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P.K.W.G. v. I.S.D. No. 11: US District Court : EDUCATION - district met IDEA obligations regarding student's IEP, etc.; who has burden of persuasionUNITED STATES DISTRICT COURTDISTRICT OF MINNESOTA P.K.W.G., a minor child, by and through his Parent and Natural Guardian, Gwendolyn Gilmore, Plaintiffs, MEMORANDUM OPINION v. AND ORDER Civil No. 07-4023 ADM/AJB Independent School District No. 11, Anoka-Hennepin School District; Anoka-Hennepin Board of Education; Mark Sullivan, Chair and Executive Officer; and Roger M. Giroux, Superintendent, in their representative capacities, Defendants. ______________________________________________________________________________ Amy J. Goetz, Esq., School Law Center LLC, St. Paul, MN, argued on behalf of Plaintiffs. Timothy R. Palmatier, Esq., Kennedy & Graven, Chartered, Minneapolis, MN, argued on behalf of Defendants. ______________________________________________________________________________ I. INTRODUCTION On February 28, 2008, the undersigned United States District Judge heard oral argument on the Cross-Motions for Judgment on the Record of P.K.W.G. (the “Student”), a minor child, by and through his parent and natural guardian, Gwendolyn Gilmore (the “Parent”) (collectively “Plaintiffs”) and Defendants Independent School District No. 11, Anoka-Hennepin School District; Anoka-Hennepin Board of Education; Mark Sullivan; and Roger M. Giroux (collectively the “District”) [Docket Nos. 17 and 13]. Plaintiffs seek reversal of a decision by Administrative Law Judge Linda F. Close (the “ALJ”), pursuant to the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §§ 1400-1487. The ALJ determined that the Case 0:07-cv-04023-ADM-AJB Document 30 Filed 06/11/2008 Page 1 of 25 2 District complied with its obligations under IDEA by providing the Student a free appropriate public education during the 2005-2006 school year. For the reasons set forth herein, Plaintiffs’ Motion is denied and the District’s Motion is granted. II. BACKGROUND A. The IDEA The IDEA requires a school district that accepts federal funds to provide disabled children within its jurisdiction a “free appropriate public education” (“FAPE”). 20 U.S.C. §§ 1400(d)(1)(A), 1412(a)(1)(A). To provide a FAPE, a school must formulate an individualized education program (“IEP”) tailored to the disabled child’s unique needs. 20 U.S.C. §§ 1412(a)(4), 1414(d)(1)(A). Parents who are dissatisfied with the substance or implementation of their child’s IEP may request a state administrative due process hearing before an independent hearing officer. 20 U.S.C. § 1415(f); Minn. Stat. § 125A.09 (2002). In Minnesota, a party may appeal the hearing officer’s decision to either federal district court or the state court of appeals. 20 U.S.C. § 1415(i)(2)(A); Minn. Stat. § 125A.091, subd. 24. B. Factual Background The due process hearing in this matter was held on April 23 and 24, and May 16 and 17, 2007. The ALJ’s June 26, 2007, decision, which is attached as Appendix A, thoroughly sets forth the relevant facts. Therefore, only a shorter account of the relevant facts is provided here. Case 0:07-cv-04023-ADM-AJB Document 30 Filed 06/11/2008 Page 2 of 25 1 All references are to the exhibits listed in the Certified Inventory of the Administrative Record [Docket No. 8]. 3 1. The Student’s Education History Prior to the 2005-2006 School Year The Student lives within the District with his mother and siblings. Ex. 73 at 0018.1 The Student has an extensive history of behavior and learning problems. Dr. Richard Ziegler (“Dr. Ziegler”), a neuropsychologist, has diagnosed the Student with Attention Deficit Hyperactivity Disorder—Hyperactive Impulsive Type (by history); Reading Disorder/Dyslexia; Disorder of Written Expression; Mathematics Disorder; and Oppositional Defiant Disorder. Id. at 0025. In early elementary school, the Student was placed in a Level IV Emotional Behavioral Disorders (“EBD”) program and he received homebound schooling beginning at age seven. Ex. 74 at A0416. By the fifth or sixth grade, while enrolled in the ECHO Program at Southwood Elementary School, the Student’s behavior caused him to be physically restrained at times. Ex. 73 at 0014. In the fall of 2002, the Student transferred to the Explore Program at Eliot Middle School for his seventh grade year. Ex. 74 at A0416. Because of poor attendance, behavior, and progress, the Student’s IEP team switched him from full-day to half-day attendance. Id. During his ninth grade school year in 2004-2005, the Student’s behavior included verbal and physical abuse of students and teachers; throwing books, papers, and furniture when he was angry; leaving the classroom and wandering about the school building; engaging in six to seven fights; and engaging in inappropriate sexualized behavior, such as touching a female student’s chest and making sexual comments and gestures. Ex. 73 at 0014, 0019; Ex. 77 at A0047. Staff at the Explore program implemented police interventions, resulting in referrals of the Student to the Case 0:07-cv-04023-ADM-AJB Document 30 Filed 06/11/2008 Page 3 of 25 4 juvenile justice system. Ex. 74 at A0416. 2. The Student’s Education at the Bell Center In May 2005, the Parent requested a due process hearing. The matter was settled without a hearing when the Parent and the District agreed to a new IEP for the Student’s tenth grade 2005-2006 school year. Ex. 46. The 2005-2006 IEP was developed based on a May 2005 independent educational evaluation by Dr. Ziegler and a June 2005 functional behavioral assessment by Jan Ostrom (“Ostrom”), the CEO of Brih Design, an independent consulting firm specializing in behavior analysis. Ex. 77; Ex. 113 at 502-03. The 2005-2006 IEP was the first IEP that attempted to address the Student’s behavioral and learning disability issues. Ex. 113 at 369-71. The 2005-2006 IEP set goals and objectives for reading, writing, math, and social skills development such as understanding boundaries and peer relationships. Ex. 46 at A0122-26. The IEP called for individual and group counseling, music therapy, paraprofessional support, and behavioral support. Id. at A0127-29. The IEP provided that the Student would receive these services at the Bell Center, a Setting IV program in Coon Rapids, Minnesota, for students with serious emotional and behavioral needs. Ex. 46; Ex. 115 at 911. The Student’s Parent consented to the 2005-2006 IEP. Ex. 46 at A0116. During the summer of 2005, the District provided the Student with extended school year (“ESY”) services at the Bell Center. Ex. 115 at 920. The Student received one-and-a-half hours of daily instruction during school days for six weeks. Id. The services consisted of academic instruction, music therapy, and physical education. Id. at 920-21. Dorothy Webb (“Webb”) was the Student’s case manager and teacher during the 2005- 2006 school year. Ex. 112 at 126-27. Webb was assisted in the classroom by two Case 0:07-cv-04023-ADM-AJB Document 30 Filed 06/11/2008 Page 4 of 25 5 paraprofessionals. Id. at 118. The Student and six other students spent the majority of their day in Webb’s classroom. Id. at 119. Each student had a desk located in a central area with the other students’ desks, and each student was also assigned a carrel where the student could sit alone. Id. at 116. Bell Center staff use a team approach to implement a student’s IEP. Id. at 129. The team responsible for implementing the Student’s IEP included Program Supervisor Vickie Pitney (“Pitney”), Webb, the two paraprofessionals, Behavior Intervention Specialist Julie Maass- Hanson (“Maass-Hanson”), High School Lead Laura Hendricks, and Counselor Heather Brenden (“Brenden”). Ex. 46 at A0137; Ex. 114 at 664, 672-73, 816. The team developed a behavior intervention plan (“BIP”) to decrease the Student’s inappropriate verbal comments, social antics, physical aggression, property destruction, sexualized behavior, and non-compliance with staff requests. Ex. 46 at A0133-39. The BIP provided that “[s]taff will use differential reinforcement by attending to [the Student] when he is exhibiting desirable behaviors” and by “refrain[ing] from attending to [the Student] when he is exhibiting less desirable behavior unless it is of safety concern.” Id. at A0135. When it was necessary to redirect the Student, staff was to do so without discussing the Student’s behavior or engaging in a power struggle. Id. Additionally, the BIP provided that the Student would have access to a smaller one-to-one learning environment that he could go to when he became distracted or otherwise unable to meet expectations. Id. If the Student wandered off, a paraprofessional would follow him and allow him to wander for ten minutes as long as he did not cause a safety issue. Id. at A0136. If the Student presented a safety issue or would not return to a designated area after ten minutes, he would be “day-ended” (i.e. sent home). Id. at A0135. The Student’s IEP provided that his school day would end at Case 0:07-cv-04023-ADM-AJB Document 30 Filed 06/11/2008 Page 5 of 25 6 1:25 p.m., one class period earlier than full day. Id. at A0131. During the first quarter of the 2005-2006 school year, the Student was motivated and performed beyond expectations. Ex. 112 at 193-94. The Student’s November 9, 2005, first quarter report card reflected A’s in Self Improvement, Physical Education, and Math, a B in Science, and a C in English. Ex. 48. The goal summary section of the accompanying progress report reflected a range of eighty-four to ninety-five percent for the ten behavior goals listed in the IEP: following directions; ignoring others; appropriate language; show respect; verbal physical aggression; keep current; positive interaction; on-task; use good social skills; and proper use of materials. Ex. 49. As specified by the IEP, the Student’s Core team held monthly meetings in September, October, and November 2005 with the Parent and the Student to review the Student’s academic and behavioral performance. Ex. 46 at A0129; Exs. 50-52. During these meetings, the Parent and the Bell Center staff communicated well and everyone was encouraged by the Student’s performance. Ex. 112 at 45, 190-92. Based on the Student’s performance and the Student’s desire to attend a full day of classes, the Core team and the Parent agreed that the Student would attend a full day beginning in the second quarter. Ex. 53. After attending the first two Core team meetings, Ostrom, the independent consultant, ceased attending because she believed she was no longer needed. Ex. 113 at 541-42. She notified Bell Center staff that they should call her if academic performance or behavioral issues occurred. Id. at 612. During the second quarter, the Student’s academic performance and behavior began to deteriorate. Ex. 112 at 211. His January 25, 2006, report card reflected a B in Math, a D+ in Horticulture, D’s in Science and Art, and an F in English. Ex. 55. Webb’s comments in the Case 0:07-cv-04023-ADM-AJB Document 30 Filed 06/11/2008 Page 6 of 25 7 accompanying progress report note that the Student was frequently off task and disrespectful, he frequently left class to go to the nurse’s office or the bathroom, and he did not complete his homework assignments. Ex. 54. Despite these comments, the goal summary section of the report card reflected only slight decreases in the percentages for the ten behavior goals. Whereas the range of the November 9, 2005, goal summary was eighty-four to ninety-five percent, the range of the January 25, 2006, goal summary was seventy-nine to ninety-three percent. Compare Ex. 49 with Ex. 54. The Student’s grades and behavior further deteriorated during the remainder of the 2005- 2006 school year. His February 27, 2006, progress report reflected F’s in all six of his classes. Ex. 56. The comments section noted that the Student was engaging in oppositional behavior; he was not following school rules; he was wandering; he was day-ended twice and he received several in-school suspensions for not following school rules and for refusing to work in class. Id. The range for his goal summary fell to sixty-one percent to eighty-three percent. Id. On February 28, Bell Center staff revised the Student’s BIP to reflect the increasing behavior problems. Ex. 61. The revised BIP did not include new interventions. Id. The Student’s March 29, 2006, third quarter report card reflected a C, a C-, a D, and three F’s. Ex. 58. The comments section noted that the Student had disrespected “students and staff by using unacceptable names and profanity when addressing them.” Id. The Student had refused to work or follow directions, he frequently wandered, and he often disrupted class. Id. The Student’s May 22, 2006, progress report reflected that the percentages for his behavioral goals had fallen to between forty-seven percent and sixty-five percent. Ex. 59. Webb’s comments noted that the Student had difficulty functioning in the self-contained Case 0:07-cv-04023-ADM-AJB Document 30 Filed 06/11/2008 Page 7 of 25 8 classroom, he was extremely disruptive and unable to identify his wants or needs, and he often used profanity and acted out. Id. The Student’s fourth quarter report card listed six F’s. Ex. 60. The Student’s increasing behavioral issues were also reflected in behavior incident reports and critical incident reports compiled by Bell Center staff. Staff documented 91 behavior incidents for the Student in the first quarter, 103 incidents in the second quarter, 227 incidents in the third quarter, and 304 in the fourth quarter. Ex. 85 at A0243. Additionally, Bell Center staff compiled critical incident reports of situations where the Student’s behavior caused a safety issue, a significant disruption of the learning environment, or resulted in a suspension from school. Ex. 115 at 951. Staff documented one critical incident regarding the Student in the first quarter, none in the second or third quarters, and five in the fourth quarter. Ex. 88. Beginning in February 2006, the Bell Center’s police liaison officer interacted with the Student during some of his behavior incidents. The police liaison officer was present during three incidents in February, three incidents in March, one incident in April, five incidents in May, and two incidents in June. Ex. 115 at 967; Ex. 64 at C0118, C0160; Ex. 68 at C0007-08, C0010, C0014, C0016-17; Ex. 71; Ex. 88 at B0123, B0137-39, B0143, B0148. Bell Center staff requested the officer’s presence during two incidents in February and one incident in April. Ex. 68 at C0007-08, C0012. On the other occasions staff apparently did not request the officer’s assistance but the officer was present in the location where the Student wandered and she responded because she perceived safety issues. In February or March 2006, Pitney and Maass- Hanson requested that the police liaison officer remove herself from the Student’s vicinity whenever possible because the Student was intentionally seeking out the officer to provoke a response and engage her in a power struggle. Ex. 114 at 841-42; Ex. 115 at 968. The officer Case 0:07-cv-04023-ADM-AJB Document 30 Filed 06/11/2008 Page 8 of 25 9 agreed to remove herself unless she perceived a safety issue. Ex. 114 at 841-42. The officer subsequently ignored many of the Student’s provocations. Id. at 811; Ex. 115 at 968. Julie Maass-Hanson, the behavior interventionist at the Bell Center, met occasionally with the Student during the first two quarters and more often in the third and fourth quarters as the Student’s behavior deteriorated. Ex. 114 at 832-33. In the spring of 2006, Maass-Hanson prepared a draft BIP. Ex. 114 at 849; Ex. 83. Based on data from the Student’s behavior incidents, Maass-Hanson determined that the Bell Center staff’s two most frequent methods of intervention—ignoring negative behavior and redirecting the student—were both as likely to result in escalation of the behavior as they were likely to result in the negative behavior stopping. Ex. 114 at 890. She testified that staff called the police liaison officer only when they believed they could not safely control a situation. Id. at 837-38. Heather Brenden, the social worker at the Bell Center, was the Student’s counselor. Id. at 664, 670. Brenden spent time with the Student in the classroom and the gym, and she also met with the Student weekly for one-on-one counseling. Id. at 672-74. Brenden felt she was unable to develop a close bond with the student because she never learned about the Student’s home life. Id. at 693. Brenden and Webb met informally to discuss issues regarding the Student’s behavior, and staff met formally from time to time. Id. at 679-80. During the school year, the Bell Center staff implemented interventions and adaptations to address the Student’s deteriorating behavior and performance. Webb used a visual schedule and sound field system in the classroom, but abandoned the sound field system when the Student expressed his displeasure with it. Ex. 112 at 163-64. In February 2006, Webb spoke with the Parent about having an advocate mentor the Student. Id. at 227. The Parent agreed and the Case 0:07-cv-04023-ADM-AJB Document 30 Filed 06/11/2008 Page 9 of 25 2 Unfortunately, the effectiveness of a given intervention was unpredictable from one day to the next. Ex. 114 at 680. 10 advocate, Kenny Maxey (“Maxey”), began meeting with the Student once a week. Id. at 228. The Student and the advocate engaged in activities such as shootings hoops so that they could develop a positive relationship. Id. at 228-29. The Student enjoyed these meetings and eventually the Student and Maxey met twice a week. Id. at 228-32. The staff used differential reinforcement, attempted to ignore negative behavior, and redirected the Student and gave him space to make his own decisions, rather than engage in power struggles. Ex. 114 at 683-84.2 Staff sought the Student’s views and allowed him to go to a separate room for one-on-one instruction whenever he desired. Id. at 682-86. The staff added physical education to the Student’s schedule. Id. at 800. In March 2006, the Bell Center staff adjusted the Student’s schedule, with the Parent’s consent, so that he would start his day with one-on-one instruction before entering Webb’s classroom. Ex. 112 at 203, 235. In May 2006, the staff moved the student from Webb’s self-contained classroom to a mainstream schedule so that he could experience more variety by moving among different classrooms. Ex. 114 at 734. In February 2006, the Student began one-on-one after school tutoring for four hours per week at the Sylvan Learning Center. Ex. 115 at 1117, 1134. Christel Petrowitsch (“Petrowitsch”) worked with the Student on reading and math. Id. at 1117. Although the Student sometimes refused to work, Petrowitsch testified that he did not demonstrate any significant behavior problems. Id. at 1132. The Student did not attend Sylvan during the summer of 2006, but he resumed in the fall. Id. at 1111-12. The District paid for the tutoring at Sylvan Learning Center. Id. at 1123. During the 2005-2006 school year, Bell Center Staff communicated with the Parent Case 0:07-cv-04023-ADM-AJB Document 30 Filed 06/11/2008 Page 10 of 25 11 through telephone calls, progress reports, and meetings. Ex. 112 at 245-46. As previously described, all parties were positively engaged during the first two quarters. However, at Core team meetings in the third and fourth quarters, when the Student’s grades and behavior were in a downward spiral, the Parent was less engaged, used negative body language, wore sunglasses, and left meetings early. Ex. 114 at 859; Ex. 115 at 933-35. Contrary to December 2005 when the Parent came to school and intervened to help the Student get focused, she did not follow up on the Core team’s suggestion in February 2006 that she make impromptu visits to the Bell Center to observe the Student at school. Ex. 112 at 212-14; Ex. 115 at 946; Ex. 87. In March 2006, Webb spoke to the Parent about ESY classes for the summer. Ex. 112 at 215-16. The Parent never responded to the ESY inquiry. Id. at 216. The record reflects that the Parent became disengaged around February when the Student began having encounters with the police liaison officer. Ex. 114 at 899. The Parent testified that Bell Center staff should not have involved the police unless the Student jeopardized the safety of others. Ex. 112 at 48-50. The Parent testified that she requested that Bell Center staff call her first before involving the police. Id. at 50-51. Another cause of the Parent’s disengagement may have been the February 2006 filing by the Bell Center of a truancy report with the Anoka County Corrections Department. Exs. 66-67. Webb and Pitney believed that the Bell Center was required by state law to record and report the Student as truant. Ex. 112 at 298; Ex. 115 at 1006. 3. The June 2006 IEP In June 2006, the Bell Center team prepared a new IEP based on an updated functional behavioral assessment and a comprehensive reevaluation conducted by Bell Center staff. Ex. 114 at 853-56; Exs. 80, 85. Although Webb and Pitney contacted the Parent to arrange an IEP Case 0:07-cv-04023-ADM-AJB Document 30 Filed 06/11/2008 Page 11 of 25 12 meeting, the Parent failed to follow up on scheduling a meeting. Ex. 115 at 971. Bell Center staff notified the Parent by telephone and by mail that a June 15 IEP meeting was scheduled. Ex. 90 at A0287-88. The Parent and the Student did not attend. Id. at A0309. Bell Center staff revised the IEP and the BIP at the June 15 meeting. Ex. 90. 4. The Parent’s Request for a Due Process Hearing and Subsequent Events The Student returned to the Bell Center for the 2006-2007 school year but the Parent withdrew him after the Student was arrested on September 15, 2006. Ex. 115 at 981-85. Officers arrested the Student after he disobeyed instructions to leave the lunch room, kicked recycling bins, and resisted the police liaison officer’s attempt to place him in handcuffs. Id. On September 20, 2006, Plaintiffs requested a due process hearing from the District. Ex. 1. Plaintiffs alleged a lack of appropriate evaluation, services, and placement, and they sought an independent educational evaluation, an IEP that included placement in an individual tutoring program, and compensatory education services. Id. The parties resolved most of these issues before the hearing. As a result of the settlement, the District provided homebound tutoring and continued to provide tutoring at Sylvan Learning Center. Ex. 74 at A0415. The unresolved issue was whether the District should be required to provide compensatory education services because of the shortcomings Plaintiffs alleged regarding the 2005-2006 school year. The ALJ requested that Dr. Ziegler update his May 2005 neuropsychological examination of the Student and asked Ostrom to update her June 2005 functional behavioral assessment. Dr. Ziegler’s January 22, 2007, report attributed the Student’s declined functioning in the 2005-2006 school year to: (1) Bell Center staff failed to consult with Ostrom after the Student’s performance began to deteriorate. Ostrom may have been able to provide unique insight Case 0:07-cv-04023-ADM-AJB Document 30 Filed 06/11/2008 Page 12 of 25 13 because she had conducted the 2005 functional behavior analysis. Ostrom’s presence on the Core team as an independent consultant might have increased the Parent’s confidence. (2) The Student perceived changes in how the staff treated him, but neither he nor his mother effectively articulated the Student’s perceptions to the Bell Center staff. (3) The level of trust declined between the Student, the Parent, and the Bell Center staff. The Parent viewed the involvement of the police liaison officer as a “replay” of the failures at the Explore Program. As a result, the Parent’s confidence in Bell Center staff eroded and the Student’s motivation to perform may have decreased when he perceived his Parent’s diminished trust. (4) The Parent failed to follow through on Dr. Ziegler’s 2005 recommendation that the Student receive psychiatric therapy or medication, and that the student receive sexuality specific treatment to increase the Student’s awareness of sexually appropriate boundaries. Hrg. Ex. 74 at A0431-33. Dr. Ziegler recognized that Bell Center staff attempted numerous interventions to improve the Student’s functioning and characterized these efforts as laudable. Id. at A0430-A0431. Dr. Ziegler’s report noted that testing of the Student in January 2007 revealed improvements in the Student’s raw scores in all academic domains and on measures of higher order receptive and expressive language, when compared to similar testing in May 2005. Id. at A0433. While still lagging well behind his peers, the Student’s standard scores declined slightly in reading but improved slightly in math, written expression, and language. Id. at A0437; Ex. 113 at 487. Dr. Ziegler noted that test scores suggested that the student “benefited, at least to some degree, from the services that he received at Bell Center, from his homebound tutoring, and from the tutoring . . . at Sylvan Learning Center[].” Ex. 74 at A0433. Ostrom’s January 22, 2007, report found that the frequency and severity of the Student’s behavioral incidents actually decreased during the 2005-2006 year at the Bell Center as compared to the 2004-2005 year at the Explore program. Ex. 78 at A0443; Ex. 113 at 604. The Case 0:07-cv-04023-ADM-AJB Document 30 Filed 06/11/2008 Page 13 of 25 14 large number of incidents reported by the Bell Center was due to its method of reporting the ongoing behavior within a short time span as a series of separate incidents. Ex. 113 at 607. Ostrom’s updated functional behavioral assessment identified two variables as responsible for the decline in the Student’s behavior during the 2005-2006 school year. Ex. 78 at A0450-51. First, Ostrom identified a lack of adequate communication and collaboration in supporting the student. Id. at A0450. The Student was more likely to participate at school when his Parent supports the educational efforts. Id. Collaboration between the Parent and the Bell Center staff was undermined because the Student told his Parent stories about incidents that were significantly different from the perceptions of the Bell Center staff. Id. Second, Ostrom concluded that the presence and intervention of the police liaison officer may have contributed to the Student’s deteriorating behavior. Id. at A0451. The Student was aware of and emboldened by the history of litigation regarding police intervention. Id. As a result, the Student sought out and taunted the police liaison officer. Id. Ostrom was concerned that the Student was taunting the officer in an effort to negatively impact communication and collaboration between Bell Center staff and his Parent. Id. At the hearing, the ALJ heard the testimony of the Parent, Webb, Dr. Ziegler, Ostrom, Brenden, Maass-Hanson, Pitney, and Petrowitsch. The ALJ concluded that the District satisfied its procedural and substantive obligations under IDEA for the 2005-2006 school year. Therefore, the ALJ found the Student was not entitled to compensatory education services. On September 19, 2007, Plaintiffs timely initiated this action challenging the ALJ’s decision. Case 0:07-cv-04023-ADM-AJB Document 30 Filed 06/11/2008 Page 14 of 25 15 III. DISCUSSION A. Standard of Review In a motion for judgment on the record brought pursuant to the IDEA, a district court must review the state administrative record and grant such relief as it deems appropriate based on the preponderance of the evidence. 20 U.S.C. § 1415(i)(2); CJN ex rel. SKN v. Minneapolis Pub. Sch., 323 F.3d 630, 636 (8th Cir. 2003). “Although a district court should independently determine whether the child has received a FAPE, it must give ‘due weight’ to agency decisionmaking.” CJN, 323 F.3d at 636. “IDEA does not require that a school either maximize a student’s potential or provide the best possible education at public expense.” Fort Zumwalt Sch. Dist. v. Clynes, 119 F.3d 607, 612 (8th Cir. 1997). Rather, a school district satisfies its obligations under the IDEA if: (1) it complies with the Act’s procedural requirements and (2) the IEP is “reasonably calculated to enable the child to receive educational benefits.” Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982). A party challenging the implementation of an IEP must demonstrate that the school authorities failed to implement a substantial or significant portion of the IEP. Neosho R-V Sch. Dist. v. Clark, 315 F.3d 1022, 1027 n.3 (8th Cir. 2003) (noting distinction between a challenge to an IEP and a challenge to the implementation of an otherwise appropriate IEP). B. Burden of Persuasion Consistent with Minnesota law, the ALJ placed the burden of persuasion on the District during the due process hearing. Minn. Stat. § 125A.091, subd. 16. The District argues this was error under Eighth Circuit precedent. The Supreme Court has held that where state law is silent, the burden of proof in a due process hearing under IDEA is properly placed on the party seeking Case 0:07-cv-04023-ADM-AJB Document 30 Filed 06/11/2008 Page 15 of 25 16 relief. Schaffer v. Weast, 546 U.S. 49, 126 S. Ct. 528, 537 (2005). The Supreme Court did not address whether a State could always place the burden on the school district, as Minnesota does through Minn. Stat. § 125A.091, subd. 16. The Eighth Circuit has held that Schaffer requires the burden of proof in a due process hearing under IDEA to be placed on the party seeking relief even in states that purport to place the burden always on school districts. M.M. ex rel. L.R. v. Special Sch. Dist. No. 1, 512 F.3d 455, 458-59 (8th Cir. 2008); Sch. Bd. of Indep. Sch. Dist. No. 11 v. Renollett, 440 F.3d 1007, 1010 n.3 (8th Cir. 2006). Therefore, federal law preempts Minn. Stat. § 125A.091, subd. 16 to the extent it places the burden of proof in an IDEA due process hearing always on the school district. “Placing the burden of proof on the incorrect party is reversible error unless the error relates to an immaterial issue.” M.M., 512 F.3d at 459 (quotation omitted). Here, the ALJ erred in placing the burden of proof on the District but the error was harmless because the District prevailed. Nevertheless, the District requests that the burden of persuasion be placed on Plaintiffs for purposes of this Court’s review. Given the strength of the District’s evidence, this Court finds the outcome of its analysis is the same regardless of the placement of the burden of persuasion. C. Whether the District Complied With the IDEA 1. Alleged Procedural Violations Plaintiffs allege that the District committed a number of procedural violations of IDEA that denied a FAPE to the Student. a. Progress Reports Plaintiffs assert that the District committed a procedural violation of IDEA and analogous Case 0:07-cv-04023-ADM-AJB Document 30 Filed 06/11/2008 Page 16 of 25 17 Minnesota law by failing to provide timely and adequate progress reports to the Parent. See Pls.’ Mem. in Supp. of Mot. for J. [Docket No. 19] at 27-28; 20 U.S.C. § 1414(d)1)(A)(i)(iii); Minn. R. 3525.2810, subp. 1(A)(9). The ALJ concluded that the District provided timely and adequate progress reports to the Parent. ALJ’s Decision at 27. The record reflects Bell Center staff sent the Parent progress reports and report cards twice per quarter. Exs. 47-49, 54-56, 58-60. In addition to listing the Student’s grades, these reports documented the Student’s performance in the ten behavioral goals identified in the IEP, and the reports included comments regarding the Student’s behavior. In addition to the report cards and progress reports, Webb made at least sixty phone calls to the Parent regarding issues at school. Ex. 62. Webb sent the Parent daily tracking sheets when the Parent requested them. Ex. 112 at 245. With the exception of December 2006, the Core team met each month from September 2005 through May 2006. Ex. 115 at 926. On this record Plaintiffs’ argument that the District did not provide timely and adequate progress reports to the Parent during the 2005-2006 school year is rejected. b. Use of Redirection Plaintiffs next argue that the District failed to faithfully implement the 2005-2006 IEP and BIP after the first quarter. To prevail on this claim Plaintiffs must demonstrate that the District failed to implement a substantial or significant portion of the IEP. Neosho R-V Sch. Dist., 315 F.3d at 1027 n.3. Plaintiffs contend that Bell Center staff did not implement the positive behavioral strategies identified in the BIP. Although Plaintiffs concede that the District appropriately implemented the IEP during the first quarter, they argue that behavior incident reports from the Case 0:07-cv-04023-ADM-AJB Document 30 Filed 06/11/2008 Page 17 of 25 18 first quarter show that the only intervention Bell Center staff employed was redirecting the Student. Pls.’ Mem. at 9-10; Ex. 64 at 129-32. However, Plaintiffs overlook other reports from the first quarter reflecting that Bell Center staff employed other interventions, such as time-outs, ignoring the Student’s negative behavior, and allowing him to leave the classroom to receive one-on-one services. Ex. 64 at 0020, 0022, 0026, 0028-29, 0034-35, 0042. Additionally, Brenden and Maass-Hanson testified that throughout the 2005-2006 school year, Bell Center staff used interventions such as differential reinforcement, ignoring negative behavior, allowing the Student to leave the classroom and receive one-on-one services, sending the Student to receive one-on-one services, and listening to the Student’s perspective on a given situation. Ex. 114 at 677-89, 836-37. Pitney and Brenden testified that despite the use of these interventions, redirection was often necessary and the staff followed the strategy outlined in the BIP for redirecting the Student. Ex. 114 at 683; Ex. 115 at 1050. Plaintiffs argue that other behavior code report spreadsheets are evidence that Bell Center staff did not implement the interventions listed in the BIP. Pls.’ Mem. at 11 n.8. However, both Ostrom and Brenden testified that Bell Center’s records generally omitted proactive strategies that were employed. Ex. 113 at 615; Ex. 114 at 755. Although better documentation of the proactive strategies would be helpful, the Court finds based on all the evidence in the record that the Bell Center staff adequately implemented the intervention strategies in the IEP and BIP. c. Provision of One-On-One Services Plaintiffs argue the District did not provide one-one-one instruction called for by the 2005-2006 IEP. Pls.’ Mem. at 15. The IEP stated that “[the Student] needs access to a smaller alternative learning environment for parts of the day for direct 1:1 academic instruction . . . when Case 0:07-cv-04023-ADM-AJB Document 30 Filed 06/11/2008 Page 18 of 25 19 he is struggling to follow through on expectations or appears to be highly distracted.” Ex. 46 at A0135. The IEP directed that the Core team should increase the Student’s one-on-one services if the frequency of problem behaviors increased. Id. at A0137. The IEP did not specify an amount of one-on-one instruction the Student should receive. Plaintiffs allege that Bell Center staff improperly reduced the Student’s level of one-onone instruction during the first quarter. Pls.’ Mem. at 15-17. However, Plaintiffs’ citation to the record does not support this allegation, and there does not appear to be testimony or documentary evidence that the Bell Center reduced the Student’s one-on-one instruction time. Id. at 16; Ex. 112 at 199. Plaintiffs also allege that Bell Center staff failed to increase the Student’s one-on-one instruction when behavioral issues increased in subsequent quarters. Pls.’ Mem. at 15-17. However, in March, Bell Center staff proposed that the Student begin his day with one-on-one instruction and the Parent agreed. Ex. 112 at 235-236. Further, Brenden testified the Student frequently received one-on-one instruction. Ex. 114 at 815. On this record, the Court finds that the District provided one-on-one instruction consistent with the terms of the 2005-2006 IEP. d. Failure to Reevaluate the Student and to Revise the IEP Plaintiffs also argue the District violated IDEA by failing to reevaluate the Student or adequately review and revise the Student’s IEP. Pls.’ Mem. at 27. Regarding reevaluation, the Court finds the record supports the ALJ’s conclusion that the District reevaluated the Student as necessary. IDEA requires a school district to reevaluate a child if the district determines that the educational needs of the child warrant a reevaluation. 20 U.S.C. § 1414(a)(2)(A)(i). A reevaluation must occur at least once every three years, but not more than once a year unless the Case 0:07-cv-04023-ADM-AJB Document 30 Filed 06/11/2008 Page 19 of 25 20 parent consents. 20 U.S.C. § 1414(a)(2)(B). Immediately prior to the Student’s enrollment at the Bell Center, the District paid for an independent reevaluation of the Student in the summer of 2005. The District began a functional behavioral assessment in the spring of 2006. Ex. 85; Ex. 114 at 849-56. The District performed another reevaluation in June 2006. Ex. 80. Plaintiffs contend that the District should have conducted a reevaluation in early 2006 because of the Student’s deteriorating academic and behavioral performance. However, the Student’s learning problems and behavioral issues were identified in the reevaluation that was completed immediately prior to the 2005-2006 school year. On this record, the Court finds the frequency of the District’s reevaluations did not violate IDEA. Plaintiffs also argue the District did not adequately review and revise the Student’s IEP. IDEA specifies a school district must review a child’s IEP “periodically, but not less frequently than annually.” 20 U.S.C. § 1414(d)(4)(A)(i). A school district must revise an IEP as appropriate to address circumstances such as a lack of progress. 20 U.S.C. § 1414(d)(4)(A)(ii)(I). After reviewing the record, the Court finds the Plaintiffs have failed to demonstrate that the District did not adequately review and revise the IEP. Although the Student’s IEP was not formally revised during the 2005-2006 school year, the District made several attempts to adjust the educational services within the framework of the existing IEP. Some examples are the addition of a mentor advocate in February 2006, the increased involvement of Maass-Hanson beginning in February 2006, the shift in March 2006 to begin the Student’s day with one-on-one instruction, and the Student’s shift to a schedule with different classrooms in May 2006. Given the success the Student experienced in the first quarter, and the fact that the 2005-2006 IEP and BIP addressed the problematic behaviors that occurred in the Case 0:07-cv-04023-ADM-AJB Document 30 Filed 06/11/2008 Page 20 of 25 21 last three quarters, it was entirely reasonable for the staff to work within the existing IEP. The District did not violate IDEA by failing to modify the IEP during the 2005-2006 school year. e. Referral to the Police Liaison Officer and Truancy Reporting The ALJ determined that “[t]he core of [Plaintiffs’] case is [the] contention that the District’s involvement of the police liaison deprived the Student of FAPE.” ALJ’s Decision at 22. Based on the few incidents during which Bell Center staff requested assistance from the police liaison officer, the Student’s repeated attempts to provoke the officer, and Pitney and Maass-Hanson’s request that the Police Liaison officer try to avoid interacting with the Student, the ALJ found that the District neither improperly utilized nor overutilized the police liaison officer and other authorities. Id. at 22-24. Plaintiffs respond that the use of police officers is not the core of their case, but is instead a symptom of the District’s alleged failures to implement the Student’s IEP and BIP. Pls.’ Mem. at 25. However, Plaintiffs continue to assert that the District overused police officers and improperly referred the Student for truancy prosecution. Id. After reviewing the record, the Court concurs with the ALJ’s conclusion that Bell Center staff did not overuse the police liaison officer. Regarding truancy prosecution, the District has argued that it was required by law to report the Student when he missed too much class time due to his wandering and other behaviors. Plaintiffs contend that Minnesota law does not require truancy reporting of a student with behavioral disabilities that cause him to wander. Plaintiffs argue it was implicit in the settlement that led to the 2005-2006 IEP that the District would not refer the Student for truancy proceedings in juvenile court. However, the IEP does not explicitly prohibit truancy referrals. Case 0:07-cv-04023-ADM-AJB Document 30 Filed 06/11/2008 Page 21 of 25 22 Although Ostrom was critical of the truancy referrals, this Court finds that the truancy referrals did not amount to a substantial failure to implement the IEP. Ex. 113 at 627. f. Failure to Consult With Brih Design The 2005-2006 IEP stated that the Bell Center staff would include Ostrom in Core team meetings. Ex. 46 at A0135. During the first quarter Ostrom decided her presence was unnecessary for Core team meetings and told the Bell Center staff to call her if issues arose regarding the Student’s behavior. Bell Center staff did not consult her again during the 2005- 2006 school year. While Dr. Ziegler testified that Ostrom’s presence may have been beneficial, the ALJ correctly concluded that the failure to reinvolve Ostrom did not significantly impact the District’s implementation of the IEP because the District had its own behavior specialist, Maass- Hanson, who worked with staff members to implement the strategies specified by the BIP. ALJ’s Decision at 26. In summary, the Court agrees with the ALJ that the record does not support any of Plaintiffs’ claims of procedural violations of IDEA. D. Lack of Success Plaintiffs also argue that the District did not provide a FAPE for the Student because the District’s educational services for the Student failed to produce meaningful educational benefits and progress in the general curriculum. However, the Supreme Court has held that IDEA only requires that a school district design and implement an IEP that is “reasonably calculated to enable the child to receive educational benefits.” Rowley, 458 U.S. at 206-07. The Eighth Circuit has held that although academic progress is an important factor, IDEA does not “guarantee that the student actually make any progress at all.” CJN, 323 F.3d at 642. Case 0:07-cv-04023-ADM-AJB Document 30 Filed 06/11/2008 Page 22 of 25 23 The parties dispute whether the Student received any educational benefit from his 2005- 2006 year at the Bell Center. The District argues that the Student received an educational benefit. The District relies on: (1) the Student’s good performance during the first quarter; (2) the Student’s January 2007 standardized test results showing steady performance or small improvements relative to his peer group in reading, math, written expression, and language; and (3) Ostrom’s testimony that the frequency and severity of the Student’s behavioral incidents decreased in 2005-2006 when compared with the 2004-2005 year in the Explore program. Defs.’ Mem. at 25-27. In response, Plaintiffs argue that: (1) the Student regressed after the first quarter, wiping out any gains he may have achieved; and (2) the test results could be attributable to the tutoring services the Student received at the Sylvan Learning Center in the spring and fall of 2006, as well as the homebound services the Student received in the fall of 2006. The Court finds it is unnecessary to analyze whether the evidence supports the ALJ’s determination that the Student demonstrated academic or behavioral progress as a result of the services provided by the Bell Center. At oral argument, Plaintiffs’ counsel conceded that the Student’s 2005-2006 IEP was appropriate and reasonably calculated to benefit the Student. This Court has determined that the District’s implementation of the IEP did not violate IDEA. Although it is unfortunate that the Student’s grades and behavior regressed after the first quarter of the 2005-2006 school year, the District cannot be liable where both the IEP and the implementation of the IEP complied with IDEA. See CJN, 323 F.3d at 642 (stating that IDEA does not guarantee educational progress). The Court finds that the Eighth Circuit precedents relied on by Plaintiffs are distinguishable from the case at bar. Plaintiff relies on Independent School District No. 284 v. Case 0:07-cv-04023-ADM-AJB Document 30 Filed 06/11/2008 Page 23 of 25 24 A.C., 258 F.3d 769, 777 (8th Cir. 2001), for the proposition that a school district must provide services that address a disabled child’s emotional and behavioral problems if those problems would otherwise prevent the child from learning. Here, the Student’s 2005-2006 IEP and BIP did address the Student’s emotional and behavioral problems, and this Court has concluded that the District adequately implemented the IEP and the BIP. Plaintiffs also rely on Neosho R-V School District, where the Eighth Circuit concluded that the IEP at issue “did not appropriately address [the child’s] behavior problem.” 315 F.3d at 1028. The case at bar is distinguishable because Plaintiffs have conceded that the Student’s IEP and BIP were appropriate. The Court concludes that the District committed neither a procedural nor a substantive violation of IDEA during the 2005-2006 school year. Accordingly, the Student is not entitled to compensatory education services. The District’s Motion for Judgment on the Record is granted, and Plaintiffs’ Motion is denied. Case 0:07-cv-04023-ADM-AJB Document 30 Filed 06/11/2008 Page 24 of 25 25 IV. CONCLUSION Based upon the foregoing, and all the files, records, and proceedings herein, IT IS HEREBY ORDERED that: 1. P.K.W.G., a minor child, by and through his parent and natural guardian, Gwendolyn Gilmore’s Motion for Judgment on the Record [Docket No. 17] is DENIED; and 2. Defendants Independent School District No. 11, Anoka-Hennepin School District; Anoka-Hennepin Board of Education; Mark Sullivan; and Roger M. Giroux’s Motion for Judgment on the Record [Docket No. 13] is GRANTED. LET JUDGMENT BE ENTERED ACCORDINGLY. BY THE COURT: s/Ann D. Montgomery ANN D. MONTGOMERY U.S. DISTRICT JUDGE Dated: June 11, 2008. Case 0:07-cv-04023-ADM-AJB Document 30 Filed 06/11/2008 Page 25 of 25 OAH 58-1300-17528-9 MDE #007-008H STATE OF MINNESOTA OFFICE OF ADMINISTRATIVE HEARINGS FOR THE DEPARTMENT OF EDUCATION In the Matter of [Student] v. Anoka-Hennepin Independent School District #11 FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER A hearing was held in this matter before Administrative Law Judge Linda F. Close on April 23, 2007 at Anoka-Ramsey Training Center, 11200 Mississippi Blvd., Coon Rapids, MN. The hearing continued on April 24, 2007 and May 16- 17, 2007 at the same location. Amy J. Goetz, School Law Center, 452 Selby Avenue, Second Floor East, Saint Paul, MN 55102, appeared on behalf of [Student] (the Student) and [Parent] (the Parent). Timothy R. Palmatier, Palmatier Law Office, 600 Twelve Oaks Center Drive #642 B, Wayzata, MN 55391, appeared on behalf of Anoka- Hennepin Independent School District #11 (the District). The parties filed posthearing briefs which were received on June 7, 2007. At the request of the Parent, the hearing was closed to the public. The District called the following witnesses to testify: [Parent], the Parent Dorothy Webb, Special Education Teacher, Bell Center Richard A. Ziegler, Pediatric Neuropsychologist, University of Minnesota Janice Ostrom, L.P., Certified Behavior Analyst, Brih Design Heather Brenden, Social Worker, Bell Center Julie Maass-Hanson, Behavior Specialist, Bell Center Vickie Pitney, Program Supervisor, Bell Center Case 0:07-cv-04023-ADM-AJB Document 30-2 Filed 06/11/2008 Page 1 of 27 In addition to testifying on behalf of the Student, the Parent called the following witness: Christel Petrowitsch, Director, Sylvan Learning Center STATEMENT OF ISSUES 1. Did the District provide the Student with a free and appropriate public education (FAPE) during the period September 21, 2004 to September 20, 2006? This includes the following sub-issues: Did the District implement and follow the Student’s individual education plan (IEP) and its behavior intervention plan (BIP)? Did the District fail to provide the Student and Parent with progress reports? Did the District fail to undertake new evaluations when the circumstances warranted doing so? Did the District fail to provide meaningful educational benefit to the Student by failing to manage the Student’s behavioral problems? 2. Did the District violate State educational standards and the Individuals with Disabilities Education Act (IDEA) by failing to implement positive behavioral interventions? 3. Is the Student entitled to compensatory education services? FINDINGS OF FACT Background 1. The Minnesota Department of Education and the School District received the Student’s request for a due process hearing on September 21, 2006. The same day, the Department appointed the undersigned to serve as the independent hearing officer. Prehearing conferences were held on September 26, 2006; October 24, 2006; November 20, 2006; December 22, 2006; February 9, 2007; and March 27, 2007. At the prehearing conference on October 24, 2006, the undersigned ordered that the Student’s 2005 independent educational evaluation be updated by Dr. Richard Ziegler, pediatric neuropsychologist at the University of Minnesota, and that the Student’s 2005 behavioral assessment be updated by Ms. Jan Ostrom, certified behavior analyst, Brih Design. 2 Case 0:07-cv-04023-ADM-AJB Document 30-2 Filed 06/11/2008 Page 2 of 27 2. The Student is a [ ]-year-old1 who lives within the District with his mother and siblings.2 He qualifies for special education services under the criteria for Emotional/Behavioral Disorder.3 He is diagnosed with Attention Deficit Hyperactive Disorder—Hyperactive Impulsive Type (by history) (ADHD); Reading Disorder/Dyslexia; Disorder of Written Expression; Mathematics Disorder; and Oppositional Defiant Disorder.4 3. The Student has a significant history of behavior problems, which include a suspension from the pre-school Head Start program. At age five, the Student could not undergo cognitive testing due to his behavior problems.5 At the age of seven, the Student was placed in a Level IV EBD program. In December 1997, he began receiving homebound instruction.6 By the sixth grade, when he was at the ECHO Southwood School, the Student’s behavior caused him to be restrained.7 The Student transitioned from the ECHO program to the Explore Program in the fall of 2002. Initially, he attended school full time as a seventh grader. However, his attendance and progress were poor, and he had behavior problems, so the IEP Team agreed to half-day attendance.8 4. The Student continued in the Explore Program through the 2004-05 school year, the Student’s ninth grade.9 As of the spring of 2005, the Student engaged in verbal and physical abuse of students and teachers at school; threw objects; wandered about the school building; and engaged in physical fights at school.10 He also engaged in sexualized behavior, including touching a female student’s chest, making sexual comments to female students, and gesturing in a sexual manner.11 While the Student was still attending the Explore Program, the District implemented police interventions, resulting in juvenile justice referrals.12 5. In May 2005, the Parent requested a due process hearing. This matter was settled through the development of an IEP for the 2005-06 school year, the Student’s tenth grade. The IEP development occurred after an independent educational evaluation by Dr. Ziegler in May 2005,13 and a functional behavioral assessment by Jan Ostrom in June 2005.14 Following their evaluations, both Dr. Ziegler and Ms. Ostrom participated in the IEP 1 Date of birth, [ ]. 2 Testimony of [Parent] at p. 96. 3 Ex. 1, p. 1. 4 Ex. 28, p. 13. 5 Ex. 28, p. 4. 6 Ex. 29, p. 2 7 Ex. 28, p. 1. 8 Ex. 29, p. 2. 9 Ex. 29, p. 2. 10 Ex. 28, p. 1. 11 Ex. 32, p. 4. 12 Ex. 29, p. 2. 13 Ex. 29. 14 Ex. 32. 3 Case 0:07-cv-04023-ADM-AJB Document 30-2 Filed 06/11/2008 Page 3 of 27 development.15 While prior IEPs had addressed the Student’s behavior issues, they had not covered his learning disability, which had been documented by Dr. Ziegler in 2003.16 The IEP for the 2005-06 school year included services directed at the Student’s reading, writing and math deficiencies.17 The IEP called for the Student’s placement at Bell Center, a Setting IV program for students with serious emotional/behavioral needs.18 The Parent, who was represented by counsel during the course of the IEP development, agreed to the 2005-06 IEP.19 6. During the summer of 2005, the District offered the Student extended school year (ESY) services at the Bell Center. The ESY services were designed to assist the Student in transitioning to the Bell Center by building relationships with Bell Center staff. The Student received one and one-half hours of instruction for six weeks. The services included music therapy, academic instruction and physical education.20 Initial Success 7. The 2005-06 IEP, in addition to providing goals and objectives in the academic areas of reading, writing and math, addressed the Student’s need for social skill development, including understanding boundaries and peer relationships.21 The IEP provided for individual and group counseling; music therapy; paraprofessional support; behavioral support; and special transportation.22 In developing the IEP, extensive discussion centered on whether the Student should begin his school day in a classroom setting or in an individual setting. The Student wanted to begin his day in the classroom, and the decision ultimately favored the Student’s wishes.23 8. Dorothy Webb was the Student’s case manager and teacher for the school year. At Bell Center, management of a Student is carried out through a team approach.24 The team responsible for implementing the 2005-06 IEP consisted of Webb; a behavior intervention specialist; a counselor; paraprofessionals; Laura Hendricks, the High School Lead; and Vickie Pitney, the Program Supervisor.25 The team developed a BIP to decrease negative behaviors, including inappropriate verbal behavior, social antics, physical aggression, property destruction, sexualized conduct and non-compliance with staff requests. The BIP described positive behaviors to encourage and set forth 15 Testimony of Richard A. Ziegler, p. 369; Testimony of Janice Ostrom, pp. 523, 542. 16 Ex. 27, p. 7. 17 Test. of Ziegler, pp. 369-72. 18 Ex. 1; T. 911. 19 Ex. 1. 20 Testimony of Vickie Pitney, pp. 920-21. 21 Ex. 1. 22 Ex. 1. 23 Test. of Pitney, pp. 924-25. 24 T. 129. 25 Ex. 1, A0137. 4 Case 0:07-cv-04023-ADM-AJB Document 30-2 Filed 06/11/2008 Page 4 of 27 a number of interventions for staff to utilize.26 The Bell Center team received training in the intervention techniques recommended by Ms. Ostrom’s June 2005, functional behavioral assessment of the Student.27 9. Dorothy Webb was the Student’s teacher, as well as his case manager. Ms. Webb has approximately thirty years of teaching experience. She is licensed in EBD. She has worked in a hospital setting with students with mental health issues. She has also taught students who were physically aggressive or had committed felony crimes, including murder. She has helped set up youth programs for street children in Minnesota and neighboring states. Webb has undertaken extensive continuing education and has only two classes left to become certified as a teacher for the learning disabled. She has studied various reading and language programs and continues to learn new techniques and strategies to help EBD students. With other Bell Center staff, she has been trained in crisis prevention intervention (CPI).28 10. Webb’s classroom is set up to be inviting and nurturing for her students. Each student has a desk located with the other students and also a carrel where the student can go to sit alone.29 For the 2005-06 school year, the Student was also allowed to leave the classroom to go to Room 101 for one-onone instruction when he wished. A paraprofessional would follow the Student to Room 101 to provide assistance. The Student also received support services there.30 11. During the 2005-06 school year, Webb’s class consisted of seven students who spent the majority of their day in her classroom. The classroom had many visual aids such as blackboards and whiteboards to help the students. Reading was tied to each part of the curriculum, which included discussion of the weather, important historical events of the day, math problems, current issues and other topics. In addition to Webb, the classroom was staffed by two paraprofessionals.31 12. The District used a literary coach to help Bell staff select reading strategies and resources.32 Webb utilized a variety of instructional tools to assist the Student in written language skills,33 math,34 and social skills.35 26 Ex. 1. 27 Testimony of Dorothy Webb, pp. 129-30. 28 Test. of Webb, pp. 109-13. 29 Test. of Webb, pp. 116-17. 30 Test. of Pitney, pp. 923-24. 31 Test. of Webb, pp. 116-19. 32 Test. of Webb, pp. 113-14.. 33 Tools included the Doors Program (T. 135-36), the Dolch Word List (T. 143), the Franklin Speller (T. 137), and the Language! curriculum (T. 133). 34 Math instruction was geared to create high interest by using materials such as cooking activities Oral Math Curriculum and Math Steps. T. 123-24 (Webb). 5 Case 0:07-cv-04023-ADM-AJB Document 30-2 Filed 06/11/2008 Page 5 of 27 13. During the first quarter of the school year, the Student attended school from 8:15 a.m. to 1:25 p.m. This shortened the Student’s school day by one period a day. For the first quarter, the Student received one hour per week of homebound instruction. The goal was to increase the Student to a full school day after the first quarter if the Student made progress.36 During the first quarter, the Student performed beyond the expectations of the team. He was motivated and stayed on track. He received three As, one B and one C on his first quarter report card.37 The Student wanted to be in school for the full day. As a result of the Student’s success, the team determined at the end of the first quarter to place the Student on a full school day.38 The Parent agreed to this change in the Student’s IEP.39 14. The Student’s BIP required the IEP team to hold a monthly meeting with the Parent. In September and October 2005, Ms. Ostrom attended the meetings. At some point during the fall, Ms. Ostrom believed her presence was no longer necessary, and she ceased attending.40 When behavior problems arose with the Student, Bell Center staff met as a team and reviewed the BIP for solutions to address the problems.41 Declining Performance 15. The team began to notice a change in the Student’s progress during the second quarter of the school year. By the time the quarter ended on January 25, 2006, the Student’s grades had dropped to one B, one D+, two Ds, and one F.42 Webb’s comments for the quarter indicate that the Student was not making a consistent effort; was frequently absent from the classroom; and did not turn in homework.43 16. Throughout the 2005-06 school year, the Bell Center team revised IEP adaptations to tailor them to the Student’s needs. Webb tried using a visual schedule and a sound field system in her classroom. She abandoned those adaptations because the Student really did not like either.44 On February 23, 2006, Webb discussed with the Parent adding an advocate to meet with the Student.45 The purpose of the advocate was to help redirect the Student so that 35 Staff employed the Jackie Robinson Foundation materials, Kagen Strategies, the Restitution Curriculum, and other strategies and materials. Test.of Webb, pp. 143-48, 150-51, 154; Testimony of Heather Brenden, pp. 695, 700-02. 36 Ex. 1, A 0131; Test. of Webb, p. 125. 37 Ex. 3; T. 187, 194. 38 Ex. 6; Test. of Webb, p. 194. 39 Ex. 8. 40 T. 542. 41 Test. of Webb, pp. 175-76; Test. of Brenden, p. 679. 42 Ex. 10. 43 Ex. 9. 44 T. 163-64. 45 Test. of Webb, p. 227; Ex. 17. 6 Case 0:07-cv-04023-ADM-AJB Document 30-2 Filed 06/11/2008 Page 6 of 27 he would progress in the program. The Parent agreed, and the advocate, Kenny Maxey, began meeting with the Student one a week. At some point, this increased to twice a week. The Student looked forward to the meetings with Maxey.46 17. On February 28, 2006, a revised BIP noted the Student’s increasing behavior problems, including failure to follow staff directions, inappropriate verbal behavior and some social antics. The interventions to be used did not change from the prior BIP, however.47 18. The Student’s grades continued to drop during the school year. For the third quarter, the Student’s marks were one C, one C-, one D and three Fs. Webb noted that staff continued to work hard with the Student, but that the Student refused to work.48 During the fourth quarter, the Student received six Fs on his report card.49 During the fourth quarter, the Student completed a large project which he presented to the student body for Minnesota History Day.50 Throughout the school year, the Student wrote reports including reports on Galileo, John F. Kennedy, and Prince.51 19. The Student’s IEP called for individual and group counseling during the school year. Heather Brenden, the social worker at Bell Center, was the Student’s counselor. Brenden is a licensed social worker who has worked at Bell Center for about 14 years. She holds a master’s degree in social work and psychotherapy.52 Initially, Brenden worked to build a relationship with the Student by spending time with him in the classroom or gym. Brenden also met with the Student weekly for one-on-one counseling.53 Despite the weekly meetings, Brenden never felt she developed a close relationship with the Student in that she learned little of the Student’s life at home. 20. Brenden worked with other team members when behavior issues arose regarding the student. At times, Brenden and Webb spoke informally about issues as they arose and at other times the team met formally to discuss problems.54 Staff followed the BIP’s plan for differential reinforcement. This meant staff would give positive comments for pro-social conduct and refrain from commenting negatively on inappropriate conduct. Team often attempted to redirect the Student and give him space. Staff adopted a neutral tone in 46 In September 2006, the Parent directed that Maxey have no further contact with the Student. The Parent indicated that Maxey and the Student had nothing in common. Test. of Webb, pp. 226-31. 47 Ex. 16. 48 Ex. 13. 49 Ex. 15. 50 Test. of Brenden, p. 733. The Student presented on [ ]. His presentation included [ ]. 51 Test. of Webb, p. 265. 52 Test. of Brenden, pp. 664, 668. 53 Test. of Brenden, pp. 672-74. 54 Test. of Brenden, pp. 679-80. 7 Case 0:07-cv-04023-ADM-AJB Document 30-2 Filed 06/11/2008 Page 7 of 27 discussing problems and listened to his views about a given situation. Staff also allowed the Student to go to a separate room for one-to-one instruction whenever the Student wanted that.55 21. Julie Maass-Hanson is a behavior specialist at the Bell Center. She served as the behavior interventionist on the Bell Center team for the Student. In addition to being a behavior interventionist, she is licensed as an EBD teacher.56 Maass-Hanson trains staff in CPI, specifically describing the stages of crisis and how to respond to each.57 She holds a bachelor’s degree in psychology and a master’s degree in education policy and administration. Currently, she is studying for her licensure as a principal and director of special education.58 22. Maass-Hanson’s role at Bell Center is, in part, to oversee the tracking of student behavior. She developed a tool for tracking and measuring behavior that was implemented during the 2005-06 school year.59 Behavior tracking at Bell Center is more detailed at Bell Center compared to other schools because of the high ratio of teachers to students, which allows closer tracking of behavior.60 23. Maass-Hanson had occasional interactions with the Student during the first part of the school year. Beginning in February 2006, the Student’s behavior changed. At that point, Maass-Hanson was called into team meetings to collaborate on how to intervene, and she intervened directly herself. She used the BIP as a reference for what type of intervention to employ. She used differential reinforcement unless the behavior escalated to the point where stronger interventions were required. Maass-Hanson believes that police liaison intervention was used appropriately when staff felt they might not be able to control a situation in a safe manner.61 24. Out of the team’s frequent meetings about the Student’s declining performance came a number of interventions and adaptations that were tried as the school year progressed. The Student’s schedule was changed to add physical education, because the Student could experience success with that. Staff also involved the Student with a dance troupe activity. Staff moved the Student from a self-contained classroom to a mainstream schedule.62 The team 55 Test. of Brenden, pp. 682-86. 56 Testimony of Julie Maass-Hanson, p. 820. 57 Test. Maass-Hanson, pp. 823-24. 58 Test. Maass-Hanson, pp. 825-26. 59 See Ex. 19. 60 Test. Maass-Hanson, p. 831. 61 Test. Maass-Hanson, pp. 832-36. 62 Mainstream at Bell Center refers to a schedule where the student moves from one classroom to another rather than remaining a self-contained classroom. Test. of Webb, pp. 257-58. 8 Case 0:07-cv-04023-ADM-AJB Document 30-2 Filed 06/11/2008 Page 8 of 27 also started the Student in a quiet, one-to-one setting, added the mentor described above, and altered the amount and timing of music therapy.63 Increasing Behavior Problems/ Police Liaison Interventions 25. As the school year progressed, the Student’s performance declined and his behavior deteriorated. Bell Center staff code students’ behavior incidents. During the first quarter, staff noted 91 behavior incidents for the Student and, during the second quarter, 103. Staff documented 227 incidents the third quarter and 304 the fourth.64 26. In addition to coding behavior incidents, Bell Center team members complete a critical incident report when safety is an issue; when an incident is disruptive to the learning environment; or when an out of school suspension occurs.65 The Student’s school record contains one critical incident report for the first quarter, none for the second, and five for the third and fourth quarters.66 The incidents occurred on September 19, 2005;67 April 5, 2006;68 April 26, 2006;69 May 25, 2006;70 June 2, 2006;71 and June 7, 2006.72 27. The record references the presence of the police liaison during behavior incidents on the following occasions: • 2/6/2006: Staff called the police liaison when the Student refused to leave the room.73 • 2/14/2006: Staff called the police liaison when the Student was wandering the halls and refused to go to Room 101.74 • 2/16/2006: The student raised his fist to the police liaison. It does not appear from the record that staff had called the officer to intervene. 75 63 T. 255-56; Ex. 29, A0422. 64 Ex. 40. Ostrom testified that Bell Center documents behavior on a “miniscule” basis. She expressed concern about the Center’s detailed data collection methodology, which allows a single incident occurring over a twenty-five minute to be recorded up to 16 times. Test. of Ostrom, p. 607. 65 Test. of Pitney, p. 951. 66 Ex. 25, 43. 67 Ex. 43, B0100 ([ ] The Student didn’t cease playing when directed to do so. [ ]). 68 Ex. 43, B0123 (the incident is described in the next paragraph of these findings). 69 Ex. 43, B0129 (the Student disrupted another class and was suspended). 70 Ex. 43, B0137 (the incident is described in the next paragraph of these findings). 71 Ex. 43, B0143 (the incident is described in the next paragraph of these findings). 72 Ex. 43, B0148 (the incident is described in the next paragraph of these findings). 73 Ex. 23, C007. According to Pitney, February was the first time during the 2005-06 school year that the police were called to intervene. Test. of Pitney, p. 967. 74 Ex. 23, C0010. 75 Ex. 23, C0008. 9 Case 0:07-cv-04023-ADM-AJB Document 30-2 Filed 06/11/2008 Page 9 of 27 • 3/6/2006: The Student lay on the floor in the hallway. The police liaison asked the student to get up, but he did not. It does not appear from the record that staff had called the officer to intervene.76 • 3/13/2006: The Student told the police officer to “shut the f---- up.” It does not appear from the record that staff had called the officer to intervene in any behavioral incident.77 • 3/21/2006: The Student called the officer “pig,” which comment was documented by staff. It does not appear from the record that staff had called the officer to intervene in any behavioral incident.78 • 4/5/2006: For a period of 20 minutes, the Student refused to follow directions to remove headphones and to go to Room 101. Staff called the police liaison, who accompanied the student to the liaison office, where he was charged with disorderly conduct.79 • 5/4/2006: The Student referred to the police liaison, who was apparently in the area, as “an asshole.” The Student made oinking sounds in the officer’s presence. It does not appear from the record that staff had called the officer to intervene, merely that the officer observed and documented the conduct.80 • 5/5/2006: The Student used inappropriate language in the hallway and the officer reminded him about appropriate language. It does not appear from the record that staff had called the officer to intervene in any behavioral incident.81 • 5/18/2006: The police liaison observed the Student swearing in the hall and being verbally inappropriate. It does not appear from the record that staff had called the officer to intervene, merely that the officer observed and documented the conduct.82 • 5/24/2006: The Student told the officer to “shut the f--- up.” It does not appear from the record that staff had called the officer to intervene in any behavioral incident.83 76 Ex. 19, C0160. 77 Ex. 26, B0117. 78 Ex. 23, C0010. 79 Ex. 43, B0123. 80 Ex. 23, C0014. 81 Ex. 19, C0118. 82 Ex. 23, C0016. 83 Ex. 23, C0017. 10 Case 0:07-cv-04023-ADM-AJB Document 30-2 Filed 06/11/2008 Page 10 of 27 • 5/25/2006: The Student interrupted other students by knocking on classroom doors, throwing keys against the wall, swearing and refusing requests to cease. The police liaison was in the area and prevented the Student from entering a specific area. The Student threatened the officer verbally and called her names, which the officer ignored. The student was very angry. The student’s conduct continued to escalate and the police officer called for backup. Eventually the Student was permitted to leave the school building. It does not appear from the record that staff called the officer to intervene, but the officer did remain.84 • 6/2/2006: An incident began when the Student was in the gym for the graduation ceremony. The Student refused requests for him to pull his pants up so his underwear would not show. Staff attempted to persuade the Student to remove to another room. Because the public was in the building, the police liaison did not want the Student wandering the halls. She entered the room where the Student was, and they exchanged words. Eventually, the officer escorted the Student off school property. It does not appear from the record that staff called the officer to intervene.85 • 6/7/2006: The Student was assigned in-school suspension for making a racial slur. The Student refused to comply and walked through the halls tearing down posters, swearing, and banging on classroom doors. Staff asked other staff to assist in the situation. The Student heard this and remarked that he knew how to get suspended by simply finding the police liaison. The Student left the building and was not allowed to return. It appears that the police liaison monitored the Student from inside the building, but did not have contact with the Student. It does not appear from the record that staff called the officer to intervene when other staff were called to assist.86 • 9/16/2006: Staff requested the Student to leave the cafeteria because the Student had been wandering into a classroom with his lunch. Staff asked the police liaison for assistance. The Student became unruly, left the cafeteria, threw a juice carton violently so that it exploded onto the wall, and kicked recycling bins, causing one to careen across the hall. The Student resisted arrest and the officer called for back up. The Student resisted the officers who came as back up. The Student was suspended for 5 days.87 84 Ex. 43, B0129. 85 Ex. 43, B0143. 86 Ex. 43, B0148. 87 Ex. 43, B0162-63. 11 Case 0:07-cv-04023-ADM-AJB Document 30-2 Filed 06/11/2008 Page 11 of 27 28. At some point during February or March 2006, Pitney and Maass- Hanson discussed with the police liaison their concern that the Student was seeking out the liaison to engage her in a power struggle. They requested the officer to handle such situations by removing herself from the Student’s vicinity. The officer agreed she would do that unless school safety was at risk. After the conversation, the officer ignored many of the Student’s derogatory statements to the officer.88 During the May 26 incident described above, the officer decided at one point to leave the area, having ignored the Student’s name-calling and negative behaviors. However, she concluded there was a safety risk, and she did remain near the student.89 29. The Parent has been concerned about the use of police interventions in the Student’s behavior.90 She does not believe that the police should intervene in an incident unless the Student actually hits someone.91 Communication with the Parent 30. Bell Center staff maintained contact with the Parent through telephone calls, progress reports, and meetings.92 At the beginning of the school year, the Parent was engaged and cooperative. As the Student’s progress declined, the Parent became less engaged at team meetings. She attended monthly meetings, but did not participate. She adopted different body language, wore sunglasses during the meetings, and left meetings early. The Student was present at some of these meetings and observed this behavior.93 31. Meetings included monthly Core Team meetings with the Parent. Ms. Ostrom attended the September and October meetings. The Student was doing well at that time, so Ms. Ostrom believed she was no longer needed.94 The team continued to meet monthly without her. At the February 17, 2006, team meeting, the team discussed the BIP. Staff had called the police liaison twice in February to intervene with the Student.95 The team discussed changing the BIP to reduce the Student’s freedom to wander, which had been allowed under the earlier BIP. The Parent agreed to a change to limit where the Student 88 Test. of Pitney, p. 968. 89 Ex. 43, B0138. 90 Test. of Gilmore, p. 103. 91 Test. of Gilmore, p. 64. 92 Test. of Webb, p. 245. Exhibit 17 is Webb’s telephone log relative to the Student. It reflects more than sixty calls relating to the Student. Most of these were from Webb to the Parent. At one point, the Parent wanted to see the Student’s tracking sheets, and these were sent home daily. Test. of Webb, p. 245. 93 Test. of Pitney, pp. 933-35. 94 Test. of Webb, p. 196. 95 T. 201-02. 12 Case 0:07-cv-04023-ADM-AJB Document 30-2 Filed 06/11/2008 Page 12 of 27 could be when he left the classroom.96 On February 28, 2006, the BIP was revised, although there is no evidence the Parent ever signed it.97 32. On March 15, 2006, there was a re-entry meeting because the Student had either been suspended or day-ended. The team recommended having the Student start his day in Room 101, where he would be given one-onone instruction. Behavioral incidents were escalating and the team thought the one-on-one start might help the Student get back on track.98 The team met with the Parent and the Student to discuss the proposal. The Student objected initially, but ultimately the team, Parent, and Student agreed to this modification in the Student’s schedule.99 33. Several times during the school year, the team invited the Parent to observe during the school day. Early in the school year, the Parent attended meetings. In December 2005, she came to school to intervene with the Student to get him back on track.100 The decline in the Parent’s participation began during the third and fourth quarters. At the February 3, 2006 team meeting, the team discussed having the Parent come for impromptu visits. Early in the year, the Parent’s intervention by phone had been helpful. The team felt impromptu visits might help.101 There is no evidence that the Parent ever made impromptu visits. In March, Webb spoke with the Parent about beginning to plan for ESY. The Parent did not commit to sending the Student to school during the summer, and Webb followed up with the parent. The Parent never did respond to Webb about the proposed ESY plans.102 June 2006 Evaluation 34. During the spring of 2006, the Bell Center behavior specialists undertook an updated functional behavioral assessment (FBA). The assessment gathered information about the Student’s behavior from all staff and examined it in detail.103 35. In June 2006, the District undertook a comprehensive re-evaluation of the Student. The prior evaluation had been conducted in May 2005. Since the prior evaluation, the Student had developed significant behavior problems, especially those that surfaced during the second half of the school year. The June 2006 evaluation added to the school record the results of speech testing, a 96 Test. of Maass-Hanson, p. 851. 97 Ex. 16. 98 T. 202-03 99 Ex. 12. 100 Test. of Webb, pp. 212-14. 101 T. 946; Ex. 42. 102 Test. of Webb, pp. 215-16. 103 Test. of Maass-Hanson, pp. 853-56; Ex. 40. 13 Case 0:07-cv-04023-ADM-AJB Document 30-2 Filed 06/11/2008 Page 13 of 27 psychosexual evaluation, a functional behavioral assessment and transition information.104 36. In June 2006, the Bell Center team prepared a new IEP following the evaluation and the FBA. The Student provided input about his needs during the evaluation process. His descriptions of his needs were more precise than they had been previously.105 In the new IEP, the team ascribed the Student’s escalated negative behaviors to his avoidance of academic tasks and his masking of skills deficits. The updated IEP differed from the prior IEP in that it addressed transition issues and the Student’s needs relating to transition. The Student’s reading objectives were heightened; math objectives were increased in difficulty and made more specific; academic performance objectives were made more complex; new objectives were set for the behavioral goals; a postsecondary objective relating to the Student’s self-awareness of his disability was stated; a jobs and training objective to require acquisition of job skills was set; and several community participation goals were added.106 37. Webb and Pitney both called the Parent to arrange for the participation of the Parent and Student in a re-evaluation IEP meeting. The Parent did not return Webb’s calls. Pitney discussed with the Parent the importance of having a meeting, because the District wanted to provide extended school year (ESY) services during the summer. The Parent promised several times to contact Pitney to confirm a meeting time. Ultimately, Pitney informed the Parent by telephone and mail that the meeting would take place on June 15, 2006. Neither the Parent nor the Student attended the meeting.107 38. When the team met on June 15th, members again discussed the decline in the Student’s academic and behavioral performance over the course of the 2005-06 school year. The team concluded that the Student should continue on a full-day schedule in the coming year. The team also determined to provide music therapy, one-on-one academic skills work, and physical education. The Student had done well with these services the prior summer.108 39. As part of the re-evaluation process, the team also revised the BIP, which had been revised in February 2006 when the Student’s negative behaviors began to escalate.109 The BIP described in detail behavioral incidents during the past school year. Like the prior BIP, it emphasized differential reinforcement as a strategy. Highlights of the revised BIP included: setting number, duration, and location limits on the Student’s “time-outs” or “self” periods; prohibiting wandering 104 Ex. 35. 105 Test. of Pitney, pp. 974-75. 106 Ex. 45. 107 Ex. 45. 108 Ex. 45. 109 See Ex. 16. 14 Case 0:07-cv-04023-ADM-AJB Document 30-2 Filed 06/11/2008 Page 14 of 27 in the halls to seek out staff; permitting calls to the Parent or Kenney Maxey; and calling the Parent to report successes as well as setbacks.110 40. The IEP and BIP were sent to the Parent. She did not sign the revised documents, and the Student did not avail himself of ESY services. The Parent told Webb that the Parent would not force the Student to go to summer school.111 Sylvan Learning Center 41. In approximately March of 2006, the Student began to work with educators at Sylvan Learning Center. The Student stayed in the program until summer break and resumed in October 2006. Christel Petrowitsch is his teacher at this time. Petrowitsch is the center director at Sylvan Learning Center, and she teaches occasionally. She began working at Sylvan in 2004, upon graduation from college. She holds a bachelor of arts degree in elementary education.112 42. In the spring of 2005, Sylvan worked with the student on reading and math only.113 At that time, the Student would bring in his homework from Bell Center. He is not currently at Bell Center so he does not do that now.114 The Student sometimes refuses to work at Sylvan, but there has never been a behavior problem with him there.115 At the time of the hearing, the Student was attending Sylvan six hours per week. This was an increase from four, because the Student had missed so many hours previously.116 The director believes the Student has been making progress at Sylvan.117 Results of Independent Evaluations 43. In an Order issued on November 20, 2006, the Administrative Law Judge appointed Richard S. Ziegler, Ph.D. to conduct an update of his June 2005 neuropsychological exam of the Student and appointed Janice L. Ostrom to conduct an update of her June 2005 functional behavioral assessment. 44. Dr. Ziegler submitted his updated evaluation on January 22, 2007.118 The evaluation was the third he had conducted on the Student, previous evaluations having been completed in the fall of 2003 and June 2005. Dr. Ziegler is a staff pediatric neuropsychologist at the University of Minnesota 110 Ex. 45. 111 T. 975-77 (Pitney). 112 Testimony of Christel Petrowitsch; pp. 1110-11. 113 Test. of Petrowitsch, p.1117 (). 114 Test. of Petrowitsch, p.1120. 115 Test. of Petrowitsch, pp. 1132-33. 116 Test. of Petrowitsch, p.1134. 117 Test. of Petrowitsch, p.1127. 118 Ex. 29. 15 Case 0:07-cv-04023-ADM-AJB Document 30-2 Filed 06/11/2008 Page 15 of 27 Medical School and an Assistant Professor of Pediatrics, Neurology, Biophysical Sciences and Medical Physics.119 45. In preparing his report, Dr. Ziegler reviewed his earlier reports; interviewed educators, the Student and his Parent; and conducted tests, during which time observations of the Student were made. The tests assessed the Student’s attention and executive functioning;120 academic achievement; linguistic competence; fine motor/visual motor skills; and behavioral and emotional functioning. The executive functioning and behavioral and emotional functioning portions of the testing consisted of parent and teacher completion of assessment tools.121 46. Dr. Ziegler found that the Student initially succeeded at Bell Center, but that his functioning declined substantially after the first quarter. Dr. Ziegler noted that Bell Center staff attempted numerous interventions to address the decline and found these efforts laudable. He attributed the decline to the following: • Bell Center staff failed to re-involve Ms. Ostrom when behavior problems became significant. The IEP behavior plans of July 2005 and February 2006 both referenced her role as a consultant. After November 2005, staff did not consult with her. • When staff re-evaluated the Student in July 2006, they failed to qualify him for speech-language services for the 2006-07 school year, although testing indicated that need. • The Student perceived changes in how he was treated by staff, though neither he nor his mother articulated this to Bell Center staff. • Trust between the Student and the Parent and Bell Center staff declined. This followed from the involvement of the police liaison in behavioral interventions and the Parent’s perception that this was a “re-play” of the Student’s prior, failed educational setting at the Explore Program. • Bell Center staff saw the Parent as diminishing her involvement in the Student’s program. • The Parent had failed to follow through with recommended individual psychiatric therapy and/or medication for the Student. 119 Ex. 30. 120 Executive functioning includes the individual’s ability to plan, be flexible, generate information, control impulses, and remember. Ex. 29, p. 14. 121 Ex. 29, pp. 14-16. 16 Case 0:07-cv-04023-ADM-AJB Document 30-2 Filed 06/11/2008 Page 16 of 27 • The Parent had failed to follow up on recommended sexualityspecific treatment.122 47. The academic testing during the evaluation revealed that the Student’s raw scores had improved in all academic domains and on measures of higher order receptive and expressive language. Dr. Ziegler concluded that the Student had benefited from the services he had received at Bell Center, and during homebound and Sylvan Learning Center tutoring.123 48. Dr. Ziegler expressed concern that the Student, despite academic progress, has not bridged the achievement gap relative to his peers and continues to need intensive academic intervention. He concluded that the Student does not do well in the classroom and is more apt to make progress through homebound, one-on-one education services.124 He also recommended the Parent seek individual therapy for the Student and another medication consult to address the Student’s significant attention and impulsivity problems. He further recommended that the Student receive speech-language therapy as a related service. Finally, Dr. Ziegler recommended social skills training and basic social interaction skills to allow him to obtain and maintain employment. The report does not explain how social interaction skills would be taught if the student is confined to one-on-one education services.125 49. Dr. Ziegler’s conclusion that the Student does better in a one-onone education setting contravenes the evidence that the Student flourished during his first quarter at Bell Center when he attended school in a classroom with six other students. 50. Ms. Ostrom submitted her updated functional behavioral assessment on January 22, 2007.126 Ms. Ostrom met with and interviewed educators, the Parent and the Student, and she observed the Student during homebound instruction. She reviewed a large number of school records, including critical incident reports, notices of suspension, IEPs, meeting notes and other records pertinent to her assessment.127 51. Ms. Ostrom found that the variables that influence the Student’s behavioral profile were basically unchanged from her June 2005 assessment. These variables include the Student’s compromised self-esteem; his deficits in social and self-sufficiency skills, as well as language skills; his mental health and medication issues; the presence of noise and activity in the educational 122 Ex. 29, pp. 16-19. 123 Ex. 29, pp. 19-20. 124 Dr. Ziegler recommended a change in the Student’s homebound instructor, whom he found to be overly-negative in his assessments of the Student. Ex. 29, p. 20. 125 Ex. 29, pp. 19-20. 126 Ex. 33. The cover letter to the report is dated 2006, but Ms. Ostrom corrected this on the record. Test. if Ostrom, p. 535. 127 Ex. 33, pp. 1-2. 17 Case 0:07-cv-04023-ADM-AJB Document 30-2 Filed 06/11/2008 Page 17 of 27 environment; the Student’s variable responses to requests made of him and his response to perceived denial of his requests to others; the Student’s being reinforced by social altercation, rather than positive social opportunities; and the futility of punishment or perceived punishment to avoid social antics and aberrant behaviors.128 52. Ms. Ostrom examined the services and supports provided during the 2005-06 school year and described how those influenced problematic behaviors. She found the following: • The Bell Center team lengthened the Student’s school day during the second quarter in order to recognize and reinforce the positive performance during the first quarter. The class added to the Student’s schedule placed him with an unfamiliar group of students. However, Ms. Ostrom could not conclude that either of these was a discerning variable. • The Bell Center team made many efforts to communicate and collaborate with the Parent. Despite the existence of notes of phone calls and reports to home, communication decreased over the course of the school year. • The Bell Center team was proactive in its efforts to manage the Student’s behavioral profile. In one such effort, the team acquiesced in the Student’s request to have a rotating schedule. This intervention, however, may actually have contributed to the Student’s wandering the halls later in the school year. • The Bell Center team provided the Student with a multicultural advisor, Kenny Maxey. Ms. Ostrom questioned the wisdom of the Parent’s decision to terminate this relationship, which offered the Student an opportunity to work through his inappropriate verbal behavior towards statements of race. • Police intervention came to be used more frequently over the course of the school year. Ms. Ostrom found that the use of police intervention was warranted, given the behaviors the Student exhibited, including wandering the hallways, swearing, opening classroom doors and not responding to requests of interventionists. Ms Ostrom noted, however, that utility of an intensive intervention such as use of police should be identified as a reactive strategy and discussed on the BIP. • In February 2006, the Student was reported as truant. Ms. Ostrom noted that a truancy action’s motivational value is limited because it is 128 Ex. 33, pp. 7-8. 18 Case 0:07-cv-04023-ADM-AJB Document 30-2 Filed 06/11/2008 Page 18 of 27 not contemporaneous with the problematic behavior. She stated that the Bell Center team should list this strategy on the BIP as a reactive strategy to decrease the frequency of leaving and wandering behaviors.129 53. Ms. Ostrom identified two variables as likely responsible for the Student’s decline in the second and following quarters. First, direct communication and collaboration with the Parent faded as the year progressed. Ms. Ostrom noted, as she did in 2005, that the Student is more participative when the Parent supports the educational efforts. The Student is inclined to tell stories about incidents that are significantly different from staff perceptions, which has a negative impact on staff. Ms. Ostrom referenced her earlier report about the Student’s desire to avoid responsibility for academic tasks. She encouraged the Parent and the Bell Center team not to honor the Student’s efforts to avoid responsibility.130 54. The second variable identified by Ms. Ostrom as contributing to the Student’s decline is the presence and intervention of the police liaison officer. Ms. Ostrom saw this variable as having a two-fold effect on the Student’s behavior. First, because of a past history of litigation over the use of police intervention, the Student, as his behaviors escalated, made threats about what he would do if the police intervene. Second, the Student increasingly sought out and taunted the police liaison with a view to being suspended. Ms. Ostrom saw this as the Student’s attempt to negatively impact collaboration and communication on the educational team.131 55. Ms. Ostrom outlined a number of behavior support strategies geared to the Student’s behavioral profile and made several recommendations, including the following: • Institute educator communication and collaboration with the Student and Parent. Ostrom again noted the Student’s propensity to disrupt communications by causing the Parent to doubt the efficacy of the educational plan. She suggested frequent facilitated Core team meetings with the Parent, working toward the goal of team self-governance. • Place the Student in a highly structured educational environment in which the day is ended if redirects exceed a pre-set number. • Structure the educational environment to allow a room in which the Student may separate. 129 Ex. 33, pp. 8-10. 130 Ex. 33, pp. 10-11. 131 Ex. 33, p. 11. 19 Case 0:07-cv-04023-ADM-AJB Document 30-2 Filed 06/11/2008 Page 19 of 27 • Present work so that the Student does not remain at one task for more than fifteen or twenty minutes. • Incorporate transitional and functional living skills into the Student’s program. • Reinstate the use of a multicultural advisor. • Use differential social reinforcement, meaning that the team should attend to the Student’s positive behaviors and ignore the negative ones, so that the Student’s desire for social attention is not met through inappropriate behavior. • Involve a mental health therapist to work with the Student on mental health concerns. • Follow up with previous recommendations for therapeutic support relative to the Student’s inappropriate sexualized behavior.132 56. At the start of the hearing, the Parties provided to the Administrative Law Judge voluminous documents. From these, the Parties introduced fifty-five exhibits of which fifty-two exhibits were received. The District had marked for identification two exhibits, numbered 49 and 50, which were not received. The Parent had marked for identification exhibit 53, which was not received. These three exhibits have been sealed. The Administrative Law Judge has retained those documents that were not introduced. At the close of the appeal period, the Administrative Law Judge will destroy the sealed records and those records that were never introduced. Based on the foregoing Findings of Fact, the Administrative Law Judge makes the following: CONCLUSIONS OF LAW 1. This matter is properly before the Administrative Law Judge pursuant to 34 C.F.R. § 512 and Minn. Stat. § 125A.091, subd. 12. 2. This decision was not rendered within 45 days from the date on which the Department received the Parent’s request for hearing. Extensions were granted for good cause shown and with agreement of the Parties. 3. The Student is a child with disabilities as defined in Minn. Stat. § 125A.02 and 20 U.S.C. § 1401 (3) who is entitled to special education services 132 Ex. 33, p. 12-16. 20 Case 0:07-cv-04023-ADM-AJB Document 30-2 Filed 06/11/2008 Page 20 of 27 appropriate to his needs pursuant to the IDEA and its regulations and Minn. Stat. ch. 125A and its pertinent Minnesota rules. 4. The District was the district of the Student’s residence during the period September 21, 2004 to September 20, 2006. The District had the primary responsibility for providing an appropriate program of special education for the Student. 5. The burden of proof is on the District to show by a preponderance of the evidence that it is complying with the law and offered or provided a FAPE to the child.133 6. A program of education offers a FAPE as required by IDEA when the school district complies with the procedures set forth in federal and state law and provides an IEP that is reasonably calculated to provide some educational benefit to the student.134 7. The District complied with procedures set forth in federal and state law by implementing and following the Student’s IEP and its accompanying BIP; providing the Student and Parent with progress reports; and undertaking new evaluations when the circumstances warranted doing so. 8. The District has shown by a preponderance of the evidence that it provided the Student a meaningful educational benefit. The District offered a program that could achieve educational benefit, and the Student actually did achieve educational benefit as shown in independent testing. 9. The District has shown, by a preponderance of the evidence, that it followed the Student’s BIP and revised it as behavioral problems increased in February 2006. The District implemented positive behavioral interventions to the extent reasonable and did not violate State educational standards and IDEA by utilizing the police liaison when necessary. 10. A school district must provide compensatory educational services when the hearing officer finds that it has not offered or made available FAPE in the least restrictive environment and the child has suffered a loss of educational benefit.135 Because the Student failed to show FAPE was denied or that he suffered a loss of educational benefit, he is not entitled to compensatory education. 11. Any Finding of Fact more properly characterized as a Conclusion of Law is adopted as such. 133 Minn. Stat. § 125A.091, subd. 16. 134 Board of Educ. of the Hendrick-Hudson Central Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982); Bradley v. Ark. Dept. of Educ., 45 IDELR (8th Cir. 2006). 135 Minn. Stat. § 125A.091, subd. 21. 21 Case 0:07-cv-04023-ADM-AJB Document 30-2 Filed 06/11/2008 Page 21 of 27 Based on the Findings of Fact and Conclusions of Law, and for the reasons set forth in the accompanying Memorandum, incorporated herein: ORDER IT IS HEREBY ORDERED THAT: 1. The Student’s complaint is dismissed. 2. The Student’s request for compensatory educational services is denied. Dated this 26th day of June 2007 _s/Linda F. Close_____________ LINDA F. CLOSE Administrative Law Judge Reported: Kirby A. Kennedy & Associates, four volumes NOTICE Under Minn. Stat. § 125A.091, subd. 24, a party may seek review of this decision in the Minnesota Court of Appeals or in Federal District Court, consistent with federal law. A party must appeal to the Minnesota Court of Appeals within 60 days of receiving the hearing officer’s decision. MEMORANDUM The Parent’s complaint claims substantive and procedural violations of IDEA and state law. While the District might have handled some situations differently, its overall provision of services to the Student did not violate federal or state law. PROVISION OF A MEANINGFUL EDUCATIONAL OPPORTUNITY A. Use of the Police Liaison The core of the Parent’s case is her contention that the District’s involvement of the police liaison deprived the Student of FAPE. The case is built on two flawed premises: first, that police involvement was factually unwarranted 22 Case 0:07-cv-04023-ADM-AJB Document 30-2 Filed 06/11/2008 Page 22 of 27 and second, that police involvement was intended as an intervention strategy. From these faulty underpinnings, the Parent concludes that the Student was not provided with a meaningful educational opportunity because police intervention taught the Student nothing. The ALJ rejects the Parent’s contention. The facts do not support either that the Bell Center team inappropriately utilized the officer or that it over utilized the officer. As set forth in Finding of Fact 24, the record references fifteen occasions, beginning in February 2006 and ending in September 2006, when the liaison had contact of any sort with the Student. On six of these occasions, the contact consisted of the Student’s baiting the officer. On five others, it appears that staff did not ask the officer to intervene and the contact was inconsequential. On only four occasions is it clear that staff asked the officer for assistance. Significantly, as soon as the Student’s negative behavior pattern emerged in February 2006, Pitney spoke with the police liaison about the differential reinforcement strategy found in the Student’s BIP. The officer agreed to abide by that strategy but—also significantly—the officer made clear that her role was to maintain safety. Thus, she would ignore the Student’s negative comments and behaviors, but only if safety were not an issue. From this it must be inferred that, on those few occasions when the officer had an actual encounter with the Student, she had made a judgment that safety demanded her presence and involvement. Particularly in the September 2006 incident, it was clear the Student was violent and was creating a dangerous situation in the school.136 The Parent attempts to reinforce the argument that the District over utilized the police liaison by asserting that the Student has not had any police problems in the community environment. The record reveals otherwise. At hearing, the Parent admitted the Student had been charged with trespassing when he entered an apartment complex where he did not belong.137 Initially, the Parent said that the trespassing incident was the Student’s only brush with police. On further cross examination, she admitted that the police had also picked the Student up for curfew violation. Moreover, the Parent denied having called Webb on February 22, 2006, trying to locate the Student. The Parent reported to Webb that the Student had gone out on Monday night and stayed out all night. The Parent had not seen the Student since Tuesday night.138 This evidence gives the lie to the Parent’s argument that the Student’s behavior in the community has never raised safety concerns. The Parent further argues that police interventions violate State mandates to use positive approaches to behavior problems and should be prohibited 136 See Ex, 43, B0162. 137 Test. of [Parent], pp. 61-62. 138 Test. of Webb, pp. 249-50. 23 Case 0:07-cv-04023-ADM-AJB Document 30-2 Filed 06/11/2008 Page 23 of 27 because they lack any educational value.139 The District, however, does not maintain that police intervention is intended to teach the Student. As Pitney testified “[police intervention] may or may not teach [the Student] anything, but that is not the purpose. The purpose is for safety—emotional or physical safety.”140 Bell Center staff actually involved the police liaison infrequently. More often than not, it was the Student who sought out the liaison, aware that trouble might ensue. To her credit, the officer avoided confrontations and ignored the Student’s overtures up to the point when safety became an issue.141 The Parent’s argument that state law mandates that safety be ignored in favor of a policy of positive reinforcement simply cannot be credited. Ms. Ostrom’s most recent report aptly sums up what has really happened in this case. Her report states: Over the years there have been discussions, including litigation, to address the use of police officers as interventionists in the educational environment. This emphasis has implicated the behavioral profile two-fold. First … the student may threaten the actions of the police liaison as his behaviors are escalating….More concerning, however possible, is that [the Student] may taunt to gain the actions of the officer in efforts to impact communication and collaboration on the educational team.142 Thus, notwithstanding the Student’s admitted difficulties in gaining insight into his own behavior, he appears to be, at some level, well aware of how to interfere with the critically-important collaboration between educators and the Parent. B. Progress on Academic and Behavioral Goals The Parent argues that the District’s failure to effect any academic progress and to address the Student’s emotional and behavioral problems with non-police interventions deprived the Student of a meaningful educational opportunity. Again, the argument is factually unsupportable. The Parent insists that the hearing officer attribute that progress to the Student’s work at Sylvan. To do so would require that the record evidence of the Student’s success at Bell Center be ignored.143 During his first quarter at Bell Center, there can be no argument that the Student progressed. And even during the quarter in which the Student was least successful, from a behavioral point of view, he presented a 139 Minn. R. 3525.0850 encourages “the use of positive approaches to behavioral interventions. The objective of any behavioral intervention must be that pupils acquire appropriate behaviors and skills.” 140 Test. of Pitney, p. 1074. 141 Test. of Pitney, p. 968. 142 Ex. 33, p. 11. 143 Dr. Ziegler was unwilling to assume all progress occurred as a result of any one of the three teaching sources—Bell Center, homebound, or Sylvan. T. 387. 24 Case 0:07-cv-04023-ADM-AJB Document 30-2 Filed 06/11/2008 Page 24 of 27 major project to the entire student body. The team recognized the multiple tasks that went into the project. As Dr. Ziegler reported, since his previous testing of the Student, the Student has shown academic improvement across the board.144 As to the Student’s progress on his emotional and behavioral goals, the record demonstrates progress. It is an oddity of this case that, despite the seemingly large numbers of behavioral incidents, the severity of the Student’s behavior actually improved over his prior program. As Ms. Ostrom observed, Bell Center records behavior in tiny increments, which makes the number of incidents seem much higher there. However, Ostrom found that the frequency of physical aggression, sexualized behavior and property destruction decreased at Bell Center as compared to the Explore program.145 She reached the conclusion that the severity and frequency of behaviors had decreased by reviewing the content of incident reports.146 The Parent’s argument about educational opportunity being denied is just not supported by the facts. PROCEDURAL COMPLIANCE WITH IDEA IEP Implementation and Revision The Parent argues that the District violated IDEA by failing to implement the BIP as written and failing to revise it as needed. This argument ignores the testimony and exhibits presented by the District at hearing. The team met monthly with the Parent to discuss the Student’s academic and behavioral progress.147 Discussion was had about whether the Student’s plan needed revision. Changes were made in the IEP148 and in the BIP as circumstances indicated.149 When behavior problems arose, the team used the BIP as its blueprint for how to proceed.150 Staff was trained in the strategies Ostrom recommended, especially in differential reinforcement. The Parent correctly notes that the BIP called for the District to consult with Ostrom and that it failed to re-involve her when the Student’s behavior deteriorated. In fact, Ostrom participated only in the first two team meetings during the 2005-06 school year. When problems surfaced in February, Maass- Hanson, the District’s own behavior expert, began to be involved. But Ostrom was not consulted. On reflection, it probably could have been helpful for Ostrom to facilitate team meetings with the Parent as the Student’s behavior strained the education team relationship. 144 Ex. 29, p. 19. 145 Test. of Ostrom, p. 604. 146 Test. of Ostrom, pp. 606-9. 147 Ex. 5, 6, 7, 8, 37. 148 Ex. 38. 149 Ex. 16. 150 Test. of Webb, pp. 174-76. 25 Case 0:07-cv-04023-ADM-AJB Document 30-2 Filed 06/11/2008 Page 25 of 27 However, the law does not demand strict compliance with every syllable of an IEP. For a denial of FAPE to occur, the school district must have “materially failed” to implement the IEP, meaning that the services provided fell significantly short of those required in the IEP.151 Only a showing of substantial or significant failure to implement an IEP will prove a denial of FAPE.152 The failure to re-involve Ostrom did not cause services to fall significantly short of what the IEP required. The District had its own behavior specialists, who immediately became involved when it was necessary. Maass-Hanson teamed with other staff, they reviewed the BIP together, and made genuine efforts to solve behavior problems according to the provisions of the BIP.153 Moreover, as previously discussed, the IEP and its BIP were revised throughout the school year when it was warranted. 151 Van Duyn v. Baker Sch. Dist., 481 F.3d 770, 780 (9th Cir. 2007) 152 Slama v. Ind. Sch. Dist. No. 2580, 259 F.Supp.2d 880 (D. Minn. 2003). 153 Test. of Webb, pp. 170-76; Test. of Maass-Hanson, pp. 676-85. 26 Case 0:07-cv-04023-ADM-AJB Document 30-2 Filed 06/11/2008 Page 26 of 27 Progress Reports The Parent maintains that the District also failed to comply with the procedural requirements of IDEA by failing to make progress reports. The record thoroughly refutes this argument. Bell Center staff held monthly meetings with the Parent, as discussed above; made in excess of 60 calls to her;154 provided report cards and progress reports; sent home tracking sheets daily at the Parent’s request;155 and invited the Parent to make impromptu visits.156 Staff also invited the Parent to visit the classroom to enhance her understanding of the Student’s performance and how behavioral issues were addressed.157 Evaluations, Review and Revision of the IEP The Parent objects that the District failed to undertake evaluations during the last three quarters, even though circumstances warranted it and failed to meaningfully review and revised the IEP at the end of the school year. The evidence is otherwise. At the end of the first quarter, the District made changes to the IEP to provide for a longer school day.158 In February 2006, the District began another FBA and developed a revised BIP due to the developing behavior problems with the Student.159 At the end of the School year, the District conducted a comprehensive review and undertook revision of the IEP in light of new information. The IEP incorporated information from the past school year and, importantly, ESY was offered. ESY was the opportunity for the Student to get back on track with his behavior. Unfortunately, the Parent never responded to the District’s offer. The record simply does not support these or any of the Parent’s other claims of procedural violations of IDEA. Because the District provided the Student with a FAPE and complied with the procedural requirements of IDEA and state law, there is no basis for compensatory educational services. L. F. C. 154 T. 246-48; Ex. 17, 18. 155 Test. of Webb, p. 245; Ex. 19. 156 Test. of Pitney, p. 946; Ex. 42. 157 Test. of Webb, pp. 212-13; Ex. 42. 158 Ex. 8. 159 Ex. 16. 27 Case 0:07-cv-04023-ADM-AJB Document 30-2 Filed 06/11/2008 Page 27 of 27 |
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Michael E. Douglas, Attorney at Law, Saint Paul MN. All Rights
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