COMMONWEALTH OF MASSACHUSETTS
DIVISION OF ADMINISTRATIVE LAW APPEALS
BUREAU OF SPECIAL EDUCATION APPEALS
IN RE : Chicopee Public Schools & Oakley1
BSEA #11-2568
DECISION
This Decision is issued pursuant to M.G.L.c.71B and 30A, 20 U.S.C.§1401 et seq , 29 U.S.C. §794 and the regulations promulgated under those statutes. A hearing was held in the above-entitled matter on November 10, 2010 at the Springfield, MA office of Catuogno Court Reporting Services. Those present for all or part of the proceeding were:
O Student
Mr. & Mrs. O Parents
Joseph Fogarty Special Education Teacher, Chicopee Public Schools
Kimberly Dion Special Education Supervisor, Chicopee Public Schools
Claire Thompson Attorney for Chicopee Public Schools
Lindsay Byrne Hearing Officer, BSEA
The official record of the hearing consists of documents submitted by the School marked S-1 through S-9, documents submitted by the Parents marked P-1 through P-7, and approximately 3 hours of recorded oral testimony and argument. The Parents participated in the hearing process pro se . The School was represented at the hearing by an attorney. The Parties made oral closing arguments at the conclusion of the hearing and the record closed on November 10, 2010.
ISSUE
Whether special, door-to-door transportation is necessary to ensure that Oakley receives a free, appropriate public education?
SUMMARY OF THE EVIDENCE
The pertinent facts are few and may be briefly summarized:
1. Oakley is a 15 year old tenth grade student who has received special education services through the Chicopee Public Schools for many years. He currently attends a substantially separate academic and vocational program within the larger mainstream public high school. Testing shows that he has at least average cognitive potential and a specific learning disability in the areas mediated by print: reading, written expression, and organizational skills. Oakley’s IEPs have concentrated on remediating these skill deficits (S-2; S-7; S-8; S-9; Fogarty; Dion; Mr. O).
2. Oakley has received special education transportation directly from his home to his assigned school under all his accepted IEPs. The last accepted IEP, covering the 2009-2010 school year, provides for special education transportation. (S-9)
3. The parties met in April 2010 to develop Oakley’s IEP for the 2010-2011 school year. The parties agreed to continue the direct academic special education services he had received during the 9th grade as Oakley was making appropriate progress under the 2009-2010 IEP. The Team briefly discussed changing Oakley’s transportation to a regular smaller bus route. The Parents objected stating that Oakley needed the smaller, calmer special education van in order to arrive at school ready to learn. They argued that Oakley would become distracted and over-stimulated on the large school bus and would be unable to concentrate on his school work on arrival. (Mr. O; S-5; S-6).
4. In May 2010 Chicopee proposed Oakley’s 2010-2011 IEP. It called for Oakley to continue to receive direct special education services in reading, written expression and organizational skills in the substantially separate academic/vocational program. The proposed IEP also eliminated special transportation for Oakley. The parents rejected the change in transportation services outlined in the proposed IEP.2
5. The parties met on September 29, 2010 to discuss the Parents’ objections to the proposed 2010-2011 IEP. Though some misunderstandings were cleared up, the parties continued to disagree about the necessity for specialized transportation for Oakley. Chicopee concluded that Oakley “does not require transportation due to his disability in order to benefit from special education, as required pursuant to 603 CMR 28.05”. (S-4)
6. Kimberly Dion taught Oakley science during the 2009-2010 school year and is now a special education supervisor. She testified that Oakley’s special education needs were limited to activities involving print. He has no communication, behavioral, emotional or social disabilities that prevent participation in regular mainstream activities. He has no physical disabilities that would make regular transportation arrangements difficult or inappropriate for him. Ms. Dion never saw Oakley on the school bus and did not teach his first period class. (Dion)
7. Joseph Fogarty has been Oakley’s special education history teacher since the 9th grade. He testified that Oakley had no physical, cognitive or behavioral limitations which would require special transportation. Oakley does not appear to absorb negative or hyperactive behaviors from other students in the history class. He is uniformly polite and respectful to peers and adults. Mr. Fogarty has never observed Oakley on the van to or from school. He has never observed Oakley in unstructured situations or in the general school population. He did not attend the Team, or subsequent meetings, at which transportation arrangements for Oakley were discussed. (Fogarty; S-1, S-4)
8. Mr. O. testified that Oakley is generally an obedient and quiet young man, but that he easily picks up negative influences and becomes unfocussed and disorganized in large, loud or chaotic environments. Mr. O. testified that Oakley needs a calm, quiet ride to school in order to be available to learn during the school day. He attributes Oakley’s ability to learn and demonstrate progress in school in large part to the good start he is able to make because of the special van that takes him there. (Mr O.)
9. Chicopee did not conduct any educational/social/emotional/behavioral or other transportation-related assessments prior to proposing a change in transportation arrangements for Oakley in May 2010. (S-1-9)
FINDINGS AND CONCLUSIONS
There is no dispute that Oakley is a student with special learning needs and is thus entitled to receive a free appropriate public education, including related services, necessary to enable him to benefit from the agreed upon special education program, pursuant to 20 U.S.C. §1401 et seq . and M.G.L.c.71B. Nor do the parties disagree that the substantially separate academic/vocational program at Chicopee Comprehensive High School is reasonably calculated to provide a free appropriate public education to Oakley in the least restrictive setting. The question presented here is limited to whether Oakley requires specialized transportation to and from school in order to benefit from his special education program?
After careful consideration of the evidence and arguments presented by both parties, it is my determination that Chicopee has not carried its burden of proof in this matter and, therefore, that Oakley remains entitled to specialized transportation. My reasoning follows:
According to Schaffer v. Weast , 546 U.S. 49 (2005), the party seeking to change the Student’s program, placement, or service set, bears the burden of proving through persuasive evidence that the proposed change will effect a free appropriate public education for the student. Here, Oakley has been transported to and from his special education program for many years in a special door-to-door van. The last accepted (2009-2010) IEP provided for specialized transportation. In May 2010 Chicopee sought to remove that specialized service from Oakley’s IEP and place Oakley on regular transportation. Therefore Chicopee, the moving party to this special education appeal, is also the party seeking to change the status quo ante . Chicopee offered little evidence in support of the proposed change in transportation arrangements. There was no assessment of Oakley’s transportation use. There was no functional behavioral evaluation. There was no home assessment. There was no social/emotional evaluation. There was no evaluation of factors outside the classroom that affect Oakley’s ability to participate in and benefit from his special education program. There were no formal or informal observations of Oakley’s functioning in mainstream educational settings nor in the classes adjacent to his transportation. In short, there was no evaluative information on which the Team could reasonably rely in proposing a change in provision of a related service that all parties agreed had been benefitting Oakley. To support its effort to change Oakley’s transportation arrangements Chicopee presented at hearing the testimony of two of Oakley’s teachers. They stated that Oakley had no physical, cognitive or behavioral impairment which would require specialized transportation. (¶6, 7 supra ) I do not find their testimony to be persuasive. Neither witness had observed Oakley on school-provided transportation. Neither witness taught Oakley during the first class of the day. Neither witness observed Oakley in the mainstream environment or considered the effect of mainstream participation in non-academics such as transportation services when teaching Oakley. Neither conducted, or considered, a reliable evaluation of the effect of specialized transportation or the proposed change to regular transportation arrangements on Oakley’s ability to attend and to benefit from his special education programming.
603 CMR 28.05 states:
The Team shall determine whether the student requires transportation because of his or her disability in order to benefit from special education ……. (emphasis added) I am not convinced on this evidence that the Team that met in April 2010 to develop Oakley’s 2010-2011 IEP adequately considered whether Oakley needed specialized transportation “in order to benefit from special education”. Without that consideration, Chicopee’s proposed change falls short of meeting its burden of persuasion.
Chicopee argued that Oakley is entitled to receive all services, including transportation, in the least restriction environment, and that regular transportation is per se less restrictive than specialized transportation. While that may be true, transportation is a “related service”. The inquiry therefore focuses not on LRE, but initially on whether the service is necessary for the student to benefit from special education. The evidence here shows that the Team had inadequate information on which to reasonably answer that initial inquiry for Oakley.
ORDER
Oakley is entitled to a continuation of specialized door-to-door transportation under the current 2010-2011 IEP.
By the Hearing Officer
_________________________
Dated: December 9, 2010
1
“Oakley” is a pseudonym chosen by the Hearing Officer to protect the privacy of the Student in documents available to the public.
2
The parents also objected to two additional provisions in the proposed 201-2011 IEP. Those provisions were addressed satisfactorily prior to hearing and are not relevant here.