COMMONWEALTH OF MASSACHUSETTS
BUREAU OF SPECIAL EDUCATION APPEALS
IN RE: VERTIS1 & HOLYOKE PUBLIC SCHOOLS
BSEA#08-2892
DECISION
This decision is issued pursuant to M.G.L. c.71B and 30A, 20 U.S.C.§1401 et seq ., 29 U.S.C. §794, and the corresponding regulations. By mutual request of the Parties this decision is issued solely on the pleadings and written material submitted by the Parties.
ISSUES2
1. Did the Holyoke Public Schools (“Holyoke”) commit a procedural violation that denied Vertis a free appropriate public education (“FAPE”) by failing to have a special education TEAM determine the appropriate “interim educational placement” in May of 2007 when the student was suspended for ten (10) days with a recommendation for long-term suspension?
If so, is Vertis entitled to thirty (30) days of compensatory education services for procedural violations committed during the 2006-2007 school year; ( see Educational Surrogate Parent’s (ESP) Closing Argument, Clauson p. 5).
2. Did Holyoke commit a procedural violation that denied Vertis a FAPE when it would not conduct a manifestation determination review after Vertis brought a knife to school in September 2007?
3. Did Holyoke commit a procedural violation that denied Vertis a FAPE when it did not reconvene the TEAM to determine an appropriate interim educational program when it suspended Vertis for more than ten (10) days for bringing a knife to school in September of 2007; and was Holyoke required pursuant to federal and state special education laws and regulations to reconvene the TEAM to make a manifestation determination and educational program determination prior to conducting a long term suspension hearing?
4. Did Holyoke deny Vertis a FAPE when it unilaterally placed him, after the October 31, 2007 suspension hearing, for twenty-three (23) days with no special education services at the McHugh Educational Center?
If so, is Verits entitled to an additional twenty-three (23) days of compensatory education for procedural violations committed during the 2007-2008 school year? ( See Educational Surrogate Parent’s (ESP) Closing Argument, Clauson p. 10).
FINDINGS OF FACT3
1. Student, D.O.B. 06/01/1991, is a 16 year old, 9 th grade special education student enrolled in the Holyoke Public Schools (Stipulation 1).
2. According to Student’s 2006 – 2007 Individualized Education Program (“IEP”), Student’s reading skills were at approximately the 1 st to 2 nd grade level. (Stipulation 2, see also J1 p. 4, J32 ).
3 Student failed all of his classes in the fourth marking period of the 2006-2007 school year and failed all classes in the first marking period of the 2007-2008 school year (Stipulation 3, see also J13 ).
4. On May 4, 2007, Student was found in possession of a knife in school (Stipulation 4 , See also J2, J15, J34) .
5. On May 4, 2007, Student was given a short-term ten (10) day suspension and assigned by the Assistant Principal to the Holyoke Alternative Program (“HAP”) at McHugh Educational Center (“McHugh”) with a recommendation for a long-term suspension. (Stipulation 5 , J15 ).
6. On the same day, a Manifestation Determination Review was held. A copy of the May 4, 2007 TEAM Meeting attendance sheet and Manifestation Determination Review attendance sheet are provided in Joint Exhibit 12. The TEAM participants found Vertis’ behavior not to be a manifestation of his disability; (Stipulation 6, see J12).
7. Attendance documents indicate that Student was placed at HAP at McHugh for the remainder of the 2006-2007 school year. (Joint Exhibit 16, see J16 ). These attendance records are incorrect. (Stipulation 7).
8. According to the Center for Human Development (“CHD”), Vertis was in a Department of Youth Services’ (“DYS”) facility from May 4, 2007 through May 31, 2007 and available for hearing thereafter; (Parent’s Exhibit 21). No explanation was provided by the School District as to why a due process suspension hearing was not held, other than a general statement that the child did not return to school through the end of the school year (Stipulation 8).
9. On May 14, 2007, the School District was notified that the Student was in a DYS locked facility. Holyoke was not made aware that Vertis was released by DYS (Stipulation 9).
10. As the Student was assigned to HAP for ten (10) days only, but did not attend, no attendance was taken at McHugh beginning on May 21, 2007. Dean Technical High School (“Dean Tech”) did not take attendance, as it mistakenly believed the Student was at HAP. (Stipulation 10).
11. No evidence was provided by the District of notes sent home, calls home or calls to DYS to confirm the whereabouts of student in order that a long-term suspension/expulsion/interim alternative educational placement hearing could be convened after the May 4, 2007 short-term suspension, despite the child’s release from DYS on May 31, 2007; (Joint Exhibit 21). (Stipulation 11).
12. The Student never attended either the HAP or tutoring program at McHugh from May 4, 2007 through the end of the 2006-2007 school year (June 18, 2007) (Stipulation 12).
13. According to the documentation of the May 4, 2007 incident, Dr. Oquendo, Assistant Principal, Dean Tech, filled out a Form 4 (Short-Term Suspension) and partially filled out a Form 6 (re: Long-term suspension/Expulsion/Interim Alternative Educational Placement of a student with disabilities) that has no signatures of any school personnel, student, or parent, fails to indicate whether parental approval was sought for the alternative placement, and fails to indicate whether the School District intended to file for a hearing with the intent to change the Student’s placement; (Joint Exhibit 11, Stipulation 13) .
14. Because no special education certified teacher was assigned to the tutoring program,
the student received no special education services for any period of time that he was placed at and attended the tutoring program during the 2006-2007 or 2007-2008 school years. (Stipulation 14, see also J18-J19).
15. On September 4, 2007, the Student returned to Dean Tech. (Stipulation 15)
16. On September 12, 2007, Student’s Guardian called Dean Tech and notified school personnel that the Student was on his way to school and that he had a knife in his pocket (Stipulation 16).
17. The Student gave school personnel the knife and was unilaterally placed at the tutoring program by the Assistant Principal of Dean Tech for 10 days with a proposed expulsion; (Joint Exhibit 2, 3, Stipulation 17) .
18. The DYS Certificate of Attendance indicates that Student was placed in a locked DYS facility on September 12, 2007 through October 16, 2007; (Joint Exhibit 21, Stipulation 18) .
19. On October 31, 2007, a discipline hearing was held. The Hearing Officer placed the Student in interim tutoring (3 hrs/day) for thirty (30) days at McHugh to give the IEP TEAM time to meet and find an appropriate placement for the Student. (Stipulation 19).
20. The District attendance sheet erroneously reflects that Student was either absent or in an interim alternative educational placement during the time Student was in the DYS facility. (Joint Exhibit 17, Stipulation 20).
21. On October 22, 2007, the Education Surrogate Parent (“ESP”) sent a letter to both the Supervisor and Interim Director of Special Education of the Holyoke Public Schools indicating that a “manifestation hearing” was long overdue and requesting dates for the manifestation hearing; (Joint Exhibit 5, Stipulation 21).
22. According to CHD (DYS) personnel, Student was released from the DYS facility on October 16, 2007 and available for hearing; (Joint Exhibit 21, Stipulation 22) .
23. The District indicated that DYS told them the Student was not released until October 25, 2007; however, the District has not supplied the name of the DYS personnel nor confirmed whether Student should have been given credit for school he attended while at the DYS facility (Stipulation 23).
24. On October 31, 2007, the Hearing Officer conducted a suspension/expulsion/interim alternative educational placement hearing at 57 Suffolk Street in Holyoke (see J6 , Stipulation 24).
25. The Supervisor and Interim Director of Special Education as well as a Department of Social Services (“DSS”) representative and the ESP attended the expulsion hearing. (P-6, Stipulation 25)
26. The Hearing Officer indicated that the October 31, 2007 hearing would be electronically recorded for the benefit of the School District as well as for the benefit of the Student. (Stipulation 26).
27. The Hearing Officer proceeded with the long-term suspension/expulsion/interim alternative educational placement hearing on that day (Stipulation 27).
28. Despite repeated requests by the ESP, prior to and during the October 31, 2007 hearing, no Manifestation Determination Review TEAM meeting was held regarding the September 12, 2007 incident. (Stipulation 28).
29. During the hearing, the hearing officer stated that the District addressed the issue of whether a manifestation hearing was required “several years ago” and it was a settled matter that no manifestation hearing was required and therefore one would not be provided to the Student (Stipulation 29).
30. At the close of the hearing, the Hearing Officer unilaterally determined that the Student would be suspended for 30 days and that the Student would attend the tutoring program at McHugh where he was placed pending a TEAM meeting. (Parent’s Exhibit 7, Stipulation 30).
31. The ESP immediately appealed the Hearing Officer’s determination based upon the lack of a manifestation determination review (Stipulation 31).
32. On November 13, 2007, the TEAM met at Dean Tech and determined that an out- of-district, therapeutic day school was the appropriate educational placement for the Student ( see J14, J35 , Stipulation 32). .
33. At the close of the November 13, 2007 TEAM meeting the Hearing Officer, who participated in the TEAM, stated that the Student would remain in the interim tutoring program for a total of thirty days while an appropriate placement was sought (Stipulation 33).
34. Student attended the tutoring program at McHugh after the October 31, 2007 suspension hearing for a total of twenty-three (23) school days (Stipulation 34).
35. Because he was in high school, Student attended the late morning tutoring program for
high school aged students. He also received an additional hour of 1:1 tutoring per day (Stipulation 35).
36. Between three and nine students attended the tutoring program during the period when the Student was at McHugh during the 2007-2008 school year (Stipulation 36).
37. On December 14, 2007, the ESP was provided with a signed consent form for the Student’s residential placement (cost share between Holyoke/DSS) at Brightside for Families and Children (“Brightside”), a Department of Education approved private day and residential school, where the Student is currently enrolled (Stipulation 37).
38. Holyoke agrees to provide compensatory services to the Student for the period of time when he was assigned and attended the tutoring program because he did not receive services pursuant to his last agreed-upon IEP (Stipulation 38).
39. The District agrees to reconvene the Student’s TEAM on March 28, 2008 to develop a plan for compensatory educational services on behalf of the Student. As the Student is residentially placed at Brightside, placement in the after-school program at River Valley Academy may not be appropriate. Tutorial services, however, may be beneficial to the Student ( J37 , Stipulation 39).
CONCLUSIONS OF LAW
Here the Educational Surrogate Parent (ESP) asserts that Vertis is entitled to compensatory education because Holyoke committed procedural violations by not reconvening the TEAM in May 2007 even though it had recommended a long term suspension. The ESP also asserts that Holyoke committed additional procedural violations when it did not, in September 2007 conduct a manifestation determination or determine an appropriate interim educational program for Vertis.
Pursuant to the Supreme Court’s decision in Schaffer v. Weast, 12 S.Ct. 528 (2005), the Parent, as the moving party, bears the burden of proving that Holyoke’s alleged procedural violations caused Vertis “substantive harm” and “more likely than not” deprived him of FAPE. In re: Hopkinton Public Schools, 13 MSER 227, 231 (2007); In re: Everett Public Schools and Henry, 12 MSER 180, 194 (2006).
In order to receive compensatory education, Vertis must show that the school district violated his procedural rights under federal or state law and those “procedural inadequacies have compromised his right to an appropriate education…or caused a deprivation of educational benefits. See Roland M. v Concord Public Schools , 910 F. 2d at 994 (1 st Cir. 1990); see also Murphy v Timberlane Regional Sch. Dist. , 22 F. 3d 1186, 1196 (1 st Cir. 1994) (“a procedural default which permits a disabled child’s entitlement to a free and appropriate education to go unmet for two years constitutes sufficient grounds for liability under the IDEA”); see also 20 USC s. 1415 (f)(E) (ii) (I, III). A Hearing Officer may also find that a denial of a FAPE has occurred if a School District has significantly impeded the parent(s)’ opportunity to participate in the decision making process regarding the provision of a FAPE to the parent(s)’ child, 20 USC s. 1415 (f)(E)(ii)(II). However, “technical or de minimus violations that do not deprive the child of FAPE do not entitle parents to compensatory relief.” Murphy v. Timberlane Regional School District , 22 F.3d 1196 (1 st Cir. 1994),
After consideration of the evidence presented in this matter, this Hearing Officer finds that Vertis is entitled to eleven (11) days of compensatory education for procedural violations committed by Holyoke during the 2007-2008 school year and to twenty-three (23) days of compensatory education for procedural violations committed by Holyoke during the 2007-2008 school year.
I. The May 4, 2007 Incident
On May 4, 2007, Vertis brought a knife to school. On that day Holyoke conducted a manifestation determination review, found that his behavior was not a manifestation of his disability and gave Vertis a ten-day suspension and assigned him to the Holyoke Alternative program (HAP) during this ten-day period. Holyoke also recommended that Vertis receive a long-term suspension for the rest of the school year. Vertis did not attend the HAP program because he went to a DYS facility that day and remained there until May 31, 2007. If Vertis had attended HAP during that ten-day period he would not have received special education services because no special education program was assigned to the program and as such could not provide services or consultation.
DYS did not notify Holyoke that Vertis was in a DYS facility until May 14, 2008; however Holyoke also did not contact Vertis’s guardian or otherwise attempt to locate Vertis when he did not show up at HAP on May 7, 2007. Vertis was to return to last agreed upon placement at Dean Tech after his ten day suspension (May 14, 2007). However, on May 14, 2008 it learned that Vertis was in a DYS facility. Holyoke did not obtain any information from Vertis’ guardian or from DYS or other sources regarding how long Vertis was expected to remain in DYS and/or when he could be available for a long term suspension hearing. DYS released Vertis on May 31, 2008 and he would have been available to attend his last agreed upon program at Dean Tech from June 1, 2007 through June 18, 2007.
The IDEA states that a school district may remove a child from his educational placement for disciplinary reasons for up to ten (10) days in a school year without providing educational services to the child; 34 CFR §300.530(d)(3).
When a student is removed from his educational program for disciplinary reasons for more than ten (10) consecutive school days, a change of placement is deemed to have occurred, and the district must then provide the student with services that will provide FAPE to the student while he is not in his former educational placement; 20 U.S.C. § 615(l)(C) and (D)(i).
The IDEA further requires that within ten (10) days of a decision to change the placement of a student for violations of a code of student conduct, the school, parents, and relevant members of the child’s team must convene a manifestation determination meeting to review all of the relevant information in the student’s file to determine whether his/her conduct was “caused by, or had a direct and substantial relationship, to the child’s disability,” or whether the conduct was the result of the school district’s failure to implement the student’s IEP. 20 U.S.C. § 615(l)(E)(i)(I) and (II).
A School District may unilaterally remove a student from his educational placement for up to forty-five (45) school days without regard to whether the student’s behavior is determined to be a manifestation of his/her disability where a student:
(i) carries or possesses a weapon4 to or at school, on school premises, or to or at a school function under the jurisdiction of a State or local education agency;
(ii) knowingly possesses or uses illegal drugs, or sells or solicits the sale of a controlled substance while at school, on school premises, or at a school function under the jurisdiction of a State or local education agency; or
(iii) has inflicted serious bodily injury upon another person while at school, on school premises, or at a school function under the jurisdiction of a State or local education agency; 20 U.S.C. § 615(l)(G)(i),(ii), and (iii).
Under these special circumstances, school districts are required to conduct the manifestation determination review, within ten (10) days after removing a student from his educational program, and to convene an IEP Team meeting to develop an assessment plan. 34 CFR §300.520(b)(1)(i). Following the completion of the assessment plan, the district must reconvene the IEP Team “as soon as practicable” to determine appropriate behavioral interventions and placement. In re: Blue Hills Regional Technical School and Patrick, 11 MSER 113, 118 (2005).
On May 4, 2007, Vertis was found in possession of a knife in school and was given a short-term ten (10) day suspension. Holyoke conducted a manifestation determination hearing on the same day and determined that the Student’s violation of the code of conduct was not a manifestation of his disability and as such complied with the requirements of 20 U.S.C. § 615(l)(E)(i)(I) and (II). In addition, although Vertis could not attend the HAP program because of his DYS placement, and if he had the services would not have been in conformance with his IEP, Holyoke was not required to provide educational services during this ten-day period. Since Vertis was not entitled to a FAPE during a ten day or less suspension period, he is not entitled to compensatory education because Holyoke did not provide him with a FAPE through the HAP program. In addition, because the suspension was not longer than ten days Holyoke was not required to convene a TEAM to develop an assessment plan or a behavioral intervention plan once assessments were complete; ( see 34 C.F.R. §300.520(b)(i)(i)).5
However, the Parties agree that if Vertis had been available to attend school he would have returned to his last agreed upon placement on May 21, 2007. Holyoke learned on that May 14, 2007 that Vertis was in a DYS facility; therefore he could not have returned to his last agreed upon placement. Holyoke did not obtain any information from Vertis’ guardian or from DYS or other source regarding how long Vertis was expected to remain in DYS. Vertis would have been available to attend a suspension hearing and attend school and receive his last agreed upon special education services on June 1, 2007 and could have received services from June 1, 2007 until June 18, 2007. Vertis did not attend school for the rest of the 2006-2007 school year.
Holyoke is required to implement agreed upon IEPs. Holyoke did not implement Vertis’ IEP; ( see 603 C.M.R. 28.05(7). Holyoke maintains that it could not implement Vertis’ IEP because neither DYS nor Vertis’ custodial grandmother informed it that Vertis was released from DYS custody and thus available to receive services. It further argues that the regulations pertaining to DYS (105 CMR § 501 et seq) do not require the agency to notify school districts when a student is detained – or released but if responsibility exists, the responsibility should be placed upon the DYS Educational Liaison, whose specific function is to coordinate educational services to eligible students in DYS custody with the appropriate local education agency.
A Hearing Officer may excuse a school district for noncompliance issues if facts exist to justify nonperformance. Holyoke is correct that both DYS and Vertis’ legal guardian, as Vertis’ custodians should have an obligation to see that Vertis’ needs are met, including educational needs. However, the IDEA’s child find provisions also require that Holyoke, as a local education agency, identify, locate and evaluate children with disabilities who reside in their community; ( see IDEA, Part B, s. 612 (a)(3). Holyoke had already identified this child as having a disability but did not fulfill its obligation to locate him to determine if services could be implemented even when Vertis did not show up to attend the HAP program that Holyoke assigned him to or when Vertis did not show up to his last agreed upon placement at Dean Tech when his suspension was to be complete. Although DYS informed Holyoke on May 14, 2008 that Vertis could not attend school due to DYS detention, Holyoke did not obtain any further information from DYS or contact the DYS Educational liaison. If it had Holyoke may6 have known that Vertis was available to receive special education services. Because it did not Holyoke is responsible for educational services not implemented from June 1, 2007 until June 18, 2007 or eleven days of compensatory education for the 2006-2007 school year. .
II. The September 12, 2007 Incident
On September 12, 2007 Vertis was suspended because he brought a knife to school. He was temporarily placed in the HAP program for ten days with a recommendation for expulsion. He was detained in DYS from September 12, 2007 through October 16, 2007; however DYS informed Holyoke that Vertis would be held until October 25, 2008. Vertis attended a disciplinary hearing on October 31, 2007. Vertis attended the tutoring program for a total of twenty-three (23) school days. Holyoke agrees that it owes Vertis twenty-three days of compensatory services because he did not receive services pursuant to his last agreed-upon IEP. Holyoke also admits that Vertis’ placement was changed and as such it should have conducted a manifestation determination.7
As such, Holyoke will provide Vertis with twenty-three days of compensatory education for the 2007-2008 school year.
ORDER
Holyoke has committed procedural violations that have denied a FAPE to Vertis. As such, Holyoke will compensate Vertis for a total of thirty-four (34) days of special education services, eleven days of special educational for services that they should have provided during the 2006-2007 school year and for an additional twenty-three (23) days for services Holyoke should have provided in the 2007-2008 school year. The TEAM will reconvene no later than June 30, 2008 to determine appropriate compensatory education services.
By the Hearing Officer,
Joan D. Beron
Date: June 9, 2008
1
Vertis is a pseudonym used for confidentiality and classification purposes in publicly available documents.
2
The Parties agreed on the issues to be determined; ( see Issues for Summary Decision Ruling May 29, 2008).
3
The Parties submission of the following stipulations numbered 1-39, reproduced below verbatim, is adopted as findings of fact; ( see Joint Stipulations of Fact, May 28, 2008). The Hearing Officer’s additions to the stipulations, as reflected in the record, are italized.
4
The IDEA defines the term “weapon” to mean “dangerous weapon” pursuant to the federal definition found at 18 U.S.C. § 930(g)(2): The term “dangerous weapon” means a weapon, device, instrument, material, or substance, animate or inanimate, that is used for, or is readily capable of, causing death or serious bodily injury, except that such term does not include a pocket knife with a blade of less than 2 ½ inches in length. 18 U.S.C. § 930(g)(2). See also In re: Scituate Public Schools, 13 MSER 13, 16 2007).
5
The record shows that Vertis had no previous suspensions prior to May 4, 2007. If the suspension was longer than ten days Holyoke would have been required to convene a TEAM within ten school days to develop an assessment plan and as soon as practicable after developing the plan would have been required to reconvene the TEAM to develop a behavioral intervention plan; ( see 34 C.F.R. §300.520(b)(1)(i) . Because Vertis brought a knife to school, Holyoke could have assigned Vertis to a 45 day interim alternative placement; however, it did not do so.
6
If the facts were such that Holyoke had regularly contacted the DYS Educational liaison and DYS still did not inform Holyoke of Vertis’ release Holyoke may be excused from noncompliance. Such is not the case here.
7
The ESP maintains that Holyoke should have conducted a manifestation determination prior to the suspension/expulsion hearing. As this issue is not outcome determinative in this matter and as there is no requirement in either the state or federal law as to the order in which a manifestation determination should occur when there is also an suspension and/or expulsion hearing, a procedural violation for not conducting a manifestation determination prior to an expulsion hearing will not be found.