COMMONWEALTH OF MASSACHUSETTS
BUREAU OF SPECIAL EDUCATION APPEALS
In Re: Milton Public Schools
BSEA NO. 01-5126
DECISION ON PARENT’S MOTION FOR ORDER OF “STAY PUT” PLACEMENT
This matter comes as the Parent’s Motion for Order of “Stay Put” placement. The Parent is requesting that the Student, who was expelled by the Milton Public Schools under G.L. c. 71 Sec 37H in May 2001, and who was found ineligible for special education in June 2001, be reinstated as a regular education student until an independent evaluation is completed and the TEAM reconvenes to consider it. The Milton Public Schools opposes the Parent’s motion. The Parent did not request the BSEA to hear evidence or rule on the issue of Student’s eligibility, or lack thereof, for special education or his status as a person with a disability under Section 504 of the Rehabilitation Act.
On June 12, 2001 the Parent filed a request for an expedited hearing with the Bureau of Special Education Appeals (BSEA or Bureau) in which Parent sought the following relief:
1. An order allowing [Student] to Stay Put and return to classes immediately;
2. Continued comprehensive evaluation of his needs, including an educational status assessment, teacher assessments, general intelligence testing, and complete psychiatric assessment including projective testing,
3. Therapeutic tutoring;
4. Attorney’s fees
5. All other remedies available under the law.
On June 13, 2001 the BSEA granted Parent’s request to expedite the hearing. On July 5, 2001, pursuant to the parties’ agreement at a June 28, 2001 prehearing conference, the Parent filed an “[A]mended (modified) Request for Hearing.” On July 20, 2001, the Milton Public Schools filed its Opposition to Parent’s Request for Stay Put Order.
A hearing was held on July 26, August 13, August 22, and September 17, 2001. The only issue for hearing was the Parent’s request for a “stay put” order. The official record for this matter consists of approximately thirteen hours of oral testimony and argument; Parents’ Exhibits P-1 through P- 3(j), School’s Exhibits S-1 through S-12; and Hearing Officer exhibits HO-1 through HO-12. Parent’s proffered exhibits identified as P-4 through P-8 were excluded over the Parent’s objection. School’s exhibits S-11 and S-12 are, respectively, an affidavit of Milton’s special education director and copies of portions of certain telephone message books which were admitted without objection after the close of testimony but before the record closed. The record closed on September 24, 2001, after submission of the School’s written closing argument and exhibits S-11 and S-12, referred to above. (Parent elected to submit an oral closing only.)
The following persons were present for some or all of the hearing:
Mother
Student
Leslie E. Bloomenthal Attorney for Parent and Student
Ann Sullivan Administrator of Special Education, Milton Public Schools
Wilfred Bernard Assistant Principal, Milton High School
Aiden Paul Cooper Student Adjustment Counselor, Milton High School
Peter J. Skoglund Teacher, Milton High School
Joao Costa Teacher, Milton High School
Abby Raelin Psychologist, Milton Public Schools
Nicola Favorito Attorney, Milton Public Schools
ISSUE
Does Student, who was expelled from the Milton Public Schools in May 2001 pursuant to G.L. c. 71 Sec. 37H, have the right to “stay put” as a regular education student in Milton High School while awaiting the results of an independent evaluation after Milton initially found him ineligible for special education?
PARENT’S POSITION
When Student committed the infraction leading to his expulsion, Milton knew or should have known that Student had a possible emotional disability, i.e ., depression, because Student’s mother referred Student for an evaluation prior to the offense leading to expulsion; she told school staff that Student had been emotionally affected by a troubled family history including his father’s 1992 suicide; Student had disclosed his emotional problems to the school before the event leading to the expulsion, and Student had a history of disciplinary problems. Milton, therefore, was, obligated to investigate and evaluate Student for at possible disability before April 27, and Student is entitled to the substantive and procedural protections of federal and state special education law, including the right to “stay put” in his regular education placement.
SCHOOL’S POSITION
Nothing in the Student’s academic performance or behavior up until the time of the incident leading to his expulsion, and nothing in Student’s prior school records, gave Milton any reason to suspect that Student had a disability. Before his expulsion, Student was a regular education student, with passing grades and average conduct, as well as a disciplinary history that was within normal limits for typical, regular education ninth graders. Moreover, Mother made no written referral for special education prior to the expulsion, and there is no documentation of any oral request for evaluation. Student’s status, therefore, is as an expelled regular education student.
Based on the evidence in the record and the parties’ arguments, I make the following findings of fact and conclusions of law.
1. Student is sixteen years old, and lives with his mother (Mother) in Milton, Massachusetts.
2. Student began elementary school in a public school in Ludlow, Kentucky. (Mother) In first grade, Student may have been evaluated or referred for evaluation (see Finding No. 5, below), and did receive speech/language services, although the record does not indicate whether Student had an IEP. From second grade on, Student has been a regular education student.
3. On October 13, 1992, when Student was a second grader in Kentucky, his father committed suicide. (Mother, Student) Student’s father had bipolar disorder and substance abuse issues. (Mother)
4. Immediately after the suicide, Student’s mother observed that Student would not talk about his father’s death, did not want to attend school, and was “despondent.” (Mother) At the request of Student’s mother (Mother), who was concerned about Student’s emotional state, the Ludlow, KY special education department conducted a psychological evaluation in late October 1992. (Mother, P-1)
5. The Kentucky evaluation report stated, in pertinent part, that:
[Student] was referred before the end of his 1 st grade completion and was reported to display below grade level academics in all areas, as well as inconsistent performance and processing problems [and] poor fine motor skills…[Student’s] teacher indicates that [Student] appears to be a slow learner, has some difficulties processing auditory information and, at times, appears to be somewhat immature. She also indicates that [Student ] has displayed no outward signs of emotional reaction to his father’s recent death. (Mother, P-1)
Test scores from this assessment placed Student “in the Average range of intelligence,” and established that “he [was] behind slightly in regards to grade level placement, but did not present with significant discrepancy between his aptitude and achievement levels.” (P- 1)
The psychologist stated the following about Student’s emotional status:
[A]nalysis of projective testing and behavioral observations suggests that [Student]…can be friendly and cooperative in a one on one situation, as well as…somewhat socially and emotionally immature, and also in need of someone to meet his dependency needs. Overall the examiner does not feel that [Student] is currently presenting with any excessive emotional difficulties that would impact upon his abilities academically, even given the fact that his father has recently been deceased. [The psychologist] would recommend that Student be watched closely for any emotional reaction to his father’s recent death, and to be provided adequate opportunity to express his emotions in an appropriate manner. Referral to the guidance counselor and/or a local mental health agency may also be considered if Student does begin to exhibit emotional distress. (P-1)
6. Shortly after the Kentucky evaluation, Student moved with his family back to Massachusetts. Student completed second grade in Pembroke, MA and moved to Boston in 1993. Student repeated second grade at St. Gregory’s parochial school in Dorchester, and remained there through sixth grade (SY 1997-98). While at St. Gregory’s, Student attended regularly and earned mostly A’s and B’s. (S-1) However, beginning in approximately 1994 (third or fourth grade), Mother became concerned that Student had begun to withdraw, was having nightmares, and was not cooperating with teachers’ requests to do work. (Mother) In approximately 1994, Mother enrolled the family, including Student, in a grief counseling program that had individual, group, and family components. (Mother) In conjunction with this program, the family began a counseling relationship with a social worker, Mr. Robert Nutt, who has been intermittently involved with Student and his family up to the date of hearing. (Mother, Student) Student received various combinations of family and individual counseling for two years between 1994 and 1996, for approximately 6 months in 1997, and for two to three months in 1999. Most recently, Student resumed individual counseling with Mr. Nutt in or about March or April 2001. (Mother, Student)
7. In August 1998, Mother remarried, and the family moved to Milton. Student does not get along with the stepfather and opposed the remarriage. (Mother, Student) Since then, Student has become increasingly angry and withdrawn, has had mood swings, and began to carry around his deceased father’s military dog tags. (Mother) Student’s relationships with his mother and siblings have significantly deteriorated since the remarriage. (Mother, Student)
8. In the fall of 1998, Student enrolled in the Pierce Middle School in Milton as a regular education seventh grader. (Mother) Student’s records from St. Gregory’s as well as the 1992 test report from Kentucky were forwarded to the Milton Public Schools and made part of Student’s record there. (Bernard, S-1, S-2) Student’s seventh grade attendance was regular, with five absences. He was tardy eleven times, usually by a few minutes. (P-2, Student) Student’s final grades for Grade 7 were mostly C’s with the exception of a “Pass” for computers and a failing grade in Spanish. Student earned “Good” and “Excellent” ratings in Conduct, and “Fair,” “Good” and “Excellent” scores in Effort. (P-2) Mother had some meetings with guidance staff at the Pierce School over what she described as “minor concerns” like tardiness and snowball fights. (Mother)
9. During Student’s seventh grade year, (SY-1998-99) Mother told Pierce School administrative and guidance staff about Student’s father’s suicide, which she felt was negatively affecting Student’s emotional state. Mother told the school that Student seemed depressed and had difficulty with changes and transitions in his life. (Mother) Mother testified that Student actually had threatened suicide, but the record does not establish that Mother reported this to Milton. Student was not receiving any counseling at that time. At the Vice Principal’s suggestion, Mother reinstated Student’s therapy with Mr. Nutt. That counseling continued for about 4 or 5 months, and focused on the Student’s relationship with his stepfather. (Mother) Pierce School staff monitored Student, and notified Mother of any infractions of school rules. (Mother)
10. Student continued as a regular education student at the Pierce Middle School for eighth grade (SY 1999-2000). At home, Student was withdrawn, had behavioral problems, was “in denial” about his father’s death, and “had to be pushed” to be involved in activities. (Mother) In school, however, Student did not appear to have significant academic or behavioral difficulties; his final eighth grade marks were mostly B’s and C’s (although he failed Spanish and woodwork), and his conduct and effort grades were all “Good” or “Fair.” Student was absent a total of 6 days and was tardy 23 times. (P-2)
11. In September 2000, Student entered the ninth grade at Milton High School as a regular education student. (Mother, Bernard) Student was enrolled in college preparatory level classes. (Costa)
12. Student had some minor disciplinary encounters between late September and late November 2000. On or about September 29, 2000, student was referred to Assistant Principal Wilfred Bernard1 for smoking in the lavatory, and had to attend a tobacco education class.2 (Bernard, Student, P-3a) During October 2000, Student was reprimanded by teachers on several occasions for talking in class and/or not stopping when asked to, and twice was referred to Mr. Bernard for this behavior. (Skoglund, Student, P-3c, P-3d) However, in Milton’s view, ninth graders adjusting to the high school setting typically engage in a lot of in-class socializing, and test limits by talking back to teachers on occasion, and Student’s behavior was not unusual. (Bernard, Skoglund, Costa) There were no documented disciplinary incidents between about October 17 and November 29, 2000, when Student received an office detention from Mr. Bernard for failing to return a report card on time, an infraction that Mr. Bernard encounters frequently with high school students. (Bernard, P-3e)
13. On a couple of occasions during the fall, the biology teacher, Mr. Skoglund, called Mother because Student had been talking out in his class and had once tried to enlist classmates in refusing to participate in a class activity. (Mother, Skoglund, Student) Mother told Mr. Skoglund, without elaborating, that Student was having problems at home, and asked the teacher to keep in touch. (Mother) Student’s misbehavior in that class did not recur after Mother spoke to him. (Mother, Skoglund)
14. Overall, during the fall of 2000, the school viewed Student as a typical freshman, who had good attendance, was academically capable—although he did not always do assignments—was reasonably well behaved, was respectful to adults and appropriate and sociable with peers. (Skoglund, Costa, Bernard) Student was also involved in community activities, including a kickboxing class and odd jobs. (Mother, Student)
15. At home, however, Student had virtually stopped communicating with his mother. (Student, Mother) He was withdrawn, lacked motivation for his studies, seemed depressed, had mood changes, and some outbursts of anger. (Mother)
16. Mother had a couple of conversations with Mr. Bernard during the fall. Mr. Bernard first called Mother after the September 29 cigarette incident, telling her Student was basically a “good kid” with lots of potential. (Mother) After the first term report card was issued in about December 2000, Mother contacted Mr. Bernard because the card indicated frequent tardiness. (Mother) (Student had often been approximately a few seconds to two or three minutes tardy for class) (Student) Mr. Bernard told her that the student would be “watched.” (Mother)
17. During October 2000, Milton referred Student to Mr. Cooper, the Student Adjustment Counselor, and Student met with the counselor on one occasion some time between October and December of that year. (Student) Student told the counselor about his father’s suicide and that he was seeing a private therapist. Mr. Cooper encouraged Student to continue to see the therapist and invited Student to return if he had further concerns. Student never returned to see Mr. Cooper, and did not tell his mother about the one meeting until the expulsion hearing. (Student, Mother) At hearing, Mr. Cooper testified that he did not recall meeting with student and had no record of meeting with him3 , but could not rule out having done so with absolute certainty. (Cooper)
18. Student had no disciplinary encounters between November 29 and February 12, 2001, when Mr. Bernard met with Student because he had failed to appear at two detentions previously imposed for tardiness. (Bernard, P-3f) The next disciplinary meeting with Mr. Bernard took place on March 20, 2001 because Student had failed to report to an office detention. He was assigned to appear at Saturday detention on March 24, 2001. (Bernard, P-3g)
19. On March 29, 2001, Student was suspended for a total of five (5) days for smoking marijuana on school property in the company of three or four other students. (Bernard, Mother, P-3h) Mother was particularly alarmed, partially because of the other students involved, and especially because Student appeared to be experimenting with substances. This caused Mother much concern because of Student’s father’s history of bipolar disorder and substance abuse. (Mother)
20. When he suspended Student, Mr. Bernard did not ask him whether he was having problems because he was focused on the role of the other students involved. (Bernard) However, Mr. Bernard contacted Mother to inform her of the incident, and he and Mother had several telephone and in-person conversations shortly thereafter. (Mother) Mother told Mr. Bernard about Student’s problems at home including his difficulties with his stepfather, that she thought Student was responding to issues related to his father’s death, and that he was wearing his father’s dog tags (Mother) They also discussed the other students involved in the incident. (Mother, Bernard). Mother and Mr. Bernard agreed that Student needed help, and Mr. Bernard said he would refer Student to Mr. Cooper. (Mother, Bernard) Mother also told Mr. Bernard that Student had received counseling in the past and that she planned to send him back to his counselor. (Mother) Student started therapy with Mr. Nutt again in around April of 2001. (Mother) Mother heard nothing further from the school regarding a referral to Mr. Cooper, and did not know that Student had ever seen Mr. Cooper until the expulsion hearing, when Student informed her himself. (Mother)
21. At home, after the March 29 incident, Student continued to have periods of increased anger with outbursts and withdrawal, interspersed with periods when he was cooperative. (Mother)
22. Worried about her son’s situation, Mother called numerous agencies during the one to two weeks after the March 29 suspension. One of Mother’s calls during that period was to the special education department at the Milton Public Schools. Mother spoke to Ms. Janet Potts, a data entry clerk who answered the telephone. Ms. Potts does not usually answer the telephone at the special education office. Rather, calls usually are taken by Lorraine Simildoro, the secretary who works for Milton’s Administrator of Special Education, Ann Sullivan. Ms. Potts occasionally picks up the telephone when Ms. Simildoro is not available. (Sullivan) Mother told Ms. Potts that she wanted to have Student evaluated for special education because he had been suspended for smoking marijuana, that he had been having problems at home, that his grades were “below average,” that he was depressed, and that she was concerned about drug experimentation in light of his father’s history. Ms. Potts told Mother that she would have Ms. Sullivan call Mother back. (Mother)
23. Within a day or so after speaking to Ms. Potts, Mother received a call from a Milton employee whom Mother believed and testified was Ann Sullivan, and reiterated her request for an evaluation. (Mother) (The person who called Mother actually was not Ann Sullivan, who was not aware of Mother’s contact with Milton at that time, but was a different individual.) The caller told Mother that it was too late in the school year for an evaluation, but that the caller would contact either Milton High School or the Milton Public Schools, and that Mother could pursue an evaluation the following year. (Mother) Believing it was too late to have Student evaluated, Mother took no further action at that time. (Mother)
24. On April 23, 2001 Student was suspended for two (2) days for leaving the school building without permission. (Bernard, Mother, P-3i) When he suspended Student, Bernard did not ask him if he was having problems because he viewed his responsibility as confined to finding out what occurred and imposing consequences. (Bernard) Bernard did call Mother, however, and told her that Student was going to be suspended. (Mother)
25. On April 27, 2001, the Milton High School imposed an “emergency suspension pending hearing w/principal” based on Student’s “being in possession of a controlled substance [marijuana] on school grounds.” (P-3j)
26. On or about May 4, the Special Education Administrator, Ann Sullivan, was told by Janet Potts that Mother had called the special education office because her son was facing possible expulsion. Ms. Sullivan called Mother, who said she had heard that if Student were a special education student, he could not be expelled. Ms. Sullivan asked Mother if she wanted Student evaluated, and Mother replied that she did not, she just needed to talk to someone. (Sullivan) Prior to that call, Ms. Sullivan had had no contact with or information about Student or Mother.4 (Sullivan)
27. On May 9, 2001 Milton High School Principal Dr. Joseph Arangio, Jr. (Dr. Arangio) convened a disciplinary hearing, at which Student was represented by counsel. (S-7) On May 11, 2001, Dr. Arangio notified Parent in writing that he had expelled student from the Milton Public Schools pursuant to MGL c. 71, Section 37H5 and the rules and regulations of the Milton Public Schools. The letter informed Parent that “[the Principal’s] decision to expel [Student] shall remain in effect prior to any appeal hearing conducted by the Superintendent.” (S-6)
28. Parent and Student appealed the Principal’s decision to Milton Public Schools Superintendent Mary Grassa O’Neill (Supt. O’Neill) The appeal hearing was held on May 23, 2001, and Student and Parent appeared with counsel. On the day of that hearing, Parent requested a special education evaluation for Student. (Mother) Milton proposed an evaluation consisting of educational, psychoeducational, achievement, and projective testing, to which Mother consented on May 24. Testing was completed on May 30 and 31, 2001. (S-7, Sullivan)
29. The psychological evaluation was conducted by Dr. Abby Raelin, a licensed school psychologist. As a result of her evaluation, Dr. Raelin’s professional opinion is that Student would not necessarily have demonstrated obvious signs of serious cognitive, emotional, or behavioral difficulty during the time preceding the April 27 incident.6 (Raelin)
30. On June 5, 2001, Supt. O’Neill notified Parent and Student that she had decided to uphold the Principal’s decision to expel Student from the Milton Public Schools for possession of marijuana on school property. Supt. O’Neill further determined that “under the circumstances, [Student’s] continued presence would have a substantial detrimental effect on the welfare of Milton High School.” (S-8) Milton permitted Student to participate in an after school program to complete his ninth grade work. (S-8, Mother)
31. On June 6, 2001, the Parent/Student requested an expedited hearing before the BSEA. The BSEA received this request on June 13, 2001. That same day, the BSEA granted the Parent’s request for an expedited hearing, setting a hearing date of June 25, 2001.
32. On June 18, 2001 Milton convened a special education TEAM to consider the evaluations. That same day, the TEAM determined that Student was not eligible for special education. (S-9) Parent requested an independent evaluation, which has been pending since the commencement of the hearing in this matter. (Mother)
Conclusions of Law
At issue here is whether the Student has the right to “stay put” as a Milton Public Schools student while awaiting completion of his independent evaluation and the TEAM’s consideration of same, and, if so, what constitutes the Student’s “stay put” placement. I conclude that while Student may have had “stay put” rights for a short period prior to June 18, that right was extinguished by the TEAM’s June 18 determination that he was ineligible for special education. 34 CFR 300.527©. As stated above, the Parent has stated that she is not seeking to have the BSEA examine the TEAM’s eligibility decision at this time. Therefore, Student’s status remains as an expelled regular education student unless he subsequently is determined eligible for special education by a decision of the TEAM or a hearing officer. My reasoning follows.
A school may not change the placement,7 for disciplinary reasons, of a child with a disability, unless a duly constituted TEAM first makes a “manifestation determination;” i.e ., determines that the misconduct triggering the suspension or expulsion is not a manifestation of the disability and is not the result of an inappropriate IEP or an IEP that has not been fully implemented, and also has developed a behavioral plan to prevent recurrence of the misconduct. 20 U.S.C. Sec. 615(e)(3); 34 CFR Sec. 300.519-526. See also, Honig v. Doe , 484 U.S. 305, 323-25 (1988). Between the time of the misconduct and the time the TEAM makes its manifestation determination, the Student has a right to remain in his/her last agreed upon educational placement. The only exceptions are that a school or hearing officer may place a student in an interim alternative setting for up to 45 days if the misconduct involves drugs or weapons, and a hearing officer may order such placement upon finding that continuing the current placement is substantially likely to result in injury to the child or others. 20 USC Sec. 615(k)(2)(A); 34 CFR 300.519-521. (See Note 9, below). After a placement is changed for disciplinary reasons, a student with disabilities must continue to have services enabling participation in the general curriculum, to achieve IEP goals, and to address the behavior that led to the change in placement. 20 U.S.C. Sec. 615(k)(3)(B); 34 CFR 300.522.
A student’s right to stay put8 attaches when a parent (and/or student) first asserts eligibility for special education, e.g. , by requesting an evaluation. Thus, if the parent of a regular education student requests an initial special education evaluation after suspension but before final expulsion, the student’s “stay put” placement normally is as a suspended regular education student. Deborah V. v. Leonard , 1993 WL 393055 (D. Mass., Sept. 24, 1993).
However, a student who has not yet been formally found eligible for special education at the time of the misconduct leading to expulsion may nonetheless assert any and all of the procedural protections of the IDEA if the school knew or is deemed to know of the existence or assertion of a disability before that misconduct occurred. 20 USC Sec. 615(k)(8)(b); 34 CFR Sec. 300.527; Richard V. v. City of Medford , Civil Action No. 95-12770 (D. Mass. April 24, 1996) (internal citations omitted); In Re Hampshire School District , BSEA No. 98-4351, 4 MSER 81 (1998).
Under the pertinent federal regulations, a school district is deemed to have knowledge of a child’s disability under the following circumstances:
1. the parent…has expressed concern in writing…to personnel of the appropriate educational agency that the child is in need of special education…
2. the behavior or performance of the child demonstrates the need for these services, in accordance with Sec. 300.7;
3. the parent of the child has requested an evaluation of the child pursuant to Secs. 300.530—536; or
4. The teacher of the child, or other personnel of the local educational agency has expressed concern about the behavior or performance of the child to the director of special education of the agency or to other personnel in accordance with the agency’s established child find or special education referral system.
34 CFR Sec. 300.527(b)(1)-(4).
The regulations further provide, however, that:
A public agency would not be deemed to have knowledge under paragraph (b) of this section if, as a result of receiving the information specified in that paragraph, the agency…conducted an evaluation…and determined that the child was not a child with a disability…and…[p]rovided notice to the child’s parents of its determination…”
34 CFR Sec. 300.527(c).
Here, there is no dispute that before the April 27, 2001 incident that led to Student’s expulsion, Milton had not formally identified him as a special education student, Mother did not express concern in writing to Milton staff, and no teacher or other school personnel expressed concern about Student’s behavior or performance to the special education director. (Mother, Bernard, Sullivan) No formal written referral was made until May 23, 2001, after Student already had been expelled by the principal, and was awaiting a decision from the Superintendent on whether to uphold the principal’s decision. (Sullivan, S-7) Moreover, after evaluating Student, the TEAM found him ineligible for special education. (S-9) At issue then, is (1) whether Mother had requested an evaluation for Student prior to April 27, thereby triggering both Milton’s duty to evaluate Student and Student’s substantive and procedural rights under the IDEA and Chapter 766; (2) whether Student’s performance or behavior should have led Milton to suspect a disability; and (3) if Milton was deemed to have knowledge of a suspected disability, whether Student’s right to stay put as a regular education student ended when Milton found him ineligible for special education on June 18, 2001.
I am persuaded that Student’s mother orally requested an evaluation for Student in late March or early April of 2001, after his March 29 suspension, but before the April 27 marijuana incident.9 Although Mother’s testimony is not corroborated by the telephone log, and Milton presented credible evidence that there was no other documentation of such a request, Milton also acknowledges that the special education office does not record all incoming calls, and in particular does not record oral evaluation requests, instead advising parents to call the ETL at their child’s school. (Sullivan) Further, there would be no reason for Mother to even be aware of Janet Potts’ existence unless she actually had spoken with her. Finally, Ms. Potts did not testify, and Milton’s documents do not refute Mother’s testimony about the late March or early April conversations. In this case, unfortunately, neither the Administrator of Special Education nor another appropriate person appears to have been told of Mother’s initial oral request for an evaluation, (Sullivan) and the parent was incorrectly told that it was too late in the year for her to obtain an evaluation. (Mother) Mother had no prior experience with Milton’s special education procedures, and understandably relied on the information she was given. (Mother) Therefore, Mother’s request for an evaluation from a Milton employee one to two weeks after the March 29 suspension, before the April 27 incident, triggered Milton’s obligation to evaluate Student and Student’s substantive and procedural rights under the IDEA and Chapter 766. Thus, within five school days of Mother’s request, made one or two weeks after March 29, Milton should have sent Mother written notice of her rights and sought her consent to evaluate Student, and, 30 school days after receiving parental consent, should have evaluated Student. 603 CMR 28.04(1)-(2).
I also credit Ms. Sullivan’s unrefuted testimony that she had no contact with Mother prior to May 4, and that when the two did speak, Mother said she did not want Student evaluated. (Sullivan) Mother’s statement does not negate her previous request, however. The first request for evaluation gave rise to Milton’s obligation to evaluate Student, and this second conversation would not have occurred had Milton timely responded to that first request. Thus, beginning in approximately early to mid-April, Student was entitled to the protections of the IDEA, and could not be removed from school for more than ten days without the TEAM process described above. See 20 U.S.C. Sec. 615(e)(3); 34 CFR Sec. 300.519-526.
Absent the mother’s request for an evaluation, I would not be persuaded that Milton should have known or suspected that Student has a disability. The record establishes that Student’s academic performance would not trigger an obligation to evaluate Student; although his grades were not very good, he would have passed ninth grade, and was capable of mastering the ninth grade curriculum at a college preparatory level. (Skoglund, Costa)
Until the March 29 incident, Student’s disciplinary infractions were, according to two teachers and the Assistant Principal, within normal limits for a ninth grader. (Bernard, Skoglund, Costa) Notably, the early offenses were not destructive, out of control, or vicious conduct, but simply being overly social with peers. (Bernard, Skoglund) (Contrast Hampshire Regional School District , above, where the behavior giving rise to the obligation to evaluate included a threat to kill the teacher and assistant principal, physical intimidation, destruction of property and inappropriate and abusive language. 4 MSER at 82.)
According to the credible testimony of teachers and the assistant principal, Student’s day to day performance and behavior were unremarkable, and did not suggest that Student had significant academic or adjustment difficulties, let alone a disability. (Bernard, Skoglund, Costa) Student’s testimony about what transpired in his single meeting with Mr. Cooper, the adjustment counselor, shows only that Student had understandable concerns about difficult circumstances in his life. (Student) This further supports the inference that Student did not present as being in crisis or having an undiagnosed disability, as does Mr. Cooper’s inability to recall meeting with Student. (Cooper). I credit the testimony of both Mr. Cooper and Student, and conclude that Student did meet with Mr. Cooper once, but not in response to the passes that Mr. Cooper had issued (see Finding of Fact #17, above), and that Mr. Cooper neither recalled nor recorded the single meeting.
The school psychologist, Dr. Raelin, testified that although testing revealed some areas of concern, nothing in her evaluation would indicate an obvious disability that would have to have been apparent to the school prior to April 27.
Student presented a very different picture at home. His mother testified credibly that he was depressed, angry and withdrawn, with fluctuations in mood. (Mother) These symptoms, combined with possible substance issues, prompted Mother’s request for an evaluation after the March 29 suspension. (Mother) However, the record indicates that during the 2000-01 school year, Mother did not discuss these concerns with Milton, or disclose the extent of his problems at home until Student was suspended on March 29. (Mother, Bernard, Skoglund) Milton cannot be faulted for failing to act on information it did not have.
The TEAM did eventually meet, on June 18, and find Student ineligible for special education, and the Parent subsequently requested an independent evaluation.10 The remaining issue, then, is whether the question of eligibility is still an open one such that Student may “stay put” until the TEAM considers the independent evaluation, or whether the applicable regulation, 34 CFR 300.527(c), terminates stay put rights as of June 18 when the TEAM first found the Student ineligible for special education.
A plain reading of the regulation indicates that where, as here, a school district evaluates a student because of one of the factors set out in 34 CFR 300.527(b) and finds that student ineligible for special education, the district has cured its prior failure to evaluate, and the student reverts to his or her pre-referral status. In this case, that status is as an expelled regular education student. Deborah V. v. Leonard , supra . This result is consistent with the intent of the regulation and corresponding portion of the statute, 20 USC 615(8)(b)(k), which is to ensure that students with obvious academic or behavioral problems are not deprived of IDEA protection because their schools fail to timely identify and evaluate them. Richard V. v. Medford , supra . On the other hand, once a TEAM has found such a student ineligible, the rationale for the continued protection ceases. This interpretation puts the student on the same footing as any other student who has been found ineligible for services—such a student remains in regular education until or unless a subsequent TEAM or a hearing officer finds the student eligible. G.L. c. 71B, Sec. 3. Thus, the stay put placement for an expelled regular education student whom a TEAM found ineligible after the expulsion remains on expelled status. Deborah V. v. Leonard , supra .
In the Hampshire Regional School District case, supra , a hearing officer ordered reinstatement of an expelled regular education student, who had been found to have no special needs, pending final resolution of the student’s eligibility status, because the TEAM had not considered the nexus between Student’s alleged disability and the misconduct. Id . Here, however, Parent has neither claimed that the TEAM process was flawed nor submitted record evidence to this effect. Therefore, the TEAM’s June 18 determination that Student was not at that time eligible for special education extinguished Student’s “stay put” rights.
I conclude, therefore, that from the time Mother requested an evaluation (approximately mid-April 2001) until June 18, Student was entitled to remain as a regular education student, subject to Milton’s right to suspend him for up to ten days or place him in an interim alternative placement for up to 45 days. Beginning June 18, however, Student’s status reverted to that of an expelled regular education student.
Finally, Parent’s other claims for relief should be dismissed at this time. Because Student should be deemed an expelled regular education student, Milton is not required to provide him with educational services such as the therapeutic tutoring requested. Parent’s request for comprehensive evaluation appears to be moot. The BSEA has no jurisdiction over attorney’s fees claims under the IDEA.
In reaching the above conclusions, I explicitly make no finding as to whether or not Student previously had or now has a disability or whether Student is eligible for services under the IDEA and G.L. c. 71B or Section 504 of the Rehabilitation Act.
ORDER
For the foregoing reasons, Parent’s Motion for an Order to Stay Put is DENIED, and Parent’s remaining requests for relief are DISMISSED.
By the Hearing Officer,
__________________________
October 26, 2001
1
Mr. Bernard has been an assistant principal at Milton High School since approximately 1994 (Bernard) Before coming to Milton, Mr. Bernard was a teacher and administrator with the Weymouth, MA Public Schools. Mr. Bernard has a Master’s degree in history and is certified as a school administrator. Mr. Bernard’s duties include supervising teachers and students and handling student discipline. When a student is referred to Mr. Bernard for violating school rules, Mr. Bernard typically speaks with the student and possibly others to find out what happened, advises the student on appropriate conduct, and may administer discipline such as detention, tobacco education class, or suspension. (Bernard)
2
At Milton High School, minor infractions like talking in class are handled directly by the teachers. (Skoglund, Costa). For more serious violations like smoking, and for noncompliance with teacher discipline, a written disciplinary notice is issued, and the student is referred to Mr. Bernard for further action. (Skoglund, Costa) Parents are not necessarily notified of every minor disciplinary incident, even if a student is written up. (Student, Bernard)
3
Mr. Cooper recalls, and his records reflect, that in late October 1998, he was given Student’s name on a list of several ninth graders who could benefit from seeing him for high school adjustment issues, that he issued passes on three occasions for Student to come and see him, but that Student never appeared. (Cooper) Student denied having received the passes, but testified in some detail about a 45-minute meeting with Mr. Cooper
4
The apparent inconsistency of Ms. Sullivan’s and Mother’s testimony is clarified by the telephone record keeping system in the Milton special education office, which does not keep track of all incoming telephone calls. Ms. Sullivan testified that calls for her are received by her secretary, Ms. Simildoro, who writes some telephone messages in a carbon memo book (Exhibit S-11), and then contacts Ms. Sullivan for calls that she needs to answer. Not all incoming calls are recorded in this memo book, however. For example, if a parent calls to request an evaluation, he or she is directed to call the child’s school TEAM chairperson, and the call is not entered in the book. (Sullivan) When Janet Potts answers the phone, she does not use the memo book, but instead takes messages on Post-it notes and passes them to Ms. Sullivan. Ms. Potts does not write down or inform Ms. Sullivan of all telephone calls. (Sullivan)
5
G.L. c. 71, Section 37H provides that a principal of a school building containing grades 9 through 12 may, after a hearing, expel a student for possession, in school, of a controlled substance. The student has the right to have the expulsion reviewed by the superintendent. No public school in the commonwealth is required to admit a student who has been expelled from his/her home school district under Sec. 37H. Id .
6
Parent offered into evidence Dr. Raelin’s evaluation report (marked for identification as Exhibit P-4). The report was excluded because it was developed after the expulsion, and therefore was irrelevant to the issue of Milton’s knowledge or suspicion that Student might have a disability at the time of the April 27 incident.
7
A school may remove a child with a disability from his/her educational placement for no more than ten days in a school year without providing educational services. In addition, a child may be removed for up to ten consecutive school days per offense so long as the additional removals do not constitute a change in placement. In the case of a dangerous weapon or controlled substance, a school can remove a child to an interim alternative setting for up to 45 calendar days. Removals exceeding these limits constitute a change in placement, triggering due process rights. I d. A hearing officer can also order a 45 day interim placement if a school demonstrates a substantial likelihood of injury to the child or others if the child stays in the current placement. 20 USC Sec. 615k(2)(a); 34 CFR 300.520-521.
8
As well as the other substantive and procedural rights established by the IDEA.
9
That the request was not made in writing is irrelevant, because state regulations do not require referrals to be in any particular form, stating only that “[u]pon referral, the school district shall send written notice to the child’s parents and shall seek consent of the parent for the evaluation to occur.” 603 CMR 28.04.
10
I treat the parent’s request for an independent evaluation as a rejection of the finding of no eligibility.