STATE OF MAINE

SPECIAL EDUCATION DUE PROCESS HEARING

March 10, 1999

CASE # 99.044

Parents, on behalf of student, v. Sanford School Department

Counsel for parent: Thomas G. VanHouten, Esq. Counsel for school: Eric R. Herlan, Esq.
Hearing Officer: Jeannie M. Hamrin, Ed.D.

THIS HEARING WAS HELD AND THE DECISION WRITTEN PURSUANT TO TITLE
20-A, MRSA, SECTION 7207; TITLE 20 USC, SECTION 1415, the Individuals with
Disabilities Act.

A Special Education Expedited Hearing was held on March 1, 1999 to resolve a conflict between parent , on behalf of student, and the Sanford School Department .	In preparation for this hearing a pre-hearing conference was held on  March 4, 1999.
One-hundred and fifty-three pages of documentation were entered into the record and six witnesses presented testimony.
This hearing was requested by parents, on behalf of student, to resolve the dispute regarding:

1. Whether the PET properly determined that the student’s Behavior was not a manifestation of his disability under the federal standard in IDEA; and

2. Whether the services ordered by the PET for the 45 day suspension period were appropriate under the federal standard in IDEA?

I. PRELIMINARY STATEMENT

The student is an almost xx year old male who attended the eighth grade at Sanford Junior High School until he was removed from school on December 21, 1998 for violating the school policy regarding marijuana. Parents were notified by letter [12/24/98] that there would be a disciplinary hearing on January 13, 1999. A PET meeting was held on 1/4/99 to determine whether coming to school under the influence of marijuana was related to the student’s special education diagnosis. The school committee, based on the findings of the PET, suspended the student for 45 days which would end on March 16, 1999.

II. ISSUES

1. 	Did the PET properly  determine that the student’s Behavior was not  a manifestation of his disability under the federal standard  in IDEA; and

2. 	Were the services ordered  by the PET for the 45 day suspension period appropriate under the federal standard  in IDEA?

III. TIME-LINE INFORMATION

The attorney for the parents initiated a request for a Complaint pursuant to 20-A M.R.S.A. which was received by the Department of Education on February 19, 1999.
On February 23, 1999, the Department of Education received a Facsimile from parents’
attorney requesting an Expedited Hearing, pursuant to 20 U.S.C. §1415(k), which amends the Complaint dated February 16, 1999 in the same matter. The pre-hearing was held on March 1, 1999 and the hearing on March 4, 1999. The decision was relayed to the parties by FAX on March 5, 1999.

IV. STIPULATIONS

There were no stipulations.

V. SUMMARY OF TESTIMONY

1. 	The student is currently identified as a student with  learning disabilities.
He received  104  minutes/day of services from Mr. Grogan in the Behavior Improvement Program (BIP) and 52 minutes  a day with  Ms. Ela for language arts [Testimony of Mr.Grogan; school records].

2. 	Mr. Grogan has been the student’s special education teacher  for two years. 	He had the student  for the BIP, a very structured self-contained

program.   The student is together with  Mr. Grogan, an Ed Tech, a counselor  and from four to eight other  students. 	The rules for the program  were positive reinforcement for behaviors  based on a level system designed  to help the student with  organization, daily work, and task completion. 	The student started on level 2 and moved  to level 3, the highest level, on September 10,  1998, where he has been ever since. He sometimes stays  on the same day many days in a row, but has never had to drop back a level.  To stay  on the same day is a  similar to a "pause" and is the result of some little thing  like "not bringing  back a paper."  [Testimony of Mr. Grogan & Ms. Rochat; S-51; S-42-101]

3. 	The school drug policy  was taught to the BIP students in October  of the seventh 	grade year, and in September and November  of the eighth grade year.  In addition, the School Handbook with  the drug policy  was distributed to every student.  [Testimony of Mr. Grogan]

4. 	Ms. Rochat, MSW, had the student in a social skills small group with  one other  student.  She works with  the BIP twenty hours per week.  She counseled  each student in the program  weekly,  made family contacts and dealt with  crises as they  arose.  Ms. Rochat stated that the student liked the small class, was good natured  and happy in school.   She felt that the student had the ability  to make good judgments and understand abstractions.  He demonstrated that he understood school drug policy and understood the consequences  of violating the school policy.

5. 	The student has been successful in the BIP program.   He likes school, is a leader, participates in discussions,  generally  obeyed  rules and made good choices.   Mr. Grogan had a good rapport with  the student.  [Testimony of Ms. Rochat & Mr. Grogan; S-42-101]

6. 	The Sanford School Committee  adopted a "Drug and Alcohol  Use by Students" Policy [JICH]  on December  15,  1997.  This policy  states that: "Following an investigation, if a student is suspected of using or being under the influence of alcohol or other  drugs, (illegal or non-prescribed), in school or at a school sponsored  function...the Principal or his/her designee shall suspend the student for up to ten days..."   [S-12-15]

7. 	Dr. Terracin,  Principal of Sanford Junior High School, interviewed the

student on December  21,  1998.  The student had been brought to school by a parent of another  child involved  in the incident.  Both boys told slightly different stories  but both  admitted to smoking  pot.   When the students did not  come to school, the school called the student’s mother who told  them  that the student left for school with  a friend.  The school sent an attendance officer to the friend’s house but no one came to the door.   The school then  called the friend’s mother who left work, went home and drove the boys to school.   [Testimony of the parent & Dr. Terracin]

8. 	The boys stated that they  had found a "baggie of grass" "some time" over the weekend and had hidden it "somewhere."  They decided  at "some time" to smoke the grass.  They did not  go to school on Monday following the weekend they  found the marijuana,  but retrieved the baggie
of pot  and smoked it. The school stated that the boys could have chosen to give the pot  to their  parents,  they  could have chosen to come to school, they  could have chosen not  to smoke it. It was the students who made the choices.   After arriving  at school, Mr. Chessie, Assistant Principal, interviewed the student who denied using pot.   After the Ed Tech thought the student might have been "high," the student was sent to the school nurse who took  his vital  signs and sent him back to Mr. Chessie. 	The student again denied smoking  marijuana.   At this point Dr. Terracin  was called in.  She told  the student that this was a significant situation and asked him if he had been smoking  pot  and he admitted that he had.  [Testimony of Dr. Terracin]

9. 	Mr. Yarlott, School Psychological  Service Provider, tested the student in March 1998 for his triennial evaluation.  He displayed  high levels of motoric activity, sub-vocalization and frequently expressed  frustration which was typical of the way he expressed  his ADHD.  On the WISC-III he had a full scale IQ of 94,  a VIQ of 99 and a PIQ of 90.   He had a strength in the Comprehension  subtest and weakness in Arithmetic and Digit  Span.
He also demonstrated a relative  strength in Similarities.   Mr. Yarlott wrote that verbal areas were relative  strengths.  Tasks involving  verbal conceptualization and reasoning,  particularly when information was contextualized within  familiar, everyday  scenarios and related  to information in long-term memory  were somewhat of a strength.  His comprehension of social situations is better than most children  his age.

He understands social rules and constructs.  The information about the drug policy  was presented to the student during the two  years using the student’s strengths in comprehending real life situations.  [Testimony of Mr. Grogan and Mr. Yarlott; S-30-34]

10. 	Mr. Yarlott has also conducted a Functional  Behavioral Assessment for the student over the past month.  This included  Connors Behavior Checklist [three teachers], Behavior Assessment Scale for Children [self, parent,
and teachers] and Attention Deficit Disorder Evaluation  Scales.  The results  have shown no traits in the problematic range.  Sensation seeking is the highest score the student received  on the Connors, and that was four points  below the problem  cut-off.  On the basis of his testing, Mr. Yarlott stated that the student could understand the rules and could control his behavior.   [Testimony of Mr. Yarlott]

11. 	A PET was held on January 4, 1999 to determine whether the behavior was a manifestation of the student’s disability.  There was conflicted testimony about the issues discussed and the role of the parent.  The minutes  reflect that  seven people attended the PET meeting.  The student’s program  and progress  were discussed in general terms.   The Triennial Evaluation  was discussed in general terms.   The PET discussed the student’s diagnosis of ADHD and processing  disorder  and whether it impaired  his ability  to understand that smoking  pot  was a violation.  Mr. Grogan stated that the policy  and consequences  were known to the student.  His mother concurred.  His diagnosis was discussed as to whether it impaired  his ability  to be in control.  The PET reviewed  the incident of delaying  smoking  the pot,  planning a new hiding place, and plotting their  truancy. 	The PET discussed whether changes should be made in his current IEP. Mr. Grogan commented that the IEP and behavior plan worked  very well as documented by consistently being on level and ready for increased mainstreaming.  The parent commented that "a series of events  began when the student began associating with  another student.  She had a feeling that peers were significantly influencing the student.  The parent commented on peer associations and behavior changes noted,  especially  his story telling  and lying."   [S-7-9]

12. 	The parent felt that since she arrived  late for the PET, the decision had been already   made.  The team  members  vehemently denied that any

substantive conversation took  place in the 10 minutes  prior to the parent’s arrival.   The parent felt that she was "blamed" for her son’s behavior.   She felt there  was no discussion  around short term  memory, the student’s understanding of cause and effect	[Testimony of the parent]  The other  team  members  were in agreement that it was a "difficult" PET because of  the issue, but felt it generally  went well considering  the circumstances.  They did not  feel that the parent was treated rudely or ignored.   [Testimony of Ms. St.Cyr, Mr. Grogan, Dr. Terracin,  Mr. Yarlott ] The parent stated that she was unaware of the purpose  of the PET meeting.  School did not  submit any evidence  that they  notified the mother, but in a letter to the parent on December  24,
1998, it was stated that "Mrs. St.Cyr will be in touch  with  you regarding  a
PET to determine if this behavior  was related  to his disability."  [S-19]

13. 	The Sanford School Committee met on January 13,  1999 and as a result of the findings at the PET meeting, the student could be disciplined  in the same manner as a non-disabled  student.  He was removed  from the
school until March 16,  1999.  [S-3-6]

14. 	The PET met on 1/21/99 to determine the student’s program  while he was suspended  from school.   The school agreed to provide  10 hours of tutoring per week at the Goodall Library,  a substance  abuse evaluation and counseling.   Tutoring included  two  hours of direct instruction and additional time  for homework.	[S-1; S-104-109]  His tutoring time  was determined by the team  to be sufficient to allow the student to stay caught up.  It was related  to the general curriculum with  goals and objectives from Maine’s Learning Results.  [Testimony of Mr. Grogan]

VI .	DI SC USSI ON 

Wa s t h e student’s behavior properly determined to not be a manifestation of his disability under the federal standard in IDEA?

The issue of whether a misbehavior is a manifestation of the student’s disability is a decision to be made by the PET. In this case, a manifestation determination meeting was held on January 4, 1999.	It was attended by seven persons including the student’s mother. The purpose of the meeting was to look at the misconduct and determine if there was a causal relationship with the disability. The decision of the team was that
the smoking of marijuana was not directly related or caused by this student’s disability. Mr. Yarlott, Psychological Examiner, testified that he did not see any link between the

student’s action and his disability. Ms. Rochat, MSW, stated that the student had the ability to make good judgments. The student understood the choice he was making to smoke pot on a school day. The student was capable of "abstraction." The student admitted he hid the pot to smoke it at a later date. It was a plan and no matter when he decided to do it, it was not an impulsive  act. The PET agreed after reviewing the student’s program and behavior plan, the student’s success in the program, and prior test results that the behavior was not related to the student’s diagnosis of ADHD and identification as a student with learning disabilities.

As indicated above, a manifestation decision is to be made by a group of individuals at a PET meeting. It is not a decision that could be made unilaterally by any individual, including the parent. The ultimate decision of whether the behavior is a manifestation of the disability is made by the team as a whole. The testimony presented at this hearing does not support the position of the parents that the school improperly suspended their son because of his deficit in short term memory, poor planning or lack of understanding cause and effect. The minutes indicate that the student was very angry with himself
now and with his parents. There was no indication that the parent was not in agreement with the determination. There was no complaint brought by the parent until February
16, 1999 or six weeks after the PET determination.

Were the services ordered by the PET for the 45 day suspension period appropriate under the federal standard in IDEA?

In determining whether the student was receiving a free appropriate public education at the time he was suspended, this Hearing Officer is guided by the following two-fold inquiry set forth in Board of Education of Hendrick Hudson Cent. School Dist. V. Rowley, 458 U.S. 176, 102 S.Ct. 3034 (1982):

First, has the school complied with the procedures set forth in the Act? And second, is the [IEP] developed through the Act’s procedures reasonably calculated to enable the child to receive educational benefits?

Regarding the first inquiry, this Hearing Officer finds that the Sanford School
Department has complied with the procedures set forth in the Act.

The second part of the Rowley inquiry is whether the student’s IEP was reasonably calculated to enable the student to receive educational benefit was met.	The PET was convened on January 21, 1999 and six people attended. An IEP was written that was effective on January 25, 1999. The tutoring enabled the student to continue to participate in the general curriculum in another setting. He continued to receive those services and modifications that were in his previous IEP with the exception of his behavior weekly progress reports which were no longer necessary as he was working one on one.	The student's mother agreed to the IEP.

The student began attending the tutoring placement on Monday, January 25, 1999. He

has had good attendance and has kept up with the work. At the time of the hearing, there were only six days left in the tutoring placement. The school announced its intention to return the student to his regular placement on Monday, March 16, 1999.

This Hearing Officer concludes that the school has provided an interim alternative educational placement which complies with the requirements set forth in the IDEA 1997 pertaining to the removal of a special education student from an educational placement for more than 10 days.
.
The parent did not prove that the school failed to provide the student with procedural safeguards following its decision to discipline him for smoking marijuana and coming to
school under the influence. Any delay in holding manifestation determination meeting in
connection with the discipline was caused by the Christmas holiday. The student's behavior in smoking marijuana and coming to school was not a manifestation of his disability, and he has been offered a free appropriate public education in the alternative placement.

VII. FINDINGS OF FACT AND CONCLUSIONS OF LAW

1.	The student qualifies for special education and related services as a student who has a learning disability, and is entitled to a free appropriate public education under IDEA, 20 U.S.C. § 1400 et seq., as amended, and related statutes and regulations.

2. 	The Sanford School Department has the responsibility of providing the student with  a free appropriate public education. [20 U. S. C . §  1400 et  s eq. ]

3. 	The Sanford School Department has identified the student as a student with  learning disabilities.  The student has an Individualized  Education  Plan and a Behavior Plan.  The IEP as developed  at the January 21,  1999 PET meeting was appropriate to address his academic,  emotional, social and behavioral  needs.  [Board of Education  Of Hendrick Hudson Cent. School Dist. v. Rowley. 458  U. S.  176;  102  S. C t  3034  (1982)]. 

4. 	The student resides in the Town of Sanford which runs a school department within  the State  of Maine.

3. 	The school’s  PET held a proper  manifestation determination meeting and did not  err in determining that the student's behavior  of smoking marijuana and then  coming  to school was not  a manifestation of his learning disability. [20  U. S. C .  §  1415(k)(4)]. 

5. 	The student can be disciplined  for possession of marijuana in the same manner as a non-disabled  student because his behavior  was not  a manifestation of his disability, but he must receive FAPE in the alternative placement during the suspension.  [20  U. S. C .  §  1415(k)(5)(A)]. 

6. 	The student can receive a free appropriate public education in the alternative placement and the school has an appropriate IEP in place for that placement.  [20  U. S. C .  §  1415(k)(3)]. 

7. 	The parent did not  prove that Sanford School Department  failed to develop  and implement an appropriate educational program  for the interim placement.

9. 	The Hearing Officer does not  have jurisdiction under IDEA over the Sanford School Committee's decision to suspend the student for his violation of the Drug and Alcohol  Use by Students Policy [JICH] passed on December 15, 1997.  [20  U. S. C .  §  1400  et  s eq. ,  a s  a men ded]. 

VI I I .	ORDER 

Based upon the evidence  and the foregoing findings of fact and conclusions  of law, it is hereby  ORDERED that the relief requested by the parent is DENIED.

Jeannie M. Hamrin, Ed.D. Hearing Officer

#99.044, "Parent v. Sanford Public Schools"
List of Witnesses

Parent, mother of the student

Ray Grogan, Special Education Teacher

Nancy Rochat, Behavior Impairment Program Counselor

Elizabeth J. St. Cyr , Director of Special Services

D’Lila Terracin, Principal of Sanford Junior High School

David Yarlott, Psychological Examiner

#99.044, "Parent v. Sanford School Department"

Index of Documents

School’s Documents

S-1	PET minutes, dated 1/21/99

S-2	Expulsion letter and expulsion record, dated 1/20/99

S-7	PET minutes, dated 1/4/99

S-10	Expulsion hearing notice, dated 12/24/98, with attached substance policy and expulsion statute

S-18	Letter from Principal Terracin to parents, dated 12/23/98

S-20	Police report, dated 12/23/98

S-21	PET minutes, dated 4/15/98

S-22	IEP for 1998-99, dated 4/15/98

S-28	First quarter grades for 1998-99

S-29	Grades for 1997-98

S-30	Psycho-educational evaluation, dated 3/13/98

S-35	Educational assessment, dated 5/12/97

S-42	Report Card, tutoring notes and behavior progress reports, dated from
September to December 1998

S-103 Modifications checklist

S-104 IEP from 1/21/99

Parents’ Documents

P-110 DSM IV materials concerning Attention Deficit/Hyperactivity Disorder

P-118 Sanford School Committee Findings of Fact concerning the suspension of
Student, same as S-3-6

P-122 1997 PET Minutes and IEP

P-130 Selected Behavior Improvement Program Weekly Reports, same as S-42

P-147 Educational Assessment, dated 5/12/98, same as S-35

P-152 WIAT, date 2/25/98 [2 pp.]