State of Maine
Special Education Due Process Hearing Decision

Parent v. Augusta, Case No. 01.149

REPRESENTING THE SCHOOL: 	Amy Tchao, Esq., Drummond Woodsum & MacMahon REPRESENTING THE PARENT: 	Richard O’Meara, Esq., Murray Plumb & Murray HEARING OFFICER: 	Carol B. Lenna

This hearing was held and the decision written pursuant to Title 20-A, MRSA, §7207-B
et seq., and 20 USC §1415 et seq., and accompanying regulations.

The case involves the student whose date of birth is dob.  He resides with his mother in Augusta, Maine.  The student has just completed seventh grade at the Buker Middle School, a local public middle school in the district.

The student is eligible for special education services as a student with an emotional disability.       Testing results have shown, attention deficits and cognitive processing deficits related to an Attention Deficit Hyperactivity Disorder and Conduct Disorder, complicated by underlying Chronic Dysphoria.      Both the school and the parent considered  the 2000-2001  school  year to have  been  unsuccessful  for the student. Unable to come to agreement on a program for the coming school year, the parent requested a due process hearing on June 5, 2001.

Extensions  to the original  dates set for the prehearing  conference  and the hearing were requested by both the school and the parents and granted by the hearing officer. The parties met in a prehearing conference on July 9, 2001 to exchange documents and witness lists.   Five hundred and twenty-eight pages of documents were entered into the record.    The hearing convened on July 16, 17, 20 and 23.  Eight witnesses gave testimony.  The hearing record closed on July 31, 2001.

Following is the decision in this matter.

I.  Preliminary Statement

The student is eligible for special education services as a student with an emotional disability.   Recent evaluation results show that he struggles with significant attention deficits and a variety of cognitive processing deficits related to an Attention Deficit Hyperactivity Disorder.  Intellectual testing shows high average verbal capabilities, but significantly  lower  nonverbal  reasoning  skills.    Previous  assessment  has  given  a

academic achievement has been uneven, but teachers state that he is a student with the ability to complete grade level coursework.

The parent argued that the school failed to provide a free appropriate public education for the student during the 2000-2001 school year.  It is her position that appropriate programming was not in place for the student for a majority of the school year, and that the school’s attempts to address the student’s social/behavioral issues toward the end of the year failed because of poor design and improper implementation.  She maintained that the school’s failures denied the student access to a normal school day for much of the year and therefore entitles him to compensatory educational services. She further argued that the school failed to begin transition planning in a timely
manner for the 8th grade program, thereby jeopardizing the success of that program.

The school argued that the student’s long history of serious behavioral problems, both in and out of school, has made it difficult for him to participate in a regular public
school setting.  They argued that despite their programming efforts he met with little success during the past school year.  They maintain that the student’s shortened school day was, in large part, a result of the parent’s insistence that he not be involved with the behavior alternative program at the Middle School.  They argued that the
student’s behaviors have become pervasive and serious enough that he may need the more structured environment  of an out-of-district behavioral treatment program.

Issues

1.  Did the Augusta School Department deny a free appropriate public education to the student during the 2000-2001 school year by:

θ 	failing to provide a full-day program and placement for the majority of the school year;
θ 	failing to develop and implement a positive behavioral intervention plan in a timely fashion;
θ 	failing to provide him with extended school year services; and
θ 	failing to properly and effectively transition him to an appropriate
educational placement for the 2001-2002 school year?

2.  If so, to what relief is the student entitled?

3.  Is the IEP proposed for the 2001-2002 school year reasonably calculated for the student to receive educational benefit in the least restrictive educational environment?

Findings of Fact

1.  The  student  is  a  student  with  a  disability  under  the  category  of  emotional disability.      Recent scores achieved on the Wechsler Intelligence Scale for Children  – Third Edition  (WISC-III)  were  in the average  range,  giving  a Full Scale  Score  of 101, with wide  variations  in subtest  scores  ranging  from the second to the ninety-fifth percentile. Academic functioning, as determined by the Wechsler Individual Achievement Test, is at or above grade level, with reading and language arts scores higher than math.   Academic skills are judged by his

completion  and  quality  of  work  performed  impact  his  grades  significantly. (Exhibit: P.12-30; Testimony: Doiron, Haley, Eaton)
2.  The  student  was  first  identified  in  need  of special  education  services  as  a preschool student, but was dismissed from services during third grade.  During the 1997-1998 school year in 4th grade he was reinstated as a student in need of special education services, again under the category of behavior impairment (now emotional disability). The student’s therapist, Dr. Hughes, advised the PET that  the  student  would  not  benefit  from  being  in  a  self-contained  class  for children with behavioral problems, as the setting was likely to encourage his inappropriate behaviors.   He also noted that the student does worse when he sees he is “getting under the skin of the adult in charge”. The school’s evaluator advised the PET to consider the student’s needs and his current placement to assure  a  good  teacher/student   match.  (Ex.  307-312,  313,  314-323,  325; Testimony: Hughes, Parent)
3.  As behavior problems continued, the parent requested the PET meet again to refine program expectations and develop a behavior plan.     A behavior plan was developed a plan, which began March 2, 1998.  An educational technician was hired to implement  the plan.    (Ex:    299, 303-304,  305-306;  Testimony: Parent)
4.  School documents show that classroom disruptions declined to an acceptable level during the late winter and spring, but that the year ended badly with the student  being  suspended  the  last  days  of  school.  (Ex:  285-286,  295-296,
299-300, 301-302)
5.  In a letter dated  August  19, 1998,  the parent  requested  a meeting  with  the director of special education, pointing out that she had requested the PET meet in a timely manner before the beginning of the new school year to plan for the
5th grade year.     The PET did not meet until October 1, 1998.    (Ex: 276-279,
289)
6.  At the beginning  of 5th grade (1998-99  school year) the parent enrolled  the student at the Evergreen school, a local general-purpose  private school.   The PET  met  October  1,  1998  to  discuss  programming  for  the  year.     The  IEP developed  at the meeting placed him in the Behavior Alternative  Program, a self-contained behavior program, for all academic classes, with group psychological  services  one  hour  per  week.    The  IEP contained  two  goals: “student will demonstrate improvements in self-responsibility…related to academic  progress”,  and “be able  to interpret  and relate  to his environment using appropriate social interactions with peers and adults…”   There was no behavior plan developed as part of the IEP.  The parent declined the program and  left  the  student  at  Evergreen  School.      (280-284,  276-277,  278-279; Testimony Parent)
7.  The student returned to the district in March 1999. 	The PET met March 22,
1999, for the purpose of transition from Evergreen School back to the district. The IEP provided 2 hours of off-site tutoring daily for four weeks, with a plan to transition to the self-contained  behavior room and some mainstream classes. The goals did not change from the October 1998 IEP, except a math goal was added.  The IEP contained no behavior plan.   (Ex. 263-272)
8.  The PET convened  May 12, 1999.    The student’s behavior  was inconsistent across settings, but generally his behavior was deteriorating.   The student’s therapist viewed the student’s then-current problems to be more extreme that he had witnessed here-to-fore.   The PET placed the student in the summer day treatment program at Spurwink School.   (Ex: 254, 256-262; Testimony: Hughes, Parent)
9.  Ms.  Whitfield,  the  school  psychologist,  conducted  a  Functional  Behavioral

Assessment in June 1999.     She noted antecedents to the student’s inappropriate  behavior include change in schedule  or routine, transition from large to small groups, being confrontational, telling him he must follow through on a task without prior explanation or choices. She found that aggressiveness and refusal to work were the consequent behaviors.  She counseled the school to set behavioral goals and design a behavior management plan with positive incentives and consequences.   She made clear that the student needed to be involved in the planning.  “Frequent communication between home and school needs to continue, and the team of professionals and the family who support the student needs to be ongoing.”  (Ex. 251-255)
10. The  PET  met  twice  in  July  1999  to  discuss  progress  and  programming  at Spurwink and decided the student would continue his placement there for the coming school year.   The discussion summary shows that the student had a difficult adjustment to the program and that he was struggling with the program concept and having limited success initially.   (Ex. 246-247)
11. A neuropsychological assessment obtained by the parent in August 1999 found the  student’s  performance  on  tests  “strongly  suggestive  of  ADHD…”        He strongly  advised  against  the student’s  placement  at Spurwink  for the school year. (Ex. P.97)
12. The IEP for the Spurwink placement,  dated October 1999, is comprehensive, but  progress  toward  meeting  the  goals  and  objectives  is  not  scored.        A narrative report dated March 1, 2000 shows that the student made progress in behavioral expectations and academic work, and that “therapeutic holds” decreased from 28 in October to 0 as of February 15.  The student moved into a new classroom at Spurwink soon after this report.    Behavior events and therapeutic  holds  again  increased  significantly  after the move. (Ex: 163-178;
202-210; 211-235; Testimony: Parent)
13. The  PET  met  on  April  24,  2000  to discuss  the  parent’s  concern  about  the increased use of therapeutic holds as part of the student’s behavior management. 	Unable  to come to agreement  on the behavior  management plan, the PET determined that the student would no longer participate in the Spurwink Day Treatment Program.   The student wrote to the principal of Buker Middle School asking to be admitted for the balance of the 6th grade.  The PET reconvened on May 12 to consider this change of placement and determined that  the  student  would  return  to  Buker  in  the  mainstream  on  “consultation” status, with the resource room teacher as the case manager.   A new IEP, for the period May 2000-June 2000, was written to reflect this decision.   No behavior plan was written.   The program continued until the end of the school year. Behaviors were inconsistent.  A behavioral event during the last week of school resulted in the student being suspended during the last days of school.  (Ex: P.
55, 137-145; Testimony: Parent, Carville)
14. The PET convened on September 12, 2000, in preparation for the student’s 7th grade program.    The team decided that the student would be on the caseload of the Behavior Alternative Program, the in-school self-contained behavior program. The teacher of that program was to meet with him at least twice weekly to organize uncompleted work and upcoming work.   Beyond that he would be expected to comply with school rules in a full-time mainstream 7th grade curriculum.    No new IEP was written.      No behavior  plan was written.   The student’s behavior began to be problematic; work completion was poor.   The behavior  program  teacher  was  not meeting  with the student.    At a meeting among the parent, the principal and the director of special education on September  29, the parent suggested  a shortened  day for “a period  of time”. She intended this period to last 2-3 weeks with the purpose being to relieve

pressure and thus assist the student to manage his behavior during the school day.  No one is sure when the shortened day option began, exactly.   (127, 131,
133-140; Testimony Parent, Strobel, Carville)
15. The  student  was  on  an  abbreviated-day   program  beginning  on  or  about October 2, 2000 until May 8, 2001.   During that period, his day began at 7:45 a.m., and ended at 10:05 am.  When inappropriate behavior issues dictated, he was sent home earlier, or he left on his own initiative.  Attendance records from September   through   January   show   the  student  was  dismissed,  tardy  or suspended for a total of 38 out of a possible 91 school days.  (Ex: 12-14, 85, 40; Testimony: Parent; Carville)
16. The PET met November 2, 2000.   A new IEP was written which stated that the student would attend classes 4 periods out of 7, and be sent home if he was sent out of class due to inappropriate behavior.  The goals in this IEP state that he will: “maintain passing grades…”, and “improve assignment  completion…” No behavior plan was developed as part of the IEP.  The team determined they would meet again on December 1 to reassess adding period 5, but no plan for reintegrating  him into a full day was discussed  or written as part of the IEP. (120-121, 122-126; Testimony Parent, Carville)
17. As early as November 29 the parent began requesting that the student’s full day be  reinstated.  The  PET  met  again  January  9,  2001.     At this  meeting,  the student’s school day was extended to add 5th period, or until 10:45 a.m.   The PET  met  again  on  January  24.     Several  school  staff  at  the  meeting  were adamant  that the student  be placed  in the alternative  program.       Teachers shared anecdotal events involving the student but no objective information was presented on the frequency or intensity of his behavior episodes in school.  The team was unable to reach consensus.   The team determined he would remain in his current  program  and  that the parent,  the principal  and  the director  of special education would meet to discuss alternative programming.       They requested that objective data be gathered to share with the PET.   (Ex, P. 47,
110, 111-112, 113-115; Testimony: Parent, Carville)
18. On February 27 the student’s teachers began to complete a “daily report” sheet that “[the student] designed”.   Dr. Keegan was consulted to incorporate this reporting  mechanism  into  a  behavior  plan.     There  is  no  indication  that  a behavior plan was written, or that Dr. Keegan met with the student’s teachers, the student or the parents for this purpose.   The data reported by the teachers was not compiled nor was the information used to make program decisions for the student, however it is clear that generally the student’s performance was markedly better for some teachers than others.   These “daily reports” did not result in achieving the student’s goal to return to a full-time schedule.  Dr. Moran did not use this information in the development of his behavior plan.  (Ex. 108,
109, 86; Testimony Strobel, Moran, Haley, Parent)
19. On March 16 the PET met again.   The parent requested the school conduct a Functional Behavior Assessment and involve a Behavior Consultant in the student’s   program.            In  addition,   the  parent   requested   a  number   of compensatory educational services to address subjects not included in the student’s curriculum during the year.   The parent again requested that the student’s  full school  day be reinstated  immediately.    The meeting  summary states that “[t]he PET stated that if [student] were to have a full day at Buker it

would need to be in the Alternative  program”.      Since the parent would not agree  to  this  placement,   the  student  continued   on  his  abbreviated   day schedule.        The  determinations  direct  the  school  to complete  a  functional behavior assessment and involve the behavior consultant in the student’s program.  The determinations also direct the school to begin transition planning

8

for   th

grade. 	(Ex.  96-97, 105-107)

20. The Functional Behavior Assessment was conducted by a behavior consultant, Dr. Moran,   under contract to the district.      The assessment consisted of two days of direct classroom observation (March 20 and 28, 2001), interviews with teachers, parent and the student, and the analysis of functional behavioral assessment   records  completed  by  two  teachers.  He  made  a  number  of educational recommendations that he incorporated into a program design with a detailed behavior plan. (Ex. 88-95; Testimony Moran)
21.The PET met on April 24 to review the consultant’s assessment and recommendations  in order to develop a new program for the student.    A new IEP was written to reflect a full-day program as well as staffing for the program. The behavior plan was incorporated into the IEP.  (Ex. 66-75, 79-87; Testimony Strobel, Parent)
22. An educational Technician (ed tech) was hired to implement the program, which began  May  8,  2001.  The  student’s  teaching  team  did  not  meet  with  the consultant and the ed tech prior to the implementation of the program.  Between May 8 and May 17 the student achieved the behavior goals 4 out of 10 days, with one major event that led to a three-day suspension on May 17.  (Ex. 61-62,
65, 85, 57-60, 54, 55, P37; Testimony: Eaton, Moran, Strobel, Parent)
23. The PET convened on May 22. Revisions were made to the behavior plan in an attempt  to provide  greater  incentives  for success.    From  May  23,  when  he returned after the suspension, until June 7 the student achieved the behavior goals 3 out of 15 days.   The student left school June 7 after a major behavior incident involving the behavior room teacher.   The student was suspended for three days.   The teacher filed formal charges against the student alleging harassing behavior.   When the school would not provide a buffer between the student and the teacher for the remainder of the school year, the student did not return for the balance of the school year.  From May 8 through the end of school he was dismissed, suspended or choose to leave school 12 out of 25 days.  (Ex.
52-53, 85, 30, P32, P34; Testimony Eaton, Strobel, Parent; Carville)
24. The ed tech hired to implement the student’s program is certified as a Level I Educational Technician.  She holds a high school diploma and has worked with a number of service agencies, but had not previously worked in a school setting with adolescents with emotional disabilities.   Her supervisor, the teacher of the alternative behavior program, had no previous experience working with adolescents with emotional disabilities.     Her teaching experience prior to the
2000-2001  school  year  is  confined  to  four  months  of  supervised  student teaching in a classroom with mildly mentally retarded and learning disabled students  and  14  months  as  a  district-wide  substitute  teacher.      (Ex.  329; Testimony Eaton, Strobel)
25. A neuropsychological  evaluation  was  conducted  in  April  and  May,  with  an assessment report completed on June 14, 2001.   The evaluator, Dr. Doiron, concluded that the student has developmental problems of personal regulation that  have   become   especially   problematic   with  the  increasing   executive demands  of  middle  school.      He  found  the  student  to  have  high  verbal intelligence with neurodevelopmental problems affecting cognitive efficiency, working memory and processing speed.  Cognitive scores show he functions in the average range, having some abilities in the superior range. He concluded that the student  has  an immature  nervous  system  that is easily  stressed  by sensory  interference,  which  results  in  difficulties  in  self-regulation  and  self- control.   He made a number of program recommendations  that have yet to be reviewed by the PET.  He felt placement in a program for behaviorally impaired students was not the best solution for the student, but favored a faculty advisor/

mentor model.  (Ex. P12-30; Testimony: Doiron)

IV. Conclusions

Did the Augusta School Department deny a free appropriate public education to the student during the 2000-2001 school year by:

θ 	failing to provide a full-day program and placement for the majority of the school year?
θ 	failing to develop  and implement  a positive  behavioral  intervention plan in a timely fashion;
θ 	failing to provide him with extended school year services; and
θ 	failing  to properly  and  effectively  transition  him  to an  appropriate
educational placement for the 2001-2002 school year?

The  student  was  denied  a  free  appropriate  public  education  (FAPE)  during  the
2000-2001 school year.    From early October until early May the student was denied access to a full school day, and his abbreviated day began without benefit of an IEP. He received no direct special education services during this period.    Classroom modifications, recommended by several evaluators, were never appended to the IEP. An appropriate  IEP, with an appended  behavior  plan that addressed  the behaviors that impeded his learning,  was not developed until May.

The  Individuals  with  Disabilities  Education  Act  (IDEA)  requires  that  local  schools provide  students  identified  as  disabled  with  a  “free  appropriate  public  education” which is described in the student’s “individualized education program” (IEP).  [20 USC
§1412(a)(1)(A), §1413 (a)(1), §1414(d)(A)]   The IDEA further requires that

[t]o the maximum  extent appropriate,  children  with disabilities…are  educated with children who are not disabled, and special classes, separate schooling, or other removal of children with disabilities from the regular education environment occurs only when the nature or severity of the disability of a child is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily.

20 USC § 1412 (a)(5)(A)

A review of the chain of events which led to the student’s removal from a full school day shows that this action was not the result of a thoughtful decision by the PET based on the student’s need to be removed to a more restrictive environment, but rather a response to the parent’s suggestion that a shortened day might assist the student to be more successful by relieving academic pressure to perform.  The previous school year had ended badly with the student being suspended the last few days.  The PET did not meet prior to the beginning of the new school year to review the student’s needs, and revise the program accordingly.   When the PET did meet, about three weeks into the new year, the parent and school did not come to agreement about placement.   The school wanted the student to be placed in the behavior alternative program for at least some portion of the day; the parent was adamant that placement in that program would be counterproductive to the student’s success.  A compromise plan was developed to have the behavior teacher “check in” with the student twice a week.  No new IEP was written, and there is no evidence that the behavior teacher met with the student.   No behavior plan was discussed or developed.

Problems  with  work  completion  and  disrupting  behaviors,  which  were  causing  the student to be excused from class, were already evident by late September.  The parent met with the principal and the director of special education on September 29 for a “brainstorming session”.  As part of that meeting the parent suggested they “…end the day after fourth period for a period of time to allow [the student] to gain control over the expected behaviors”     This suggestion was implemented immediately.   The PET did not meet again until November 2.   A new IEP was written at that time.  The shortened school day, the “modified day”, is included in the IEP as an “intervention,  strategies and supports” in consideration of the “student’s behavior which impedes his learning”. No additional behavior goals, behavior strategies or interventions are included in the IEP.

In developing or revising each student’s IEP the PET shall…in the case of a student  whose  behavior  impedes  his  or  her  learning  that  of  others, consider, if appropriate, strategies, including positive behavioral interventions, strategies [sic], and supports to address that behavior…

[MSER, 10.3D. Also 34 CFR 300.346(a)(2)(i)]

This means that in most cases in which a child’s behavior that impedes his or  her  learning  or  that  of  others  is,  or  can  readily  anticipated  to  be, repetitive, proper development of the child’s IEP will include the development of strategies, including positive behavioral interventions, strategies and supports to address that behavior…   A failure to…consider and address these behaviors in developing  and implementing  the child’s IEP would constitute a denial of FAPE to the child. …[I]f short suspensions that are included in a child’s IEP are being implemented in a manner that denies  the  child  access  to  the  ability  to  progress  in  the  educational program, the child would be denied FAPE.

34 CFR Part 300, Appendix A, 64 Fed. Reg. 12479, Q & A, No. 38 (March 12,
1999)

Arguably, using the student’s desire to be a “regular” student and participating in a full middle school day as a positive incentive, could be part of a larger behavior plan. However, to send a student home after half his academic day with no support system and no plan for reintegration for seven out of a nine-month school year is a denial of service.    This student had a history of being removed from class because of inappropriate  classroom behavior.   There is no evidence that the action of the PET was  a  part  of  a  plan  of  strategies  and  behavioral  interventions  to  address  that behavior.   The IEP did not include behavior goals, nor was there a behavior plan appended.   In fact, the student was, for the most part, expected to comply with school rules on his own initiative in the regular classroom without special education services. Evidence is clear that the student does not have the capacity for self-regulation in the school setting.

The school’s argument that the abbreviated day schedule was at parent request and therefore somehow relieves them from any liability is unconvincing.    The Pupil Evaluation Team, which includes the parent as an integral part, is responsible for… the development of an individualized Education Program appropriate for the student… [Maine Special Education Regulations, 8.1]  It is the responsibility of the PET to make determinations, based on objective data and discussion, of the needs of students, with parent participation. They are not to give up that responsibility in deference to parent’s

suggestions.    In this case, the parent and the principal discussed a course of action and a month later the PET met and wrote an IEP to incorporate the action into the student’s program.  The IEP was not the basis for this decision, and there was no plan for reintegration into the full school curriculum.    It is admirable that the school wished to  be  responsive  to  the  parent  and  flexible  in  its  programming  considerations. However,  the school cannot defer to the parent’s  wishes  when it is contrary to the needs  of the  student,  and  then  later  make  a  claim  that  they  were  hindered  from meeting the student’s needs because they did so.   Again, to deny a student access to a full school day, in absence of any plan, denies a student the free appropriate public education they are entitled to by law.

It is clear that both the school and the parent were becoming increasingly frustrated by the student’s school situation as the year progressed.   In late January 2001 the PET actually voted on placing the student in the behavior room, with the school members supporting  that  option  and  the  parent  disagreeing.     When  the  parent  requested objective data to support this placement, the school had the student design a report form on daily work completion and behaviors to be completed by his teachers.   This data was never compiled and used for program planning.   In March the school again posed to the parent the option to accept placement in the behavior room or continue on the abbreviated day.  This discussion around placement in the behavior room also was  not accompanied by objective data, new assessment information, nor even new goals and objectives.   The one time the school developed a draft IEP that placed the student in the behavior program, it was never offered to the parent.    If the school felt this was the appropriate program for the student at this time, they were obligated to make that decision, over the objections of the parent if necessary.

The school’s argument that the continuation of the abbreviated day was due to the parent’s refusal to accept their suggestion that the student be placed in the school’s behavior alternative program is troubling. Both testimony and documentary evidence support the parent’s claim that this offer was more in the nature of a quid pro quo:  the school would reinstate his full-day program if she would consent to his placement in the alternative program, rather than an actual offer of specific goals and objectives to address his behavior needs.

The parent continued to reject placement in the behavior alternative room over the school’s recommendation.    Evidence shows, however, that the parent’s position, from her perspective, was based on reliable past information.   The student’s therapist, Dr. Hughes,  who  has  a  long-term  relationship  with  the  student,  felt  it was  not  in  the student’s best interest. He testified that a self-contained program with only behaviorally impaired students would be contrary to meeting the student’s needs as he has the tendency to feed off the inappropriate behaviors of others.  A previous evaluator, in an evaluation obtained by the parent in August 1999, strongly opposed the student’s placement  in  a special  school  for behaviorally  impaired  students  and  opined  that “placing him in a special school at this point in time, particularly in light of the fact that his difficulties are likely treatable, communicates to him that his problems are largely insurmountable, and is likely to have a deleterious effect on his self-esteem”.   The parent’s statement that she ignored that recommendation and continued the student at Spurwink  against  what  she  described  as  her  better  judgment,  coupled  with  the student’s adamant opposition to placement in the program or any association with it, makes it clear that she was consistent in her position for what she considered to be sound   educational   reasons,   and  that  she  advocated   for  her  son  accordingly. However,  notwithstanding  the  parent’s  position,  if the  school  felt  strongly  that  the behavior  room  was  the  appropriate  placement  for  the  student,  they  should  have moved forward with that placement, thus giving the parent the opportunity to exercise

her due process rights if she objected.     To state that they would have appropriately served the student, but for the parent’s position, is unpersuasive.  The parent’s position regarding placement does not permit the school to disregard what they believe is their responsibility to provide the student with a free appropriate public education.

It is, on the other hand, impossible to evaluate whether the alternative room placement would have provided an appropriate program for the student.    Both documents and witnesses most often described the placement as a place.   School staff testified that the student needed to have the support of “the alt room”, or “the alt teacher”.  They did not suggest what supports would have been provided there, or what strategies would have been employed.   No evidence was presented at the hearing to describe what behavior  interventions,   services,  or  outcomes  would  have  been  expected  from placement in that program.     The teacher of the program was not called to testify, so there is no way to know how she might have envisioned the student benefiting from the program.

In addition to the abbreviated day program, the student left school on an increasingly regular basis.   By the end of the school year the student had, by estimate, missed close to half of his 7th grade class time.  The school argues that they were powerless to prevent this because the parent requested it.  The evidence shows that, once again, the parent offered a suggestion to provide immediate consequence for inappropriate behavior.     This  suggestion  became  institutionalized  into  the  program,  and  again without intervention, the school points to it now as another cause for their inability to provide  a  successful  program  for  the  student.     Regardless  of  how,  or  why  the suggestion came about, the school did not intervene to change it.    No new services were offered, and the program did not change between September and May.

It is clear that by March both the parent and the school were desperate to change the student’s current arrangement.   He was still not in school full-time and his behavior was becoming more problematic.    His work completion and work mastery were significantly below his capability.   It was also clear that the parent was not changing her position regarding the alternative program.       The school was only offering the alternative  program.    The claim by the parent  that the school  never initiated  other options to address the student’s behavior needs is borne out by the evidence.    “Ms. Strobel  stated  that all  the programming  that has  been  tried  with  [the student]  has mostly been [the parent]’s  suggestions”.    (Ex. 96)    That theme is continued  at the March PET meeting.    It is the parent that requested further assessment and the involvement of the school’s behavior consultant, Dr. Moran. Although Dr. Moran had been under contract with the district since the beginning  of the year, he had never been invited to one of the student’s PET meetings nor had he been involved in the student’s programming.

Between March 16 and May 8 the school did design a new IEP with Dr. Moran’s involvement.  This IEP included a detailed behavior plan outlining expectations of the student in the regular classroom, with consequences and outcomes when he failed to comply.         The program  required  the hiring  of an educational  technician  to have primary responsibility for implementation.   The program was designed for the ed tech, if necessary, to be responsible for major unsupervised teaching time with the student. When the student’s behavior resulted in his losing points, the plan called for him to be taught by the ed tech in a separate setting, using removal from the mainstream as a negative re-enforcer, and requiring him to earn the privilege to return to the regular class.

The school hired a Level I Educational Technician (ed tech I) who began the program on May 8.  While the person hired was recommended by Dr. Moran, and may be a talented individual, she was not appropriate for the position as described in the IEP. An ed tech I does not hold the credentials to perform such duties.    The Level I Educational  Technician  may be assigned  instructional  duties directly supervised  by the classroom teacher or appropriate content specialist in the classroom…   [Maine Department of Education Regulations, 115-39, 40]

School staff testified that the teacher of the alternative program was always intended as the supervisor for the ed tech.  But, the plan specifically directed the ed tech to work with the student in a space other than the behavior classroom.  The plan does not list the alternative program or the teacher of the alternative program, nor is the alternative program or the alternative teacher mentioned anywhere in the IEP.  The parent’s claim that she was surprised and unsettled by the increased intrusion of the alternative program’s teacher into the student’s program is supported by these facts.    The only teacher’s name listed in the IEP or the behavior plan is Ms. Eaton, the ed tech I.

There were problems  with implementation  of the program  from the beginning.    Dr. Moran testified that he was surprised that things began to deteriorate so quickly.  The school takes the position that the parent’s insistence on changes in the plan, and her lack  of  support  for  the  alternative  room  teacher,  undermined  the  stability  of  the program.   Evidence shows that Dr. Moran agreed with her suggestions for the plan modifications.         And, the parent had made no secret that she thought that any involvement  by the alternative  teacher would have negative impact on the program given the student’s negative feelings about any association with that program.   What seems more apparent is that the staff was not properly prepped to anticipate problems that were likely to occur.   Dr. Moran did not meet with the 7th grade staff and the ed tech to prepare for the implementation  of the new plan and to set up contingencies when behavior events occurred.  The ed tech was not properly trained to know what to expect or how to react to the student’s challenging behaviors, and had little experience to draw on.  She quickly turned to the alternative program teacher who had, prior the current school year, no experience working with behaviorally impaired students.  Dr. Moran stated that he did not meet regularly with the school staff, but was available by cell phone.  However, when the two most significant behavior events occurred he was not called until after the fact.  He agreed that he might have advised the staff to react differently on one notable occasion.

There was no discussion of the student’s need for extended year services (ESY) and little evidence to either confirm or deny the need for such services.  The determination to provide  ESY services  to a student  …shall  be made  on an individual  basis  and based on the probability that the student is at risk of losing skills previously mastered and unable to recoup those skills within a reasonable period of time.     [MSER, 5.9] While it is true that the student missed a substantial amount of academic instruction over the school year, there was no evidence to support a claim that the student was in danger of losing skills or unable to recoup skills previously mastered.   In fact, the discussion of ESY services over the past several years seems to have its foundation more on the student’s lack of success in his regular school year rather that a concern the he would regress.  This seems to be the case for the most recent year.

There is a pattern to this student’s school experience.  For the past four years, he has ended the school year in a chaotic fashion, most often with suspensions and tense relationships between him and the teaching staff.  After a summer break, he begins the new school year with no firm plan in place.  This year was no exception.  The student

has well-identified and well-defined behaviors which impede his learning.    A number of educational and behavioral recommendations designed to address these needs are part of his record.     The PET recommended in March that planning for the student’s transition into 8th  grade begin in the spring of 2001, and determined that the director of special  education  and the principal  meet with eighth  staff to begin  this process. There  is no  evidence  that any  planning  has  begun.    The  director  stated  that the teacher of the alternative program met with 8th  grade staff, but she was unsure who was involved, or the nature of the discussion.     Neither she, nor the principal, has convened a planning meeting around the student’s eighth grade program, nor has the PET met to discuss the eighth grade program.   The cycle is set to begin again.

There is no reason to believe that, even with the most perfectly designed program, that the student’s school day will be without incident.  However, it is reasonable to assume that he will continue to improve if there is a well-designed behavior plan in place with consistent implementation by skilled and trained professionals.

The school is found to have denied the student with a free appropriate public education.  To what relief is the student entitled?

There is no way to reach back and regain lost educational time.  The student missed a significant number of hours of instructional time, and for this he has suffered.   But, there was a remedy available to the parent much earlier in the school year than she chose to exercise it.  Had the parent initiated due process proceedings earlier, arguably program issues would have been resolved long before the end of school.
For this she bears some responsibility for his loss of instruction.  However, the school denied the student a free appropriate public education and therefore owes the student some compensation for the loss of instruction.   For that reason I find the parent’s claim of reimbursement for the summer program she provided at her expense to be a reasonable compensation.

Access to computer was listed on the student’s IEP as a “required assistive technology” service. 	Evaluators found that formulating written responses to classroom work is hard for the student.  The abbreviated school day denied the student access to the computer program which would have assisted him to increase his computer skills, and thus be able to utilize the assistive technology.  The PET discussed the need for the student to have an alternative method of gaining these
skills, but no program was located or offered. 	The student is entitled to compensation for this lost service.

Is the IEP proposed for the 2001-2002 school year reasonably calculated for the student to receive educational benefit in the least restrictive educational environment?

The proposed 2001-2002 IEP is the one developed in April 2001, and implemented during May and June 2001.  In the upcoming school year the IEP places the student in the regular 8th grade mainstream.    A behavior plan, appended to the IEP, sets up a system  of earned  points  for complying  with  classroom  rules.    Failure  to earn  the minimum  points results in the student being removed  to a separate  setting with an

educational technician who provides the student’s instruction for the day.  Appropriate behavior in the separate setting earns the student’s return to the mainstream classes the following day.

Neither the school nor the parent feel the program as implemented in May and June was completely  successful.    Each maintained  at the hearing  that the program is in need of revision.   There was minor disagreement around the elements that need to be included in any revisions, but major disagreement in the proposed implementation.

The school proposes that this IEP be implemented at the Buker Middle School with the same staff who implemented the IEP in seventh grade.    The educational technician would be on hand in the class with the student, and the alternative behavior program staff  would be  an integral part of the program.  Dr. Doiron and Dr. Hughes suggested using  an  advisor/mentor   model  when  the  student  was  unable   to  comply  with classroom behaviors.   The parent proposed the student be moved to the Hodgkin’s Middle School for the implementation of the IEP.

Dr.  Moran  and  Dr.  Doiron  both  suggested  revising  the  IEP  to  include  goals  and objectives for writing output and organization.    Dr. Moran proposed the increased use of positive re-enforcers in the behavior plan to increase the likelihood that the student would  remain  in  school  when  problems  occurred  and  strengthen  its  chance  of success.  Dr. Moran, Dr. Doiron, and Dr. Hughes all agree that the student wants to be a “regular” kid, and is motivated to comply with school rules in order to be part of the mainstream.   All agree with the use of a cognitive model that helps the student work through and understand that regulating his behaviors is in his best interest.  All agree that the primary  person  who implements  the behavior  plan  must be a person  with whom he has a relationship, and someone whom he trusts and respects.  And, finally, all agree that the plan will only be successful if the student is part of the plan.

Evidence regarding the student’s need to buy into the program in order for it to be successful  cannot  be ignored.    He has been  clear  that he will  not be part of the alternative  room,  and  the  parent  advocated  this  position  on  his  behalf.       Expert witnesses have advised against placement in a “behavior classroom”.   The April PET discussion   around   the  proposed   program   and  the  resulting   IEP,  set  up  false expectations for both the student and the parent.  Based on the written document and discussions   with  school  personnel,   the  parent  and  the  student  developed   the inaccurate impression that a certified teacher, or at least a Level III Educational Technician  (ed  tech  III),  had  been  hired.     This  staff  would  act  independently  to implement the program, with Dr. Moran as back-up support when necessary.   When the person hired was only qualified as an ed tech I, the school needed to provide her with supervision.  While they did allow her to operate outside her regulatory boundary, they  posted  her  under  the  supervisory  structure  of  the  alternative  room  teacher. However, they did not revise the written plan and did not discuss the implications of that decision with the parent.   As the year progressed and the ed tech began having problems  with  the  student,  her  supervisor,  the  teacher  of the  alternative  program, became more actively involved in his program by necessity.    Not only did this create a schism between the parent and the staff, but allowed the student to feel he had been lied to, thus triggering an increase in  the disrespectful attitude he exhibited toward the ed tech and the teacher.    The end result of this chain of events ended in the teacher filing harassment charges with the local police against the student.  Those charges are still pending.   Her participation in any future programming for the student has been compromised.

While Dr. Moran opted for the involvement of the alternative program in the students

IEP,  even  he  agreed  that  events  at  the  end  of  the  year  between  the  alternative program  teacher,  the  educational  technician  and  the  student  had  the  potential  to damage their relationship. The program designed by the PET in April was organized for implementation by an ed tech III.  The program had the promise of success, but the last few days ended in the student finishing the school year in chaos once again.    It is difficult to imagine at this point that the student can buy into a program in which the alternative teacher is involved in any significant way.

There is dispute around the location in which the student’s 8th grade program should be  implemented.     The  parent  prefers  the  student  be  transferred  to the  Hodgkin’s Middle           School, another middle school in the district, the school argues for his continuation at the Buker School.      Both proposals have merit, and each has its disadvantages.   The student is known by the Buker staff and seemingly has a good relationship  with the principal and several of his 7th grade teachers.   He has good friends there, which is important to him.  It is his neighborhood school.  However, there is a negative history that follows the student into 8th grade.   There are the unsettling events with the alternative program teacher.   At the Hodgkin’s School he enters 8th grade with a relatively clean slate.  That school is introducing a new Learning Center concept, which is to be available for all students who require additional academic assistance.  The student could take advantage of this assistance as part of his program without  the  stigma   of  a  “special   education”   program,  which   is  an  important consideration  for the student.   One the other hand, he would be separated from his friends and be in a school farther from home.  He would have no adult relationships to draw on initially.  Evidence does not support one placement over another.  Given that the start of school is so close, barring consensus of the PET to the contrary, the student will continue his placement at Buker School.

V.  Order

1.  The PET shall convene within ten days of the receipt of this decision for the purpose of revising the student’s IEP and behavior plan as necessary.  Dr. Moran shall be included in this meeting, in addition to the school staff, the student and the parent.  Drs. Hughes and Doiron shall be invited to attend, and if unable to do so shall be invited to provide specific programmatic suggestions for the PET discussion.   The following items shall be incorporated into the program:

θ 	The inclusion of goals and objectives in the IEP to address written language deficits, including computer access,
θ 	The inclusion of goals and objectives to address organizational deficits,
θ 	The inclusion of any modifications required by the student in the regular classroom, i.e. un-timed test-taking, repetition of work to mastery level, etc.

2.  The district shall hire staff to implement the program.  The person hired shall have, at a minimum a certification of a Level III Education Technician.   The PET shall give careful consideration, with the input of Drs. Hughes, Moran and Doiron, to the structure of the program as it relates to the daily input of the ed tech.  His or her presence in the regular classroom shall be discussed with

contingency plans for interventions in the student’s non-compliant behaviors.
Dr. Moran (or another equally qualified behavior consultant if he is unavailable) is to have weekly meetings with the ed tech and the parent together.  The student and regular class teachers should be invited as deemed appropriate. These weekly meetings shall continue until the participants feel they are no longer necessary.

3.  The PET shall determine the location for the implementation of the IEP.   If the PET is unable to reach consensus on the location, the student shall remain at Buker Middle School.

4.  The student is not to be a student of the behavior alternative program unless there is consensus of the members present at the PET to make this placement. If the student is not a student of the behavior program, a case manager shall be identified for the student.

5.  Upon presentation of receipts, the school shall reimburse the parent for the tuition and travel costs of the program the student attended during the summer. Personal items of clothing and camping/outdoor gear are excluded.

6.  The school shall locate and fund a computer course for the student.  This program shall be in addition to his regular school day and shall continue until the student has covered roughly the curriculum covered in the 7th grade computer class.

7.  Compliance data shall be forwarded to the Department of Education no later than September 30, 2001 and shall consist of:

θ 	A copy of the PET minutes and new IEP
θ 	A copy of the letter of hire for the Ed Tech III
θ 	A copy of the check to the parent
θ 	A copy of the invoice funding the computer program

Carol B. Lenna
Hearing Officer

August 14, 2001