COMMONWEALTH OF MASSACHUSETTS
SPECIAL EDUCATION APPEALS
BSEA #08-3766
LUKE1 v TEWKSBURY PUBLIC SCHOOLS
DECISION
This decision is issued pursuant to the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. 1400 et seq), Section 504 of the Rehabilitation Act of 1973 (29 U.S.C. 794), the state special education law (M.G.L. c. 71B), the Administrative Procedures Act (M.G.L. 30A) and the regulations promulgated under those statutes. A hearing was held in the above-entitled matter on April 2, 2008 at the Bureau of Special Education Appeals (BSEA) in Malden, MA. Those present for all or part of the proceeding were:
Parent
Elaine Cheng Sinclair Case Manager, Tewksbury Public Schools
Kara Murray Liaison, Tewksbury Public Schools
Katherine Denean Teacher, Tewksbury Public Schools
Cheryl Porcaro Team Chairperson, Tewksbury Pupil Schools
Rosamond Malatesta Math Teacher, Tewksbury Public Schools
Amy Rogers Attorney, Tewksbury Public Schools
Joan D. Beron Hearing Officer, BSEA
The official record of the hearing consists of documents submitted by the Parent marked P1- P32 , as well as documents from the Tewksbury Public Schools marked S1-14, and approximately four hours of recorded oral testimony. The record closed on April 2, 2008 after oral closing arguments were received from both parties.
ISSUES
I. Did the School District commit procedural violations that denied Luke a free appropriate public education (FAPE) in the least restrictive environment?3
If so, is reimbursement for math tutoring services at Kumon an appropriate remedy for this procedural violation?
II. Are the math tutoring services reflected on the IEP appropriate?
If not, is reimbursement for math tutoring services at Kumon an appropriate remedy?
III. If so, has the School District implemented the math tutoring?
IV. If not, are there any facts that excuse the School District from implementation or any facts that bear on a remedy if noncompliance is found? See 603 C.M.R. 28.08 (6) (b).
FINDINGS OF FACT
1. Luke is an eighth grader who receives special education services pursuant to an IEP due to weaknesses in processing speed that affect his ability to perform tasks, and weak math skills that impact his ability in the regular classroom setting4 . (S45 , see also P1, P2)
2. On December 19, 2007, the TEAM reconvened to review Luke’s IEP (Mother, Sinclair). Tewksbury presented Mother with a draft IEP (Mother, S1-S3). Mother told the TEAM6 that Luke was doing better with his homework but that he was mentally exhausted when he got home from school (S2). She also told the TEAM that Luke was falling behind in math due to his lack of basic math skills and that he has been participating in the Kumon math program (Kumon math tutoring) at home and was slowly making progress. The TEAM agreed that Luke would benefit from math tutoring (Mother, Murray, Sinclair). The TEAM discussed that the tutoring Luke received at Kumon was helpful to him, was meeting his needs, and was inexpensive7 (Mother, see also Murray, Sinclair). The TEAM also agreed that tutoring for two sixty-minute sessions per week would be appropriate because this was the amount of time that Luke spent at Kumon math tutoring (Mother, Murray, see S4). There was no discussion about who other than Kumon would deliver the tutoring, what the tutor would do, or the qualifications of any tutor. (Mother, Sinclair, Murray, Deveau, see S2)
3. Mother asked the TEAM to include the Kumon math tutoring on Luke’s IEP (S4, Mother, Murray, Sinclair, Deveau).8 Mother asserts that the TEAM chairperson, Ms. Sinclair, told Mother that she would need to speak to the Systemwide Team Chairperson, Cheryl Porcaro, before she could approve Kumon tutoring (Mother). The other TEAM members do not recall whether this was said (Murray, Sinclair). Mother asked Ms. Sinclair why she had to check with Ms. Porcaro when she was not a member of the TEAM. Ms. Sinclair did not answer Mother’s question (Mother, Sinclair). At the end of the meeting Mother knew that Tewksbury would not be offering Kumon in the IEP (Mother, Murray).9 Ms. Murray indicated in the Team meeting notes: “Mother accepts the IEP however she rejects the placement of the tutoring.” (S2, Murray).
4. Tewksbury proposed an IEP that calls for: daily consultation with staff, inclusion support in math; preferential seating in the classroom with extra time to complete tasks and tests if needed; the use of study guides, word banks, graphic organizers and homework agendas, and reference sheets and a calculator for math in the classroom and during the MCAS (S4). The IEP also calls for a tutorial in math for two sixty-minute sessions per week by a tutor (S4). The TEAM determined that Luke required tutorial services at the end of the day for two sixty minutes sessions per week, and through an extended year period, to prevent substantial regression and to remediate deficits in math (S4). The IEP also designates that Luke will be provided with regular transportation and indicates that if Luke is placed away from the local school, transportation will be provided (S4).
5. Tewksbury sent Luke home with the IEP on December 19, 2007 and Mother received it on that day (Mother, Sinclair, see S4). Mother rejected the IEP because she felt that if it did not specify Kumon, Luke would not be offered appropriate services. Mother based this conclusion on the fact that in December 2006, Tewksbury had offered Luke a math tutor from a high school student that was not appropriate because the student did not know how to deal with Luke’s processing issues (Mother). Mother knew that at the time that she received the IEP that Tewksbury was not offering math tutoring at Kumon. However Mother did not know what Tewksbury was offering and did not know what to do (Mother). Under the Parent Options/Responses section of the Placement Consent Form (PL1) of the IEP, Mother checked the box that said: “I consent to the placement” (S4, p. 11). Under the Parent Option/Response section on p.10 Mother checked the box that said: “I reject the following portions of the IEP with the understanding that any portion(s) that I don not reject will be considered accepted and implemented immediately. Rejected portions are as follows”: Then Mother wrote: “pg. 6 Tutorial Services” and signed and dated the IEP that day.10 She also included the following comments under the comments section of the IEP “Luke is falling behind in math due to his lack of basic math skills. Luke was participating in the Kumon math program and is slowly making progress. He needs to continue with this program at least until his math skills are up to grade level. Luke receives Kumon at the Kumon Center of Tewksbury, and is tutored at home throughout the week using Kumon materials. This tutoring should be included in his IEP” (S4. p. 10).
6. On December 28, 2008 Cheryl Porcaro, the Systemwide Team Chairperson, sent Parents a letter that indicated that it was required to notify the Bureau of Special Education Appeals (BSEA) when an educational program is rejected in full or in part and informed Parents that it would be sending a copy of the rejected IEP to the BSEA (S5). In this letter Ms. Porcaro wrote: “ It is my understanding that you are accepting the services listed on Luke’s IEP but are rejecting the district’s refusal to fund the tutorial services at Kumon. Please know that the district has available certified regular education and certified special education teachers who can tutor Luke twice a week after school should you accept the district’s services”11 (S5, see also Porcaro, Sinclair).
7. On January 22, 2008 Ms. Porcaro again wrote to Parents in response to a letter that they sent on January 3, 2008 requesting that the District fund tutoring at Kumon (S6). Ms. Porcaro indicated that “Luke’s IEP does stipulate that he receive math tutoring (2) hours per week provided by the District. The statement on p. 8 of the IEP that states;” Luke attends the Kuman (sic) Center once a week and practices the skill daily and is successful, Mother wants this to continue” is recorded under the Additional Information section of the IEP and is not a statement of intent to fund the service but rather a statement to provide the reader of the IEP information that is not recorded elsewhere on the IEP. As you know, the district has certified regular education teachers and certified special education teachers who can provide this service. The instructors at Kumon are not certified teachers.” (S7, see also Porcaro). The letter goes on to say: “The district stands ready to provide the math tutoring but cannot support tutoring by another agency whose instructors are not certified teachers” (S7, see also Tewksbury’s response, Porcaro).
6. Parents filed a hearing request with the BSEA on January 22, 2008. In that hearing request Parents stated that the TEAM had made a decision to include tutoring at Kumon but that the decision was overruled by a town administrator that was not at the meeting. Parent requested that the town pay for tutoring at Kumon ( see Parents’ hearing request).
7. A resolution session occurred on February 6, 2008. It was not successful (Mother, Porcaro). A Hearing Officer initiated conference call with Mother and School Counsel occurred on February 13, 2008. At that time the Parties joint motion to convert the February 26, 2008 hearing date to a further conference call was granted so that Tewksbury could provide Mother information regarding the details of the math tutoring program. Tewksbury provided the information by status report on February 27, 2008.12 The status report listed the work that the tutor would be doing in addition, subtraction, multiplication and division ( see Tewksbury’s status report February 27, 2008). The report indicated that tutors would be provided after school from 2:05 p.m. until early evening; that the tutoring schedule would be mutually agreeable by the parent and the tutor; that tutoring was typically provided at the public library and that transportation would be the responsibility of the Parent ( Id, see also Porcaro).
8. Another conference call occurred on February 28, 2008. At that time Mother indicated that she would be willing to explore a tutor from the district but that she currently would not be accepting the tutoring proposed by the District because the tutor would be teaching Luke information that he already knew (Mother).
9. The TEAM reconvened on March 13, 2008. Mother informed the TEAM that Luke was working on fractions in Kumon math tutoring and will be moving on to decimals13 (S10, see also P3). The TEAM also reviewed progress sheets from Kumon and discussed where tutoring should occur. Mother agreed to meet the District’s proposed tutor (S10). The TEAM amended the math goals of the IEP eliminating the addition and subtraction goals and detailing benchmarks concerning fractions (S12).
10. Mother rejected the tutor that Tewksbury offered because the tutor14 was only available from 2:00 to 3:00 p.m. and that the tutoring would be inappropriate because Luke refuses to stay after school and had no transportation home (Mother).15 Tewksbury agreed to continue to look for a tutor that could provide the math services on the IEP (Porcaro). Hearing dates were set for April 2, 2008 at 1:30 p.m. to continue on April 7, 2008 if needed.
11. Ms. Porcaro sent Mother a letter by overnight mail dated March 31, 2008. This letter indicated that it would continue to offer the original tutor and could also offer a tutor who could tutor Luke after 4:00 p.m. in accordance with his IEP (S14, Porcaro). Mother received Ms. Porcaro’s letter at approximately noon on April 2, 2008 (Mother). In the letter Ms. Porcaro indicated that this tutor was a certified special education teacher and could begin as soon as Mother accepted the services (S14, Porcaro). Tutoring would be provided at a mutually agreeable location usually at the town library (Porcaro). Parent would be responsible for the transportation (Porcaro).
12. Luke has been receiving Kumon tutoring since August 2007 (Mother). During the summer Luke attends on Mondays and Thursdays and can go anytime between 3:00 p.m. and 7:00 p.m. He usually only goes once per week during the school year; however regardless of whether Luke attends once or twice a week the fee is still $90.00 per month. While Luke is attending Kumon he is required to do math packets that address fractions and division (Mother). Assessments at Kumon show that Luke has made progress and has been able to move from work on long digit multiplication and division to fractions and has progressed from Level B to Level E in the program (P2, P4, Mother). Luke is more comfortable in math class than he was at the beginning of the year and has been able to move on from working on slope16 to work with fractions (Malatesta). Luke’s math teacher believes that tutoring is beneficial because it gives Luke extra practice with the concepts (Malatesta).
13. Luke’s Kumon tutor has received training in the Kumon method; however the tutor is not a certified teacher and the Kumon program, is a tutoring program and is not an approved special education or regular education school (Mother, Porcaro). Tewksbury does not believe that it can be ordered to provide services at Kumon because the program is unapproved and unaccredited ( see Tewksbury’s March 26, 2008 motion to dismiss, but see Ruling on Motion, March 27, 2008, Beron).
FINDINGS AND CONCLUSIONS
At issue is whether Parent should be reimbursed for math tutoring at Kumon. Here, if Parent can show by the preponderance of the evidence that Luke was denied a FAPE due to any procedural violations by Tewksbury, or that the School District has offered inappropriate services, and/or has not implemented the services, and also show that the services offered at Kumon were appropriately responsive to her child’s needs so that he can benefit educationally, she will be reimbursed for math tutoring services at Kumon.
Here the Parties agree that Luke requires math tutoring for two sixty-minute sessions per week in order to receive a free appropriate public education (FAPE).
Parents may be reimbursed for the costs of providing special education and related services for their eligible children if they demonstrate that the program and services offered by the school district are inappropriate, and that the program and services that they obtain privately are appropriate. School Committee of Town of Burlington , Mass. v. Dept. of Education of Mass ., 471 U.S. 359, 369-70 (1985). To be deemed appropriate, so as to qualify parents for reimbursement, the parents’ chosen program need not be a state approved special education school, so long as it is does meet the federal FAPE standard. 34 CFR 300.403(c), 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). Thus, a parent may be reimbursed for the costs of a unilateral placement if that placement is “appropriately responsive to [a student’s] special needs;” i.e., so that the student can benefit educationally. Matthew J. , 27 IDELR at 344. Reimbursement is an equitable remedy. The amount of reimbursement to be awarded is determined by balancing the equities; see e.g. Burlington (supra).
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 where “procedural inadequacies [have] compromised the pupil’s right to an appropriate education…or caused a deprivation of educational benefits.” Roland M. v Concord Public Schools , 910 F. 2d at 994 (1 st Cir. 1990). A Hearing Officer may also find that a denial of a FAPE has occurred if a School District has significantly impeded the parent(s)’ opportunity to participate in the decision making process regarding the provision of a FAPE to the parent(s)’ child, 20 USC s. 1415 (f)(E) ii)(II).
The record shows by a preponderance of the evidence that Parent should be reimbursed for services at Kumon and transportation from school to the tutoring at state rates. Both Parties agree that the TEAM discussed Luke’s need for math tutoring, agreed that tutoring he was doing at Kumon was benefiting him and determined the amount of math tutoring that Luke needed by calculating the amount of tutoring Luke was receiving at Kumon. The Parties do dispute whether the District’s case manager who ran the meeting, Ms. Sinclair, stated that she had to ask Ms. Porcaro (the District’s Systemwide Team Chairperson) whether she could include Kumon on Luke’s IEP. However, Ms. Sinclair and the other school district team members do not dispute that when Mother asked her why she had to check with Ms. Porcaro, Ms. Sinclair said nothing. It is illogical that Mother would ask this question and that Ms. Sinclair would choose not to answer Mother’s question unless Ms. Sinclair had stated at the TEAM meeting that she could not offer Luke math tutoring at Kumon unless she first checked with an administrator.
In addition, the TEAM did not discuss any aspects of the math tutoring that it was proposing, including, who would deliver the tutoring, what the tutor would do or the qualifications of any tutor. (Mother, Sinclair, Murray, Deveau, see S2). Mother partially rejected the IEP because the IEP she received did not offer Kumon but also because the IEP did not specify any information about the math services Luke would be receiving.
The preponderance of the evidence shows that the TEAM members agreed that Luke should receive math tutoring at Kumon but were prevented from including their recommendation on Luke’s IEP because they were not allowed to make TEAM decisions for outside services without approval from the administration. Tewksbury’s actions significantly impeded Mother’s opportunity to participate in the decision making process regarding the provision of a FAPE to Luke and as such Tewksbury’s actions have denied Luke a FAPE; ( see 20 USC s. 1415 (f)(E) ii)(II). Therefore Parents will be entitled to reimbursement for Kumon because here, the services that Tewksbury offered in its IEP did not reflect the recommendations of the TEAM and were inappropriate because the IEP was incomplete. Mother has also shown that the Kumon math tutoring that Luke receives is appropriately responsive to his special needs and that he has benefited educationally; ( see Finding 12, Matthew J. , 27 IDELR at 344).
As such, Tewksbury will amend Luke’s IEP to reflect the updated math goals developed at the March 13, 2008 TEAM meeting and to reflect that math tutoring services reflected in the IEP will be provided by the Kumon Center in Tewksbury. Parents will be reimbursed for tutoring ($90.00 per month) from the time that the IEP would have been accepted if drafted appropriately (December 2008). Tewksbury will directly pay Kumon directly for future months of service for the term of the IEP.17 In addition, as the IEP also calls for Tewksbury to provide regular transportation for services if the child is placed away from the local school, Tewksbury will also reimburse Parents for transportation from Luke’s school to the Kumon Center in Tewksbury, MA. Transportation will be reimbursed at the current state rate.18
ORDER
Parents shall be reimbursed for Kumon math tutoring from December 2007 to the present Parents will also be reimbursed for transportation from Luke’s school to Kumon-Tewksbury for this time period. Tewksbury will amend the IEP to reflect that math tutoring will be provided by Kumon Center in Tewksbury.
By the Hearing Officer,
Joan D. Beron
Date: April 15, 2008
1
Luke is a pseudonym used for confidentiality and classification purposes in publicly available documents.
2
Tewksbury’s motion to exclude P4 was allowed, as the exhibit was not directly relevant to the issues concerning Luke.
3
The two procedural violations that Parent has identified were that the IEP did not reflect the decision of the TEAM and that the School District gave Parent incorrect information that may have led to her not accepting services on the IEP.
4
Mother asserts that Kumon’s testing shows that Luke is at a third grade level in math. Tewksbury believes that Luke is at grade level. However both Parties acknowledge that Luke has weaknesses in math and would benefit from math tutoring. (Mother, Murray). Luke’s math teacher and the members of Luke’s TEAM do not dispute that math tutoring should be on his IEP (Murray, Porcaro, Malatesta).
5
In 4 th grade Luke scored on the needs improvement level in Math and in English/Language Arts (P1). Testing done at Kumon showed that Luke is below grade level (P2)
6
The TEAM members were Elaine Sinclair, case manager/team chairperson, Mother, Kara Murray, Luke’s 8 th grade liaison, and Katherine Deveau, Luke’s regular education science teacher ( see S1, Deveau, Sinclair, Murray).
7
Tutoring at Kumon is $90.00 per month (Mother).
8
Luke began tutoring at Kumon in August 2007. Mother is only asking for reimbursement for math tutoring beginning from December 2007 (Mother).
9
Ms. Murray indicates that she told Mother that Tewksbury would not be offering Kumon services. Luke’s science teacher (Ms. Deveau) does not recall anyone saying that Kumon services would be included in the IEP (Deveau).
10
The date Mother signed was 12/19/08 (S4). The date should have been December 19, 2007 (Mother). The TEAM meeting occurred on December 19, 2007.
11
This section of Ms. Porcaro’s letter was in bold print.
12
An extension was granted to the School District.
13
The math goals and objectives indicate that Luke would use whole numbers involving addition and subtraction with 80% accuracy and that Luke would solve problems that involve multiplication and division with 80% accuracy (S7).
14
The tutor is a certified math teacher (Porcaro). Mother objected to the tutor not because of her qualifications, but because of the timing of the tutor’s availability and the content of the tutoring proposed (Mother).
15
Luke’s house is approximately five miles away from the school (Mother).
16
Tewksbury’s Counsel’s motion to obtain the definition of slope is granted. Slope is the steepness or incline of a straight line that is drawn on a rectangular coordinate system graph. The slope of a line is defined as the vertical change (the “rise”) over the horizontal change (the “run”) as one travels along the line. The formula of a straight line is y=mx+b where m is the slope. (Mother). The formula to determine slope can be explained by Luke’s math teacher and by Mother but is not relevant to the issues in dispute and will not be explained further here.
17
It may be that the tutor that Tewksbury has identified could meet Luke’s needs or that a tutor could adequately service Luke during the school day, as it is unclear why the IEP indicates a longer school day. When the TEAM reconvenes in December 2008 to develop a new IEP for Luke, the TEAM may decide, and Mother, as a member of the TEAM may agree, to a change in services or the service delivery. However, unless Parents otherwise agree the stay-put placement is Kumon math tutoring.
18
The current state rate is 40 cents per mile; ( see 603 C.M.R. 28.07 (6), DOE memorandum Change in Mileage Reimbursement for Parents, November 29, 2005). If Mother chooses to continue to transport Luke to Kumon, Tewksbury will continue to reimburse her at the current state rate. If not, Tewksbury will provide the transportation from Luke’s school to the Kumon Center in Tewksbury. This mileage is about four miles ( see Google maps).