Elizabeth R.L. and Worcester Public Schools -BSEA # 06-2557



<br /> Elizabeth R.L. and Worcester Public Schools -BSEA # 06-2557<br />

COMMONWEALTH OF MASSACHUSETTS

BUREAU OF SPECIAL EDUCATION APPEALS

In re: Elizabeth R. L. & Worcester Public Schools

BSEA #06-2557

MEMORANDUM REGARDING RULING ON WORCESTER PUBLIC SCHOOLS’ MOTION FOR DIRECTED VERDICT

A hearing regarding the above-entitled case was held on March 2 and 7, 2006 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 ch. 71B), the state Administrative Procedure Act (MGL ch. 30A) and the regulations promulgated under these statutes. The hearing was held at Catuogno’s Reporting Service in Worcester, Massachusetts before Sandra Sherwood, Hearing Officer.1 Those present (in person or by telephone) for all or part of the proceedings were:

Arianna R. Parent

Marjorie Soforenko Attorney for Mother

Ahmad H. Friend of Mother’s

Dr. Samant (by telephone) Elizabeth’s Pediatrician

Jeffrey Rubin Special Education Administrator, Worcester Public Schools

Paige Tobin Attorney for Worcester Public Schools

Dr. Neeru Nayak Elizabeth’s Child Psychiatrist

Gretchen Dittrich Assistant Director, Behavioral Concepts, Inc.

Ann Boule Special Assistant to the Director of Special Education, Worcester Public Schools

Bette Carr Principal, Gates Lane School, Worcester Public Schools

Brian Doyle Behavioral Consultant, Children’s Evaluation Center

Laurie Dlugos Special Education Teacher, Worcester Public Schools

ISSUES

Whether the Worcester Public Schools (Worcester) failed to comply with the June 10, 2005 BSEA decision (BSEA #05-2967) requiring that Worcester retain a behavioral consultant agreed to by both parties, and whether such failure is denying Elizabeth a free and appropriate education (FAPE), so that Worcester must now educate her in a more restrictive private school placement such as the Crossroads Center for Children.

POSITION OF THE PARTIES

Parent’s position was that since November 15, 2005, Worcester had failed to provide the jointly agreed-upon behavioral consultant, as required by the June 10, 2005 BSEA decision. Further, Parent’s February 6, 2006 agreement to Brian Doyle’s services was that he would serve as an interim consultant, for Parent still sought a private school placement. As a result, Parent asserted that Elizabeth continues to be self-abusive at school (Worcester’s Gates Lane Elementary School) and at home, and she is not toilet trained. Parent asserted that because of this non-compliance with the BSEA order, Worcester has not, and is not able to provide Elizabeth with FAPE; she requires a more restrictive private educational placement such as the Crossroads Center for Children.

Worcester’s position was that it had taken all possible steps to comply with the June 10, 2005 BSEA decision, by proposing a behavioral consultant on July 8, 2005, and when that consultant proved unavailable, by proposing alternate behavioral consultants in January of 2006 and then in February of 2006. In fact, it asserted that it was Mother who interfered with Worcester’s compliance by failing to agree to Dr. Varghas’ services until December 20, 2005. Further, since February 6, 2006, Worcester had engaged the services of Brian Doyle – a colleague of Dr. Varghas – , and Mother had agreed to Mr. Doyle’s services (without giving up her right to seek a private school placement). In Worcester’s opinion, he was currently providing helpful consultation. Finally, Worcester asserted that Elizabeth was making gains while attending the Gates Lane School this year.

PROCEDURAL BACKGROUND

On March 2, 2006, Parent offered her own testimony as well as the testimony from Elizabeth’s pediatrician. For scheduling purposes, Worcester also offered testimony from Dr. Nayak, Elizabeth’s psychiatrist. Parent then rested her case.

On March 7, 2006, at the beginning of the day, Worcester moved for a Directed Verdict, asserting that Parent had failed to sustain her burden of persuasion2 as to whether Worcester had failed to comply with the June 10, 2005 BSEA order, and even if she met that burden, whether such procedural failure resulted in a denial of FAPE. It argues that Parent presented no expert evidence on the issue of whether Worcester’s toileting program, behavioral program and other services failed to provide Elizabeth with FAPE3 .

Parent opposed such Motion for a Directed Verdict, stating that she had sustained her burden of persuasion. Specifically, she stated that the evidence supported her position that Worcester failed to provide the behavioral consultant, and that such failure affected Elizabeth’s progress in controlling self-abusive behavior and in toileting skills. She asserted that Worcester was not and is not providing Elizabeth with FAPE.

Each party offered oral argument. Based on the evidence provided thus far as well as the oral arguments, Worcester’s Motion for a Directed Verdict was GRANTED.

ANALYSIS

The standard for a directed verdict is whether, at the conclusion of Parent’s case, the evidence, construed most favorably to Parent, is insufficient to support a conclusion that the preponderance of the evidence favored Parent’s position. The evidence must be sufficiently concrete to remove any inference based on mere speculation or conjecture.4

Parent was unpersuasive, even viewing the evidence in the light most favorable to Parent, that because of any asserted non-compliance with the BSEA decision #05-2967, Worcester lacks the capability of providing Elizabeth with FAPE, and therefore, Worcester should educate her in a more restrictive setting such as the Crossroads Center for Children.

Seen in the light most favorable to Parent, and even assuming that Worcester failed to comply with the BSEA decision #05-2967 by failing to hire a behavioral consultant agreed to by Parent on November 15, 2005, Parent failed to provide sufficient evidence to meet the burden of persuasion that any non-compliance with the BSEA decision now necessitates a more restrictive educational setting.

First, as of February of 2006, Worcester is providing the services of a behavioral consultant. Parent was unpersuasive that with this person, Worcester is continuing to be in non-compliance. In fact, Mother testified that she likes this consultant. It may be that the decision called for a mutually agreeable consultant, and Mother agreed to his services only temporarily – until her daughter goes to a private school. However, this qualified acceptance does not render Worcester in non-compliance, for absent a good reason for withholding full acceptance, Worcester has met its responsibility even without her full consent. This is particularly true, given the fact that Parent has had many months to propose to Worcester a behavioral consultant acceptable to her. The record evidences no such proposal.

Second, Parent’s claim that Worcester’s failure to hire a behavioral consultant in the past renders it unreliable in ensuring continued consultation, is without support. Rather to the contrary, Worcester was faced with several difficulties – including Mother’s failure to consent to Worcester’s proposed consultant for several months – but when clear that its proposed consultant was not available, Worcester proceeded to locate different consultants.

Third, Parent failed to provide sufficient evidence supporting her position that this asserted non-compliance resulted in a denial of FAPE such that even with current compliance, a more restrictive placement is necessary. She provided no expert testimony supporting her claim. It may be that Elizabeth continues to exhibit self-injurious behaviors and that she is not yet toilet trained. However, Mother’s lone opinion that such behaviors prove a lack of FAPE amounts to mere conjecture and is not credited. Absent any credible testimony that she should be making more progress, given her disabilities, or showing that Worcester is failing to develop appropriate behavioral plans, to use appropriate techniques, or to employ properly trained staff working directly with Elizabeth, Mother has not met her burden of persuasion. Parent’s one expert witness, Dr. Samant, provided nothing that would support Parent’s conclusions.

It is noted that Elizabeth’s IEP ends in May of 2006 and that Worcester is scheduled to convene a TEAM to develop Elizabeth’s next IEP. This provides the parties an opportunity to focus on Elizabeth’s educational needs in the broader context, not just this limited issue of compliance with a past decision. It is hoped that with the current consulting, the parties will have new information with which to develop Elizabeth’s next IEP ensuring that Elizabeth receives education services appropriate to her needs.

Based on the granting of Worcester’s Motion for a Directed Verdict, this case is closed as of March 7, 2006.

By the Hearing Officer,

____________________________

Sandra Sherwood

Date: March 30, 2006


1

The evidentiary record consists of the School Exhibits 1 –23, Parent Exhibits 1 – 16 and 18, as well as the testimony offered by Parent, Dr. Samant, and Dr. Nayak.


2

See Schaffer v. Weast, 546 U.S.____ (2005).


3

In the March 7, 2006 Motion for Directed Verdict, Worcester asserted that the issue of compliance was not raised by the parent and was therefore beyond the scope of the hearing. This is incorrect; although Parent’s hearing request is difficult to understand, the issue for hearing – whether Worcester complied with the June 10, 2006 BSEA decision, and if not, whether a more restrictive educational placement was called for – was established at the January 26, 2006 prehearing. It became clear at that pre-hearing, that Parent’s concerns were all ones that could have been addressed by a behavioral consultant. Accordingly, compliance with the BSEA decision was deemed to be the fundamental issue in this case. Further, given that the previous hearing addressed some FAPE issues regarding this same school year, res judicata concerns rendered it more difficult to define the issues as anything other than a compliance hearing.


4

See Donaldson v. Farrakhan , 436 Mass. 94 (2002); Mary v. Alholm v. Town of Wareham , 371 Mass. 621 (1976).


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