COMMONWEALTH OF MASSACHUSETTS
BUREAU OF SPECIAL EDUCATION APPEALS
In Re: Ronald1 and the Springfield Public Schools
BSEA #08-3061
Decision
This Decision is issued pursuant to M.G.L.c. 71B and 30, 20 U.S.C. § 1401 et seq ., 29 U.S.C. 794, and the regulations promulgated under those statutes. A hearing was held in the above entitled matter on April 29, 2008, at the Offices of Catuogno Reporting Services in Springfield, MA. Those present for all or parts of the proceeding were:
Mother
Chris Duff Director, Springfield Learning Center
Hector Medina Case Manager, Springfield Learning Center
Lynn Mikolajczak Clinical Coordinator, Springfield Learning Center
Gary Forgette Evaluation Team Leader, Springfield Learning Center
Laurie Malandrios Acting Special Education Supervisor, Springfield Public Schools
Mary Anne Morris Director of Special Education, Springfield Public Schools
Alisia St. Florian Attorney for School
Bryan Clauson Attorney for Student
Jessica DeSantis Court Reporter
Lindsay Byrne Hearing Officer
The official record of the Hearing consists of: documents submitted by the Parent marked P-1 through P-19; documents submitted by the school marked S-1 through S-21; and approximately 4 hours of recorded testimony and argument. Both parties submitted written closing arguments on May 28, 2008 , and the record closed on that date.
Issues2
1.
A) Did Springfield have an obligation to convene a Team in light of Ronald’s absences between January 12, 2007 and December 3, 2007? and
B) If so, did the failure of Springfield to reconvene the Team result in a denial of a free, appropriate public education to Ronald?
2. Is the Student entitled to compensatory education?
Summary of the Evidence
1. Ronald is a 12 year old 5 th grade resident of Springfield. He was initially found eligible for special education in September 2005, when he was a nine year old 3 rd grade student (P-2, S-2). The Team concluded Ronald was eligible due to an emotional disability, a learning disability and a health impairment. The School Psychologist reported that on standardized measures of intellectual and academic functioning Ronald placed within the average range of cognitive potential and demonstrated basic academic achievement at least two years below his age and grade placement (P-7). The Psychologist recommended that Ronald be more thoroughly evaluated due to his “extreme” “unacceptable” behavior toward himself and others. The Team developed an IEP calling for Ronald to receive academic and social / emotional / behavioral support services in a substantially separate class within the local elementary school. The proposed 11/05 – 11/06 IEP noted that due to his emotional disability Ronald had difficulty transitioning to and attending school so that he could access the available academic and emotional support services. The IEP provided a half-day schedule. The student’s mother accepted the IEP on 12/13/05 (P-2, S-2).
2. In October 2006, Ronald was hospitalized for treatment of psychiatric issues. By then, he had been removed from school by ambulance four times. The Team reconvened on November 26, 2006, noting that Ronald had missed both instruction and assessments due to his absences from school. The Team documented instances of significant behavioral dyscontrol, including assaults on staff, “spitting, biting and vulgar language” (S-3). The Team added diagnoses of “PDD” and “mood disorder” to the IEP it developed in November 2006, and recommended a complete medical review. The IEP continued Ronald’s placement in the substantially separate classroom on a half-day basis (S-3). The mother accepted the 11/06 – 11/07 IEP on 12/05/06.
3. Ronald was rehospitalized in December 2006. The Team reconvened on January 12, 2007. According to Dr. Morris, the Director of Special Education for Springfield, the Team considered the continued difficulty Ronald had both getting to school, and then maintaining safe and appropriate behavior while he was in school. The Team found he was not making effective progress in the substantially separate classroom in his local elementary school. The Team therefore determined that a more restrictive, more therapeutic special education placement would be appropriate for Ronald. The Team developed a new 1/07 – 1/08 IEP calling for Ronald to receive comprehensive academic and social / emotional / behavioral support services in the STEP program, extended year services and door to door transportation (P-5, S-4; Morris). Ronald’s mother accepted the proposed IEP and placement on January 12, 2007.
4. In January 2007 STEP was a partnership between the Children’s Guidance Clinic and Springfield Public Schools. Located in a building not connected to a public school, the STEP program served 11 students in grades 1 through 5 in 3 different classrooms. All students had emotional disabilities so significant that they could not participate in any aspect of the general curriculum. All needed intensive assistance and instruction with social / emotional functioning and pro social behavior. Ronald was one of four students with one teacher and 2 therapeutic paraprofessionals in a self-contained classroom. There was a mental health clinician on-site supervising the STEP program. Dr. Morris described STEP as the most restrictive public school placement available (Morris; Furgette).
5. Despite the intensive supports and door-to-door transportation, Ronald did not attend the STEP program, or any other school, during February, March, April, and most of May 2007 (P-9, S-15; Morris). Springfield convened Team progress meetings on April 24 and May 15, 2007 (P-6, S-5, S-6; Forgette). Gary Forgette, the Springfield Educational Team Leader responsible for Ronald, chaired the Team meetings. He testified that the Team reviewed Ronald’s functioning, which was poor in all settings, and discussed options to encourage Ronald to attend school. The Team considered referrals to the Truant Officer and the Family Stabilization Team, as well as interim home tutoring. The Team decided against tutoring because Ronald refused to see anyone. The Team did not change any of Ronald’s IEP goals because they addressed educational achievement markers Ronald had not met. Mr. Forgette noted that truancy prevention was not identified as an educational goal (Forgette; S-21). Springfield’s attendance roster notes that Ronald was marked truant 119 days during the 2006 – 2007 school year (S-15).
6. In September 2007, Springfield began a new partnership with the Center School to provide intensive therapeutic educational services to Springfield students. As a result the STEP program was relocated to SAFE Academy, a substantially separate public school building housing only alternative educational programs. The STEP program was renamed The Learning Center. The Learning Center philosophy and interventions were more “therapeutic” than the “behavioral” approach taken by the STEP program. There were 21 elementary age students divided into three classes of seven at the Learning Center (Morris; Duff). No changes were made to Ronald’s IEP as a result of the change in service provider, location, or classroom composition (P-5, S-4).
7. Chris Duff, Director of the Learning Center, testified that Ronald attended school only part of one day in September 2007. He and Hector Medina, the Learning Center case worker assigned to Ronald, visited Ronald’s home on several occasions in September 2007. He observed that the home was in “shambles” due to physical violence. Mr. Duff attempted to establish a relationship with Ronald, even offering to bring the school into his home. Ronald threatened Mr. Duff with serious bodily harm and refused contact of any sort.
Mr. Duff testified that the Learning Center program would be appropriate for Ronald. He stated that the primary issue interfering with Ronald’s education is the inability of anyone to secure Ronald’s attendance at a school. In his view, the most significant factors contributing to Ronald’s chronic truancy are social and familial. There is an ongoing risk of significant violence in the home. Mr. Duff maintained continuous, near daily communication with the Springfield Public Schools concerning attempts to secure Ronald’s attendance (Duff; Morris).
8. Hector Medina, Ronald’s Learning Center case worker, stated that his role is to be the bridge between the Learning Center program and the family. He provides: family support; transportation to school, medical appointments and other supportive programs; individualized interventions in schools; home visits; communication assistance / clarification; etc. Mr. Medina testified that he visited Ronald’s home four times. Each time Ronald refused to leave his room, and at times threatened physical violence. He observed the result of physical violence in the house. Mr. Medina called the home almost daily in the fall 2007 to provide support and encourage school attendance. None of the services or interventions resulted in Ronald’s attendance (Medina; S-17).
9. Lynn Mikolajczak, clinical coordinator of the Learning Center, also had daily contact with Ronald’s mother, visited the home, and talked to Ronald. She concluded that the family needed to be involved with the Department of Social Services (Mikolajczak; S-19; S-20; see also S-11-unidentified author).
10. On October 2, 2007, Springfield Public Schools filed a Section 51A application concerning Ronald with the Department of Social Services.
11. On November 2, 2007, Springfield Public Schools filed a CHINS application on the basis of truancy with the Hamden County Juvenile Court (S-10).
12. The Student’s court appointed attorney requested a Team meeting on November 9, 2007. The Team met on December 3, 2007 to discuss Ronald’s progress, truancy, and need for additional out of school services. Due to concerns about Ronald’s safety and that of his family members, Springfield recommended hospitalization and initiated a SKIP referral.3 Shortly thereafter Ronald was hospitalized for psychiatric treatment (P-4; P-3; S-18; Morris).
13. The Team reconvened on January 15, 2008. Ronald remained in-patient for psychiatric treatment. The Team referred Ronald to “CFFC” (Coordinated Family Focused Care) an intensive service management program jointly administered by the Departments of Social Services, Mental Retardation, Mental Health and the public schools, which is designed to avoid residential placements for a limited number of children with complex service needs. The Team also developed a new IEP calling for Ronald’s educational services to be delivered at the Center School, a private special education day school which implements highly intensive therapeutic and home-school management strategies. The Team arranged for Ronald to be transported between the hospital and the school (Morris; S-7).
15. Dr. Morris explained that Ronald is not a typical “truant” choosing not to attend school. Ronald is a very sick child, with significant, long standing social and familial stressors and mental health challenges, who needs many more services than the school system alone can provide, among them: medication management, a safe living environment, and behavioral retraining. She noted that there are no recommendations in Ronald’s evaluative record for a residential placement for educational reasons. Dr. Morris testified that Springfield responded appropriately to Ronald’s truancy by proposing a variety of approaches and interventions to get Ronald to, and to remain in school, including: increasing levels of therapeutic support from a substantially separate classroom, to a substantially separate public school program, to a private day placement; from door-to-door transportation from home to the public school, to door-to-door transportation between the hospital and the private school; from regular attendance and guidance contacts to intensive home visits and parent support; from school only supervision to referrals to DSS and the courts. Dr. Morris concluded that there were no other special education services that Springfield could have offered, or that could have made a difference in the course of Ronald’s school career. She noted that she could not authorize school personnel to forcibly remove a student from his home to ensure school attendance, and that doing so in this case would be likely to precipate a serious mental health crisis as well as dangerous, physical violence. According to Dr. Morris, physical relocation of a student from his home without his consent can be authorized only by child protective, law enforcement or medical authorities. A special education team cannot appropriately make that decision (Morris).
Findings and Conclusions
There is no dispute that Ronald is a student with a disability as defined by 20 U.S.C. § 1401 et seq . and M.G.L.c. 71B and is thus entitled to receive a free, appropriate public education. The Student does not challenge the substantive appropriateness of the special education programs and placements offered by Springfield during the 2006 – 2007 and the 2007 – 2008 school years. The Student’s argument is that Springfield had a fundamental obligation under federal and state special education laws to reconvene the Student’s Team to specifically address the nexus between the Student’s disability and his chronic truancy and, if a nexus were found, to develop specific services to address that special education need. The Student’s position is that Springfield’s failure to reconvene a Team specifically to address Ronald’s truancy resulted in a denial of a free, appropriate public education to him and entitles him to an award of compensatory education. After careful consideration of all the evidence in the record, and the arguments of counsel for both parties, I find that the preponderance of the evidence in this matter does not support the Student’s arguments. On the contrary, it is my determination that Springfield responded reasonably and timely to the challenges posed by Ronald’s chronic truancy and that Ronald is not entitled to compensatory education. My reasoning follows:
Springfield correctly points out that there is no explicit special education regulation requiring the Team to reconvene to consider a student’s truancy. Nevertheless, the BSEA has previously found that due to its obligation to ensure receipt of FAPE, a school district must take some sort of responsive action when an IDEA eligible student is chronically absent from school.4 The record in this matter establishes that Springfield convened four Team meetings in the course of one calendar year, spanning two school years, in response to Ronald’s truancy. Each Team explicitly considered Ronald’s difficulty getting to and remaining in school, discussed in and out of school options to promote regular school attendance, and proposed increasing levels of school based interventions and therapeutic support. Springfield made appropriate referrals both to the Department of Social Services and to the Juvenile Court to secure additional assistance with Ronald’s school attendance difficulties as well as his out-of-school stressors. I find that these actions, considering the circumstances of this Student, were appropriately responsive to the Student’s special education needs, and met Springfield’s ongoing procedural and substantive obligation to ensure the delivery of a free, appropriate public education to Ronald.
The Student argues that he cannot make effective educational progress toward the goals outlined in his IEP if he does not attend school. Therefore, he contends, the School is not fulfilling its duty to provide FAPE whenever the Student is not in school. The Student seeks an award of compensatory education as a remedy for this deprivation of educational benefit. Compensatory education, however, is an equitable remedy under the IDEA. Murphy v. Timberlane Regional School District , 22 F. 3d. 1196 (1 st Cir. 1994). Pihl v. Massachusetts Department of Education , 9 F. 3d. 184 (1 st Cir. 1993). Roland M. v. Concord Public Schools , 910 F. 2d. 983 )1 st Cir. 1990). Without a showing of a district’s failure to meet its procedural or substantive obligations under state or federal special education law, an award of compensatory education cannot lie. Here, the Student urges the adoption of a type of per se rule of compensatory education, contending that for each school day missed by an IDEA eligible student there should be a concomitant finding of a denial of a free, appropriate public education. I decline to find an automatic deprivation of educational benefit to a student whenever a student does not attend school. Instead, there must be a balancing of the school’s obligations and actions on the one hand and the student’s / family’s rights and deprivations on the other. Here the balance favors the school. I credit the testimony of Dr. Morris in full and find that Springfield actively took all the “necessary” procedural steps “warranted” by Ronald’s chronic absences, including convening Team meetings, considering parental input and engaging the assistance of other agencies and the court, to secure his attendance.5 Springfield also met its substantive special education obligations to Ronald by developing responsive and appropriate individualized education plans, ensuring that the services and placements in those IEPs were actually available to Ronald, and offering all reasonable supportive services to permit him to access those services on a voluntary basis.
As there has been no showing in this record that Springfield failed to meet its IDEA obligations to Ronald, an award of compensatory education is not justified.
Order
Springfield met its procedural and substantive obligations to provide a free, appropriate public education to Ronald between January 12, 2007 and December 3, 2007, by actively responding to Ronald’s chronic absenteeism. Therefore Ronald is not entitled to an award of compensatory education for the school days he missed during that time.
June 19, 2008 ________________________
Lindsay Byrne, Hearing Officer
COMMONWEALTH OF MASSACHUSETTS
BUREAU OF SPECIAL EDUCATION APPEALS
EFFECT OF BUREAU DECISION AND 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 of Special Education Appeals 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 superior 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
“Ronald” is a pseudonym chosen by the Hearing Officer for use in documents available to the public to protect the privacy of the student.
2
Some of the issues initially raised in the Student’s Hearing Request have been resolved. The remaining issues addressed here were set out in a BSEA order issued by former Hearing Officer Beron on April 23, 2006.
3
The SKIP process permits a direct hospital admission from school.
4
See eg: In Re: Quetzal, BSEA No. 08-3309, June 4, 2008.
5
See generally: 34 CFR 300.303(a)(1); 603 CMR 28.04(3).