Barnstable Public Schools – BSEA # 11-8743



<br /> Barnstable Public Schools – BSEA # 11-8743<br />

COMMONWEALTH OF MASSACHUSETTS

Division of Administrative Law Appeals

Bureau of Special Education Appeals

In Re: Barnstable Public Schools

BSEA#: 11-8743

DECISION

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

A Hearing was held on June 20, 2011 in Malden, MA before Ann F. Scannell, Hearing Officer. Those present for all or part of the Hearing were:

Paul’s1 Step-mother

Paul’s Family Friend

Steven Kaser Housemaster, Barnstable Public Schools

Peter Bertucci TEAM Chair, Barnstable Public Schools

Jennifer Clark School Counselor, Barnstable Public Schools

Gina Hurley Director of Student Services, Barnstable Public Schools

Patrick Clark Principal, Barnstable Public Schools

Garrett Colson Educational Advocate

William Butler Attorney, Barnstable Public Schools

The official record of the Hearing consists of documents submitted by the parents and marked as Exhibits P-1 through P-111; documents submitted by Barnstable Public Schools (“Barnstable”) and marked as Exhibits S-1 through S-6, and approximately 3 hours of oral testimony. Written closing arguments were submitted on June 24, 2011 and the record closed on that date.

INTRODUCTION

Paul is a 15 year old student in the 9 th grade at Barnstable High School. During the 2006 to 2007 school year Paul received several discipline reports for disrespectful behavior, not following rules, and harassment, bullying and threats. He underwent an initial evaluation for special education services in the spring of 2007 and was found ineligible for special education services. (Exhibits P-1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 21 and 22)

In September of 2007, Paul underwent a school psychological evaluation due to concerns about his behavior. He was again found ineligible for special education services. A 504 Plan was drafted and accepted by the parents in October 2007.2 (Exhibits P-25, 26, 27, 28, 29, 30, 31, 34, 35 and 36)

Paul received several school suspensions during the 2007 to 2008, 2008 to 2009 and 2009 to 2010 school years. He was suspended for inappropriately touching a female student, possessing a knife at school, assaulting a student, threatening a student and possessing marijuana. (Exhibits P-37, 38, 39, 44, 45, 46, 47, 48, 49, 51A, 51B and 63)

On October 18, 2010, Paul was suspended from school for one day for alleged possession of drug paraphernalia. On November 3, 2010, he was suspended for two days from school after he allegedly inappropriately touched a female student. Two days later, Paul was suspended for eight days after allegedly harassing and intimidating several students over a several week period. (Exhibits P-81, 82, 85 and 88)

As a result of these suspensions, a manifestation hearing was conducted on November 17, 2010. The TEAM determined that Paul’s behavior was not a manifestation of his disability. Subsequently, Paul was charged with two counts of indecent assault and battery. A principal’s meeting was held on December 3, 2010 pursuant to MGL c. 71 section 37 H ½.3 Principal Clark determined that Paul’s continued presence at school would have a substantial detrimental effect on the general welfare of the school and therefore indefinitely suspended Paul from school.4 (Exhibits P-83, 84, 87 and 88 and S-2, 4 and 5 and testimony of P. Clark, Bertucci and J. Clark)

On June 2, 2011, the parents filed a Hearing Request with the Bureau of Special Education Appeals (“BSEA”) requesting an expedited hearing on the disciplinary issues. On June 3, 2011, the matter was granted expedited status. Conference calls were held on June 13, 2011 and June 14, 2011. School counsel requested a short postponement of the Hearing date of June 17, 2011. The parents withdrew the matter from the expedited track and the postponement was granted. The two disciplinary issues moved forward to Hearing on June 20, 2011.

It is the parents’ position that Barnstable did not properly conduct a manifestation determination hearing on November 17, 2010 because Barnstable did not conduct a reevaluation, did not consider all relevant information in Paul’s file and did not consider whether the 504 Plan was reasonable, appropriate, effective or implemented correctly. Further, it is the parent’s position that Paul’s conduct was a manifestation of his disability.

It is Barnstable’s position that Barnstable did properly conduct a manifestation determination meeting on November 17, 2010 and that Barnstable properly determined that Paul’s conduct was not a manifestation of his disability.

ISSUES

The issues to be decided in this matter are:

1. Whether Barnstable properly conducted a manifestation determination hearing on November 17, 2010. If not, did Barnstable properly conduct an expulsion hearing on December 3, 2010.

2. Whether Paul’s conduct on November 3, 2010 was a manifestation of his disability.

FACTS

Paul is a 15 year old student at Barnstable High School. He was initially evaluated for special education services in May of 2007 and was found ineligible. Due to behavioral difficulties, the TEAM recommended that further testing be conducted in the fall of 2007. (Exhibits P-12, 13, 14, 15, 16, 17, 18, 19, 20, 21 and 22)

Paul underwent a psychological evaluation on September 26, 2007. The evaluation was conducted by school psychologist, Mary Lou Harwood. Three of Paul’s teachers and his step-mother completed the behavior scales of the Behavior Assessment System for Children-2 (BASC-2). Paul received clinically significant scores in hyperactivity, aggression, conduct problems, learning problems and atypicality from two of his teachers and his step-mother. Although Paul had several incidents of disruptive and socially inappropriate behavior and clinically significant scores, Ms. Harwood reported that he did not present as a student with a significant emotional impairment. He did, however, seem likely to have a health disability in the area of attention. (Exhibits P-25 and 26)

After a TEAM meeting in October of 2007, Paul was found ineligible for special education services. The TEAM found that Paul had a health disability (ADHD) but was making effective progress. They recommended that Paul be serviced by a 504 plan. The proposed 504 plan called for accommodations directed at Paul’s attentional difficulties, such as preferential seating, frequent breaks, cueing and use of a school to home weekly agenda. The parents accepted the 504 plan. (Exhibits P-34, 35 and 36)

In February of 2008, Paul was suspended from school for inappropriately touching a female student on the bus. A meeting was held in April to discuss Paul’s inappropriate behavior. Barnstable requested that the parent inform Paul’s outside therapist, that Paul had demonstrated “stalking” behavior towards four students in his class. It was agreed that the school counselor would see Paul on an as needed basis regarding inappropriate behavior. (Exhibits P-37, 38 and 39)

In December of 2008, Paul was suspended from school for possession of a knife. Later in the year, he received two additional disciplinary referral forms for knocking a student to the ground and throwing a sharp object at a student. (Exhibits P-44, 45, 46, 47, 48 and 49)

During the summer of 2009, Paul underwent an outside evaluation with Carl Gustafson, Psy.D, who found that Paul had a solid cognitive profile. Dr. Gustafson reported that Paul was displaying impulsivity, irritability and anger. Dr. Gustafson also described Paul’s childhood trauma, which included neglect by his biological mother, a year long stay in a foster home and witnessing his biological mother’s violent behavior, sexual behavior and substance abuse. (Exhibit P-50)

During testing, Dr. Gustafson noted that Paul had word retrieval difficulties, a lower than age appropriate level of frustration tolerance, impulsivity, impatience, inattention and distractibility. He reported that parent and teacher behavior checklists were in the clinically significant range for aggressive behavior, thought problems and attention problems. Four of Paul’s teachers reported to Dr. Gustafson that Paul exhibited defiant behavior, had no regard for others and did not take responsibility for his actions. (Exhibit P-50)

Personality testing and projective testing revealed that Paul had a significant mood problem, likely to be associated with either a major depressive disorder or a chronic disposition to becoming depressed. Dr. Gustafson reported that these findings could also reflect a depressive phase of Bipolar or Cyclothymic disorder. He reported that Paul was experiencing oppositional tendencies and considerable emotional stress that was interfering with his judgment and impulse control. He further reported that Paul showed evidence of a mild to moderate impairment in his ability to think logically and coherently. (Exhibit P-50)

Overall, Dr. Gustafson found that Paul was in need of significant intervention. He opined that Paul met the criteria for Bipolar Disorder, with a rule out diagnosis of a thought disorder. He also diagnosed Paul with ADHD and a math disorder. He noted Paul’s difficulties with internal anger and interpersonal skills as well as struggles with visual memory, problem solving skills and mild to moderate executive function deficits. (Exhibit P-50)

Dr. Gustafson recommended an anger management program, home based counseling, trauma treatment, a neurological evaluation and increased involvement in pro-social activities. He further recommended that the school review his academic findings to develop an IEP for Paul.5 (Exhibit P-50)

In October of 2009, Paul was suspended from school for cutting another student’s hair. He received a disciplinary referral in February 2010 for abusive behavior toward a teacher and a Saturday suspension in March 2010 for intimidating a student. One week later, Paul was suspended from school for possession of marijuana. In May 2010, he was suspended again for hitting another student. (Exhibits P-51A, 57A, 58, 59, 60, 63, 71 and 75)

A new 504 plan was developed and accepted in November of 2009. The plan noted that Paul was diagnosed with ADHD, that he was also taking medication to stabilize his mood, and called for preferential seating.6 (Exhibits P-52, 53 and 54)

On April 27, 2010, Paul underwent a 504 reevaluation by Patricia Dooley, school psychologist. As part of the reevaluation, Ms. Dooley administered the BASC-2, the Behavior Rating Inventory of Executive Function (“BRIEF”) and the Woodcock-Johnson Tests of Cognitive Ability. Paul’s step-mother also completed a developmental history questionnaire. (Exhibits P-64, 65, 66, 67 and 68 and S-6)

Paul’s endorsements on the BRIEF revealed clinically significant scores in the global executive composite score, behavioral regulation and metacognition. Paul’s step-mother and teachers’ reports revealed significantly elevated scores on all measures.7

Ms. Dooley concluded that Paul should remain on a 504 plan based on his ADHD diagnosis. She further noted that, given his inhibitory control difficulties, Paul would likely continue to have difficulty considering potential consequences of his actions in the moment. (Exhibits P-66 and 68 and S-6)

A new 504 plan was developed. The accommodations included preferential seating, option to take tests outside of the classroom, teacher redirection and cueing and extra time to complete assignments. (Exhibits P-73 and S-1)

On October 18, 2010, Paul was suspended from school for possessing drug paraphernalia. Three weeks later he was suspended again for inappropriately touching a female student and harassment and intimidation of other students in violation of the Barnstable High School Student Handbook. (Exhibits P-76, 77, 78, 81, 82 and 95 and testimony of P. Clark and Bertucci)

As a result of these infractions, a manifestation determination hearing was held on November 17, 2010. The TEAM determined that the conduct in question was not caused by Paul’s disability nor caused by Barnstable’s failure to implement Paul’s 504 plan. (Exhibits P-83 and S-2 and testimony of P. Clark, Bertucci and J. Clark)

By letter dated November 22, 2010, Principal Clark informed the parents that an expulsion hearing would occur on December 3, 2010 as a result of pending indecent assault charges against Paul stemming from the November incidents.8 This meeting was held and Paul was indefinitely suspended from school pending the resolution of these charges. (Exhibits P-87 and S-4 and S-5 and testimony of P. Clark)

DISCUSSION

Paul is serviced by a 504 plan. Pursuant to the 504 regulations, “a recipient that operates a public elementary or secondary education program or activity shall provide a free and appropriate public education (“FAPE”) to each qualified person with a disability who is in the recipient’s jurisdiction.”9 Further, section 104.35(a) requires a recipient to conduct an evaluation, in accordance with section 104.35(b), of any student who, because of a disability, needs or is believed to need special education or related aids and services before taking any action with respect to the initial placement or any subsequent significant changes in placement. The United States Department of Education, Office of Civil Rights “(OCR”) considers the expulsion or suspension of a student with disabilities for more than 10 days a significant change in placement under section 104.35.10

As stated above, prior to taking any action that constitutes a significant change in the placement of a student with a disability, a recipient must first conduct an evaluation of the student in accordance with 34 CFR 104.35. The first step in the evaluation is a determination by a group of persons knowledgeable about the student as to whether the student’s behavior is a manifestation of the student’s disability. If it is determined that the misconduct is caused by the student’s disability, the evaluation team must continue the evaluation, following the requirements of section 104.35 for evaluation and placement, to determine whether the student’s current educational placement is appropriate. If it is determined that the student’s misconduct is not caused by the student’s disability, the student may be excluded from school in the same manner as similarly situated nondisabled students.11

The narrow issue to be decided in this case is whether Paul’s conduct on November 3, 2010 was a manifestation of his disabilities. Since the parents are the party seeking relief, they have the burden of persuasion.12

The federal special education statute and accompanying regulations13 provide that a student’s conduct is a manifestation of his disability if:

I. the conduct in question was caused by, or had a direct and substantial relationship to the child’s disability; or,

II. the conduct in question was the direct result of the local educational agency’s failure to implement the 504 plan.14

In making this determination, the federal regulations require that the school district, the parents and relevant members of the TEAM review all relevant information in the student’s file, including the 504 plan, any teacher observations and any relevant information provided by the parents.

As previously stated, Barnstable found that Paul’s conduct was not a manifestation of his disabilities. The parents, therefore, must prove by a preponderance of the evidence that Paul’s conduct was either caused by or had a direct and substantial relationship to his disabilities, or that Paul’s conduct was the direct result of Barnstable’s failure to implement his 504 plan.

Before reaching this substantive issue, I will address the parents’ allegation that the manifestation determination hearing was not conducted properly due to procedural violations which amounted to a denial of a FAPE to Paul. They allege that, pursuant to the 504 regulations, section 104.35, Barnstable was required to conduct a full reevaluation of Paul once Barnstable notified them of the principal’s hearing to determine whether Paul would be suspended or expelled. The parents’ interpretation of the regulation is erroneous. OCR has determined that the first step is to discern whether the student’s misconduct was a manifestation of his or her disabilities. If the team determines that the student’s conduct was a manifestation of his disabilities, then a full reevaluation must occur. Since Barnstable determined that Paul’s misconduct was not a manifestation of his disabilities, it was not required to conduct a full reevaluation.

The parents further allege that the manifestation determination with respect to Paul’s misconduct of harassment, intimidation and inappropriate touching, but the expulsion hearing was based on Paul’s indecent assault and battery charges. After a careful review of the evidence, I find that the parents’ argument fails because both the manifestation hearing and the expulsion hearing were based on the same misconduct. There was, therefore, no procedural violation.

As to the parents’ argument that Barnstable committed due process violations by improperly citing MGL c. 71 section 37H instead of MGL c. 71 section 37H 1/2, and by failing to provide the parents proper notice of the manifestation determination hearing and their right to appeal the principal’s expulsion hearing, I find that the evidence presented does not support the parents’ argument that these alleged violations violated Paul’s right to a FAPE. The evidence revealed that the parents were present at the manifestation determination hearing and had an opportunity to be heard.

Lastly, the parents argue that the manifestation determination hearing was not conducted properly because Barnstable did not consider information from a variety of sources in determining that Paul’s conduct was caused by or had a direct and substantial relationship to his disabilities. I find that the parents’ argument is supported by the evidence. As explained below, the manifestation determination team failed to consider all the available information in making their determination that Paul’s conduct was not a manifestation of his disabilities and as such Barnstable’s actions deprived Paul of his right to a FAPE.

I credit Paul’s step-mother’s testimony that she had contacted Barnstable following Dr. Gustafson’s evaluation and was told by Barnstable personnel to forward Dr. Gustafson’s report to school psychologist, Patricia Dooley. She testified that she forwarded the report to Ms. Dooley and the documentary evidence supports her testimony. Dr. Gustafson’s report was sent by email to Patricia Dooley on May 21, 2010. This report was not considered by the manifestation determination team.15 Dr. Gustafson’s evaluation found that Paul appeared to meet the criteria for Bipolar Disorder, a math disorder, ADHD and a rule out thought disorder. Dr. Gustafson reported that situation-related stress was impairing Paul’s capacities for self control, making him highly vulnerable to impulsive behavior, impaired social functioning and impaired executive functioning.

Dr. Bertucci testified that the manifestation team considered, all of Paul’s file in making its determination. On cross examination, however, there were numerous documents presented to him that he indicated were not considered or he could not recall whether they were considered, including teacher recommendations, behavioral contracts, disciplinary reports and meeting notes. Overall, Dr. Bertucci’s testimony was not credible in this regard. Given that Barnstable did not consider Dr. Gustafson’s report, as well as other documents that were part of Paul’s educational file and pertinent to his discipline and behavioral history, I find that Barnstable did not properly conduct the manifestation determination hearing.16 Having made this determination, it is not necessary to address the substantive issue as to whether Paul’s conduct on November 3, 2010 was a manifestation of his disability.

In closing, I find that Barnstable did not conduct a proper manifestation determination hearing pursuant to 504 law because they failed to review and consider “all relevant information.” I cannot assume that had Barnstable reviewed and considered Dr. Gustafson’s report and all other pertinent information, they would have made the same determination. (I am similarly unable to conclude that had Barnstable reviewed and considered Dr. Gustafson’s report, they would have determined that Paul’s conduct was caused by or had a direct and substantial relationship to Paul’s disability(ies)). This procedural violation affected Paul’s right to a FAPE. Barnstable, therefore, must reconvene the manifestation determination hearing and review and consider Paul’s entire file with particular attention to Dr. Gustafson’s report.

ORDER

Barnstable must immediately reconvene a manifestation determination hearing and review and consider all relevant information in Paul’s file, including Dr. Gustafson’s report, in making a determination as to whether Paul’s conduct was caused by or had a direct and substantial relationship to his disabilities.

So Ordered by the Hearing Officer,

_____________________________

Ann F. Scannell

Dated: July 12, 2011


1

Paul is a pseudonym used for confidentiality and classification purposes in publicly available documents.


2

Paul was diagnosed with ADHD by his outside provider, Dr. Kelley, and the 504 accomodations addressed his attention issues.


3

The letter from Principal Clark to Paul’s parents referenced MGL c. 71, section 37 but it appears that the proper section is 37 H 1/2.


4

Paul’s step-mother testified that she never received a copy of Principal Clark’s letter.


5

The parent sent a copy of the report to the school psychologist via email on May 21, 2010. Barnstable testified that they never received a copy of the report. (Exhibits P-50 and 51 and testimony of Paul’s step-mother and Bertucci)


6

At about the same time, a letter was sent to the parent notifying her that Paul was in danger of failing since he had received “F’s” in all of his classes. (Exhibit P-56)


7

Ms. Dooley did not report any findings from the BASC-2.


8

This letter references MGL c. 71 section 37H but arguably should have referenced MGL c. 71 section 37 H 1/2.


9

34 CFR 104.33(a)


10

OCR, Springfield School District #186, 55 IDELR 206 (2010)


11

OCR Memorandum, 307 IDELR 05 (1988)


12

Schaffer v. Weast , 546 U.S. 49, 62 (2005).


13

Massachusetts defers to the federal law and regulation in matters involving discipline.


14

20 USC 1415(k)(1)(E)(i); 34 CFR 300.530(e)


15

Dr. Bertucci testified that he had never seen the report so it was not considered.


16

As to the parents’ argument that Barnstable did not properly conduct an expulsion hearing on December 3, 2010, I find that the BSEA lacks jurisdiction to address this issue.


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