Agawam Public Schools – BSEA #03-3381



<br /> Agawam Public Schools – BSEA #03-3381<br />

COMMONWEALTH OF MASSACHUSETTS

SPECIAL EDUCATION APPEALS

In Re: Agawam Public Schools

BSEA #03-3381

DECISION

This decision is issued pursuant to 20 USC Sec. 1400 et seq. (Individuals with Disabilities Education Act), 29 USC Sec. 794 (Section 504 of the Rehabilitation Act); MGL c. 71B (the Massachusetts special education statute; “Chapter 766”); MGL c. 30A (the Massachusetts Administrative Procedures Act), and the regulations promulgated under these statutes.

On February 10, 2003, Parent filed a hearing request with the Bureau of special Education Appeals (BSEA.)1 A telephone conference with the Hearing Officer and representatives for both parties was held on February 21, 2003, and a Pre-hearing Conference on March 14, 2003.2 A hearing was held on June 2, June 4, June 24, July 9, and July 18, 2003. Parent’s attorney withdrew prior to hearing and Parent proceeded pro se . The Agawam Public Schools was represented by counsel. Those present for all or part of the proceeding were:

Student’s mother, pro se

Student

Student’s uncle

Ellyn Schneider Director of Special Services, Agawam Public Schools

Susan Provoda Evaluation Team Leader, Agawam High School

Bernadette Conte Assistant Principal, Agawam High School

Lynn Gil Special Education Teacher, Agawam High School.

Margaret Harak, Ph.D. Psychologist, Agawam Public Schools

Kirsten Pittenger Agawam PAC president

Stacy Wright School Adjustment Counselor, Agawam HS

Peter L. Smith, Esq. Attorney for Agawam Public Schools

The official record of the hearing consists of Parents’ Exhibits PP-1 through P-16; and P-18 through P-22. School’s exhibits S-1 through S-77 and approximately 18 hours of tape-recorded oral testimony and argument. The parties filed written closing arguments on July 31 (Parent) and August 9, 2003 (School) and the record closed on the latter date.

ISSUES PRESENTED

1. Whether Agawam’s IEP for May 2003 through May 2004 is calculated to provide Student with a free, appropriate public education (FAPE).

2. If not, whether Mother’s proposal for dual enrollment at Holyoke Community College and AHS would provide Student with FAPE.

3. If so, whether Agawam is liable for expenses in addition to tuition at HCC.

4. Whether Agawam’s IEP for the 2002-03 school year was calculated to provide Student with FAPE and whether it was fully implemented

5. Whether Student should be required to undergo an extended evaluation consisting of projective testing.

POSITION OF PARENTS

Student has a diagnosis of ADHD as well as specific learning difficulties with math. As a result Student has organizational difficulties that interfere with his ability to complete assignments and that also contribute to absenteeism and tardiness. In order to succeed, Student needs explicit and consistent rules for attendance, punctuality, and homework, clear rewards for fulfilling his obligations, and clear consequences for non-attendance, tardiness, and undone or incomplete assignments. Student also needs a curriculum that he finds challenging and stimulating. Agawam has failed to provide such for the 2002-2003 school year, thereby failing to fully implement the IEP for that year and denying Student FAPE. Additionally, the proposed IEP for 2003-2004 will not enable Student to succeed at AHS or sufficiently improve his attendance, homework completion, and academic performance in time for him to graduate from high school and attend college, although he has the intellectual and academic ability to do so. Agawam’s proposed placement in the mainstream with accommodations and a 1:1 aide is inappropriate because it repeats the same strategies that have been unsuccessful in the past. Its proposal for the Alternative Learning Program if the mainstream program is unsuccessful is inappropriate because it is designed for students with behavioral issues who are academically less capable than Student. The dual enrollment program at Holyoke Community College is appropriate because it can provide Student with a challenging curriculum along with sufficient supports to meet his needs as well as enable Student to earn his high school diploma. Finally, Agawam did not provide enough information in its proposed extended evaluation to enable Mother to make an informed decision on whether to accept the proposal. In any event, Agawam has sufficient information about Student and extended evaluation is not necessary.

POSITION OF AGAWAM PUBLIC SCHOOLS

The IEP for 2002-2003 was appropriate and was fully implemented. Whenever Student actually participated in the services offered by attending school, doing homework, and following teacher suggestions, he did well academically and made progress. Student’s poor grades for 2002-2003 are the direct result of his failure to attend school regularly, do homework, or avail himself of the help and services offered. In addition, the IEP for 2003-2004 is reasonably calculated to provide Student with FAPE in light of information currently available, in that it provides additional structure to help Student with issues of attendance and follow-through, as well as the option of a more structured alternative school setting if Student does not succeed in the mainstream. Further, Student’s history and recent testing warrant an extended evaluation consisting of projective testing to determine if he has an emotional disability and, if so, whether his IEP should be further amended. Parent refuses to consent to such evaluation. Finally, the HCC dual enrollment program is not appropriate for Student, because Student requires more structure and intervention than is available in a community college setting. In any event, Student does not does not qualify for this program.

SUMMARY OF THE EVIDENCE

1. Student is a seventeen-year-old young man (d.o.b. 8/10/86) who lives with his mother in Feeding Hills, which is served by the Agawam Public Schools. Family members, teachers, and evaluators have described Student as personable and bright with much potential. Student loves the outdoors and wilderness activity, especially kayaking, where he is highly skilled. He has co-led group kayaking trips. Student wants to finish high school and college and to become a marine biologist. (Student, Mother, Uncle, S-9; S-73)

2. Evaluations show Student to have cognitive ability ranging from average to very superior (depending on the evaluation and skill area) and academic skills (as opposed to performance) that are consistent with his ability. Student has good receptive and expressive language skills, and is a strong reader. Math and writing are relative weaknesses, but are within the average range for his age. (S-4, S-9, S-59, S-73).

3. Student has been diagnosed with ADHD, and, in the past, with oppositional-defiant disorder (ODD) and depression. (S-4) Student has difficulty organizing his time and his workload, and longstanding problems with absenteeism, tardiness, and completing assignments. As a result, Student becomes frustrated and discouraged, and his grades and academic progress for the period at issue here have not reflected his abilities. (Mother, Student, Gil, S-4, S-59, S-73) Also, Student has received detentions and suspensions for attendance issues, but has no behavioral issues that interfere with other students’ learning. (Student, Mother, Gil, Harak, S-59)

4. Student entered the Agawam Public Schools as a regular education seventh grader in September 1998. He previously had attended school in Springfield. (Mother, S-2) He attended Agawam Junior High School for the second half of seventh grade (after a brief period of living with his father in another district). (Mother, S-2) Student struggled in seventh grade with organization, focus, and completing homework, and had to attend summer school between grades 7 and 8. (Id) Student also had problems making friends in his new community and behavior problems at home. (Id.)

5. These school and home problems continued into the beginning of Student’s eighth grade year (SY 1999-2000). In or about late October or early November 1999, Student was hospitalized in a psychiatric unit and diagnosed with depression. Student was referred to Agawam for a Chapter 766 evaluation before or during his hospitalization. (S-2) In conjunction with this evaluation, a neuropsychological assessment was conducted in late 1999 or early 2000 by Mark Elin, Ph.D. of the Baystate Medical Center. (S-4) Dr. Elin’s evaluation revealed cognitive functioning in the above average to very superior range, with “well developed” receptive and expressive language abilities. Testing also showed “mild weakness in perceptual analytic abilities” which might affect calculation and spelling, as well as weakness in visual-spatial skills when Student was stressed. Dr. Elin diagnosed a specific learning disability in mathematics and spelling recommended remediation in these areas. (S-4) Dr. Elin’s report also stated that Student experienced (at that time) “heightened levels of frustration, distractibility and depression” and “impulsivity” and recommended psychotherapy. (S-4)

6. At Mother’s request, Student repeated the eighth grade at Agawam JHS. (Mother)

7. In December 2000, during Student’s second stint in eighth grade, the TEAM found Student eligible for special education and placed him at the Alternative Middle School program operated by the Lower Pioneer Valley Educational Collaborative (LPVEC). This program provided a small, structured classroom and behavior management system. The TEAM’s goal was for Student to attend the LPVEC program for one year, and then transition to Agawam High School during ninth grade. The Student’s IEP for the remainder of the 2000-01 school year focused on reducing Student’s frustration and anxiety towards school, and increasing his self-esteem, thereby improving his interpersonal relationships, behavior, and ability to perform academically. Mother accepted this IEP and placement in January 2001. (Mother, S-9)

8. Student attended the LPVEC program for the remainder of eighth grade (January-June 2001) and the first portion of ninth grade (September 2001-January 2002). (S-10) During eighth grade, which was housed in a middle school in East Longmeadow, Student worked hard and made progress with his attendance (increasing it to 100%), work completion, academics and grades, ability to resolve conflicts, and behavior. He participated actively and constructively in his classes. He had a good relationship with his teacher. (Mother; S-11—S-13)

9. The ninth grade portion of Student’s LPVEC program is housed within Agawam High School. During the first quarter of ninth grade (September-November 2001), Student had good attendance, and earned A, B, and C grades in all subjects but integrated math and integrated science, where he earned D-minuses. (S-14) According to progress reports, Student did not always show his capabilities in English and history, did not use outlines provided in history class, and contested the teacher’s rules in P.E. (S-14) Overall, Mother and Student felt that the ninth grade collaborative program was less helpful to Student than the eighth grade program. (Mother)

10. In a letter to Student’s teacher at the LPVEC program dated November 29, 2001, Mother asked why Student had received poor math and science grades, and expressed concern that Student was behind in credits required for his planned transition to Agawam High School. (S-15) Student’s second quarter grades consisted of 4 in the C range, two in the D range, and one B+ (in reading). (S-14)

11. In January 2002, the TEAM convened and issued an IEP amendment placing Student in regular education classes at Agawam High School (AHS) with “content support” via a daily study skills class. (S-16) Mother rejected the amendment because she believed the goals and objectives were not clearly stated. (Id) Agawam sent the partial rejection to the BSEA on or about May 1, 2002. Mother also requested a meeting to discuss the rejected amendment but none was held until a previously planned “annual review” meeting that started on March 28, 2002 and concluded on April 25, 2002, at which goals and objectives were re-written. (S-20) Agawam issued an IEP amendment on or about May 20, 2002. Mother partially rejected this amendment and requested a meeting to discuss rejected portions of the on June 5, 2002 IEP. Mother’s reasons for the partial rejection were that “social/emotional and behavioral issues need to be addressed given diagnoses of ADHD, ODD, depression. Transition planning needs to begin. Communication skills need to be addressed.” (S-20) The record does not indicate whether the meeting Mother requested ever took place. Agawam forwarded the rejected IEP to the BSEA on June 12, 2002 with a notation that Agawam did not anticipate the need for a hearing or mediation.

12. At the April 25 meeting, Mother expressed concern that Student’s emotional state was deteriorating as a result of low grades, outstanding assignments, and other school-related issues. Mother stated that Student was becoming argumentative, expressing lowered self-esteem. (Mother, S-25)

13. Progress reports issued in May 2002 indicate that Student was frequently absent, and missed and/or did not complete assignments. (S-24) Student’s final grades for 2001-2002 ranged from the upper 60’s (“poor” under Agawam’s grading system) to upper 70’s (“fair”). (S-30)

14. In a letter to M. Ponti, who then was Director of Special Services for Agawam, Mother outlined numerous concerns about the IEP process (e.g., attendance of appropriate staff at meetings, delays in issuing IEPs after meetings,) as well as about the content of Student’s program. With respect to the latter, Mother’s letter states that “[Student’s] social/emotional and behavioral needs have not been addressed in his IEP…[t]here have been no consequences for [Student’s] absenteeism (although most were legitimate) and work not completed…[and]…there is either a lack of understanding by staff of [Student’s] diagnoses and disabilities, a lack of awareness of his IEP and/or a lack of interest by some of the teachers…” (S-25)

15. In response to the letter of June 12, Agawam scheduled a meeting on June 18, 2002. The resulting IEP amendment, issued on July 14, 2002 and covering the 2002-03 school year, added one period per week of counseling and called for a functional behavioral assessment to be conducted during the fall of 2002. (S-30) Mother accepted this IEP conditional on its incorporating certain comments on August 6, 2002.

16. Meanwhile, in or about June 19, 2002, mother filed a complaint with the Massachusetts Department of Education’s office of program quality assurance (PQA) regarding certain procedural issues, i.e., participation of appropriate staff at TEAM meetings, ensuring transition planning for Student, and forwarding rejected IEP’s to the BSEA in a timely manner. (S-33). DOE found noncompliance in all three areas, and specifically found that because the IEP meetings of January 10, March 28, and April 25, 2002 were inadequately staffed, agreed-upon services were not provided, and Student was denied FAPE. DOE ordered Agawam to develop a “Corrective Action Plan” and also to develop a “Plan of Compensatory Services” by September 27, 2002. (S-34)

17. On or about September 12, 2002, Agawam convened another TEAM meeting. On or about September 16, 2002, Agawam issued a revised IEP that contained additional accommodations, including an FBA, biweekly progress reports in all subjects to be sent home by the study skills teacher, specific deadlines for makeup work, and a system to identify excused absences. Counseling goals were also added. Mother had requested these additions in a letter dated September 10, 2002. (S-35) Mother accepted this IEP on September 16, 2002. (S-34)

18. The FBA, consisting of observations and interviews with Student, Mother, and teachers, was conducted on June 17 and September 13 –19 of 2002 by Margaret S. Harak, Ph.D., Agawam’s clinical psychologist. (S-37, Harak) Dr. Harak concluded that Student was generally cooperative in class, and did not act out in a disruptive manner. (Harak) At the time of the assessment, Student’s teachers reported, and Dr. Harak observed, that Student was on-task and working independently in his classes. (Harak) Dr. Harak also found, however, that Student typically starts out the school year motivated to work, but loses interest and motivation as the year progresses, except in subjects that he particularly likes, and, generally, has difficulty completing work due to attentional and organizational problems. (Id). Student’s specific problematic behaviors include absenteeism, not completing assignments, not using his agenda, not bringing his materials to class, disengaging from lessons he was not interested in, putting his head down on his desk, and not preparing for tests. (Harak; See also Gil) As a result, Student builds up a backlog of incomplete work and his grades fall. Dr. Harak hypothesized that the function of this behavior might be to express anger, exert control over his circumstances, avoid work he does not want to do, or relieve anxiety about schoolwork. Additionally, the behavior might be a manifestation of physical health problems, or symptoms of ADHD, ODD, anxiety or depression. (Harak) Student reported to Dr. Harak that he has problems sustaining interest and investment in schoolwork as the school year goes on, and that his attitude is a problem. Mother reported that Student was not internally motivated, and had difficulty performing as a result of his problems with attention, distractibility, time management and organization. Mother suggested external incentives since Student was not internally motivated to utilize the assistance available. (Harak)

19. Dr. Harak found that the antecedent for Student’s absenteeism was a combination of physical and emotional health issues (including depression), lack of motivation, boredom, and Student’s view that there is no purpose to attending school. The precipitating conditions for not performing work include Student feeling overwhelmed as he gets further behind and not seeing the relevance of the work to his goals, and history of physical illness and depression. As for homework, Student reported being tired and frustrated after school and not wanting to do further work. (Id.)

20. Upon completing the FBA, Dr. Harak, with Parent’s and Student’s input, developed a behavioral intervention plan under which one of Student’s kayaking instructors would act as a mentor, providing some type of reward for regular attendance and homework completion. (S-40; Harak)

21. This BIP ultimately was not implemented. Although teachers issued progress reports in the form of a weekly chart awarding points for preparation, homework and classwork completion, Student refused to share the reports with his proposed outside mentors because he was embarassed. (Mother) Therefore, the reward component of the BIP was not implemented as written. Further, there was no TEAM meeting or other meeting held to revisit this portion of the BIP and consider alternative forms of external motivation. Ultimately, Mother asked the teachers to discontinue the weekly progress reports. In a letter dated January 21, 2003, Mother stated that “I do not feel [the reports] helped him or myself. [Student] has refused to allow anyone to “mentor him or to allow anyone to see these progress reports other than myself.” (Mother, S-45) Additionally, both Student and Mother felt that the teachers were inconsistent in completion of the reports and that the reports were unreliable, e.g., on one occasion Student received a very positive report for a day when he and Parent recall that he was absent from that class. (Id.) As with the external mentor situation, there was no meeting held to address this issue.

22. Student’s courses for tenth grade included World History and Geography, Career Exploration, Spanish I, English 10, Algebra I, Part 2, and Integrated Study Skills (hereafter “ISS” of Study Skills). (Student, Gil, Conte, S-43)

23. The Study Skills class is taught by Ms. Lynn Gil, a certified special education teacher, with the assistance of an aide who also is a certified teacher. The purpose of the class is to help students who have learning disabilities with strategies and skills for succeeding in the general curriculum of AHS. (P-15) Among other things, the class teaches organizational skills including time management, strategies for test preparation and test-taking, as well as content area skills in language arts and math. (Gil, P-15) Instructional materials include specific texts dealing with study skills, along with students’ materials from their regular education classes. One of the class objectives is to “develop and maintain an assignment agenda.” Student assessment is based in part on daily participation in the class and maintenance of the agenda. (P-15)

24. During a typical class, the teacher spends about 15 minutes presenting a group lesson on a specific skill (e.g. notetaking). After the group lesson, the teacher and aide work with individuals and small groups to help them apply the skills to their regular assignments. (Gil)

25. On a weekly basis, Ms. Gil communicates with the students’ other teachers and related service providers regarding students’ assignments and staff. In Student’s case, Ms. Gil was in charge of collecting the weekly teacher progress reports referred to above for as long as the teachers were writing the reports. (Gil)

26. During 2002-2003, there were 16 students enrolled in the class, including Student; however, usually only 6 to 8 students were present on any given day. All of the students were in the college prep program at the high school. (Gil)

27. Student was enrolled in Study Skills to improve his organizational skills (including use of his agenda and planning and completion of long term assignments), as well as writing and math skills. Student could earn weekly points towards his class grade for performing various tasks in class. Student was offered 1:1 assistance as needed, permission to get his agenda from his locker if he forgot to bring it to class, assistance in developing a makeshift agenda if Student had left his at home, and after-school help. (Gil)

28. Student was able to master the curriculum of the study skills class when he brought his agenda with him to class, prepared for class and participated in lessons and assignments. He did participate during the latter part of 2001-02 (when he first transferred to AHS) and the early part of 2002-03. Later in 2002-03, however, he only sporadically brought his agenda to class or otherwise prepared and participated. Ms. Gil would allow him to retrieve his agenda from his locker if it was there, and created makeshift agendas if Student had left his at home. Student’s not having his agenda was a barrier to his success in the class. Sometimes Student insisted on reading kayaking books or other outside material in Study Skills class rather than school assignments. Student told Ms. Gil that he was bored with his school subjects, and should not have to do homework because he had put in his time during the school day. Ms. Gil attempted to discuss these issues with Student but avoided being confrontational with him because she did not want him to escalate emotionally. (Gil)

29. Similarly, Student easily mastered the curriculum in his content area courses if he attended class and did homework with any regularity, but either failed or earned poor grades if he did not attend class regularly or complete assignments. (Student, Gil, Conte, S-77) Student testified that he typically starts out each school year or quarter motivated to succeed and to follow through on assignments, and does well during the first quarter of the school year. His performance declines during the second quarter, in that he stops doing homework, puts his head down during class, and is often absent or tardy, and then improves again during the fourth quarter. Student’s observations were consistent with those of school staff as well as with his grades and progress reports for 2002-2003, although not for 2001-2002,3 when Student’s grades were similar for all four terms. (Student, Gil, Conte, Harak, S-43, S-64, P-2).

30. For example, during the first term of 2002-2003, Student earned the following grades: English 10—70; Algebra I, Part 2—68; Integrated Lab Science—50 (a failing grade); World History & Geography—70; Spanish I—83; Career Exploration—67; Integrated Study Skills—82. During the second term, these grades fell to 63, 56, 40, 50, 66, 45, and 67, respectively. During the first quarter, Student was absent twice; during the second quarter he was absent 13 times. Effort grades for the first quarter were mostly 2’s (“fair”), and 3’s (“good”). (S-43) During the second quarter, Student’s effort grades fell to mostly 4’s (“poor”). Third term grades were similar to second term grades but attendance had improved in that Student was only absent once. (S-64) (Fourth quarter grades were not available as of the hearing date). During 2001-2002,

31. Student’s IEP called for him to meet weekly with the AHS School Adjustment Counselor, Stacy Wright, during 2002-2003. Student met with Ms. Wright regularly between September 2002 to January 2003. He missed most sessions between January and April 2003, then began attending regularly again. Ms. Wright testified that Student quickly established rapport with her, was committed to attending counseling sessions, and sometimes sought her out for consultation. Student told Ms. Wright that he had trouble investing in his course work because he was bored. While he worked on various strategies with Ms. Wright, he could not “buy into” a commitment to do homework because he “hated” it. (Wright)

32. Ms. Wright testified that Student’s performance declined as the year progressed because he felt “everything was easy.” Ms. Wright believes that further evaluation is necessary to explore whether issues such as depression or anger are at the root of Student’s lack of consistent investment in school attendance and performance. (Wright)

33. Student did not do well after the first quarter of 2002-2003 (tenth grade). A progress note issued on December 18, 2002 indicates that Student was unprepared for class, missing homework, failing to make up missing work, in Lab Science, World History and Geography, Career Exploration, Spanish I, Integrated Study Skills, and English 10. He reportedly had poor tests, quizzes, written work, attitude, and unsatisfactory effort and interest in Algebra I, Part 2, Career Exploration, and Integrated Study Skills. At the end of the first semester of tenth grade, Student had earned failing grades in algebra, lab science, and career exploration, and grades ranging from 63 to 77 in English, world history and geography, Spanish I, and Integrated Study Skills). (S-55, P-2, Conte)

34. As of January 2003 he had been absent 13 times. Mother was not aware of many of these absences, because the automatic telephone message system used to notify parents of a child’s absence was out of order during much of this period. (Conte) At the end of the third term (April 2003), Student received failing grades in Algebra, Science, and Spanish, and grades of 65 and 66 in English, World History and Geography, and Study Skills. (S-55) However, his investment in his Study Skills course increased in April. (Gil) Also, as noted above, his attendance improved. (P-2)

35. Despite poor overall grades and attendance during the second quarter of tenth grade, Student earned final exam scores of 73, 69, 76, and 86 in, respectively, English 10, Integrated Lab Science, World History & Geography, Career Exploration, and Integrated study skills. (He got failing grades on his Algebra and Study Skills exams). (P-2)

36. In April of 2003, after the prehearing conference of March 2003, Agawam had Student evaluated by Joseph Silverman, Ph.D., a private psychologist.4 Dr. Silverman’s evaluation consisted of a review of records, interviews with Student, Mother, and AHS staff; cognitive testing of Student5 and formal parent, student and teacher questionnaires designed to assess ADD and emotional/behavioral issues.6

37. Student’s composite cognitive performance or “General Intellectual Ability” (GIA) score, as measured by the Woodcock-Johnson was at the 65 th percentile compared to other students of the same age, and the 76 th percentile when compared with students at his grade level (i.e., accounting for his retention in eighth grade). Student did not score below the average range on any test clusters, and showed no discrepancies among cognitive abilities. Student also did well on the achievement portion of the Woodcock, with all standard scores falling within the average range, even though he did not use paper and pencil to solve math problems and worked quickly and impulsively in the Writing Samples subtest. (S-59)

38. The parent and teacher portions of the BASC showed clinically significant scores only in the Attention Problems Scale. On the other hand, Student’s portion of the questionnaire showed “elevated scores on all three of the School Maladjustment Scales. This indicates serious dissatisfaction with his school experience and students with this level of negative feelings about school should be considered at-risk for dropping [sic] prior to graduation.” (S59)

39. Dr. Silverman concluded that Student is a “bright and engaging young man who can discuss issues of interest in an adult-like manner with a hight degree of insightfulness. Despite [Student’s] oppositional behavior towards school expectations, he maintains a healthy, and I believe genuine, in both getting an education and…attending college. I believe that these are realistic goals for [Student] given his level of intelligence and intellectual curiosity. Id. Dr. Silverman further noted that Student “is not that much of a problem,” in that he does not disrupt classes or act out agressively, and does classwork; only his homework is done sporadically. “Most of his troubling behaviors are…only hurting himself.” Id.

40. Dr. Silverman attributed Student’s low grades to a) (possibly) ADHD that is not being treated medically; (b) poor attendance for which Student blames school authorities (for not imposing more serious consequences for his truancy); (c) lack of personal responsibility to complete homework and pay attention; and (d) emotional issues, including “well defended” and hard to read insecurity about his abilities coupled with a tendency to give up; and various personal and family issues. (S-59)

41. Dr. Silverman’s report repeatedly mentions Student’s apparent lack of personal accountability, as well as conflict and communication difficulties between Parent and Agawam, as contributory factors to Student’s difficulties, stating, for example:

· “I have been struck by the atmosphere of pessimism regarding [Student’s] future at Agawam High School, and I question whether any of the parties believe that it is possible for [Student] to be successful there. It seems…that this assessment is being looked to as providing the rationale for an outside placement, but I am…in the position of not quite understanding the need for such a placement…”

· [Student] takes little responsibility for his own behavior, and acts as if authority figures are to blame when they don’t force him to act in a more responsible manner. I find this to be a disturbing and potentially dangerous belief…and [Mother] needs to be vigilant to challenge this attitude when it appears…

· “Unfortunately, the high state of tension and lack of effective communication between school and home has prevented…collaboration [regarding homework] from occurring.”

· “The lack of mutual understanding [over whether teachers “care” about Student and whether Student “cares” about his schoolwork] has created the “Mexican Standoff” that currently has Student’s education in stasis.”

· “the current situation …[is]…similar to one of a bad divorce…The high state of tension between school staff and [Mother] is being “used” by Student so [he] does not have to take responsibility for his actions…” or that this conflict serves other emotional functions. (Id.)

42. Dr. Silverman recommended that Agawam modify homework assignments; that Parent and Student seek medical consultation regarding Student’s ADHD; that Student enter psychotherapy; that Student be disciplined for truancy and tardiness in a way other than suspension; that Agawam provide such accommodations as preferential seating,and that Agawam balance structure, pressure and limit setting with “an abundance of encouragement and support.” (Id.)

43. In a letter dated May 26, 2003, Mother disagreed with some of the statements in Dr. Silverman’s report and commented or elaborated on others. She asked to have the letter made part of the report. (P-14)

44. Throughout the 2002-03 school year, Mother and Student felt that school policies on such issues as tardiness and attendance were unclear, inconsistently enforced and inappropriate for Student. For example, both felt that the high school policy of suspending students after being tardy 12 times encouraged Student to simply skip school altogether rather than come to school late. (Mother, Student) Mother also felt that mainstream teachers were not consistently implementing Student’s IEP (e.g., the behavioral reports referred to above) and were not taking Student’s organizational problems into account when grading. Finally, Mother felt that Agawam did not respond promptly when she shared these concerns via phone calls or correspondence. The parties agree that Agawam frequently failed to communicate with Mother in a timely manner during the period in question. (Mother; See also, S-35, S-45, S-50, S-57, S-61, S-62, S-66, S-67, S-70)

45. Agawam does not have a formal policy regarding attendance; however, each teacher has his/her own expectations for attendance. (Conte) Students are given a detention if they are tardy more than six times, and can be internally suspended for missing detention or for twelve tardies. (Conte, S-50)

46. Mother had similar concerns after Student returned to Agawam in January 2002. Mother wrote to various Agawam personnel on numerous occasions during the latter part of the 2001-02 school year as well as during 2002-03. See, for example, Ex. S21 and S25 (letters from Mother dated April and June 2002 to former special education director regarding delays and other problems with TEAM process)7 ; S-35 (letter to Susan Provoda requesting, among other things, an “absolute deadline” for completing makeup work, a system to identify “excused absences, and a request for specific grading consequences for unexcused absences;” S-21 (letter to Dr. Harak requesting discontinuation of progress reports and expressing concerns about attendance issues)

47. The TEAM convened on May 30, 2003. During the TEAM meeting, based on her review of Student’s history, performance, and Dr. Silverman’s report, Dr. Harak recommended projective testing in order to determine if depression, anxiety or other emotional disability was interfering with Student’s performance. (Harak) Ms. Wright agrees with this recommendation Parent opposes projective testing at this time, as she believes that Agawam has enough information about Student to provide what he needs. (Mother)

48. On or about May 30, 2003, the TEAM issued an IEP for 2003-04 calling for the extended evaluation referred to above, as well as continuation of the Study Skills class, counseling, and BIP contained in the 2002-03 IEP. The 2002-04 IEP also proposes a 1:1 aide to assist Student with following through on attendance and homework during the first quarter; the TEAM would assess whether this service was successful at the end of the first quarter. Upon completion of the extended evaluation, the TEAM would convene to discuss possible additional or different services. Finally, if Student “is not meeting with success” he would be transferred to the Alternative Learning Program for a more structured setting. (S-77) Mother rejected the provisions for the 1:1 aide (as too restrictive and not necessary); the ALP, and extended evaluation, and requested numerous additions to the IEP including the following:

· “Core classes to be taken at HCC”

· Study skills to be taken with “Sue Fino at Learning Styles”8 in lieu of AHS Study Skills class.

· Shorter school day

· Personal vehicle and associated expenses

· Positive reinforcement to encourage and motivate Student

· The expectation that Student will graduate with his peers in June 2005

· Additional accommodations including allowing Student to tape classes, provision of teachers’ lecture notes, allowing Student to use calculator in math, helping student with use of laptop to organize work; reduced homework with quality emphasized; two hours of math tutoring per week; Study skills instruction with “Sue Fino 2 hours per week”

· A specific attendance plan with “zero tolerance” for unexcused absences, specific timelines for making up work, home-school communication, and visual markers for self-monitoring

· Additional benchmarks for goals of organization, homework completion and attendance;

49. The Alternative Learning Program is a substantially separate program that occupies two classrooms within Agawam High School. The ALP serves approximately 15 AHS students who have normal cognitive functioning but whose emotional, behavioral, or social problems interfere with their or others’ learning. The program does not serve students with conduct disorders or serious substance abuse issues. ALP staff consists of two special education teachers and two paraprofessionals, as well as a half-time school adjustment counselor. Dr. Harak consults with the ALP on a weekly basis. The program is highly structured, with a point and level system under which students can earn points towards increased privileges. The behavior management system is designed to give immediate rewards or consequences. The ALP uses the AHS curriculum. (Harak)

50. ALP students are taught in groups of seven or fewer. Some students attend ALP on a full-time basis. Others attend some mainstream classes within AHS or else attend the Career Tech. program within the LPVEC. If necessary, a paraprofessional accompanies students into the mainstream. (Harak)

51. Dr. Harak testified that there are students in the ALP with profiles similar to Student in that they have had problems with work completion; her experience is that those students are successful because they receive much 1:1 help and can get all of their help in one location. Other than Dr. Harak’s testimony, the record contains no information from a full-time ALP staff member, sanitized IEPs or other specific information about the makeup of the ALP student body, schedules, educational and counseling approaches or methodology, or types of learning needs addressed.

52. Student and Mother feel that the ALP program is inappropriate for Student. Both feel that the ALP students act out behaviorally and, therefore, are an inappropriate peer group for Student. Student has heard that students in that program do not do any work, but just sleep through their classes. (Mother, Student) Neither Parent nor Student presented independent facts on which they base these assertions.

53. The program that Mother and Student proposes consists of Student’s enrollment in Holyoke Community College in one of the programs that admits high school students9 and for which he would earn both high school and college credits. In addition, under Mother’s and Student’s proposal, Student would take courses at AHS (Spanish, physical education, and career exploration) that he needs for graduation. Mother further proposes that Agawam waive any of its own pre-requisites for HCC and accept HCC grades and credits for AHS credit. (Parent’s claim for relief) Student would report weekly with an AHS staff member to take certain classes, review progress, identify needs, and report on attendance. (Parent’s claim for relief). Additionally, to assist Student with organizational problems, Parent has requested from Agawam a laptop computer with software, internet service, an email account, and a car for transportation. (Parent’s Request for Relief; P-22)

54. Student was accepted into a program of HCC for the 2003-2004 school year for oe or two courses.

55. HCC provides various accommodations and services for students with disabilities, including tutoring, instruction in study skills and strategies, academic counseling, and the Strive program, which is a counseling, tutoring and support program for first generation college, low income, and disabled students. Campus resources include the Center for Academic Program Support (which offers, among other things, tutoring and walk-in math and English/writing assistance) and an Office for Students with Disabilities, which provides services and support with access, accommodations, and academics. (P-13)

56. On June 17, 2003 Dr. Harak sent Mother a list of proposed revisions to his IEP that incorporates the 1:1 assistant referred to in the proposed IEP. (S-76, Harak) Mother responded in a letter dated June 19, 2003, in which she made detailed proposals including a request for two hours of math tutoring per week and Agawam’s funding private instruction in organization and time management, in lieu of study skills class. These requests are included in Mother’s comments response to the proposed IEP as described in Paragraph 48, above.

FINDINGS AND CONCLUSIONS

Based on the testimony and documentary record, I conclude that Agawam’s IEP, with modifications, is reasonably calculated to provide Student with FAPE. My reasoning follows.

Legal Framework

The FAPE Standard

The parties do not dispute that Student is a school-aged child with a disability who is eligible for special education and related services pursuant to the IDEA, 20 USC Section 1400, et seq ., and the Massachusetts special education statute, G.L. c. 71B (“Chapter 766”). Therefore, Student is entitled to a free appropriate public education (FAPE) as defined in federal and state law.10

The IDEA defines FAPE as special education and related services that (A) are provided at public expense and under public control; (B) meet the standards of the state educational agency; (C) include an appropriate preschool, elementary, or secondary school education; and (D) are provided in conformity with an properly developed IEP. 20 USC Sec. 1401; 34 CFR Sec. 300.13.

Federal courts have interpreted FAPE to mean an IEP and services that provide “significant learning” and confer “meaningful benefit” on the student via “personalized instruction with sufficient support services to permit the child to benefit educationally.” Hendrick Hudson Bd. of Education v. Rowley , 458 U.S. 176, 188-9, 203 (1992); see also Burlington v. Mass. Dept. of Education , 736 F.2d 773, 788 (1 st Cir. 1984). The IEP must be tailored to the unique needs of the disabled child, and must be “reasonably calculated to provide ‘effective results’ and ‘demonstrable improvement’ in the educational and personal skills identified as special needs.” 34 C.F.R. 300.300(3)(ii); Lenn v. Portland School Committee , 998 F.2d 1083 (1 st Cir. 1993), citing Roland M. v. Concord School Committee , 910 F.2d 983 (1 st Cir. 1990), cert. denied , 499 U.S. 912 (1991) and Burlington , 736 F.2d at 788.

The IDEA does not require districts to maximize a student’s potential, but rather to assure access to a public education and the opportunity for meaningful educational benefit. Lenn , 998 F.3d at 1091; G.D. v. Westmoreland School District , 930 F.2d 942 (1 st Cir. 1991) On the other hand, some federal courts have held that “effective results” and “demonstrable improvement” should be measured in light of the student’s individual potential. See , e.g ., Houston Independent School District v. Bobby R ., 200 F.3d 341 (5 th Cir. 2000).

The Massachusetts special education statute defines FAPE as “special education and related services …consistent with …[the IDEA]…and which meet the education standards established by statute or…regulations…” G.L. c. 71B, Sec. 1. The Massachusetts Department of Education (DOE) has interpreted the state standards referred to in the statute to include not only the special education regulations but also the state curriculum frameworks, such that all Massachusetts public school students, including those with disabilities, are entitled to the opportunity to learn the material encompassed by these frameworks. See Massachusetts DOE Administrative Advisory SPED2002-1: Guidance on the change…from “maximum possible development” to “free appropriate public education” (“FAPE”), Effective January 1, 2002 (November 20, 2001) (“DOE Advisory” )

Under both federal and state law, FAPE requires schools to educate eligible students in the least restrictive environment, i.e., to the extent appropriate, with children who do not have disabilities. 20 U.S.C. 1412(5)(A). Finally, FAPE also entails complying with the procedural requirements of the IDEA. A school district that violates a student’s procedural rights under federal or state law may be liable for compensatory services where “procedural inadequacies [have] compromised the pupil’s right to an appropriate education … or caused a deprivation of educational benefits.” Roland M. , 910 F.2d at 994 (citations omitted). Thus, for example, “a procedural default which permits a disabled child’s entitlement to a free and appropriate education to go unmet for two years constitutes sufficient ground for liability under the IDEA.” Murphy v. Timberlane Regional Sch. Dist. , 22 F.3d 1186, 1196 (1 st Cir. 1994). On the other hand, technical or de minimis violations that do not deprive the child of FAPE do not entitle parents to compensatory relief. Id.

If parents of an eligible disabled child can prove that their district’s IEP and services does not provide FAPE, they may be reimbursed for the costs of unilaterally obtaining a private program or services, if they also can prove that the private services are appropriate. 20 USC Sec. 1415 (d)(2)(H), School Committee of Town of Burlington v. Dept. of Education of Mass ., 471 U.S. 359, 369-70 (1985). Thus, if a school offers inappropriate services that do not provide FAPE, the school may be required to reimburse a parent for the costs of a unilateral placement or services that are appropriate, i.e., that are “appropriately responsive to [a student’s] special needs;” so that the student can benefit educationally. Matthew J. v. Mass. Dept. of Education , 989 F. Supp. at 387, 27 IDELR 339 at 343-344 (1998), citing Florence County School District Four v. Carter , 510 US 7, 13 (1993); Doe v. West Boylston School Committee , 28 IDELR 1182 (D. Mass., 1998); In Re Gill-Montague RSD , BSEA #01-1222 (Crane, August 2001).

Discussion

Here, the parties are in substantial agreement on Student’s profile as a personable, intelligent, articulate young man who wants to, and is capable of graduating from high school and attending college. He is generally well-behaved and polite, and does not disrupt others’ learning. He has great interest and demonstrated ability in wilderness kayaking and a long-term goal of being a marine biologist. The parties also agree, and the record shows, that Student has ADHD and attendant problems with organizational skills, as well as a history of emotional problems including depression. Despite his disabilities, however, with direct instruction and support in organization, time management, and study skills, Student can not only achieve passing grades in the mainstream, but do very well,11 provided he attends school regularly, completes assignments and prepares for tests, and utilizes available help with content and organizational strategies when necessary. While the parties may differ on the details, there is no dispute that Student’s longstanding problems with absenteeism, tardiness and failure to complete assignments have led Student to earn poor or failing grades in subjects he is more than capable of passing, that Student feels increasingly alienated from Agawam High School and eager to go elsewhere, and that Agawam staff are frustrated and/or puzzled by Student’s lack of progress. (Mother, Student, Conte, Gil, Harak, S-59)

The parties have different views as to why Student loses motivation for schoolwork. Mother and Student take the position that Student is bored and not challenged by his course content and hence not motivated to perform. Mother and Student also assert that Agawam has consistently failed to remediate his organizational and motivational problems because of a combination of delays and lack of follow-through in developing the 2001-2002 IEP, inconsistency in implementing the teacher report portion of the BIP for 2002-2003, failure to properly accommodate Student’s organizational problems in Study Skills and mainstream classes (e.g., by insisting on making Student use an agenda when this Student’s organizational skill deficits prevented him from doing so consistently), by ambiguous and inconsistently enforced rules and policies on such issues as attendance and tardiness, as well as by the absence of swift, stern and predictable consequences for unexcused absences, tardies, incomplete work, etc., and, finally, poor communication with Mother. (See Paragraph 44, above)

In his testimony as well as in conversations with teachers and Dr. Silverman, Student reported that he is bored, that everything is easy for him (he struggles with math, however) and that school is not relevant to his current needs and interests. (Student, Wright, Gil) Student told Dr. Silverman that he feels there is no point in trying to pay attention in class, since he feels he will not be able to sustain attention. (S-59) Additionally, he feels that he stops doing assignments because no one at Agawam “forces” him to do so. On the other hand he follows through with his kayaking assignments because if he does not, he could make a mistake and drown. (Student, Gil, Wright, S-59)

By contrast, Agawam attributes Student’s lack of success to attentional problems, poor attendance, and Student’s own unwillingness to take responsibility for participating in his education, Mother’s alleged undermining of Agawam’s efforts and reinforcement of Student’s negative attitudes, and, possibly, an emotional disability such as depression that must be investigated through projective testing. (Harak, Wright S-59) Agawam also takes the view that Student needs more structure, not less, arguing that he was most successful in the substantially separate eighth grade class run by LPVEC. (Harak, Conte)

Both parties agree that Student is motivated to finish high school, go to college, and become a marine biologist, but has little or no internal motivation to take the steps—i.e., attending and participating in his high school classes and doing homework—necessary to reach these goals. And both parties are stymied on how to provide external motivation.

The parties also differ on how to address Student’s problems. Agawam proposed an IEP with essentially the same services as the IEP for 2002-2003, with the addition of a 1:1 aide to oversee Student’s work performance, and the option of transferring Student to a more restrictive setting (the ALP) if he is not successful. Parent and Student propose a hybrid of placement at Holyoke Community College with certain high school courses, under which Student would earn both high school and HCC credits, and numerous accommodations and modifications including math tutoring, an outside provider for study skills training, a shorter school day, etc. (P-22)

Based on over 5 days of testimony and a voluminous documentary record, I find that the proposed IEP for 2003-2004 calling for services in the mainstream (as opposed to the ALP) offered by Agawam, with modification, is reasonably calculated to provide Student with FAPE. I also find that while the IEP for 2002-2003 was not fully implemented, both Agawam and Parent/Student contributed to such, and the remedy is an appropriate IEP for 2003-2004. My reasoning follows.

IEP for 2003-2004

The record shows that because of his disabilities, Student needs and wants structure to succeed, including prompt positive feedback and immediate, known, and consistently-applied consequences for absenteeism or failure to do homework. (Student, Mother, Harak, Gil) The record also shows that Agawam has attempted to provide such structure during 2002-2003. (Id.) The structure has not been consistently effective. It is impossible to determine all of the reasons why; however, several factors seem to have contributed to the situation. First, inconsistencies and communication lapses throughout this period cumulatively, have undermined Student’s progress. For example, problems with the system that notified parents if their children were absent as well as the lack of a uniform policy applicable to all of Student’s classes12 prevented Mother from knowing exactly when Student actually was absent. (Mother, Conte) Additionally, there seems to have been too little coordination among between the Study Skills teacher and various subject teachers. (Harak, Schneider)

This lack of coordination contributed to the non-implementation of the initial BIP for 2003-2003. This BIP entailed using a mentor from Student’s kayaking group to provide external motivation, but Student felt embarrassed to share his school situation with his kayaking instructors. Unfortunately, for reasons not shown in the record, no steps were taken to amend the BIP in light of this circumstance until June 2003. Rather, the external motivation component of the BIP fell by the wayside. Similarly, when Mother asked to terminate the teacher progress reports that also were part of the BIP, AHS took no further action to investigate Mother’s concerns and/or make changes in the BIP until June 17, 2003. Interestingly, Student’s performance declined after January 2003, although there is no testimony or other evidence on whether this decline was related to non-implementation of the BIP.

Second, Student has been unwilling or unable to utilize the services available to him to help him with homework, test preparation, organization, etc. Whether this is a result of his disabilities, a conscious choice on his part, a combination of these factors or some other reason is not clear from the record. What is clear is that he is alienated from his program at AHS and loses the motivation to participate consistently in his education. there. The combination of Student’s inability to “show up” for school and the inconsistencies referred to above with AHS have precluded Student’s success at AHS.

However, the record does not indicate that Student could not be served at AHS in a mainstream setting with accommodations, an appropriate BIP, and instruction and supports in his areas of weakness, provided that Student is provided with detailed and explicit expectations, rules, and consequences as well as concrete positive reinforcement. Agawam’s proposed IEP together with a revised BIP is reasonably calculated to provide same, provided that it is modified and implemented in such a way as to ensure consistency across all subject areas. This could be ensured by having a “point person” responsible for working with both Student and school personnel to monitor follow-through by everyone concerned. While a 1:1 aide who physically accompanies Student at all times—a proposal rejected by Mother—might be overly restrictive for someone of Student’s age and ability level, the functions of the aide as stipulated in the proposed IEP seem critical to Student’s success. Additionally, many of Mother’s suggestions incorporated into the partially rejected IEP such as a concrete attendance plan and specific guidelines for making up missed work (P-22), should be considered by the TEAM.

On the other hand, I am not persuaded that the School’s proposal to automatically transfer Student to the ALP if he does not succeed in the mainstream is appropriate at this time. Student succeeded, in the past, in the self-contained classroom operated by LPVEC; however, Student was much younger. There is insufficient evidence at this time that Student needs a self-contained setting to succeed, provided there is coordination of his program. Further, Agawam has not presented enough evidence regarding the curriculum, peer group, or structure of the program to prove that it would be appropriate for Student.

I also am not persuaded that projective testing is needed to determine Student’s needs. If Student is willing to participate in such testing, it might be illuminating; however, Agawam’s witnesses have not stated whether or how Agawam would treat Student differently based on the results of projective testing. Therefore, I decline to order such evaluation over the objections of Parent.

Because I have found that the School’s proposed IEP is appropriate as modified, I do not need to address the Mother’s proposal. I do note, however, that there is an inherent contradiction in the position of Student and Mother that Student, on the one hand, must be forced to fulfill his academic obligations, and, on the other hand, that he would succeed in a less structured community college setting. It may be the case that Student is simply so disaffected with AHS that what he needs to succeed is a fresh start; however, this is not borne out by past experience (i.e., his transfer from LPVEC to AHS) and other evidence in the record, and so is not an appropriate remedy for me to order.

IEP for 2002-2003

The BIP for 2002-2003 was not fully implemented; however, both parties bear some responsibility for its non-implementation. Specifically, in January 2003, Mother requested that the teacher monitoring reports be discontinued and reported that the outside mentoring portion of the IEP had never been put into place. On the other hand, the School did nothing upon receipt of Mother’s report until the end of that school year, when Dr. Harak presented a revised proposal. Under these circumstances, I conclude that an appropriate IEP and BIP for 2003-2004 is the appropriate corrective response.

ORDER

Agawam shall convene a TEAM meeting to amend the proposed IEP for 2003-2004 consistent with this decision.

By the Hearing Officer:

____________________ _____________________________

Sara Berman


1

On March 27, 2003, Agawam filed its own hearing request in this matter, which was designated BSEA No. 03-3392. Agawam withdrew 03-3392 on the record, prior to the start of testimony. Therefore, the hearing proceeded as to the original matter only.


2

Former counsel for the Parent accompanied the hearing request with a motion to join this matter with hearing requests involving three additional Agawam students, which requests had been assigned to different hearing officers, on grounds that the cases were factually similar and involved “institutional failures” on the part of Agawam. After the telephone conference of February 21, Parent’s counsel withdrew the request, and the cases have been treated separately.


3

2001-2002 was the year when Student attended LPVEC for the first semester and AHS for the second. While his grades were similar, he had perfect attendance at LPVEC and 22 absences during the second semester at AHS. (P-2)


4

This evaluation was delayed by a combination of misunderstandings about the scope of parental consent required and the school’s cancellation of an appointment to allow compliance with what the school understood to be new policies requiring CORI checks on adult visitors to schools. (Mother, S-57, S-60)


5

Woodcock-Johnson Tests of Cognitive Abilities


6

Mother, Student and teachers completed questionnaires for the Behavior Assessement System for Children (BASC). Student completed the Brown ADD Scales: Adolescent Version as part of a structured interview as well as the Sentence Completion Test. (S-59)


7

Many of these issues were dealt with via the PQA process referred to above. (S31-35)


8

Apparently an outside provider about whom no evidence was proffered.


9

The record shows that HCC has at least two options for students who have not yet graduated from high school. Students who wish to apply their HCC credits towards a high school diploma must be approved by their high schools. AHS has requirements (including grades) for such approval. Student does not meet these requirements. (Mother, Student, P-13)


10

For an exhaustive review of the FAPE standard, see Arlington Public Schools , BSEA No. 02-1327 (Crane, July 23, 2002)


11

Note Student’s relatively good grades in exams, even when he has been frequently absent from class and has not done homework.


12

It is beyond the scope of this hearing to make any orders regarding Agawam High School’s attendance policy; however, here, the lack of a consistent policy for Student was problematic in light of his disabilities.


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