Student v. Greater Fall River Regional Vocational School District – BSEA #01-3218
COMMONWEALTH OF MASSACHUSETTS
SPECIAL EDUCATION APPEALS
In Re : Student v. Greater Fall River Regional Vocational School District
This decision is issued pursuant to 20 U.S.C. 1401 et seq. (the “IDEA”), 29 U.S.C. 794, M.G.L. chs. 30A, 71B and the regulations promulgated under said statutes.
On January 16, 2001 the Parent/Student requested an Emergency Hearing alleging that the Student was without an educational program. The matter was set for a telephone conference call on January 25 th prior to the automatic hearing date. Greater Fall River Regional Vocational School District filed a request for postponement on January 23 rd which was handled during the telephone conference. By agreement of the parties, on January 25 th the matter was postponed and set for a Pre-Hearing Conference on February 1, 2001. Thereafter, the parties requested to continue the matter and submit status reports through April 2001. On April 5, 2001 a status conference call was held and again the parties requested to continue the matter and to submit written status reports. An order was issued on September 26, 2001 setting the matter for Hearing on October 31, 2001. Following this order the school requested two postponements to which the Parents assented and the matter was finally heard in November 2001.
A Hearing in the above referenced matter was convened on November 5, 26 and 30, 2001 at the Bureau of Special Education Appeals (hereinafter, “BSEA”), in Malden, MA, before Rosa I. Figueroa, Hearing Officer. The parties chose to make no oral arguments or submit written closing briefs. The record closed on November 30, 2001 at the conclusion of the taking of the testimony.
Those present, or available over the telephone, for all or part of the Hearings were:
Susan J. Love, Esq. Attorney for the Student/Parent
Dr. Barbara DenUyl Student’s Treating Physician
Gregory A. Brilhante, Esq. Attorney for Greater Fall River Regional Vocational School District
Mr. Michael Muscarella Director of Pupil Personnel Services, Greater Fall River Regional Vocational School District
School Exhibits 1 through 6 and Student’s/Parents’ Exhibits 1 through 35 were admitted in evidence, and were considered in issuing this decision.
1. Whether Greater Fall River Regional Vocational School District denied the Student a free appropriate public education designed to maximize the Student’s potential in the least restrictive setting?
2. Whether Greater Fall River Regional Vocational School District violated the Student’s due process rights?
3. Whether Greater Fall River Regional Vocational School District is required to provide the Student with compensatory services by offering him home tutoring to prepare him for the GED?
4. Whether Greater Fall River Regional Vocational School District is obligated to offer the Student credit for the ninth grade for academics and Shop, or just Shop?
POSITION OF THE PARTIES
Greater Fall River Regional Vocational School District (hereinafter, “Greater Fall River”) asserts that the Student has been on Individual Educational Plans (herinafter, “IEP”) for medical reasons and not because of learning disabilities. His academic difficulties are due to the amount of time he has spent outside the classroom. The Student’s difficulties can be appropriately addressed in Greater Fall River by having him participate in a small group classroom for academics and attend Shop. If the Student returns to Diman, he will have to repeat the 9 th grade because he failed almost all of the academic courses for the 1999-2000 school year. Greater Fall River is prepared to provide the Student with services that allow him to progress effectively.
Greater Fall River denies any violation of the Student’s procedural due process rights and states that the Student was not enrolled at Diman for the 2000-2001 school year since his mother failed to follow through with the conditions set by Diman after he failed the summer program.
The Student/Parent assert that Student has special needs related to a diagnosis of Attention Deficit Disorder with Hyperactivity and he suffers from asthma triggered mostly by allergies. He has now developed emotional problems as a result of not receiving an education in the past two and a half years. According to them, Greater Fall River failed to evaluate the Student’s needs at the appropriate time, or offer the Student home tutoring services that would allow him to make effective progress. The Student’s procedural due process rights were violated by Greater Fall River. For these reasons the School owes the Student compensatory services.
Finally, since the Student passed Shop in the ninth grade, and related services during the summer of 2000, he should receive credit and be promoted to the tenth grade.
FINDINGS OF FACT
· Born on October 4, 1984, Student is a seventeen year old enrolled at Greater Fall River Regional Vocational School District. (PE-4)
· The Student was born 2 months premature with viral pneumonia and has had between 30 to 40 admissions for asthma over his lifetime. These have been triggered by various allergies such as cat dander, ragweed, dust mites, etc., and/or viral infections. (PE-1; Testimony of the Parent, Dr. DenUyl) The Student’s asthma is treated with Singulair, Intal, Albuterol, Flovent and Flonase. He also suffers from migraine headaches treated with Fioricet. (PE-2; Testimony of Dr. DenUyl) He has also been diagnosed with attention deficit disorder with hyperactivity. (PE-12; testimony of the Parent) The Parent states that the Student has issues with Math and Reading. (Testimony of the Parent)
· A special education evaluation was conducted by Fall River Public Schools on December 11, 1995 during the student’s fifth grade. (SE-2; PE-12) The testing was done at the request of the Parent who was concerned that the Student may require special education services due to academic problems. The WISC -III showed that the Student was of average intelligence. He achieved a Verbal IQ of 89, a Performance IQ of 104 and a Full Scale score of 95. (SE-2; PE-12; PE-8) The 15 point differential between verbal and performance scores suggested the existence of a learning disability. This discrepancy between language and the visual motor areas suggested a mild language processing deficit. Except for reading, Comprehension achievement tests placed him within grade level. (PE-8) Verbal concept formation, mental numerical reasoning and judgement in practical situations were found to be below the average for his grade level. (PE-12) The projective testing responses suggested that the Student was intimidated by male figures and that he was feeling alone and rejected. The responses offered by the Student further suggested feelings of insecurity, detachment, deprivation, reluctance to come to grips with problems and an inability to face facts. (SE-2; PE-12; PE-8) Due to the family dynamics and the Student’s stated interest in fire setting, Tulio D. Pitassi, Ph.D., school psychologist, recommended that the Student be evaluated for possible sexual abuse. (SE-2; PE-12) There is no indication in the record that this recommendation was followed.
· During the elementary school years, the Student received Chapter I Reading and assistance with Math. (Testimony of the Parent)
· The Team gathered on December 19, 1995 to discuss the results of the above evaluation and reached an opinion that the Student was not eligible for special education services, but recommended counseling and academic support services in school. On December 19, 1995, the Parent accepted the finding of no special needs. (PE-8)
· 1997 was the Student’s worst year from a medical standpoint as he had severe issues with asthma throughout the year and was hospitalized several times. (Testimony of Dr. DenUyl)
· The Student underwent a psychoeducational assessment on October 15, 1997 with Stephen A. Paterna, Ph.D, Licensed Educational Psychologist and Kevin J. Flynn, M.Ed. (SE-2; SE-4; PE-11) No intellectual, specific learning or language disabilities were found. (SE-2; SE-4; PE-11) The low scores in the then current cognitive profile were attributed to inconsistencies in school attendance due to the medical conditions and his attentional deficits. Affective factors were also found to impact on his concentration. The evaluator concluded that the presence of a disabling condition was the result of a medical or physical condition. (Id.) Math scores were found to be more than one year below grade level. A multi sensory instructional approach and supportive instructional services for math calculation and reading comprehension were recommended along with a rewards and consequences system. (Id.) Good eye contact and visual focus, keeping the duration of tasks short, monitoring input and the use of short, concise language in verbal presentation were also recommended. (SE-2; SE-4; PE-11) Supportive individual psychological counseling was recommended to address issue regarding the Student’s and his mother’s health, the family breakup and witnessing physical violence towards his mother. (Id.)
· A “doctor prescribed homebound” IEP, a 502.7 prototype program, was developed for the Student on October 17, 1997 covering the period from October 1997 through June 1998. (PE-7; See also SE-1) At that time he was expected to perform well with expected curriculum frameworks at the seventh grade level with one hour per day tutorials. On October 17 th , the Parent accepted the IEP in full. (Id.)
· On June 15, 1998 an IEP (PE-6) was prepared for the period of time during which the Student would be homebound for medical reasons. This was Student’s 8 th grade. (SE-3; PE-6) This IEP offered services under a 502.11a prototype program for the period from September 8, 1998 through June 25, 1999. It indicated that the Student was performing below grade level expectation with Computation and Reading Comprehension scores at the 6.2 level. (Id.) It called for the Student to receive “one -on-one instruction and individual programming” and to “reintegrate him into the mainstream when the doctor and the tutor deemed it necessary and appropriate.” It offered 5 hours per week of individual services in Reading, English, Math, Science and Social Studies. (PE-6) The Parent accepted the IEP in full on June 16, 1998. (Id.) The IEP was issued following a letter by Dr. Jack Noyes dated May 22, 1998 stating that the Student had asthma and that since the Student had been healthy that year his mother felt that the only way to keep him healthy would be for the Student to receive home tutoring. In the letter the doctor stated that “this may be true.” (PE-6)
· The Student was home tutored during the 1997-1998 and 1998-1999 school years as a result of medical problems caused by asthma. (SE-3; PE-20; Testimony of the Dr. DenUyl and Parent)
· On January 13, 1999, the Student was evaluated at Saint Anne’s Hospital with complaints of difficulty breathing and chest pains associated with asthma. (PE-1)
· In 1999, at age 15, the Student took the Test for Adult Basic Education and the SAGE on-line assessment to ascertain his grade equivalent for Math and Language as part of a comprehensive Assessment. (SE-5; PE-10) His scores for Reasoning and Language fell in the 4 to 6 grade level while Math was not ascertained. Strengths were found in the areas of finger dexterity, manual dexterity, spatial, eye/ hand/ foot coordination and color discrimination. Weaknesses were found in his ability to understand ideas, reasoning and judgement. Recommendations were made for use of a multi sensory instructional approach. (Id.) His strongest areas of interest were found to be mechanical, industrial and scientific. The assessments identified no physical limitations or environmental restrictions that might affect job or training selection. (SE-5; PE-10)
· In late March 1999, while still on home tutoring, the Student applied to Diman Regional Vocational Technical High School for grade 9. (SE-1; PE-13) He manifested interest in the areas of culinary arts, electricity, plumbing and air conditioning /refrigeration. The Parent alerted the school in the application that the Student was a severe asthmatic and that his problems were triggered by environmental allergies. (Id.) The Student’s request to return to school for high school on a trial basis and to attend Diman was also expressed by Dr. Julie Moore of Highland Pediatrics on February 5, 1999. (SE-1; PE-29)
· In June of 1999 an IEP for the period covering September 8, 1999 through June 20, 2000 was developed. (SE-3; PE-5) The Student’s Instructional Profile section of the IEP called for a multi-sensory instructional approach, tasks short in duration and positive reinforcement. This IEP offered a 502.1 prototype IEP with monitoring services. The Parent accepted this IEP in full on June 24, 1999. (Id.) Prior to September 8, 1999, the Student had been placed on homebound instruction for medical reasons. At the time of this IEP the Student was performing slightly below grade level. (Id.) Computation and reading Comprehension scores were at the 6.2 grade level. (PE-5) The Parent had no knowledge of who the monitor was or whether the Student was monitored at all during the 1999-2000 school year. (Testimony of the Parent) Dr. Muscarella, Director of Pupil Services at Greater Fall River, testified that the Student was monitored by Mrs. Pounds, a guidance counselor. (PE-15; Testimony of Dr. Muscarella)
· The Student began the 1999-2000 school year at Diman. (Testimony of the Parent, Dr. Muscarella, Student) The Parent stated that the Student’s asthma was triggered within three days of attendance. (Testimony of the Parent) By November 30, 1999, Ms. Barbara Bernard, of Greater Fall River, notified the Parent that according to Mr. Mitchell the Student had not shown up for make-up sessions or extra help in math and when given the opportunity he refused assistance stating that he had something to do. (PE-18) According to the Parent the Math level was above Student’s capability and she requested that Diman change this class for the Student. (Testimony of the Parent)
· The Student was seen at Saint Anne’s Hospital on November 4, 1999. He complained that he was having difficulty breathing and was wheezing. (PE-1) He was diagnosed with rhinintis. He was evaluated again on November 6, 1999 for asthma bronchitis. (PE-1) On November 6 th he was admitted through November 8, 1999 with a diagnosis of acute asthma exacerbation, multiple allergies and migraine. (Id.)
· This hospitalization was described in a letter by Barbara DenUyl, M.D., of November 17, 1999 to the School Department where she explained that the Student had a long history of asthma and allergy and that exacerbation of this condition resulted in a hospitalization in November of 1999. (SE-1; PE-2; PE-30; C.V. at PE-34) The Student’s hospital records show that he was admitted on November 6, 1999. (PE-2) Problems with Asthma continued throughout November 1999. (Id., Testimony of the Parent) Dr. DenUyl recommended that the Student receive home tutoring. She further stated that she would like to have him home tutored for classroom courses and still be able to attend shop so that he would enjoy the practical experience of shop classes and have an opportunity to socialize with other students. (SE-1; PE-2; PE-30) During the Student’s hospitalization of November 1999 Dr. DenUyl encouraged him to return to school as in her opinion this was very important for the Student especially because of exposure to other students for socialization. The Student however, was reluctant because he was concerned that he would be plagued by asthma again. (Testimony of Dr. DenUyl)
· Dr. Muscarella initially took the letter as a recommendation but not a directive that the Student could not attend school for both academics and Shop. (Testimony of Dr. Muscarella) He did however, set up the home tutoring for the Student’s second semester of the 1999-2000 school year. (Id.) A Team meeting was not convened at this time. (Id.)
· A Physician’s note dated November 29, 1999 refers to a letter to Dr. James McGuire, and states that the Student smokes several cigarettes per day and is allergic to house dust mites and pollen. He was diagnosed with: “1) chronic severe asthma 2) allergic Rhinoconjunctivits, and 3) psycho social problems.” (PE-2) The Student’s psychosocial problems were described by Dr. James Maguire, Jr. as significant psycho-social morbidity. (Id.)
· Dr. Stanley Spevack’s letter of December 21, 1999 remarks that the Parent and Student report that the asthma problems occur exclusively in school and that the problems related to asthma have occurred in every one of the numerous schools that Student attended over the years. (PE-2) The family history was strongly positive for atopic illness. At the time of this medical evaluation, the Student reported smoking several cigarettes per day. Dr. Spevack, an allergy specialist, recommended that the Student stop smoking and continue on the following medications: Albuterol, Flovent, Claritin D, and Singulair to bring the asthma under control and try to reduce the psycho-social morbidity. A follow-up evaluation was scheduled. (PE-2)
· An IEP calling for home-bound instruction was written by Diman effective through June 20, 2000. (PE-14)
· In January of 2000, the Student was placed on home-bound instruction for the academic portion of his school day. He was provided by Diman with a tutor who met with the Student twice before breaking a leg and discontinuing the tutorials. (Testimony of the Parent, Mr. Muscarella)
· On February 15, 2000, Dr. Muscarella notified the Student’s staff that due to illness the Student would attend only Shop from that date through the remainder of the school year. (SE-1) While in school, he went to the cafeteria with the rest of the students at Diman. (Testimony of Mr. Muscarella)
· The Student was seen by his treating physician on January 25, 1999, February 9, 1999, September 7, 1999, (the day after this appointment the Student was to start school after having been homebound for approximately 2 years), October 5, 1999, October 20, 1999, November 2, 1999 (hip pain complaint), November 5, 1999 (asthma exacerbation), November 6, 1999 (admitted to the hospital for asthma exacerbation), November 9, 1999, November 19 (asthma exacerbation), November 30, 1999 (asthma exacerbation), December 10, 1999 (viral illness), January 10 (early reactive airway disease), January 17, 2000, May 16 (viral illness, conjunctivitis, headaches, pharyngitis), May 19, 2000 (viral Syndrome). (PE-2)
· The educational status assessments of March 2000 for the 1999-2000 school year at Diman stated that the Student was present 70 days and absent 56. (PE-15; see also, PE-16 and PE-31 for a detailed breakdown of the Student’s attendance during the 1999-2000 school year) The teachers stated the following: in physical education he was not seen since October 19, 1999; the Integrated Math I teacher commented that the Student was only with her during the first term and that he refused to attend class and did very poorly all around; the problem solving teacher never met him. (PE-15) By the end of the school year the Student passed shop exploration but failed one academic subject and received incomplete grades on the five other academic subjects. (PE-24; PE-16; PE-17; PE-25; PE-28)
· A Student’s progress/discipline report of March 20, 2000 states that the Student was disciplined on February 10 th for not showing up to a teacher detention, on March 14 th for fighting, on March 16 th for lighting a match possibly to light a cigarette and on March 20 th for being in an unauthorized area. (PE-33) According to the Parent, students wrestled in Shop, a blanket would be placed over a kid’s head and others would beat him. She noticed bruises on Student’s back one time. (Testimony of the Parent)
· On April 10, 2000, Attorney Diane Parent wrote to Dr. Muscarella stating that due to serious chronic asthma and allergies the Student was unable to participate in the classroom curriculum. She demanded that accomodations be made in the school and that the Student be provided a tutor in accordance with the IEP. (SE-1; PE-14) Diman resumed the tutorials in April 2000. (Testimony of the Parent, Student, Dr. Muscarella)
· The Student was seen by the treating physician on June 5, 2000 (migraine headache), June 9, 2000, June 14, 2000, June 30, 2000, July 18, 2000, August 16, 2000, August 21, August 28, September 8, September 12, September 13, September 25, 2000, December 4, 2000, January 3, January 15, 2001, March 14, 2001, May 18, 2001, June 04, 2001, June 26, 2001, July 02, 2001, July 23, 2001, July 27, July 31, August 7, August 27, September 19, September 20, and September 21, 2001. (PE-2)
· On April 5, 2000 the Student’s Team gathered to discuss services for the Student for the period covering April 5, 2000 through April 5, 2001. (PE-5) Services under this IEP would be offered at Diman Regional Vocational Technical High School. At that time the Student was in the 9 th grade. The IEP stated that the Student’s three-year evaluation was programmed for October 2000. The Student’s Performance Profile section of the IEP stated that the Student was involved in the plumbing shop and the he would continue to be monitored for the remainder of the 2000/2001 school year. (PE-5) The Student would follow the general curriculum for History and Social Sciences, Science and Technology, Mathematics, English and Language Arts. This IEP offered monitoring services 1 x 10 under a 502.1 prototype program. (Id.) This IEP was forwarded to the Parents but to date it has not been accepted.
· On May 17, 2000 the Student was seen at the Emergency Department of Saint Anne’s Hospital for a medical evaluation. (PE-1) He was diagnosed with febrile Illness and tonsilitis. (Id.)
· In the summer of 2000 the Student participated in the Fall River Summer program in an attempt to complete the academic portion of his 9 th grade. (Testimony of Mr. Muscarella, Parent) During the five week long summer program he was absent from Math twice and tardy once, absent from English twice and tardy four times and absent from PL Related three times. (PE-21) The Student had been advised that he would have to pass his academic subjects (Math, English and PL Related) and complete the tutorials for Science and History during the summer in order to be promoted and continue at Diman. (PE-22) While he put some effort into his work during at least part of the summer and completed PL Related, his effort was insufficient to pass English, Math, History and Science. (SE-1; PE-21; PE-23; PE-27; Testimony of the Parent, Mr. Muscarella) On August 10, 2000 the History teacher asked the Student to do some take home exams but the Student refused to take them stating that he was “failing so why do them?” (SE-1) According to the Parent, the Student did not receive the tutorials for social studies and science which were supposed to be offered after the summer school session was over. (Testimony of the Parent) The Parent further requested that the Student receive his academics in one classroom and that it be maintained clean, but this was not done. (Testimony of the Parent and Dr. Muscarella)
· During the summer of 2000 the Student was seen by Dr. DenUyl who referred him to Dr. Generoso Gascon for possible prophylactic medication. The Student had been treated by Dr. Worthington for migraine headaches and was prescribed Fioricet. Dr. DenUyl reports that at the time of the referral there were a lot of stressors in the Student’s family. (See letter of Dr. DenUyl of July 12, 2000 PE-2) Dr. DenUyl further recommended that the Student receive counseling. (PE-2)
· On August 15, 2000 Joseph Martins, Greater Fall River’s Superintendent-Director at Diman, notified the Student via letter that he had failed the summer make-up courses and that he would not be promoted to the next grade at Diman. The latter offered the Student the option of transferring to another school or to make a written request to repeat the school year at Diman. (PE-23; Testimony of the Parent and Dr. Muscarella) A form to inform the school of the Parent’s decision was included. (PE-23; Testimony of Mr. Muscarella) In pertinent part the form specifically instructed that a request to repeat the school year at Diman had to be made in writing to Mr. Ramos, Assistant Superintendent-Director/ Principal. It also instructed the Parent to return the form as soon as possible to the Pupil Personnel Office or to call to make an appointment for a hearing to repeat the school year. (Id.) The Parent did not return the form to Diman because she thought that the school would not accept the Student back. (Testimony of Mr. Muscarella, the Parent) She however, testified that she requested a meeting with Diman’s personnel and was asked to go to a board meeting. (Testimony of the Parent)
· The Student’s three-year re-evaluation was due in October of 2000. (Testimony of the Parent) The Student however was not enrolled at Diman at that time, nor was he attending school. (Testimony of Mr. Muscarella)
· Dr. Barbara DenUyl from Highland Pediatrics wrote letters on behalf of the Student/ Parent on June 14, 2000, July 12, 2000, September 8, 2000 and May 24, 2001. (SE-1; SE-6; PE-2; PE-30; PE-32) The letters state that the Student had six hospitalizations for asthma between 4/6/1997 and 11/6/1999. According to her, the Student had not attended school for several years due to environmental allergies such as chalk dust which cannot be tested and because it seemed that grouping with other children who had different viral infections seemed to make his asthma worse. The parent had related that the Student seemed to do a lot better when he was not at school and had fewer hospitalizations. (SE-1; SE-6; PE-2; PE-30; PE-32) In a letter dated May 24, 2001, Dr. DenUyl states that the Student “seems to do better in well-ventilated areas. He seems to do better in Shop classes, and for some reason seems to be perhaps allergic to something in the school environment especially in closed crowded classrooms. Again this may support the hypothesis that simply viral infections and exposure to many ill children during the winter months especially will trigger [Student’s] asthma.” (Id.) Dr. DenUyl recommended that the Student return to shop classes only at Diman and that he avoid classroom activities because he enjoyed shop and it did not trigger his asthma. Academic work could be supplemented through tutoring. (PE-2)
· On May 1, 2001, the school proposed to conduct an educational re-evaluation of the Student. (PE-35) Also, consent for a Personality Evaluation was sought on May 24 th . (Id.) The Parent consented to the evaluations on May 26, 2001.
· On June 18, 2001, Ms. Silveira, of Greater Fall River, contacted the Parent to schedule a Team meeting for June 19 th . (SE-1) The meeting was canceled because neither the attorney nor the Parent could be present. A Memorandum of July 2, 2001 reflects that the Team meeting would be scheduled in September of 2001. (SE-1) The Team finally met on October 1, 2001. (Testimony of Dr. Muscarella) An IEP was developed covering the period from October 2001 through June 2002. (Id.) Greater Fall River offered the Student participation in general Shop and his academic instruction in a small group with about 6 or 7 students. The age range of the students in shop would be between 14 and 16 years. Counseling services were also offered. The School further agreed that if for medical reasons the Student could not receive his education in the small group, he could receive his academic education in Shop. (Id.) Under either option the Student would be required to repeat the ninth grade. Neither option had been accepted by the Parent/Student at the time of the Hearing. (Testimony of Dr. Muscarella, the Parent and the Student)
· On June 22, 2001 Kevin Flynn, Executive Director of Human Services Associates, Inc., forwarded the results of Student’s Psychoeducational Assessment to Dr. Muscarella. (SE-2; PE-9) The Student was referred by Diman as part of a special needs re-evaluation. The Student had been previously evaluated at the same location in 1997 with results indicating that he was performing one and a half to two years below grade level in Arithmetic, Computation and in Reading Comprehension. (See PE-11) The evaluators during the 2001 evaluations were Walter Flynn, Jr., M.Ed., and Cheryl Ann Flynn, M.Ed., both assessment specialists, and Kevin Flynn, C.A.G.S. and Carol Calney, C.A.G.S., both school psychologists. The Student was cooperative during the testing, displaying adequate motivation and sufficient effort. According to the examiner, attention, concentration and persistence to the tasks presented were satisfactory. (SE-2; PE-9) On the informal assessments, he displayed below age verbal communication skills and his visual motor execution was significantly below age expectations. (Id.) The tests results were felt to be valid and reliable estimates of the Student’s abilities and skills by the evaluator. The evaluator administered the Woodcock -Johnson Tests of Cognitive Ability-III, Woodcock -Johnson Tests of Achievement-III, Test of Nonverbal Intelligence-3 (TONI-3), Peabody Picture Vocabulary Test-III (PPVT-III), Developmental Test of Visual Motor Integration (BEERY), Bender-Gestalt Test, Draw a Person Test, Test of Visual Perceptual Skills-Upper Level (TVPS), Wide Range Achievement Test -3 (WRAT-3), Rorschach Psychodiagnostic Test, Thematic Apperception Test, Behavior Assessment System for Children (BASC) Self Report, House-Tree-Person Test and Kinetic Family Drawing. (Id.)
· The Student’s general intellectual ability was found to be in the low average range (standard score of 84, at 14 th percentile, which was weaker than the results in a similar test administered in 1997). His reading and math skills were found to be developing a at a rate below chronological age expectations. (SE-2; PE-9) He also had difficulties in communicating his thoughts in written form and had poor punctuation and capitalization skills, though his spelling skills seemed to be an area of strength. He presented visual perceptual processing difficulties as well as significant visual motor output processing deficits. His receptive language skills were solidly average while expressive skills fell in the low end of average. (Id.)
· The evaluator found severe weaknesses in nonverbal reasoning and concept formation; visual motor processing on output; processing speed; visual pattern recognition and sequence prediction; and long term retrieval. (SE-2; PE-9) Moderate weaknesses were noted in abstract verbal reasoning and concept formation; auditory processing; visual-spatial thinking; visual perceptual processing on input cognitive efficiency and command of factual knowledge. According to the evaluator, the weaknesses appear to have a significant negative impact on the Student’s academic achievement in the areas of reading comprehension, basic mathematical as well as writing skills and written expression indicative of a specific learning disability in those areas. Student was found not to be making effective progress within regular education in any of these areas or in reading comprehension. As a result, the Student required specialized instruction to address his difficulties. Additionally, the evaluator identified certain areas from the projective testing which should be addressed. These are: “underincorporation, weak reality testing, stress avoidance by repression of negative thoughts, emotional immaturity, self-centeredness, and social indifference and aversion.” (PE-9) The Student would benefit from psychotherapy if he agreed to participate or should be in regular contact with his guidance counselor “to closely monitor incipient difficulties in both the academic and affective/personal realms.” The evaluator warned that the Student was at high risk for early withdrawal from school and recommended that the teaching focus on practical, life skill applications of academic concepts and acquisition of vocational skills. (SE-2; PE-9) The evaluators made additional recommendations which focused on an auditory learning style. (Id.)
· The Behavior Assessment System for Children (BASC) Self Report performed on June 18, 2001, found the Student not to report behaviors or feelings which could be associated with stress, anxiety, depression, a sense of inadequacy, low-self-esteem, poor self-reliance, or difficutlties relating socially with parents or others.” The tester found this to be “consistent with someone who was situationally guarded and unwilling to reveal himself” especially since the Roschach results suggested problems with social interactions and self-perception. (SE-2; PE-9)
· The Student was hospitalized at Saint Anne’s Hospital for Asthma exacerbation on July 23, 24, & 25, 2001 apparently as a result of exposure to cat dander for 5 to 10 minutes. He was seen by Dr. Wayne Siegel. At the time the Student reported going for his GED during the pediatric nursing history and assessment. Prior to July of 2001, the Student had been seen at Saint Anne’s Hospital on August 29, 2000, almost one year before. (PE-1; PE-2)
· A physician consultation note of August 7, 2001 states that the Student reported being upset at Diman because they had failed to educate him and provide a tutor. Student felt that he could go back for a trial this year. Student wanted to go for a GED in September he wanted to attend ITT Tech and wanted Diman to pay for it. The previous year the Parent could not find a tutor until December and the School did not find a tutor until April/ May and then the Student attended summer school. The physician’s note read as follows; “Reported doing ok but did not pass. Asthma 5… this summer, spring ok. and xm all winter.” (PE-2)
· Parents filed their request for emergency hearing on January 16, 2001, requested that a Pre-hearing conference be held, and later requested or agreed to postponements through November of 2001.
· As a result of a Pre-Hearing Conference an Order was issued on February 12, 2001, delineating the modifications Fall River was willing to make to the Student’s program including an offer to provide the academic portion of the Student’s education in Shop.
· The Student testified that while he wanted to return to school in September of 2000, he no longer desires to attend school at all. (Testimony of the Student)
· Dr. DenUyl recommended that the school building be evaluated by an environmental specialist who could make recommendations to reduce the amount of possible allergents in said environment. She also testified that stress could contribute to trigger asthma attacks. (Testimony of Dr. DenUyl)
RULINGS OF LAW
The parties agree that the Student presents with ADHD and severe asthma triggered by environmental allergies and exposure to viruses. They further agree that he presents with emotional issues and that he requires counseling and supportive academic services. To the extent that the Student has required special education services in the form of home bound tutoring during the periods in which his physician has ordered him to stay home because of a health related issue, the parties agree that he is entitled to special education services. The school argues however, that but for those times, the Student’s needs can be met with modifications in the general curriculum in Diman. The Parent requests that Greater Fall River provide home bound tutorial services to prepare the Student to receive his GED, while the Student, now 17 years of age, refuses to return to Diman even if the school makes modifications to his plan.
The Parties’ disagreement centers on determination of the least restrictive, free, appropriate public educational placement reasonably calculated to maximize the Student’s potential and on whether the Student is due compensatory education for the periods of time during which his education was interrupted. David D. v. Dartmouth School Committee , 775 F.2d 411 (1 st Cir. 1985) I find that evidence does not support the majority of the Parent’s claims but that Student is entitled to compensatory services for the interruption in services between January and April of 2000, the period of time covered by the physician’s note.
My reasoning follows:
Whether Greater Fall River Regional Vocational School District’s denied the Student a Free Appropriate Public Education Designed to Maximize the Student’s Potential in the Least Restrictive Setting for the 1999-2000 and 2000-2001School Years, Failed to Conduct the Three Year Re-Evaluation and Violated The Student’s Due Process Rights Thereby Owing the Student Compensatory Educational Services:
Greater Fall River Regional Vocational School District (hereinafter, “Greater Fall River”) asserts that the Student has been on Individual Educational Plans for medical reasons and not because of a learning disability. The record suggests that the Student’s academic difficulties are the result of the amount of time he has spent outside the classroom as opposed to an undiagnosed or undetected disability. The Student’s difficulties can be appropriately addressed in Greater Fall River by having him participate in a small group classroom for academics and attend Shop. Greater Fall River is prepared to provide the Student with services that would allow him to progress effectively.
The Student/Parent assert that Student has special needs related to a diagnosis of Attention Deficit Disorder with Hyperactivity, that he has emotional issues and that he suffers from asthma triggered mostly by allergies. There is no dispute between the parties regarding the Student’s profile. The Student’s need for an IEP has been triggered by medical conditions not by the rest of Student’s difficulties.
On October 15, 1997, Dr. Paterna and Mr. Flynn evaluated the Student. No intellectual, specific learning or language disabilities were found. (PE-11) The low scores in the then current cognitive profile were attributed to inconsistencies in school attendance due to the medical conditions and his attentional deficits. Affective factors were also found to impact on his concentration. The presence of a disabling condition was hence, the result of a medical or physical condition. (Id.) Given the test results and the Student’s profile, a multi sensory instructional approach, along with the use of good eye contact and visual focus, keeping the duration of tasks short, monitoring input and the use of short, concise language in verbal presentation were recommended. Also, since Math scores were found to be more than one year below grade level, supportive instructional services for math calculation as well as for reading comprehension were suggested. (PE-10, PE-11) These evaluators met with the Student once again on June 22, 2001. By then the Student had been out of school for almost one year. They found the Student to be performing below chronological age expectations in math and in reading. His test results were found to be lower than those of 1997. Again they made recommendations which focused on an auditory learning style. (SE-2; PE-9) These recommendations could have been implemented in the regular education curriculum. Moreover, the type of difficulties presented by the Student could have been handled through a Section 504 plan once the Student was back in school after having been released medically by his physician. Greater Fall River however, continued to serve the Student through an IEP.
The Parent/Student claim that Greater Fall River failed to provide Student with an education over the past two and a half years and failed to conduct the three year re-evaluation timely thereby violating the Student’s procedural due process rights and entitling him to compensatory services. The school denies these violations at least for the 2000-2001 school year and through the fall of 2001.
“The United States Supreme Court in Burlington v. U.S. Dept. Of Education , EHLR 556:389 (US S CT, 1985), granted courts broad authority to fashion relief that is appropriate under the IDEA. Equitable factors were considered in allowing the parents to obtain reimbursement for unilaterally placing the Student in a private school when they showed that the IEP offered by the school district did not offer the Student a FAPE. If a parent is not able to place a child who is being denied a FAPE, they can request that a court grant compensatory services as an equitable relief. To achieve this, it must be shown that the denial of FAPE was more than de minimus. See, e.g., Carlisle Area School District v. Scott P ., 3d 520, 537 (3d Cir. 1995) Since compensatory services are an equitable relief , the conduct of the parties must be assessed to determine how it may impact on a possible award. The specific period of time during which the specific services were denied must be identified, as well as the type and extent of harm caused to the child as a result of the denial of FAPE.” In Re: Taunton Public Schools , BSEA # 01-0462, June 5, 2001. Here, the Parent alleges that appropriate services have been denied over the past two and a half years. According to them, the main areas where services were not offered were in Reading and Math. The facts of this case show that while Greater Fall River failed to offer services timely and consistently, the Parent’s/ Student’s actions contributed to the interruption in services.
The Parent claims that the Student did not receive adequate services during the 1999-2000 and 2000-2001 school years. The first IEP for the 1999-2000 school year called solely for monitoring services. This IEP was fully accepted by the Parent. (PE-5; SE-3) Nothing in the record indicates that the Parent accepted the IEP under duress but rather that acceptance was a voluntary act. Given that the Student was on an IEP for medical reasons, and had been progressing effectively during the seventh and eighth grades, it was reasonable for Greater Fall River to offer monitoring services and for the Parent to accept them. An IEP developed for medical reasons exists only for the duration of the physician’s order. When the period of services in the home or hospital are ordered for over 60 days, then the school is responsible for convening the Team and considering evaluation needs.
On or about November 1999, following the Student’s hospitalizations for asthma, Greater Fall River was obligated to provide the Student with homebound tutorial services for his academic courses and allow him to participate in Shop as recommended by the treating physician, Dr. DenUyl. Greater Fall River failed to develop an IEP timely and also failed to offer tutorial services consistently. To this extent it violated the Student’s procedural and substantive rights. When it became clear that the Student’s homebound instruction would exceed 60 days, it also failed to convene the Team to consider evaluation needs and amend the IEP if required. The evidence shows that Student attended Shop during the Winter/Spring semester of 1999-2000 but did not receive academic instruction in the home consistently. (Testimony of the Parent, Dr. Muscarella) During that time he had lunch in the cafeteria with the rest of the student population at Diman and he did not require a hospitalization. (Testimony of Dr. Muscarella, Dr. DenUyl) He was seen once in May of 2000 at Saint Anne’s Hospital for what appeared to be a viral infection. (PE-1) During the summer of 2000 he was absent approximately 3 times during the five weeks. (PE-21; Testimony of Mr. Muscarella) While health issues did present at that time, he was able to manage them and attend school. (Id., Testimony of the Student)
The Parent further claims that Greater Fall River illegally excluded the Student from educational services when it did not offer the Student services during the 2000-2001 school year. This argument is not supported by the evidence. The Student failed all academic courses during the summer of 2000 except for Related Services. This resulted in his non-promotion and termination as a Student at Greater Fall River. In order to return to school, the Parent had to comply with the school’s request that she put in writing a request for the Student to repeat the year, or that she call to request a meeting and appear before the school board. (PE-23; Testimony of Dr. Muscarella) The Parent testified that she did not do this because she did not think that the school would take the student back. She also wanted the Student to receive partial credit for passing Shop and Related Services, and did not wish for the Student to repeat the ninth grade. (Testimony of the Parent) She stated that she requested a meeting and was told that she had to attend a board meeting, which she did not do. (Testimony of the Parent) Therefore, the Student was effectively terminated as a Student at Diman in the summer of 2000.
When the Student did not follow the conditions set forth by Greater Fall River, he was not enrolled as a Student at Diman for the 2000-2001 school year. (Testimony of Dr. Muscarella) Since he was not enrolled in school, Greater Fall River was not only not responsible to offer him an education but was also not obligated to conduct the three-year evaluation scheduled for October of 2000. The Parent’s/Student’s allegations that Student’s procedural due process rights were violated during this period of time are therefore unsupported.
After filing a request for hearing in January 16, 2001, the school agreed to admit the Student back in school when the Parent made the written request to the school. (Testimony of Dr. Muscarella) Review of the BSEA file in this matter shows that the Parent’s response was very slow to come and when it did it requested that Diman provide the Student with home tutoring for the GED. (Testimony of the Parent) This request was not agreeable to Diman. Diman offered to take the Student back as a ninth grader, and have him participate in Shop and in a small group for academic subjects. If the Student’s medical condition prevented him from attending the small group instruction, Diman would offer the Student tutorials in Shop. (Testimony of Dr. Muscarella) This last offer was based on the Student’s assertion that he did not have as many problems with asthma in Shop but got very sick when in the classrooms. (Testimony of the Parent, Dr. Muscarella, the Student; Dr. DenUyl) The Parent argued that the ventilation in Shop was better than that in the classroom, and that the classrooms were not cleaned appropriately leaving too much dust to which Student is allergic. (Testimony of the Parent) The School’s offer was made through the fall of 2001 and it was memorialized in the IEP of October 2001. (Id.) The Student turned down the School’s offer and has remained out of school. The Student testified that he is not afraid to go back to school full time for medical reasons but that he is not interested in going back to school regardless of accommodations. (Testimony of the Student)
I note that Greater Fall River did not contest the Student’s eligibility to receive special education services at the time of the Hearing. It however, accepted no responsibility for the Student’s academic failure attributing it to Student’s lack of participation in a structured educational setting. (Testimony of Dr. Muscarella) While it did not deny that Student presents with emotional/ psychological issues, it argued that these are not educationally based. (Id.)
In light of the arguments above, I find that the Student is entitled to compensatory education services for the period between December 1999 and April 2000 when the Student’s physician recommended that he receive academic services by way of homebound tutorials. He is not entitled to compensatory services for any period beyond that. Greater Fall River is ordered to offer the Student four months of compensatory educational services in the form of tutorials.
Regarding Student’s claim that the Student’s emotional problems have developed as a result of not having received an education in the past year and a half, the record does not support such a claim. While the Student’s non-exposure to a consistent school/ educational setting may have contributed to his current emotional status, his problems did not arise in the past two years nor are they rooted in an educational basis. The Student’s emotional needs have been neglected for a long period of time. Since at least 1995 it has been recommended to the Parent that counseling services be provided for the Student. (SE-2; PE-12) Dr. Pitassi raised concerns at that time of possible sexual abuse and of psychological problems as a result of a tumultuous family life. The responses offered by the Student during the projective testing conducted in 1995 suggested that he felt intimidated by male figures, felt alone and rejected, insecure, detached, deprived as well as reluctant to come to grips with problems and had an inability to face facts. (PE-12; PE-8) The Team discussed these results and while it found the student ineligible to receive special education services it recommended that as a regular education student, he participate in counseling and receive academic support services. (PE-8) 603 CMR 28.03 (3) charges school principals with the responsibility of implementing curriculum accommodation plans detailing efforts to accommodate the needs of diverse learners in the general education program inclusive of instructional practices and supports for students and teachers. These may include for instance remedial instruction and consultative services for teachers. 603 CMR 28.03 (3). Here, the finding of no special needs was accepted by the Parent. (PE-8)
MGL c. 71B S. 2 states that prior to a referral for an evaluation for special education the school principal ensure that the child’s needs be met through regular education. It provides that:
Prior to referral of a school age child for evaluation under the provisions of this chapter, the principal of the child/s school shall ensure that all efforts have been made to meet such child’s needs within the regular education program. Such efforts may include, but not be limited to: modifying the regular education program, the curriculum, teaching strategies, reading instruction, environments or materials, the use of support services, the use of consultative services and building-based student and teacher support and assistance teams to meet the child’s needs in the regular education classroom. MGL c. 71B S. 2
According to the Parent, the Student received Title I reading assistance and was offered counseling services which he did not accept. (Testimony of the Parent)
The recommendations for psychological evaluations and therapy were made again in1997 by Mr. Flynn and Dr. Paterna to help Student with issues regarding his and his mother’s health, the family breakup and his having witnessed physical violence towards his mother. Thereafter, through 2001, Dr. DenUyl again recommended counseling. (SE-2; SE-4; PE-11; Testimony of Dr. DenUyl) The psychological evaluation, inclusive of projective testing was done pursuant to my suggestion during the Conference call of February 2001. (See footnote # 5) Nothing in the record shows that the Parent has followed through with any of these recommendations. (Testimony of the Parent) Even when Fall River attempted to offer counseling services, they were turned down. Given the Student’s social alienation caused by his asthmatic condition, the lack of attention paid to his psychological/emotional health is even more concerning. In June of 2001, Dr Flynn related that the Student’s non report of “behaviors or feelings which could be associated with stress, anxiety, depression, a sense of inadequacy, low-self-esteem, poor self-reliance, or difficutlties relating socially with parents or others” were “consistent with someone who was situationally guarded and unwilling to reveal himself” especially since the results of the the Roschach suggested problems with social interactions and self-perception. (SE-2; PE-9). Once again Dr. Flynn recommended psychotherapy and counseling. There is no doubt that the neglect of the Student’s socio-emotional needs has impacted negatively on the Student’s motivation and his willingness to make himself available to learn. The Student testified that he no longer wishes to continue his education at Greater Fall River even if changes were made to his program there. (Testimony of the Student) While Greater Fall River is responsible to offer the Student counseling services as is reflected in the IEP of June 2001, I find that the Student’s emotional needs are rooted in issues other than an educational disability.
Greater Fall River has offered two educational options as per the IEP of October 2001. As discussed earlier, they are that 1) he participate in general Shop and receive his academic education in Shop, or 2) he be in a small group with about 6 or 7 students, with an age range of students in shop between 14 and 16 years. Counseling services would be offered under either option. The Parent, however, does not want him to repeat the general Shop program and the Student is not interested in receiving counseling services.
Wherefore, Greater Fall River has demonstrated that if it consistently addresses the environmental concerns raised by the Parent, i.e., maintain classrooms and workshops clean and as free of dust as possible, its program as per the IEP of October 2001 can meet the Student’ s emotional needs and his current learning difficulties in accordance with State and Federal law. At present, there is no medical recommendation that the Student remain home-bound for his education. Hence, the IEP of October 2001and or the alternate offer made by Greater Fall River, is the appropriate least restrictive program to which Student is entitled. I find no legal basis to support the Parent’s/Student’s claim that Fall River is obligated to offer him home-bound tutorials to prepare him for the GED. The Parent’s/ Student’s request is DENIED.
The Parent’s Request that Greater Fall River Regional Vocational School District Promote the Student to the Sophomore Year by Crediting the Student for the Courses Passed in Ninth Grade and for Shop:
The Parent requests that Greater Fall River Regional Vocational School District credit the Student for the academic course he completed successfully during the ninth grade and for Shop, or in the alternative that he be credited just for Shop. The Student does not wish to return to school as a ninth grader.
The decision as to whether to promote a Student or not is a regular education decision. Since it is not a decision regarding special education, the BSEA has no jurisdiction to order a school to promote a Student. The Parent was notified on August 15, 2000 via letter that the Student had not completed his summer courses successfully and would not be promoted to the tenth grade. (PE-23; Testimony of Mr. Muscarella) If the Student returns to Diman he must do so as a ninth grader as per school rules. The Parent’s request for partial promotion of the Student is DENIED.
1. Greater Fall River is ordered to offer the Student four months of compensatory educational services in the form of tutorials. The location of the tutorials will be in school unless the Student’s doctor orders an alternative setting.
So ordered by the Hearing Officer,
Rosa I. Figueroa
Dated: December 17, 2001