Lowell Public Schools – BSEA #02-4068 AND #02-4109
COMMONWEALTH OF MASSACHUSETTS
SPECIAL EDUCATION APPEALS
In Re: Lowell Public Schools
BSEA # 02-4068 and # 02-4109
This decision is issued pursuant to 20 USC 1400 et seq . (Individuals with Disabilities Education Act), 29 USC 794 (Section 504 of the Rehabilitation Act), MGL chs. 30A (state administrative procedure act) and 71B (state special education law), and the regulations promulgated under said statutes.
This matter includes two Requests for Hearing, one filed by each of the two parties. A hearing was held on May 29, 2002 in Malden, MA before William Crane, Hearing Officer. Those present for all or part of the proceedings were:
Lynda Morelli Registered Nurse, Excel Home Care, Inc.
Pamela Simpkins Principal, McAuliffe School, Lowell Public Schools
Marianne Bond Assistant Principal, Lowell Public Schools
Susan Smith Evaluation Team Chairperson, Lowell Public Schools
Catherine Hart Teacher, Lowell Public Schools
Mindy Booth Teacher, Lowell Public Schools
Susan Vitale Teacher, Lowell Public Schools
Deborah Westaway Assistant Administrator for Special Education, Lowell Public Schools
Alexander Pratt, Jr. Attorney for Parent
Michael Ortiz Attorney for Lowell Public Schools
The official record of the hearing consists of documents submitted by the Parent and marked as exhibits 1 through 9 (hereafter, Exhibit P-1, etc.); documents submitted by the Lowell Public Schools (hereafter, LPS) and marked as exhibits 1 through 5 (hereafter, Exhibit S-1, etc.); and approximately eight hours of recorded oral testimony and argument. As agreed by the parties, written closing arguments were due on June 3, 2002, and the record closed on that date.
A. ISSUES PRESENTED
Issue 1 : Should Lowell Public Schools be allowed to evaluate Student over Mother’s objections?
Issue 2 : Is Student entitled to receive mentor services from Excel Home Care?
B. PROFILE AND HISTORY
Student is ten years old (date of birth 3/31/92) and attends the 3 rd grade at the McAuliffe School which is a public elementary school in Lowell.
Student’s current IEP is for the period 6/1/01 to 6/1/02, with an IEP amendment for the period 12/19/01 to 6/30/02 [sic]. The IEP was accepted in full by Mother on January 10, 2002. Exhibits S-1, P-1.
Student is described in the IEP as a motivated learner who performs well in the classroom when he feels self-confident and is comfortable with the task at hand. His reading teacher has further noted that when Student participates in her guided reading group (which is the majority of the time that he is present), his comprehension is excellent and he has great enthusiasm. Testimony of Vitale; Exhibits S-1, P-1.
Student has been diagnosed as having a specific learning disability which impacts the development of his reading and writing skills. He also has a history of anxiety at school, which has impacted his self-confidence and self-esteem in the classroom. Testimony of Mother; Exhibits S-1, P-1, P-7.
In order to address his learning disability, the IEP calls for one and a half hours each day of academic support within the general education setting. The only other services described within the IEP are counseling consultation services of a half hour each quarter from a social worker/therapist. Exhibits S-1, P-1.
On May 8, 2002, LPS filed a Request for Expedited Hearing, alleging that Mother’s refusal to consent to re-evaluation of Student is resulting in the denial of a free appropriate public education (FAPE) to Student and is jeopardizing the health and safety of Student, other children and staff. The Request for Expedited Hearing asks that the Bureau of Special Education Appeals (BSEA) direct LPS to begin the three-year re-evaluation to determine whether additional disabilities exist and to develop an IEP that addresses Student’s educational and behavior needs to ensure that Student receives FAPE. The BSEA granted expedited status on May 9, 2002.
On May 10, 2002, Mother (through her attorney) filed a Request for Expedited Hearing, alleging that the special education services Student is currently receiving are so inadequate that harm to Student is likely and that an agreed-upon aspect of his educational program (a mentor plan intended primarily to address behavioral issues) is not being permitted by LPS. The Request for Expedited Hearing asks that LPS be ordered to implement the mentor plan and that LPS develop an amendment to Student’s IEP for the mentor plan. The BSEA granted expedited status on May 10, 2002.
On May 14, 2002, the parties agreed to consolidate the two requests for hearing and to proceed to Hearing on May 29, 2002. The Hearing Office consolidated the two cases by Order of May 15, 2002.
C. STATEMENT OF THE EVIDENCE
· Mother testified that she has lived in Lowell her entire life, and currently works for LPS as an inclusion specialist. She explained that her son (Student) has been at the McAuliffe Elementary School for two years and currently is in the 3 rd grade.
Mother testified that Student experienced behavior difficulties at the end of his 1 st grade, and the following school year he missed 42 days of school, often not wanting to attend; he was eventually taken out of school on advice of his pediatrician. Mother explained that in August 2000, she took her son to the Children’s Hospital in Boston for evaluation, and he was diagnosed as having a learning disability and anxiety.
Mother testified that for the past two years (approximately), her son has been seeing a private therapist (Mr. John Marshall) at South Bay Mental Health Center; since January 2001 until April 2002, her son has also been seeing a psychiatrist (Dr. Speller) at South Bay Mental Health Center, principally for purposes of medication; and since April 2002, her son has been seeing another psychiatrist (Dr. Cavanaugh). She noted that her son is taking Paxil to reduce anxiety.
Mother testified that during the current school year (until recently), her son has loved to go to school. She explained that the first three suspensions during this academic year involved fighting in the line of children waiting for the bus, and this issue was addressed during a December 19, 2001 Team meeting when it was agreed that Student’s classroom teacher would stay with Student separately from the other children until it was time for Student to get on the bus. Mother explained that her son has had no major behavioral problems at home.
Mother testified that she wants her son to receive all eight of the evaluations proposed by LPS. She explained that these evaluations are important in order to understand how LPS should respond to her son when he has difficulties with his behavior. However, she testified that with respect to the classroom observation and the functional behavioral assessment , she has two concerns – (1) immediately after the classroom observation as well as the observation component of the functional behavioral assessment, she wants to be able to meet with the observers and discuss with them their observations and what they believe Student’s difficulties to be; and (2) she objects to any of the following five LPS staff conducting any part of these two evaluations: Ms. Simpkins (Principal), Ms. Moulton (Social Worker), Ms. Hart (Classroom Teacher), Ms. Vitale (Reading Teacher) and Ms. Westaway (Assistant Administrator for Special Education).
Mother further testified that she objects to any LPS staff conducting either the psychological assessment or the academic assessment . She explained that the reason for this objection is that she does not trust LPS staff as she believes that they are pre-disposed to placing her son into a restrictive classroom for purposes of addressing his behavior – for example a classroom devoted to children with emotional and behavioral disabilities (EDBD). Mother explained that her distrust stems from her conversations with LPS staff (in particular, Ms. Simpkins) and from the manner in which LPS staff have responded to her son’s behavior. She testified that she does not believe suspensions are appropriate or helpful for any child and although she agrees that her son has engaged in inappropriate behavior, she believes that much of her son’s inappropriate behavior has been precipitated by either other children or inappropriate responses from LPS staff or her son’s frustration with academics. She explained, for example, that after Student had already received a time out and a suspension for the April 2, 2002 incident, Student was forced to miss a movie and a snack in the classroom, thereby precipitating Student’s tipping over a desk in the classroom. She noted other examples of what she believes to be inappropriate responses by LPS staff – such as calling the Lowell police to the school on several occasions because of her son’s behavior. She believes that her son feels singled out and treated unfairly, and that these feelings make his behavior worse.
Mother testified that in January 2002, LPS first requested her consent for the evaluations and 30 days later again requested her consent; Mother refused consent on both occasions. She explained that at the April 25, 2002 meeting with LPS, she was told by LPS staff that if she objected to particular LPS staff persons conducting part or all of her son’s evaluation, LPS would assign other staff to do the evaluations.
Mother testified that at her request, Children’s Hospital in Boston has recently (April 2002) begun academic testing of her son, and she is arranging for a private psychologist to conduct a psychological assessment of her son. On the basis of what Children’s Hospital has reported so far, she believes that her son has not made significant academic progress during the current or previous academic years.
Mother testified that she pursued obtaining a mentor for her son through Excel Home Care in order to provide her with information as to what is happening with her son in the classroom (including what is provoking his behavior) and to help her son handle any difficult situations in school and possibly to tutor her son over the summer. She noted that through her insurance coverage, she would pay for the mentor program. She noted that the only assessments performed by LPS to date were the initial education assessments in September 1999, prior to her son attending the McAuliffe School.
Mother testified that she attended the April 12, 2002 meeting that was requested by LPS so that LPS staff could review the mentor proposal and could meet the person who would be Student’s mentor. Mother noted that there was no formal notice that this was a Team meeting and that Susan Smith (LPS Evaluation Team Chairperson) would have been at the meeting had it been a Team meeting. Mother stated that neither during nor after the meeting did she believe that it was a Team meeting.
Mother testified that at the end of the meeting, it was agreed that Excel would provide mentor services to Student at the McAuliffe School, the mentor was brought into Student’s classroom and introduced to the children, and the mentor spent time with Student every day of school vacation (which was the week following the meeting); but on the Friday of school vacation week (April 19, 2002), Ms. Morelli from Excel called to say that LPS had changed its mind and would not allow Excel to provide mentor services at LPS.
Mother testified that her son’s behavior varies but has improved over the past two months; he has not been suspended since early April 2002 although there were two incidents last Friday. She noted that her son does not like to be singled out for services.
· Lynda Morelli testified that she has been employed by Excel Home Care for one year as a registered nurse.
Ms. Morelli testified that in April 2002 she was involved in setting up a mentor program for Student, as she has done for other children at LPS and within two other school districts. She explained that the mentor program for Student was not for the purpose of developing a behavior plan for Student but rather to provide intervention (through the mentor) to keep him calm and to remove him from any situation (as necessary) in order to keep him and others safe. She noted that the mentor assigned to Student is trained and certified in restraint as well as non-intrusive interventions. She testified that she did a nursing evaluation of Student which consisted of talking to his pediatrician (Dr. Chen), his therapist (Mr. John Marshall) and Mother, as well as reviewing papers provided by Mother.
Ms. Morelli testified that within the classroom, the mentor would not be under the supervision or control of the classroom teacher (Excel would not be hired by or under contract with LPS), and that the mentor would be the one to decide if and when Student needed to be removed from the classroom. She explained that although the mentor program is most similar to a 1:1 paraprofessional dedicated to Student, the mentor program is separate from and therefore not part of the special education and IEP process, and Excel has no responsibility to Student under the IEP. Ms. Morelli noted that she is not educationally trained. She explained that the mentor program is purely to address the concern regarding the safety of Student and others in the school.
Ms. Morelli testified that the April 12, 2002 meeting was not an IEP meeting, but rather for the purpose of helping LPS staff understand what the mentor program would entail and to ensure that everyone was in agreement with the mentor program going forward. She stated that at the end of the meeting, everyone agreed to proceed with the mentor program, and the mentor spent about 40 hours with Student during vacation week to develop a relationship with him, but on April 19, 2002, Diane Porter (the owner of Excel) was called by Susan Duggan (LPS Assistant Superintendent) who told her that Excel would not be allowed to provide services at LPS.
· Pamela Simpkins testified that she has been the Principal of the McAuliffe Elementary School for the past ten years. She explained that she has gotten to know Student through disciplinary referrals and Team meetings that she has attended. She believes that Student has poor impulse control, and she is aware that he has been physically aggressive (kicking, grabbing, throwing chairs, desks and boxes) at children and staff (including her). She noted that Student has been suspended this academic year 8 times for a total of 9 days.
Ms. Simpkins testified that she has been called about 6 times this academic year as a result of Student’s physical aggression. She noted that sometimes he runs away, hiding in a locker or running out of a building. She testified that the parents of approximately 6 other children have expressed concern that their children may be in danger from Student and that he is interfering with the education of their children. She is also aware from teachers that Student has refused educational services. She explained that Student’s behavior episodes have been more violent this year, compared to last year, although she also noted that his behavior varies and has generally been better more recently.
Ms. Simpkins testified that in January 2002, she discussed with other LPS staff the need to do Student’s three-year re-evaluation sooner than it would normally be scheduled (September 2002), and she spoke with Susan Smith (the LPS ETC) to begin the process of seeking Mother’s consent in early February 2002.
Ms. Simpkins testified that the April 12, 2002 meeting was called by her, not as an IEP meeting, but rather as her attempt to see if something could be put in place in the building as a temporary measure while waiting for LPS special education services to determine what should be done to address Student’s behavioral needs. She explained that the purpose of the meeting therefore was to see if there could be agreement on something to create a climate of safety in the classroom, to help ensure that Student’s behavior would not interfere with the education in the classroom, and to accommodate Mother. She noted that although those at the meeting agreed to proceed with a mentor from Excel, soon after the meeting, she spoke with Susan Duggan (LPS Assistant Principal) who raised significant concerns with using Excel in LPS, and a week later Ms. Duggan informed Ms. Simpkins that Excel would not be allowed to provide services within LPS.
· Susan Smith testified that she has been the Evaluation Team Chairperson (ETC) at LPS for 12 years, and has worked with Student in this capacity for the past two years. She noted that in this capacity she sends outs notices of Team meetings and she chairs Team meetings.
Ms. Smith testified that LPS staff have been concerned about Student’s behavior and whether services this year are meeting his needs. She explained that LPS has evaluated Student only through his initial assessment for special education services in 1999, prior to his attending the McAuliffe School.
Ms. Smith testified that she issued consent forms to Mother dated January 30, 2002 for the proposed evaluations, she re-issued the consent forms 30 days later, and she called Mother on March 5, 2002 to discuss her consent to the evaluations and to answer any questions that Mother might have regarding the proposed LPS evaluations. She stated that the consent forms identify and explain each evaluation for which consent is sought.
Ms. Smith testified that she sent a memo to Ms. Westaway recommending that LPS proceed to the BSEA to gain approval for the evaluations when it became clear that Mother would not consent to the evaluations. Her Interoffice Memorandum to Deborah Westaway dated March 5, 2002, reflects LPS’s attempts to obtain Mother’s consent to a three-year re-evaluation of Student, and Mother’s refusal to give consent. Exhibit S-3.
Ms. Smith testified that at the meeting with Mother and her attorney on April 25, 2002, she explained each assessment in detail and told Mother that she (Ms. Smith) would be inclined not to use as an evaluator any person to whom Mother objected.
· Mindy Booth testified that she has been employed by LPS for 28 years as a special education teacher, and has a Masters Degree in special education. She explained that she began providing special education services to Student in December 2001, principally to provide support in language arts, with some math support. She testified that initially, at Mother’s suggestion, she pulled Student out of his regular education classes to provide him special education support and after 2 ½ weeks, he was making progress. She explained that Mother then asked that Student not be singled out for services, and Student’s services were changed accordingly. Ms. Booth testified, however, that she believes that Student needs direct services to make progress.
Ms. Booth also testified that Student has been refusing educational services, and this is of significant concern. She prepared a Special Education Services Report for Student for the period 12/17/01 through 4/26/02 which indicates that services were offered and provided through 1/10/02; but beginning 1/11/02 and continuing through 4/26/02, Student generally either was not in class or refused services. Exhibit S-4.
A Progress Report, dated April 9, 2002, prepared by Ms. Booth, notes improvement in some academic areas but not in others, and further explains that Student’s progress continues to be limited because he is not accepting special education instruction. Exhibit S-5.
Ms. Booth testified that prompt re-assessment of Student is important in light of Student’s refusing services and in light of his behavior difficulties – LPS needs to find out whether Student has additional disabilities or deficits that should be addressed, whether more could be learned about his learning style, whether more could be learned about his behavior difficulties, and whether LPS should be using different educational or behavioral approaches with Student.
Ms. Booth testified that she attended the April 12, 2002 meeting which, in her opinion, was not an IEP meeting, but rather the Principal’s meeting to discuss and learn more about the Excel mentor program. She noted that had it been an IEP meeting, she or Ms. Smith would have called the meeting, there would have been a special education attendance sheet and special education services would have been discussed. Ms. Booth explained that she has concerns as to whether it would be helpful to Student to single him out with the 1:1 services of a mentor.
· Catherine Hart testified that she has been the 3 rd grade teacher at LPS for the past five years, and previously was a paraprofessional working with special education children for five years. She explained that Student is in her class this year and that his behavior has been unpredictable – on good days, he is fine, but on other days, he can very quickly become violent. She testified that she has observed Student being violent with other children, sometimes in response to an altercation between Student and another child and sometimes apparently without a precipitating event.
Ms. Hart testified that as part of her journal, she wrote an April 5, 2002 note and shared these concerns with the Principal and the ETC (Ms. Booth). The note explained that Student’s most recent behavior episodes appear to be less frequent than in the past, but more violent. She also wrote in the note that over the past year, Student has assaulted eight children in her classroom; the children are “clearly afraid of him”; “[a]t this point I fear for the safety of my students as well as [Student’s] safety.” Exhibit S-2.
A note prepared by Ms. Hart, dated April 10, 2002 as part of her journal, indicates that Student “ran into the classroom he picked up his desk and threw it across the room nearly hitting two of the students. He then picked up the chair and threw it almost hitting Mrs. Vitale. During this episode he was using very foul language.” Exhibit S-2.
At the request of Mother, Ms. Hart also wrote daily Memorandums to keep Mother informed of what was occurring in the classroom. These notes reflect the following: Student became angry and ran down the hall, tearing children’s school work off the walls (2/5/02); Student pushed another child “causing him to slam his head against the desk” (3/20/02); Student pushed another child, causing him to bang his face; after lunch, words where exchanged between Student and another child, and Student grabbed him by the shirt and would not let go; Student received a time out (4/2/02). Exhibits S-2, P-4.
Ms. Hart testified that in her opinion, Student has not made academic progress this year because of his refusal of educational services and because of his behavior difficulties.
She also noted that most children in her classroom are afraid of him.
· Susan Vitale testified she has been employed by LPS as a Title I reading teacher at the McAuliffe School since January 2, 2002. She noted that she is certified in special education and has a Masters Degree in reading.
Ms. Vitale testified that since January 2, 2002, Student has participated in two groups that she has led – one involving the whole class and the other a smaller, guided reading group. She noted that when Student participates in the guided reading group (which is the majority of the time that he is present), his comprehension is excellent and he has great enthusiasm.
Ms. Vitale testified that the one instance (April 2, 2002) that he acted out in her class is described in her note from April 2, 2002. The note stated that during guided reading group, Student refused to join the group, and he and another child began calling each other names (e.g., “you’re in kindergarten”). Ms. Vitale explained in the note that she asked the other child to ignore Student, and the child moved his chair farther from Student. The note then states: “Without warning, [Student] leaped across the desk and put both hands around [the child’s] neck. [The child’s] face became bright red and I had to pry [Student’s] fingers off of [the child]. When [the child] was released from [Student’s] grip he staggered backwards and almost fell over.” The incident was described as terrifying to the other children, with several children repeating that they thought that the child was going to die. A Suspension Notice of April 5, 2002, signed by the Principal, called for suspension of Student for two days as a result of this incident. Exhibit P-5. Ms. Vitale testified that she checked on the child (who had been attacked by Student) later in the day when he was at the nurse’s office, and learned that the child was not injured.
Ms. Vitale testified that she has observed Student acting out in the cafeteria. She opined that his behavioral difficulties in class appear to stem, at least in part, from what has happened to him earlier in the day – for example, during lunch which immediately precedes her class with Student.
Ms. Vitale testified that Student “desperately” needs to develop specific skills with respect to language arts.
· Marianne Bond testified that she has been the Assistant Principal at the McAuliffe School since 1993. She explained that she attended the December 19, 2001 Team meeting and the April 25, 2002 meeting. She noted that John Marshall attended both meetings; at neither meeting did he offer any suggestions regarding strategies to address Student’s behavior.
· Deborah Westaway testified that she has been the LPS Assistant Administrator for Special Education since August 2001, was previously an LPS school psychologist for 14 years, has taught special education for 9 years and regular education for 2 years. She noted that she is responsible for special education within the LPS elementary schools, including McAuliffe School. She explained that in her current position, she oversees implementation of IEPs and evaluations.
Ms. Westaway testified that Student first came to her attention at the end of November 2001 when he was suspended; she was next aware of Student when the number of days suspended this year reached 9 and it was determined that a manifestation determination should be done (to determine the connection, if any, between Student’s disabilities and his behavior).
Ms. Westaway testified as to her concerns regarding the safety of Student and other children, as well as whether his IEP and current services are appropriate.
Ms. Westaway testified that the April 12, 2002 meeting was not an IEP meeting – if it had been, a notice would have been sent out by the Special Education Liaison (Ms. Booth) or the ETC (Ms. Smith) and one of these two people would have chaired the meeting.
Ms. Westaway testified she has the following concerns regarding the mentor program proposed by Excel: Excel did not perform any significant evaluation before proposing a plan; a functional behavior evaluation and/or a psychological assessment is needed first in order to understand better Student’s behavior; and Student’s behavior may escalate (and it may not be in his best interests) if inappropriate intervention occurs.
Ms. Westaway testified that at the April 25, 2002 meeting, Susan Smith (the LPS ETC) went through each proposed assessment, explaining all of them to Mother and her attorney, with dialogue back and forth between Ms. Smith, Mother and her attorney; and copies of some of the assessment instruments were provided to Mother. She noted that at the meeting, LPS offered not to use any LPS staff (as evaluators) to whom Mother objected. Ms. Westaway noted that it was agreeable to LPS that all five of the persons named by Mother (in her testimony) as unacceptable (for purposes of conducting the classroom observation and the functional behavior assessment) would not be used by LPS to perform these two evaluations.
Ms. Westaway explained the eight assessments/evaluations proposed by LPS:
1. Educational assessment : classroom teacher reports on how Student functions in the classroom.
2. Educational status : history of attendance and academics.
3. Special education academic assessment : information regarding his learning style, strengths, weaknesses, and at what grade level he is functioning.
4. Classroom observation : observation to document any specific learning disability (there is also a classroom observation component of the functional behavioral assessment).
5. Psychological assessment : information regarding cognitive, emotional and behavioral functioning.
6. Social history : history from parents as well as school history to reflect how child functions at school and at home.
7. Functional behavioral assessment : performed by a group of assessors, including social worker, psychologist and those currently working with the child, for the purpose of developing a list of the child’s behaviors, determining the function of each behavior, and developing a plan to replace maladaptive behaviors with appropriate behaviors.
8. Occupational therapy evaluation : assess fine motor functioning and strength.
Ms. Westaway testified that the evaluations are likely to provide a significant amount of new information that will be helpful in determining how to respond to Student to address his behavioral and educational issues. She also noted that it is suspected that Student may have an emotional disability and if so, the evaluations will help LPS determine what services and interventions would be helpful to Student to address this disability.
· School Bus Incident Reports reflect the following: refused to remain in seat, sat on floor and punched seats (9/18/01); would not sit still and hit boy in front of him (9/19/01); grabbed a first grader by the neck and would not let go (9/26/01); and Student and another child got into an argument and said “nasty things” about their mothers (10/18/01); refused to remain seated, throwing objects and unacceptable language (1/22/02); pushing and shoving between Student and another child (1/23/02); failure to remain seated (1/24/02). Exhibit S-2.
· Disciplinary Referrals from Student’s teachers reflect the following: fighting (9/27/01); fighting in bus line (10/16/01); brought a toy (cap) gun to school and showed it at recess (10/18/01); fighting (wrestling) (11/15/01); swearing (11/16/01); defiance and talking back (“extremely rude and disrespectful in bus line”) (11/20/01); “pushed [a child] on floor” (12/21/01); pushing and punching another child “with incredible force” (1/16/02); pushing other children, kicking feet out” and refusing to return to his place in line (1/17/02); Student punched another child in the back (1/24/02). Exhibit S-2.
· A Suspension Notice of December 6, 2001, signed by the Principal, calls for suspension of Student for one day. Attached to the Notice is a note entitled “Bus Duty” and dated 12-6-01, explaining that while he was watching the bus line, Student kicked another child “with full force (side kick), right in the stomach. She doubled over immediately in pain.” Exhibit S-2.
· A Suspension Notice of January 29, 2002, signed by the Principal, calls for suspension of Student for two days. Attached to the Notice is a Disciplinary Referral from Mrs. Hart (Student’s teacher) which explains that another child accidentally stepped on Student’s shoe, and Student then punched him in the stomach; threw a chair against the wall; threw wet wads of paper on the floor and at the principal in the boys room; refused to leave the boys room to got to the social worker’s office; repeatedly kicked and hit the assistant principal, principal and social worker; and yelled obscenities in the hall. A Physical Restraint Report Form dated January 29, 2002 further documents this incident. Exhibits S-2, P-2.
· A Suspension Notice of March 6, 2002, signed by the Principal, calls for suspension of Student for one day for possession of a dangerous weapon. A Suspension Notice of March 7, 2002, signed by the Principal, calls for suspension of Student for one day for destruction of school property. A social worker’s note (Kristin Moulton) explains that on March 6, 2002, Student brought a weapon to school. The note explains that the social worker asked Student to walk with her to her office, which he did, and the social worker called Mother to ask that she take Student home; Student then became very upset because he did not want to miss gym. The social worker’s note further explains that on March 7, 2001 [sic] Student’s teacher came to the social worker’s office to say that Student had an incident and needed the social worker’s help. The note explained that Mother was called and shortly after Mother’s arrival, Student became very upset and rageful, not wanting to leave school; Mother took Student home. Exhibits S-2, P-3.
· A letter from Mother’s attorney (Mr. Pratt) to the McAuliffe School Principal (Ms. Simpkins), dated April 12, 2002, objects to Ms. Vitale’s note (see Exhibit P-5) and describes efforts made to arrange for a mentor for Student. Exhibit P-6.
· A letter from Raymond Cavanaugh, MD, to Mother, dated April 25, 2002, explains that he began seeing Student on April 4, 2002 on referral from Student’s therapist (John Marshall), and saw Student again on April 16, 2002. In his letter, Dr. Cavanaugh concludes that Student has an anxiety disorder and that his attendance at school has improved so that this year Student is “no longer a school refusal student”. The letter continues: “However, he has been conflicted about what he, at least, sees this year as unfair discipline – singling him out. This has resulted in a, perhaps, preventable adjustment disorder with oppositional defiant traits. Hopefully, the school will either revise its disciplinary approach to him or provide a smaller setting.” Exhibit P-7.
· A letter “To Whom It May Concern” dated April 18, 200d from John Marshall explains that he has been Student’s therapist “over the past year” at South Bay Mental Health Center. The letter explains that initially Student was having difficulty attending school, but with the help of Paxil, “that problem has improved quite a bit.” The letter notes that within the past two months or so, there has been an increase in impulsive behaviors that have led to suspensions. In his letter, Mr. Marshall opines “from [Student’s] report, as well as his mother’s, that it does appear that the classroom environment and school staff have, at time, escalated Student’s emotional responses, rather than diminish them, causing outbursts and unacceptable behavior.” Exhibit P-8.
· A letter to Mother’s attorney dated May 28, 2002 from John Marshall states that Mr. Marshall first became involved as Student’s therapist due to his school refusal last school year, which has for the most part been resolved. Mr. Marshall explained that this school year, he has been working with Student on coping skills and strategies to help him calm himself down in stressful situations, with Student being successful in implementing some of these skills at times, and at other times he has not been successful. Mr. Marshall states that he believes that Student “wants to go to school and now feels that whatever he does, it is not good enough. He is a very frustrated young boy.” Mr. Marshall notes his experience with Excel with other children and feels that Student “would greatly benefit from this service. [Student] needs someone who can sit with him, and help him process not only his academic work, but more importantly his responses to teachers and peers, and find ways of deescalating himself when angry or anxious.” Exhibit P-9.
D. FINDINGS AND CONCLUSIONS
Student is an individual with a disability, falling within the purview of the Individuals with Disabilities Education Act (IDEA)1 and the state special education statute.2 As such, he is entitled to a free appropriate public education.3 Neither his status nor his entitlement is in dispute.
The present dispute includes two Requests for Hearing which were consolidated and heard together, each raising a separate but related issue. The issue presented by the School District is whether LPS may proceed with the three-year re-evaluation over the objection of Mother. The issue presented by Mother is whether Student is entitled to receive certain mentor services provided by Excel Home Care. I will first address the re-evaluation issue, and then Student’s claims regarding mentor services.
1. Consent to Three-year Re-evaluation .
LPS seeks to conduct a three-year re-evaluation of Student, to include the following eight assessments:
1. Educational assessment;
2. Educational status;
3. Special education academic assessment;
4. Classroom observation;
5. Psychological assessment;
6. Social history report;
7. Functional behavior assessment;
8. Occupational therapy evaluation.
The Individuals with Disabilities Education Act and the regulations thereunder make it clear
that a school district may seek to evaluate or re-evaluate a student pursuant to the informed consent of the parents. However, if the parents refuse to give informed consent, the federal statute and regulations further provide that the school district may then seek approval of a Hearing Officer, “except to the extent inconsistent with State law relating to parental consent.”4
Pursuant to Massachusetts special education regulations, parents only retain the right to refuse consent to an initial evaluation.5 It is agreed that the evaluation sought by LPS is a re-evaluation, rather than an initial evaluation.
Having determined that I have the authority to give LPS permission to conduct its requested evaluation, I now turn to the question of whether such permission should be granted in this particular case.
In extending to BSEA Hearing Officers the authority to order evaluations by a school district, the state special education regulations have included the standard that must be met for a Hearing Officer to order an evaluation over the objection of parents:
The Special Education Appeals hearing officer shall have the power and the duty . . .
to order additional evaluations by the school district or independent educational evaluations at public expense when necessary in order to determine the appropriate special education for the student .6
I will therefore consider whether this standard has been met.
Student is ten years old (date of birth 3/31/92) and attends the 3 rd grade at the McAuliffe School which is a public elementary school in Lowell.
During this current academic year, Student has engaged in inappropriate behavior, including physical aggression, leading to eight separate suspensions for a total of nine days. The behavior has included violence against other children, as well as staff, which has caused teachers as well as other children to be concerned about the safety of the classroom. For example, Student’s 3 rd grade teacher reported that Student has assaulted eight children in her classroom and on April 5, 2002, she wrote that she feared for the safety of her children, including Student. During one particularly frightening incident in the classroom on April 2, 2002, Student, without warning, “leaped across the desk and put both hands around [the child’s] neck.” The child’s face became “bright red” and the teacher had to pry Student’s fingers off of the child’s neck. The incident was described as terrifying to the other children, with several children repeating that they thought that the child was going to die.7 Outside of the classroom, there has also been physical aggression in the bus line on multiple occasions. Testimony of Vitale, Hart, Simpkins; Exhibits S-2, P-2 through P-5. It also should be noted, however, that over the past two months or so (since the April 2 nd and April 10 th incidents described above), Student’s behavior in school appears to have improved, with no significant behavior episodes resulting in suspension. Testimony of Mother.
Although the School District provided the majority of the written and oral evidence describing Student’s behavior difficulties, Mother in her testimony did not dispute that Student has on multiple occasions acted inappropriately (including physical aggression) at school. Mother argues, however, that much of Student’s behavior has been precipitated by inappropriate responses from LPS teachers and staff, or failure of LPS staff to intervene appropriately, and Student has felt that he is being singled out and treated unfairly. Student’s feelings are similarly described in letters from his therapist, Mr. Marshall, and psychiatrist, Dr. Cavanaugh. Testimony of Mother; Exhibits P-7, P-9.
Although LPS disputes any allegations that its staff have acted inappropriately, LPS is in agreement with Mother to the extent that its teachers and staff testified consistently that too little is known about Student’s behavior, what causes his behavioral difficulties and what responses to his behavior (by LPS staff) are helpful and what responses are not. Testimony of Westaway, Booth, Smith, Simpkins.
This school year has also been a difficult one for Student from the perspective of his academic work. From 1/11/02 through 4/26/02 Student was generally either not in class or refused educational services. Mother and Ms. Hart (Student’s 3 rd grade teacher) agree that this year, Student has not made significant academic progress. Testimony of Booth, Hart, Simpkins, Mother; Exhibit S-4.
Mother and LPS are also in agreement that more needs to be known regarding any possible deficits Student might have that may be negatively impacting his education. LPS staff testified, for example, that more needs to be known about his learning style and whether Student may have an emotional disability that may be impacting upon his learning, so that additional or more appropriate services could be offered by LPS. Mother is similarly concerned about the need to find out more about her son’s learning needs. Testimony of Mother, Westaway, Booth, Smith, Simpkins.
For these reasons, Mother and LPS agree that it is imperative that evaluations occur as soon as possible in order to provide comprehensive, current information regarding Student’s behavior and academic needs. And, both parties are in agreement that all eight of the evaluations proposed by LPS should occur.
I concur that the eight evaluations proposed by LPS should occur. There is no question that the regulatory standard (evaluations “necessary in order to determine the appropriate special education for the student”8 ) has been met.
Although Mother has agreed that the evaluations should occur, she has not agreed that they should all occur in the manner proposed by LPS. I will review each of her concerns.
Mother has agreed that the educational assessment, educational status, social history report and occupational therapy evaluation may proceed as proposed by LPS.
Mother has placed conditions on the classroom observation and functional behavior assessment, (1) asking to be told, prior to the observation/assessment, the names of the LPS staff involved (as she objects to certain LPS staff conducting these evaluations), and (2) also asking to review the results with the evaluators immediately upon completion of the observation/assessment.
LPS has, in effect, satisfied the first of these two concerns. The substance of Mother’s first concern is that she does not want particular LPS staff to be involved in the observation of her son. LPS made it clear at a meeting on April 25, 2002 with Mother that it would agree not to use any LPS staff to whom Mother objected. At the Hearing, Mother identified through her testimony the particular LPS staff (five of them) to whom she objected, and LPS’s attorney and staff agreed at the Hearing that it would not use any of these five LPS staff persons identified by Mother. Testimony of Mother, Westaway. Mother has identified no other interest in knowing ahead of time the names of the LPS staff conducting the evaluations.
LPS has not agreed to abide by Mother’s second concern – that is, Mother asks that she be allowed to meet with the evaluators immediately upon completion of their observation of Student to discuss their observations and conclusions. At the Hearing, LPS’s attorney offered, instead, to allow Mother to meet with these evaluators after the evaluators have had sufficient opportunity (at least two or three hours) to process their observations and consider their conclusions.
Mother has provided me with no legal authority in support of her position, and I am not persuaded that she has the right of immediate access to the evaluators. To the extent that Mother may have a legitimate interest in speaking with the evaluators who observe her son, I find that this interest is satisfied by LPS’s offer, as described above.
In addition, Mother has refused permission for LPS to perform the special education academic assessment and the psychological assessment unless the testing is done by New England Medical Center or by another organization (other than LPS) that is agreeable to her. In support of this position, Mother has argued that an evaluation by any LPS staff would be pre-disposed towards recommending placement of her son into a restrictive environment for purposes of addressing his behavior. Testimony of Mother.
In support of her claim of bias, Mother cites to the manner in which LPS staff have responded to her son’s behavior. A particular example illustrates Mother’s concern. In response to the April 2, 2002 incident (described above), Student was first given a time out, and then suspended for two days. Mother testified that upon returning to the classroom, Student was also denied the opportunity to see a movie and have a snack (in effect, a third discipline for the same incident), which Mother believes then precipitated further behavior problems in the classroom. Mother might be correct that LPS staff may have acted in a way that was not helpful or appropriate to her son’s situation, but I find that any shortcomings in this regard were due to lack of information (when the time out occurred, the Principal did not understand the severity of the April 2 nd behavior) or LPS staff not yet knowing enough about Student and his behavior (denial of a movie and a snack arguably triggered further inappropriate behavior), rather than any bias or predisposition regarding Student and what special education services should be provided to him. Similarly, I can find no evidence of bias or predisposition within the other disciplinary actions taken by LPS.
Mother has also pointed to one statement (made by Ms. Simpkins) which Mother believes indicates a bias by LPS to place her son into a behavior program. But, Ms. Simpkins’ testimony explaining this statement, and her intentions behind it, were persuasive that no bias may be attributed to Ms. Simpkins on the basis of this statement.9 Also, LPS in its closing written argument confirmed that neither Ms. Simpkins nor any of the other four LPS staff to whom Mother has specifically objected would be involved in the special education academic assessment or the psychological assessment.10
In addition and perhaps most importantly, I note that where a school district has a need to evaluate a student in order to determine his/her eligibility or need for services, courts and hearing officers have consistently affirmed a school district’s right to choose whom it wishes to conduct the assessment so long as the persons chosen are qualified to perform the evaluations.11
For these reasons, I conclude that Mother has no legal basis for insisting that certain evaluations be performed by persons not employed by LPS. LPS should be allowed to proceed with the eight evaluations as proposed by LPS in its Request for Hearing.
2. Student’s Right to Mentor Services from Excel Home Care .
Mother sought to arrange, through Excel Home Care, for a mentor for her son while he is at school. Lynda Morelli of Excel Home Care testified that the relationship between the mentor and Student is intended to help keep him calm, and the mentor would remove Student from any situation at school when the mentor determined it was necessary in order to maintain the safety of Student and others in the classroom. Thus, Ms. Morelli explained that the purpose of the mentor would be solely to address safety concerns at the McAuliffe School, although Mother testified that she also sought a mentor to provide her with information as to what is happening in the classroom when her son has behavioral difficulties.
The mentor services from Excel are related to Student’s special education needs. Student has significant behavior issues that have threatened the safety of the classroom, LPS staff have not yet determined how best to address Student’s behavior, and the mentor would arguably help make the classroom more safe for all concerned. The mentor services to be provided Student could be considered equivalent to a dedicated 1:1 paraprofessional – special education services that may be required, in an appropriate case, to address behavior and safety concerns. Notwithstanding the validity of these points, however, they are not sufficient for me to order the Excel mentor services as special education.
One can easily imagine a variety of services, including those of a dedicated 1:1 paraprofessional, that might help to keep Student and his classmates safe. But, state and federal special education law do not allow for choosing any service that might reach a desired result; rather they require that the services be designed to meet the student’s “unique” individual needs12 in the least restrictive environment.13 There has been no persuasive testimony that the mentor services are the appropriate services to address Student’s unique needs, nor has there been any evidence as to whether the mentor services would be the least restrictive intervention. For example, there was no testimony or documentary evidence (in support of mentor services for Student) from anyone with educational or behavioral expertise.14
As explained more fully above in part D1 of this Decision, there is no dispute that Student has had significant behavior difficulties this school year, and neither LPS nor Mother yet have a satisfactory understanding of how Student’s needs in this area may be addressed. But, determination of services for a special needs child follows a process of assessment sufficient to determine a child’s special education needs and how they can be addressed.15
The evaluations proposed by LPS are an essential part of this process. Similarly, Mother has not yet completed her process of private evaluations, and she submitted as evidence no evaluations or testimony from evaluators regarding the needs of her son. Providing services to Student prior to understanding his unique needs not only may result in ineffective services but may also result in services that are detrimental to Student’s education.16
I also note that n otwithstanding the obvious importance of addressing the behavioral and educational concerns as soon as possible, there was no evidence that since April 10, 2002, Student’s behavior has threatened the safety of other children or staff. I am unable to conclude that an emergency exists that would justify departing from the usual process of evaluation and consideration of what services are needed.
Mother argues that LPS’s process for reviewing the Excel mentor program at an April 12, 2002 meeting met the legal standards for a Team meeting at which a decision was made to provide the mentor services. Mother takes the position that once these services were agreed to at the April 12 th meeting, LPS has no choice but to implement them.
In support of this argument, Mother correctly points out that Mother and Student’s regular and special education teachers attended the April 12 th meeting, the meeting was intended to review and decide whether Excel would provide the mentor services, and after review of the proposed services, there was consensus among those attending that the Excel mentor services would be provided. Mother notes that it was only after the meeting that an LPS administrator (Susan Duggan, an LPS Assistant Principal) made a unilateral decision that Excel would not be allowed to provide services within the Lowell public school system.
There is some support for Mother’s position within the regulatory definition of “Team”.17 But, to conclude that this meeting was in fact a Team meeting or should otherwise have the same legal effect as a Team meeting would be to elevate form over substance.
It is not disputed that the Principal (Ms. Simpkins) called the meeting to review the proposal for Excel mentor services and to determine if there was agreement to proceed with these services as a temporary safety measure while waiting for LPS special education services to determine what should be done to address Student’s behavioral needs. Ms. Simpkins did not consider it to be a meeting to decide what special education services were to be provided Student. Testimony of Simpkins.
Those attending the meeting who testified at the Hearing (including Mother) agreed with Ms. Simpkins that the meeting was not (nor was it intended to be) a Team meeting. Testimony of Mother, Booth, Morelli.
It is also telling that the mentor services proposed by Ms. Morelli were considered by her to be outside of the special education and IEP process. Testimony of Morelli. Had this been a Team meeting, appropriate notice would have been issued, the ETC (Ms. Smith) would have attended the meeting, and the Special Education Liaison (Ms. Booth) or the ETC (Ms. Smith) would have chaired the meeting. Testimony of Westaway, Booth, Smith, Mother.
In other words, for me to conclude that the April 12 th meeting was a Team meeting, would be to take a meeting, appropriately called by the Principal to address safety issues within the building under her jurisdiction, and consider it to be a meeting to decide what special education services Student should receive pursuant to federal and state special education law. This would transform the meeting into something it was not.
For these reasons, I find that pursuant to state and federal special education law, Student has not established the right to receive the mentor services sought by Mother.
The Lowell Public Schools shall proceed with the eight evaluations as proposed in its Request for Hearing.
Student is not entitled to receive the mentor services sought by Mother in her Request for Hearing.
By the Hearing Officer,
Dated: June 7, 2002
COMMONWEALTH OF MASSACHUSETTS
BUREAU OF SPECIAL EDUCATION APPEALS
EFFECT OF BUREAU DECISION AND RIGHTS OF APPEAL
EFFECT OF DECISION AND RIGHTS OF APPEAL
The decision of the Bureau of Special Education Appeals is final and is not subject to further agency review. Because 20 U.S.C. s. 1415(i)(1)(B) requires the Bureau decision to be final and subject to no further agency review, the Bureau cannot permit motions to reconsider or to re-open a Bureau decision, once it is issued. Any party aggrieved by the Bureau decision may file a complaint in the 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). Under Massachusetts General Laws, Chapter 30A, Section 14(1), appeal of a final Bureau decision must be filed within 30 days of receipt of the decision.
Except as set forth below, the final decision of the Bureau must be implemented immediately. Under 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 seek 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,” 20 U.S.C. s. 1415(j). 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. Doe v. Brookline , 722 F.2d 910 (1st Cir. 1983); Honig v. Doe , 484 U.S. 305 (1988).
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 M.G.L. c.30A, ss. 11(6) and 14(4), an appealing party seeking a certified written transcription of the entire proceedings, must arrange for the transcription, or portion thereof, by a certified court reporter, at his/her own expense. Transcripts prepared by the party must then be submitted to the Bureau of Special Education Appeals with appropriate court reporter certification for final review and certification. A party unduly burdened by the cost of preparation of a written transcript of the sound recordings may petition the Bureau of Special Education Appeals for relief.
A party contending that a decision of the BSEA is not being implemented may file a complaint with the Department, whose responsibility it shall be to investigate such complaint. 603 CMR s. 28.00, par. 407.0.
In addition, the party shall have the option of filing a motion with the Bureau of Special Education Appeals, requesting the Bureau to order compliance with the decision. The motion shall set out the specific area of alleged non-compliance. The Hearing Officer may convene a hearing at which the scope of inquiry will be limited to facts bearing on the issue of compliance, facts of such nature as to excuse performance and facts bearing on a remedy. Upon a finding of non-compliance, the Hearing Officer may fashion appropriate relief and refer the matter to the Legal Office of the Department of Education for enforcement.
In order to preserve the confidentiality of the child 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.
NOTICE OF REVISED BUREAU PROCEDURES
The United States Department of Education, Office of Special Education Programs (OSEP) in its 1990 Monitoring Report, issued July 17, 1991, ordered the Bureau to amend its procedures to eliminate the availability of reconsideration or re-opening as post-decision procedures in the Bureau cases. Accordingly, parties are notified that the Bureau will not entertain motions for reconsideration or to re-open. Bureau decisions are final decisions subject only to judicial review.
In addition, parties should be aware that the federal Courts have ruled that the time period for filing a judicial appeal of a Bureau decision is thirty (30) days, as provided in the Massachusetts Administrative Procedures Act, M.G.L. c.30A. See, Amann v. Town of Stow , 991 F.2d 929 (1 st Cir. 1993); Gertel v. School Committee of Brookline , 783 F. Supp. 701 (D. Mass. 1992). Therefore, an appeal of a Bureau decision to state superior court or to federal district court must be filed within thirty (30) days of receipt of the Bureau decision by the appealing party.
20 USC 1400 et seq .
MGL c. 71B.
The applicable legal standard of maximum possible educational development changed to a FAPE standard effective January 1, 2002. MGL c. 71B, s. 2. Since the IEP was developed and proposed by LPS in calendar year 2001, the maximum feasible development standard presumably would apply. However, I note that the analysis and conclusions of this Decision are identical under either the maximum feasible benefit standard or the FAPE standard.
20 U.S.C. 1414(a)(1)(C)(ii); 34 CFR 300.505(b).
603 CMR 28.04(2). The state special education regulations also give the school district the right to request a hearing regarding evaluations. 603 CMR 28.08(3).
603 CMR 28.08(5)(c) (emphasis supplied). See also 603 CMR 28.07(1)(b) (“If, after consideration, the school district determines that the parent’s failure or refusal to consent [to re-evaluation of student] will result in a denial of a free appropriate public education to the student , it shall seek resolution of the dispute through the procedures provided in Section 28.08 of these regulations.”) (emphasis supplied).
Although there were conflicting written documents regarding this incident, the testimony of Ms. Hart and Ms. Vitale made clear that Ms. Vitale (not Ms. Hart) witnessed the incident; I find Ms. Vitale’s written report and testimony regarding the incident to be credible; and I therefore rely on Ms. Vitale’s description of the incident.
603 CMR 28.08(5)(c), discussed above.
Mother testified that Ms. Simpkins told her that her son needed to be placed outside of the McAuliffe School. Ms. Simpkins testified that after the evaluations, service and placement options would be considered by LPS (through the Team process).
LPS closing argument, at par. 9.
Andress v. Cleveland Independent School District, 64 F. 3d 176, 178 (5th Cir. 1995) (school district has the right to reevaluate a student using its own personnel); Dubois v. Connecticut State Board of Education, 727 F. 2d 44, 48 (2nd Cir. 1984) (school system may insist on evaluation by qualified professionals who are satisfactory to the school officials); Vander Malle v. Ambach, 673 F.2d 49, 53 (2nd Cir. 1982) (school is entitled to have student examined by qualified psychiatrist of their choosing); In re Marblehead Public Schools , BSEA # 00-1620 (SEA MA 2001) (school district allowed to re-evaluate student utilizing its own personnel); In Re: Ventura Unified School District , 33 IDELR 80 (SEA CA 2000) (school district has right to choose who will conduct assessments); In re: Ipswich Public Schools , BSEA # 99-3736 (SEA MA 2000) (allowing the school district to conduct their own evaluation of student); In re: Boston Public Schools , BSEA # 99-4652, 5 MSER 144 (SEA MA 1999) (authorizing school district to choose a clinician to conduct a clinical interview of student). But see Holland v. District of Columbia , 71 F.3d 417 (DC Cir. 1995) (a school district does not have an “absolute right to conduct its own evaluation of a child with a disability”) (dicta).
20 USC 1400(d)(1)(A) (purpose of the federal law is to ensure that children with disabilities have FAPE that “emphasizes special education and related services designed to meet their unique needs . . . .”); 20 USC 1401(25)(“special education” defined to mean “specially designed instruction . . . to meet the unique needs of a child with a disability . . .”); Honig v. DOE , 484 U.S. 305, 311 (1988) (FAPE must be tailored “to each child’s unique needs”); Amanda J. v. Clark Cty. Sch. Dist , 35 IDELR 65 (9 th Cir. 2001) (“FAPE must be ‘tailored to the unique needs of the handicapped child’”); Houston Independent School District v. Bobby R. , 200 F.3d 341 (5 th Cir. 2000) (“IDEA requires tailoring to the unique needs of the handicapped child by means of an IEP”); Adams v. State of Oregon , 31 IDELR 130 (9 th Cir. 1999) (amount of service hours must be “linked to the child’s unique needs”); Walczak v. Florida Union Free School District , 142 F.3d 119 (2 nd Cir. 1998) (services must be “tailored to meet the unique needs of a particular child”); Lenn v. Portland School Committee , 998 F.2d 1083 (1 st Cir. 1993) (“appropriateness requires that the instructional plan be custom tailored to address the handicapped child’s ‘unique needs’”); JSK v. Hendry County School Board , 941 F.2d 1563 (11 th Cir. 1991) (“[a]dequacy must be determined on a case-by-case basis in light of the child’s individual needs”); Burlington v. Department of Education , 736 F.2d 773, 788 (1 st Cir. 1984) (educational instruction must be based on the “unique needs of the disabled child” with sufficient support services so that the child will benefit from that instruction); 34 CFR § 300.26 (“the term special education means specially designed instruction . . . to meet the unique needs of a child with disability . . .); 34 CFR 300.300(3)(ii) (“services and placement needed by each child with a disability to receive FAPE must be based on the child’s unique needs and not on the child’s disability”); 603 CMR 28.02 (21) (“ special education shall mean specially designed instruction to meet the unique needs of the eligible student . . .”). See also Mass . DOE Advisory SPED 2002-1 (school districts must “focus on the unique needs and strengths of the individual student through the Team evaluation and IEP process”).
20 USC 1412(5)(A); 34 CFR 300.550; MGL c. 71B, ss. 2, 3; Roland v. Concord School Committee , 910 F.2d 983 (1 st Cir. 1990) (“Congress’ stated preference requires . . . that education of the handicapped occur in ‘the least restrictive environment’”).
The only evidence that might support a finding that these services would address Student’s needs was the testimony of Ms. Morelli and a letter from Mr. Marshall. Ms. Morelli testified that she had completed a nursing evaluation to determine the appropriateness of Student for mentor services, but Ms. Morelli provided no basis from which one could conclude that she has either the appropriate expertise or sufficient information regarding Student to determine his unique individual needs and how they should be addressed. No written evaluation or behavior plan was submitted into evidence, and Ms. Morelli testified as to her lack of educational expertise. Mr. Marshall’s letter states that from his experience with Excel and other children who have used their services, he believes that Student would benefit from the Excel mentor services. Mr. Marshall’s letter provides insufficient foundation as to the extent of Mr. Marshall’s expertise, knowledge of Student or knowledge of Excel, nor does it explain in detail the reasons for his conclusion. Mr. Marshall’s letter, prepared at the request of Mother’s attorney in anticipation of litigation, was not subject to cross examination by LPS or questioning by the Hearing Officer. Accordingly, I consider Ms. Morelli’s testimony and Mr. Marshall’s letter, but give them little weight. Exhibit P-9.
See generally 603 CMR 28.04 and 28.05.
LPS staff raised the possibility that providing Student with a 1:1 mentor may not be in his best interests. Singling out Student for special education services has been difficult for him. Also, without a functional behavior evaluation and/or a psychological assessment to understand better Student’s behavior, inappropriate interventions may be used which could escalate Student’s behavior. Testimony of Booth, Westaway.
The state special education regulations (603 CMR 28.02(22)) define the Team as follows:
Team shall mean a group of persons, meeting participant requirements of federal special education law as provided at 34 CFR 300.344 and 300.552, who, together, discuss evaluation results, determine eligibility, develop or modify an IEP, or determine placement.
Arguably, those in attendance at the April 12 th meeting met the requirements of 34 CFR 300.344. In attendance at the meeting were Mother, the Principal, Assistant Principal, LPS Social Worker, the regular education Teacher, the special education Teacher, two staff who teach specials to Student, Ms. Morelli from Excel and the proposed mentor from Excel. Testimony of Mother.