COMMONWEALTH OF MASSACHUSETTS
BUREAU OF SPECIAL EDUCATION APPEALS
In Re: Medford Public Schools
BSEA # 09-5858
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 May 7, 2009 in Malden, MA before William Crane, Hearing Officer. Those present for all or part of the proceedings were:
Robert Sullivan Special Education Teacher, Medford Public Schools
Kristin Sinclair School Adjustment Counselor, Medford Public Schools
Patricia Norton-Paliwoda School Adjustment Counselor, Medford Public Schools
Kathleen Medaglio Assistant Special Education Director, Medford Public Schools Beverly Shea Director of Pupil Services, Medford Public Schools
Alisia St. Florian Attorney for Medford Public Schools
The official record of the hearing consists of documents submitted by the Medford Public Schools (Medford) and marked as exhibits S-1 through S-27; and approximately three hours of recorded oral testimony and argument. Parent did not appear at the hearing on May 7, 2009 and did not submit any documents or argument.1
INTRODUCTION
This matter involves a dispute as to whether Student should remain in her current, substantially-separate program (Medford’s Adaptive Learning Program), which is located within Medford High School, or whether Student should attend a completely-separate, therapeutic day program (Medford’s Curtis Tufts Alternative High School). Medford filed this hearing request, seeking permission to place Student in the Curtis Tufts Alternative High School. Medford takes the position that Student’s current placement is not appropriate and that in its proposed placement, Student is more likely to learn effective strategies for addressing her emotional and behavioral outbursts that have compromised her educational progress to date. Parent seeks to have her daughter remain in the Adaptive Learning Program where, in Parent’s view, she is more appropriately placed.
ISSUE
The issue to be decided is whether the individualized educational program (IEP) most recently proposed by Medford, which would place Student at the Curtis Tufts Alternative High School, is reasonably calculated to provide Student with a free appropriate public education in the least restrictive environment; and if not, what modifications should be made to it.
FACTS
Student is a sixteen-year-old, 10 th grader who during the current and previous two school years has attended Medford’s Adaptive Learning Program (ALP). In 8 th grade, Student attended the ALP within the Andrews Middle School. During the current school year (10 th grade) and previous school year, Student has attended the ALP located within Medford High School. Testimony of Medaglio; exhibits S-2, S-3, S-4.
The High School ALP, where Student is currently placed, is a substantially-separate program, providing small group instruction for 20 students. There are 2.5 teachers and a full-time adjustment counselor assigned to the ALP. ALP is intended to address the needs of students with social and emotional concerns. Testimony of Medaglio; exhibit S-2.
Student’s strengths include athletic skills, friendliness, positive connections with preferred adults, desire to succeed academically, and maintaining after-school jobs. She enjoys playing basketball and is highly motivated by team sports. Until recently, Student has also participated in a cosmetology program within Medford’s vocational program. Student is highly motivated to work in cosmetology, hoping to have a career in this field after high school. Testimony of Medaglio; exhibits S-2, S-6, S-15, S-26.
Student has been diagnosed with attention deficit hyperactivity disorder and post-traumatic stress disorder, with reports of Student’s having witnessed (and possibly having been subjected to) emotional abuse by her biological father before he left home a number of years ago. Student’s overall cognitive performance, as measured on the WISC-IV is within the below average range at 14% (i.e., equal to or higher than 14% of children her age). Student is inconsistent in her class work production and, at times, does not follow through on teacher direction and fails to finish her work. Teachers report that her oral expression, listening comprehension, and mathematics calculation are below grade level, and that her basic reading skills, reading comprehension, mathematics reasoning, basic writing skills, and written expression are below average. Exhibits S-2, S-21, S-22, S-26, S-27.
Student’s functioning is compromised by inattention, distractibility, anxiety, worry, depression, and oppositionality. Student has frequent and unpredictable mood changes, she sometimes acts impulsively, at times when she feels on the defensive or feels threatened (for example, when she feels slighted or wronged by a peer or teacher), and at other times she appears to willfully defy authority. Over a period of years, Student has had a history of emotional and behavioral incidents that include verbal abuse of other students and teachers (for example, using profanity and intimidating language), threatening, physical behavior (for example, pushing and throwing objects at other students), and uncooperative and defiant behavior (for example, refusing to follow directions, refusing to participate in classroom activities, and leaving the classroom without permission). Some other students have become upset by and fearful of Student’s threatening and aggressive behaviors. Testimony of Medaglio, Norton-Paliwoda, Sullivan; exhibits S-23, S-26.
Student’s emotional and behavioral incidents, which currently occur approximately on a weekly basis, interfere with Student’s education because they typically result in Student’s leaving the classroom and being unavailable for education for the remainder of the day, and because they have resulted in a significant amount of time missed from school as a result of suspensions. Also, as a result of some of these incidents, Student becomes withdrawn, putting her head down on her desk and not participating in classroom activities for a period of time. Student’s school functioning is further compromised by inconsistent attendance, inconsistent attention, and difficulty in unstructured settings. Student tends to behave more appropriately where the structure is very evident, and more poorly in less structured settings. Testimony of Medaglio, Norton-Paliwoda, Sullivan, Sinclair; exhibits S-9, S-10, S-11, S-12, S-13, S-14, S-15, S-21, S-22, S-23, S-26, S-27.
To date, Student has not learned effective strategies for controlling her own behavior. Once her behavior starts to escalate, she can become completely out of control, making it very difficult to calm her down. Student often regrets her behavior after the fact. Testimony of Medaglio, Norton-Paliwoda, Sullivan; exhibit S-15.
In her current program, Student has contact with regular education students in the hallways and during lunch. Student’s behavioral difficulties are caused, at times, by over-stimulation and when her time is unstructured. For example, she tends to have difficulty during transitions when she comes in contact with typical students. Student also tends to hide in various places within the High School when she does not want to attend class at the ALP. Testimony of Medaglio.
Although Student’s current and previous IEPs call for counseling services from a Medford school adjustment counselor, Student has consistently refused to participate in counseling. Medford staff believe that Student strongly desires assistance to ameliorate her emotional and behavioral difficulties, but does not know how to obtain the help that she needs, and has been unwilling or unable to develop deeper relationships with any Medford staff for purposes of discussing these issues. At times, Student will talk with a Medford school adjustment counselor (Ms. Norton-Paliwoda) or teacher (Mr. Sullivan) who have become trusted and preferred adults at school, but Student has not permitted these conversations to include a discussion of her emotional difficulties. Student has declined to be engaged by the school adjustment counselor (Ms. Sinclair) who is assigned to ALP. Testimony of Sullivan, Norton-Paliwoda, Sinclair; exhibits S-2, S-3, S-4.
While attending the ALP during the current school year, Student also had been participating in the cosmetology program that is part of the Medford vocational program, which adjoins the High School. Student hopes to have a career in cosmetology. On March 3, 2009 during a cosmetology class, Student was not cooperating and did not follow the directions of the teacher, and she used profanity with the teacher. There followed a meeting during which Student entered into a contract to comply with the cosmetology shop rules. On March 11, 2009, Student again disregarded the teacher’s directions during a cosmetology class. Student and one of her peers were throwing a metal pole to each other. The teacher felt verbally threatened by Student and believed that Student’s conduct was unsafe. Testimony of Medaglio; exhibit S-23.
On March 13, 2009, a meeting was held during which Student was terminated from the cosmetology program as a result of her behavior on March 11, 2009. During the meeting on March 13, 2009, Student became upset, she swore at a teacher, and she threw a chair against a file cabinet after she was told that she could no longer participate in the cosmetology program. Medford staff will not likely recommend that Student be readmitted to the cosmetology program until she develops greater ability to control her emotions and behavior. Testimony of Medaglio; exhibit S-23.
Medford has proposed in the past and is currently proposing that Student be transferred immediately from her current placement in the High School ALP to the Curtis Tufts Alternative High School (Curtis Tufts), which is a separate day school located in a small building that is approximately two miles from Medford High School. Curtis Tufts is intended for students who have social and emotional issues similar to Student’s profile. There are approximately 35 students in the program, and it has two school adjustment counselors assigned to the program. A “crisis desk” located in the building is used to process emotional and behavioral concerns. Testimony of Medaglio, Shea, Norton-Paliwoda; exhibits S-2, S-3.
As compared to ALP, Curtis Tufts is a more closely structured and more highly-supervised program that is self-contained in its own building. At Curtis Tufts, there are opportunities for involvement with regular education students, but these opportunities are scheduled on the basis of each student’s interests and abilities, and do not otherwise occur. Curtis Tufts is appropriate for students with behavioral and emotional difficulties who cannot access and benefit from the therapeutic aspects of ALP. As compared to ALP, the therapeutic components at Curtis Tufts are more enmeshed into the program, with the school adjustment counselors often being present in the classrooms and hallways, with the result that students at Curtis Tufts and the school adjustment counselors interact throughout the day. Some students who have not been willing to engage in formal counseling or therapy have benefitted from the opportunity to work with school adjustment counselors more informally at Curtis Tufts.
At Curtis Tufts, emotional or behavioral incidents, when they arise, can be addressed more quickly and more spontaneously than at ALP. This often results in a more effective intervention before the incident escalates, and provides a greater opportunity for the school adjustment counselor to work with the student in the moment of the outburst. Testimony of Medaglio, Shea, Sullivan, Norton-Paliwoda, Sinclair.
At Curtis Tufts, staff are able to individualize their responses to students’ behaviors; at ALP students are expected to comply with the High School handbook. Also as compared to ALP, Curtis Tufts is able to keep closer track of its students because it is located in a small building that contains only this program. There are extensive extracurricular activities available for students at Curtis Tufts, including basketball. In the event that Student were readmitted into the cosmetology program after transferring to Curtis Tufts, her schedule at Curtis Tufts would be adjusted to allow her to attend the cosmetology program. Testimony of Medaglio, Shea, Sullivan, Norton-Paliwoda, Sinclair.
DISCUSSION
It is not disputed that Student is an individual with a disability, and that she falls within the purview of the federal Individuals with Disabilities Education Act (IDEA)2 and the Massachusetts special education statute.3 Pursuant to the IDEA and state special education statute, Student is entitled to receive a free appropriate public education (FAPE) in the least restrictive environment.4
The Supreme Court has explained that under the federal statute, FAPE is intended to require special education services that provide a “basic floor of opportunity” to a disabled student,5 allowing the student to access public education .6 Access must be meaningful,7 but need not maximize a student’s educational potential.8
Student’s right to FAPE is assured through the development and implementation of her IEP.9 The IEP must be custom tailored to meet her unique needs so that she will receive sufficient educational benefit.10 In the instant dispute, Medford is the moving party and therefore has the burden of persuasion that its proposed IEP is appropriate.11
Because the ALP program routinely allows for contact with regular education students, it is less restrictive than the Curtis Tufts program, which does not routinely allow such access. The law requires that, between these two programs, the ALP program be selected in the event that it can appropriately meet Student’s educational needs.12
It is not disputed that Student is struggling within the ALP program. As discussed in greater detail in the Facts section of this Decision, Student has been having (approximately weekly) emotional and behavioral incidents that typically result in substantial loss of educational opportunity. Such an incident may result in Student’s leaving the classroom and typically being unavailable for education for the remainder of the day. As a result of her behavioral difficulties, Student has also missed a significant amount of time from school because of suspensions. Even while attending class, Student’s emotional difficulties sometimes result in her becoming withdrawn and putting her head down on her desk, resulting in further loss of educational opportunity. Perhaps most importantly from Student’s perspective, her recent behavioral difficulties within the cosmetology program resulted in her termination from this program. At the ALP program, these difficulties have continued unabated, with Student not learning effective strategies for controlling her own behavior, possibly, in part, because Student has been unwilling or unable to access school adjustment counselors or other staff for the purpose of discussing and addressing her behaviors. Testimony of Medaglio, Norton-Paliwoda, Sullivan, Sinclair; exhibits S-9, S-10, S-11, S-12, S-13, S-14, S-15, S-21, S-22, S-23, S-26, S-27.
Although ALP is set up for students with social and emotional difficulties and has more structure than a fully-integrated program, Student has not benefitted from the therapeutic aspects of the program. In this program, she has floundered, in part, because she has opportunities during the day to be in unstructured, unsupervised settings and to hide in other parts of the high school. No significant progress has been made in addressing her emotional and behavioral deficits. Testimony of Medaglio, Norton-Paliwoda, Sullivan, Sinclair.
For these reasons, I find that ALP, albeit less restrictive than Curtis Tufts, is not appropriate for Student.
The Curtis Tufts program addresses many of the short-comings of ALP. As discussed in greater detail in the Facts section of this Decision, Curtis Tufts is more highly-structured, more highly-supervised, and has its therapeutic components more enmeshed into the program. Consequently, at Curtis Tufts, Student’s behavioral difficulties would likely be addressed more quickly than within ALP, allowing for resolution prior to escalation. In addition, the school adjustment counselors would have a greater opportunity to work therapeutically with Student within the context of incidents when they arise, rather than only through after-the-fact counseling that Student has resisted. It is also likely that at Curtis Tufts as compared to ALP, there would be a more individualized response to Student’s behavioral incidents, with the result that Student may be suspended less often and for less time. Importantly from Student’s perspective, Curtis Tufts provides the better opportunity for Student to learn how to self-manage her emotions and behavior so that, hopefully, she will be able to return to her cosmetology program.
For these reasons, I find that Curtis Tufts provides the degree of structure, supervision, and therapeutic support needed by Student at this time in order for the program to meet her unique emotional and behavioral needs and provide her with an opportunity to access her education in a meaningful way.
At the same time, however, the success of Curtis Tufts in working effectively with Student is far from assured. There are several additional services or opportunities, discussed immediately below, that are necessary to increase the likelihood that Student will make effective and meaningful progress in this program.
First, it is noteworthy that at Curtis Tufts, Student will likely have an opportunity to play basketball. Student is athletic, enjoys basketball, and responds positively to team sports. It seems quite important that Student be provided an opportunity to participate and be successful in a team sport. Testimony of Patricia Norton-Paliwoda; exhibit S-6.13 Best efforts should be made to ensure that Student has this opportunity.
Second, Medford staff testified persuasively that it will be important to manage carefully Student’s transition from ALP to Curtis Tufts. Student is more likely to have positive experiences and to be successful at Curtis Tufts if, for a period of time, one or more of Student’s preferred adults (for example, Ms. Norton-Paliwoda or Mr. Sullivan) spend time with Student during a transition period, including checking in with her at Curtis Tufts. Testimony of Norton-Paliwoda, Sullivan. Medford should develop and implement a plan for this purpose.
Third, Medford staff was persuasive that Student may benefit from family therapy. Testimony of Norton-Paliwoda. The IEP Team should meet and consider whether to propose family therapy.
With these additions, I conclude that Medford’s most recent IEP is reasonably calculated to provide Student with a free appropriate public education in the least restrictive environment.
ORDER
Medford’s most recently proposed IEP, which would place Student into Medford’s Curtis Tufts Alternative High School program, is reasonably calculated to provide Student with a free appropriate public education in the least restrictive environment, and Student’s placement should be changed to this program as soon as possible; provided that
1. Medford shall develop and implement a plan to transition Student to Curtis Tufts;
2. Medford shall make best efforts to provide Student with an opportunity to participate and be successful in basketball or another team sport;
3. Medford shall convene an IEP Team to consider whether to propose family therapy.
By the Hearing Officer,
William Crane
Dated: May 28, 2009
COMMONWEALTH OF MASSACHUSETTS
BUREAU OF SPECIAL EDUCATION APPEALS
THE BUREAU’S DECISION, INCLUDING RIGHTS OF APPEAL
Effect of the Decision
20 U.S.C. s. 1415(i)(1)(B) requires that a decision of the Bureau of Special Education Appeals be final and subject to no further agency review. Accordingly, the Bureau cannot permit motions to reconsider or to re-open a Bureau decision once it is issued. Bureau decisions are final decisions subject only to judicial review.
Except as set forth below, the final decision of the Bureau must be implemented immediately. Pursuant to M.G.L. c. 30A, s. 14(3), appeal of the decision does not operate as a stay. Rather, a party seeking to stay the decision of the Bureau must obtain such stay from the court having jurisdiction over the party’s appeal.
Under the provisions of 20 U.S.C. s. 1415(j), “unless the State or local education agency and the parents otherwise agree, the child shall remain in the then-current educational placement,” during the pendency of any judicial appeal of the Bureau decision, unless the child is seeking initial admission to a public school, in which case “with the consent of the parents, the child shall be placed in the public school program”. Therefore, where the Bureau has ordered the public school to place the child in a new placement, and the parents or guardian agree with that order, the public school shall immediately implement the placement ordered by the Bureau. School Committee of Burlington, v. Massachusetts Department of Education , 471 U.S. 359 (1985). Otherwise, a party seeking to change the child’s placement during the pendency of judicial proceedings must seek a preliminary injunction ordering such a change in placement from the court having jurisdiction over the appeal. Honig v. Doe , 484 U.S. 305 (1988); Doe v. Brookline , 722 F.2d 910 (1st Cir. 1983).
Compliance
A party contending that a Bureau of Special Education Appeals decision is not being implemented may file a motion with the Bureau contending that the decision is not being implemented and setting out the areas of non-compliance. The Hearing Officer may convene a hearing at which the scope of the inquiry shall be limited to the facts on the issue of compliance, facts of such a nature as to excuse performance, and facts bearing on a remedy. Upon a finding of non-compliance, the Hearing Officer may fashion appropriate relief, including referral of the matter to the Legal Office of the Department of Education or other office for appropriate enforcement action. 603 CMR 28.08(6)(b).
Rights of Appeal
Any party aggrieved by a decision of the Bureau of Special Education Appeals may file a complaint in the state court of competent jurisdiction or in the District Court of the United States for Massachusetts, for review of the Bureau decision. 20 U.S.C. s. 1415(i)(2).
An appeal of a Bureau decision to state superior court or to federal district court must be filed within ninety (90) days from the date of the decision. 20 U.S.C. s. 1415(i)(2)(B).
Confidentiality
In order to preserve the confidentiality of the student involved in these proceedings, when an appeal is taken to superior court or to federal district court, the parties are strongly urged to file the complaint without identifying the true name of the parents or the child, and to move that all exhibits, including the transcript of the hearing before the Bureau of Special Education Appeals, be impounded by the court. See Webster Grove School District v. Pulitzer Publishing Company , 898 F.2d 1371 (8th Cir. 1990). If the appealing party does not seek to impound the documents, the Bureau of Special Education Appeals, through the Attorney General’s Office, may move to impound the documents.
Record of the Hearing
The Bureau of Special Education Appeals will provide an electronic verbatim record of the hearing to any party, free of charge, upon receipt of a written request. Pursuant to federal law, upon receipt of a written request from any party, the Bureau of Special Education Appeals will arrange for and provide a certified written transcription of the entire proceedings by a certified court reporter, free of charge.
1
Parent had been provided oral and written notice of the Hearing date and had not requested a postponement. Subsequent to the Hearing, Parent was provided a copy of the tapes of the Hearing and an opportunity to provide argument or documentary evidence by May 14, 2009; or alternatively, to request, by May 14, 2009, additional time to submit argument or documentary evidence or to request an opportunity to present witnesses and an opportunity to cross-examine Medford’s witnesses. On May 14, 2009, Parent filed a request for a one week extension, which was allowed. On May 21, 2009, Parent filed a request for an additional 30-day extension, which was denied for reasons explained in the ruling.
2
20 USC 1400 et seq .
3
MGL c. 71B.
4
20 USC 1400(d)(1)(A); 20 USC 1412(a)(1)(A); MGL c. 71B, ss. 1, 2, 3.
5
Hendrick Hudson Dist. Bd. of Educ. v. Rowley , 458 U.S. 176 , 201 & n.23 (1982).
6
Rowley, 458 U.S. at 192 (1982) (“intent of the Act was more to open the door of public education to handicapped children on appropriate terms than to guarantee any particular level of education once inside”) .
7
Rowley, 458 U.S. at 192 (“in seeking to provide such access to public education, Congress did not impose upon the States any greater substantive educational standard than would be necessary to make such access meaningful”).
8
Rowley , 458 U.S. at 197, n.21 (“ Whatever Congress meant by an “appropriate” education, it is clear that it did not mean a potential-maximizing education.”) .
9
20 USC 1414(d)(1)(A)(i)(I)-(III); Honig v. Doe, 484 U.S. 305, 311-12 (1988) ; Rowley , 458 U.S. at 182.
10
20 USC 1400(d)(1)(A) (IDEA enacted “to ensure that all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living”); 20 USC 1401(9), (29) ( “free appropriate public education” encompasses “special education and related services,” including “specially designed instruction, at no cost to Parent, to meet the unique needs of a child with a disability”); Rowley , 458 U.S. at 181 (citing 20 U.S.C. § 1401(18)) (student’s FAPE must be “tailored to the unique needs of the handicapped child by means of an ‘individualized educational program'”); Lessard v. Wilton Lyndeborough Cooperative School Dist. , 2008 WL 484042 (1 st Cir. 2008) (noting the school district’s “ obligation to devise a custom-tailored IEP”) ).
11
Schaffer v. Weast , 546 U.S. 49 , 62 (2005) (burden of persuasion in an administrative hearing challenging an IEP is placed upon the party seeking relief; a party who has the burden of persuasion “ loses if the evidence is closely balanced” ).
12
The phrase “least restrictive environment” means that, to the maximum extent appropriate for the particular student, the student is to be educated with other students who do not have a disability. 20 USC 1400(d)(1)(A); 20 USC 1412(a)(1)(A); 20 USC 1412(a)(5)(A); MGL c. 71B, ss. 2, 3; 34 CFR 300.114(a)(2(i) ; 603 CMR 28.06(2)(c).
13
A 45-day assessment, completed in January 2008, noted that team sports have proven to be a positive influence in her life. The report stated that “[Student] is a young person seeking an avenue to success and organized sports have been a large part.” Exhibit S-6.