COMMONWEALTH OF MASSACHUSETTS
SPECIAL EDUCATION APPEALS
Acushnet Public Schools v. Student
BSEA #09-0818
DECISION
This decision is issued pursuant to M.G.L. c. 71B and 30A, 20 U.S.C. § 1401 et seq., 29 U.S.C. § 794, and the regulations promulgated under said statutes.
A hearing was held on January 27, 2009 at the Bureau of Special Education Appeals before Catherine M. Putney-Yaceshyn, Hearing Officer.
PROCEDURAL HISTORY
Acushnet Public Schools requested a hearing on July 25, 2008 and the hearing was scheduled to proceed on August 14, 2008. Acushnet’s unopposed request to postpone the hearing was allowed. On August 22, 2008, while the hearing was being rescheduled, Acushnet requested that the matter be taken off calendar. Parent assented to the request. The matter was taken off calendar until November 22, 2008. An Order to Show Cause was sent on November 25, 2008. On December 23, 2008, Acushnet requested that the matter be returned to the active calendar and submitted an amended request for hearing. There was a conference call on January 7, 2009. When the hearing officer contacted Father he informed the hearing officer that he did not wish to speak to her and told her not to call him again before hanging up the phone. The hearing was scheduled for January 27, 2009 and both parties received written notice of the date. On January 23, 2009, Father contacted the BSEA and spoke to an administrative assistant who confirmed the hearing date for him. He initially agreed to speak to a hearing officer who was not assigned to his case about his case, but hung up when the hearing officer got on the phone. Later, on January 23, 2009, he faxed the hearing officer a copy of the Order scheduling the hearing. He had written a notation indicating that he viewed this case as a “civil rights issue.” The hearing was held on January 27, 2009. Father did not attend the hearing. After the hearing, the hearing officer sent Father a copy of the hearing tapes along with a letter informing him that he could submit a closing argument by February 6, 2009. On January 29, 2009, two days after the hearing was held, Father sent a fax indicating that the case is about his son having the right to attend Fairhaven High School. He stated that he filed a complaint “with civil rights” and asked that the hearing be postponed. He did not submit a closing argument and the record closed on February 6, 2009.
Those present for all or part of the Hearing were:
Danielle Coffin Director of Special Education, Acushnet Public Schools
Jennifer Pomocka Teacher, Cape Cod Collaborative
Anita Woods Program director, Cape Cod Collaborative
Kathleen Yaeger Attorney for Acushnet Public Schools
Catherine Putney-Yaceshyn Hearing Officer
The official record of this hearing consists of Acushnet Public Schools’ exhibits marked S-1 through S-69 and approximately three hours of recorded oral testimony.
ISSUES
1. Whether the IEP proposed for the time period from March 2008 through March 2009 was reasonably calculated to provide Student with a free appropriate public education in the least restrictive environment.
2. Whether the IEP proposed for the period from October 2008 through October 2009 was reasonably calculated to provide Student with a free appropriate public education in the least restrictive environment.
3. Whether Student’s non-attendance at school constitutes a denial of a free appropriate public education.
SUMMARY OF THE EVIDENCE
1. The student (hereinafter, “Student”) is a sixteen-year-old tenth grade student who resides in Acushnet and attended the Cape Cod Collaborative until December 9, 2008, when he stopped attending school. (S-6, Pomocka)
2. Student has a diagnosis of autism. He is able to follow simple verbal directions, but appears to benefit from the assistance of visual/picture cues. He spontaneously communicates using one to two word utterances, short phrases and gestures. He displays immediate and delayed echolalia. (S-6)
3. Student’s last accepted IEP was for the period from March 30, 2007 through March 29, 2008 and it placed Student at the South Coast Educational Collaborative Pre-Vocational II program in Seekonk. The IEP provided for consultation in the areas of communication, counseling, and occupational therapy for up to sixty minutes per month. It provided for direct services in speech language therapy 2 x 30 minutes per week, academics 19 x 45 minutes per week, occupational therapy 2 x 30 minutes per week, adaptive physical education 2 x 45 minutes per week, prevocational 5 x 45 minutes per week, daily living skills 1 x 90 minutes per week and “community” 180 minutes bi-weekly. (S-57) This IEP had initially been rejected by Father, but was subsequently accepted in September 2007 at the suggestion of his then-attorney. (S-51)
4. Student was to age out of the South Coast Educational Collaborative in June 2008. In preparation for locating a new placement for the 2008-2009 school year, on January 9, 2008, Ms. Coffin, Acushnet’s Director of Special Education, sent Father an evaluation consent form to enable Acushnet to conduct Student’s three-year evaluation. Father returned the consent form and rejected the proposed evaluation in full. His rejection included the handwritten notations, “I need to know the education of Ms. Coffin.” and “You people are just hurting my son. The last eval done by the school was a joke!” (S-48, Coffin)
5. Acushnet began sending out referral packets to programs at the end of January 2008. Father requested that a referral be sent to the May Center. Acushnet sent the referral and Father visited the program. On February 28, 2008, Ms. Coffin received a letter from the May Institute indicating that Father had toured the May Center and informed the staff that he would not be submitting an application to the school. (Coffin)
6. On February 26, 2008, Ms. Coffin sent Father a letter informing her that she had received a phone call from Fairhaven Public Schools stating that Father had e-mailed its superintendent and indicated his interest in Student attending Fairhaven High School. Ms. Coffin enclosed a release for Father to sign permitting her to send a referral packet to Fairhaven Public Schools. (S-41) Father signed the release, and Ms. Coffin sent the referral packet to the Fairhaven Special Education Department on March 3, 2008. (S-38) At Father’s request, Ms. Coffin sent a referral to the League School on March 19, 2008. (S-37) Father visited the program and the League School found Student appropriate, but Father informed the League School staff he was not interested in the placement. (Coffin)
7. On March 26, 2008, Ms. Coffin sent Father a letter and informed him that Fairhaven’s Director of Special Education had informed her that Fairhaven was unable to provide an appropriate placement for Student at Fairhaven High School.1 (S-36)
8. On April 16, 2008, Ms. Coffin sent a referral packet to the Cape Cod Collaborative. (S-34) On May 13, 2008, Anita Woods, the Director of the S.T.A.R. program at the Cape Cod Collaborative sent a letter to Ms. Coffin stating that Student seemed to be appropriate for their high school program. She indicated, however, that Father had informed her that he was interested in an inclusion program. Ms. Woods explained to Father that their program was a substantially separate program, but there were some opportunities for reverse inclusion with other high school students. Father informed Ms. Woods he would like to keep looking for other programs and options. (S-32)
9. Father sent a letter to Acushnet, dated June 17, 2008, indicating that he has rejected all offers for placement other than the Fairhaven High School. He requested a meeting with Ms. Coffin and Fairhaven’s Director of Special Education. (S-28, Coffin) Fairhaven’s Director of Special Education declined to meet with Father because they did not have an appropriate program. Ms. Coffin sent Father a letter requesting that he meet with her to discuss other placement options including the Cape Cod Educational Collaborative. Father did not attend any meetings scheduled by Ms. Coffin during the spring 2008. (S-25, Coffin)
10. Student’s Team convened on May 20, 2008. Father did not attend the meeting, which had been rescheduled three different times at Father’s request. (S-27) The Team reviewed Student’s IEP and proposed a new IEP for the period from March 30, 2008 through March 29, 2009. The IEP provided for consultation in the areas of communication, counseling, and occupational therapy for up to sixty minutes per month. The IEP provided for direct services in speech language therapy 2 x 30 minutes per week, academics 19 x 45 minutes per week, occupational therapy 2 x 30 minutes per week, adaptive physical education 2 x 45 minutes per week, prevocational 5 x 45 minutes per week, daily living skills 1 x 90 minutes per week and “community” 180 minutes bi-weekly. (S-27) Initially, the IEP proposed Student’s placement at the South Coast Educational Collaborative through the end of the school year, and there was no placement identified for Student beyond the end of the school year. (S-27)
11. On July 25, 2008, Ms. Coffin requested a hearing to resolve the issue of Student’s placement for the 2008-2009 school year. (S-22) On August 14, 2008, Ms. Coffin met with Father and his advocate for approximately two hours. The advocate encouraged Father to choose a placement and sign the evaluation consent form that had been requested in January 2008. Father continued to request that Student be placed at Fairhaven High School. Ms. Coffin informed him that his two placement options were the Cape Cod Collaborative or the Transition 5 Program at New Bedford High School.2 (S-20, Coffin)
12. On August 15, 2008, Student’s advocate called Ms. Coffin and informed her that Father was willing to sign the consent for evaluation and requested that she send him the placement page for the Cape Cod Collaborative. Ms. Coffin sent the placement page on August 15, 2008 and Father signed it on August 19, 2008. He added the following notation beneath his signature. “By signing this form it is understood [Student]’s last day will be 12/11/08 or until evaluation shows re-placement in Fairhaven.” (S-27)
13. On August 22, 2008, Acushnet sent a letter to the hearing officer requesting that the matter be placed off calendar for three months pursuant to BSEA Rule IV. The reason for its request was that Father had accepted the placement, but had not yet accepted the proposed IEP. (S-15)
14. In the fall of 2008 Student attended the Cape Cod Collaborative and was in Jennifer Pomocka’s classroom. Ms. Pomocka has extensive experience working with children with autism including fifteen years experience at the May Center in Chatham. There were four students besides Student in Ms. Pomocka’s class and two paraprofessionals. The program was substantially separate and very structured and predictable. Each day began with a morning meeting. There was a visual schedule on the board that the staff went through with the students. Academic teaching was done in 1:1 and 2:1 groupings. Students ate lunch in the classroom because the cafeteria was overstimulating. There was some vocational training in the classroom and all students had a classroom job he or she completed each day. Student received both speech language therapy and occupational therapy. The therapists providing his services have worked at the Cape Cod Collaborative for many years. Four of the students, including Student, were diagnosed as being on the autism spectrum and one student had Down Syndrome. There was one other verbal communicator in the classroom3 . This student was very social and often tried to engage Student. The other students were non-verbal and used communication books and electronic communication devices. Ms. Pomocka noted that Student speaks softly and quickly and uses mostly one word responses which tend to be rote responses. She noted that Student only speaks when making a request. He does not tend to initiate communication and is not a spontaneous communicator. Student gets frustrated when others do not understand him. He rubs his head and makes a loud humming noise. He is able to calm himself down. Ms. Pomocka often uses pictures when instructing Student and uses the least amount of verbal directions possible. (Pomocka)
Student was working on some reading, writing and basic math skills. He reads at approximately the second grade level and his comprehension is very limited. He uses an Alpha Smart to write out the answers to questions. He uses one or two word responses, but was learning to expand his responses with prompts. He was working toward writing two sentences, but had not yet achieved that goal when he stopped attending school. His math skills are at the first or second grade level. He is able to add and subtract single digits and was working on adding double digits when he stopped attending school. Student is proficient on the computer and can type. He is able to write basic information such as his name, address, and birthday, although his handwriting is illegible. He has a great deal of academic potential. (Pomocka)
Student did not have a behavioral support plan. He did not need one. If he became agitated or upset he was able to calm himself down. He required constant supervision due to his limited safety awareness. Student would not look both ways before crossing a street. He has no cognitive awareness of dangers in the community. Father did not give Student permission to participate in the community based activities in which the class participated. Ms. Pomocka tried to call Father two or three times throughout Student’s placement and he never answered the phone or called her back. She wrote daily in Student’s communication book and sent it home. The book stopped being returned to school and came back with some pages ripped out. Eventually, Father asked her to stop writing. Father responded to things that Ms. Pomocka sent home by informing her that Student’s last day would be December 10, 2008 and it was not necessary for her to continue sending things home. Student last attended the program on December 9, 2008. Ms. Pomocka tried to call Father and received no response. (Pomocka)
Student was happy and enjoyed being in school. He enjoyed the structure. Ms. Pomocka believes that the program was appropriately meeting Student’s needs. She indicated that an inclusion classroom would not have been appropriate for Student because it would have been over-stimulating and Student would not have understood the instructions or the language used in the classroom. He requires a small classroom setting with a great deal of structure. The peers in the classroom were appropriate for Student. He was not engaging them, but interacted with them when requested. (Pomocka)
15. Student received a three-year evaluation in the fall 2008. Ms. Pomocka evaluated Student on September 12, 19, and 24, 2008 in addition to making ongoing informal observations. She administered the AAMR Adaptive Behavior Scale-School (ABS) and sections of the Assessment of Basic Language and Learning Skills (ABBLS). The ABS noted the following areas of average performance: conformity, not displaying self abusive behavior and social engagement. Student scored above average for social behavior, trustworthiness, and not displaying disturbing interpersonal behavior. He scored below average for numbers and time, prevocational/vocational activity and self direction. He scored poor or very poor for independent functioning, economic activity, language development, socialization, and stereotyped/hyperactive behavior. (Pomocka)
Ms. Pomocka noted that Student is able to dress himself independently, but occasionally has his shirt on inside out or backwards. He can complete a toileting and tooth brushing routine with minimal verbal prompting. He requires monitoring at all times both in and out of the classroom due to limited safety awareness. Student can ride in a private car safely, but requires a monitor on the school bus. In the classroom he is able to complete simple jobs such as stacking chairs, emptying trash, and wiping tables and desks with verbal and minimal physical prompting. She noted that Student at times engages in interfering behavior including being out of his seat, making loud vocalizations, and rubbing his head. He displays the aforementioned behaviors when frustrated, when corrected, or when presented with a new or difficult task. He is able to be redirected back to task, but may continue to talk softly to himself. His interfering behaviors sometimes impede his ability to attend to his work and learn new skills. Ms. Pomocka recommended that Student continue to receive support for academics, independence, self-monitoring of his behavior, and vocational skill development. (S-10, Pomocka)
16. Alizabeth A. Evans, M.S., CCC/SLP conducted a speech and language evaluation of Student in September 2008. She concluded that Student demonstrates a severe language delay both expressively and receptively. She reported that he is characterized as a limited verbal communicator. She noted that his skills are limited, but do increase when prompted. She reported that during the evaluation Student frequently exhibited extraneous actions such as playing with his ears, pressing his hands together, and vocalizing unrelated sentences (such as echolalia from a movie, show or story.) Student did not act in response to requests, questions or commands. When given a command he would begin to comply, but required prompting in order to perform the task. His comprehension appears to increase with routine and repetition. He required prompting to use full sentences and to request items. He was observed to use one to five word utterances. He exhibited fleeting eye contact. His vocabulary appeared to be limited to basic/functional items. When given choices, he frequently picked the last presented option. His conversational skills are limited because he consistently needed prompts to attend to his peers and staff working with him. She recommended that Student continue to receive speech language services 2 x 30 minutes per week. (S-14)
17. Jennifer Stammaris, M.S.Ed., an A.P.E. teacher at South Shore Collaborative, conducted a three year re-evaluation of Student on October 10, 2008. She recommended that Student participate in various gross motor activities in a group setting. She noted that he requires verbal cueing, visual cueing, and initial demonstration for most activities. She recommended that simple one to two step directions should be used during adapted team sports and group games and additional cueing should be used for complex tasks. She noted that Student demonstrates functional gross motor skills and does not require a direct pull out adapted physical education session. She recommended that he participate in the physical education program with his classmates. (S-9)
18. Deborah DeMello, OTR/L, conducted an occupational therapy evaluation of Student in September 2008. She reported that Student uses some self-stimulation or extraneous hand movements during the day, but is easily redirected. He demonstrates weaknesses in handwriting and general fine motor skills. She recommended that Student receive direct occupational therapy one times thirty minutes per week in addition to a coordinated fifteen minute consultation period. She noted that the focus of his occupational therapy services should be for improvement/modification of written activities and fine motor coordination tasks for use in his classroom and prevocational tasks. (S-11)
19. James Paicopolos, an evaluator chosen by Father and his advocate, conducted a psychological evaluation of Student and wrote a report dated September 1, 2008. He noted that Student’s intellectual functioning was in the moderate range of intellectual functioning and his adaptive functioning, as assessed by the Vineland Adaptive Rating Scale was in the two to six year old range. He noted that Student can become easily frustrated and agitated when presented with tasks that were difficult for him to complete. He assessed his level of emotional functioning as being that of a much younger child with skills ranging from preschool to “the early grades.” He reported that Student can complete simple math arithmetic problems by counting on his fingers and can read words both in isolation and in paragraph form. He assessed his overall academic level of functioning at the first to second grade level. Additionally, he noted that Student’s communication skills are very weak and he possesses limited vocabulary. He noted that Student would benefit from the use of assistive technology including a computer and communication boards. Mr. Paicopolos made a number of recommendations for Student’s program. First, he suggested that Student be provided with frequent breaks. He also recommended the formulation of a behavior plan. He made several recommendations with respect to improving Student’s reading skills. He suggested that Student be provided with small group instruction in the area of writing. He recommended continuing to provide Student with individual instruction in the curriculum and having Student participate in small group social skills training. He recommended working on basic math skills. He also recommended working on letter formation and basic handwriting activities. (S-13) Mr. Paicopolos never visited Student’s Cape Cod Collaborative program, but seemed to be familiar with it. (Coffin)
20. The Team convened to consider the evaluation information and to draft a new IEP on October 17, 2008. (S-6) Father refused to attend the meeting. (Coffin) The IEP provided for consultation by the speech language pathologist 1 x 10 minutes per week; direct services in the classroom in occupational therapy 1 x 30 minutes per week with the OT or the COTA and 1 x 10 minutes per week with the O.T. It also proposed direct services in the academic/vocational area 5 x 6 hours per week, occupational therapy 1 x 30 minutes per week, and speech language pathology 2 x 30 minutes per week. The IEP also proposed extended school year services consisting of speech language 1 x 30 minutes per week, occupational therapy 1 x 30 minutes per week, and extended school year 19 hours per week4 . (S-6) The Team agreed with the assessment results and determined that Student would require continued placement in a substantially separate classroom to receive all of the recommended services. The Team drafted a new IEP for the time period from October 17, 2008 through October 16, 2009. It included revised goals and updated information from the evaluations. (S-6)
21. Father rejected the IEP on or about November 4, 2008. He returned the response section with the notation, “It was agreed by signing the last IEP his last day would be 12/10/08 unless transferred to Fairhaven High. The school has done a poor job. I hope to bring this matter to court soon.” (S-6) Ms. Coffin was very disappointed when she received Father’s response to the IEP. She tried to call him, but he would not talk to her. (Coffin)
22. On or about November 4, 2008, Father sent a handwritten fax to Ms. Coffin. The fax said, “Just a reminder December 10 th is [Student]’s last day.” (S-5) Student continued to attend school until December 9, 2008. Acushnet continued to send transportation to Student’s house until December 12, 2008. It stopped sending the transportation at that time because Father had become angry with the driver. (Coffin)
23. Father never indicated that he wanted Student to be terminated from special education, and he has not withdrawn Student from school. (S-2, Coffin) Achusnet continues to fund Student’s placement at the Cape Cod Collaborative. (Coffin)
24. Anita Woods is the Program Director at the Cape Cod Collaborative. When she first met with Father he indicated that he did not envision his son at her program, but wanted him in an inclusion program. She visited Student’s classroom periodically and attended Team meetings for Student. She does not believe Student could receive a free appropriate public education in an inclusion setting. She thinks it would be overstimulating for him and anxiety producing. She also did not think he would understand the language used in an inclusion setting. She is disappointed that Father did not “buy into the program.” She is concerned that Student remains out of school given his very significant needs. She stated that Student needs to be around other people and is capable of learning skills. He needs to begin learning “adult skills.” She would like to see him return to her program because he responded well to it and thrived having a routine. (Woods) Ms. Pomocka also would like to see him return to school. She noted that he has a great deal of potential for learning new skills and responded well to the structure of her classroom. (Pomocka)
FINDINGS AND CONCLUSIONS:
Student is an individual with a disability, falling within the purview of the Individuals with Disabilities Education Act (IDEA)5 and the state special education statute.6 As such, he is entitled to a free appropriate public education (FAPE). Neither his status nor his entitlement is in dispute. Under the FAPE standard, the IEP proposed by the school district must offer the student a free appropriate public education that meets state educational standards. This education must be offered in the least restrictive environment appropriate to meet the student’s individual needs7 . Federal law also requires that the student be able to fully participate in the general curriculum to the maximum extent possible. 20 USC § 1415(d)(1)(A)(iii); 34 CFR 300.347(a)(2)(I) and (a)(3)(ii); 64 Fed. Reg. No. 48, page 12595, column 1; See also, In Re: Worcester Public Schools, BSEA # 00-1912, 6 MSER 194 (2000).
Additionally, the student’s education must be offered in the least restrictive environment appropriate to meet his/her individual needs8 . 20 USC §1414(d)(1)(A)(iii); 34 CFR 300.347(a)(2)(i) and (a)(3)(ii); 64 Fed. Reg. No. 48, page 12595, column 1; MGL c. 71B § 1; 603 CMR 28.02 (12). See In re: Worcester Public Schools , BSEA # 00-0912, 6 MSER 194 (SEA MA 2000) and In re: Gill-Montague Public Schools District , BSEA # 02-1776, August 28, 2002.
As stated by the federal courts, the LEA is responsible to offer students meaningful access to an education through an IEP that provides “significant learning” and confers “meaningful benefit” to the student9 , through “personalized instruction with sufficient support services …”10 . The requirements of the law assure the student access to a public education rather than an education that maximizes the student’s individual potential. Lenn v. Portland School Committee , 998 F.2d 1083 (1 st Cir. 1993); GD v. Westmoreland School District , 930 F.2d 942 (1 st Cir. 1991).
The burden of persuasion in an administrative hearing challenging an IEP is placed upon the party seeking relief. Schaffer v. Weast , 546 U.S. 49, 126 S. Ct. 528, 534, 537 (2005) In this case, Acushnet is the party seeking relief, and thus has the burden of persuading the hearing officer of its position.
In this case, Father has stopped sending Student to school because he wishes for him to receive his education at Fairhaven High School and in an inclusion setting. However, Acushnet is obligated to propose and provide services that will meet Student’s individual needs and must provide those services in a setting equipped to provide Student’s required services. Thus, a dispute has arisen between the parties and Acushnet seeks a determination that its proposed IEPs are appropriate and that Student’s non-attendance at school constitutes a denial of a free appropriate public education.
Although Father has indicated his desire for Student to attend Fairhaven High School, Fairhaven does not have a program that would meet Student’s extensive needs. Both state and federal law require that special education students are educated in the least restrictive environment. This means that to the maximum extent appropriate, students with disabilities must be educated with students who do not have disabilities. Programs and services can only be implemented in separate settings when the nature and severity of the child’s special needs is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily. See 20 U.S.C. 1412 (5)(A). In this case, Acushnet has demonstrated that Fairhaven does not have a program that is capable of meeting Student’s needs. (Coffin, S-33, S-36) Although Ms. Coffin believed that New Bedford High School could provide an appropriate program for Student, Father was not interested in placing Student there. Therefore, Student was placed at the Cape Cod Collaborative when Achusnet determined that it was capable of meeting Student’s needs, Ms. Woods found him to be appropriate for her program, and Father consented to the placement decision.
Acushnet has provided sufficient unrebutted evidence to show that the IEP proposed for Student for the period from March 2008 through March 2009 was appropriate. The IEP addressed Student’s needs as identified by prior evaluations and his last accepted IEP. The services were almost identical to those provided in the last accepted IEP, and there was no information in the record to suggest that his needs had changed in any way that would make the services inappropriate. Student’s progress reports from March 2008 through June 2008 show that he was making progress and gaining new skills during this time period. Ms. Pomocka, who was implementing the last accepted IEP which contained the same services proposed by the March 2008 through March 2009 IEP credibly testified that Student was making progress while receiving the services required under this IEP. There is nothing in the record to suggest that the March 2008 – March 2009 IEP was not reasonably calculated to provide Student with a free appropriate public education in the least restrictive environment.
The IEP proposed for the period from October 2008 through October 2009 was drafted after Student’s three-year evaluation. The IEP contained updated goals and objectives based upon the updated information gleaned from the evaluations. Father was invited and encouraged to attend the Team meeting to assist in its drafting, but refused to attend. The evaluations considered included a psychological evaluation which had been conducted by an evaluator chosen by Father and his advocate. The IEP was responsive to most of the recommendations made by the evaluators. The speech language pathologist’s recommendations that services continue to be provided 2 x 30 minutes per week were incorporated. Likewise, the recommendations of the occupational therapist were adopted. Most of the recommendations of Father’s requested evaluator, James Paicopolos, were incorporated. However, Ms. Pomocka disagreed with his suggestion that Student be given a behavior plan. She credibly testified that Student did not require a behavior plan because he is able to calm himself when he becomes frustrated and his behavior is not an area of difficulty in the classroom. (Pomocka). Some of Mr. Paicopolos recommendations regarding methods for teaching reading were also not included in the IEP because Ms. Pomocka explained that Student is a sight reader rather than a phonetic reader and would be confused by some of the strategies recommended by Mr. Paicopolos. Because Mr. Paicopolos had only met with Student for the evaluation, had not observed him at his placement, and did not provide testimony during the hearing, I found Ms. Pomocka to have a more credible opinion regarding Student’s needs.
The October 2008-October 2009 IEP addressed all areas of Student’s identified needs. Father did not submit any evidence that would suggest that there were areas of need that would not be met by this IEP. The primary area of dispute appears to be that Father would prefer that Student be educated in an inclusion setting and at Fairhaven High School. However, there is nothing in the record that would suggest that Student would receive any educational benefit from being in an inclusion setting at this time. Both Ms. Pomocka and Ms. Woods credibly testified that Student would be over-stimulated in an inclusion setting and would not be able to understand the language utilized by the teachers and peers. Both Ms. Pomocka and Ms. Woods have extensive experience in teaching and working with students on the autism spectrum, and therefore I credit their opinions.
The final issue before me is whether Student’s non-attendance at school constitutes a denial of a free appropriate public education. Clearly, based upon the totality of the evidence, Student’s non-attendance is resulting in a denial of a free appropriate public education. The evidence shows that Student was making progress in both academic and social skills at the Cape Cod Collaborative. The IEPs that were proposed were designed to meet his individual needs. Student was happy at school and responded well to the structure. He was able to calm himself when he became frustrated. Clearly, when a student with significant needs stops attending school and is not receiving services, this is a denial of a free appropriate public education. Acushnet continues to fund his placement, so it remains available to Student. However, Father has decided not to continue to send Student to school, and is thereby causing Student to be denied services he requires. Although Student is sixteen years old, he has not been withdrawn from school. Additionally, he benefitted from the services he was receiving, was making good progress, and has a great deal of potential to learn more academic, social, and life skills.
Father is encouraged to reconsider his position with respect to sending Student to school. Student is entitled to receive services until he receives a diploma or reaches his twenty-second birthday. 20 U.S.C. § 1412(a)(1)(A), 603 C.M.R. 28.02(9). Father is encouraged to engage in a dialogue with Acushnet to discuss any concerns he may have with the Cape Cod Collaborative program, utilizing the assistance of a BSEA mediator at the option of the parties. Father is urged to consider the consequences of not allowing Student to receive services to which he is legally entitled.
ORDER
Based upon the foregoing, I find that Acushnet’s proposed IEP for the period from March 2008 through March 2009 is reasonably calculated to provide Student with a free appropriate public education in the least restrictive environment.
Additionally, I find that the IEP proposed by Acushnet for the period from October 2008 through October 2009 is reasonably calculated to provide Student with a free appropriate public education in the least restrictive environment.
I further find that Parent’s ongoing refusal to permit Acushnet Public Schools to implement such services constitutes a denial of a free appropriate public education to Student. Acushnet should take whatever further steps it deems necessary to encourage Father to return Student to school.
By the Hearing Officer,
____________________________________
Catherine M. Putney-Yaceshyn
Dated: March 3, 2009
1
Fairhaven’s Director of Special Education, Kathryn Levine, wrote a letter to Ms. Coffin dated May 12, 2008, in which she stated that Fairhaven did not have a suitable program for Student. (S-33)
2
Since Acushnet does not have its own high school, its students attend either New Bedford or Fairhaven High School. (Coffin)
3
Ms. Pomocka testified that Student sees himself as a verbal communicator. However, she noted that if one is unfamiliar with Student he or she would have trouble understanding Student.
4
Ms. Coffin testified that Acushnet had offered extended school year services every year since 2006 and Father has never accepted them. (Coffin)
5
20 USC 1400 et seq .
6
MGL c. 71B.
7
20 USC 1412(5)(A)
8
20 USC 1412(5)(A); 603 CMR 28.02(12)
9
For a discussion of FAPE see Hendrick Hudson Bd. Of Education v. Rowley , 458 U.S. 176, 188-189 (1992); Cedar Rapids Community School District v. Garret F., 526 U.S. 66 (1999); Burlington v. Department of Educatio n , 736 F. 2d 773 (1 st Cir. 1984). Houston Independent School District v. Bobby R ., 200 F.3d 341 (5 th Cir. 2000); Stockton by Stockton v. Barbour County Bd. of Educ., 25 IDELR 1076 (4 th Cir. 1997); MC v. Central Regional School District , 81 F.3d 389 (3 rd Cir. 1996), cert. denied 519 US 866 (1966); Ridgewood Board of Education v. NE , 30 IDELR 41 (3 rd Cir. 1999). See also GD v. Westmoreland School District , 930 F.3d 942 (1 st Cir. 1991).
10
Board of Education of Hendrick Hudson Central School District v. Rowley, 458 U.S. 176, 203, 102 S.Ct. 3034, 3049 (1982).