Lincoln Public Schools v. Student and Boston Public Schools – BSEA # 11-4678



<br /> Lincoln Public Schools v. Student and Boston Public Schools – BSEA # 11-4678<br />

COMMONWELATH OF MASSACHUSETTS

SPECIAL EDUCATION APPEALS

In Re: Lincoln Public Schools v. Student and Boston Public Schools

BSEA # 11-4678

DECISION

This decision is issued pursuant to the Individuals with Disabilities Education Act (20 USC 1400 et seq .), Section 504 of the Rehabilitation Act of 1973 (29 USC 794), the state special education law (MGL ch. 71B), the state Administrative Procedure Act (MGL ch. 30A), and the regulations promulgated under these statutes.

On January 26, 2011, Lincoln Public Schools (Lincoln) filed a Request for Hearing and a Motion to Join Boston Public Schools (Boston) in the above-referenced matter.

Boston was joined as a Party on February 9, 2011. The hearing was held on March 31, 2011 at the Bureau of Special Education Appeals, 75 Pleasant St., Malden, Massachusetts, before Hearing Officer Rosa I. Figueroa. Those present for all or part of the proceedings were:

Student’s Mother

Student’s Father

Martha Drane, Esq. Medical-Legal Partnership, Parents’ attorney

Jessica Moyer Medical-Legal Partnership

Alingon Mitra Medical-Legal Partnership

Allison Schonwold, M.D. Children’s Hospital

Casey Walsh, LCSW Children’s Hospital

Adrienne Simpson, MA Ed. Children’s Hospital

Stephanie Powers Administrator for Student Services, Lincoln

Caroline Curry Classroom Teacher, Lincoln

Colette Kuchel Special Education Teacher, Lincoln

Virginia Flaherty Student Services Coordinator, Lincoln

Mary Ellen Sowyrda, Esq. Attorney for Lincoln

Douglas Heim OLA, Boston

Michael D. Murphy Assistant Director of Special Education, Boston

Andrea Alves-Thomas, Esq. Attorney for Boston

The official record of the hearing consists of documents submitted by Lincoln marked as exhibits SE-1 through SE-22, and Parents’ exhibits marked as PE-1 through PE-17;1 recorded oral testimony and closing arguments. The Parties requested and were granted the opportunity to make oral arguments on April 6, 2011. The record closed on April 6, 2011.

HEARING ISSUE:

1. Whether the IEP promulgated by Lincoln in November 2010, as modified in March 2011, calling for a substantially-separate, language-based program in Boston, is reasonably calculated to provide Student with a free appropriate public education (FAPE) in the least restrictive environment (LRE) consistent with state and federal law?

POSITIONS OF THE PARTIES:

Lincoln’s Position:

Lincoln asserts that Student (a METCO student attending Lincoln) is currently being denied a FAPE despite the array of services offered pursuant to her IEP (including occupational therapy, speech and language therapy, physical therapy, and counseling). Lincoln states that despite its efforts the amount of progress evidenced by Student is not adequate and as a result, the gap between Student and her peers is widening.

Lincoln asserts that Student requires a language-based program and since it cannot meet Student’s needs within the district, it explored programs outside Lincoln and contacted Boston, the district where Student resides, to ascertain what programs were available there. Lincoln states that Boston has identified a language-rich program at the Holland Elementary School in Boston, which, according to both school districts, would assure Student a FAPE.

Lastly, Lincoln states that Student should be transferred to the Boston program forthwith as Student is becoming more and more frustrated and depressed in Lincoln.

Parents’ Position:

Parents state that Student’s eligibility is not in dispute, but rather the extent of her needs, and challenge that they have been appropriately met in Lincoln. In their opinion, Lincoln has not exhausted the services it could offer Student so that she can access her education in the mainstream. They state that Lincoln could provide a co-teaching model in the mainstream where Student could continue to be exposed to peers who could serve as role models for behavior, and further assert that Lincoln failed to implement the Wilson Reading Program for the time required to be successful.

Parents assert that a substantially separate classroom is too restrictive a setting for Student and rely on Student’s progress notes to reach this conclusion. As long as Student is enrolled in METCO, Lincoln has a responsibility to service Student in Lincoln. If Student is moved to Boston she will no longer be eligible to participate in the METCO program. Lastly, Parents assert that it would be detrimental to move Student out of Lincoln before the end of the school year.

Boston’s Position:

Boston has offered to place Student at a language-rich program in Boston, which meets the Team’s recommendations and according to Boston, assures Student a FAPE. Boston states that it is ready, willing and able to place Student immediately.

FACTS:

1. Student is a first grade Boston resident who attends Lincoln as a METCO student. She is a friendly, happy, enthusiastic and inquisitive child (SE-12; Mother, Berkowitz).

2. Student arrived in Lincoln in September 2009 to attend kindergarten and by November 3, 2009 was referred for a special education evaluation, to which Parents consented on or about November 16, 2009. This evaluation sought to obtain information regarding Student’s then current levels of performance in math and language arts (SE-9).

3. The educational assessment performed by Elaine Cooney of Lincoln, on December 1, 2, 7, and 8, 2009, found Student’s performance to range between average and low average as measured by the Brigance Diagnostic Inventory of Early Development- II (IED-10), and between very superior and very poor in the Test of Early Mathematics Ability-3 (TEMA-3).2 Ms. Cooney noted that Student’s performance during the evaluation was impacted by her difficulty understanding the directions and remembering how to do the task once she had started. Her performance improved when she was given a choice among things she liked to do and when she was able to earn a break. Student demonstrated knowledge of some of the skills taught in school. Ms. Cooney recommended: frequent check-ins for comprehension after imparting instructions; modeling, repeating or rephrasing instructions; breaking tasks into manageable steps; using a number and or alphabet chart; modification of classroom work; and, providing “over-learning” in language arts and math (PE-12; SE-10).

4. Christina Dolce, C.A.G.S., NCSP, performed the psychological evaluation on December 4, 10 and 18, 2009, at the request of Parents and Student’s kindergarten teacher, Ms. Easton, to understand Student’s learning style and assist with academic planning. Ms. Easton reported concerns over Student’s ability to use and understand language, her listening comprehension and fine and gross motor skills. In the classroom Student displayed emotional/ behavioral issues such as “bursts of frustration that are of tantrum level” and at times “‘screaming out with glee and flapping her arms’ causing other students to be wary and avoid her in the classroom.” (PE-13; SE-11). Ms. Dolce administered the Wechsler Preschool & Primary Scales of Intelligence, Third Edition (WPPS-III), observed Student in the classroom and conducted a record review. Student’s cognitive abilities were found to range from the borderline to the average level. She displayed more difficulty when organizing and analyzing abstract visual information than when a meaningful, hands-on component was involved, and also had difficulty with tasks involving a fine-motor component (PE-13; SE-11). Ms. Dolce recommended that Student be provided:
a) …visual checklists to break down multi-step directions, [and] visual supports…

b) Pair visual cues with auditory information.

c) Preview/ review/ practice content level concepts/ vocabulary to build [Student’s] overall fund of knowledge and vocabulary to help her make connections to new material.

d) To address [Student’s] regulation of attention, the following strategies would be helpful:

· Establish eye contact [–] prior to giving essential instructions or new material to help ensure that she is ready to listen carefully.

· Directions should be limited to one step at a time and repeated as necessary.

· [Student] may need consistent cues and assistance in focusing her attention on important features of a task.

· Preferential seating near the teacher for large group activities.
e) [Student] will benefit from repetition of concepts and the opportunity to practice these concepts (PE-13; SE-11).

5. Other Educational Assessments completed by Melissa Nordstrom, the physical education teacher, and Colleen Pearce, the arts teacher, also noted difficulties understanding and remembering class routines, staying on task, difficulty working independently, poor gross motor skills, and lack of interaction with peers. Student required much teacher direction and re-direction (SE-15).

6. Laurie Berkowitz, MS, CCC-SLP, performed the speech and language evaluation on December 7, 8, 9, and 16, 2009, and observed and further evaluated Student in the classroom during December 2009. Student’s vocal quality and speech fluency were within normal limits as was a hearing screening. Formal test results from the Receptive One-word Picture Vocabulary Test, Expressive One Word Picture Vocabulary Test, the Clinical Evaluation of Language Fundamentals-4 (CELF-4), and the Language Processing Test 3 Elementary, placed her within the low average to average range.3 Ms. Berkowitz noted that Student displayed significant difficulty sustaining attention and that she required a great deal of support and encouragement to work through the challenging parts of the tests. She presented gaps in vocabulary development, difficulties with articulation and made inconsistent, atypical errors in conversational speech. Student also made frequent errors combining words in sentences in meaningful and grammatically appropriate ways, making it difficult for the teacher and her peers to understand her message and causing Student frustration. Ms. Berkowitz recommended provision of speech and language services in and out of the classroom, focusing on improving overall speech, vocabulary, sentence formation and grammatical structures (PE-14; SE-12).

7. The physical therapy evaluation was performed on December 18, 2009 by Laurie Cloutier, P.T., who administered the Test of Gross Motor Development-2 nd Edition (TGMD-2). Student scored in the below average range for her age. She presented low strength, balance, endurance, coordination, as well as ball skills, making it difficult for Student to independently complete gross motor activities. Ms. Cloutier recommended provision of physical therapy as well as a number of exercises and activities to improve balance, coordination and strength (PE-15; SE-13).

8. The occupational therapy assessment performed by Laurie Fishbone, MS, OTR/L on December 17, 2009, included the Bruininks-Osteretsky Test of Motor Proficiency- Second Edition (BOT2), the Beery-Buktenica Developmental Test of Visual Motor Integration (VMI), Beery VMI Developmental Test of Visual-Perception, Sensory Profile Caregiver Questionnaire (Dunn, 1999), Sensory Profile School Companion (Dunn, 2006), Occupational Therapy and Clinical Observations. The evaluation showed deficiencies in the areas of ocular motor control, visual motor and visual perceptual skills, and sensory processing skills, resulting in recommendations for Student to receive occupational therapy as well as numerous activities and exercises. Ms. Fishbone further recommended that Student’s primary physician be informed of her challenges with visual tracking skills so that Student could be referred for a functional vision evaluation (PE-16; SE-14).

9. In February 2010, Student was evaluated and diagnosed with a Developmental Coordination Disorder by practitioners at Advocating Success For Kids (ASK) of the Boston Children Hospital (SE-8). Cathy Cook was responsible for the Pediatric/Psychological/Educational Summary dated February 1, 2010. The Team impression portion of the report states that Student

… has a history of early language delay and ongoing concerns with language function. [Student] had no externalizing behavioral problems, and her social emotional well being is reassuring. Recent IEP testing identified average to low average cognitive skills, and the comprehensive team assessment led the school ultimately to recommend placement in a language-based setting. The ASK assessment today confirms the distractibility and fidgetiness reported by [Student’s] mother, and the language delays identified bu the school testing; academic skills are otherwise intact. [Student] is exhibiting areas of vulnerability in her speech and language skills that require additional supports. Specifically, she demonstrates language delays in the areas of vocabulary, articulation, and oral expression. She was noted to have difficulty conveying her ideas appropriately at times… [she] exhibits motor weaknesses that impact her functioning. Her fine motor skills were reduced…she also has documented challenges in her gross motor skills… [her] profile is suggestive of an attention deficit disorder, given her symptoms of inattention, distractibility, hyperactivity, and impulsivity. These behaviors are endorsed by her mother and were observed during the current evaluation… on examination there [was] a concern about [Student’s] eye movement and mild thoracic scoliosis… (SE-8).

10. The ASK team recommended that Student remain in a mainstream classroom and that she be provided ancillary services including speech and language therapy, occupational therapy, and physical therapy. Classroom accommodations to address inattention such as preferential seating, extended time for classroom assignments, visual cues for transition times and scheduled activities, and frequent teacher check-ins were recommended. To enhance peer relationships and self-esteem, the ASK team recommended that participation in extra-curricular activities be maximized. They opined that this program be implemented for a while before giving consideration to a more restrictive setting for Student (SE-8).

11. Lincoln attempted to convene Student’s Team to discuss the result of its own as well as ASK’s evaluations of Student. After some failed attempts due to cancelations because of unavailability of Parents or the school personnel, Student’s Team finally met in March 2010 (SE-3).

12. Student’s Team convened in Lincoln on or about March 4, 2010 and again on March 10, 2010, and discussed the results of the Lincoln and ASK evaluations, as well as Student’s difficulties in Lincoln (PE-10; SE-7). The Narrative Description of School District Proposal dated March 15, 2010 states

… All Team members were in agreement that [Student] was demonstrating a developmental delay in the areas of math, reading, gross motor development, fine motor development including sensory processing/ attention, speech articulation, and communication skills both expressive and receptive. The Team determined that [Student] was eligible for Special Education Services. Team members agreed that, although [Student] was making personal progress, she was not making effective progress and this lack of progress was a direct result of her disability, thus confirming eligibility for Special Education services (SE-7).

13. The March 2010 Team recommended participation in a partial inclusion program. The Service Delivery Grid called for the following services: Grid A: one ten-minute school consultation session per five day cycle by the general education teacher; one ten-minute consult by the special education teacher per five day cycle; one ten-minute speech and language consultation session by the speech pathologist per five day cycle; one ten-minute social work session by the social worker per five day cycle; one ten-minute physical therapy session by the physical therapist per five day cycle; and, one ten-minute occupational therapy session by the occupational therapist per five day cycle (SE-3). Under Grid B , Student would receive: one thirty minute speech and language session per five day cycle by the speech and language pathologist; five twenty-minute sessions each per five day cycle of English Language Arts by the special education teacher; five twenty-minute sessions each per five day cycle of mathematics by the special education teacher; one thirty-minute counseling session per five day cycle by the social worker; and, one thirty-minute physical therapy session per five day cycle by the physical therapist. Under Grid C Student was offered: two thirty-minute each speech and language sessions per five day cycle with the speech and language pathologist; one thirty-minute counseling session per five day cycle with the social worker; two thirty-minute per five day cycle occupational therapy sessions with the occupational therapist; one thirty-minute combined physical and occupational therapy session with the physical therapist; five twenty-five minute per five day cycle English Language Arts sessions with the special education teacher; and, five twenty-five minute math sessions per five day cycle with the special education teacher (PE-10; SE-3).

14. During the meeting, Parents expressed their opinion that Student did not require academic services and that they were concerned that Lincoln had made a determination that Student should return to Boston. Stephanie Powers, Lincoln’s Administrator of Student Services (SE-16), assured them at that time that no such determination had been made, but also expressed concern that the district was small and that there might not be a group of peers with similar issues around which a program could be developed for Student in Lincoln. If that were the case, a placement by Boston would be an option and Boston would need to be included in the discussions. Ms. Powers and Boston’s representative, Hyacinth Loatman, were present and discussed the options available within Boston. A METCO representative present at the meeting requested to speak with Parents and shortly thereafter, Parents requested that the meeting be stopped as she wished to proceed with mediation through the BSEA (PE-10; SE-7).

15. On March 15, 2010, Lincoln forwarded the proposed IEP to Parents and on June 3, 2010, Parents rejected the IEP in part clarifying that

[they] accept[ed] the IEP services as recommended and the recommendation of partial inclusion program to be delivered by the Lincoln School District (SE-3).

16. Katherine Engle, LCSW at ASK conducted an observation of Student in her Lincoln program in April 2010. Her notes indicate that Student demonstrated difficulty regulating herself, and evidenced some disruptive, off-task behaviors requiring redirection (SE-9).

17. Student completed kindergarten in Lincoln and began first grade receiving the services reflected in the March 2010 IEP (PE-10; SE-3).

18. Lincoln convened Student’s Team on November 16, 2010. Present at the meeting was a representative of Boston (PE-6; PE-8; SE-7). This IEP offered Student participation in a partial inclusion program through Boston Public Schools.4 That is, although Lincoln developed the IEP implementation of the program would occur at a school in Boston by Boston personnel. The service delivery grid reflects numerous services under the A, B and C sections. Specifically, under Grid A the IEP offers one thirty-minute consult by the special education teacher per five day cycle; one ten-minute speech and language consult by the speech pathologist per five day cycle; one ten-minute counseling consult by the social worker per five day cycle; one ten-minute physical therapy consult by the physical therapist per five day cycle; and, one ten-minute occupational therapy consult by the occupational therapist per five day cycle. Under Grid B Student would receive: one thirty-minute speech and language session per five day cycle by the speech and language pathologist; one thirty-minute counseling session per five day cycle by the social worker; one fifty-minute library/ technology session per five day cycle by a supervised tutor; one twenty-minute physical education session per five day cycle by a supervised tutor; one fifty-minute art session per five day cycle by a supervised tutor; two forty-five-minute social studies sessions per five day cycle by a supervised tutor; and, two forty-five- minute science (classroom) sessions per five day cycle by a supervised tutor. Grid C addressing direct services, offered Student: two thirty-minute speech and language sessions with the speech and language pathologist; one thirty minute counseling session with the social worker; two thirty-minute occupational therapy sessions with the occupational therapist; one thirty-minute physical therapy session with the physical therapist; five forty-five-minute reading sessions with the special education teacher; five forty-five-minute writing sessions with the special education teacher; and, five forty-five-minute math sessions with the special education teacher, all the aforementioned per five day cycle (PE-8; SE-2) . The IEP was forwarded to Parents on or about November 18, 2010. On December 1, 2010, Parents fully rejected the IEP’s program and placement (PE-8; SE-2).

19. In February 2011, Lincoln re-evaluated Student conducting educational, speech and language and psychological assessments.

20. Colette Kuchel, M.Ed., special education teacher/BCBA in Lincoln (SE-16)5 , performed Student’s educational evaluation on February 1 and 8, 2011 (PE-3; SE-4). Student was six years old at the time of this evaluation and familiar with Ms. Kuchel as she had been her special education teacher since September 2010. She administered the Wechsler Individual Achievement Test- Third Edition (WIAT-III) and found that Student’s reading, writing and math scores fell below age expectations in all but one subtest (math fluency). She displayed a lack of understanding of how to complete a task, and when the tasks presented were too challenging, Student engaged in a high degree of avoidance and/or inappropriate behavior. According to Ms. Kuchel, Student responded well when the instruction, modifications and accommodations were tailored to her unique needs. She recommended placement in a small group setting with peers who had similar abilities, where language, academic and social curriculum addressed Student’s needs across the curriculum, throughout the day to facilitate generalization as well as maintenance of learned skills. The curriculum, presented at an instructional level should be organized, systematic, multi-sensory, and motivating. Skills should be introduced gradually with multiple opportunities for repetition, practice and spiraling back to previously learned information. Student should have “opportunities to interact with tangible materials that represent conceptual ideas”, and progress should be closely monitored. She should also receive positive behavior supports for participatory and socially appropriate behaviors. Lastly she recommended a language-based approach to the curriculum and ongoing consultation by the speech and language pathologist to the classroom staff to ensure consistency with this philosophy (SE-4; Kuchel).

21. A speech and language re-evaluation was performed by Laurie Berkowitz, in February 2011 (PE-4; SE-5). She noted improvement in Student’s behavior when compared to the testing done in 2009 with regard to visual focus and noted that she rarely asked for repetition or clarification. She required frequent reminders to stay next to the chair when she chose to stand instead of sit, and required reminders of a reward after completing each session. She also displayed frustration and escape or avoidance behaviors when presented with difficult tasks, as well as “expressed negative self-talk (e.g., ‘I’m getting mixed-up’, ‘this is hard’, etc.).” While the results of the evaluation showed that Student had made some gains in certain areas, she continued to have significant difficulties in understanding and using language. Ms. Berkowitz recommended that Student be placed in a small, language-based classroom with peers who displayed similar language, cognitive and social abilities. Content presentation should be slightly above Student’s cognitive level and should include a hands-on approach. To ensure maintenance of skills and information learned, information should be presented at a slower pace, with preview, review and spiraling back of material. Dramatic play and music should be brought into the curriculum as Student enjoys both. Speech and language, and fine and gross motor support should be provided and embedded in everyday classroom activities. Continuation of articulation services in either individual or small, pull-out sessions was also recommended. Additionally, Ms. Berkowitz recommended continuation of all of the accommodations and methodologies contained in Student’s IEP (PE-4; SE-5).

22. The psychological re-evaluation was performed by Christina Dolce, M.S., C.A.G.S., NCSP, on February 4 and 11, 2011. She administered the Wechsler Intelligence Scale for Children, Fourth Edition (WISC-IV), the Children’s Memory Scale (CMS), the Wide Range Assessment of memory and Learning, Second Edition (WRAML-2), the Behavior Assessment Scale for Children, Second Edition (BASC-2), Parent and Teacher Forms, and conducted classroom observations. Ms. Dolce found that Student continued to show significant weaknesses in the areas of expressive language and vocabulary, having a direct impact on her ability to express what she knows, understanding academic material and following directions. These findings were consistent with her previous findings. Ms. Dolce opined that Student benefited from strategies such as repetition, scaffolding, modeling, clarification, and other methodologies in order to be successful (PE-5; SE-6). She found that Student displayed stronger non-verbal abilities when visual information was meaningful. Conversely, she displayed difficulty when presented with abstract information and when demands for attention to visual detail were made. She also had difficulties understanding part-to-whole relationships which likely impacted her problem-solving ability. While she displayed strong short term memory ability, she had significant difficulty retaining verbal information over time. Her ability to process and understand language was found to be below age-expectations. Slow processing speed likely impacted Student’s ability to process symbols when reading, delaying her ability to decode letters and retrieve information when reading or writing. Lastly, Student’s difficulties with attention and distractibility were such that the evaluator concluded that Student likely met the DSM-IV diagnostic criteria for Attention Deficit Hyperactivity Disorder (ADHD), Combined Type (PE-5; SE-6).

23. Ms. Dolce made the following recommendations:

· Class instruction and information should be presented in a highly structured, organized manner, using oral and visual methods to support comprehension and to emphasize curriculum concepts and main ideas.

· Academic lessons and curriculum vocabulary should be pre-taught, previewed, over-practiced for retention and paired with previous knowledge. Lessons should spiral back to previously learned material for review to ensure continued mastery and facilitate assimilation of new information.

· Reading, writing, spelling, and oral language strategies should be taught and reinforced across the curriculum to facilitate continuity, generalization and internalization.

· Frequent teacher check-ins will be beneficial for [Student] in order to clarify task, directions, check for comprehension of presented material, and assure attention to presented material.

· It will be important to provide [Student] with frequent positive feedback when she is engaged in academic work. This feedback will hopefully increase her confidence surrounding academics.

· [Student] should continue to participate in individual counseling sessions with the school counselor.

· [Student’s] parents should share the results of this report with their pediatrician given her historic difficulties with attention and to discuss a diagnosis of Attention Deficit Hyperactivity Disorder (ADHD), Combined Type .

· [Student’s] parents and outside providers may want to revisit her ASK diagnosis of Developmental Coordination Disorder, as her cognitive profile highlights difficulties with expressive language, memory, processing speed, and attention, which significantly impact her learning. Also the results of the Speech and Language evaluation (Berkowitz, 2011) should be reviewed when looking at diagnostic categories (PE-5; SE-6).

24. Student’s Team re-convened on March 14, 2011 (PE-1; SE-18). The IEP promulgated pursuant to this meeting offered Student services in a substantially separate program in Boston although no specific school/ program was mentioned.6 The service delivery grid of this IEP offers, under Part A : one thirty-minute consult by the special education teacher per five day cycle; one ten-minute speech and language consult by the speech pathologist per five day cycle; one ten-minute counseling consult by the social worker per five day cycle; one ten-minute physical therapy consult by the physical therapist per five day cycle; and, one ten-minute occupational therapy consult by the occupational therapist per five day cycle. Under Part B of the grid, direct services in the general education classroom, Student would receive: one thirty-minute speech and language session per five day cycle by the speech and language pathologist; one thirty-minute counseling session per five day cycle by the social worker; one fifty-minute library/ technology session per five day cycle by a supervised tutor; one fifty-minute art session per five day cycle by a supervised tutor. Part C offers the following services per five day cycle: two thirty-minute speech and language sessions with the speech and language pathologist; one thirty-minute counseling session with the social worker; two thirty-minute occupational therapy sessions with the occupational therapist; one thirty-minute physical therapy session with the physical therapist; two forty-five-minute sessions of physical education with a supervised tutor; five sixty-minute reading sessions with the special education teacher; five sixty-minute writing sessions with the special education teacher; five sixty-minute math sessions with the special education teacher; three forty-five-minute social studies sessions with the special education teacher; two forty-five-minute science sessions with the special education teacher; and five sessions 150 minutes each per week, for six weeks of Extended School Year (ESY) reading/writing/math programming with the special education teacher (PE-1; SE-18). All of the services in this IEP would be implemented by Boston personnel. This IEP was forwarded to Parents on March 18, 2011 ( Id. ).

25. According to Lincoln personnel, while Student has made individual gains towards the goals and objectives in her IEP during the past year, she is unable to fully participate in the first grade curriculum due to her difficulties with understanding and using language as well as a slower rate of learning information (SE-2). Despite receiving one-to-one math and reading support five days per week, she is functioning at least a year below grade level in math and displays numerous difficulties with reading, an area where she fails to display adequate progress (SE-2). A Developmental Reading Assessment (DRA) comparison flow chart prepared by Lincoln, places Student significantly below her class’ average from kindergarten to the present (SE-19). Fine motor and gross motor activities, for which she receives occupational and physical therapy, are also challenging (SE-2). Her conversational speech is also difficult to understand and inconsistent even in the use of atypical speech patterns making it difficult for teachers and peers to understand her, and causing Student to become frustrated (SE-2).

26. In the classroom, Student is often off task, makes inappropriate noises, exhibits emotional outbursts, and has difficulties initiating or sustaining independent play with her peers. Caroline Curry, Student’s first grade teacher (SE-16), noted that in class, Student emits spontaneous vocalizations, becomes defiant when corrected for inappropriate behaviors (e.g., refuses to speak, grunts, cries, or walks away), leaves the playground or the classroom without permission, and requires numerous prompts and re-direction to complete her work (SE-17; SE-22). A flow chart depicting Student’s positive and negative affect demonstrates variability from December 16, 2010 through March 11, 2011 (SE-20). The flow chart depicting on-task/ off-task behaviors for the same period also shows variability with the worse weeks being the week of December 16, 2010, January 3, January 18 and January 31, 2011 with some improvement and decreased variability from February through March 2011 (SE-21). This is consistent with Student’s school daily log, covering the period from December 17, 2010 through March 7, 2011, which describes Student as happy most of the time but being off-task often, requiring a great deal of re-direction, and displaying most difficulties during unstructured activities or when facing tasks which she perceives as difficult (PE-2). According to Lincoln’s providers, she is unable to access the curriculum in a meaningful manner and therefore not receiving a FAPE (SE-2; SE-17; Curry).

27. Student has not been observed to have reciprocal friendships in school requiring adult prompting, intervention and support to engage with other students. She does not initiate or maintain interactive play with her peers. On the playground she is observed running around other children or around the playground. She is reportedly comfortable with adults whose attention she seeks often (PE-2; Curry, Kuchel). At home she is happy and she plays with older children. Parents recently celebrated her birthday and five students from her class in Lincoln attended. She has also been invited by classmates to at least one party this year during which she appeared to enjoy herself (Mother).

28. Student’s first grade December 2010 report card shows that despite her weaknesses, with a modified curriculum and supports, Student was developing and making progress. She displayed consistent effort in reading, speaking and listening, writing, art and with work habits, but required more encouragement and support in science, social studies, science enrichment, wellness, math, and social development. She required most support in music (PE-9).

29. To date, Student has not been evaluated or educated by Boston. Boston’s knowledge of Student was obtained through the Boston representative who attended the Team meetings in November 2010 to present the programs available within Boston capable of implementing the IEP developed by Lincoln, through the Team meeting of March 2011, and through conversations its representatives sustained with Lincoln’s personnel. Boston’s representative has worked cooperatively with Lincoln (Murphy, Powers).

30. Michael Murphy is an Assistant Director in Boston responsible for overseeing special education programs and monitoring compliance (Murphy). Mr. Murphy has never observed Student in Lincoln. He was invited to attend two meetings in Lincoln, in November 2010 and March 2011, to explain possible placement options for Student in Boston. As a METCO student, resident of Boston, Boston is financially responsible for Student if she requires placement outside Lincoln or Boston. When a special education METCO student returns to Boston, the student needs to register in Boston and bring in the sending school’s IEP as that IEP needs to be converted into a Boston IEP (Murphy).

31. Boston has a seat available for Student at the Holland Elementary School in Dorchester, MA. The school services approximately seven hundred students, in self-contained and regular education classrooms, in grades kindergarten to fifth.

32. The self-contained, language-rich classroom proposed for Student is the Primary Transition Program. It has eleven students, a certified special education teacher (Ms. Barbosa) and an aide. The proposed peers present difficulties similar to Student. The program offers mainstreaming opportunities for music, art, recess, lunch and other activities. According to Mr. Murphy, there are three Primary Transition Programs at other schools in Boston, including the Channing School and the Marshall School (Murphy).

33. Mr. Murphy recommended that Student visit the program for a half a day to give her exposure to the classroom and peers (Murphy).

CONCLUSION:

The Parties do not dispute that Student is an individual with a disability falling within the purview of the Individuals with Disabilities Education Act7 (IDEA) and the state special education statute.8 As such, Student is entitled to a free, appropriate public education (FAPE).9 The issue is whether the IEP proposed by Lincoln, to be implemented in Boston, offers Student a FAPE, or whether as Parents argue, this METCO student can be appropriately serviced in Lincoln. In rendering this decision, I rely on the facts recited in the Facts section of this decision and incorporate them by reference to avoid restating them except where necessary.

The IDEA and the Massachusetts special education law, as well as the regulations promulgated under those acts, mandate that school districts offer eligible students a FAPE. A FAPE requires that a student’s individualized education program (IEP) be tailored to address the student’s unique needs10 in a way reasonably calculated to enable the student to make meaningful11 and effective12 educational progress. Additionally, said program and services must be delivered in the least restrictive environment appropriate to meet the student’s needs.13 Under the aforementioned standards, public schools must offer eligible students a s pecial education program and services specifically designed for each student so as to develop that particular individual’s educational potential .14 Educational progress is then measured in relation to the potential of the particular student.15 School districts are responsible to offer students programs and services that will allow them to make meaningful, effective progress.

As the party seeking implementation of the IEP’s proposed program and placement of Student in Boston, Lincoln carries the burden of persuasion pursuant to Schaffer v . Weast , 126 S.Ct. 528 (2005)16 , and must prove its case by a preponderance of the evidence. Also, pursuant to Shaffer , if the evidence is closely balanced, the moving party, that is, Lincoln, does not prevail. Id .

The Parties agree as to Student’s diagnosis of Global Development Coordination Disorder “with emerging profile for special education”. It is the program through which Student’s needs can be met, and the location for provision of services that is at the heart of their disagreement.

Upon entering kindergarten Student’s significant learning and social/ emotional/ behavioral issues compromised her ability to focus, attend and learn in the general education classroom (SE-16; Virginia Flaherty, Lincoln’s Student Services Coordinator). In December 2009, Lincoln’s Team evaluated Student and later found her eligible to receive special education services under an IEP that offered her reading, math, writing, social skills, fine motor/ visual perceptual skills, sensory motor skills, and speech and language supports in a partial inclusion program in and outside the classroom (SE-5).

Student’s difficulties continued through the beginning of first grade, despite having received services in and outside the classroom pursuant to the March 2010 IEP. Throughout this period and into March 2011, Student continued to display task-avoidance by asking for breaks, walking out of the classroom or playground, making funny noises and in some instances when her frustration level was great because of work she perceived to be too challenging, she cried intensely (Flaherty).

The evidence is persuasive that although generally a happy and friendly child, Student finds it difficult to establish relationships with her peers and is unable to initiate reciprocal play. She is still at the parallel play stage of social development. In this regard she requires the intervention and assistance of adults (Flaherty, Kuchel, Curry). By parental report, Student’s social issues are less apparent at home and in the community (Mother).

By November 2010, in first grade, Student had failed to demonstrate sufficient progress and was giving indication that she required additional services. She was able to learn in the right environment but was easily distracted and could go into total “shut-down” (Kuchel). Student is highly adult-prompt dependent and requires a great level of attention to stay on track (Kuchel). According to Ms. Kuchel, her special education teacher, Student was not showing a trend of improving with the current level of services but rather was staying constant.

Her Team therefore reconvened to discuss increasing the level of services. The Lincoln members of the Team opined that the level of services required by Student in order to receive a FAPE was beyond what Lincoln could offer. Ms. Curry, the first grade teacher, testified that Student’s day was already quite fragmented with the numerous times she had to leave the room to receive pull-out services. She stated that re-entry was very difficult for Student and with her attentional issues and off-task behaviors, Student ended-up missing a great deal of what is taught in the classroom. According to Ms. Curry, Student requires approximately seven to ten re-directions in a half-hour span.

Lincoln also lacked the ability to provide an appropriate peer grouping for Student. In her first grade class of fifteen students (including Student), there are only two other students on IEPs, and the other two children are only on IEPs for physical and/or occupational therapy (Flaherty, Curry).

According to Stephanie Powers, Lincoln has a total of sixty students in grades kindergarten through eight, none of whom present the level of need displayed by Student. This makes it very difficult to develop a group of similarly disabled students around whom to develop an in-house program for Student ( Id. ). Lincoln explored the CASE Collaborative, which also did not have an appropriate peer group for Student, would not have enabled her to integrate into regular education classes, and would have required Student to travel over an hour from Boston to access this program (Powers, Flaherty).

The evidence shows that at Lincoln Student made some progress towards meeting the goals and objectives in her IEP, but the rate of improvement was far below that of her peers despite the one-to-one pull-out supports, and instead of closing, the gap between her and typically developing peers was widening (Curry, Kuchel, Flaherty).

On behalf of Parents, Adrienne Simpson, Casey Walsh, and Dr. Allison Schonwold (PE-17), opined that Lincoln’s program could be made appropriate for Student with some modifications and increases in the level of services. Ms. Simpson, who observed Student in Lincoln in January and March 2010, supported a co-teaching model (regular education and a special education teacher delivering the instruction together) in Student’s regular education classes including math, social studies and science, and also recommended that programs such as LEXIA Scientific, Touch Math and FAST Math be incorporated into the curriculum and made accessible to Student. Ms. Simpson has not evaluated Student but opined that children with Student’s level of functioning can generally be educated in the general education classroom (Simpson).

Casey Walsh, a Licensed Clinical Social Worker with ASK, has met with Student and with Mother on at least four occasions over the past year, and also observed Student in January 2011. She noted that Student displayed a happy, friendly mood when seen at Children’s Hospital and was eager to please. She expressed no concerns regarding Student’s emotional well-being at this point (Walsh).

Lincoln’s Team asserts that its recommendation for Student’s participation in a substantially-separate, language-based program within Boston will provide Student the more intensive instruction and therapeutic supports that she requires (SE-2). The evidence is persuasive that a co-teaching model, as suggested by Ms. Simpson, would be insufficient to address Student’s needs at this time. Student’s significant issues require her instruction to be delivered in a different manner, and at a different pace than typically developing peer would require. A co-teaching model would allow her to be in a mainstream classroom receiving one type of instruction while the rest of the class receives another, making her differences even more poignant. In a smaller classroom, with an appropriate language-rich environment, where the pace of the instruction is slower and specifically designed to address the needs of children with language-based issues; where the appropriate methodology is embedded in the instruction; and information is presented and reinforced throughout the day across all settings, Student is more likely to receive the education that she requires in order to receive a FAPE (Curry, Flaherty, Kuchel). She would also not feel different from other students as she would receive the same instruction and at the same pace as similarly situated peers. In this regard, I find the Lincoln’s argument to be supported by the evidence and more persuasive.

Michael Murphy described the language-rich programs available in Boston which could meet Student’s needs, and testified that Boston had a seat available at the Holland School should she be placed in Boston at this time (SE-5; Curry, Murphy). Mr. Murphy testified that once Student was enrolled in Boston, Parents could visit other available programs.

Parents however, are concerned that transferring Student to Boston will compromise Student’s METCO status (Mother). Parents themselves were students in Boston and were not pleased with the education they received (Mother).

Sine Student is a resident of Boston enrolled in METCO, Lincoln invited Boston to participate in Team meetings beginning in March 2010. Parents take issue with the fact that a representative from Boston and METCO were present at the March 10, 2010 meeting, given that it was Student’s eligibility meeting (PE-11). They submit that this is evidence that Lincoln had no intention of modifying or creating a program for Student in Lincoln, and instead intended to return Student to Boston in contravention of 603 CMR 28.10 (6)(a).17 Parents assert that this Regulation calls for the program school Team to conclude the meeting when it determines that a student needs an out-of-district placement, and that the Team be reconvened to discuss placement when all of the necessary parties are in attendance. Furthermore, Parents assert that the regulation requires the Team to consider all options in-district before sending a student to an out-of-district day or residential program. Parents contend that Lincoln failed to do so.

In this regard Lincoln meeting notes show that a representative of Boston attended the March 2010 meeting. Mr. Murphy testified that he was approached by Lincoln in the fall of 2010 to explain the placement options available in Boston, and that he again was invited in March 2011. During both of the latter meetings, out-of-district options in Boston were discussed.

The intent of 603 CMR 28.10 is to ensure that: 1) options for creating an in-program school, 2) options for exploring options in the school where the student resides and 3) out-of-district day or residential program options are explored with the necessary parties present, especially where, in the event that the student attends an out-of district day or residential program, the programmatic and financial responsibility for the student reverts to the district where the student resides. The purpose of this regulation is therefore, to explore all possible less restrictive options, and to place districts on notice and offer them an opportunity to participate before a placement is made. In the case at bar, while Parents are correct that the regulation calls for two separate meetings, the regulation should not be read so strictly as to prevent the parties from discussing placement together with programming so long as representatives with knowledge of the programs and placements to be discussed, as well as decision-making authority are present, and Parents do not object to both meetings being held simultaneously. The opposite result would lead to unnecessarily delaying the process, and potentially causing harm to a student who is left in an inappropriate placement. While technically, Lincoln’s actions did not comply with the “strict letter of the law” as stated in the aforementioned regulation, this irregularity resulted in no harm to Student.

The evidence is persuasive that Student currently requires participation in a small-group, language-based program in order to receive a FAPE. The evidence is also persuasive that at present, Lincoln is not able to provide Student a FAPE consistent with an appropriate IEP; and that contrary to what Parents argue, leaving her in Lincoln would require an increase in one-to-one services for a student who is already greatly adult-dependent, increasing alienation between her and her peers (Kuchel, Powers). In the end, Student would be in a more restrictive placement than if she were to attend a substantially-separate program in Boston. Lincoln has met its burden pursuant to Shaffer v. Weast, 126 S.Ct. 528 (2005) with respect to these issues .

However, despite Ms. Kuchel’s, Ms. Curry’s and Ms. Powers’ testimony that Student should leave Lincoln now, given Student’s issues with transitions and the late date in the school year, I am persuaded by the ASK providers that moving Student out of Lincoln at this time would be detrimental (Parents also expressed concern that transitioning Student to another school at this time would be detrimental to her). The evidence is persuasive that Student has issues with transitions and that even re-entry to the classroom after a pull-out session, lunch or recess is difficult for her (Kuchel, Curry).

I am not persuaded by Lincoln with respect to the level of emotional distress portrayed, given the written information contained in PE-2 (the daily logs), PE-8 (the progress reports), the testimony of Mother and the ASK evaluators. Mother reported that Student loves going to school, never complains about it, works on her homework and at times pretends that she is reading to her younger sibling. Mother also asserts that Student has formed some friendships in Lincoln. She has been invited to parties by some classmates and at least five other classmates attended her birthday party earlier this year (Mother). Ms. Walsh credibly testified that at present Student does not feel sad or guilty, but that if she were moved to Boston at this point she would be confused and would likely feel sad and guilty (Walsh). Dr. Schonwold was also credible and persuasive that moving Student out of Lincoln in the middle of the second semester would be confusing, distressing, greatly traumatic and harmful to her social emotional health. She opined that given the welcoming, caring environment provided by Lincoln and considering how happy Student is there, keeping her in Lincoln through the end of the school year would not hurt Student.

The summer is a more logical and appropriate time for Student to make her transition into a Boston program. Therefore, Student shall stay in Lincoln until the end of this school year.

Lastly, Ms. Walsh and Ms. Kuchel persuasively emphasized the need for conducting a functional behavioral assessment to address Student’s avoidance and attention seeking behaviors, as well as Student’s behaviors around dismissals and transitions. Lincoln shall work cooperatively with Parents in initiating the functional behavioral assessment forthwith.

ORDER:

1. Lincoln shall continue to educate Student through the rest of this school year.

2. Lincoln together shall conduct a functional behavioral assessment to address Student’s avoidance and attention seeking behaviors as well as issues around dismissals and transitions.

3. The statement regarding “placement by a state agency to an institutional-ized setting for non-educational reasons” shall be removed from Student’s Lincoln and Boston IEPs as it is both inapplicable and irrelevant to Student’s placement.

4. Boston shall implement Student’s March 2011 IEP starting in the summer of 2011.

So Ordered by the Hearing Officer,

______________________________________

Rosa I. Figueroa

Dated: April 29, 2011


1

Boston did not submit any exhibits.


2

The Phonological Awareness Test 2 (PAT 2) was also administered (SE-10).


3

In the Boehm Test of Basic Concepts-3 (Form E), Student scored in the sixth percentile obtaining a third percentile range, the lowest level (SE-12).


4

The box containing Other Authority Required Placements of this IEP mistakenly contains a statement that “the placement has been made by a state agency to an institutional setting for non-educational reasons.” Although no box is marked in this section regarding any particular agency, the statement is not pertinent to the case at bar and should be removed from that box (SE-2).


5

Ms. Kuchel is also an autism specialist (SE-16; Kuchel).


6

As with previous IEPs, the same irrelevant and inapplicable statement regarding “placement by a state agency to an institutionalized setting for non-educational reasons” appears in the IEP (SE-18).


7

20 USC 1400 et seq .


8

MGL c. 71B.


9

MGL c. 71B, ss. 1 (definition of FAPE), 2, 3.


10

E.g., 20 USC 1400(d)(1)(A) (purpose of the federal law is to ensure that children with disabilities have FAPE that “emphasizes special education and related services designed to meet their unique needs . . . .”); 20 USC 1401(29) (“special education” defined to mean “specially designed instruction . . . to meet the unique needs of a child with a disability . . .”); Honig v. DOE , 484 U.S. 305, 311 (1988) (FAPE must be tailored “to each child’s unique needs”).


11

Board of Education of Hendrick Hudson Central School District v. Rowley, 458 U.S. 176, 192 (1982) (goal of Congress in passing IDEA was to make access to education “meaningful”); Deal v. Hamilton County Board of Education, 104 LRP 59544 (6 th Cir. 2004); (“ IDEA requires an IEP to confer a ‘meaningful educational benefit’ gauged in relation to the potential of the child at issue”); G. by R.G. and A.G. v. Fort Bragg Dependent Schs , 40 IDELR 4 (4th Cir. 2003) (issue is whether the IEP was reasonably calculated to provide student meaningful educational benefit); Weixel v. Board of Education of the City of New York , 287 F.3d 138 (2 nd Cir. 2002) (placement must be “‘reasonably calculated’ to ensure that [student] received a meaningful educational benefit”); Houston Independent School District v. Bobby R ., 200 F.3d 341 (5 th Cir. 2000) (educational benefit must be “meaningful”); Ridgewood Board of Education v. NE for ME , 172 F.3d 238 (3 rd Cir. 1999) (IDEA requires IEP to provide “significant learning” and confer “meaningful benefit”).


12

Lenn v. Portland School Committee , 998 F.2d 1083 (1 st Cir. 1993) (program must be “reasonably calculated to provide ‘effective results’ and ‘demonstrable improvement’ in the various ‘educational and personal skills identified as special needs’”); Roland v. Concord School Committee , 910 F.2d 983 (1 st Cir. 1990) (“Congress indubitably desired ‘effective results’ and ‘demonstrable improvement’ for the Act’s beneficiaries”); Burlington v. Department of Education , 736 F.2d 773, 788 (1 st Cir. 1984) (“objective of the federal floor, then, is the achievement of effective results–demonstrable improvement in the educational and personal skills identified as special needs–as a consequence of implementing the proposed IEP”); 603 CMR 28.05(4)(b) (Student’s IEP must be “ designed to enable the student to progress effectively in the content areas of the general curriculum”); 603 CMR 28.02(18) (“ Progress effectively in the general education program shall mean to make documented growth in the acquisition of knowledge and skills, including social/emotional development, within the general education program, with or without accommodations, according to chronological age and developmental expectations, the individual educational potential of the child, and the learning standards set forth in the Massachusetts Curriculum Frameworks and the curriculum of the district.”).


13

See generally In re: Arlington , 37 IDELR 119, 8 MSER 187, 193-195 (SEA MA 2002) (collecting cases and other authorities).


14

MGL c. 69, s. 1 (“paramount goal of the commonwealth to provide a public education system of sufficient quality to extend to all children the opportunity to reach their full potential… ”); MGL c. 71B, s. 1 (“special education” defined to mean “…educational programs and assignments . . . designed to develop the educational potential of children with disabilities . . . .”); 603 CMR 28.01(3) (identifying the purpose of the state special education regulations as “to ensure that eligible Massachusetts students receive special education services designed to develop the student’s individual educational potential…”). See also Mass. Department of Education’s Administrative Advisory SPED 2002-1: Guidance on the change in special education standard of service from “maximum possible development” to “free appropriate public education” (“FAPE”), effective January 1, 2002, 7 MSER Quarterly Reports 1 (2001) (appearing at www.doe.mass.edu/sped) (Massachusetts Education Reform Act “underscores the Commonwealth’s commitment to assist all students to reach their full educational potential”).


15

Hendrick Hudson Dist. Bd. of Educ. v. Rowley , 458 U.S. 176, 199, 202 ( court declined to set out a bright-line rule for what satisfies a FAPE, noting that children have different abilities and are therefore capable of different achievements; court adopted an approach that takes into account the potential of the disabled student ); Deal v. Hamilton County Board of Education, 104 LRP 59544 (6 th Cir. 2004); (“ IDEA requires an IEP to confer a ‘meaningful educational benefit’ gauged in relation to the potential of the child at issue”); HW and JW v. Highland Park Board of Education , 104 LRP 40799 (3 rd Cir. 2004) (“benefit must be gauged in relation to the child’s potential”); Houston Independent School District v. Bobby R ., 200 F.3d 341 (5 th Cir. 2000) (progress should be measured with respect to the individual student, not with respect to others); T.R. ex rel. N.R. v. Kingwood Twp. Bd. of Educ., 205 F.3d 572, 578 (3d Cir. 2000) (appropriate education assessed in light of “individual needs and potential”); Ridgewood Board of Education v. NE , 172 F.3d 238 (3 rd Cir. 1999) (“quantum of educational benefit necessary to satisfy IDEA . . .requires a court to consider the potential of the particular disabled student”); Mrs. B. v. Milford Board of Ed. , 103 F.3d 1114, 1122 (2d Cir. 1997) (“child’s academic progress must be viewed in light of the limitations imposed by the child’s disability”); MC v. Central Regional School District , 81 F.3d 389 (3 rd Cir. 1996), cert. denied 519 US 866 (1996) (child’s untapped potential was appropriate basis for residential placement); Roland v. Concord School Committee , 910 F.2d 983 (1 st Cir. 1990) (“academic potential is one factor to be considered”); Kevin T. v. Elmhurst , 36 IDELR 153 (N.D. Ill. 2002) (“ Court must assess [student’s] intellectual potential, given his disability, and then determine the academic progress [student] made under the IEPs designed and implemented by the District ”).


16

Schaffer v . Weast , 126 S.Ct. 528 (2005) places the burden of proof in an administrative hearing on the party seeking relief.


17

“ Program Schools . A program school shall have programmatic and financial responsibility for enrolled students subject only to specific finance provisions of any pertinent state law related to the program school. Specific provisions for program schools re as follows:
(a) For charter schools, vocational schools or schools attended under M.G.L. c.76 §12A (Metco), when the Team determines hat the student may need an out-of-district placement, the team shall conclude the meeting pursuant to 603 CMR 28.06(2)(c) without identifying a specific placement type, and shall notify the school district where the student resides to participate as a member of the placement team pursuant to 603 CMR 28.06(2)(e)(1).

1. Upon a determination as in 603 CMR 28.06(a) above, the program school shall schedule another meeting to determine placement, and shall invite representatives of the school district where the student resides to participate as a member of the placement team pursuant to 603 CMR 28.06(2)(e)(1).

2. The Team meeting convened by the program school shall first consider if the school district where the student resides has an in-district program that could provide the services recommended by the Team, and if so, the program school shall arrange with the school district where the student resides to deliver such services or develop an appropriate in-district program at the program school for the student.

3. If the placement Team, in accordance with the procedures of 603 CMR 28.6(2)(d), determines that the student requires an out-of-district program to provide the services identified on the student’s IEP, then the placement proposed to the parent shall be an out-of district day or residential school, depending on the needs of the student. Upon parental acceptance of the proposed IEP and proposed placement, programmatic and financial responsibility shall return to the school district where the student resides. The school district where the student resides shall implement the placement determination of the team consistent with the requirements of 603 CMR 28.06(3).” 603 CMR 28.10 (6)(a).


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