STATE OF MAI N E

SP EC I AL  EDUC ATI ON DUE P ROC ESS H EARI N G March 14,  2001
Case # 0 1 .02 9 , Parents  v. E U T / S A D # 5 8

REPRESENTING THE PARENTS:	The parents  represented themselves
REPRESENTING THE SCHOOL:	Donald Kopp, Esq. REPRESENTING EDUCATION  IN THE	Sarah Foster,  Esq., Assistant
UNORGANIZED TERRITORIES:	Attorney General

HEARING OFFICER:	Stephen  Ulman

This hearing was held and the decision was written according  to the provisions  of 20-A  MRSA 7201 et seq., 20 USC 1400 et seq. and the regulations enacted  pursuant to both.

Student resides with  his parents  in the Unorganized  Territories of Maine.  It is the responsibility of the State  of Maine, Division of Education in the Unorganized  Territories (EUT) to provide  the student with  a Free and Appropriate Public Education  (FAPE) [Maine Special Education Regulations  (MSER) Section  1.3] in the Least Restrictive Environment (LRE) [MSER Section  11.1].

The State  Commissioner  of Education  designated MSAD #58  as the receiving  school for this student from the Unorganized  Territories.  The student has been tuitioned by the State  to MSAD #58  for 3 years.

In a letter to the hearing officer, dated  February14, 2001, MSAD #58 asked to be dismissed as a party in the hearing.   At the pre-hearing conference held February 15,  2001, the hearing officer asked the attorneys for the EUT and MSAD #58  to file briefs on the issue prior to the start of the hearing. On February 21,  2001, the hearing officer received  notification that the parties  had agreed that MSAD #58  should

remain involved  in the hearing, however,  any order resulting from the hearing would be directed to EUT. The hearing officer agreed.

The hearing officer exercised  his prerogative under MSER 13.13
Expedited  Due Process Hearings. Expedited  due process hearings shall:
Meet the hearing procedures specified  in 13.1 except that the hearing officer may elect to limit the hearing to a single day for presentation of evidence,  direct and cross-examination of witnesses,  and rebuttal.

and limited  the expedited hearing to one day, March 1, 2001.  The record was closed 5:00 p.m., March 1, 2001.

The decision is attached.

STATE OF MAI N E

SP EC I AL  EDUC ATI ON DUE P ROC ESS H EARI N G March 14,  2001
Case # 0 1 .02 9 , Parents  v. E U T / S A D # 5 8

REPRESENTING THE PARENTS:	The parents  represented themselves
REPRESENTING THE SCHOOL:	Donald Kopp, Esq. REPRESENTING EDUCATION  IN THE	Sarah Foster,  Esq., Assistant
UNORGANIZED TERRITORIES:	Attorney General

HEARING OFFICER:	Stephen  Ulman

I.	Pre l i m i nary  S tate m e nt 

The findings of facts and conclusions  are detailed  later  in this decision; however,  a factual review is presented at this time  to provide  the reader with  an overview  of the dispute.
The student is a xx year old, 3rd   grader.   Prior to October  2000 he was tuitioned by Education  in the Unorganized  Territories of Maine (EUT) to the Strong  Elementary  School in Strong,  Maine, which is part of School Administrative District #58  (MSAD #58).  He started kindergarten at the Strong  School in the fall of 1997 and was first referred to special education as a first grader in 1998.  The student was identified as Learning Disabled and held that classification until it

was changed to Emotional  Disability  in September of 2000.  On October 20,  2000 the student’s Pupil Evaluation  Team (PET) changed the student’s placement from a self-contained classroom  with supportive services to home tutoring.  This change was made because of aggressive  behavior  and only until a day treatment or residential placement could be found.  The parents  challenged  this change of placement.
The student is currently identified as needing special education services because of an Emotional  Disability, [Maine Special Education Regulations  (MSER)Section 3.5].
A student with  an emotional disability has a condition, which exhibits  one or more of the following characteristics over a long period of time,  and to a marked degree that adversely  affects the student’s educational performance:

1.  An inability to learn that cannot  be explained by intellectual, sensory,  or health  factors;
2.  An inability to build or maintain  satisfactory interpersonal relationships with  peers and teachers;
3.  Inappropriate types of behaviors  or feelings under normal circumstances;
4.  A general pervasive  mood of unhappiness or depression;
5.  A tendency to develop  physical symptoms or fears associated with  personal or school problems.

The term  includes schizophrenia.  The term  does not  apply to students who are “socially maladjusted,” unless it is determined that they  have an emotional disability.

The parents  contend that the student should be returned to public school and would prefer a transfer to the Kingfield  Elementary  School in Kingfield,  Maine, which is also part of MSAD #58.  EUT concurs  with that placement and has offered to finance the addition of
supportive services at the Kingfield  Elementary  School.  MSAD #58 strongly disagrees and argues that Kingfield  Elementary  is an even less appropriate public school placement than the Strong  Elementary
School because of space restraints and staff training.

II.	Issue  f o r  He ari ng 

What is a Free and Appropriate Public Education  (FAPE) in the Least Restrictive Environment (LRE) for the student and how can Education in the Unorganized  Territories (EUT) provide  FAPE in LRE?

III.	Fi nd i ng s  o f  Fact  and  S ti p ul ati o ns 

St ipu la t ion s :

1. 	The student resides with  his parents  in the unorganized territories.
2. 	The student is identified as a student in need of special educational services.
3. 	The student has been identified as emotionally disturbed.

4. 	“Stay Put” is tutorial services.

5. 	There are no claims of procedural  violations. Facts: 
1. 	The student started kindergarten 1997-98 in Strong  School.

SW-2

2. 	The student was first referred to Special Education  in

September 1998 in 1st grade.   SW-2

3. 	The student was first diagnosed  as Learning Disabled (LD) at the September 29,  2000 PET. SW-2, MSAD 58,  pg 59

4. 	In January 1999 the student was placed by the PET in the self- contained program.  SW-2
5. 	In the spring of 1999 home visits  were started to support student’s mother in dealing with  the student’s oppositional behavior.  SW-2
6. 	Suspension has been used as part of management since the spring of 1999 (1st grade year). SW-2
7. 	By November  of 1999 (2nd grade year) the student was threatening to kill teachers  with  a gun. SW-2
8. 	Oppositional behavior  which has been seen at school for some time  has recently started at home and includes physical resistance, verbal attacks, threats of great physical harm to others  including  the use of guns to kill people.   PW-1, PW-2, PW-3
9. 	Oppositional behavior  at home is not  as bad as at school. PW-1, PW-3
10.  Oppositional behavior  occurs when the student is asked to do something he doesn’t want to do both  at home and at school. PW-1, SW-1
11.  The school administration used a management plan in addition to the behavior  intervention plan and which was more comprehensive than the behavior  intervention plan (which only

sending the student home.  PW-1, SAD 58-19, SAD 58-20

12.  The parents  agree to day treatment if it does not  send the student home when he acts up. PW-1
13.  The student’s parents  are willing to consider  residential placement if it includes home visits  on weekends.   PW-1, PW-2
14.  The parents  have visited  several regional day treatment programs.   PW-1, PW-2
15.  The parents  report that the student wants  to go to Kingfield and has relatives at Kingfield.   PW-2, PW-1
16.  The Kingfield  and Strong  schools are equal distance  from the student’s home.  PW-1
17.  The student is not  acceptable for any area day treatment because he is too  young and/or he lives too  far away.
PW-3, P-1, P-2

18.  The student needs a comprehensive therapeutic day program that is not  available.   EUT-1, PW-1, PW-3
19.  If the student were assigned back to any interactive educational setting, medication would be started.  EUT-1, P-4, P-8

without success in controlling the oppositional behavior.   SW-1, SAD #58-19, SAD #58-20
21.  Behavior programs  using rewards have been used and modified over time  without success.   SW-1
22.  The student has an emotional problem  that precludes  his ability to control his behavior.   SW-1
23.  The Kingfield  School program  is primarily  for academic difficulties and students with  behavioral  problems  are sent to the Strong  School.  SW-1, SW-3
24.  Well-trained and skilled teachers  staff the Strong  School

Behavior Program.   SW-1, SW-3

25.  The Strong  School Program that the student was in is essentially  a day treatment program  and has individual counseling  and physical restraints.  SW-1
26.  The student has been admitted to St. Mary’s Hospital  for suicidal inclinations.  SW-1, MSAD 58,  pg 008,  SW-2
27.  The student’s only coping skill when challenged  or aroused is anger. SW-1
28.  The student’s behavior  is not  willful  and not  in control of the student and therefore behavior  plans fail.  SW-1

29.  The student needs a 24-hour environment with  consistent rules where escape from the rules is not  an option  and other behaviors are taught.  SW-1, SW-2, SW-3
30.  Academic  skills have suffered as demonstrated by a reduction of the level of performance on standard  tests.  SW-1, SW-2, SAD 58-1
31.  The student’s behavior  was interrupting the learning of other students.  SW-1, SW-2
32.  Repeated suspensions for violent behavior  was an administrative action  and not  part of the behavior  plan.  SW-1
33.  If the student is put under any academic pressure at all he is not  able to control himself.   SW-1
34.  The student is not  working  to age level or grade placement and is not  making progress.   SW-1, SAD-58-38, SAD 58-43
35.  Early intervention is desirable before the negative behavior becomes  habit.  SW-1
36.  In April 2000 (2nd grade year) the student was threatening to kill himself.   The school referred the student to a hospital based Crisis Center.  SW-2
37.  The student was sent home only when his violent oppositional behavior  became an issue with  other  students. SW-2

to other  students and say “fuck you” or say to people entering the room “You’re a fucken slut”. SW-2
39.  The student has picked up objects such as yardsticks and bathroom plungers  and threatened other  students and adults. SW-2
40.  If a day treatment program  were available, EUT would have enrolled  the student several months  ago.  EUT-3, P-1, P-2
42.   Kingfield  has a space problem  which is being addressed  by the construction of a new addition, but which will not  be completed for some time.  SW-3

IV .  Co ncl usi o ns 

Wh a t  is  a  F r ee  a n d  Appr opr ia t e  P u blic  Edu c a t ion  (F AP E)  in 

the  Le ast  R e stri cti ve  E nvi ro nm e nt  ( LR E ) f o r the  stud e nt  and ho w  can  E d ucati o n i n the  U no rg ani ze d T e rri to ri e s ( E U T )
pr ov ide  F AP E  in  L RE? 

MSER defines FAPE as:

1.3   Free Appropriate Public Education

The guarantee of equal educational opportunity entitles each student with  a disability residing in the State,  including students with  disabilities who have been suspended  or expelled, to be provided  with  a free appropriate public

services designed  to meet their  unique needs and prepare them  for employment and independent living.   This education includes special education and supportive services …

MSER defines LRE as:

11.1  Least Restrictive Educational  Alternative, Generally

To the maximum  extent appropriate, students with disabilities, including  students in public or private institutions or other  care facilities, shall be educated with  students who are not  disabled, and special classes, separate  schooling,  or other  removal  of students with  disabilities from the regular educational environment shall occur only when the nature  or severity of the disability of a student is such that education in regular classes with  the use of supplementary aids and services cannot  be achieved satisfactorily.

All parties  agree that the current placement of home tutoring is too restrictive and needs to be changed.   It is further generally  agreed that day treatment, were such a program  available, would be a possible option.  With the day treatment placement not  available because of
the student’s young age and/or travel distance  the parties  turn  in opposite directions.  The parents  and EUT promote a placement even less restrictive than the recently abandoned  self-contained classroom at the Strong  School and request a modified regular classroom placement at the Kingfield  School.
It is the conclusion  of this hearing officer based on the evidence that even with  medication and classroom  modification (assuming

physical space could be found) this placement is most likely to fail. The MSAD #58  staffing patterns has the Kingfield  staff primarily trained and equipped  to handle learning disabled students in a Resource Room setting with  the bulk of the ED students attending the Strong  Elementary  School where the staff is specifically trained to handle behavioral  issues.  Given the student’s past behavior  which
includes threats of shooting people with  guns and using yardsticks and bathroom plungers  as weapons such a placement at this time  could be dangerous  to the student and others.   To train and equip the Kingfield staff, assuming space could be found, would take a significant amount of time  and would only replicate what has already been tried without success at Strong.
MSAD #58  clearly prefers the Residential Treatment option.  Dr. Rogers, Ph.D., School Psychologist, Linda Kemp, Special Education Teacher, and Susan Koob, MSAD #58  Special Education  Director, all agree that 24 hrs/day intervention is necessary  at this point in time.
In order to determine the least restrictive environment appropriate for the placement of a student a PET must use the criteria given in Regulations  at Section  11.2
11.2  Criteria – Least Restrictive Educational  Alternative:
Each Individualized  Education  Program shall be developed in accordance  with  the principle  of the least

restrictive educational alternative.  Criteria for the determination of the least restrictive educational alternative shall include the following:
A.  A special education placement shall be based on the student’s Individualized  Education  Program and shall be reviewed  at least annually;
B.  A student with  a disability shall be placed in the school the student would normally  attend unless the
Individualized  Education  Program requires a different
placement.  In such a case, the placement shall be a close as possible to the student’s residence;
C.  A student with  a disability shall be removed  from the
regular educational environment only when the nature  or severity of the disability is such that education in regular classes with  the use of supplementary aids and services cannot  be achieved satisfactorily;
D.  The facilities and accommodations available at a
proposed  placement shall be comparable  to those
available at the school the student would typically attend; E.  A student with  a disability shall be educated with  non- disabled peers and be provided  an opportunity to participate in non-academic and extracurricular activities to the maximum  extent appropriate; and
F.  In selecting the least restrictive educational alternative, consideration will be given to the potential harmful effect on the student or on the quality  of services that he or she needs.
11.3  Continuum  of Special Education  Placements:
Each administrative unit shall ensure that a continuum of special education placements is available to meet the needs of students with  disabilities and shall ensure that special education services and support services are available in conjunction with  a continuum of special education placements.
A continuum of special education placements shall include regular classes, resources  classes, self-contained classes, public separate  day school classes, private separate  day school placements, public residential placements, private residential placements, and housebound/hospital placements.

Comparable Facilities – Facilities in which special education services are provided  to students with  disabilities  shall be comparable  to those  in which regular
education is provided  to regular education students and located  in chronologically age appropriate settings.
11.4  Regular Class Placement:
A Regular Class Placement is a placement where a student with  a disability receives a majority of their  educational program  with  non-disabled  students, receiving  special education and supportive services OUTSIDE THAT CLASSROOM for less than 21 percent of the school day. This may include students with  disabilities placed in
regular class with  special
education/supportive services provided  within  the regular class, or regular class with  instruction within  the regular class and with  special education/supportive services provided  outside  the regular class.  Students receiving monitoring services are included  in this category.
11.5  Resource Class Placement:
A Resource Class Placement is a placement when a student with  a disability receives special education and supportive services OUTSIDE THE REGULAR CLASSROOM for 60 percent or less of the school day and at least 21 percent of the school day.  This may include students with disabilities placed in resource  rooms with  special education/supportive services provided  within  the
resource  room,  or resource  rooms with  part-time instruction in a regular class.  Resource classes shall be located  in chronologically age appropriate settings and the facilities shall be comparable  to those  in which regular education is provided  to regular education students.
11.6  Self-Contained Class Placement:
A Self-Contained Class Placement is a placement where a student with  a disability receives special education and supportive services OUTSIDE THE REGULAR CLASSROOM for more than 60 percent of the school day in a self- contained program.   This may include students with disabilities placed in self-contained special classrooms  with part-time instruction in a regular class, or self-contained special classrooms  full-time.  Self-contained classes shall
be located  in chronologically age appropriate settings and

education is provided  to regular education students.
11.7  Public Separate Day School Placement:
A Public Separate Day School Placement is a placement where a student with  a disability receives special education and supportive services for greater than 50 percent of the school day in public separate  day school facilities.  Public separate  day school facilities shall be comparable  to those  in which regular education provided to regular education students.
11.8  Private Separate Day School Placement:
A Private Separate Day School Placement is a placement where a  student with  a disability receives special education and supportive services for greater than 50 percent of the school day in private separate  day school facilities.  Private separate  day school facilities shall be comparable  to those  in which regular education is provided  to regular education students.
11.9  Public Residential Placement:
A Public Residential Placement is a placement where a student with  a disability resides and receives special education and supportive services for greater than 50 percent of the school day in public residential facilities.
11.10 Private Residential Placement:
A Private Residential Placement is a placement where a student with  a disability resides and receives special education and supportive services for greater than 50 percent of the school day in private residential facilities.
11.11 Homebound/Hospital Placement:
A Homebound/Hospital Placement is a placement where a student with  a disability receives special education and supportive services at home or in a medical treatment facility.  Home instruction is usually appropriate for only a limited  number  of students, such as students who are medically  fragile and are not  able to participate in a school setting with  other  students.

In choosing  between the available educational options this hearing officer considers  several factors.  They include, but are not  limited  to:

must be of greatest concern.

2.  How quickly  the program  can be implemented.

3.  The amount of time  the various experts  have actually spent testing and/or observing  the student.
4.  In what environments the experts’ have observed  the student (i.e., clinical, home, school)  with  greatest importance given to in-school  observation because that appears to be the most troublesome environment.
It is, therefore, the conclusion  of this hearing officer based on the evidence  and MSER criteria that a significant safety issue exists  for students and staff which cannot  be addressed  by the addition of supplementary aids and services in the public school setting.  Therefore, the student cannot  at this time  be educated with  his peers in a regular class placement, resource  class placement, or self-contained class placement.  Testimony by several witnesses  was convincing that such a placement could lead to physical injury  to the student, peers and/or staff. Private separate  day school placement is not  currently an option  because of age and distance.   Therefore, private residential placement is the LRE available in which this student may receive FAPE.

V.	Or der 

EUT will within  10 school days convene a PET which will develop  an IEP which places the student in a residential treatment program  designed  to provide  Special Educational  Services to children  with  emotional disabilities. Residential treatment programs  located  within  close proximity to the student’s home will be given preference.  All actual  transportation cost to the parents  to and from the residential treatment program  will be paid by EUT at the frequency recommended by the Residential Treatment
Program.

_________________________ 
STEPHEN G. ULMAN Hearing Officer March 14,  2001

SAD  #58  Wit n es s es 

SW-1 	Tim R. Rogers, Ph.D. – School Psychologist

SW-2 	Linda Kemp – Special Education  Teacher

SW-3 	Susan Koob – SAD #58  Special Education  Director

E U T W i tne sse s

EUT-1 	Tim McMann EUT-2 	Laurie Ferrari EUT-3 	Dan Field

Pare nt  W i tne sse s

PW-1 	Father

PW-2 	Mother

Li st  o f  E xhi b i ts 

SAD 58-1 	September 21,  2000, Psychological  Evaluation  by Tim R.

Rogers, Ph.D. – 9 pages

SAD 58-2	October  20,  2000, Summary of Functional  Behavior

Analysis – 4 pages

SAD 58-3	October  18,  2000, Functional  Assessment Interview – 9 pages
SAD 58-4	April 10,  2000, Functional  Assessment Interview – 9 pages
SAD 58-5	Example of Functional  Assessment Observation Form – 2 pages
SAD 58-6	October  3, 2000, Occupational Therapy  Screening by Erica

Englemann, OTR/L – 1 page

SAD 58-7	October  15,  1998, Psychological  Evaluation  by Tim R.

Rogers, Ph.D. – 5 pages

SAD 58-8	October  23,  1998, Special Services Evaluation  Report by

Cindy Richards, Special Education  Teacher – 6 pages

SAD 58-9	December  8, 2000, PET Minutes – 6 pages SAD 58-10 	October  20,  2000, PET Minutes – 4 pages SAD 58-11 	September 29,  2000, PET Minutes – 5 pages

SAD 58-12 	September 15,  2000, PET Minutes – 6 pages SAD 58-13 	August 21,  2000, PET Minutes – 4 pages SAD 58-14 	May 17,  2000, PET Minutes – 4 pages
SAD 58-15 	November  18,  1999, PET Minutes – 2 pages

SAD 58-16 	April 13,  1999, PET Minutes – 3 pages SAD 58-17 	January 28,  1999, PET Minutes – 2 pages SAD 58-18 	October  20,  2000, IEP – 2 pages
SAD 58-19      November  18,  1999, IEP and Behavior Plan – 15 pages SAD 58-20      November  12,  1999, IEP and Behavior Plan – 14 pages SAD 58-21      January 11,  2001, Letter from Parents to Due Process
office – 1 page

EUT 1-5 	Psychological  Evaluation  – dated  9/10/98,

10/8/98, 10/15/98 – by Tim Rogers

EUT 6-10	St. Mary’s Regional Medical Center

Psychological  Evaluation  dated  5/2/2000

EUT-11 	Summary of services letter from Cheri Brackett dated

August 21,  2000

EUT 12-13 	Summary of Functional  Behavior Analysis dated

EUT 14-20 	Daily point charts  from the tutor, Val

Tucker, dated  10/23/00, 10/27/00, 11/1/00, 11/2/00,

11/2/00, 11/8/00, and 11/9/00

EUT 21-23 		Pediatric Behavioral Medicine Clinic Parent Conference summary  dated  November  28,  2000 and written by Michael Nurick, Ph.D
EUT-24 	Letter from Michael Keys, Clinical Coordinator, Renaissance

School (St. Mary’s) dated  12/6/2000

EUT-25 	File notes  pertaining to an informal meeting held with

Parents, Betsey  Polland, Tim McMann, and Dan Field dated

1/9/01 and 1/19/2001 (Phone call from Betsey  Polland to

Dan Field)

EUT-26 	Copy of a letter from Dan Field to Parents dated  1/25/2001

P-1 	Letter to Parents from Renaissance School 12/19/00

P-2 	Letter to Polland from Keys 12/6/00

P-3-5 	Evaluation  11/28/00 Nurick, Ph.D P-6-8 	Evaluation  1/20/01 Sytsma,  MD