COMMONWEALTH OF MASSACHUSETTS
SPECIAL EDUCATION APPEALS
In Re: Boston Public Schools
BSEA # 01-3375
DECISION
This decision is issued pursuant to 20 U.S.C. 1401 et seq . (the “IDEA”), 29 U.S.C. 794, M.G.L. chs. 30A, 71B, and the regulations promulgated under said statutes.
An expedited hearing was held on February 8, 2001 in Malden, MA before William Crane, Hearing Officer. Those present for all or part of the proceedings were:
Student’s Father
Student’s Mother
Diane Molle Advocate for Student
Eric O’Connor Attorney, Boston Public Schools
Reece Erlichman Special Education Litigation Director, BPS
Charlene Cook Assistant Program Director, BPS
Anne Houlihan Special Education Teacher, BPS
Wesley Manaday Principal, Eliot School, BPS
Juliann Tobin Educational Team Facilitator, Eliot School, BPS
Tina Stella Program Director, McKinley School, BPS (via telephone)
The official record of the hearing consists of documents submitted by the Student’s parents (hereafter, Parents) marked as Exhibits 1 and 2, documents submitted by the Boston Public Schools (hereafter, BPS) marked as Exhibits A through H, and approximately four hours of recorded oral testimony and argument. The testimony was provided by three BPS witnesses (Manaday, Houlihan and Stella). The parties made oral closing arguments on February 8, 2001, and the record closed on that date.
The Hearing on February 8, 2001 was limited to BPS’s request for an interim alternative educational setting, which, if granted pursuant to 34 CFR 300.521, would be for a period of not more than 45 calendar days.
ISSUE PRESENTED
Whether Student’s participation in his current placement presents safety concerns sufficient to order a change in placement, and if so, whether the McKinley School is the appropriate interim alternative educational setting for not more than forty-five days pursuant to 34 CFR 300.521.
PARENTS’ POSITION
Parents take the position that Student’s behavior has not been so serious as to warrant a change in placement. Alternatively, they argue that any behavior difficulties may be addressed by adding services or making modifications to the current placement at the Eliot School.
BPS’S POSITION
BPS takes the position that Student’s behavior has escalated to the point that he is a danger to himself and others, that BPS has made all reasonable efforts to address this behavior within the current placement, and that a placement at the McKinley School would provide a temporary alternative that would be safe and could appropriately address his academic needs.
PROFILE OF STUDENT
Student is an eight-year-old resident of Boston. He is in the 2 nd grade at the Eliot School, which is part of BPS. Student’s strengths are his academic abilities – he is considered to be one of the best readers in his class, and does well in writing and math. Testimony of Houlihan. His nonverbal reasoning is within the high average to superior range. Exhibit 2 (7/1/99 Report of Psychometric Testing of Student at Massachusetts General Hospital). Student has made significant academic progress at the Eliot School last year and this year. Testimony of Houlihan.
Student has clinical indications of dyslexia, attention deficit and hyperactivity. His receptive language skills fall within the borderline range, and Student finds it extremely difficult to process language. Exhibits 1 (letter of July 16, 1999 from Florence Lai, MD, of Massachusetts General Hospital), and 2. In order to address these deficits, Student attends a language-based classroom in the Eliot School.
FINDINGS AND CONCLUSIONS
Student is an individual with a disability, falling within the purview of the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. s. 1400 et seq . and M.G.L. c. 71B. As such, he is entitled to a free, appropriate public education which is reasonably calculated to assure his maximum possible educational development in the least restrictive environment consistent with that goal. David D. v. Dartmouth School Committee , 775 F.2d 411, 423 (1 st Cir. 1985). Neither his status nor his entitlement is in dispute.
The issue presented, however, is not what long-term educational placement will satisfy this standard of maximum possible educational development in the least restrictive environment, but rather whether Student should be placed, on a temporary basis, at an alternative educational setting because in the current placement there is allegedly a substantial likelihood of injury to Student and others. Although a principal focus of this case is the safety of Student and others, the analysis must also determine whether the proposed alternative placement can both meet the safety concerns and provide adequate educational services to Student on an interim basis.
The request for hearing in this matter was initiated by BPS, seeking a temporary placement under the authority of federal regulations (under the IDEA) at 34 CFR 300.521. These regulations provide:
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 meets the requirements of Sec. 300.522.
(e) As used in this section, the term substantial evidence means beyond a preponderance of the evidence.
The federal regulations at 34 CFR 300.522 further explain relevant requirements regarding any proposed alternative educational setting:
Any interim alternative educational setting in which a child is placed under Sec. 300.520 or 300.521 must–
(1) Be selected so as to enable the child to continue to participate in the general curriculum, although in another setting, and to continue to receive those services and modifications, including those described in the child’s current IEP, that will enable the child to meet the goals set out in that IEP; and
(2) Include services and modifications designed to address the behavior described in Sec. 300.520 or 300.521, or any other behavior that results in the child being removed from the child’s current educational placement for more than 10 school days in a school year, so that it does not recur.
Each of the subparts of these federal regulations will be addressed below.
A. Will the maintaining of the current placement of the child be substantially likely to result in injury to the child or to others?
BPS has the burden of demonstrating by “substantial evidence” (meaning “beyond a preponderance of the evidence”) that maintaining the current placement of the child is substantially likely to result in injury to the child or to others. 34 CFR 300.521(a). I find that BPS has met this burden for the reasons described below.
It is uncontested that Student has demonstrated dangerous behaviors. For example, on November 3, 2000, Student became agitated and upset at the end of the afternoon at school, he toppled over a table, told his teacher (Ms. Houlihan) that he would get even with her with a weapon and ran away. Student ran out on to Charter Street where he was in danger of the traffic on the street. Ms. Houlihan followed him and with the assistance of the Principal, brought him back to school but while bringing him back, Student kicked Ms. Houlihan forcefully in the groin. Testimony of Houlihan; Exhibits A (Boston Police Department Incident Report) and B (BPS Incident Report).
On January 16, 2001, after coming back from lunch at school, Student did not follow the request made to all of the students to clear off their desks. Student became agitated and began punching and kicking Ms. Houlihan, and then he ran away. Ms. Houlihan eventually caught up with Student who then held on to her legs, forcing her to fall to the ground. Student kicked Ms. Houlihan while she was on the ground. As a result of this incident, Ms. Houlihan went to the Boston Medical Center for treatment of abrasions and contusions. Testimony of Houlihan; Exhibits A and C (BPS Incident Report).
On January 17, 2001, Student reportedly pushed a 1 st grade student, resulting in the 1 st grade student hitting her head on a steel frame. Testimony of Manaday; Exhibit D (BPS note describing incident). On February 5, 2001, Student reportedly punched a female student. Testimony of Manaday; Exhibit H (BPS Discipline and Incident Report).
On two occasions, between the time of the incidents on November 3 rd and January 16 th , Student threw himself to the ground at school, hitting his head on the floor. Testimony of Houlihan. This behavior has also occurred in the Principal’s office. Testimony of Manaday.
It is the seriousness of these incidents, combined with the unlikelihood of the behavior decreasing in severity, the unpredictable and uncontrolled nature of the aggression, and the inability of BPS to keep its staff and students safe in this situation, that leads me to the conclusion that BPS has demonstrated by “substantial evidence” that maintaining the current placement of Student is substantially likely to result in injury to self or others at the school.
B. Is the child’s current placement appropriate and has BPS made reasonable efforts to minimize the risk of harm in this placement, including the use of supplementary aids and services?
The applicable federal regulations (34 CFR 300.521) require the Hearing Officer to consider the appropriateness of Student’s current placement at BPS and also consider whether BPS has made reasonable efforts to minimize the risk of harm in this placement, including the use of supplementary aids and services. For the reasons described below, I find that BPS has made such reasonable efforts and that in light of the present risk of harm, the current placement is not appropriate at this time.
During the last academic year, a behavior specialist developed recommended strategies to address Student’s behavior. Many of these strategies have been implemented by Ms. Houlihan this year – for example, moving his desk in a way that creates personal space for Student, not touching Student unless he indicates that he is receptive to touch, seeking to avoid confrontation and punitive measures, and maintaining as much structure as possible within the classroom. Testimony of Houlihan. However, these strategies have not proved effective in preventing Student’s behavior difficulties.
Last academic year, a 1:1 paraprofessional was assigned to work with Student. Student assaulted her, resulting in the paraprofessional refusing to continue to work with Student. Testimony of Manaday. The paraprofessional reportedly suffered a bruise on the right side of her head and an injury to her right hand as a result of the assault. Exhibit F (BPS Accident Report). The Principal testified that he sought to obtain a paraprofessional for Student for this academic year but has not been able to do so. Testimony of Manaday.
The current placement at the Eliot School does not have the infrastructure to provide the additional therapeutic/behavioral services and support which are now needed by Student. For example, there is no separate time out room, no crisis interventionist and no consulting psychiatrist, all of which Student needs to address his behavior and therapeutic needs. Testimony of Houlihan, Manaday.
I conclude that BPS has made “reasonable efforts” to minimize the risk of harm.1 I further conclude that because the placement is not safe for Student and others, it is not appropriate.
C. Does the proposed interim alternative educational setting meet the standards set forth in 34 CFR 300.522?
The federal regulations (34 CFR 300.521, 300.522) require that McKinley, as the proposed interim alternative educational setting, enable Student to continue to participate in the general curriculum (within an alternative setting) and continue to receive those services and modifications (including those described in the current IEP) that will enable Student to meet the goals set out in that IEP. The interim placement must also include services and modifications designed to address Student’s behavior as described above. For the reasons described below, I find that McKinley satisfies this standard.
McKinley provides services to each child through a team of six staff. A team provides educational and related services to a maximum of twelve children. The team consists of one teacher, two teaching assistants, two guidance counselors and an assistant program director who oversees the teachers and the individual services being provided to each student. All of the teachers and staff are trained in crisis intervention and behavior management. In addition, through collaboration with a private mental health organization, weekly mental health consultation, individual and family therapy, crisis intervention and liaison with outside services are available to all students at McKinley. Testimony of Stella.
At McKinley, if a student has difficulty with his behavior, he is first given re-direction, then a warning, and then escorted to a separate place where staff are able to sit with the child and after 5 or 10 minutes, the child is escorted back to class. If a child needs more extended time away from his/her classroom, additional time can be spent in time-out or the child can go to a substantially separate classroom. Testimony of Stella.
McKinley has a classroom for 2 nd and 3 rd graders which would be at Student’s academic level. The school has two speech/language therapists available to work with the children, allowing a student to receive speech/language services two or three times each week. McKinley also has a literacy specialist (who has a doctorate in psychology and more than fifteen years experience within BPS) who is available to evaluate Student’s academic needs and make recommendations as to how those needs may be met at McKinley. Testimony of Stella.
Although McKinley would not have available to Student the language-based classroom that he is attending at Eliot, the McKinley teachers, speech/language therapists and literacy specialist would be able to provide or arrange for language-based services, continue to provide occupational therapy once a week for thirty minutes, address the goals and objectives in Student’s current IEP, and in general duplicate academic and related services that Student has benefited from at Eliot. Testimony of Stella.
For these reasons, I conclude that McKinley is an appropriate interim alternative educational setting for Student. More specifically, I find that McKinley would enable Student to continue to participate in the general curriculum (within the alternative setting) and continue to receive those services and modifications (including those described in his current IEP) that will enable Student to meet the goals set out in his IEP. I further find that McKinley includes services and modifications designed to address Student’s behavior.
D. Conclusion and beginning/end of placement.
For the above reasons, I conclude that placement for Student shall be at McKinley. The placement shall be for a period of forty-five calendar days, subject to the following conditions:
· The placement at McKinley pursuant to this Decision shall begin on February 26, 2001; provided, however, that the McKinley placement shall not be implemented pursuant to this Decision if, prior to February 26, 2001, Parents accept an IEP (or the Parents and BPS otherwise reach an agreement) which provides for placement of Student.2
· The placement at McKinley pursuant to this Decision shall end prior to the end of the forty-five period in the event that Parents accept an IEP (or the Parents and BPS otherwise reach an agreement) which provides for placement of Student prior to the end of the forty-five day period.
ORDER
For the reasons set forth above, Student’s educational placement shall be McKinley School for a period up to forty-five calendar days, as explained immediately above in part D of this Decision.
In order to advise the Hearing Officer regarding this case, BPS shall provide to the Hearing Officer a written status report, to be received no later than 5:00 PM on February 21, 2001 . Parents may (but are not required) to also submit a written status report. Any status report shall include an explanation of what proposed continuing role the Hearing Officer should have in this matter.3
By the Hearing Officer,
William Crane
Dated: February 15, 2001
COMMONWEALTH OF MASSACHUSETTS
SPECIAL EDUCATION APPEALS
EFFECT OF BUREAU DECISION AND RIGHTS OF APPEAL
EFFECT OF DECISION AND RIGHTS OF APPEAL
The decision of the Bureau of Special Education Appeals is final and is not subject to further agency review. Because 20 U.S.C. s.1415(e)(2) requires the Bureau decision to be final and subject to no further agency review, the Bureau cannot permit motions to reconsider or to re-open a Bureau decision, once it is issued. Any party aggrieved by the Bureau decision may file a complaint in the Superior Court of competent jurisdiction or in the District Court of the United States for Massachusetts for review of the Bureau decision. 20 U.S.C. s.1415(e)(2). Under Massachusetts General Laws, Chapter 30A, Section 14(1), appeal of a final Bureau decision must be filed within 30 days of receipt of the decision.
Except as set forth below, the final decision of the Bureau must be implemented immediately. Under G.L. c.30A, s.14(3), appeal of the decision does not operate as a stay; rather, a party seeking to stay the decision of the Bureau must seek such stay from the court having jurisdiction over the party’s appeal.
Under the provisions of 20 U.S.C. s.1415(e)(3), “unless the State or local education agency and the parents or guardian agree otherwise, the child shall remain in the then current educational placement,” during the pendency of any judicial appeal of the Bureau decision, unless the child is seeking initial admission into school, in which case “with the consent of the parents or guardian, the child shall be placed in the public school program,” 20 U.S.C. s.1415(e)(3). Therefore, where the Bureau has ordered the public school to place the child in a new placement, and the parents or guardian agree with that order, the public school shall immediately implement the placement ordered by the Bureau. School Committee of Burlington, v. Massachusetts Department of Education , 471 U.S. 359 (1985). Otherwise, a party seeking to change the child’s placement during the pendency of judicial proceedings, must seek a preliminary injunction ordering such a change in placement from the court having jurisdiction over the appeal. Doe v. Brookline , 722 F.2d 910 (1st Cir. 1983); Honig v. Doe , 484 U.S. 305 (1988).
RECORD OF THE HEARING
The Bureau of Special Education Appeals will provide an electronic verbatim record of the hearing to any party, free of charge, upon receipt of a written request. Pursuant to M.G.L. c.30A, 11(6), 14(4), an appealing party seeking a certified written transcription of the entire proceedings, must arrange for the transcription, or portion thereof, by a certified court reporter, at his/her own expense. Transcripts prepared by the party must then be submitted to the Bureau of Special Education Appeals with appropriate court reporter certification for final review and certification. A party unduly burdened by the cost of preparation of a written transcript of the sound recordings may petition the Bureau of Special Education Appeals for relief.
COMPLIANCE
A party contending that a decision of the BSEA is not being implemented may file a complaint with the Department, whose responsibility it shall be to investigate such complaint. 603 C.M.R. s.28.00, 340.0.
In addition, the party shall have the option of filing a motion with the Bureau of Special Education Appeals, requesting the Bureau to order compliance with the decision. The motion shall set out the specific area of alleged non-compliance. The Hearing Officer may convene a hearing at which the scope of inquiry will be limited to facts bearing on the issue of compliance, facts of such nature as to excuse performance and facts bearing on a remedy. Upon a finding of non-compliance, the Hearing Officer may fashion appropriate relief and refer the matter to the Legal Office of the Department of Education for enforcement.
CONFIDENTIALITY
In order to preserve the confidentiality of the child involved in these proceedings, when an appeal is taken to Superior Court or to Federal District Court, the parties are strongly urged to file the complaint without identifying the true name of the parents or the child, and to move that all exhibits, including the transcript of the hearing before the Bureau of Special Education Appeals, be impounded by the court. See, Webster Grove School District v. Pulitzer Publishing Company , 898 F.2d 1371 (8th Cir. 1990). If the appealing party does not seek to impound the documents, the Bureau of Special Education Appeals, through the Attorney General’s Office, may move to impound the documents.
NOTICE OF REVISED BUREAU PROCEDURES
ON RECONSIDERATION/REHEARING
The United States Department of Education, Office of Special Education Programs (OSEP) in its 1990 Monitoring Report, issued July 17, 1991, ordered the Bureau to amend its procedures to eliminate the availability of reconsideration or re-opening as post-decision procedures in the Bureau cases. Accordingly, parties are notified that the Bureau will not entertain motions for reconsideration or to re-open. Bureau decisions are final decisions subject only to judicial review.
In addition, parties should be aware that the Federal District Court for Massachusetts has ruled that the time period for filing a judicial appeal of a Bureau decision is thirty (30) days, as provided in the Massachusetts Administrative Procedures Act, M.G.L. c.30A. See, Gertel v. School Committee of Brookline, 783 F. Supp. 701 (D. Mass. 1992). Therefore, an appeal of a Bureau decision to state superior court or to federal district court must be filed within thirty (30) days of receipt of the Bureau decision by the appealing party.
1
I have concluded that BPS made “reasonable efforts” to minimize the risk of harm for purposes of my determining whether Student should be served in an interim, alternative placement. Nonetheless, I am concerned regarding BPS’s efforts in three areas. First, I am concerned by the failure of BPS to obtain an appropriate paraprofessional this academic year in order to minimize the risk of harm; second, I am concerned by the apparent failure of BPS to utilize a behavior specialist this academic year to re-assess and re-determine what strategies and services may help maintain Student at the Eliot School; and third, I am concerned by the apparent failure of BPS to consider or provide additional supplementary therapeutic and/or behavioral services and/or supports for Student and his teachers at the Eliot School. At the same time, however, I am reluctant to order that Student be maintained in a placement which is currently unsafe when it is uncertain whether BPS can make it safe or how long it would take BPS to do so. The three areas of concern may need to be more fully explored and addressed in any future hearing regarding Student’s placement.
2
Pursuant to a telephone conversation between the Hearing Officer, BPS’s attorney and Parents’ advocate on February 14, 2001, both parties agreed that a placement ordered by the Hearing Officer should not go into effect until February 26, 2001 (which is the first school day following February vacation) in order to allow Parents the opportunity to consider an IEP that was developed at a Team meeting on February 14, 2001 and that is likely to be provided, in writing, to Parents for their consideration on February 16, 2001.
3
At the February 8, 2001 Hearing, the parties agreed that the Hearing Officer should retain jurisdiction over this matter.