the district is proposing an IEP/Amendment. The Narrative Description of School District Proposal dated November 20, 2003 states “A classroom paraprofessional will be placed in [Student]’s classroom to attempt to prevent and address her behavioral outbursts. An occupational therapy evaluation documented delays in fine motor, visual motor and sensory processing warranting direct intervention.” The attached IEP does not indicate that it is an amendment to a prior IEP. The IEP summarizes Student’s speech and language, and psychological evaluations. It stated that a behavior intervention plan would be implemented for the duration of the IEP. Attached to the IEP are copies of reports written by Ms. Crimble and Ms. Guaragna. (S-9) The “behavior intervention plan” is entitled Student Behavior Support Plan and is dated November 6, 2003. It describes the types of behavior Student has engaged in and states “The school will provide additional classroom assistance to reduce disruptive behaviors and to enhance her learning. The classroom assistant will provide sensory breaks as needed.” The plan also states that student will be redirected to participate in classroom tasks or removed from the classroom to take a break or walk with an adult. The plan states that if Student’s behavior continues to be unmanageable Guardian will be called to take her home. (S-9) The IEP states that “Delays in attention, behavior and language expression, articulation impact her ability to successfully access the curriculum.” There are a number of accommodations listed2 . The PLEP B section indicates Student has social/emotional needs and communication needs. There is a Language/Communication goal, a social emotional goal, and a written language/sensory goal. The grid provides for direct services in a substantially separate setting including “Sped Pre-K” with the special education teacher 4 x 2.5 hours per week from 9/9/03 – 6/20/04; Language/Communciation with the speech language therapist 2 x 30 minutes per week from 9/22/03-6/20/04; and Fine Motor/Sensory with occupational therapy personnel 1 x 30 minutes per week from 11/12/03- 6/20/04. The Nonparticipation Justification section of the IEP states that Student is removed from the general education classroom due to significant delays with attention, impulsivity and communication. It states that Student requires a structured language-based pre-school program taught by a special education teacher. (S-9)
22. Ms. Tramondozzi testified that Student was sent home on November 4, 5, 12, and 20, 2003 although Salem did not consider her to be “suspended.” (Tramondozzi, Crimble) A Discipline Report from the Bentley School dated November 24, 2003 indicates that Student was suspended from November 24, 2003 until December 1, 2003. The report, signed by Linda Coffill, Principal, states Student was uncooperative from the beginning of the school day and was hitting and kicking and throwing objects. It states that teachers were unable to bring her under control and she crawled under a table and refused to come out. She did not attend school on December 1 or 2, returned to school on December 3, and was absent again on December 4. She was absent from December 8 -10 as well (S-8; Tramondozzi)
23. Another Discipline Report, dated December 18, 2003, states that Student’s behavior continues to be out of control, she refuses to obey the direction of the teachers and she physically attacked the principal and staff. Ms. Coffill wrote a letter to Guardian dated December 18, 2003. The letter read, “This letter is to notify you that your child, [Student], has been suspended from school beginning 12/18/03 until a date to be determined at the mediation meeting on January 14, 2004, including a physical attack on staff and the building principal….” (S-8)
24. Ms. Crimble described Student’s behavior on December 18, 2003 as follows. The class was having a party. Student had been absent the prior three days of school. Each of the students had an adult with him or her that day and Guardian was not there. Ms. Crimble attempted to call Guardian on the phone, but was unable to reach her. One of the teachers acted as Student’s partner to help with the day’s activities. During the day Student became “wild, aggressive, on the go, [and was] climbing,” she acted very impulsively and was throwing things. During the party she became out of control and had to be removed from the classroom. All of the parents of other students saw the behaviors that she exhibited and raised concerns. (Crimble)
25. Salem did not conduct a manifestation determination prior to suspending Student “until a date to be determined at the mediation meeting on January 14, 2004.” Staff had spoken to Guardian many times about their concerns regarding Student’s behaviors and their belief that they were due to a disability. They had spoken to her about alternative placements, but did not request a hearing to obtain authority to remove Student from her placement. Salem did not conduct a functional behavior assessment nor did they have any person with behavioral expertise observe or evaluate Student. Although the IEP apparently produced on November 20, 2003 contains a “Student Behavior Support Plan” dated November 6, 2003, the record does not show who drafted it or whether it was ever presented to Guardian during a Team meeting. (Tramondozzi, Crimble, S-8)
26. A mediation was scheduled on January 14, 2004, but Guardian did not attend and requested that it be rescheduled. It proceeded on February 5, 2004, but the parties did not reach an agreement. After the mediation, Guardian informed Salem she was expecting results from an independent evaluation of Student and she would submit the report for review by the Team. Salem discussed the possibility of Student attending the SEEM Collaborative and Guardian said she would investigate other private pre-school programs in Salem. They scheduled a manifestation determination for April 4 and April 14, and Guardian did not attend. Salem received Guardian’s request for hearing on April 22, 2004. Student had been out of school since December 18, 2003. (Tramondozzi)
27. In response to Hearing Officer questioning regarding the steps Salem took to provide additional support to Student in the classroom, Ms. Tramondozzi testified that the Team tried to talk to Guardian regarding their concerns. She testified that the Team had recommended that Student receive OT services, but that Guardian did not accept the November 20, 2003 IEP proposing said services. She stated that “around” November 20, 2003 Salem added an additional paraprofessional to Student’s classroom so there were four adults and 15 children in the classroom when Student was there. She stated that staff modified the expectations for Student. The school adjustment counselor was initially involved in Student’s services, but Guardian did not want him working with Student. (Tramondozzi) Ms. Crimble testified that there is another adjustment counselor in the school who is generally there in the afternoon.
28. Ms. Crimble testified that she made ongoing modifications and interventions to Student’s program during the year. She gave her lots of verbal praise and broke down directions into small parts for her. She described her classroom as very structured and routine-oriented. She stated that she used Mayer Johnson pictures for Student to show her the day’s events. She tried to use “first then” charts with Student. She explained that Student would look at the chart, and once it was removed from her sight, she would forget what it said. She always remained passive and calm with Student to keep her calm. She tried preferential seating with Student sitting next to her. She had Student use a cubed chair to help define her space. She tried using a sensory cushion, but once the novelty wore off it became “something else to throw.” She stated that the staff tried to wean her into circle time. That worked for a while, but once it was no longer novel, it would not work anymore. They also tried having a separate circle with Student and the paraprofessional to help her to be successful. She testified that she believes she has tried everything that she could possibly do to help Student in her pre-school setting and thinks Student needs to be in a program that deals with her behavioral needs. She testified that she consulted with a speech language pathologist and an occupational therapist to assist her in working with Student. She testified that the paraprofessional, Terri Randall, who worked in her classroom is a certified teacher, but is not certified in special education. (Crimble)
29. Taking administrative notice of the 2003 calendar, November 20, 2003 was a Thursday. Student was “sent home” on November 20. (Tramondozzi) Student attended school on Friday November 21, 2003, but was suspended on Monday, November 24 until Monday, December 1. Student was absent on December 1, 2, and 4 and present on December 3 and 5. She was absent December 8-10 and suspended from December 11-15. Student was absent from December 15-17 and returned to school on December 18, when she was suspended until further notice. Assuming that an additional paraprofessional was added to Student’s classroom on November 20, 2003, she was present while Student was present for approximately three days3 . (Tramondozzi, S-8)
30. During the May 3, 2004 pre-hearing conference, the hearing officer asked the Guardian to provide Salem with the independent evaluation report she had obtained regarding Student. The Hearing Officer asked Salem to convene the Team to review the report. Salem agreed to convene the Team and review the report on May 5. On May 4, Guardian cancelled the meeting. She subsequently agreed to services proposed by Salem in an IEP Amendment with a Notice Date of May 6, 2004. It does not appear that there was a Team meeting prior to the drafting of the IEP. Guardian accepted the IEP on May 13, 2004 and wrote “I request that speech and OT also be included in session.” (S-11, Tramondozzi)
31. The IEP amendment states that Student will receive “individualized specialized instruction by a certified special education teacher and a paraprofessional one hour Monday through Thursday from 3-4 p.m.” It states that Student “has been unsuccessful in accessing her pre-school experience in the integrated pre-school program.” It further states “If [Student] is unsuccessful in managing her behavior during this instructional program … [Guardian] will be asked to remove her and the session will be terminated. If such behaviors continue, the program will be terminated.” There is no service delivery grid attached to the IEP. There are no goals or objectives on the IEP. (S-11)
32. Faye Kolin is the certified special education teacher who provided the “after school program” to Student along with a paraprofessional. She spoke to Ms. Tramondozzi about Student’s participation in the program and told her that Student was doing very well but continued to exhibit distractible behavior and needed to be kept on task. (S-10) Ms. Tramondozzi testified that Salem staff had specifically told Guardian to wait for Student in the library while she received her services. She stated that they have found Guardian in closets and rooms adjacent to Student’s classroom, and peeking in to the classroom watching and listening to Student’s sessions. It has made the classroom teacher uncomfortable and concerned about how Student would react to seeing Guardian watching. Ms. Kolin told Ms. Tramondozzi that Student had no idea why she left the Bentley School and was not in Ms. Crimble’s class anymore. She constantly spoke about Ms. Crimble in a positive way and she referred to herself as a “bad child” and said that was why she was not in school anymore. Ms. Kolin was saddened and disturbed about Student’s perception of what had occurred regarding her schooling. (Tramondozzi)
33. Ms. Tramondozzi stated that even though Guardian had requested that speech services be provided during Student’s sessions, “there are some contractual issues regarding when the speech services need to be provided during the school day that they can work out after the hearing and there should not be any difficulty providing those services to Student.” She stated that although Guardian requested that Student receive OT services, she had never consented to the IEP that offered OT services. She stated that Salem does not intend for the after school program to be a long-term placement. They know that it is not enough and is not even close to what she was getting, but they felt it would give her some opportunity in a school setting until a determination is made regarding her future placement. (Tramondozzi)
34. Kathleen Curtis testified that she is the Out of District Coordinator for the Salem Public Schools and is responsible for finding appropriate out of district placements for children who require them. She testified that she informed the Team that the SEEM Collaborative was an option for Student4 . She stated that the SEEM Collaborative has a program in the North School in Stoneham that has all of the elements that she believes Student requires. Its program is “small, highly structured and very therapeutic.” She testified that there are occupational therapists on staff and the school psychologist is either full time or close to full time. They have a lot of parental outreach “which seems critical in this case” and have home trainers available. They offer a full day program for students Student’s age. Ms. Curtis testified that this program was described to Guardian and she refused to consider it because she thought Stoneham was too far away. She testified that there is no therapeutic placement in Salem. (Curtis)
35. Ms. Curtis testified that it would be most helpful to have more evaluative information about Student available. She believes that Student has something more going on than a communication disorder. All of the people who have dealt with Student have said the same thing. Salem would like to have more refined information about what is really going on with Student. She testified that she believes Salem would need to obtain the results of a neuropsychological and a home evaluation to assess Student’s needs. (Curtis) When contacting the SEEM Collaborative she provided Student’s age and the behaviors that were described in the pre-school setting. (Curtis)
36. Ms. Tramondozzi testified that Salem staff believes Student has some disabilities that have not yet been diagnosed. They believe that there may be a disability causing her to behave the way she behaved at school. She stated that Salem has not initiated additional testing of Student because they believed Guardian was pursuing an independent evaluation. She explained that Guardian had been telling Salem since November that she was having Student independently evaluated but she never provided Salem with the evaluation results. Ms. Tramondozzi sent Guardian two letters, dated March 9, 2004 and March 29, 2004 requesting that she submit the report so the Team could convene and conduct a manifestation determination. Guardian has not provided the report to Salem. (Tramondozzi)
37. Ms. Tramondozzi and Ms. Crimble believe Student requires a therapeutic, structured, behavioral-based, education program to meet her emotional, behavioral, and safety needs with a small student to teacher ratio. (Crimble, Tramondozzi) Ms. Tramondozzi would be concerned if Student returned to the pre-school program because she has already exhibited many unsafe and out of control behaviors. She thinks those behaviors will continue if she is placed back in the integrated program without the adequate supports. She believes Salem has done everything they could have in the integrated pre-school setting to meet Student’s needs and have been unsuccessful. (Tramondozzi)
FINDINGS AND CONCLUSIONS:
Procedural Errors Prior to Student’s Exclusion from School
This case is replete with procedural errors. Although not in evidence, it appears that Student was placed in the integrated pre-school program and received speech and language services pursuant to an IEP drafted and accepted before Student began attending school on September 9, 2003. Ms. Crimble testified that Student’s behavior was a concern from the very beginning of the school year. She testified that there was an “emergency team meeting” on September 22, 2003 to “discuss her difficulties in school.” (Crimble, S-1) There is no evidence that the Team did anything to determine whether Student’s IEP was appropriate or to determine what was causing Student’s behavioral difficulties. There is in fact no documentation supporting the conclusion that this Team meeting occurred other than the narrative summary drafted by Ms. Crimble and Ms. Tramondozzi. There was no functional behavioral assessment done nor was a behavioral intervention plan drafted or apparently even contemplated. 20 U.S.C. Chapter 33, § 1414(d)(3)(B) states that “The IEP Team shall–(i) in the case of a child whose behavior impedes his or hear learning or that of others, consider, when appropriate, strategies, including positive behavioral interventions, strategies, and supports to address that behavior.” There is no evidence that the September 22 Team considered any of the foregoing when it purportedly met and there is not evidence that any interventions were done at that time. Ms. Crimble testified that the Team recommended that Student be evaluated by an O.T. to determine if there were sensory issues impacting on Student’s classroom behavior. She testified that Guardian signed a consent form for the evaluation on September 22, although it does not appear in the record. The occupational therapist’s report is dated October 17, 2004. Although Salem was in compliance with the law, given that the September 22 Team was considered by Salem to be an “emergency Team meeting”, it would have been preferable for Salem to have completed Student’s evaluation in a more timely manner than almost a month after receiving consent. However, it does not appear that Student was impacted by this delay as Guardian apparently rejected the IEP proposing O.T. services. (Tramondozzi)
Ms. Crimble testified that she consulted with Ms. Guaragna with respect to Student, although the record does not show that Ms. Guaragna is a behaviorist nor that she made any recommendations for remediating Student’s behaviors. In her September 11, 2003, observation report Ms. Guaragna made some alarming conclusions about Student. She described Student, then three years old, as “oppositional, defiant, calculating and controlling.” She found her to be “not only a danger to herself but to all children and staff in her environment.” She did not make any recommendations for implementing any positive behavior supports or assisting Student in the classroom. The record shows that Ms. Crimble did not request that the Team reconvene to determine whether additional supports could be added to assist Student with her apparent behavioral difficulties at that time. The evidence does not show that anybody from Salem did a functional behavior assessment as required by § 300.520(b) to determine what triggered Student’s difficult behaviors and how the staff could deal with them. Ms. Crimble testified that she did not consult with a behaviorist or anybody with expertise in dealing with children with behavior difficulties. The reports did not contain any recommendations and were written in a tone that indicated a feeling of hostility toward Student. She seemed to suggest that Student was intentionally causing havoc in the classroom and should be dealt with punitively.
Although Ms. Crimble testified that she and other Salem staff continuously made modifications for Student throughout the school year, the evidence does not support that conclusion. After the September 22, 2003 Team meeting, there does not appear to have been any Team activity until November 6, 2003 when the Team convened to discuss the O.T. evaluation and Student’s behavior. Between the September 22 Team meeting and the November 6 Team meeting, the record does not show that Student received any additional classroom support to address her behavioral issues. It is interesting to note that Ms. Crimble taught an afternoon session of her integrated pre-school program that had three fewer children than the morning session. She testified that she believed Student would have more success in a setting with fewer children and a larger ratio of adults to students. However, neither she nor any other Salem staff member recommended placing Student in the smaller environment of the afternoon pre-school classroom. Even after the Team reviewed the O.T. evaluation on November 6, 2003 there was no recommendation that Student be placed in the smaller setting that was available within the same school building. (S-7) Additionally, Student was not provided with a 1:1 aide nor was an additional adult added to classroom until on or after November 20, 20035 . Assuming that the additional adult was in the classroom on November 20, 2003 Student was only present for approximately three days after the adult was added due to suspensions and absences. Three days is hardly sufficient time to determine whether the addition of another adult would benefit Student.
Student’s Exclusion from School and Subsequent Procedural Errors
During the Hearing, Salem witnesses testified that Student was a safety risk to herself, the staff, and other children. The testimony and reports of Ms. Crimble and Ms. Guaragna tend to support that contention. However, the law does not authorize a school district to unilaterally terminate the services of a child who is eligible for special education services even when it sincerely believes that the student poses a safety risk.
Based upon its belief that Student’s behaviors made her a risk to others, Salem suspended Student on December 18, 2003 “until a date to be determined at the mediation meeting on January 14, 2004.” In effect, Salem changed Student’s placement without following any of the procedures required by the law, violating 20 U.S.C. Chapter 33, § 1415 and the Discipline Procedures outlined in 34 CFR § 300.519 – 300.528.
§300.519 states “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.” Clearly, excluding Student from school from December 18, 2003 “until a date to be determined at the mediation meeting on January 14, 2004” resulted in a unilateral change in her placement in contravention of state and federal law.
There are instances in which a school is authorized to place a student in an alternative educational setting. A school’s authority to change the Student’s placement is limited by § 1415(k)(1) and §300.520 which describe the authority of school personnel to place a Student in an alternative educational setting.
§300.520 Authority of school personnel.
(a) School personnel may order—
(1) (i) To the extent removal would be applied to children without disabilities, the removal of a child with a disability from the child’s current placement for not more than 10 consecutive school days for any violation of school rules, and additional removals of not more than 10 consecutive school days in that same school year for separate incidents of misconduct (as long as those removals do not constitute a change of placement under §300.519(b));
(ii)After a child with a disability has been removed from his or her
current placement for more than 10 school days in the same school year, during any subsequent days of removal the public agency must provide services to the extent required under §300.121(d);
Pursuant to the above, after suspending Student, Salem should have begun providing her services on or about the second school day after December 18, 2003. Student had previously been excluded from school for disciplinary reasons eight times, including the days that Salem staff testified Student was asked to “leave school” although was not technically suspended. The evidence shows that Student did not begin receiving any services from Salem until Guardian accepted the May 13, 2003 IEP.
Pursuant to §300.520(a)(2) school personnel may order
A change in placement of a child with a disability to an appropriate interim alternative educational setting for the same amount of time that a child without a disability would be subject to discipline, but for not more than 45 days, if –
(i) The child carries a weapon to school or to a school function under the jurisdiction of a State or a local educational agency; or
(ii) The child knowingly possesses or uses illegal drugs or sells or solicits the sale of a controlled substance while at school or a school function under the jurisdiction of a State or local educational agency.
Student did not either carry a weapon or possess illegal drugs at school, therefore there is no authorization to changes Student’s placement pursuant to the above.
§300.520(b) states
(1) Either before or not later than 10 business days after either first removing the child for more than 10 school days in a school year or commencing a removal that constitutes a change of placement under §300.519, including the action described in paragraph (a)(2) of this section—
(i) If the LEA did not conduct a functional behavioral assessment and implement a behavioral intervention plan for the child before the behavior that resulted in the removal described in paragraph (a) of this section, the agency shall convene an IEP meeting to develop an assessment plan.
(ii) If the child already has a behavioral intervention plan, the IEP team shall meet to review the plan and its implementation, and, modify the plan and its implementation as necessary, to address the behavior.
(2)As soon as practicable after developing the plan described in paragraph (b)(1)(i) of this section, and completing the assessments required by the plan, the LEA shall convene an IEP meeting to develop appropriate behavioral interventions to address that behavior and shall implement those interventions
Salem did not follow the directive above. There was never a functional behavioral assessment done of Student nor was there a request for consent to conduct one. There was a behavior modification plan proposed at some point, but it was not accepted by Guardian and consequently not implemented. The Team did not meet to review the behavior modification plan and no modifications to the plan were recommended.
§300.521 Authority of hearing officer.
A hearing officer under section 615 of the Act may order a change in the placement of a child with a disability to an appropriate interim alternative educational setting for not more than 45 days if the hearing officer, in an expedited due process hearing –
(a) Determines that the public agency has demonstrated by substantial evidence that maintaining the current placement of the child is substantially likely to result in injury to the child or to others;
(b) Considers the appropriateness of the child’s current placement;
(c) Considers whether the public agency has made reasonable efforts to minimize the risk of harm in the child’s current placement, including the use of supplementary aids and services; and
(d) Determines that the interim alternative educational setting that is proposed by school personnel who have consulted with the child’s special education teacher, meets the requirements of §300.522(b).
(e) As used in this section, the term substantial evidence means beyond a preponderance of the evidence.
(Authority: 20 U.S.C. 1415(k)(2), (10))
The aforementioned section does not apply in this case, because Salem did not request an expedited hearing before suspending Student indefinitely. Instead, Salem scheduled a mediation which was then rescheduled and did not result in agreement between the parties. While mediation is generally a helpful tool for parties involved in a dispute and is sometimes the preferable avenue to pursue when parties are seeking to maintain an amicable working relationship, it was impermissible under federal law for Salem to request a mediation in lieu of a hearing while excluding Student beyond the tenth day of her suspension. The law is very clear that a hearing officer is the only person authorized to order the child to attend an interim alternative educational setting in a case such as this where weapons or drugs were not involved and where there is not agreement between the parties regarding placement. Salem should have requested an expedited hearing and allowed a hearing officer to conduct the analysis required under §1415(k)(2). If Salem wished to instead resolve its dispute via mediation, it should have simultaneously requested an expedited hearing and held the mediation prior to the hearing date or allowed Student to return to school while rescheduling the mediation.
Had Salem requested an expedited hearing at the appropriate time and presented the evidence now before me, there would not have been sufficient evidence to support the necessity of the interim alternate placement. Although Ms. Crimble’s testimony and reports demonstrate that Student engaged in unsafe behavior and Salem would have likely been able to satisfy the criteria in §300.521(a), I am not convinced that Salem “made reasonable efforts to minimize the risk of harm in the child’s current placement, including the use of supplementary aids and services.” See §300.521(c). As discussed above, the September 22 Team did not modify Student’s IEP and the Team did not reconvene for over six weeks after that despite Student’s continued behavior difficulties as documented by Ms. Crimble and Ms. Guaragna. Salem never conducted a functional behavior assessment and did not even suggest a behavior plan until late November, after Student had been experiencing difficulties for several months. Although Salem eventually added an additional adult to the classroom, Student was only in the classroom for a maximum of four days after the adult was added, insufficient time to determine whether she benefited from the adult’s presence.
§1415(k)(4) of the statute requires that the Team determine whether a student’s behavior was a manifestation of his or her disability before taking disciplinary action involving change in placement for more than ten days. The relevant portion of §1415(k)(4) states as follows.
(A) IN GENERAL- If a disciplinary action is contemplated as described in paragraph (1) or paragraph (2) for a behavior of a child with a disability described in either of those paragraphs, or if a disciplinary action involving a change of placement for more than 10 days is contemplated for a child with a disability who has engaged in other behavior that violated any rule or code of conduct of the local educational agency that applies to all children —
(i) not later than the date on which the decision to take that action is made, the parents shall be notified of that decision and of all procedural safeguards accorded under this section; and
(ii) immediately, if possible, but in no case later than 10 school days after the date on which the decision to take that action is made, a review shall be conducted of the relationship between the child’s disability and the behavior subject to the disciplinary action.
Salem did not conduct a manifestation determination before excluding Student for more than ten days. Ms. Tramondozzi testified that Salem scheduled a manifestation determination meeting on April 1, 2004 and was rescheduled until April 15, 2004 at the request of Guardian. Salem’s chronology of events (S-1) shows that Guardian cancelled the second date due to a funeral. Ms. Tramondozzi testified that the manifestation determination was never done. Even if Salem had been able to complete its manifestation determination in April, it would have occurred approximately three and one half months later than required by law.
Student continued to remain excluded from school without being provided any services until May 13, 2004 when she began attending the one hour after school session with Ms. Kolin and a paraprofessional Guardian agreed to on May 13, 2004. It is not necessary to determine whether or not the IEP proposed on May 13, 2004 provided Student with a free appropriate education in the least restrictive environment as Salem acknowledged that it did not and because Guardian accepted it. Ms. Tramondozzi testified that Salem knew the program did not provide Student with sufficient services and had just intended it to be a temporary program until the dispute was resolved. It bears noting that the IEP was drafted without a Team meeting. Additionally, Guardian requested that Student receive speech and O.T. services in addition to the services proposed on the IEP. Although Guardian had previously accepted speech services, Salem did not provide them as part of Student’s after school program6 .
Sharing of Evaluative Information
Another significant issue in this case is the lack of evaluative information that Salem has been afforded to determine Student’s needs. Salem has sought Guardian’s consent to conduct more detailed evaluations of Student in order to assess all of her needs. Guardian apparently had a private neuropsychological evaluation of Student done at North Shore Children’s Hospital and possesses a report of its findings. Salem has requested that Guardian provide a copy of the report so that the Team can consider it and implement appropriate services for Student. I also suggested to Guardian that she provide the report to Salem for review by the Team. Guardian agreed that she would share the report, but has yet to do so. Although Ms. Curtis testified that Salem believes that a neuropsychological evaluation and a home evaluation would provide beneficial information to the Team, the record does not show that Salem has requested consent from Guardian to conduct either evaluation. I would strongly encourage Guardian to either provide Salem with the report of the North Shore Children’s Hospital evaluation or to provide her consent for Salem to conduct a neuropsychological assessment of Student. The Team will be able to ensure that it is addressing all of Student’s areas of need if it is provided with all available information regarding her needs.
ORDER
Because Student’s rights were violated when she was excluded from school without receiving any services between December 18, 2003 and May 13, 2004, when Guardian accepted the IEP for the “after school program” she is entitled to compensatory educational services. Because her “after school program” did not include the speech language services Student’s accepted IEP required, she is entitled to compensatory services in the area of speech and language until the end of the school year. The Team shall determine what services will appropriately compensate Student for her missed educational services as the record does not contain any evidence as to what Student requires.
Because Student was wrongfully excluded from the Salem Public Schools and because I have found that Salem did not meet its burden of proving that it “made reasonable efforts to minimize the risk of harm in the child’s current placement, including the use of supplementary aids and services,” Student shall be placed in the Salem Public Schools with the appropriate “supplementary aids and services” when she returns in September. The Team shall reconvene as soon as possible to begin planning for her September program. The record is unclear as to whether Student will be placed in a pre-school or Kindergarten program, but the Team shall determine what Salem program is appropriate for Student. In making its determination, the Team should consider the recommendations made by Ms. Crimble and Ms. Tramondozzi during the hearing. The Team shall also consider whether Student requires counseling services due to Ms. Tromondozzi’s testimony that Ms. Kolin reported Student believed she was a “bad child” as a result of being excluded from school.
If after Salem provides appropriate “supplementary aids and services” to Student in the program that they propose, Student continues to have difficulties that make her unsafe to herself or others, Salem shall follow the appropriate steps required under state and federal law to gain authority to place Student elsewhere within the district or out-of-district.
Salem has not met its burden in showing that Guardian should be compelled to consent to Salem’s request for permission to send Student’s records to the SEEM Collaborative.
Salem shall request consent to conduct the additional evaluations it believes are necessary and if it is unable to secure consent may request the assistance of a mediator or request a hearing.
By the Hearing Officer,
____________________________________
Catherine M. Putney-Yaceshyn
Dated: July 30, 2004
1
Ms. Crimble testified that she sought advice regarding working with Student from Ms. Guaragna who teaches in a therapeutic classroom for students on the autism spectrum.
2
Accommodations include: repeat and rephrase directions as needed; praise and encouragement to engage in activities; predictable routines, structure and consistency; hands on visual supports for oral directions; break down tasks into small components; have student repeat back directions to assess comprehension; frequent check ins for on task behavior; preferential seating, away from distractions and near the teacher; and provide opportunities for positive peer interactions.
3
It is unclear whether this person actually began attending Student’s classroom on November 20, 2003 because the record shows that November 20, 2003 was the day the IEP was provided to Guardian and that she did not return a signed IEP to Salem.
4
She did not testify as to when the Team meeting in which she discussed the SEEM Collaborative was held. School Exhibit 3 contains a copy of a fax cover sheet dated March 16, 2004 and sent to a Marc Simm regarding the “possibility of accommodating a student who has a diagnosis of communication disorder (w/underlying behavioral/neurological issues) who will be 5 on September 10 th .”
5
The record is unclear as to whether another adult was present beginning on November 20, 2003 as the record shows that the IEP proposing an additional adult in the classroom was not presented to Guardian until November 20 and she did not sign and return that IEP to Salem. (Tramondozzi)
6
Ms. Tramondozzi testified that Guardian had not accepted the IEP that proposed O.T. services.