Paul v Brockton Public Schools – BSEA # 07-3829
COMMONWEALTH OF MASSACHUSETTS
BUREAU OF SPECIAL EDUCATION APPEALS
In Re: Paul1 v Brockton Public Schools
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 these statutes.
A hearing in the above-entitled matter was held on March 13, 2007 at the Bureau of Special Education Appeals in Malden, MA. The record remained open for receipt of written final arguments until April 3, 2007.
Those in attendance were:
Arlindo Dos Reis Mentor, Brockton Area Multi Services, Inc.
Satya Montgomery Supervisor, Brockton Area Multi-Services, Inc.
Jose Monterio Child Supervisor, Department of Mental Health
Joanne Moses Attorney, Department of Mental Health
Tami Joia Parent/Child Advocate
Kay Seale Director of Special Education, Brockton Public Schools
Janice Marino Coordinator for Special Education Compliance, Brockton Public Schools
Joseph Marchisio Out-of-District Coordinator, Brockton Public Schools
Scott Davignon2 Educational Supervisor, F.L. Chamberlain School
Colleen Quaile3 Clinician, F.L. Chamberlain School
Mary Joann Reedy Attorney for Brockton Public Schools
Raymond Oliver Hearing Officer, Bureau of Special Education Appeals
The evidence consisted of Parent’s Exhibits labeled P-1 through P-6; Brockton Public Schools’ Exhibits labeled S-1 through S-11; and approximately four hours of oral testimony.
STATEMENT/HISTORY OF THE CASE
Paul is a fifteen year old young man who resides in Brockton, MA with his Guardian. Paul currently attends the F.L. Chamberlain School (Chamberlain) as a residential student funded by the Brockton Public Schools. (See testimony, Guardian; Marchisio.)
Paul attended public schools in Brockton until grade 7, first as a regular education student at Gilmore School, then as a special education student at West Junior High School. In December 2005 Brockton Public Schools (BPS) placed Paul in a 45 day extended residential evaluation at Chamberlain in order to determine the most appropriate placement for Paul to have his educational services delivered and to gain insight into his emotional difficulties and anxiety after a number of hospitalizations at Pembroke Hospital. In March 2006 BPS developed an individual education plan (IEP) covering March 2006 through March 2007, placing Paul at Chamberlain as a residential, extended school year student. This IEP was accepted by Paul’s guardian on April 4, 2006. Paul remains a residential student at Chamberlain. (See testimony; Guardian; Marchisio; S-6, 7, 8, 9, 10, 11.)
Beginning in April 2004 Paul began receiving the services of a mentor for ten hours per month. The mentor was accessed for Paul under the auspices of Brockton Area Multi-Services Inc. (BAMSI) and specifically funded through Coordinated Family Focused Care (CFFC), a part of BAMSI. CFFC was created to keep children in the community with their biological or foster family. The criteria for receiving funding from CFFC was for the child to have a serious emotional disability; to receive Mass Health; to live in Brockton; and to have a Child-Adolescent Functioning Assessment Scale (CAFAS) score of 100 or above. Paul met the above criteria and was assigned a non-clinical mentor, Arlindo Dos Reis. Paul’s CFFC eligibility ended in December 2005 when he entered Chamberlain as residential student because he no longer lived in the community, but CFFC continued mentor services for Paul until May 2006 for transition purposes. (See testimony, Montgomery.)
CFFC helped Guardian apply to the Massachusetts Department of Mental Health (DMH) for services (testimony, Guardian). DMH continued funding Paul’s mentor services while DMH considered Paul’s application for DMH services and made a determination regarding Paul’s eligibility for DMH services. DMH funded Paul’s mentor services through the Family Resources Mobilization Unit (FRMU), another part of BAMSI. Mr. Dos Reis continued as Paul’s mentor. In October 2006 DMH determined that Paul was not eligible for DMH services and on January 17, 2007 DMH terminated its funding of mentor services for Paul. (See testimony, Monterio.)
On December 21, 2006 the team reconvened, at Guardian’s request, to consider adding 1:1 mentoring services to Paul’s IEP. BPS refused to add 1:1 mentoring services to Paul’s IEP because BPS was providing Paul a residential education placement on a year round, 24 hour per day basis; and that Chamberlain provided mentoring services within the residential setting. (See S-3, 4; testimony, Marchisio; Guardian.)
On January 10, 2007 Guardian requested a Hearing before the BSEA and an initial hearing date was scheduled for February 13, 2007. BPS requested a postponement. A pre-hearing conference call was held on February 5, 2007 in which the parties agreed to further explore the issue while a hearing date was scheduled for March 13, 2007. In late February BPS indicated that resolution was not possible and the hearing took place, as scheduled, on March 13, 2007.
ISSUE IN DISPUTE
Does Paul require the services of a mentor, specifically Mr. Dos Reis, in order to address his special education needs so as to provide him with a free and appropriate public education (FAPE) in the least restrictive educational environment?
STATEMENT OF POSITIONS
Guardian’s position is that Paul requires the services of a mentor/Mr. Dos Reis as a related special education service in order to receive FAPE in the least restrictive educational environment. Guardian argues that Paul has a difficult time developing peer and adult relationships and needs to develop better coping skills and strategies to allow him to interact not only in school but in the community. Guardian argues that Paul has developed a trusting relationship with Mr. Dos Reis, who has played a crucial role in helping Paul carry over skills and strategies he has learned during the week into his home.
BPS’ position is that providing Paul a mentor is not a related special education service and is not necessary for Paul to receive FAPE in the least restrictive educational environment. BPS further argues that even if such services were required, Guardian has no right to determine the specific service provider of special education or related services, as this is the prerogative of the school district.
PROFILE OF STUDENT
Paul is a fifteen year old, eighth grade student currently attending a year round residential educational placement at Chamberlain, a Massachusetts Department of Education approved placement for students with emotional, behavioral and learning disabilities. Chamberlain addresses Paul’s special education needs within a therapeutic educational environment while providing comprehensive mental health services. Paul’s current diagnoses include: Attention Deficit Hyperadively Disorder (ADHD); Oppositional Defiant Disorder (ODD) with possible Bipolar Disorder; Obsessive Compulsive Disorder traits; and learning disabilities. Paul is on numerous medications including Risperdal, Depakote, Clonidine, Topamax and Geodan.
Paul’s intellectual abilities are in the low average range. His academic skills are well below grade level and he requires significant one to one support throughout the day. Paul benefits from the low student to teacher ratio in his classroom. He works best in a well structured classroom where rules and expectations are clear and consistent. Paul requires tasks to be broken down into small, manageable pieces with the presentation of information to be clear, concise and via multiple modalities. He requires frequent repetition, reinforcement, and review to assure understanding of information and materials presented. Paul benefits from a supportive environment where praise and encougement are used often. Paul receives both individual and group therapy.
(See S-1, 7; testimony, Marchisio; Davignon; Quaile; Guardian.)
MENTORING SERVICES RECEIVED BY PAUL
Since Paul began attending Chamberlain in December 2005, until the mentoring services terminated in January 2007, Paul’s mentoring services, funded by CFFC and then DMH, generally took place on Friday afternoons. Mr. Dos Reis, Paul’s non-clinical mentor, would usually pick Paul up at Chamberlain. Mr. Dos Reis would typically speak briefly with Camberlain personnel regarding Paul’s week in school and in the residence. Mr. Dos Reis then brought Paul to Brockton and provided him with the opportunity to engage in various social and community activities which included going to a CFFC/FRMU resource center where Paul could socialize and play games; going to a mall; or taking him to see friends. Mr Dos Reis would also talk with Paul regarding safe behaviors in the neighborhood and any issues Paul was experiencing, “trying to guide him in the right direction.” Mr. Dos Reis would then bring Paul home to Guardian’s house for the weekend. Mr. Dos Reis spent approximately four hours with Paul on Friday afternoons. Guardian requests that this type of mentoring services with Mr. Dos Reis continue, funded by BPS as part of Paul’s IEP.
(See testimony, Dos Reis; Guardian.)
FINDINGS AND CONCLUSIONS
It is undisputed by the parties and confirmed by the evidence presented that Paul is a student with special education needs as defined under state and federal statutes and regulations. The parties are also in substantial agreement regarding the nature and manifestations of Paul’s special education needs and his current need for a residential placement at Chamberlain. The only area of disagreement is listed under ISSUE IN DISPUTE , above.
Pursuant to 20 U.S.C. §1401(26), 34 CFR 300.34(a), and 603 CMR 28.02(18), a related service is a service which is required to assist a child with a disability to benefit from special education . Emphasis added.
Based upon the testimony and documentation introduced into evidence and a review of the applicable law, I conclude that Paul does not require the mentoring services of Mr. Dos Reis as a related educational service or in order to receive FAPE. Therefore, BPS is not required to fund such mentoring services as part of Paul’s IEP.
My analysis follows.
First, such mentoring services have never been part of Paul’s IEP. These mentoring services were begun in April 2004, nearly two years prior to Paul’s attendance at Chamberlain and even before Paul was a special education student functioning under an IEP. These mentoring services were provided to/funded for Paul via BAMSI/CFFC to keep him with his family in the community, and were terminated only when he went to Chamberlain and no longer lived within the community. (See testimony, Montgomery; STATEMENT/HISTORY OF THE CASE , above.) These mentoring services continued to be funded by DMH/provided by FRMU while Paul’s eligibility for DMH services was being evaluated and were terminated only when DMH determined that Paul was not eligible for DMH services. (See testimony, Monteiro; STATEMENT/HISTORY OF THE CASE , above.) Therefore, such mentoring services have always been provided/funded via either a community human services agency (BAMSI) or a state human services agency (DMH) with the focus on Paul within his family (Coordinated Family Focused Care – CFFC and Family Resources Mobilization Unit – FRMU), not by BPS pursuant to an IEP. (Emphasis added.) Until human service agencies stopped providing such mentoring services, no effort was made to have these mentoring services incorporated into Paul’s IEP as necessary to provide Paul FAPE or as a related educational service.
Second, no testimonial or documentary evidence has been offered in support of the need for such mentoring services in order to provide Paul FAPE from any professional with special education or emotional/behavioral expertise. Further, no testimonial or documentary evidence from any professional with special education or emotional/behavioral expertise has been offered which links Paul’s mentoring services with Mr. Dos Reis to Paul’s ability to progress or benefit from special education in his Chamberlain placement. While Chamberlain was aware of Paul’s mentor and spoke to Mr. Dos Reis when he picked Paul up at Chamberlain on Friday afternoons, these were informal communications only (testimony, Davignon). Thus, there was no coordination of services between Chamberlain and Paul’s mentor. Finally, Mr. Davignon, Paul’s educational supervisor at Chamberlain, testified that Paul benefits educationally from his placement at Chamberlain without these mentor services, and that Paul’s Friday mentoring sessions did not affect his social, emotional or academic performance at Chamberlain. (See testimony, Davignon.) Based upon the above, I conclude that Mr. Dos Reis’ mentoring service is not required to provide Paul FAPE and is not a related service required to assist Paul to benefit from his special education. See In Re: Lowell Public Schools 8 MSER 154 (2002).
Third, I find that Chamberlain provides mentored community based services on the weekdays and weekends and that students (if they are on an appropriate behavioral level) can go off campus into the community for activities accompanied by Chamberlain residential staff. (See testimony, Davignon; Guardian.) I also note that Paul requires no extra support when he participates in off campus activities but goes with a group of Chamberlain students on a van accompanied by Chamberlain staff (testimony, Davignon).
Guardian believes that recent behavioral problems Paul has experienced at Chamberlain are the results of the termination of Mr. Dos Reis’ mentoring services with Paul. Guardian points to the fact that on January 18, 2007 when Paul learned that his mentoring services with Mr. Dos Reis were to be terminated, he got into a physical altercation with a peer at Chamberlain and had to be physically restrained (testimony, Guardian). However, January 18, 2007 was also the date of Paul’s most recent individual service plan (ISP) meeting at Chamberlain. At that January 18, 2007 ISP meeting Paul learned that he would not be allowed to go home that weekend due to violation of his no smoking contract at Guardian’s home (S-2) the prior weekend; and that Guardian wanted Paul to remain at Chamberlain. Paul was angry and did not agree with Guardian’s and Chamberlain’s decision. The physical altercation involving Paul took place in the residential setting after that ISP meeting. (See testimony, Davignon; Quaile; S-2.) Mr. Davignon testified that he believes that Paul’s being informed that he could not go home that weekend precipitated the behavioral altercation. I concur.
Further, there is agreement between the parties that Paul has problems with transitions. Unfortunately, Paul has undergone several recent classroom changes as well as a recent clinician/therapist change at Chamberlain, which have all contributed to some recent behavioral setbacks (testimony, Davignon; Quaile). However, since the ISP meeting/behavioral altercation (weekend of January 20-21, 2007) to the date of this hearing on March 13, 2007, Paul has been able to go home most weekends (testimony, Davignon; Quaile; Guardian).4
In summary, while mentoring services by Mr. Dos Reis may have been beneficial to Paul, based upon the evidence presented, I conclude that Paul does not require such mentoring services as a related special educational service or in order to receive FAPE.
BPS is not required to provide or fund mentoring services by Mr. Dos Reis as part of Paul’s IEP.
By the Hearing Officer
Paul is a pseudonym chosen by the Hearing Officer to protect the privacy of the Student in publicly available documents.
Mr. Davignon testified via speaker phone.
Ms. Quaile testified via speaker phone.
On one occasion Paul’s behavioral escalation while at home over the February vacation necessitated his returning early to Chamberlain and he did not go home the following weekend. (See testimony, Guardian; Quaile; Davignon.)