Triton Regional School District – BSEA # 07-6361



<br /> Triton Regional School District – BSEA # 07-6361<br />

COMMONWEALTH OF MASSACHUSETTS

SPECIAL EDUCATION APPEALS

In Re: Student v. Triton Regional School District

BSEA # 07-6361

DECISION

This decision is issued pursuant to the Individuals with Disabilities Education Act (20 USC 1400 et seq .), Section 504 of the Rehabilitation Act of 1973 (29 USC 794), the state special education law (MGL ch. 71B), the state Administrative Procedure Act (MGL ch. 30A), and the regulations promulgated under these statutes.

Parents filed a Request for Hearing in the above-referenced matter on May 21, 2007. The hearing was held on October 30, 2007, at the BSEA, 11 Dartmouth St., Malden, Massachusetts, before Hearing Officer Rosa I. Figueroa. Those present for all or part of the proceedings were:

Student’s Mother

Student’s Father

Christine Kneeland Administrator of Pupil Services, Triton Regional School District

Deborah Dennehy Second Grade Teacher, Triton Regional School District

Dawn Le Sage ACE Instructional Assistant, Triton Regional Schools District

Ellen Lincoln Social Worker, Triton Regional School District

Sandra Halloran Superintendent of Schools, Triton Regional School District

James L. Montanari School Principal, Triton Regional School District

Karen A. McNamara Special Education Teacher, Triton Regional School District

Aimee Farrell First Grade teacher, Triton Regional School District

Sandra Soucy Clerk, Special Education Department, Triton Regional School District

Mary Ellen Sowyrda, Esq. Attorney for Triton Regional School District

The official record of the hearing consists of documents submitted by the Parents and marked as exhibits PE-1 to PE-50; documents submitted by Triton Regional

School District (Triton) and marked as exhibits SE-1 through SE-12; recorded oral testimony and written closing arguments.

On November 26, 2007, Parents requested a two-day extension of time to submit their closing argument. This request was granted the same date. Triton’s closing argument was received on November 27, 2007. Parents’ closing argument was received on November 30, 2007. The record closed on November 30, 2007.

PROCEDURAL BACKGROUND AND OBJECTIONS OF THE PARTIES:

Prior to the Hearing, the Parties participated in a settlement conference on October 25, 2007, as a result of which the Parties reached a partial settlement agreement, narrowing the issues remaining for Hearing.1

On October 28, Parents submitted a written list of the issues remaining for hearing.2 Triton filed a Motion to Dismiss and Memorandum of Law due to lack of subject matter jurisdiction, on October 26, 2007. The Motion was heard on the first day of hearing, October 30, 2007, and granted as to most of the issues contested by the Parties, which issues fell outside the jurisdiction of the BSEA. The remaining issues, listed in the next section, were heard and are decided herein.

HEARING ISSUES:

1. Whether Student’s desk was inappropriately placed in the corner of the classroom with Student’s back to the class for nearly six weeks during the second semester of the 2006-2007 school year?

2. Whether Student was removed from his program and placed in a closet- sized room and/or in other inappropriate places?

3. Whether Parents are entitled to reimbursement in the amount of $ 1,160.00 for the independent neuropsychological evaluation performed by Joann Frankhouser, Psy. D.?

4. Whether Parents are entitled to reimbursement of $200.00 worth of insurance co-payment to Student’s therapist Wendy Osgood?

5. Whether Parents are entitled to reimbursement of the insurance co-payment for uninsured portions of Student’s weekly counseling with Wendy Osgood into the future?

6. Whether Student is owed compensatory services for the time he was removed from his program and placed in the Individual Instruction Room (IIR) or some other setting?

7. Whether Student is owed compensatory services for the eleven days of school he missed from May 16, 2007 to May 31, 2007, and for the six weeks of summer programming during the summer 2007?

8. Whether Parents are entitled to reimbursement for the $150.00 application fee paid by them to Landmark School.

FINDINGS OF FACT

1. Student is a seven (7) year-old resident of the Triton Regional School District. (PE-41; SE-1) The parties do not dispute his eligibility and entitlement to special education. He currently attends the second grade at the Salisbury Elementary School. (Testimony of Mother)

2. Student presents with a peanut allergy, asthma, sensory deficits, a specific learning disability and a fluctuating hearing deficit with recurring ear infections. (PE-2; Testimony of Mother)

3. Student’s stay-put services have been agreed upon by the Parties while Student awaits placement outside the district. (SE-3; SE-10)

4. On June 20, 2006 Student’s Team convened to discuss his first grade IEP for the 2006-2007 school year. (SE-4) This IEP provided fourteen different accommodations including preferential seating away from distractions in close proximity to the teacher, seat breaks as needed, and access to a work area with limited auditory and visual distraction as needed. (SE-4) This IEP incorporated an agreement between the Parties memorialized in a letter from the District’s attorney dated March 29, 2006, addressing Student’s nut allergy and an individual health care plan. This IEP was accepted in full on September 26, 2006. (SE-4)

5. Student was placed in Ms. Aimee Farrell’s first grade class during the 2006-2007 school year. (Testimony of Ms. Farrell) During the first semester Student was a well-behaved, appropriate, good student. In January 2007, Student began to display inappropriate behaviors including name-calling, and swearing, and he failed to observe his classmates’ physical personal boundaries. (Testimony of Ms Farrell) When the inappropriate behaviors persisted for over a month, despite the teacher’s verbal prompts and cues, Student’s desk was removed from his “pod” or cluster, to the very front of the class where he could be next to Ms. Farrell. (SE-7) Student rejoined the group during small group reading and other activities that involved the whole class. (Testimony of Ms. Farrell) According to Ms. Farrell, Student continued to receive instruction while his desk was removed from the pod and was able to complete all of his work. Student was allowed to listen to music to block out noise. According to Ms. Farrell, Student’s behavior and work product improved while sitting alone, and said accommodation was consistent with Student’s IEP. (SE-4; Testimony of Ms. Farrell)

6. Between January 22 and March 14, 2007, Student displayed inappropriate behaviors in the classroom including name-calling, swearing, disrespecting teachers, getting in other students’ personal space, making inappropriate or distracting noises and climbing around the room. (PE-7, PE-10; PE-11; PE-14) On March 14, 2007, Student was suspended for two days for placing his hands over the mouth of another student and refusing to let go. (PE-15) On March 19 he had great difficulty controlling himself during recess and earned another suspension when he hit a staff member.

7. In light of the escalation in inappropriate behaviors, and Student’s recurrent ear infections, Parents requested to observe Student’s classroom. The observation took place on March 22, 2007. (PE- 18; PE-19; PE-20; PE-21; Testimony of Ms. Farrrell, Mother) Parents opined that Student perceived himself as a “bad boy”. Concerned that Student may be missing instruction with his back to the class in light of his hearing difficulties, Parent requested that Student’s desk be placed back in his pod. The following day, Student’s desk was placed back in the pod. (Testimony of Ms. Farrell) Student’s desk was placed away from the pod between February 12 and March 22, 2007. (Testimony of Ms. Farrell, Mother). Parent conducted a second observation of Student’s classroom on May 15, 2007. (Testimony of Parent)

8. On March 28, 2007, Parents consented to a full evaluation of Student including academic, speech and language, occupational therapy and sensory integration, functional behavior, educational, psychological and home assessments. (SE-5)

9. The Team reconvened on March 30, 2007, resulting in a recommendation to amend Student’s IEP to increase the level of support to Student by the special education staff (between 1000 and 1310 minutes per week), and adding sixty minutes per month behavioral consultation by the ACE special education teacher, sixty minutes of social skills consultation by the adjustment counselor, and social skills training thirty minutes per week. (SE-2) Student’s behavioral intervention plan was amended and attached to the IEP. Additionally, Student would receive supervision during recess. (SE-2) On May 3, 2007, Parent rejected certain portions of the behavioral plan which mentioned the ABC and suspensions, and accepted the remainder of the IEP amendment on an interim basis. (SE-2)

10. Salisbury Elementary School has four Individual Instruction Rooms within the building. (SE-11) Two are located on the first floor and two on the second level, each on opposite sides of the building. Each room has a door with a window on it for visibility. (SE-11) The rooms are used to conduct tutoring at the request of the staff before or after school; testing (such as for MCAS, special education and other standardized tests, as well as for students who require a less stimulating environment to take general classroom tests); to complete academic tasks; and as a private quiet setting to conduct counseling sessions. (SE-11)

11. The IIR rooms are also used to secure a student’s safety when his/her behavior may endanger him/herself or others. (SE-11) Triton’s description of the use of the room during “emergency procedures” states

An “Emergency procedure” involves a student who has begun to escalate and has the risk of hurting self or others. A student exhibiting this behavior may be directed to an Individual Instruction Room to begin the process of identifying the student’s needs and determining an appropriate intervention. The staff involved in these situations have been trained and certified through Crisis Prevention Intervention (CPI). The student is guided through prompts to demonstrate calm and safe behavior. Calm behavior can be defined as exhibiting a seated position with hands and feet relaxed, voice/tone is appropriate, and student is able to identify appropriate choices. (SE-11)

12. Some of the IIRs have a desk or a table and chairs. (Testimony of Mr. Montenari) According to Ellen Lincoln, social worker at Salisbury Elementary School, (SE-12) the IIRs are small enough to enable her to get Student’s attention and get him re-directed when he is having behavioral difficulties. (Testimony of Ms. Lincoln) Student was aware that when he was taken to an IIR, the goal was for him to calm down and return to the classroom. ( Id .) Parent observed the IIR closest to Student’s first grade class on May 30, 2007. (Testimony of Parent)

13. In March 2007, Student was suspended for two days after he grabbed another student when going to pictures in the common room. (PE-15) He had another in-house suspension on March 19 after punching the guidance counselor, Ms. Odle, in the chest. (PE-17; Testimony of Mr. Montanari)

14. On April 24, 2007, Student was removed to the IIR for behavioral issues. (PE-26) On that day, Student’s difficulties began after lunch. Back in the classroom, he punched a female classmate in the stomach twice and when Ms. Farrell tried to intervene he kicked and hit her several times in the chest and legs. Ms. Shea and Ms. McNamara took Student to the IIR diagonally across the hall from his classroom where he was able to calm himself. He was informed by Ms. Shea that he would complete his afternoon work in the IIR with the assistance of a familiar staff. Approximately fifteen minutes later as the staff began the math activity, Student’s behavior began to escalate. He pushed by adults in an attempt to leave the room and when reminded that he would work in the IIR, he began to kick the staff. The ACE staff made the determination to remove furniture from the room to ensure safety, stepped outside of the room and observed Student through the window on the door, while cueing Student to sit with calm hands and feet. Student began to kick the door and walls, and after some unsuccessful cueing his shoes were removed. Student began to cry but then was able to calm himself. He was then approached by Ms. McNamara and after some verbal exchanges and inappropriate language expressed by Student, he stated that when people “ hurt my feelings I hit their bodies”. (SE-26)

15. Student’s most concerning behavioral incident occurred on May 16, 2007. (PE-31) Student was in the classroom having difficulties remaining on task. He began running around, and jabbing a pencil at Ms. Le Sage, unable to respond to cueing. He was escorted to the IIR and cued to sit and show calm hands and feet. Instead, he began to kick, scratch and punch Ms. Lesage. He grabbed twisted and punched her breast while attempting to take the school radio away from Ms. Lesage. Ms. Lincoln entered the room and found Student banging the walls and door. He continued to be combative and responded to verbal cues with “shut the f_ _ _ up”. Student grabbed Ms. Lincoln’s crotch and twisted at which point Ms. Le Sage and Ms. Lincoln placed him in a Children’s Control Position (CCP), and his shoes were removed. He bit Ms. Lincoln’s shirt but then began to calm down after a couple of minutes. He was released from the hold but soon thereafter began to escalate his behavior again, approaching the staff in the doorway and gesturing to spit; he punched and kicked them. He was again placed in the CCP as he continued to struggle. Student then bit Ms. Lincoln in the arm requiring medical assistance. Mr. Montanari entered the room at that point and determined that the hold be terminated. Since in the administration’s opinion Student’s behavior was severe, an ambulance was called to bring Student to the emergency room, and Parents were contacted. Parents opted to transport Student to the emergency room where he was evaluated and determined not to be a danger to himself or others. (PE-31; Testimony of Mother, Ms. Lincoln; Ms. Le Sage; Mr. Montanari) He was discharged home with recommendations to see the ENT and audiology doctors, discuss supportive counseling services and discuss interim behavioral strategies. (PE-31)

16. Additional behavioral incidents occurred throughout the period from February through May 2007. (PE-7; Testimony of Mr. Montanari)

17. Throughout this period, Parents remained very involved corresponding and emailing frequently with Triton. They also requested and participated in several meetings and conducted two observations of Student in the classroom. (PE-18; PE-19; PE-20; PE-23; PE-21; PE-22; PE-26; PE-33)

18. Following the incident of May 16, 2007, Parents decided not to send Student to school between May 16 and May 31, 2007. (Testimony of Parent) On May 24, 2007, Mr. James Montanari, School Principal, notified Parents in writing of Student’s need to be in school and of the school’s desire to implement the IEP amended on May 3, 2007. (SE-8; Testimony of Mr. Montanari) During this period, Triton’s attorney communicated with the BSEA requesting a conference call with the hearing officer, in an attempt to alleviate whatever concerns Parents had so that Student could return to school. Following a telephone conference call on May 31, 2007, Student returned to Triton.

19. The Team reconvened on May 22, 2007, after which the following additional amendments were made to address Student’s social, emotional and academic needs: individual counseling once per week for thirty minutes; social skills group once per week for thirty minutes; benchmarks for social skills and counseling were added; and Student would be provided flexibility to receive math class in a small group outside the classroom as needed. (SE-3) On June 1, 2007, Parents accepted the plan on an interim basis. ( Id. )

20. Pursuant to the May 2007 team meeting and IEP, Student began to receive support services in the ACE room, and counseling from Ellen Lincoln, LICSW. (SE-12; Testimony of Ms. Lincoln) Ms. Lincoln continues to work with Student to date. According to Ms. Lincoln, Student was removed to the IIR when his behavior required de-escalation. She testified that the room was small enough to get Student’s attention, it provided a safe environment, and helped Student de-escalate his behaviors so that he could return to the classroom.

21. Ms. Lincoln testified that Student related that while an uncle of Student stayed at the Student’s home, Student was staying up late at night to watch what she described as inappropriate television shows and video games with violent themes. In her opinion, these home experiences contributed to Student’s display of hyperactive and inappropriate behaviors in school. (Testimony of Ms. Lincoln)

22. In September 2007, Student began receiving counseling outside the school district with Wendy R. Osgood, child and family therapist and licensed mental health counselor. (Testimony of Ms. Osgood) At the time of the hearing, she had met with Student four times to assess him and figure out what was causing Student’s maladaptive behaviors. Each session lasted one hour but she spent at least half an hour of each session consulting to mother. Of the four hours total she had spent with Mother and Student, approximately two hours total had been spent with Student. She had not observed Student in Triton and the only person there with whom she had spoken was Ms. Lincoln twice. (Testimony of Ms. Osgood) According to Ms. Osgood, Student was prone to exaggeration. (Testimony of Ms. Osgood) She opined that Student needed to talk about his life, family, friends and school in a setting outside the school. In the future she is planning to do family therapy and to treat Student for trauma and cognitive distortions. (Testimony of Ms. Osgood)

23. Ms. Lincoln and Wendy Osgood, testified that Student was receiving weekly counseling with Ms. Lincoln at Triton since April, 2007. (Testimony of Ms. Lincoln, Ms. Osgood) According to Ms. Lincoln, it was appropriate for Student to process school related behavioral issues in school so that the problem could be processed in context and the solution could be incorporated into Student’s life at school. They agreed that ongoing dialogue between Ms. Lincoln and Ms. Osgood would be appropriate and could occur to address any non-school related home issue. (Testimony of Ms. Osgood, Ms. Lincoln)

24. Student’s Team met again on June 12, 2007. (SE-1)

25. Following Parents’ request for hearing in May 2007, the Parties participated in a Pre-hearing Conference on June 20, 2007. (See Administrative Record) During the Pre-hearing Conference Christine Kneeland of Triton stated to Parents that Triton would agree to reimburse Parents the rate setting rate for Student’s independent neuropsychological evaluation performed by Joan Frankhauser. (Testimony of Ms. Kneeland) At hearing Triton stipulated that it would pay the amount offered and that it had initiated funding the allowable fee of $752.40. This equated to $62.70 per hour for 12 hours. (Testimony of Ms. Kneeland)

26. Later in June 2007, Parents received a telephone call from Sandy Soucy, Dave Dempsey’s clerical assistant at Salisbury Elementary School, ETC and summer ESY coordinator for Triton. (SE-6) Ms. Soucy informed Parents that Student was being offered summer services. This program is called Adventures in Learning and Fun. (SE-6; Testimony of Ms. Kneeland) Parent testified that she became distressed by the person who made the phone call. According to Mother, this individual had previously threatened to smear peanut butter on the school walls, knowing that Student was allergic to peanuts.3 In her distress, Parent mistakenly assumed that the person making the phone call would be delivering Student’s summer services. (PE-50; Testimony of Mother) Ms. Kneeland testified that the individual placing the call would not in any manner have been involved in the delivery of summer services to Student. Parent testified that in her opinion having had the particular secretary place the call constituted harassment. (Testimony of Mother)

27. On October 25, 2007, the Parties participated in a settlement conference with Reece Erlichman, BSEA Assistant Director, and were able to resolve most of the issues between them. The agreement was incorporated into Student’s IEP. (SE-3) This agreement addresses in district services until an out of district placement is secured.

CONCLUSIONS OF LAW

Student is an individual with a disability falling within the purview of the Individuals with Disabilities Education Act4 (IDEA) and the state special education statute.5 As such, Student is entitled to a free appropriate public education (FAPE).6 Student’s eligibility status and entitlement to FAPE are not in dispute. The Parties’ discrete disputes relate to issues which arose during Student’s first grade placement at Salisbury School during the 2006-2007 school year. Upon careful review of the evidence I find that Parents failed to meet their burden of persuasion pursuant to Schaeffer v . Weast , 126 S.Ct. 528 (2005)7 , and therefore, Triton is not responsible to reimburse Parents or compensate Student as claimed by Parents. In reaching these conclusions, I incorporate by reference and expand upon the facts delineated in the Facts section of this decision. Each section of Parents’ allegations is addressed separately below.

Whether Student’s desk was inappropriately placed in the corner of the classroom with Student’s back to the class for nearly six weeks during the second semester of the 2006-2007 school year?

Parents argued that the length of time Student’s desk was removed from the pod and placed at the front of the classroom was approximately six weeks minus the 11 days of the February vacation. (PE-9; Testimony of Ms. Farrell, Mother) Parent testified that Student was having recurrent ear infection during the period between February and March 2007. Parents argued that placing Student’s desk away from the pod and “isolated” from the rest of the class was inappropriate and caused Student’s frustration to build-up, culminating in behavioral outbursts in an attempt to gain attention. (Testimony of Mother) Parents argued that the seating arrangement impacted on Student’s self image and created social isolation. According to Parents, Student’s seating was discriminatory and not “preferential”.

The documentary evidence presented by the Parties presented discrepancies regarding the dates of Parent’s observation of Student’s classroom and hence the length of time that Student’s desk was positioned away from the pod. At hearing, when presented with these discrepancies, Ms. Farrell conceded that she had been mistaken regarding the exact length of time that Student’s desk was away from the pod and agreed that it was between February 12, 2007 and March 22, 2007, the day of Mother’s observation, minus the eleven days of February vacation. Ms. Farrell testified that the Student’s desk was moved because Student’s behavior was getting worse and was negatively impacting other students as well. He would talk, get in students’ personal space, and engage in name calling. In March 2007, he spit at a girl, hit a boy, kicked another, punched and kicked staff members, knocked another girl and stomped on her legs. (PE-7; Testimony of Ms. Farrell) According to this witness, Student was more productive and industrious in completing his work while the desk was away from the pod. At times he used his ear phones to listen to music and block-out classroom noise. (Testimony of Ms. Farrell) Mother’s observation notes of March 22, 2007 corroborate that Student was able to concentrate and work on his math worksheet while at his desk, using his music headphones, away from the class. (PE-21)

Triton argued that the accommodation was consistent with Student’s IEP and proved to be “appropriate, effective and needed.”

The Parties’ views differ in that Parent believes that the seating arrangement away from the pod caused the increase in behavioral outbursts, while Triton argued that the seating arrangement was a necessary response to Student’s increased inappropriate behaviors. The facts support a finding that the preferential seating was consistent with the accommodations in Student’s IEP (SE-4; SE-3). There were at least two behavioral incidents for which incident reports were written, January 22 and February 8, 2007, involving teasing, name-calling and disobeying rules in class. Ms. Farrell testified to the types of inappropriate behaviors observed during this period which led to her decision to remove Student from the pod. Parent presented no evidence from which it could be concluded that the decision to remove Student’s seat was not warranted, and according to Ms. Farrell, once removed from the pod Student was better able to work in class. Ms. Farrell further testified that additional behavioral incidents occurred while Student was reunited with the rest of the class, not while he was at his seat away from the pod. She further stated that when she addressed the class from the front, she did so while standing next to Student so as to better monitor his behavior.

The evidence shows that Student’s behavior continued to escalate during March, April and May 2007, which according to Ms. Lincoln, coincided with a family member staying in the home and Student stating that he was staying up late and watching violent games and television programs. (PE-7; PE-10, PE-11; PE-14; PE-15; Testimony of Ms. Lincoln) Moreover, Student’s inappropriate behaviors persisted and worsened during March, April and May 2007, even after his desk was moved back to the pod. (PE-7; PE-26) In fact, Student’s most out of control behavior occurred on May 16, 2007. (PE-26) According to Ms. Odle, school adjustment counselor, most incidents happened during transition times or recess, and the incidents involved impulsive reactions on Student’s part where he acted quickly, misreading the situations. (PE-24)

Parents are correct that the position of Student’s desk discouraged interactions with peers while interaction among the students whose desks were in the pod may have been encouraged by the proximity and arrangement of the seats. The undisputed testimony was that Student’s behavior was distracting and inappropriate, which prompted the desk to be removed from the pod precisely to discourage interaction with others so that he, and others, could concentrate on their work. From this standpoint removal of Student’s seat from the pod until his behavior no longer interfered with his ability to avail himself of an education would have been appropriate.

The evidence is also persuasive that a combination of Student’s behavior and his separation from the pod, may have resulted in distancing Student from his friends, and hence his perception that his friends “no longer wanted to play with him because he was one of the bad kids.” (Testimony of Mother) Parents’ argument that the position of Student’s desk caused the separation between Student and his friends fails in that it ignores the impact that Student’s behavior may have been having on other students. Parents failed to present sufficient evidence to support a finding that the socialization issues were the result of positioning of the desk and nothing else.

The evidence presented at hearing is insufficient8 to conclude that the removal of Student’s seat away from the pod was inconsistent with the preferential seating accommodation in Student’s IEP, or that the escalation in behavioral incidents was the result of the change in the seating arrangement in the classroom and not the circumstances described by Student in the home. Therefore, I find that Parents failed to meet their burden of proof with respect to this claim.

Whether Student was removed from his program and placed in a closet-sized room and/or in other inappropriate places?

Parents’ argument that Triton’s use of the IRR was inappropriate and that the room itself was inappropriate are simply not supported by the evidence. Triton’s witnesses testified that the room was used when Student’s behavior escalated or was inappropriate. These behaviors included: inability to attend to task, running around the classroom or climbing, being disruptive to other students and invading their personal space, gesturing to other students, inability to take cues or be redirected, picking up objects as if to throw them, and assaulting, hitting and grabbing peers and service providers. (Testimony of Ms. Lincoln, Ms Le Sage) Triton’s staff further testified that placement in the IRR helped Student calm down and enabled him to return to the classroom to resume classroom activities. (Testimony of Ms. Farrell, Ms. Lincoln)

The testimony presented by Triton supports a finding that removal of Student to the IIR room was necessary and appropriate. This setting was appropriate and helpful in aiding Student calm himself down and regulate his behavior which, as described by Ms. Lincoln, Mr. Montanari and Ms. LeSage was extreme at certain times. .

Parents’ allegation regarding this issue are not supported by the evidence.

Whether Parents are entitled to reimbursement in the amount of $ 1,160.00 for the independent neuropsychological evaluation performed by Joann Frankhouser, Psy. D.?

On July 28, 2007 Parents requested that Triton fund an independent neuro-psychological evaluation of Student by Dr. Frankhauser. They further indicated that their insurance would cover $840.00 of the $2,000.00 charged by Dr Frankhauser, and asked that Triton fund the remaining $1,160.00. (PE-45; PE-49) Parents reasoned that the Massachusetts Rate Setting rates allowed for reimbursement of $62.70 x 12 hours for the evaluation in addition to $62.50 x 2 hours for Neurobehavioral interview and 62.70 x 4 hours for consultation/medical records review, totaling $1,168.60 pursuant to 114.3 CMR 29.03. Parents presented no evidence to show that individual considerations were warranted under the regulation cited.

Parents also request that if a finding is entered that the rate setting rates support only the reimbursement offered by Triton, they should be reimbursed the additional amounts based on procedural violations allegedly committed by Triton.

Triton argued that 114.3 CMR 29.03(2)9 establishes the Massachusetts’ rate at which Parents may be entitled to reimbursement for independent neuropsychological evaluations. Since June 20, 2007, Triton offered and agreed to reimburse Parents the allowable amount, $752.40, and indeed had initiated funding at the time of the hearing. (Testimony of Ms. Kneeland) Triton argued that as a matter of law, and consistent with 603 CMR 28.04(5)(a) addressing allowable fees for psychological testing of the hearing impaired, Parents were not entitled to anything over said amount.

603 CMR 28.04(5)(a) provides that

5. Independent education evaluations. Upon receipt of evaluation results, if a parent disagrees with an initial evaluation or reevaluation completed by the school district, then the parent may request an independent education evaluation.
(a) All independent education evaluations shall be conducted by qualified persons who are registered, certified, licensed or otherwise approved and who abide by the rates set by the state agency responsible for setting such rates. Unique circumstances of the student may justify an individual assessment rate that is higher than that normally allowed.

Triton has agreed to reimburse Parents at the maximum rate setting rate of $752.40, which according to Triton, is, as a matter of law, all that Parents are entitled to receive regardless of the circumstances that led Parents to proceed with an independent evaluation expeditiously, by a provider who charged over the rate setting rate. At hearing Parents did not meet their burden of proof with regard to challenging Triton’s offer. The documentary and testimonial evidence offered by parent was lacking in both the information and specificity necessary to evaluate their claim. Parents also did not make a case for individual special consideration status under the regulations. Parents are therefore, not entitled to any additional amount beyond that offered by Triton.

Whether Parents are entitled to reimbursement of $200.00 worth of insurance co-payment to Student’s therapist Wendy Osgood?

Parents asserted that Ms. Osgood and Ms. Lincoln both supported counseling for Student in and out of school, as well as ongoing communications between the school’s and the outside providers. (Testimony of Ms. Osgood, Ms. Lincoln) Ms. Osgood opined that Student’s learning disability affected his self-esteem and he continued to be at risk for further behavioral incidents in school. Ms Osgood further testified that she intended to work on issues pertaining to home and friends but at present had focused on school issues. (Testimony of Ms. Osgood)

Parents argued that Student’s psychological issues stemmed from Triton’s inappropriate actions such as placing Student’s desk in a corner away from the pod, using a “closet-size” room, the IIR, and suspending Student inappropriately. Parents further claimed that Student’s behavioral issues were “largely confined to the educational setting”, and according to Ms. Osgood, Student should be able to talk in a neutral setting. Parents however, described behavioral difficulties with Student at home and in the community in a document dated May 8, 2007. (PE-29)

Triton argued that Parents had failed to establish that Student required outside counseling for educational reasons, and that nothing in Student’s outside therapist’s testimony supported such a finding.

Ms. Osgood testified that she has recently begun to work with Student and that approximately half of her time was spent with Parent, as well as planning for the BSEA hearing. Triton argued that Ms. Osgood had never seen Student’s IEP and that she had provided no reasons why Student’s current program required a second therapist, especially where Mother acknowledged in her testimony the appropriateness of Student’s counseling sessions with Ms. Lincoln in Triton.

The evidence shows that while Student may benefit from counseling in and outside Triton, there is no evidence to support a finding that outside counseling is needed for educational reasons. Moreover, Ms. Lincoln testified that in her opinion Student should process school-related issues in school and she felt capable of addressing them. (Testimony of Ms. Lincoln)

Whether Parents are entitled to reimbursement of the insurance co-payment for uninsured portions of Student’s weekly counseling with Wendy Osgood into the future?

For the reasons explained in the previous section, I find that Parents failed to establish a basis to support reimbursement or prospective payment for the private therapy sessions provided by Ms. Osgood to Student.

Whether Student is owed compensatory services for the time he was removed from his program and placed in the IIR room or some other setting?

Parents argued that Triton failed to recognize that Student’s disabilities were playing a significant role in Student’s increased inappropriate behaviors. On March 19, 2007, they alerted Triton of this belief. (PE-18) Triton’s records show that Student was suspended from his program on eight occasions between March 15 and May 2, 2007. (PE-7; PE-17; PE-26) He was also removed from the classroom and given services in the IIR due to inappropriate behaviors. On May 16, 2007, Student’s behavior escalated to a point where he had to be put in a two-person restraint in the IIR after hitting, punching, kicking, and biting one staff member. (PE-7; Testimony of Ms. Lincoln) The documentary and testimonial evidence show that all of the removals were precipitated by inappropriate behavioral incidents, and were warranted to aide Student to calm down. Additionally, removal to a location such as the IIR was part of Student’s behavioral plan accepted by Parents.10 (SE-2)

Triton correctly argued that Parents established no basis to support that Student’s removals to the IIR were inappropriate and as such they do not warrant provision of compensatory services. The testimonial evidence provided by Triton through the credible testimony of Ms. Lincoln, Mr. Montanari, Ms Farrell and Ms. La Sage support a finding that Student’s use of the IIR was appropriate and consistent with his IEP.

Whether Student is owed compensatory services for the eleven days of school he missed from May 16, 2007 to May 31, 2007, and for the six weeks of summer programming during the summer 2007?

The testimony supports a finding that Student was neither suspended nor excluded from school between May 16 and May 31, 2007. The Wednesday May 16 incident involved Student’s behavior escalating to the point where he had to be placed in restraint after, hitting, kicking, cursing, grabbing at a staff member inappropriately and biting another staff member. (SE-7; Testimony of Ms. Lincoln, Ms. Le Sage) A re-entry meeting took place on Friday May 18, 2007, following Student’s risk assessment on May 16. Mother met with Ms. Lincoln but Student began to crawl on the floor and talked like a baby. (Testimony of Ms. Lincoln, Mother) A decision was made to have Student go home and to contact Mr. Stokes the behavioral consultant, to work on a plan to address the new behaviors and attempt a successful re-entry. In her testimony, Parent conceded that she had chosen to keep Student out of school during this period because she thought that Ms. Lincoln would be contacting Mr. Stokes. On Monday May 21, 2007 Parents faxed a letter to Christine Kneeland, expressing their concerns, requesting counseling for Student, a meeting to review the functional behavioral assessment, and a plan to ensure that Student would be successful in the classroom before Student could safely return to school. (PE-32; Testimony of Parent) The Parties met on May 22, 2007, agreeing to amend the IEP to include counseling services for Student and services in the ACE program. (Testimony of Ms. Kneeland, Mother) Parents contacted the school again on May 23, concerned that Mr. Stokes would be unavailable, that they had safety concerns, and sharing their interpretation of the plan regarding when to contact Dr. Stokes. (PE-33) On May 24, 2007, Mr. Montanari wrote to Parents expressing his concern over Student’s continued absence from school and need to return to his educational program. (SE-8) Parents responded the same date that they continued to have safety concerns without changes to the behavioral plan addressing crisis protocols. (PE-33)

In its brief, Triton argued that it initiated a conference call with the BSEA hearing officer in an attempt to encourage Parents to return Student to school. (Testimony of Mother)

The evidence supports a finding that Student’s absences from school were the result of parental choice, because of Parents’ safety concerns, and not a school exclusion. Therefore Triton is correct that Parents’ claim for compensatory services for the period between May 16 and May 31, 2007, is unsubstantiated. Triton does not owe Student compensatory services for the period from May 16 and May 31, 2007.

Regarding compensatory services to Student for the six-week summer programming during the 2007 summer, the evidence does not support a finding in favor of Parents. The testimonial evidence shows that Triton offered Student participation in a six-week summer program. (Testimony of Ms. Kneeland) Because of an emotional reaction to the person making the call to inform Parents of Student’s summer programming, Parents mistakenly assumed that the person making the call would be responsible for delivering the services to Student. This misunderstanding caused Parents not to access the summer program available to Student. Parents’ misunderstanding had the regrettable result that Student did not access the summer services available to him. Since a summer program was however available to Student Triton does not owe compensatory services for the summer 2007.

Whether Parents are entitled to reimbursement for the $150.00 application fee paid by them to Landmark School?

Parents state that the functional behavioral assessment evaluator recommended that Student receive his education in a small classroom setting, and that the independent evaluator recommended participation in a self-contained classroom. Based on these recommendations, Parents decided to research possible programs in the area when Triton opposed out of district placement for Student. Parents decided to apply to Landmark School. Thereafter, Triton agreed to place Student outside the district and memorialized this commitment in a settlement agreement. Parents therefore, request to be reimbursed for the Landmark School application.

Triton asserts that it was never notified of Parents’ decision to unilaterally file the application to Landmark School on behalf of Student. Triton further asserts that the application was not authorized by Triton, and Student is not receiving any educational services from Landmark School. Triton takes the position that it is therefore, not liable to Parents for this expense. I agree. Parent always have the right to file applications to any school or program they choose. Except for certain situations (such as where the student later attends the program, the school agrees to fund the placement, or is ordered to fund it), when filing applications to private programs on their own accord, parents cannot subsequently require a school district to reimburse them. This is the case here, where Student is not enrolled at Landmark School, Parents did not consult Triton prior to filing the application, nor has there been an order requiring Triton to place Student there.

ORDER:

Parents have failed to meet their burden of proof and are therefore not entitled to any of the remedies sought, consistent with the aforementioned conclusions.

So Ordered by the Hearing Officer,

_____________________________________

Rosa I. Figueroa

Dated: December 17, 2007

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1

Under the Parties partial settlement agreement signed on October 25, 2007, the Parties agreed that I would retain jurisdiction over this case through the conclusion of the 2007-2008 school year. The Parties further agreed that Dr. Frankhouser would not be called to testify as a witness.


2

“A. The parents continue to seek Findings of Fact and any appropriate action to be taken regarding harassment, discrimination and certain violations. Specifically:

1. Student’s parents reported to the school Principal that they were being harassed and a threat was made to Mother by Sandy Soucy to smear peanut butter throughout the school in retaliation for the nut ban in May of 2006. The principal assured the parents the school was taking appropriate actions to protect children with allergies, when in fact the school failed to investigate or act on this threat. Triton hired Mrs. Soucy less than 3 months later. They also named her as the Volunteer Co-coordinator for the 2006-2007 school year. Student and his parents were discriminated against when Mother was no longer invited to volunteer in school, in spite of her weekly volunteer efforts of the past. Triton committed further harassment when they assigned Mrs. Soucy to call the parents to offer Student’s 2007 summer services in spite of their complaints.

2. Triton failed to respond to the parents regarding concerns over the PTA fundraiser containing nut products, which would potentially violate Student’s IEP. Triton then violated their rights by informing other parents of their intent to seek a restraining order to honor the nut ban incorporated into Student’s IEP.

3. Triton discriminated against Student and caused him harm through inappropriate punishments and/or actions. Specifically by:
(a) Inappropriate placement of Student’s desk in the corner of the classroom with his back to the class for nearly 6 weeks.

(b) Removing Student from his program for placement in a closet-sized room and/or other inappropriate places.

(c) Refusing to consider the impact of Student’s disabilities and/or their own discriminatory actions on his behavior.

4. School officials have discriminated against and harassed Student by documenting false allegations against him, assigning him punishments more severe than those assigned other students and communicating false, misleading, and/or defamatory information to others.

5. Triton refused Student and/or his parents their right to receive notice of suspension and/or refused to honor their right to appeal suspensions.

6. Triton ignored the parent’ multiple complaints regarding threats made, harassment and discrimination. Triton failed to investigate, act or respond to these complaints. The school district is incapable and/or unwilling to protect Student from the inappropriate and/or illegal acts of their own personnel.

B. The parents request payment of $1,160.00 for the independent Neuro-psychological evaluation performed by Dr. Frankhouser.

C. The parents request reimbursement for $200.00 worth of insurance co-payments to Student’s therapist, Wendy Osgood. The parents also request Triton be ordered to continue reimbursing the parents for any co-payments or uninsured portions of Student’s weekly counseling with Ms. Osgood in the future.

D. The parents are requesting compensatory services for the following:

1. The time Student was suspended from school inappropriately and/or without a right to appeal.

2. Time Student was removed from his program to the IIR room or some other setting

3. 11 days of school Student missed from May 16 th to May 31 st of 2007.

4. 6 weeks of summer programming not provided

5. any time it is determined that Student was not provided his 30 minutes a day of Math and/or 30 minutes a day of Writing per his IEP

E. The parents are requesting reimbursement for the $150.00 application fee paid to Landmark School.”


3

Triton states that it has no knowledge of the threat to smear peanut butter around the school.


4

20 USC 1400 et seq .


5

MGL c. 71B.


6

MGL c. 71B, ss. 1 (definition of FAPE), 2, 3.


7

Schaeffer v . Weast , 126 S.Ct. 528 (2005) places the burden of proof in an administrative hearing on the party seeking relief.


8

Parents’ allegations that the teacher “spoke to Student with his back facing her and then criticized him for not following directions, when Student could not hear the teacher” was concerning. Parents’ allegations were not however, corroborated by the teacher or any other Triton staff member, who presented a different albeit equally plausible perception of what was going on in the classroom. I do, however, credit Mother’s testimony with respect to Ms. Farrell conducting a portion of her instruction from the center of the class and away from Student on the day Mother observed the program. As to that incident, Ms. Farrell’s conduct could have resulted in Student’s inability to hear her while she was away from him.


9

“ Effect of Regulation . The rates of payment contained in 114.3 CMR 29.00 constitute full compensation for services rendered to publicly-aided individuals as well as for administrative or supervisory duties associated with those patient services.”


10

Student’s behavioral plan specifically states on page 2 that Student “will relocate to an alternative setting (Individual Instruction Room) in order to limit frustrations/distractions to him and/or his classroom peers. A simple task will be provided for [Student] to demonstrate he is in control of his behaviors. If [Student] refuses to independently relocate to the alternative setting, an administrator (principal or assistant principal) will be notified to assist with the escort.” Said plan describes the types of infractions for which Student will be removed to the IRR: “typical infractions include but are not limited to any instance of physical aggressions with an adult/peer either with a hand (push, pull, hit), foot (kick, trip), or object (throw, swing). Any repeated intrusion into the personal space of a specific adult/peer. Any instance of name-calling or put-downs directed toward an adult/peer.” The plan also states that in extraordinary situations that place Student or others in danger: “[Student] will be relocated to an alternative setting in order to provide safety for him and staff/peers. His academic work will be provided and SPED staff will monitor instruction. If [Student] refuses to independently relocate to the alternative setting, an administrator (principal or assistant principal) will be notified to assist with the escort. Administration will notify ACE staff and, if necessary John Stokes, District Behavior Consultant. A parent or the emergency contact person will be notified by phone. Administration, along with ACE staff and /or John Stokes, will determine if [Student] should remain in school or be suspended for the remainder of the day. ” ( PE-28; SE-2)


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