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Sutton p.s. bsea # 08-5499

COMMONWEALTH OF MASSACHUSETTS
BUREAU OF SPECIAL EDUCATION APPEALS
In re: Dean
DECISION
This decision is rendered pursuant to M.G.L. Chapters 30A and 71B; 20 U.S.C. §1400 et seq.; 29 U.S.C. §794; and the regulations promulgated under these statutes. A hearing in the above-entitled matter was held on June 19-20, 2008 at Catuogno Court Reporting in Worcester, MA. The record remained open for receipt of written closing arguments until July 8, 2008. Director of Special Education, Sutton Public Schools School Psychologist, Sutton Public Schools School Adjustment Counselor, Sutton Public Schools Hearing Officer, Bureau of Special Education Appeals The evidence consisted of Sutton Public Schools’ Exhibits labeled S-1 through S- 80 (S-80 for rebuttal purposes only); and approximately 7 ½ hours of oral testimony.
HISTORY/STATEMENT OF THE CASE

Dean is a 15 year old young man who resides with his family in Sutton, MA. Until September 2007, Dean had received all of his educational programming within the Sutton Public Schools (SPS). Dean functioned under an Individual Education Plan (IEP) until December 21, 2004 when he was determined to no longer be eligible for special education services based upon his 3 year re-evaluation performed during 5th grade. SPS then developed a District Curriculum Accomadation Plan (DCAP) for Dean in December 2004 which was periodically revised. Dean struggled during 6th grade. He failed 3 of 4 academic classes which required his attendance at summer school to pass into 7th grade. (See S-7, 11; testimony Vorrasi; Dean.) 1 Dean is a pseudonym chosen by the Hearing Officer to protect the privacy of the student in publicly available documents. On October 24, 2006 (7th grade) Father requested a full special education evaluation for Dean (S-8), on November 19, 2006 an evaluation consent form was sent to Parents by SPS with proposed evaluations (S-9), and Parents consented to these evaluations on December 10, 2006 (S-10). Evaluations were performed in December and January –February 2007 (S-11, 16) and a team meeting was scheduled for February 13, 2007, then rescheduled to March 5, 2007 (S-12; 17). Dean was again found eligible for special education services and on March 9, 2007 an IEP was promulgated covering the period from March 2007 to March 2008 which was accepted by Parents on March 16, 2007 (S-17). This IEP found Dean to have both an emotional disability and a specific learning disability (S-17, 18). Dean functioned under this IEP for the remainder of his 7th grade year, March-June 2007, and for approximately 1 week of his 8th grade year late August-early September 2007. During the 2006-2007 school year (7th grade) Dean had numerous behavioral/disciplinary incidents both prior to and subsequent to promulgation of his IEP. These incidents resulted in a number of both in school and out of school suspensions (S-5, 13, 15, 22). Dean ended his 7th grade year on an 8 day out of school suspension (S-5, 22; testimony, Gillin; Dean). Beginning on the first day of the 2007-2008 school year Dean was observed pounding his fist into his hand. He was involved in several small skirmishes which culminated on September 7, 2007 (6th day of school) with Dean’s physical attack on another student. This physical attack resulted in a 10 day out of school suspension; a no trespass order being issued against Dean prohibiting him from coming onto SPS grounds; the involvement of the Sutton police; and juvenile court involvement. (See S-5, 26, 27, 28, 35; testimony, Gillin; Dean; Myra.) On September 17, 2007 a Manifestation Determination (MFD) and placement meeting was held in which Dean’s behavior was found not to be a function of Dean’s disability because it did not impair Dean’s ability to understand the consequences of his behavior nor impair his ability to control his behavior. SPS proposed placing Dean in an Interim Alternative Educational Setting (IAES). (See S-26, 27, 28, 30, 33, 34; testimony, Gillin; Austein.) On September 21, 2007 a team meeting took place and the team proposed a 45 school day IAES at the Cooperative Federation For Educational Experiences (Project Coffee) which was accepted by Parents on October 4, 2007 (S-36, 38, 39, 40, 43). Dean began attending Project coffee on October 9, 2007. Teacher assessments were done on October 24, 2008. SPS did an updated behavioral assessment of Dean on November 27, 2007. A team meeting took place on December 3, 2007 in which all team members were positive regarding Dean’s progress at Project Coffee and Dean expressed being comfortable at Project Coffee and that he liked his placement there. The team then developed an IEP for Dean at Project Coffee from 12/07 to 12/08 which was accepted by Parents on December 18, 2007. (See S-46, 47, 48, 49, 50, 51; testimony James; Gillin; Austein; Vorrasi; Dean.) Dean continued at Project Coffee but was absent the day before Christmas vacation. Dean never returned to Project Coffee. On January 7, 2008 Ms. James, school adjustment counselor and admissions director at Project Coffee, spoke with Father who stated that he had no issues with Project Coffee but that he wanted Dean back in the middle school at SPS (S-53; testimony, James). On January 15, 2008 SPS received a doctor’s note from Dr. Aggarwall that Dean was suffering from irritable bowel syndrome due to his current school environment and to excuse Dean from school from January 2 to January 14, 2008 (S-54, 56). On January 19, 2008 Dr. Aggarwall again wrote a note to excuse Dean from school until January 22, 2008 due to ongoing medical/psychological issues (S-57). On January 23, 2008 SPS received a Physician’s Statement for Temporary Home or Hospital Education from Carole Johnson, M.D., a child/adolescent psychiatrist. Dr. Johnson’s current diagnosis of Dean was 1) generalized anxiety disorder and 2) adjustment disorder. Dr. Johnson reported that Dean had severe anxiety that had been exacerbated by a change in school; that Dean was becoming physically ill due to severe anxiety symptons precipitated by his attendance at Project Coffee; and that Dean required an alternative placement. Dr. Johnson did not anticipate that Dean’s symptons would resolve until another academic placement was provided. (See S-61 for complete Statement.) As a result SPS arranged for Dean to be tutored at home for 2 hours per day from 2:30 P.M. – 4:30 P.M., Monday through Friday when school was in session (also S-61). Dean was provided a home based tutorial program for the remainder of his 8th grade year. Dean’s tutor was Ms. Myra who was/would have been one of his 8th grade teachers at Sutton Middle School (testimony, Myra; Austein; Dean). Meanwhile SPS requested that Dean meet with SPS school adjustment counselor Gillin and school psychologist Vorrasi (S-60, 61). That meeting, including Father, took
place on January 28, 2008. (See S-64 for report of 1/28/08 meeting.) An additional
meeting between SPS, Project Coffee and Father took place on January 31, 2008 in which
SPS continued to support Dean’s placement at Project Coffee and indicated that the
BSEA would be contacted to pursue mediation. (See S-65 for report of 1/31/08 meeting.)
A mediation took place on February 28, 2008 (S-68) but no agreement was reached. On
March 20, 2008 SPS requested a hearing before the BSEA, the case was assigned to
Hearing Officer Sara Berman, and a hearing date was set for April 24, 2008. Several
postponements were requested, Parents obtained counsel, and a pre-hearing conference
took place on May 23, 2008 with hearing dates scheduled for June 19-20, 2008. On June
17, 2008 this case was administratively re-assigned to Hearing Officer Raymond Oliver.
The hearing took place, as scheduled on June 19-20, 2008.
ISSUES IN DISPUTE

1) Does SPS’ 12/07 to 12/08 IEP for Dean, accepted by Parent on December 18, 2007,
placing Dean at Project Coffee appropriately address his special education needs so as to
provide him with a free and appropriate public education (FAPE) in the least restrictive
education environment?
2) If not, should Dean be returned to SPS with special education academic services and
counseling support?

STATEMENT OF POSITIONS

SPS’ position is that its 12/07 to 12/08 IEP placing Dean at Project Coffee is appropriate to address his special education needs so as to provide him with FAPE in the least restrictive educational environment. SPS contends that placement of Dean back at SPS would be inappropriate to address his special education needs because SPS does not have the kind of structured, therapeutice program which Dean requires in order to make meaningful educational progress. Parents’ position is that Dean made progress under his prior IEP at SPS which provided him special education academic support and counseling and that he should be returned to SPS with such special educational supports. Parents contend that while Dean did well at Project Coffee his anxiety, depression and somatization increased and that he stopped going to Project Coffee because he was unable to continue. Both sides agree that Dean should return to a school environment and that home tutorials are not an appropriate placement for Dean.
PROFILE OF STUDENT

On December 15, 2006 SPS evaluated Dean’s academic achievement (S-16) utilizing the Woodcock-Johnson Test of Achievement – 3rd edition (WJ-III). Dean was then 13 years 7 months old and midway through 7th grade. Dean achieved the following standard scores and was within the following ranges as follows: On January 10-11, 2007 SPS school psychologist Lindsa Vorrasi administered to Dean a psychological evaluation and a functional behavioral assessment (S-11). On the Wechsler Intelligence Scale For Children-4th edition (WISC-IV) Dean received verbal comprehension index score of 85 which is low average; a perceptual reasoning index score of 77 which is borderline; a working memory index score of 102 which is average; a processing speed index score of 75 which is borderline; and a full scale IQ score of 80 which is the lowest score within the low average range. On the Behavior Assessment Scale for Children-Second Edition (BASC-II) the following was reported: On the BASC-II Teacher Rating Scales Clinically Significant results were recorded in Externalizing Problems (Aggression, Conduct Problems), Internalizing Problems (Anxiety, Depression, Somatization), School Problems (Attention Problems, Learning Problems), and Behavioral Symptoms Index (Atypicality, Withdrawal). Adaptive Skills were all in the At Risk range. Categories include: Adaptability, Social Skills, Leadership, Study Skills, and Functional Communication. Critical responses that led to these results include: Threatens to hurt others, Bullies others, Is easily annoyed by others, Eats too little, Seems lonely, Is negative about things, Says, “Nobody likes me”. On the BASC-II Self Report, which is designed to evaluate the self-perceptions of children, [Dean] rates himself with a Clincially Significant result in Sense of Inadequacy and At Risk results in Attitude to School, Sensation Seeking, Locus of Control, Somatization, Attention Problems, and Relations with Parents. Critical responses that led to these results include: I hate school, I never seem to get anything right, I feel sad, I fail at things, Most things are harder for me than for others, I never quite reach my goal, I like to take chances. Finding from these questionnaire data reveal that [Dean] is demonstrating pervasive functional, emotional impairment. On the Teacher report, [Dean] scores a T score of 97 in Depression and a T score of 84 in Aggression. These scores indicate major concern for his emotional well-being. Although [Dean] does not see himself as Clincially depressed, of concern is his T score of 73 in Sense of Inadequacy. This category indicates that [Dean] perceives himself as being unsuccessful in school, unable to achieve his goals, and generally inadequate. Based upon the results of S-11, Ms. Vorrasi developed a behavioral intervention plan (BIP) for Dean. On November 27, 2007 SPS school psychologist Vorrasi conducted an updated behavioral assessment of Dean at Project Coffee (S-48). The BASC-II was again
utilized. On the BASC-II Project Coffee Teachers Rating Scale all scores were in the
average range for Dean’s behavior for the time period of his attendance at Project Coffee
from October 9, 2007 to November 27, 2007. On the BASC-II self report Dean rated
himself with clinically significant results in somatazation; at risk range in attention
problems, attitude to school, atypicality, and relations with parents. All other self report
scores by Dean were within the average range.
SCHOOL’S PROPOSED PROGRAM

Project Coffee is an alternative junior and senior high school program for at risk students. It is located in Oxford, MA as a substantially separate program in the Oxford High School Annex. There are four academic classrooms, vocational rooms, a computer room, a tutoring room and a time out room. Students range in age from 13-19 years old, in grades 7 through 12. There are from 65-80 students from 35 central MA communities, all referred to Project Coffee by their local education agencies (LEAs). All students are considered at risk students who require a small structured program. Class size is from 5-7 students who travel together as a group as they would if in their LEA. There are four different academic teachers for the academic subjects of English/language arts; math; science; and social studies. One to one tutoring is provided where necessary. Massachusetts school curriculum frameworks are followed. One half of the day is spent in academic classes. The other half of the day is a vocational experience in which students are exposed to carpentry, construction, engine repair, computer technology and landscape design. It is not specifically a vocational program but rather an introduction to work skills designed to develop social skills, pride in work, a sense of accomplishment, success, and improved self esteem. Project Coffee employs a positive behavior management point system in which students earn points every 35 minutes in targeted area such as attendance, being on time, following directions, appropriate classroom behavior, and appropriate peer interactions. Based upon the number of points received students may earn weekly rewards on a Friday afternoon such as a movie, bowling, roller skating or a pizza party. Generally no homework is given at Project Coffee. All work is done within school with tutoring assistance. Individual and small group counseling is provided, as necessary by Ms. James who is a certified school adjustment counselor, social worker and guidance counselor. Generally a student spends ½ to 1 full year at Project Coffee. Some students return to their LEA or go to other schools such as Blackstone Valley Technical School. Students are transitioned on an individual basis and homework is begun when students are prepared to be transitioned back to their LEA or another school. Project Coffee has had good success with its students passing MCAS – all Project Coffee students have passed the English/language arts and math MCAS examinations. (See testimony, James; S-74, 75, 76, 77.)
PARENTS’ PROPOSED PROGRAM
Parents propose that Dean be returned to SPS with the special education services and supports he received under his last IEP at SPS (S-17). Under that IEP Dean was in a
regular education inclusion program with math support being provided within the regular
education classroom and other academic support and counseling being provided in other
educational settings.
See S-17; testimony Dean; Gillin.)
FINDINGS AND CONCLUSIONS

It is undisputed by the parties and confirmed by the evidence presented that Dean is a student with special education needs as defined under state and federal statutes and
regulations. The parties are in substantial agreement regarding the nature and
manifestation of Dean’s special education needs. The fundamental issues in dispute are
listed under ISSUES IN DISPUTE, above.
Based upon two days of oral testimony, the written documentation introduced into evidence, and a review of the applicable law, I conclude that: I. The 12/07 – 12/08 IEP written by SPS and accepted by Parent continuing Dean at Project Coffee is appropriate to address his special education needs so as to provide him with FAPE in the least restrictive educational environment. II. Dean’s return to SPS would not be appropriate to address his special education needs so as to provide him with FAPE in the least restrictive educational environment at the present time. Based upon Dean’s achievement testing on the WJ-III he can function within the average range despite some depressed areas of cognitive functioning on the WISC-IV.
(See PROFILE OF STUDENT, above.) However such average achievement skills did
not translate into average grades. During 7th grade Dean’s grades remained in the D
range in English , social studies and math and the F range in science (S-23) even after the
resumption of special education services and implementation of a SPS IEP in March
2007 (S-17).
Based upon the psychological evaluation (S-11; also cited under PROFILE OF
STUDENT, above), and the June 2007 progress report (S-21) and testimony of school
adjustment counsler/social worker Mr. Gillin, I conclude that Dean has significant
emotional and behavioral disabilities. School psychologist Vorrasi’s evaluation found
that Dean was “demonstrating pervasive functional, emotional impairment”. She also
noted under her Impressions and Recommendations that:
His failures in school and low self-esteem are leading to behavioral disregulation. This lack of self-regulation often results in behaviors of verbally lashing out, fighting, or threatening others. Mr. Gillin, who provided Dean weekly counseling from March-June 2007 and as needed over the course of the entire 2006-2007 school year, and has known Dean since the first grade found in his June 2007 progress report (S-21): [Dean] continues to struggle with issues of emotional regulation. While he is able to check himself, usually prior to major disruptive episodes, the constant “flooding” of emotions regularly interfere with [Dean]’s educational attainment. Generalized anxiety, mood fluctuations and poor frustration tolerance, combined with consistent academic challenges pose daily roadblocks for [Dean]. Often he notes he is “stupid” and seems to indicate that he will fail anyway. Peer relations also are constant source of stress for [Dean]. He travels in a small circle of friends, however has frequent verbal mishaps that usually evolve into someone not talking to or getting along with other(s). Staff intervention is usually necessary to mediate the issues. Mr. Gillin testified that Dean is capable and has the ability to do well academically with support but that his behaviors and peer issues get in the way and interfere with his ability to function. Mr. Gillin testified that Dean has frequent flare-ups, a short fuse, takes a long time to calm down, and can obsess and perseverate over problems such as relationships and disputes with other students (testimony Gillin). Both Mr. Gillin and Ms. Vorrasi noted Dean’s anxiety while he was attending Sutton Middle School over the 2006-2007 school year. (See testimony Gillin; Vorrasi; S-11, 21.) Dean’s behaviors resulted in frequent disciplinary incidents while at SPS. Over the course of the 2006-2007 school year Dean received a total of 4 days of in school suspensions and 23 days of out of school suspensions. The in school suspensions were for insubordination or tobacco use. The out of school suspensions were for threats of physical attacks; actual physical fights; and having/showing a weapon (knife) in school. One of the threats of physical attack (2/06/07) was an e-mail with words involving hating, shooting, or stabbing a student which resulted in a 5 day out of school suspension. The knife incident (6/08/07) involved showing/displaying a knife on the bus and refusing to put it away when requested to do so by the bus driver, resulting in an 8 day out of school suspension and Dean missing the last 8 days of the 2006-2007 school year. On September 3, 2007 very early into the 2007-2008 school year, Dean sent a vulgar e-mail to another student that he was going to the hospital on a stretcher. On September 7, 2007 Dean deliberately instigated a physical attack on that same student which resulted in an 11 day out of school suspension, the MFD, and the 45 school day IAES at Project Coffee. (See S-5, 13, 14, 15, 22, 25, 26, 27, 28; testimony, Gillin; Dean.) 2 On the same day as the knife incident Dean made a physical threat against a SPS teacher (testimony, Dean). Dean has vocational interests and aptitudes and wants to attend Blackstone Valley Technical School (BVT) to pursue vocational study. I note that the above cited behaviors/incidents/suspensions over the 7th and into the 8th grade at SPS took place despite Dean’s desire to do better and behave so that he could be accepted into BVT for his 9th grade 2008-2009 school year (testimony, Gillin; Dean.) I find that none of the behavioral/disciplinary incidents Dean was involved in at SPS occurred while Dean was in attendance at Project Coffee from October 9 through December 21, 2007 (testimony, James; S-46, 49, 52). Even though Dean knew that success at Project Coffee would greatly enhance the possibility of his being accepted at BVT (testimony Gillin; Vorrasi) he stopped attending Project Coffee. Based upon the totality of evidence presented I conclude that despite Dean’s motivation and best efforts, his emotional and behavioral disabilities (plus a familial factor, to be discussed below) prevent him from being able to self regulate and follow through on a desired and appropriate course of action. The evidence is unrebutted that Dean made academic and behavioral progress at Project Coffee (S-46, 47, 48, 49, 50, 51; testimony, James). Dean’s scores on the BASC-
II improved both in teacher report and self report. (Contrast BSSC-II scores at SPS in
March 2007 (S-11) to the November 2007 BSSC-II scores at Project Coffee (S-48;) see
also testimony, Vorrasi, PROFILE OF STUDENT, above.) We also have Dean’s
perceptions regarding his experience at Project Coffee. On November 27, 2007 when
Ms. Vorrasi came to Project Coffee to do an updated behavioral evaluation, Dean
reported to her that he liked Project Coffee better than SPS; that he was getting better
grades; it was giving him a better opportunity to be accepted at BVT; he was enjoying the
vocational component of Project Coffee; he knew some of the students there and felt
comfortable with them; and the teachers were good to be with. (See S-46, testimony,
Vorrasi; Dean.) Dean had even had Project Coffee students to his home for sleepovers
(testimony, James). On December 7, 2007 at the team meeting Dean told Mr. Gillin that
Project Coffee was the best program he had ever been at (testimony, Gillin; Dean). Dean
told the team that he liked Project Coffee and was doing well there (testimony, Gillin;
Vorrasi; Austein; Dean; S-51).
Therefore, we have a situation in which until the day before Christmas vacation Dean was happy and doing well at Project Coffee and a new IEP for 12/07 to 12/08 was accepted by Mother on December 18, 2007 (S-51) - to Dean’s never returning to Project Coffee and Dean’s statement at a January 28, 2008 meeting with Father, Mr. Gillin and Ms. Vorrasi that he would rather go to lock-up than Project Coffee (S-64; testimony, Gillin; Vorrasi; Dean). What happened? Dean reported that Project Coffee was too easy, not challenging and he would not have a proper education there (testimony, Dean; S-64). Yet Ms. Myra, one of Dean’s 8th grade teachers at SPS and his 1:1 tutor from January to June 2008, testified that the curriculum and books used by Project Coffee were the same texts used at SPS in 8th grade (testimony, Myra). Dean testified that he was uncomfortable that some of the students at Project Coffee were bigger than he was and 3 Dean did receive some time outs at Project Coffee for 10-15 minutes for insubordinate behaviors (testimony, James; Dean). pushed him around which made him anxious and angry and he stopped going (testimony, Dean; S-64). Yet no specific incidents were cited; nothing was ever observed at Project Coffee; Dean never reported such incidents to anyone at Project Coffee nor did Parents; Dean didn’t report this to Ms. Vorrasi when she tested him on November 7, 2007; Dean did not report this at the December 7, 2008 team meeting when he told the team he liked Project Coffee and was doing well there and told Mr. Gillin it was the best placement he had ever been to; and Dean never reported any physical or somatic complaints to the nurse or anyone else at Project Coffee, nor did Parents. (See testimony, Dean; James; Myra; Gillin, Vorrasi; Austein; S-64.) Father’s displeasure with Dean’s placement is undisputed. Ms. Austein, SPS director of special education, testified that when Project Coffee was being discussed as a 45 day IAES for Dean that Father stated that he did not want Dean to go there because he knew that Dean was going to like it (testimony, Austein). Ms. James testified that Father did not want Dean to be placed at Project Coffee and was very oppositional when he and Dean were scheduled to interview at/tour Project Coffee, stating that he was not upset with Project Coffee but with SPS and he wanted Dean to stay in SPS. Ms. James testified that at the December 7, 2007 team meeting Father again stated that he had problems with Dean’s placement at Project Coffee (nothing specifically cited); he did not want him placed there; and that he believed Dean was being short changed academically (testimony, James). On January 2, 2008 Father spoke with Ms. James stating that he wanted the team to reconvene to discuss Dean’s placement. When asked by Ms. James if Dean was experiencing any problems at Project Coffee, Father did not state anything about any physical symptoms or anxiety nor any problems that Dean was having with any students at Project Coffee, but stated that he wanted Dean to attend Sutton Middle School and that he believed that there was no reason that Dean could not return there (testimony, James; S-53). At the reconvened meeting on January 31, 2008, Father stated that he was unwilling to have Dean in any placement other than regular school (testimony, James; S-65). Ms. Myra, Dean’s tutor, testified that Father did not want Project Coffee for Dean and stated in Dean’s presence that Project Coffee was for dropouts (testimony, Myra). Unfortunately, neither Father nor Mother testified at this hearing. Therefore, the above-cited evidence is unrebutted. Given his emotional and behavioral disabilities, I have little doubt than Dean experienced some anxiety at Project Coffee. Dean also experienced considerable anxiety within SPS. However, Dean’s academics and behaviors improved at Project Coffee, and he was happy at Project Coffee. There was no inkling that anything was amiss until after Christmas vacation when Dean failed to return to Project Coffee. Based upon the totality of evidence cited above, I do not find Dean’s testimony at this hearing or Dean’s complete reversal regarding Project Coffee to be persuasive or even credible. As noted under STATEMENT/HISTORY OF THE CASE, above, Dean’s
physician, Dr. Aggawell, wrote several notes excusing Dean from school (S-54, 56, 57) and Dean’s psychiatrist, Dr. Johnson, wrote a physician’s statement for home placement 4 Query whether Dean’s anxieties and alleged physical symptoms may be created or exacerbated by the conflict between what Dean wants and needs versus what Father wants for Dean. (S-61), all concerning Dean’s placement at Project Coffee. Both Dr. Aggawell and Dr. Johnson were subpoenaed to testify at this hearing and to produce their medical records. Dr. Aggawell sent Dean’s medical records but did not appear at the BSEA hearing. Dr. Johnson refused to testify or to comply with the subpoena regarding Dean’s records. (See statements of SPS’ attorney and Dean’s attorney in the record at the beginning of this case.) Dr. Aggawell’s records for Dean covered October 8, 2007 to February 4, 2008 (S-78). The only reference in these medical records to Dean’s school issues is on February 4, 2008 reported under Parental concerns; and refers only to anxiety/bullying. There are no references in these records to any physical symptoms such as irritable bowel syndrome or vomiting. In fact, the dates of Dr. Aggawell’s notes requesting that Dean be excused from school do not correlate with any of Dean’s visits to Dr. Aggawell in evidence. (See S-78.) Dean testified that he has been seeing Dr. Johnson for weekly medication checks since January 2008 and sees someone in her office named Erin for weekly counseling. Ms. Austein testified that she had a telephone conversation with Dr. Johnson on January 23 or 24, 2008 inquiring why Dr. Johnson made the determination that Dean required an alternative placement from Project Coffee in her home placement statement (S-61). Ms. Austein testified that Dr. Johnson stated that she had spoken to Dean, Father, and Erin. Dr. Johnson stated to Ms. Austein that she had not visited Project Coffee or reviewed any of Dean’s educational records. Ms. Austein testified that Dr. Johnson had made no contact with SPS (testimony, Austein). Clearly, testimony from Dr. Johnson and/or Dean’s private counselor/therapist would have provided relevant information for this hearing. Even an updated written report would have been helpful. Given Dr. Johnson’s refusal to testify or provide any of Dean’s records, the only information available to the Hearing Officer directly from Dr. Johnson is her written physician’s statement of January 22, 2008 (S-61). Although Father and ostensibly Dean want Dean to return SPS now, I find that no educational professional who has worked with, counseled, or evaluated Dean, or has reviewed Dean’s educational file, advocates that Dean return to SPS at this point in time as Dean would now be beginning 9th grade at Sutton High School. (See testimony, Gillin; Vorrasi; Austein.) I concur. Given Dean’s history in SPS cited above and the behavioral incidents that led to the IAES and placement at Project Coffee while Dean was functioning under the type of an IEP that he advocates now returning to; given that Dean only attended Project Coffee for 2 ½ months despite the strong incentives to succeed and be able to attend BVT or return to SPS; and given Dean’s testimony at this hearing; I conclude that Dean’s behavioral and emotional disabilities currently prevent him from being able to make effective educational progress and to be successfully integrated into an inclusion program at SPS as Dean and Father wish, because such a program is exactly the type of program Dean was in when his behaviors necessitated an IAES and placement at Project Coffee! I conclude that such a program at SPS clearly would not provide Dean with FAPE. Indeed, I parenthetically note that even Dr. Johnson did not report that Dean should be returned to SPS but that “He requires an alternative placement” (S-61). 5 According to Dr. Aggawell’s medical record of 2/4/08, Dr. Johnson initially put Dean on Zoloft, subsequently changed to Celexa (S-78). Dean testified at this hearing regarding his educational career and behavioral incidents at SPS. His testimony regarding his rationales for threatening to punch an SPS teacher in June 2007 (despite his own acknowledgment of breaking school rules), and especially the altercations in September 2007 which culminated in his unprovoked attack on another student, demonstrate that his anger and inability to control his impulses and actions (despite frequent mediation of his peer related issues by Mr. Gillin and Ms. Michalak, the guidance counselor) further render his placement at SPS inappropriate at this time. I find that Project Coffee currently provides Dean with the small group, supportive, structured, therapeutic academic program and vocational, hands-on,
instructional component which he requires to learn the emotional regulation skills,
behavioral regulation skills, coping skills, and peer relationship skills necessary for
success in a regular high school educational environment. (See SCHOOL’S
PROPOSED PROGRAM
, above; testimony, James; Gillin; Vorrasi.) I conclude that
SPS’ 12/7 – 12/08 IEP (S-51) for Dean at Project Coffee currently provides Dean FAPE
in the least restrictive educational environment.
Finally, Dean does not meet the standards of 603 CMR 28.03(3) for a home/hospital placement. Home tutoring is mandated only when the student “must
remain at home…. for medical reasons.” Dean plays outdoors and goes to see his
counselor (testimony, Dean; Ms. Myra). On February 4, 2008 Dr. Aggawell cleared
Dean for school and sports activities (S-78). The use of a Dr.’s certificate to justify a
change in or a different educational placement is not appropriate under the above cited
regulation. (See 10 MSER 71 (2004) i.e., BSEA# 04-1976 In re: Bellingham Public
Schools, (Crane, H.O.)
ORDER

1) SPS’ 12/07 – 12/08 IEP calling for Dean’s placement at Project Coffee appropriately
addresses his special education needs so as to provide him with FAPE in the least
restrictive educational environment.
2) Placement of Dean at SPS in an inclusion program with special education services and
support is not currently appropriate to address his special education needs so as to
provide him with FAPE in the least restrictive educational environment.
3) Dean’s 12/07 – 12/08 IEP at Project Coffee was accepted by Parents on December 18,
2007. Therefore that IEP (S-51) is also Dean’s last agreed upon placement/placement
pending appeal.
By the Hearing Officer
___________________________

Source: http://www.doe.mass.edu/bsea/decisions/08-5499.pdf

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