COMMONWEALTH OF MASSACHUSETTS
BUREAU OF SPECIAL EDUCATION APPEALS
In re: Carl1 v Attleboro Public Schools
BSEA # 05-5926
DECISION
This decision is rendered pursuant to M.G.L. Chapters 30A and 71B; 20 U.S.C. §1400 et seq .; 29 U.S.C. §794; and the regulations promulgated under each of these statutes.
A hearing in the above-entitled matter was held on September 22, 2005 at the Bureau of Special Education Appeals in Malden, MA. The record remained open for receipt of final exhibits until October 4, 2005.
Those in attendance were:
Sylvia Day Director of Special Education, Attleboro Public Schools
Ann Zmudskey Out-of-District Coordinator, Attleboro Public Schools
John Bonin Director, Southeast Alternative School
Regina Tate Attorney for Attleboro Public Schools
Raymond Oliver Hearing Officer, Bureau of Special Education Appeals
The evidence consisted of Attleboro Public Schools’ Exhibits labeled S-1 through S-81; and approximately 2 hours of oral testimony.
HISTORY/STATEMENT OF THE CASE
Carl is a 17 year old young man who resides with his Mother in Attleboro, MA. He has been a special education student since kindergarten. He attended Attleboro Public Schools (Attleboro) through 5 th grade, then attended a private school for grades 6 & 7. During 8 th grade (2001-2002 school year) he attended school in Attleboro. In September 2002 Mother placed Carl at School One in Providence, RI where Carl attended for the 2002-2003 school year. During the 2003-2004 school year and for part of the 2004-2005 school year Carl was tutored by Attleboro due to disputes over Carl’s residency, rejected IEPs, and the appropriate educational placement to address Carl’s special education needs. (See S-1 through S-59; testimony, Day.)
On December 7, 2004 the parties reached a settlement which settled outstanding disputes between the parties; whereby both parties withdrew their hearing requests then pending before the BSEA; and whereby Mother signed the most recent Attleboro Individual Education Plan (IEP) which placed Carl at the Massapoag High School ( Massapoag), a substantially separate special education program of the CHARMSS Collaborative, from December 2004 through December 2005. (See S-60, 61, 62; testimony, Day.)
Carl attended Massapoag from December 2004 until March 2005. There were numerous incident reports and suspensions. On March 11, 2005, at the request of Massapoag, a team meeting was held regarding Carl’s behaviors and the incidents/suspensions referenced above. At the March 11, 2005 team meeting Massapoag stated that it could not meet Carl’s needs; it could not handle Carl; its program was not structured enough for Carl; and that Carl could not come back. Carl never returned to Massapoag. (See testimony, Day; Zmudsky; S-63, 64, 65, 66, 67, 68, 69, 70, 71.)
Attleboro then provided tutoring to Carl until a new IEP was developed and accepted on April 6, 2005 placing him at the Southeast Alternative School (SEAS) from April 2005 through April 2006. (See S-72, 73, 74.) Carl attended SEAS for approximately 4 weeks. Attendance was sporadic and he was often inattentive when he was there. On May 10, 2005 Carl refused a routine search. Carl called Mother. Mother picked up Carl. A re-entry meeting was planed for May 11, 2005 but Carl never returned to SEAS. (See testimony, Bonin; Day; Zmudsky; S-75, 77, 80.)
On May 26, 2005 Attleboro invited Mother to a team meeting scheduled for June 1, 2005 to discuss and review Carl’s current situation regarding SEAS, as well as summer programming. The team meeting took place and Carl was offered summer services for the 2005 summer. Carl failed to attend the offered summer program. (See testimony, Zmudsky; Day; S-76, 77, 79.)
On June 16, 2005 Attleboro requested a BSEA Hearing and an initial hearing date was scheduled for July 5, 2005. Attleboro’s attorney requested a postponement which was granted. The Hearing Officer scheduled and sent notices for pre-hearing conference calls for July 5 and then July 15, 2005. Mother failed to participate in either conference call. On July 15, 2005, per Attleboro’s request, the Hearing Officer scheduled a hearing for September 22, 2005 and sent notices to the parties. On August 11, 2005 Attleboro had Mother served, in hand, a notice of the hearing for September 22, 2005 by a constable (S-81).
On September 22, 2005 neither Mother nor Carl appeared at the hearing. The Hearing Officer, in the presence of Attleboro’s attorney, telephoned Mother at her home, Carl answered and referred the Hearing Officer to Mother’s work phone number. The Hearing Officer then telephoned Mother at work. Mother answered and stated that she had received the Hearing Notice but that she would not be attending because she was going to court with Carl on another matter the next day. The Hearing Officer informed Mother that the hearing had been scheduled for over two months; that Mother had never requested a postponement in writing or even orally via telephone; that Attleboro had sent in exhibits and was present with witnesses; and that the hearing would proceed. Mother represented her position to the Hearing Officer and Attleboro’s attorney over the telephone. All of the above conversation, as well as Mother’s position (see below), was read into the record by the Hearing Officer.
ISSUES IN DISPUTE
1) Does Attleboro’s proposed IEP for Carl at SEAS for the period of April 2005 to April 2006 appropriately address Carl’s special education needs so as to provide him with a free and appropriate public education (FAPE) in the least restrictive educational environment?
2) If not, should Attleboro arrange and pay for Carl to receive his GED and provide tutoring support to assist Carl in obtaining his GED?
STATEMENT OF POSITIONS
Attleboro’s position is that its current IEP for Carl at SEAS is appropriate to address his special education needs so as to provide him with FAPE in the least restrict educational environment. Attleboro contends that assisting Carl to obtain his GED is totally inappropriate to address his special education needs so as to provide him with FAPE in the least restrictive educational environment.
Parent’s position, represented by Mother to the Hearing Officer and Attleboro’s attorney, is that it is not appropriate for Carl to go to any high school program at this point in time and that Mother and Carl wish for Carl to obtain his GED. Mother requests that Attleboro arrange for and fund GED classes for Carl. Mother also requests that Attleboro fund tutorial support to assist Carl in obtaining his GED because Carl tried to get a GED in the past but the work was to difficult.
PROFILE OF STUDENT
Carl’s last psychological evaluation took place in February 2004 (S-26) by Licensed Psychologist Michael Williams, Ph.D. Carl was then 16 years old. On the Wechsler Intelligence Scale for Children-4 th edition (WISC-IV) Carl’s overall cognitive functioning fell within the low average to high end of the borderline range. His overall scores were as follows (see S-26 for complete WISC-IV results):
Index Score – Composite Score – Percentile – Category
Verbal Comprehension – 81 – 10 – Low Average
Perceptual Reasoning – 88 – 21 – Low Average
Working Memory – 88 – 21 – Low Average
Processing Speed – 70 – 2 – Borderline
Full Scale IQ – 77 – 6 – Borderline
In terms of academic skills, Carl was administered the Wide Range Achievement Test-3 rd edition (WRAT-III). Carl achieved solidly average scores in reading; low average scores in spelling; and borderline level scores in math (S-26).
On the Children’s Memory Scale (CMS) Carl’s results indicated that he experienced some impairment in his ability to consistently store and retrieve both verbal and visual material, likely due to intermittent attentional difficulty, slowed processing speed, becoming easily overwhelmed and poor motivation (S-26).
Based upon the Rorschach Inkblot Test, Sentence Completion Test, House-Tree-Person Test Drawings, and Child Behavior Check List (completed by Mother), Carl’s personality testing results were most consistent with a diagnosis of Oppositional Defiant Disorder (ODD) although given his history of legal problems, a diagnosis of Conduct Disorder could not be discounted. Carl also appeared to be suffering from a mild depression. Carl’s ability to effectively manage or modulate both his moods and his own behaviors appeared to be quite poor. There was also a history of Attention Deficit Hyperactivity Disorder (ADHD) which was consistent with this psychological evaluation. In addition there was a history of drug abuse, prior legal involvement on other issues, and probation. (See S-26 for complete psychological evaluation results.)
On a Learning Disabilities Evaluation performed in October 2004 (S-5) Carl received the following scores on the following test instruments: 1) Key Math Test a total math score placing him in the low average range; 2) Wechsler Individual Achievement Test-2 nd edition (WIAT-II) a total spelling score of low average and a total written expression score of low average; and 3) Woodcock Diagnostic Reading Battery (WDRB) a total reading score of average. (See S-5 for breakdown of subtest scores on the above testing instruments.)
The behavioral issues which led to Carl’s termination from Massapoag in March 2005 involved seven suspendable offenses including bringing a weapon to school; coming to school under the influence of drugs; violating the school’s drug policy ; instigating other students; displaying gang related behaviors; attempted assault of a peer; and aggressive actions towards a staff member. (See S-63, 64, 67, 68, 69 70).
SCHOOL’S PROPOSED PROGRAM
Attleboro’s proposed and accepted IEP for Carl provides that Carl be educated at the Southeast Alternative School (SEAS), a private, non profit, special education day school located in Middleboro, MA. SEAS is a referral school for students with behavioral, emotional, and learning disabilities. SEAS provides an academic program within a structured and secure therapeutic milieu. Within SEAS students function on both a point system and a level system. SEAS also provides students with appropriate vocational opportunities given their abilities and interests.
There are currently 33 students at SEAS, ages 14-19 years old. The students are all academically capable, of low average intelligence, with diagnoses including ODD, ADHD, and other behavioral, emotional, and learning disabilities. All SEAS students have been unsuccessful within regular high school settings.
There is a total of 17 teachers and staff. Each class consists of 1 teacher and 1 classroom counselor who assists students with their behaviors within the classroom and provides additional academic assistance when necessary. Class sizes are 8-9 students to 2 staff (teacher and counselor) for a student to staff ratio of 4-5:1.
At SEAS Carl received four academic classes (English, math, social studies, and science) plus classes in health, physical education and art. Carl also received group counseling and individual counseling. If Carl had remained in the SEAS program, attended regularly, and maintained proper behavior, in approximately five weeks SEAS would have arranged a vocational work-study internship for Carl in the area of heating and air conditioning which was an area of strong vocational interest for Carl.
(See testimony Bonin; S-74, 75, 76, 77, 79, 80.)
FINDINGS AND CONCLUSIONS
It is confirmed by the evidence presented that Carl is a student with special education needs as defined under state and federal statutes and regulations. The fundamental issues in dispute are listed under ISSUES IN DISPUTE , above.
Based upon the oral testimony and extensive written documentation introduced into evidence and a review of the applicable law, I conclude that:
I. Attleboro’s proposed and accepted IEP for Carl from April 2005 to April 2006 at SEAS is appropriate to address Carl’s special education needs so as to provide him with FAPE in the least restrictive educational environment;
II. Providing funding and tutorial support for Carl to obtain his GED would not be appropriate to address his special education needs so as to provide him with FAPE in the least restrictive educational environment.
My analysis follows.
Carl is a 17 ½ year old young man of high borderline to low average intelligence with
low average to average academic skills essentially commensurate with his overall cognitive ability. Carl has behavioral disabilities and emotional disabilities including ODD, ADHD and depression, combined with a substance abuse problem, all of which interfere with his ability to attend, focus and progress in school. (See PROFILE OF STUDENT , above; testimony, Bonin; Day; Zmudsky.)
I find that Attleboro’s currently proposed and accepted IEP for Carl at SEAS, a private day school placement, provides Carl FAPE in the least restrictive educational environment. SEAS provides Carl with a very low student-teacher ratio, individualized academic instruction, classroom counseling support and intervention, group counseling and individual counseling, all within a therapeutic milieu in a safe and secure special education setting close to Carl’s home. Additionally, once attendance and behaviors were sufficiently managed, SEAS would have provided Carl with a vocational internship that was individually tailored to Carl’s expressed area of vocational interest. (See SCHOOL’S PROPOSED PROGRAM , above; testimony, Bonin; Day; S-74, 80.) I conclude that SEAS provides Carl with a comprehensive and structured special education program which addresses the constellation of Carl’s behavioral, emotional, academic and vocational needs.
Mr. Bonin, Director of SEAS, testified that he observes classes frequently and interacted with Carl on a daily basis when Carl attended; that SEAS is extremely flexible and will leave no stone unturned to accommodate the needs of its students; and that SEAS seeks to provide a “hook” for students to buy into the program such as the planned heating/air conditioning internship for Carl. Unfortunately, Carl has not bought into the SEAS program. Mr. Bonin testified that even during the four week period Carl attended SEAS he attended sporadically; he was often inattentive when he was there; he did not do his academic work; he did not display responsible or respectful behavior; and he made poor choices, including coming to school under the influence of some substance on May 10, 2005 when he refused to be searched; all of which inhibited his ability to proceed and progress in school. (See testimony, Bonin.)
In spite of Carl’s past behaviors at SEAS, Mr. Bonin testified that there is no barrier to Carl’s return to SEAS if he bought into the program with a clear understanding that the SEAS rules and requirements must be followed including regular attendance, effort, and submission to random searches.2 (See testimony, Bonin; S-80.)
Clearly, Carl needs to get help regarding his substance abuse problem so that he will be able to access the comprehensive special education program that continues to be available to him at SEAS. Further, Carl is almost an adult. He must want to receive an education before he will experience success in any educational placement.
I find absolutely no basis to conclude that providing tutoring support for Carl to obtain his GED and paying for GED classes for Carl would provide him with FAPE. Carl has multiple disabilities which require a comprehensive special education program, not simply tutorial support and a GED. Carl is currently a 10 th grade level student. If he were to attend school on a regular basis, he would have three more years of high school and special education services until he would graduate and receive a high school diploma. Additionally, under special education law, if he does not graduate from high school Carl would be eligible for special education services until he turns 22 years of age. Therefore, Carl has continuing special education eligibility for another three to four and one-half years. I strongly recommend that Carl choose to take advantage of the special education opportunities afforded to him under state and federal special education law.
By the Hearing Officer
Dated: October 28, 2005 _________________________
Raymond Oliver
1
Carl is a pseudonym chosen by the Hearing Officer to protect the privacy of the Student in publicly available documents.
2
There would also have to be a team meeting to consider necessary changes to the IEP, if any, since Carl left the program in May 2005. (Testimony, Bonin.)