COMMONWEALTH OF MASSACHUSETTS
BUREAU OF SPECIAL EDUCATION APPEALS
IN RE: Paul1
BSEA# 03-0340
DECISION
This decision is rendered pursuant to M.G.L. Chapters 15, 30A and 71B; 20 U.S.C. §1400 et seq .; 29 U.S.C. §794; and the regulations promulgated under each of these statutes.
A hearing in the above-entitled matter was held on March 10, 12, 13, 19 and April 17, 28 & 29, 2003 at the Massachusetts Bureau of Special Education Appeals in Malden, MA. The record was left open for receipt of final exhibits and written final arguments until June 11, 2003.
Those in attendance were:
Father Grandparent/Guardian
Mother Grandparent/Guardian
Judith Souweine Psychologist
Howard Rossman Director, Dearborn Academy
Virginia Doxsey Special Education Coordinator, Dearborn Academy
Nancy Rosoff Director, Learning Prep School and Parents’ Advocate
Robert Crabtree Attorney for Parents
Carrie-Ann Kerwin Assistant Program Director, Boston Public Schools (BPS)
Marjorie Sullivan Evaluation Team Facilitator, BPS
Marjorie Bigham Speech/Language Pathologist, BPS
Iva Katz Special Education Teacher, BPS
Robert Kilkenny Director, AIP Program
Paul Reinert Inclusion Program Director, AIP
Chara Green Behavior Specialist, AIP
Andrea dos Santos Law Clerk, BPS
Elizabeth Kurlan Litigation Director, BPS
Alissa Ocasio Attorney, BPS
Maryellen Coughlin Court Reporter
Rita Steinke Court Reporter
Gayle Ohman Court Reporter
Raymond Oliver Hearing Officer, Bureau of Special Education Appeals
The evidence consisted of Parents’ Exhibits labelled P-1 through P-80; Boston Public Schools’ Exhibits labelled S-1 through S-8; and approximately 31 hours of oral testimony.
HISTORY/STATEMENT OF THE CASE
Paul is a 13 year old boy who lives with his grandparents/legal guardians (Parents) and has lived with them since 3 years of age in Boston, MA. Paul currently attends a Boston Public Schools (BPS) substantially separate special education classroom in the Alliance for Inclusion and Prevention (AIP) program located at the Washington Irving Middle School (Irving School). Paul has attended the AIP program since January 2003. BPS had originally proposed the AIP program for Paul in an Individual Education Program (IEP) covering May 2002 through May 2003 which had not been accepted by Parents. Parents later accepted this IEP on a trial basis on January 6, 2003. (See P-1; S-1; testimony, Parent.)
Paul attended the Advent school, a private school, for kindergarten and first grade. He was diagnosed with special needs at the end of 1 st grade. Paul attended BPS’ Lyndon School for grades 2 through grade 4 receiving increasing resource room support each year. Following a neuropsychological evaluation, it was recommended that Paul be placed in a language-based program and he was placed in such a program at BPS’ Sumner School for his 5 th grade year. Paul attended that program until March 2001 when he was privately placed by Parents at Learning Prep School (LPS) a Massachusetts Department of Education (MDOE) approved private day school placement. Paul remained at LPS for the remainder of the 2000-2001 school year; all of the 2001-2002 school year; and from September 2002 until the 2002 Christmas vacation. Paul then began in the AIP program in January, 2003. (See testimony, Parent; Rosoff; Kerwin; P-1, 2, 18, 21; S-1.)
On July 17, 2002 Parents requested a hearing before the BSEA and an automatic hearing date was set for August 6, 2002. Various postponements were requested by both Parents’ advocate and BPS’ attorney. A pre-hearing conference took place on November 20, 2002. Subsequently, Parents decided to retain an attorney who entered an appearance and initiated discovery in December 2002. A pre-hearing conference call took place on December 23, 2002 and hearing dates were established for March 10, 12 and 13, 2003. Three other conference calls took place in January and February 2003 and a 4 th day of hearing-March 19, 2003- was added prior to the commencement of the hearing. The final 3 days of hearing-April 17, 28 & 29-were added during the course of the hearing.
ISSUES IN DISPUTE
1. Does BPS’ proposed IEP for Paul at the AIP program in the Irving School appropriately address his special education needs so as to provide him with a free and appropriate public education (FAPE) in the least restrictive educational environment?
2. If not, what type of educational program/placement does Paul require to appropriately address his special education needs so as to provide him with FAPE in the least restrictive educational environment?
3. Is Paul entitled to compensatory services?
STATEMENT OF POSITIONS
Parents’ position is that BPS’ proposed IEP in the AIP program is inappropriate to address Paul’s special education needs so as to provide him with FAPE in the least restrictive educational environment. Parents contend that Paul requires placement at an out of district private day school program, such as Dearborn Academy, to appropriately address his special education needs so as to provide him with FAPE in the least restrictive educational environment. Parents request that BSEA issue an order that BPS send a referral package to Dearborn Academy with a BPS funding commitment, contingent upon Dearborn’s acceptance of Paul’s application. Parents also contend that Paul be awarded compensatory services for BPS’ failure to provide him special education and speech-language services pursuant to his accepted IEP.
BPS’ position is that its proposed IEP in the AIP program is appropriate to address Paul’s special education so as to provide him with FAPE in the least restrictive educational environment. BPS contends that Paul does not require the restrictiveness of an out of district private day school placement such as Dearborn Academy to provide him with FAPE. BPS contends that there has been no denial of FAPE which would necessitate provision of compensatory services to Paul.
PROFILE OF STUDENT
Paul has been extensively evaluated. The earliest BPS evaluations submitted into evidence from 1999 (P-45, 46) reference an earlier evaluation performed at Children’s Hospital in August – September 1996 with a diagnostic formulation consistent with a neurobehavioral disorder affecting behavior regulation, language development and visual-spatial skills. (See P-46.) The first BPS developmental evaluation (P-46) performed in March – April 1999, when Paul was 9 ½ years old and a 3 rd grade student at BPS’ Lyndon School, found that Paul exhibited “a complex combination of learning, emotional and behavioral difficulties that suggest he will need extensive academic and emotional supports in order to succeed at school”. The BPS psychologist strongly recommended consideration of placement in a more intense therapeutic educational environment with a high staff to student ratio and participation in social skills/language pragmatics group. (See P-46.) A BPS psychological evaluation performed in September 1999 (S-45) found Paul, at the beginning of 4 th grade, to be functioning within the borderline to low average range of intelligence (Wechsler Intelligence Scale for Children – 3 rd edition or WISC-III); achievement below grade level in all academic areas tested; and emotionally/behaviorally Paul presenting as a sad, unhappy, lethargic boy who lacked self-confidence and seemed disinterested in school work.
In January 2000 the Center For Children With Special Needs (CCSN) at New England Medical Center (NEMC) performed a combined evaluation – neuropsychological, speech-language and educational – of Paul (P-40). The CCSN team consisted of an neuropsychologist, a speech language pathologist and an educational specialist. Paul also received a neurodevelopmental evaluation at CCSN-NEMC during this period (P-39). The CCSN-NEMC combined evaluation summary found Paul to have overall average intellectual functioning (Stanford-Binet Intelligence Scale – 4 th Edition or SB-IV). However, Paul presented with the following problems (See P-40 for complete evaluations):
1. Multiple, Complex Learning Disabilities including language based learning disabilities
and non-verbal learning disabilities;
2. Attention Deficit Hyperactivity Disorder. (See P-39.)
3. Receptive and Expressive Language Disorder including language formulation,
organizational and retrieval problems.
4. Underdeveloped pragmatic language skills.
5. Academic deficits in reading comprehension, written language and math.
6. Low self-esteem/poor coping strategies, vulnerability to scape-goating.
7. Signs of anxiety related to school performance.
CCSN made numerous recommendations (See P-40 for complete list), the primary recommendation being:
Given the extent and nature of his learning disabilities Paul would benefit from placement in a highly structured language based program: Program is designed for direct remediation of skills including intensive instruction in phonological awareness.
Follow-up evaluations were done by CCSN-NEMC with the educational evaluation
being done in May 2001 (P-28); the speech-language evaluation being done in September 2001 (P-26); and the neuropsychological evaluation being done in October 2001 (P-25). These evaluations noted little progress and reiterated Paul educational disabilities and the type of educational programming necessary to address these disabilities. The CCSN educational evaluator, Phoebe Adams, noted in her summary (P-28):
Results of this educational evaluation and observation indicate persisting problems in the areas of reading comprehension, math and written production/expression…. In observing [Paul’s] work-style and approach to tasks, as well as analyzing the quality of his oral and written responses, one can see the difficulties with expressive and receptive language, organization, pragmatics, meta-linguistic awareness, and comprehension.
The CCSN speech-language pathologist, Lori Goldberg, noted in her summary and recommendations (P-26):
Results of all formal measures were indicative of significant receptive-expressive language impairments. These delays are generally consistent with his verbal cognitive abilities and are consistent with a diagnosis of language based learning disability .
Programmatic Recommendations: Continued placement2 in a small, structured special education classroom for students with similar language learning profiles. Programming should provide repetition and practice in role-playing and real life situations for generalizations. Instruction should be language-based given [Paul’s] language difficulties.
The CCSN neuropsychologist, Dr. Lois Carra, noted in her summary and recommendations (P-25):
[Paul] is in need of the following:
· Separate, specialized, therapeutic program that provides small classes, language based
instruction and emotional support. Paul needs a way to organize his thinking and a language based approach can help him.
· Grouping with others who have good intelligence and have similar language/learning
needs.
· Language based instruction including specific reading comprehension instruction.
· Emotional support for students who have stress and low self esteem related to school.
· Direct teaching of social skills and opportunities for practice during all of [Paul’s] school
day ……
Finally, a comprehensive school program that addresses [Paul’s] needs during all of his school day is absolutely necessary. He has multiple diagnoses that include language/learning disorder, Nonverbal Learning Disabilities and a significant disability of social awareness, perception and interaction skills. [Paul] has a tendency toward anxiety and depression and at risk for “shutting down” or worse if his school program does not adequately address his academic, social and emotional needs. He requires a structured protected school community where it will be possible to acquire and practice the skills that he needs to function in life.
BPS performed a psychoeducational evaluation of Paul in March 2002 (P-21). BPS school
psychologist, Patricia Antonelli, noted in the background section of her evaluation:
Based upon school reports from Learning Prep, [Paul’s] behaviors are of major concern. He has had in-school suspensions for accumulating multiple detentions for inappropriate behaviors. Some of the behaviors noted on incident reports are as follows: name calling; interrupting teacher; swearing; running our of the classroom; lying; making faces and disrespectful noises towards peers; making sexualized comments and gestures towards peers and adults; slapping a classmate in the face while playing tag during recess; refusing to following directions and refusing to comply with teacher’s requests; refusing to take responsibility for his behaviors; and denying his inappropriate behaviors.
It was also reported that mediation meetings and consequences have had very little impact on changing [Paul’s] behaviors. His language processing issues along with his impaired social skills are believed to be among the factors that negatively impact upon his social interactions.
Dr. Antonelli noted in her Conclusion (P-21):
Previous testing indicate that [Paul] is functioning within the low average to average range of intelligence. Current testing reflect achievement scores that are commensurate with his intelligence in the areas of word reading, reading comprehension, pseudoword decoding, spelling, written expression, listening, comprehension and oral expression. [Paul’s] most outstanding deficit is reflected in the areas of math computation and reasoning with his performance falling significantly below what might be predicted or expected based upon his intelligence. A Mathematics Disorder (DSM-IV 315.1) is suggested.
In sum, [Paul’s] overall reading and oral language skills were measured to be within the low average range; overall written language skills were measured to be at the very upper limits of the borderline range; while overall math skills were measured to be significantly below the borderline range.
Finally, based upon projective testing and observational data, [Paul] presents as a depressed young boy who is experiencing feelings of insecurity, inadequacy, anxiety and hostility. Rather than withdraw, he has been expressing his feelings via aggressive and acting out behaviors as has been noted throughout his school history. In addition, [Paul] uses denial and avoidance to guard against confronting the painful realities of his life.
In March-April 2002 Paul was independently evaluated by Child Clinical Psychologist Audrey Stern (P-18). As did Dr. Antonelli in P-12, Dr. Stern reported the behavioral concerns around Paul’s emotional, social and behavioral functioning. In her Conceptualization, Dr. Stern noted (P-18):
[Paul’s] social, emotional, and behavioral functioning is consistent with a diagnosis of Attachment Disorder and can be traced back to the poor quality of parenting he received during the first three years of his life. If individuals do not have their needs appropriately met during these critical years, they can develop avoidant or disorganized attachment behaviors, characterized by a lack of trust in others, anger, a tendency to cover up their feelings, and needs, inhibition of their emotions, and vulnerability to stress-arousal.
[Paul] has many characteristics of individuals with attachment disorder, including a hostile attribution bias, inability to take the perspective of others, a need to suppress/deny sad feelings (which builds to anger), and an inability to take responsibility for his behavior or see how his behavior affects others.
The nature and extent of [Paul’s] social and emotional issues cannot be accounted for by a diagnosis of ADHD or by his learning disabilities, though these issues undoubtedly exacerbate his difficulties processing social cues, appreciating his effect on others, and communicating his feelings. Their presence has made it that much harder for [Paul] to be successful in school and in structured social activities. [Paul’s] repeated school failures and lack of sustained friendships most likely precipitated symptoms of depression this year, which has taken the form of increased irritability and decreased motivation for or interest in activities.
Until this time, the focus of professionals has been on [Paul’s] learning disabilities and his ADHD, and therefore he has never received services that address his feelings related to his relationships in his family of origin. However, [Paul] continues to experience rejection in his relationship with his mother, whose visits with him are sporadic and unpredictable. [Paul] alienates himself from his grandmother and engages in negative behaviors within the family that further interfere with the development of of positive family interactions. Moreover, [Paul] will experience yet another school failure this year, as his family and school professionals try again to find an appropriate placement for him. These repeated failure experiences preclude opportunities for meaningful attachments which in turn makes [Paul] vulnerable not only to depression but also to the development of antisocial/delinquent behavior.
[Paul] is a youngster who wants to be well-liked and accepted by his peers. School personnel have observed him engaging in more appropriate social behavior in highly structured settings, with clear limits and guidelines for behavior. However, he clearly needs intensive therapeutic support to address skills deficits related to his attachment disorder and to help him cope with negative feelings, so that he may move through adolescence on a more positive trajectory.
Recommendations:
It is recommended that [Paul] be placed in an educational environment that has a strong therapeutic and behavioral component. [Paul] requires a high level of supervision of his interactions with peers and “in the moment” feedback about his social behavior. The program also should be one that accommodate his learning disabilities and remediate his weak academic skills. (P-18)
SCHOOLS’ PROPOSED PROGRAM
Pursuant to its IEP, BPS proposes that Paul be educated in its AIP program at Irving Middle School. This AIP program is a pilot program whereby AIP, a private concern, provides specialized therapeutic and prevention services within the Irving School while BPS personnel provide special education services and other related services such as speech-language therapy and occupational therapy. The special education teachers, speech-language therapists, and occupational therapists, are under the authority of BPS via the building principal. The AIP behaviorists and social workers are under the authority of the executive director of AIP, Dr. Kilkenny.3 The AIP program is designed to serve as a transition for students coming from out-of-district placements back into BPS as well as an alternative to private day school placements.
Paul is in a combined 6 th – 7 th grade substantially separate class at AIP where there are five 6 th graders and two 7 th graders, including Paul, for at total of 7 students. There are two special education teachers for this class, Ms. Katz who teaches the subjects of English/Language Arts (ELA) and social studies; and Ms. Townsend who teaches the subjects of math and science. Both are certified special education teachers. There is also a behaviorist assigned to this class, Ms. Green, who has a bachelor’s degree, experience working with this population of children, and training from AIP. Although she may help a student with his/her schoolwork in class, the behaviorist’s responsibility is the behavioral, emotional and social well being and/or problems of the AIP students. Paul receives speech-language therapy from Ms. Bigham who is a licensed and ASHA certified speech-language pathologist. Paul receives 1:1 counseling from Mr. Reinert who is a licensed independent clinical social worker (LICSW), as well as separate group counseling with Mr. Reinert. Paul also receives occupational therapy. Paul is mainstreamed for all non-academic subjects such as physical education, art and health.
AIP’s behavioral management system involves the use of time-outs, individual behavioral contracts, and cooperative discipline. All AIP staff are trained in cooperative discipline, a curriculum that is specifically designed for managing classrooms. Time-outs occur in two forms-in-class time outs for lesser issues and out-of-class time outs for more significant issues. In either type of time-out, students must orally process/discuss the behavioral incident that led to the time-out with the in-class behaviorist on out-of-class behaviorist,4 as well as fill out a written incident/ process form. There is also discussion over how to deal with such issues/situations in the future. This process is designed to help students to understand and take responsibility for their actions. Individual behavioral contracts offer individualized incentives to students to achieve or maintain desired behaviors. Dr. Kilkenny and/or Mr. Reinert meet daily after school with the special education teachers (Mr. Katz and Ms. Townsend) to share information and concerns and to discuss students progress or lack thereof. On Fridays after school, they are joined by the in-class behaviorists (Ms. Green). On Mondays through Thursdays Ms. Green is participating in the therapeutic after school program which consists of a homework help component followed by an activities or group component.
Pursuant to the IEP service delivery grid, section C, Paul is scheduled to receive special education and related services as follows: the 5 academic subjects of reading, language, social studies, math and science each for 45 minutes per day or each subject for 3 hours 45 minutes per week; speech-language therapy for 45 minutes twice per week for 1 ½ hours per week; occupational therapy once per week for 45 minutes; behavioral-social-emotional services 45 minutes per day for 3 hours 45 minutes per week; and counseling once weekly for 45 minutes.
(See testimony, Katz; Kerwin; Bigham; Kilkenny; Reinert; Green; P-1, 4, 5, 6, 7, 8, 9, 10, 11, 47, 48, 49, 53, 55, 56, 65, 66, 67, 73, 74, 79, 80; S-1, 2, 3, 4, 5, 6, 7.)
PARENT’S PROPOSED PROGRAM
Parents propose that Paul be educated at Dearborn Academy (Dearborn). Dearborn is a MDOE approved private day school placement located in Arlington, MA. Dearborn has not accepted Paul. By agreement of the parties, BPS sent to Dearborn a referral package for Paul for informational purposes only. It is Dearborn’s practice to fully examine a referral package for a student and to interview a student only after a formal referral package and a funding commitment from the referring Local Education Authority (LEA). At this time Dearborn has done an initial review of Paul’s informational referral package and found him to be generally “in the ballpark”.5
Dearborn serves children with emotional, behavioral, and learning disorders from elementary-middle through high school. Dearborn employs a comprehensive, highly structured behavior management system with both incentives and consequences. The clinical program is woven into the daily fabric of the program. The range of emotional and behavioral disabilities includes depression, bipolar disorder, attention deficit disorder, conduct disorder and attachment disorder. Learning/academic problems include learning disabilities, language-based learning disabilities and non-verbal learning disabilities.
Class sizes are 8-10 students with a teacher and an aide. Teachers are either certified or on a certification waiver. Aides have at least a bachelors degree. Flexible groupings within language- based classrooms provide academic instructions at the appropriate level for each student. Students are homogeneously grouped based upon needs and skill levels. At the middle school level, 2 homerooms of 9 students each are paired up, i.e., 18 students to 4 staff (2 teachers and 2 aides). Within this group of 18 students, students are grouped, based upon skill levels, for the daily academic subjects of social studies, science, math and language arts.6 Social studies and science classes are usually 9 students each. Math and language arts are further broken down into smaller groups of 2-3-4 to 1 or even 1:1 if necessary because resource room teachers provide math and/or reading/language arts instruction in the resource room/learning center to students at lower skill levels who require more intensive remediation. Speech-language services by speech-language pathologists are provided via direct pull-out services as well as within the classroom in an inclusion model, usually within the social studies or science classes.
Dearborn has developed a specialization in reading utilizing the Wisnia-Kapp Reading Program as their main reading program. Peggy Radcliffe, Dearborn’s coordinator of reading, is a Wisnia-Kapp trainer throughout the state. Dearborn’s resource room/learning center is a blend of the reading teachers and speech-language pathologists. Elsa Abele, who recently retired as director of the communications disorders laboratory at Boston Univercity, serves as speech-language consultant and in-service trainer to Dearborn. Under her guidance Dearborn has developed a new approach to utilize language pragmatic interventions in counseling groups as well as speech-language groups to help students develop their social skills.
Dearborn’s behavioral management system utilizes redirections, warnings and time-outs. A separate staff, the milieu counselors/behaviorists (behaviorists), oversee the milieu, work with students who are having difficulty in the classroom by working with students in the timeout room to get them back on task and back into class. Behaviorists have at least a bachelors degree and/or have been trained by Dearborn/been at Dearborn for a long period of time. There is also individual and group counseling provided to students by masters level clinical social workers. Dearborn also utilizes a level/points system. There are 4 levels. Each student starts each week with 100 points. A student’s behavior determines the points a student loses or retains. The number of points a student has at the end of the week determines the level he will be on for the following week. The student’s level determines the privileges he enjoys or the restrictions that will be imposed upon him for that week.
(See testimony, Rossman; Doxley; P-50, 60, 61, 68, 69; S-8.)
FINDINGS AND CONCLUSIONS
It is undisputed by the parties and confirmed by the evidence presented that Paul is a child with special education needs as defined under state and federal statutes and regulations. The parties are also in substantial agreement regarding the nature and manifestations of Paul’s special education needs. The fundamental issues in dispute are listed under ISSUES IN DISPUTE , above.
Based upon 7 full days of oral testimony, the extensive written documentation introduced into evidence, and a review of the applicable law, I conclude that:
1. BPS’ proposed IEP for Paul in the AIP program is inappropriate to address his special education needs so as to provide him with FAPE in the least restrictive educational environment;
2. BPS is ordered to send normal referral packages with funding commitments to out of district day school programs, including Dearborn Academy, which may be appropriate to address Paul’s complex constellation of special education needs;
3. Parents are not entitled to additional compensatory services based upon the facts of this case.
My analysis follows.
I .
Paul is a student with a multiplicity of special education needs of long standing duration which interrelate with each other to form a highly complex educational profile. Paul has been extensively evaluated by both BPS and private, independent evaluators over the past 7 years. These evaluations have been remarkably consistent in documenting and diagnosing Paul’s learning, language, emotional, behavioral, and social difficulties, as well as in recommending the type of educational programming necessary to address Paul’s array of educational problems. (See PROFILE OF STUDENT , above.)
Based upon these comprehensive evaluations performed upon Paul over an extended period of time, I find that Paul has learning disabilities which include language-based learning disabilities and non verbal learning disabilities; both receptive and expressive language disorders/language impairments; and a mathematics disorder. Further, these evaluations demonstrate that Paul also has emotional, behavioral and social disabilities which include attention deficit hyperactivity disorder; attachment disorder; depression/anxiety/poor self esteem; and a disability of social awareness, social perception, and social interactional skills.
Because of his learning disabilities, language-based learning disabilities and math disorder, Paul has major problems with reading comprehension, written expression and all areas of math. Because of his receptive and expressive language disorders/impairments, Paul has major difficulties understanding and interpreting the language he receives as well as retrieving, formulating and expressing the language he wishes to utilize. Because of his non verbal learning disabilities, Paul has difficulties with visual, spatial and organizational skills. Because of his poor pragmatic language skills, poor non verbal learning skills, and poor social awareness/perceptual/interactional skills, Paul has problems interacting with peers, frequently not understanding or misunderstanding social cues often causing social dysfunction. Because of his anxiety, depression, low self esteem, poor coping strategies, and attachment disorder, Paul has problems with trust, anger, inhibition and suppression of feelings and emotions, vulnerability to stress arousal, inability to understand the perspective of others, inability to see how his behavior affects other, and an inability to take responsibility for his own behavior.
Each of the above-cited disabilities clearly impacts Paul. Taken together, all of these disabilities interrelate and interact with each other creating significant educational problems for Paul. As a result, all avenues of learning-oral, written, visual, and social/interactive/therapeutic- are seriously compromised for Paul.
Based upon the totality of evidence presented, as highlighted under PROFILE OF STUDENT above, I conclude that Paul requires a comprehensive special education program and placement which addresses all of his special education disabilities – language, learning, non verbal, behavioral, emotional and social – in a coordinated, consistent and cohesive manner in order for Paul to receive FAPE. Based upon the totality of the evidence presented, as highlighted under PROFILE OF STUDENT above, I further conclude that Paul requires a highly structured language- based program combined with a highly structured therapeutic milieu providing a fully integrated behavioral management system in order for Paul to receive FAPE.
I find that BPS’ AIP program does not provide Paul with FAPE based largely upon the testimony of Ms. Katz and Ms. Bigham and the report and testimony of Dr. Souweine. Ms. Katz, Paul’s ELA and social studies teacher as well as IEP liaison, testified that there are programs within BPS that are specifically designated as language-based programs but that the AIP program is not one of them. Ms. Katz also testified that she has never taught in a classroom that has been designated as a language-based classroom. (See testimony, Katz.) Ms. Bigham, Paul’s speech-language pathologist, testified that she told Paul’s father that AIP was not a language-based program; that it is not designated as a language-based learning disabilities program; and that it is specifically designed for children with emotional behavioral problems. Ms. Bigham described the differences between learning disabilities and language-based learning disabilities and noted that language-based learning disabled students are, in many ways, much more severely impaired than learning disabled students. Ms. Bigham also described the manifestations of language-based learning disabilities and non verbal learning disabilities and noted that the effect of having both of these disorders is very serious. (See testimony, Bigham.)
Ms. Katz testified that she utilizes the Renders/Writers Workshop Program for instruction with all of her students in her ELA class. Under this methodology the teacher guides the students and the students do a lot of self-directed learning and select books on their own grade level for independent reading. (See testimony, Katz.) Ms. Bigham testified in detail about the Readers/Writers Workshop Program. (See testimony, Bigham.) Ms. Bigham testified that, in her speech-language sessions with Paul, she utilizes Project Read with Paul because:
Well, all of his reports stated that he needs a multi-sensory sequential program that directly remediates his language issues and comprehension. According to his last testing it seemed to be the most delayed of his academic skills. And Project Read is a multi-sensory rule-based sequential program. (Tr. VII p. 50).
Ms. Bigham testified that Paul is a very complex child; that Paul is not going to self advocate during a lesson or pick up a book and read on his own; that Paul requires direct teaching; that he is not able to generalize from one situation to another; and that Paul’s metacognitive skills are very poor. Ms. Bigham also testified that she knows that Ms. Katz utilizes the Readers/Writers Workshop Program and does not use Project Read with Paul. Ms. Bigham also testified that Project Read would not best be paired with the Readers/Writers Workshop. (See testimony, Bigham).
Dr. Judith Souweine is a licensed psychologist who was retained by Parents to evaluate the appropriateness of Paul’ current IEP and placement in the AIP program. Dr. Souweine reviewed most of the evaluations summarized in PROFILE OF STUDENT , above; LPS program reports; Paul’s current IEP; and the AIP Handbook. She spoke with Father and Ms. Rosoff of LPS. She observed the AIP program and Paul in the AIP program from 7:30 A.M. to 1:30 P.M. on February 10, 2003 including all academic classes and lunch. She met with Paul’s AIP team to discuss Paul and his current program while the students were at art. Dr. Souweine promulgated her Program Evaluation on February 19, 2003 (P-2). Dr. Souweine reported a number of strengths in the AIP program. (See P-2 for AIP strengths.) Dr. Souweine also reported a number of weaknesses in the AIP program as follows (P-2 – The emphasis is Dr. Souweine’s, not the Hearing Officer’s):
Weaknesses of the program: The AIP program does not provide learning disability support throughout the school day. The AIP materials as well as the information provided by the staff clearly indicate that the goal of the program is to provide behavioral/social/emotional support to students who are unable to be maintained in the regular classroom. The program does not provide language-based instruction as detailed in numerous evaluation reports as necessary for [Paul]. Although there are some specific accommodations provided, the core instruction is not focused on providing structured ways to understand and produce oral and written language, nor does it provide a remedial approach to his mathematics difficulties. Rather it attempts to use the mainstream materials and books in a slower paced manner. It is this examiner’s impression that the mainstream curriculum is reduced as much as possible to a concrete level and there is relatively little in way of experiential, multi-sensory or hands-on learning. Discussion, role playing or simulation are not typical instructional formats. In many instances students read the text and answer factual questions upon completing the reading. The level of observed student engagement in the curriculum materials was low. With the exception of the Project Read reading comprehension instruction and the Lexia software, there were no other published remedial programs in use.
Dr. Souweine ended her Program Evaluation as follows (P-2 – Again, the emphasis is Dr. Souweine’s not the Hearing Officer’s):
In conclusion it is this examiner’s opinion that while the AIP program provides a strong behavioral program suitable to meet [Paul’s] needs in the social and behavioral realm, it does not simultaneously address his significant learning needs. It is unlikely, given the severity of his learning disabilities, that he will make sufficient academic progress in a program without a strong learning disability emphasis/orientation integrated throughout the class day.
I place substantial weight in the Program Evaluation and testimony of Dr. Souweine for a number of reasons. First, in addition to being a psychologist/neuropsychologist, she holds a masters degree in special education and has taught children with emotional disabilities and learning disabilities in both public and private settings (Amherst Public Schools; Hartford Public Schools;
Judge Baker Guidance Center). Second, she has worked for the last 15 years performing neuropsychological evaluations of children and working with individual children and families around the issues of learning disorders, emotional disorders and attentional problems. Third, she has served as consultant to a variety of public schools and private schools including Amherst Public Schools, Gill- Montague Public Schools, Hampshire Regional Schools and Eagle Mountain School. Fourth, she has provided in- service workshops in highly relevant areas to numerous public school districts in Massachusetts and other states, as well as a number of parent workshops. Fifth, she has appeared in BSEA hearings for both public school systems and parents with approximately a 50 – 50 breakdown. Sixth, this is her first experience with BPS so she brings a totally fresh perspective. (See P- 3; testimony, Souweine). I find Dr. Souweine’s testimony to be knowledgeable, candid, straightforward and without bias. Dr. Souweine’s evaluation succinctly synthesizes not only the many evaluations performed upon Paul, but also the strengths and weaknesses of the AIP program which took the parties 7 days of hearing to flesh out.
Ms. Kerwin, Assistant Program Director at BPS, testified that Paul requires a language-based program; that the conclusion of the team was that he requires a language-based therapeutic program; and that he needs a program that meets both his language-based needs and his emotional needs (testimony, Kerwin). Based upon the testimony of Ms. Katz, Ms. Bigham, Dr. Souweine and Dr. Souweine’s Program Evaluation, all referenced above, I conclude that AIP does not provide Paul with the language-based program that BPS acknowledge he requires and that his numerous evaluations over an extended period of time have recommended. (See PROFILE OF STUDENT , above.) The IEPs of the 6 other students in Paul’s AIP class clearly show that while all of the students have behavioral and emotional disabilities, only one other student is close to Paul’s instructional level and only two have language-based learning disabilities. Indeed, most of these AIP students are at or close to grade level while Paul, a 7 th grader, functions 3-4 years below grade level in all academic areas. (See testimony, Katz; Bigham; Souweine; P-47A – 47 G). Based upon the testimony of Ms. Katz and Ms. Bigham, Paul’s reading program in his ELA class and reading program in his speech-language therapy are not coordinated and are not even compatible. Further, Paul’s reading program in his ELA class is not a language-based, multi-sensory, rule-based, sequential program that would directly remediate his language issues and comprehension. (See testimony, Bigham; Katz).
LPS was able to address Paul’s language-based learning disabilities. A comparison of identical testing instruments utilized at CCSN-NEMC in January 2000 (P-40-Dr. Carra) when Paul was in a BPS program, and by BPS in March 2002 ( P-21- Dr. Antonelli) after Paul had been at LPS for approximately one year, indicates demonstrable progress in reading comprehension, listening comprehension and spelling. (See also, testimony, Rosoff.) Paul was terminated from LPS because of LPS’ inability to concomitantly address Paul’s behavioral, emotional and social disabilities (testimony, Rosoff). Similarly, while AIP may be able to address Paul’s behavioral and emotional disabilities, I conclude that AIP is not capable of addressing his language-based learning disabilities.
II.
Assistant BPS Program Director Kerwin testified:
We sat at a team meeting through for [Paul] and listed very specific recommendations, and there was only one place in all of Boston that I knew of to recommend – that also had a seat to recommend that would fulfill all of those things for [Paul] and it was the AIP program . Tr V p120-121. Emphasis added
Given my findings that the AIP program is inappropriate to address the multiplicity of Paul’s special education needs so as to provide him FAPE in the least restrictive educational environment; and given Ms. Kerwin’s testimony cited directly above; I order BPS to send normal referral packages with funding commitments to out of district day school programs, including Dearborn Academy, which may be appropriate to address Paul’s complex constellation of special education needs as specified in this DECISION .
Based upon the somewhat limited testimonial and documentary evidence presented, the Dearborn program appears to be an appropriate placement to address Paul’s special education needs. (See PARENTS’ PROPOSED PLACEMENT , above.) However, Dearborn has not fully examined Paul’s informational referral package; not interviewed Paul; not received a formal referral package/funding commitment; and not accepted Paul. (See testimony, Rossman; Doxley.) Dearborn may or may not accept Paul. Therefore, referrals must be sent to other potentially appropriate out of district placements as well so that Paul may be placed in an appropriate program without undue delay.
III.
Parents request an order for compensatory services from January 2003 – June 2003: 1) for the total number of hours of speech-language therapy services not received because the speech – language pathologist was providing Paul with reading comprehension services; and 2) for the hours of ELA or other courses listed in his IEP service delivery grid not received. I decline to do so based upon the facts of this case. Regarding #1, I find that the Project Read reading comprehension services provided to Paul by speech-language pathologist Bigham were appropriate remedial academic services while at AIP. (See Dr. Souweine’s Report – P-2; see also testimony, Bigham). Further, the reading/language goals on the IEP are not sufficiently specific to find Ms. Bigham’s reading comprehension/written language services to be precluded. Finally, Ms. Bigham testified regarding other speech-language areas she was addressing with Paul. Regarding #2, Paul’s IEP service delivery grid provided that he was to receive the subjects of reading and language each for 45 minutes per day or the equivalent of ELA services for 90 minutes per day (P-1; S-1). The schedules provided by BPS indicate that Paul actually received ELA services for 80 minutes per day (P-11-11c). Also, testimony indicated that because of speech-language therapy twice weekly, Paul usually missed 2 periods of ELA per week. Again, the services Paul received from the speech-language therapist were more appropriate than what he was missing from ELA. Second, Paul came back to BPS in January 2003 when service providers’ schedules were already set and Paul was given his speech-language therapy when there was an opening in Ms. Bigham’s schedule. Third, missing 10 minutes per day from a class that was not appropriate to address his language-based learning disabilities caused de minimus harm to Paul. Finally, I note that group counseling is not provided in the IEP service delivery grid. Yet Paul received group counseling with Mr. Reinert once per week and derived benefit from it (testimony, Reinert; Killenny; Kerwin; P-11-11c).
While I admonish BPS to be more careful in assuring that a student’s schedule conform more precisely to the service delivery grid on the IEP, I do not conclude that the facts of this case warrant compensatory services.
ORDER
1. BPS’ proposed IEP for Paul in the AIP program is inappropriate to address his special education needs so as to provide him with FAPE in the least restrictive educational environment.
2. BPS is ordered to send normal referral packages with funding commitments to out of district day school placements, including Dearborn Academy, which may be appropriate to address Paul’s complex constellation of special education needs.
3. Parents are not entitled to additional compensatory services based upon the facts of this case.
By the Hearing Officer,
___________________________
Raymond A. Oliver
Dated: September 15, 2003
Decision Summary
Case Name : IN RE: Paul
BSEA #: 03-0340
Date issued : September 15, 2003
Representation of Parties : Parents represented by attorney
School represented by attorney
Issues :
1. Does BPS’ proposed IEP for Paul at the AIP program in the Irving School appropriately address his special education needs so as to provide him with a free and appropriate public education (FAPE) in the least restrictive educational environment?
2. If not, what type of educational program/placement does Paul require to appropriately address his special education needs so as to provide him with FAPE in the least restrictive educational environment?
3. Is Paul entitled to compensatory services?
Facts : Paul is a 13 year old boy with a multiplicity of special education needs of long standing duration which interrelate with each other to form a highly complex educational profile. Paul has learning disabilities which include language-based learning disabilities and non verbal learning disabilities; both receptive and expressive language disorders/language impairments; and a mathematics disorder. Further, these evaluations demonstrate that Paul also has emotional, behavioral and social disabilities which include attention deficit hyperactivity disorder; attachment disorder; depression/anxiety/poor self esteem; and a disability of social awareness, social perception, and social interactional skills.
Holding : Paul requires a comprehensive special education program and placement which addresses all of his special education disabilities – language, learning, non verbal, behavioral, emotional and social – in a coordinated, consistent and cohesive manner in order for Paul to receive FAPE. Paul requires a highly structured language- based program combined with a highly structured therapeutic milieu providing a fully integrated behavioral management system in order for Paul to receive FAPE. BPS’ AIP program does not provide Paul with FAPE. BPS is ordered to send normal referral packages with funding commitments to out of district day school placements, including Dearborn Academy, which may be appropriate to address Paul’s complex constellation of special education needs. Parents are not entitled to additional compensatory services based upon the facts of this case.
Prevailing Party : Student
Hearing Officer : Raymond A. Oliver
1
Paul is a pseudonym chosen by the Hearing Officer to protect the privacy of the Student in publicly available documents.
2
By this time Paul had begun at LPS, a MDOE approved private day school placement for students with language-based learning disabilities.
3
AIP also runs several other programs within the Boston Public Schools and the City of Boston. (See testimony, Kilkenny.)
4
For out-of-class timeouts students go to a separate time-out room that is always staffed by a behaviorist.
5
It is noted that Dearborn did not wish to participate in this BSEA hearing. Parents chose not to call Dearborn witnesses and to submit general information about the Dearborn program. The two Dearborn witnesses who testified and provided more detailed information about the Dearborn program, potential class groupings and redacted profiles of students in these potential groupings appeared pursuant to a BPS subpoena duces tecum.
6
Additionally, students has 2 periods of physical education, 2 periods of shop, and 1 period of art per week in their homeroom groups.