Special Education Due Process
Hearing Decision
“Parent vs. Freeport”

February 11, 1998

CASE NO.	# 97.204

COUNSEL FOR THE PARENT:	Parent represented self

COUNSEL FOR THE SCHOOL:  School represented by Attorney Peter Lowe
Brann & Issacson, Lewiston, ME

HEARING OFFICER:	Stephen G. Ulman

THIS HEARING WAS HELD AND THE DECISION WRITTEN PURSUANT TO TITLE 20-A, @7207, et. seq., 20 USC, @ 1415 et. seq., AND IMPLEMENTING REGULATIONS.

On November 12, 1997, the Department of Education received a request for a
Due Process Hearing from Mother on behalf of her son.  Mother lives in Freeport and student attends Freeport High School.

The Pre-hearing Conference was postponed from December 1, 1997 until January 7, 1998 at the request of the parent.  The Hearing convened on January 30, 1998, in Freeport. At the pre-hearing conference all documents were entered into the record and numbered.

Six witnesses gave testimony at the hearing.  The Hearing was held open for submission of additional information postmarked until February 7, 1998, and the record was closed on February 9, 1998.

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#97.204

I. 	Preliminary Statement

Student is a student who has been identified as needing special educational services because of a behavioral impairment.  He was first identified in Saco public schools during his kindergarten year.  Student has spent time in several
Maine public schools, as well as day treatment and residential programs. Student is
currently a senior at Freeport High School (FHS), which he entered as a junior in
1996.

During a November 10, 1997, Pupil Evaluation Team meeting (PET), the team determined that Student’s educational placement should be a day treatment program. Following the PET decision Student’s mother requested a due process hearing
to challenge the proposed Individualized Educational Program (IEP). Parent and Freeport entered into a “Stay Put Placement” which provides for student to receive one-to-one tutoring, counseling, and limited transition services while the
proposed IEP is challenged by the parent.

Student’s date of birth is xxx and he becomes a legal adult on that date in 1997.

II. 	Issue for Hearing

At the pre-hearing conference held in Freeport, January 7, 1998, we established the issues for hearing as follows:

1. Is student’s November 10, 1997, Individualized Educational
Program (IEP) reasonably calculated to provide educational benefit in the Least Restrictive Educational Environment (LRE)?
2. Were procedural errors made by Freeport between May 1997 and
November 1997?

III. 	Finding of Fact & Stipulation

The following stipulations were agreed to:

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#97.204

Stipulations

•	Student is a resident of Freeport.
•	Student is a student in need of special education and is identified as behaviorally impaired.

Facts

•	A confrontation between student and a non-student on school ground led to student being suspended from FHS.  PW-1
•	The forty five day suspension ended just before the beginning of the second
quarter of the 97-98 year.   PW-1
•	Tutoring was available during those times student was out of school.  PW-1
•	Counseling continued during tutoring and suspension .  PW-1
•	Mother would benefit from family counseling to help her and student deal with educational issues.  PW-1
•	Day treatment is “Not gonna happen” it’s far away.  PW-2
•	Student is not going to cooperate with day treatment placement.  PW-2
•	As far as day treatment, “I’ve been there, I’ve done that and I’m not doing that again,” it doesn’t help.  PW-2
•	The most important issue for student is graduating.  PW-2
•	Student is willing to go to adult education classes to get credits.  PW-2
•	The present counseling is helping.  PW-2
•	Student would like to participate in graduation ceremony.  PW-2
•	Student has spent a significant part of his public school education in and out of district day treatment and residential placement.   PW-1, PW-2
•	Student will not return to day treatment or residential placement under any circumstances.  PW-1, PW-2
•	Student feels he did not benefit from day treatment and residential treatment.
PW-2
•	Student will quit school before he returns to day treatment and residential treatment. 	PW-2
•	Student feels he is benefiting from current counseling and tutoring.  PW-2, PW-1
•	Student loses his temper and says and does things that cause him trouble. PW-
2
•	Current counseling is helping student control his temper.  PW-2
•	Student wants to graduate with a standard diploma issued by FHS.
•	Summary of Behavioral History developed by school is located at. S-2, SW-1
•	Student has difficulty with anger management.  SW-1

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#97.204

•	Student has not availed himself of special education services. SW-1
•	Student needs a therapeutic environment for his remaining education.  S-37, SW-1
•	Student has spent 25% of his life since kindergarten in residential treatment.  S-
37.
•	Check-in system for student was used unsuccessfully at Freeport High School.
SW-1
•	Student’s social emotional needs are more important than his academic needs.
SW-1
•	Student needs to learn strategies and skills to control anger before he can be ready for life after high school.  SW-1
•	Not uncommon for student to refuse to attend out of district placement and
then attend when required.  SW-1
•	There was no transitional plan when student came to Freeport.  SW-1
•	Two tutoring sessions, Nov 12th, 13th, were not provided by Freeport School.
SW-1, S56
•	Freeport Schools offered to make up the two (Nov. 12, 13th) missed tutoring sessions.  SW-1, S56
•	Freeport made a mistake when it didn’t do transition plan. (TP)  SW-1
•	Student experienced no damage because of the 8 month delay in developing a
TP.  SW-1
•	Student needs 5 ½ credits to graduate.  SW-1
•	Student attended about 60% of his tutoring sessions, but was late or left early often. SW-2,S-54
•	Student often did not do his work. SW-2
•	About two weeks ago Student started doing work on the computer and work has improved.  SW-2
•	The two days of tutoring ( Nov. 12, 13th) were missed because student and
mother said student was quitting and the tutor thought they meant it.  SW-2
•	Student had a successful Junior year at FHS.   SW-3
•	Student passed most of his courses during his Junior year.  SW-3
•	Student’s mom was a tremendous help to student and school during 1996-97 year.   SW-3
•	FHS is not a place where a therapeutic environment exists.  SW-3
•	Student behavior during the early 1997-98 school year was very inappropriate and he was suspended.  SW-3, S-39
•	Student has been in FHS a total of 5 school days so far in 1997-98 and there have been two incidents.  SW-3
•	The safety of school students and teachers would be in question if student came
back to FHS at this time.  SW-3
•	Student needs immediate feedback and intervention when incidents occur.  SW-
4

IV.   Conclusions

The IEP developed in November is educationally sound and clearly developed by caring professionals who have the best long term interest of student in mind. From a special education perspective it provides student with increased structure in a day treatment setting which is clearly less restrictive than tutoring in the Freeport Public Library.  Unfortunately, the November IEP is not reasonably calculated to be of educational benefit.  Not because of educational shortcomings, but because student will not participate in the out of district placement.  Freeport argues that student’s refusal to participate and threats of quitting school are not at all unusual and that many students verbalize the same felling and then after being exposed to the day program change their minds. Under normal circumstances, this approach of out of district placement backed
up by the belief that a trial period would lead to acceptance of the day program, would be a reasonable choice.  However, this situation is very unusual because student is legally an adult who is expected to know his own feelings, be able to share those feelings, and most importantly student has had previously experienced similar day treatment programs and found them so unacceptable that he would
“quit school” before he returned to day treatment. If student had not had this significant personal experience and formed such a strong negative feeling, it would be reasonable to expect that a trial period would lead to acceptance of the day treatment program.  Such is not the case and it is not reasonable to expect that a similar program would now be reasonably calculated to become beneficial.

Student asks to be allowed to return to FHS, however, he is unwilling to accept full time adult supervision. Without a full time adult aide with student at all times, it is not reasonable to expect educational benefit. Two major incidents occurred
within a very few days of school during fall 1997.

Student is clear in his testimony saying that the current off campus counseling is helping him deal with losing his temper.  He reports counseling is giving him an opportunity to “get rid of” his angry feeling in an appropriate manor. In addition, student reports that he made a personal discovery about two weeks ago, that if he didn’t’ get to work in his tutoring he would not graduate in the spring of 1998. A decision that student reports making on his own and acting upon by starting to work in his tutoring sessions.  The tutor reported that student has done more work in the last two weeks then in the whole rest of the second quarters of the school year. There is no way of knowing if hard work the last two quarters of the year will
allow student to graduate with his class, however, the possibility seems real.

In addition to student needing a personal commitment to work, counseling to provide him the place and skills to appropriately deal with his behavioral issues
in a manner which will allow him to continue his education, student also needs the support of his home environment.  student’s mother needs to continue to develop supportive skills which will allow her to “hold it all together” while student completes his education. She needs the skill and knowledge to support and reinforce
student’s new found coping skills, as well as his two week commitment to studying at his tutorial sessions. A very real concern is regression during school vacation. If student is correct in his feeling that counseling is helping him learn temper control skills and providing an appropriate place to “get rid of” his angry feelings, school vacations are a concern. Without the opportunity to continue counseling, student seems likely to regress to a point where returning to school in the fall, if need be, would be unlikely.

It is clear that Freeport erred when it failed to develop a transitional plan upon student entering FHS in 1996. About 8 months lapsed before a plan was developed.  Had student continued with his original IEP the lack of a transitional plan could have had a significant negative effect, but such was not the case. student’s education was completely changed by the incidents that lead to his 45 day suspension and November 1997 IEP. As a result of these educational changes any transitional plan that was or would have been in place would have become moot.

V.  Order

Freeport will provide off campus counseling and supporting transportation costs for up to 5 sessions/week. The actual number of sessions up to 5 to be decided by the counselor.

Freeport will provide student’s mother with up to one session of family counseling and transportation costs per week. The actual number of sessions up to one per week to be decided by the counselor.

These counseling sessions will continue uninterrupted through school vacations until changed by the PET action or student’s graduation.

Tutoring will continue at the Freeport Public Library at a rate sufficient to allow
for student’s spring graduation if student participates fully in the tutoring program.

Freeport is to revisit the existing transition plan to bring it into compliance with IDEA 97, specifically as it relates to adult students and notification of the transfer of rights and safeguards.

Case No. 97.204

SCHOOL’S WITNESS LIST

1. 	Joan Nason, Special Education Director

2. 	Doug Daggett, High School Social Worker

3. 	Thomas Edwards, High School Principal

4. 	Margaret Pelletier, Tutor

5. 	Bruce Brown, Special Education Teacher

6. 	Steve Freeman, Rehabilitation Counselor, Office of Rehabilitation Services

7. 	Jim Lincoln, Guidance Counselor

8. 	Arthur DiRocco, Director R.E.A.L. School

9. 	Susan Pettingill, Assistant Director R.E.A.L. School

10. 	Diedre Carr, Teacher, Freeport High School

11. 	Dr. Andrew Cook, Psychiatrist

12. 	Joseph Heathco, Teacher, Freeport High School

13. 	Kendra Farrell, Teacher, Freeport High School

14. 	Hank Ogilby, Teacher, Freeport High School

15. 	Jim Outwater, Teacher, Freeport High School

16. 	All witnesses listed by the Parent

PARENT WITNESS LIST

1. 	STUDENT

2. 	PARENT

Case No. 97.204

SCHOOL’S EXHIBIT LIST

Exhibit
   No. 	Description 	Date

, Freeport High School, Evaluation 	03/17/97
Report  S1 	Psychological Evaluation 	10/25/85

S2 	Summary of Behavioral History, Student 	10/10/85- Present

S3	Pupil Evaluation Team Meeting and Individual Educational Program	10/10/85	

S4	
Psychological Evaluation	
10/10/90	

S5	
September and October Behavior Summary	
11/13/90	

S6	
The Spurwink School Semi-Annual Progress Report	
03/91	

S7	
Saco/Dayton/Thornton  Pupil Evaluation Team Meeting Minutes	
05/02/91	

S8	
The Spurwink School Semi-Annual Progress Report	
06/20/91	

S9	
The Pike School, Inc. 90 Day Residential Review	
09-12/92	

S10	
The Pike School, Inc.90 Day Residential Review by Keith
Charpentier, M.Ed.	
12/01/92	

S11	
Letter signed by Thomas Bull, M.D., Inc., Child Psychiatry, re:
12/11/92 and 12/18/92 sessions with Student		

S12	
The Pike School, Inc. 90 Day Clinical Review by Keith Charpentier
M.Ed.	
03/12/93	

S13	
Summary of Psychoeducational Evaluation by Alina Shumsky, Ph. D., School Psychologist	
09/26/94	

S14	
Letter from Andrew Cook, M.D. re student’s medication	
10/13/94	

S15	
MSAD #75, Topsham, Maine Minutes of Pupil Evaluation Team
Meeting	
10/20/94	

S16	
MSAD #75, Topsham, Maine Minutes of Pupil Evaluation Team 	 Meeting	
10/23/95	

S17	
MSAD #75, Topsham, Maine Minutes of Pupil Evaluation Team
Meeting	
12/05/95	

S18	
Special Education Department, Freeport High School, Evaluation
Report	
03/17/97	

	and
04/16/97	

S20	
Freeport Public Schools Pupil Evaluation Team Meeting Minutes	
05/09/97	

S21	
Freeport Public Schools Individual Education Program	
05/09/97	

S22	
Upcoming Events for Freeport High School	
September
1997	

S23	
Letter to Mother from Joan P. Nason re development of
assessment plan and/or modification of behavioral intervention plan	
09/09/97	

S24	
Letter to Mother from Joan P. Nason re response to request for information	
09/15/97	

S25	
Freeport Public Schools Pupil Evaluation Team Meeting Minutes and attachments	
09/15/97	

S26	
Letter to Mother from Joan P. Nason re opposition to comprehensive psychological evaluation.	
09/16/97	

S27	
Suggested Psychological Battery from Joan P. Nason, Director of
Special Services		

S28	
Freeport Public Schools Policy on Weapons in School	
09/19/97	

S29	
Letter from Paula Smith, Guidance Counselor, re student conflict	
09/19/97	

S30	
Letter to Thomas Edwards, Principal, from Chris Hamilton re incident with student	
09/19/97	

S31	
Letter from Michael Moulton re incident at Freeport High School	
09/23/97	

S32	
Letter to Mother from Joan P. Nason re amending PET
minutes, 9/15/97, with attachment, Freeport Public Schools FERPA
policy	
09/29/97	

S33	
Special Education Hearing Decision, Parent v. Freeport	
09/30/97	

S34	
Letter to Robert Lyman and Mother from Carol Lenna, Hearing Officer, re: Parent v. Freeport Public Schools	
10/01/97	

S35	
Freeport Public Schools Pupil Evaluation Team Meeting Minutes	
10/06/97	

S36	
Freeport Public Schools Parental Notice to Mother from Joan
Nason	
10/07/97	

S37	
Psychiatric Summary by Andrew Cook, M.D.	
10/20/97	

S38	
Freeport Public Schools PET Minutes	
10/30/97	

S40 	Principal Edwards’ letter to Mother 	11/5/97

S41 	Freeport Public Schools PET Minutes 	11/10/97

S42 	Joan Nason’s letter to Parent 	11/12/97

S43 	Joan Nason’s letter to Parent 	11/14/97

S44 	Parent’s letter to A. Leigh Phillips 	11/11/97

S45 	Stay Put Placement Agreement

S46 	Parent’s letter to A. Leigh Phillips 	11/18/97

S47 	Parent’s Letter to Commissioner of Department of Education 	11/13/97

S48 	Parent’s letter to Ms. Nason 	11/26/97

S49 	Ms. Nason’s letter to Parent 	12/2/97

S50 	Ms. Nason’s letter to Parent 	12/8/97

S51 	Student’s Report Card of Quarter 1 	1997

S52 	Overview Information Booklet by R.E.A.L. School

S53 	Assignment sheets prepared by tutor

S54 	Student Attendance Summary, September – December 1997, with monthly calendars

S55 	R.E.A.L. School Application and Release Form

S56 	Ms. Nason’s letter to Parent and Student 	12/19/97

B. 	Parent Exhibit List:

P-3 	PET Minutes dated September 15, 1997
P-4 	Hearing Decision #97.161 dated September 30, 1997
P-5 	PET Minutes/Revised  IEP dated October 6, 1997
P-6 	Tape recording of PET on October 6, 1997
P-7 	Psychiatric Summary dated 10/20/97
P-8 	Riverview Foundation Assessment dated 10/29/97
P-9 	PET Minutes/Revised  IEP dated October 30, 1997
P-10 	Tape recording of PET on October 30, 1997
P-11 	Letter from Thomas Edwards dated 11/05/97
P-12 	Letter from Thomas Edwards dated 11/10/97
P-13 	PET Minutes/Revised  IEP dated 11/14/97
P-14 	Letter from Joan Nason dated 11/14/97
P-15 	“Stay Put” agreement dated 11/20/97
P-16 	Letter from Joan Nason dated 12/02/97
P-17 	Letter from Joan Nason dated 12/19/97
P-18 	Letter from Joan Nason dated 12/29/97