Jill and The Mahar Regional School District – BSEA #03-2469 and #04-1447
COMMONWEALTH OF MASSACHUSETTS
Bureau of Special Education Appeals
In Re: Jill*1 and The Mahar Regional School District
BSEA#03-2469 and #04-1447
This decision is issued pursuant to M.G.L. chs. 71B and 30A, 20 U.S.C. 1401 et seq ., 29 U.S.C. 794 and the regulations promulgated under those statutes. A hearing was held on October 17, 2003, at the offices of Catuogno Court Reporting Service in Springfield, MA. Present for all or part of the hearing were:
Diane Ellis Administrator of Special Education, Mahar Regional School District
Peter Smith Attorney for School
Lindsay Byrne Hearing Officer
The official record of the hearing consists of documents submitted by the School marked S-1 through S-82, and approximately 4 hours of recorded testimony and argument.
This matter initially came before the Bureau on a December 6, 2003, Request for an Expedited Hearing filed by the School. At that time, though enrolled at Mahar Regional High School, Jill was not attending school. After resolving a series of procedural issues a hearing was scheduled for February 6, 2003. The parties reached an agreement at the hearing and Jill was enrolled in the Lipton Academy, a private, Ch. 766 approved, therapeutic day school. On May 9, 2003, the School renewed its request for hearing. Another series of negotiations between counsel for both parties ensued. On May 16, 2003, the School withdrew its hearing request but asked that the Bureau continue supervision of the matter. Jill did not complete the school year at Lipton Academy. A team meeting was held on August 7 th and 8 th , 2003. On August 11, 2003, the School proposed an IEP calling for Jill to return to Mahar Regional High School for the 2003-2004 school year with special education services in both separate and inclusion settings. The Parents have not formally responded to the proposed IEP. On September 12, 2003, Parents’ counsel moved to withdraw from the matter. The Motion was granted on the same day.
On September 16, 2003, the Parents pro se , filed a request for an emergency hearing. The request was granted and assigned to Hearing Officer William Crane for hearing on September 26, 2003. After a conference call, the School’s Motion to Consolidate the new request with the ongoing BSEA matter was granted on September 29, 2003. The consolidated matters were set for hearing on October 17, 2003, before Hearing Officer Lindsay Byrne, who had retained jurisdiction of the initial dispute.
On the morning of October 17, 2003, the Parents telephoned the Bureau, requested a postponement, and indicated their intent not to attend the hearing. The postponement request was denied and the hearing proceeded on October 17, 2003. Neither the Parents, nor anyone on their behalf, attended the hearing.
At the conclusion of the School’s presentation an Order was issued holding the evidentiary record open until October 31, 2003, to receive additional documents or testimony from the Parents. The Hearing Officer found that due to the Student’s out-of-school status the matter required an expedited determination. An Interim Decision was issued on October 28, 2003, finding that the proposed 2003-2004 IEP provided a free, appropriate public education to Jill. The Parents did not communicate in any way with the Bureau before the close of business on October 31, 2003, and the record closed. As a result, this final decision is substantially similar to the previously issued Interim Decision which is incorporated herein by reference.
The Student has not attended school since the first week of June 2003.
1. Whether the 2003-2004 Individualized Education Plan proposed by the Mahar Regional School District is reasonably calculated to provide a free, appropriate public education to Jill in the least restrictive setting?
Summary of the Facts3
1. Jill is a fifteen year old resident of the Mahar Regional School District. Jill
has average cognitive potential and generally functions academically consistent with her potential. She has been diagnosed with ADHD, PTSD, narcolepsy and cataplexy. She has been found eligible for special education services under the categories of neurological impairment, emotional disability and behavioral disability. She has received special education through the Mahar Regional School District since the 7 th grade. (Ellis; S-1-16; S-27-31- 33,-38-40, 77-80)
2. In the fall of 2002, a disciplinary incident prompted Jill’s suspension from her 9 th grade special education program at Mahar Regional High School. The Team determined that the offending behavior was a manifestation of Jill’s disability and offered an alternate education placement. Home tutoring was unsuccessful and Jill did not receive any educational services for a time. In February 2003 the parties agreed to place Jill at the Lipton Academy for a 45 day evaluation period. (S-25, 64-68, 73, 76, 7)
3. Jill attended the Lipton Academy, a private, ch. 766 approved, therapeutic day school from March 3, 2003, through the first week of June 2003. Lipton personnel found that Jill had a major depressive disorder and could benefit from continued placement in a small, therapeutic school. They reported that in the classroom setting Jill was easily distracted and frustrated, demonstrated poor organizational skills, and had significant difficulties in the area of social functioning. Lipton recommended that Jill be engaged in outpatient individual therapy and that a psychopharmacological evaluation be conducted. (S-77)
4. A psychological evaluation to assess Jill’s emotional functioning was conducted on March 28 and April 1, 2003, by Dr Laneri of U.Mass Memorial. Dr. Laneri confirmed a diagnosis of depression and recommended both individual counseling and a psychiatric consultation. (S-78)
5. In May 2003, Miriam DeFant, a psychologist selected by the Parents, conducted a psychoeducational assessment. She found Jill to have average cognitive functioning, with executive functioning abilities and academic achievement falling broadly within the average range. Dr. DeFant noted that Jill exhibits a number of social and emotional factors that affect her ability to learn and to benefit from educational programming. In particular Jill demonstrates: mild to moderate levels of depression, poor social skills, limited frustration tolerance and significant distortion of self-esteem and body image. Dr. DeFant recommended:
1. placement in a regular school setting with an IEP providing direct services in remedial academic tutoring, improving executive functioning, study skills and organization, and social/behavioral skills;
2. accommodations in a regular school setting including modification of academic performance measures, a behavior plan, and structured home-school communication.
3. Individual and family therapy
4. Psychopharmacological evaluation and treatment.
6. A Team meeting was held on August 7 and 8, 2003, to discuss the results of the Lipton Academy, U.Mass Memorial, and DeFant evaluations. The Team agreed on the nature and extent of Jill’s disabilities and her eligibility for special education services. The Team also agreed on the type and level of special education services to be provided to Jill. The Team agreed that a placement in a public high school would be appropriate for Jill. The School proposed placement in the Mahar Regional High School and advised the Parents that they could pursue other public high school options through school choice. (Ellis; S-81, 82)
7. The 2003-2004 IEP for Jill closely follows the recommendations of Dr. DeFant. Under this IEP Jill would attend regular education classes in math, English, and an elective. An instructional aide would assist Jill by implementing teaching and production modifications and accommodations and ensuring small group instruction throughout the day. In addition Jill would receive two 80 minute blocks per week of special education tutorial focusing on improving her executive and organizational skills, as well as her social-emotional skills. The special educator would also provide consultation to the regular education staff to ensure their understanding and implementation of the necessary accommodations. The IEP also provides for 40 minutes of school based counseling, maintenance of a sleep log, biweekly progress reports, and structured home-school communication. (S-81, 82) The IEP would be implemented at Mahar Regional High School as Dr. DeFant recommended that Jill could benefit from the peers, the extracurricular activities and the academic challenge of a regular education school. (Ellis; S-80, 79) Mahar is the only regular education high school to which the district has access. The Parents could enroll Jill in other local public high schools through school choice. Jill’s IEP would be implemented in and by the high school she actually attended. (Ellis)
8. Jill has not attended school anywhere during the 2003-2004 school year. As she is fifteen years old she is truant. The School offered to return Jill to the Lipton Academy, to assist the Parents with school choice applications, to investigate special education collaborative placements, to develop a transition plan for Jill’s re-entry to Mahar Regional High School, and to discuss any other ideas the Parents might have, to ensure the provision of appropriate educational services to Jill. To date the Parents have not responded to the proposed IEP. They have not unilaterally placed Jill in any educational setting. There is no evidence of parental cooperation with district and state efforts to ensure that Jill receives the special education services to which she is entitled. (Ellis)
Findings and Conclusions
After careful consideration of the evidence submitted by the School in this matter, with an eye to any potential objections, perspectives or counter arguments that could reasonably be raised by the Parents, it is my determination that the IEP developed by the Team for Jill on August 7 and 8, 2003, addresses all the disabilities identified by the most recent evaluators, provides all the school based services recommended by those professionals, and incorporates the recommended accommodations/modifications/interventions and teaching strategies. In addition I am persuaded by the thoughtful and highly credible testimony of the special education administrator, Diane Ellis, that the Mahar Regional High School placement proposed by the School is the least restrictive placement in which the proposed special educational services can be delivered. There is no evidence in this record that Jill cannot safely attend Mahar, nor that any physical, emotional, service or peer barriers exist that would prevent her full participation in the program.
Therefore, I find that 2003-2004 IEP calling for Jill to receive targeted special education services at Mahar Regional High School is reasonably calculated to ensure the provision of a free, appropriate public education to Jill in the least restrictive setting.
The 2003-2004 IEP developed by Mahar Regional Schools is reasonably calculated to ensure a free, appropriate public education for Jill.
Lindsay Byrne, Hearing Officer
* Jill is a pseudonym chosen by the Hearing Officer to protect the privacy of the student in publicly available documents.
Other issues may exist but were not articulated by the Parents nor evident in the Hearing Officer’s review of the available documents.
As this decision is based on a one sided presentation of evidence, the factual recitation here is necessarily brief and may be incomplete. Given the exigent circumstances presented by the Student’s out-of-school status, only those facts bearing on the appropriateness and availability of the School’s proposed program are set out here.