Re: Boston Public Schools and John G. – BSEA #04-5381



<br /> Re: Boston Public Schools and John G. – BSEA #04-5381<br />

In Re: Boston Public Schools and John G1. BSEA #04-5381

DECISION

This decision2 is rendered 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 said statutes.

Hearing Officer Sandra Sherwood convened a hearing regarding the above-named case on June 24 and 25, 2004 in Malden MA. Those present for all or part of the proceedings were:

Mr. and Mrs. G. Parents

John Student

Pamela Coveney Attorney for J.G. and Parents

Cynthia Levine Shriver Clinical Service Corporation – Behavioral Specialist

Elizabeth Kurlan Boston Public Schools – Litigation Support

Yvette Robinson Boston Public Schools – Attorney

Andrea dos Santos Boston Public Schools – Law Clerk

Case Walker Boston Public Schools – Principal, Manning School

Aida Ramos Boston Public Schools – Assistant Program Director

Charles Martindale Boston Public Schools – Assistant Program Director

Cynthia Marchand Newton Public Schools – Principal, Franklin School

Kathleen Curran Newton Public Schools – Consulting Psychologist, Franklin School

Sheryl Cohn Newton Public Schools – Social Worker, Elementary Stabilization Program

Marisa Torcasio Newton Public Schools – Aide

The record of the hearing consists of Parent Exhibits 1 – 153 , School Exhibits 1 – 17, and approximately 7 hours of recorded testimony. At the request of the parties, and at Parents’ request for a further extension, the record remained open until July 19, 2004 for receipt of written closing arguments.

ISSUES

1. Whether Parents’ requested mainstreamed education including a 1:1 aide and academic modifications, as modified by Ms. Levine’s June 22, 2004 Behavior Intervention Plan, is calculated to provide John with a free appropriate public education in the least restrictive setting; if not,

2. Whether Boston Public Schools’ (BPS) proposed placement at the Manning School, implementing the Newton Public Schools’ (NPS) May of 2004 – February of 2005 IEP calling for a substantially separate highly structured and therapeutic placement, is calculated to provide John with a free appropriate public education in the least restrictive setting.

BPS’ POSITION

John’s combined behavioral, cognitive, and language deficits render him in need of a self-contained highly structured educational setting with small group learning, a detailed behavioral plan that can only be implemented in a small group setting, and a therapeutic component. BPS’ Manning School provides such a setting within the context of a regular public elementary school. John struggled unsuccessfully for several years in NPS’ mainstreamed setting. Parents are not persuasive that implementing Ms. Levine’s behavior intervention plan will render the mainstreamed placement any more promising.

PARENTS’ POSITION

John has a right to receive a mainstreamed education unless proven that such is not appropriate. BPS has no such proof. John did not succeed in NPS’ mainstreamed setting because NPS failed to provide a behavior intervention plan based on a functional behavioral assessment. Further, John’s aide had no previous experience as a full time 1:1 aide in a mainstreamed setting. With Ms. Levine’s proposed plan, John may be successful, and should be provided such opportunity. Only if such is not successful, should John attend a more restrictive self-contained setting.

STATEMENT OF THE FACTS

1. John is a ten-year old boy residing with his family in Boston. His diagnoses are oppositional defiant disorder (ODD) and borderline IQ. (S-1) His language and academic skills are reported to be several years below expectation for his age and grade. (S-2A) Further, John carries a diagnosis4 of a moderate to severe attentional deficit with hyperactivity disorder (ADHD). (S-2B) However, after a six-week in-patient stay at the Walker Acute Residential Treatment Program (Walker), Walker’s psychiatrist ruled out such diagnosis, asserting that instead, he may have anxiety and anger issues compounded by his cognitive delays. (S-1 at page 10) John exhibits behaviors that have significantly interfered with his learning and his social/emotional development. He exhibits strengths in his art, music, athletics and outdoor activities, and is enthusiastic, engaging, humorous, and friendly. (S-7) At home, he plays well with his two younger siblings and shows none of the aggressive behaviors seen at school. (Mother)

2. Since kindergarten, John has attended NPS as a METCO student. In June of his first grade year, John exhibited behaviors that significantly interfered with his learning. He had difficulty sitting still, focusing, following classroom, and he had wide swings between being jubilant and then angry. Further, John displayed unsafe behaviors, including running out of the classroom and the school building. This led NPS to place John in its short-term substantially separate Elementary Stabilization Program (ESP) in June of 2002 (the end of his first grade). This program provided a therapeutic, behavioral and educational support within a small classroom setting. (Marchand)

3. In July of 2002, John underwent a neuropsychological evaluation at Children’s Hospital. Dr. Kuncaitis reported cognitive abilities in the borderline range, solidly average potential, and a moderate to severe Attention Deficit Hyperactivity Disorder (ADHD) with both Inattentive and Impulsive features. He had difficulty in determining whether John had a learning disability, or whether his diminished capacity to sustain effort and to stay motivated affected his work. He stated that John requires structure and support in learning how to modulate his inattention, foster his motivation, and focus his work within the traditional classroom. Dr. Kuncaitis recommended a continued highly structured and supportive educational setting with very small class sizes, strong behavioral management and therapeutic components, and high academic goals with individualized instruction. He also recommended that the behavioral management program be continued into the home with clear and open communication between school and parents. Finally, he recommended that the therapeutic support be part of his classroom. (S-2B)

4. In second grade, John continued his education at ESP until January 10, 2003. (S-6, S-5). In that setting, a 1:1 aide provided academic and behavioral support. His behavioral plan targeted being respectful, following directions, keeping his body safe, staying in the room, and completing work. (S-13A) He initially responded positively to this small, structured, therapeutic classroom. Gradually, he attended the mainstreamed classes. However, as the visits in the mainstream lengthened, his behavioral difficulties increased, i.e., not following direction, running around the school, throwing things, being aggressive towards adults, repeatedly stating he wanted to hurt himself. Staff found it difficult motivating him. NPS stopped the mainstreamed visits. His teacher surmised that the academics were difficult for him, and his way of coping with such challenges was to act out. His ESP social worker and teacher stated that “he is currently presenting as if he will need a more long-term small, structured classroom setting”. They stated that he needed support to complete his work, and that much of the support was towards reviewing directions and helping him to stay focused and on task. He was enthusiastic about all hands-on arts, crafts, and science-related lessons5 . In such areas, he would put in much effort. In their opinion, as he learned not to be afraid of making mistakes, he would enjoy his creative work and succeed. (S-5)

John returned to the second grade mainstreamed program in January of 2003 pursuant to an accepted 12/19/2002 – 12/19/2003 IEP calling for a full time aide as well as LD/RR special education staff in the mainstreamed setting, pullout special education LD/RR services 4 times per week, and social/emotional services one time per week. (S-10)

John’s progress reports reflected the need for frequent teacher support but also noted his progress with assistance. Further, they reflected a rather positive experience, in that he developed some friendships, adjusted to the new environment and classroom routine, and worked on socializing during appropriate times and using academic time wisely. The TEAM decreased the number of “break tags” (student initiated breaks from work) as he grew more successful. He began the system on an as needed basis, then decreased to a limit of three times a day, and finally to few if any breaks. His behavior was unpredictable, however, for he often overreacted to minor incidences. “He continues to work hard at following the classroom and school expectations.” (S-14D)

5. John’s third grade year was a difficult one. He was mainstreamed in a class of 21 students and continued to receive the special education supports pursuant to the December of 2002 to December of 2003 IEP. His behavioral plan targeted using appropriate language, following adult directions, and respecting other people. (S13B) His IEP behavioral objectives targeted expressing wants and needs without becoming aggressive, following classroom rules, and remaining in the class/requesting breaks. (S-10) Ms. Torcasio served as his third grade 1:1 aide responsible for implementing his behavioral plan as well as his academic modifications. Dr. Curran6 (NPS’ consulting psychologist) as well as Ms. Woodruff (NPS’ inclusion facilitator) worked closely with John’s teacher, aide, and school principal. They observed John several times per week. They modified his academic work, they reduced the amount of work, and they reduced the level of the work. They coordinated his work with the learning center. They provided frequent breaks. They implemented his behavioral plan including the earning of rewards. They modified it throughout the year while attempting to understand the precursors to John’s behavioral outbursts. (Curran, Marchand)

John’s first term progress report shows that he worked very hard; that though reading below grade level, when focused, he applied reading strategies, and worked on reading independently for 15 minutes. He benefited from the structured reading and direct instruction, and was able to read fluently early second grade stories. His behavior continued to negatively impact his learning despite his behavior plan for controlling his anger and following classroom rules and teacher directions. He took breaks every 10 –15 minutes. (S-14A) He continued to struggle with coping with frustration and expressing himself in a calm manner. He worked hard to take breaks when he felt frustrated or upset by using a break card system. He used his behavior chart to keep track of his successes. (S-14B, P-12)

By the middle of his 3 rd grade year, John expressed suicidal ideations. He tried to jump out of a window and poked himself with scissors (albeit blunt ones). He also hit his head against a table, pushed and kicked peers (occasionally sending them to the nurse’s office) and harmed a staff member. He was out of the classroom up to 50% of the time, spending as much as 90 minutes at a time in a time out room in order to calm down. On occasion, he needed to be restrained. (Torcasio, Curran)

On December 4, 2003, due to increased oppositional and defiant behavior and concern regarding suicidality, John was admitted to the Walker Acute Residential Treatment program (Walker) where he stayed until his January 9, 2004 discharge. (S-1). After working with John for these six weeks, the Walker staff recommended a structured, supportive environment with clear and consistent limits and directions, with identified rewards tied to his interest/motivation, with clear, understandable and non-accusatory language; and with time away opportunities when angry. They recommended individual therapy “focusing on his difficulties with decision-making and with getting his needs met in appropriate ways and outlining alternative coping strategies would likely be most helpful for John”. Such should be provided in a familiar setting such as school “as he will likely feel more in control and less like he is being forced to attend”. Id at 7-8. Finally, Walker recommended family therapy regarding parenting a child with behavioral problems. Walker also found that John responds well to systems with clear and consistent system of rewards and consequences, and recommended that school and parents work closely together to develop a behavior management plan. NPS and Walker staff agreed that John should return to NPS’ Franklin School and that a complex behavior plan would be put in place. (S-1)

In January, John also underwent a speech/language evaluation at Childrens’ Hospital. The evaluator reported his substantial receptive and expressive language deficits, but noted that John’s reduced attention and motivation/behavior may have negatively affected his test performance.7 The evaluator recommended speech/language therapy, testing for attentional concerns and a re-evaluation if John begins to take medication for attentional concerns, and a hearing evaluation. Finally, she recommended educational testing for reading and writing, deeming him to be “at high risk for reading and other learning disabilities given his attention and language concerns.” (S-2A)

On or about January 9 2004, John returned to his mainstreamed program wherein the staff worked with Walker in developing and refining John’s behavior plan. (S13C, Curran, Marchand) Dr. Curran, Ms. Marchand and the teacher met at least weekly to review John’s progress and to refine their responses to his behavior. Despite the staff’s intensive work, John’s second term was not successful. He was resistant to his aide’s help, for he did not want to be stigmatized and wanted to work independently. (Torcasio, Curran, Marchand) He continued to display behavioral problems. John was suspended on February 9, March 25 and again on May 3, 2004 for disruptive/violent behavior. (P-4, P-5, P-7) By April, at the advice of NPS’ behavioral specialist, the staff nearly stopped any academic expectations of John and provided more modifications, with the hope that his behaviors would improve. For example, John worked only as long as he wanted to (for instance, he would read for 10 – 15 minutes rather than the expected 40 minutes), and decided what work he would do (for instance, he would refuse to complete his math work because he knew it was different from his peers’ work). At Parents’ request, his behavioral plan was stopped, for according to them, “it set him off”. John’s behavior did in fact improve, however, the smallest things could set him off, causing outbursts and non-compliance. During this time, his disruptive behavior decreased to approximately twice per week, and time out periods were not necessary. (Torcasio)

6. In February of 2004 of John’s third grade year, NPS began convening its TEAM. It developed several IEPs culminating in the 5/12/’04 – 2/2/’04 IEP, each calling for a substantially separate placement with a small group therapeutic and behaviorally oriented setting including speech/language services (3 x 30 minutes weekly). (S-9, S-8, S-7) TEAM members expressed their concern with his increasingly aggressive and oppositional behaviors and their impact on his ability to access the curriculum. The IEP’s vision statement called for a small self-contained classroom for students with language based deficits, along side students with similar profiles, and a strong behavioral component. (S-7, P-1) Because NPS asserted that it had no such placement, NPS asserted that BPS must be responsible for providing John with such program.

On March 11, 2004, John’s psychiatrist from Walker expressed her concern that NPS was recommending a more restrictive educational placement. In her opinion, John’s behavior did not warrant this, and in fact, his behavior had improved over the previous month. She opined that a therapeutic school could be damaging in that John may mimic his peers’ inappropriate/dangerous behaviors. Further, she opined that John needs a rich academic environment, and a therapeutic school may focus more on therapeutic issues and less on academics. (P-6)

On March 23, 2004, Parents rejected NPS’ IEP, asserting that John should continue in NPS’ mainstreamed setting. (S-8)

7. In May of 2004, at Parents’ request, Cynthia Levine of the Shriver Center conducted a functional behavioral assessment.8 She observed John in his school environment for approximately three hours, and based on this, collected data regarding any aggressive behavior, not following directions, and using inappropriate language and disrupting others.

8. By mid June, Parents decided that NPS was not the right setting for John, and therefore withdrew him from the METCO program. As they are residents of Boston, it is now Boston that is responsible for John’s education

9. On June 22, 2004, Ms. Levine submitted her findings and her recommended behavioral plan based on these findings. Parents then provided this to Boston and to the Hearing Officer. Given that it was submitted two days prior to the BSEA hearing, Boston did not convene a TEAM to consider it. Her report delineated antecedents to John’s behavior, including working for seven minutes or more, being in unstructured situations (including waiting for a task to begin), and being given coursework that is different from his classmates. She found consequences for such behavior included receiving verbal attention, obtaining assistance, interacting with peers and staff, and avoiding tasks. Inappropriate behaviors may occur when he is put on the spot, when waiting, and when in unstructured settings. Her behavioral plan based on these findings addressed 16 areas regarding his activities and schedules, choices, giving directions, taking a break/asking for help, praise/positive feedback, expressing emotions, social opportunities, participation in regular education, adult supervision, therapeutic components, inappropriate language and behaviors, hitting/kicking, and data collection. Ms. Levine recommended that John’s activities and schedules should allow for alternating between active and inactive lessons, that he should be offered a break every thirty minutes, and two-minute breaks at his desk, as needed. During unstructured times, staff should engage him in conversation. While participating in regular education setting, a) staff should ensure that John is an active, equal and valued participant across the school environment, b) schoolwork should be age appropriate and at John’s ability level, and c) course work should be arranged so as to look the same as that of his classmates. Regular education staff should provide directions directly to John so as to minimize the need for continuous 1:1 adult input. Ms. Levine also recommended that when John uses inappropriate language, an adult should make a short statement that the language is unacceptable, and should make no further conversation. If disruptive, (such as not doing his work), she recommended that staff use a Three-Step Hierarchy, telling John that his language/behavior is inappropriate, providing him with a constructive option, then refraining from further conversation for three minutes. After repeating this process twice (if necessary), an adult should wait 6 minutes before repeating the three minute waits. If hitting or kicking, an adult should block any hits and stand between John and other students, and should monitor his/her proximity to John so as to minimize the likelihood of being hit. If his behavior persists, the children should leave the room. Staff should use restraints only if he is a danger to himself or others and blocking is insufficient. (P-15)

10. Boston maintains NPS’ position that its IEP calling for the substantially separate small group educational setting is reasonably calculated to provide John with a free and appropriate public education. However, Parents continue to assert that John’s education should be in the mainstreamed setting. Parents acknowledge that John’s third grade experience was unsuccessful. However, they assert that NPS’ failure to conduct a formal functional behavioral assessment on which to base a behavioral plan contributed to John’s unsuccessful year. They assert that Ms. Levine’s behavioral plan provides sufficient hope for success such that it should be tried before placing John in a more restrictive setting. Parents acknowledge John’s cognitive and speech delays and recognize that his education must be modified to accommodate his skill levels. However, they do not see the behaviors described by NPS in their home. He is not a bully, he plays well with neighborhood children, he has not threatened to hurt himself, and he does not use foul language. In their opinion, John’s behavioral problems at school began after he entered the ESP program and was exposed to poor role models with severe behavioral problems. Parents are open to the possibility of John’s repeating his third grade year so as to bring his skills up to grade level. (Mother)

11. Based on the opinions and recommendations of NPS staff, BPS asserts that even if Ms. Levine’s behavioral plan is implemented in a mainstreamed setting, such setting is not reasonably calculated to provide John with a free and appropriate public education. Accordingly, BPS is prepared to place John in a substantially separate class, and offers one such option at the Manning School’s Learning Adaptive Behavior program (LAB). The Manning School is an elementary school with five LAB classes (approximately 42 students in K-2, 2 nd , 3 rd , 4 th , and 5 th grade classes), and six mainstreamed classes. The 4 th grade LAB class has seven or eight students with a special needs teacher and an aide. The LAB program provides highly structured behavioral as well as therapeutic components. Further, because the school is small, flexibility is allowed in order to address the needs of its students. The teachers are trained in behavioral techniques and restraints. The class uses a point system with individualized contracts, positive rewards (including intrinsic rewards), time out, etc. The therapeutic component is overseen by the clinical coordinator who trains and supervises the aides. The students all have language based deficits; approximately four or five of them have grade level skills, and four have skills approximately two years below grade level. The speech/language therapist either consults or provides direct speech/language services as needed. In fourth grade, the regular education and special education classes (29 students) are combined for social studies, science, and math. Such includes collaborative work on projects. The LAB program stresses the goal of mainstreaming for its students. (Walker)

12. Parents reject BPS’ proposed placement. They assert first, that it is too restrictive, for with Ms. Levine’s behavioral plan, they believe that John can learn in the mainstreamed setting. Further, they believe that if placed in the proposed special education setting, John will only mimic bad behaviors from the other children. As Mother stated, she wants John to grow up to be a productive young man, and in her opinion, such will not happen if he is placed in the proposed special education class. (Mother)

FINDINGS AND CONCLUSIONS

I find that Parents’ proposed mainstreamed program including a 1:1 aide and modified academics, as modified by Ms. Levine’s behavioral plan, is not reasonably calculated to provide John with an appropriate educational plan. Rather, John requires the more restrictive small group special education setting with behavioral programming, therapeutic supports, and an academic program geared to his academic and language skill levels. He requires a setting with peers of similar academic and language based deficits. Thus, Boston is correct in its decision to implement NPS’ May of 2004 – February of 2005 IEP. However, because its TEAM has not yet reviewed Ms. Levine’s functional behavioral assessment and her recommended behavioral plan, Boston shall convene a TEAM to address her recommendations as they apply to the special education setting. Further, I find that neither party specifically addressed John’s ability to handle mainstreamed non-academics while enrolled in the small group special education class. I note that John excelled in these areas, raising the possibility that mainstreaming in such areas is the least restrictive appropriate setting. Finally, Boston failed to address the appropriateness for John of the combined fourth grade LAB and regular education classes for social studies, science, and math. Accordingly, Boston shall convene its TEAM prior to the beginning of this school year, in order to address a) Ms. Levine’s report; b) the combined regular education – special education classes for social studies, science, and math; and c) mainstreaming John with a 1:1 aide and a behavioral plan for his non-academics such as art, music, and gym. Given the presumption in favor of the less restrictive setting until such is deemed inappropriate, John shall be offered mainstreamed non-academics with the inclusion of a 1:1 aide and behavioral plan. Further, if at the Manning School, John shall join his classmates for the joint social studies, science, and math classes. My reasoning follows.

Parents accurately rely on John’s federally mandated right to receive – and Boston’s obligation to provide – an appropriate education in the least restrictive setting. Accordingly, this analysis starts with a look as to whether Boston can provide him with an appropriate education in a mainstreamed setting. One might quickly conclude that he cannot, for John had such difficulty in the mainstreamed setting since first grade, and despite the extensive measures taken to modify John’s third grade mainstreamed setting, his third grade experience, by both parties’ account, was unsuccessful both from a behavioral stand point and an academic standpoint. However, given the intense belief on Parents’ part that further modifications may render the mainstreamed setting appropriate, a most careful scrutiny is called for. Will Ms. Levine’s behavior plan implemented in the mainstreamed setting make a difference? Will an aide who is more experienced than John’s third grade aide, offer more hope for a successful mainstreamed program? How significant is it that Walker’s psychiatrist disagreed (in March of 2004) with NPS’ proposed substantially separate special education setting? How significant is it that John’s behavior improved when NPS reduced or eliminated the academic expectations of John and stopped implementing his behavioral plan? Would John’s repeating third grade increase the chances of success in the mainstreamed setting?

John’s need for intensive interventions resulting from behavioral, emotional, and academic difficulties have persisted since his first grade year. By June of his first grade year, NPS placed him in its Emergency Stabilization Program. For the first half of his second grade year, John continued in this placement. (S-5) By December of his third grade year, John required a month’s stay at Walker’s Acute Residential Treatment Program. (S-1) Since John’s second grade year, small group highly structured educational settings have been recommended for John. In January of 2003, the ESP staff stated that he presented as needing such. (S-5) In July of 2003, Dr. Kuncaitis recommended such. (S-2B) By February of John’s third grade year, the NPS staff working with John concluded unequivocally that John was unable to make educational progress in a mainstreamed setting, even with a 1:1 aide, modified academic work, and a behavioral plan. (S-9) The staff’s opinion has not changed, despite Ms. Levine’s functional behavioral assessment and her newly proposed behavioral plan. This opinion is based on the staff’s several years of mainstreamed experiences with him, including significant involvement of an inclusion facilitator, at least weekly meetings with a highly experienced consulting psychologist, consultation with Walker’s psychiatrist as well as a behavioral consultant, and a 1:1 aide implementing behavioral plans. (Marchand) John’s sensitivity to being treated differently from his peers interfered with his ability to benefit from his 1:1 aide as well as his ability to work on academic work modified to his needs. (Torcasio) Yet without such support and modifications, John can not benefit from the mainstreamed academics. Further, even with the modifications of the academic work, his language and cognitive deficits rendered the mainstreamed academic environment too stressful for him, for he reacted to any limit setting. (Curran, Torcasio, Marchand)

Dr. Curran’s expertise coupled with her experience with John offers significant strength to Boston’s position. She is a PhD level psychologist with extensive experience in evaluating students as well as consulting with parents and schools regarding the implementation of behavior programs in the mainstreamed setting. She has extensive experience working with John in his 2 nd grade small group, supervising his 3 rd grade small group, working with him in crisis, observing him weekly, and consulting with the Franklin School principal, teachers, and inclusion facilitator. She is persuasive that NPS worked intensively attempting to address John’s behavioral/emotional needs in the mainstreamed setting, and that the mainstreamed setting has not and cannot offer him sufficient opportunities for academic, behavioral and emotional success, but rather offers him opportunities for emotional and behavioral upsets as well as academic and behavioral failures. He was unable to focus on his work, resistant to assistance, prone to behavioral outbursts, and unable to accept limits, and as a result, made little if any academic or behavioral progress in his third grade. She stressed that his emotional/behavioral deficits are compounded by language processing, memory, and retrieval deficits, and that this makes it more difficult for him to handle a mainstreamed setting. Dr. Curran is persuasive that Ms. Levine’s proposed mainstreamed setting with a behavioral plan would produce no better results. It is true that NPS did not conduct a formal functional behavioral assessment. However, NPS did consult with Walker, and did focus intensely over a long period of time, trying to find the precursors to his behavior. Further, in her opinion, NPS has been implementing many of the very strategies recommended by Ms. Levine. That is, for example, the staff may not have provided him with choices every 15 minutes; they may not have provided him with a box of items that provide sensory input; they may not have provided positive verbal feedback every 15 minutes; and they may not have implemented the 3-step prompt hierarchy9 . Surely, however, choices were offered to him and positive feedback was frequently provided. Further, albeit on an informal basis, NPS implemented the concepts of the 3-step prompt hierarchy. Indeed, Dr. Curran is persuasive that Ms. Levine’s recommended behavioral plan fails to offer hope for significant change in the mainstreamed setting. (Curran)

Ms. Levine is unpersuasive that her behavioral plan, albeit a thorough plan, will render next year’s mainstreamed experience more successful than John’s third grade experience. First, her opinion is based on significantly less information than are the opinions of Dr. Curran, Ms. Marchand, and Ms. Torcasio. She had reviewed his record, had observed him for approximately three hours (during which John had no major incidents), had interviewed NPS staff, and had collected data over a short time period. (Levine) In contrast, Dr. Curran and Ms. Marchand have several years’ experience working with him and consulting staff regarding his behavioral problems, and Ms. Torcasio has a years’ full time work with him. (Curran, Marchand, Torcasio) Secondly, although Ms. Levine comes to this task with significant training (masters degree in special education and certified as a school social worker) and experience with inclusion settings and behavioral plans, Dr. Curran likewise comes to this task with significant training and experience. (See page 10 above.) (Levine, Curran, P-14, S-17E) Thus, although each offers significant expertise, Dr. Curran’s intensive involvement with John and the NPS staff over several years puts her in a more credible position when she testifies unequivocally that John’s needs can not be met in a mainstreamed setting. Third, a close look at Ms. Levine’s plan (P-15), Walker’s report (S-1), the 2 nd and 3 rd grade behavioral plans and behavioral objectives (S-10, S-13A, B, C), and Dr. Curran’s, Ms. Marchand’s, and Ms. Torcasio’s testimonies, reveals that many of Ms. Levine’s findings and recommendations are not new, but have been made previously by Walker or NPS staff. For instance, they may not have refined their understanding of his seven-minute work limit, but they surely recognized his need for requesting breaks. Similarly, they recognized his need for structure, and his sensitivity to treatment different than given to his peers. There is no indication that these previous findings were not taken in to account in attempting to respond to his behavioral and emotional needs. Further, given the level of expertise and ongoing attempts to find antecedents to his negative behaviors, Dr. Curran, Ms. Marchand and Ms. Torcasio are persuasive that they have indeed addressed many of those concerns through their behavioral plans, individualized scheduling, providing choices, giving directions, allowing for breaks, positive feedback, etc.. (Curran, Torcasio, S-13A, B, C)

Even if Ms. Levine were persuasive that her functional behavioral assessment offered a significantly new understanding of John’s behavioral needs, she is not persuasive that implementing her recommendations would turn things around, for significant issues would remain. First, John has repeatedly reacted to different treatment than given to his peers. Dr. Curran and Ms. Marchand found this to be true, and Ms. Torcasio found this to be a pervasive theme, despite constant attempts to diminish or mask the different treatment. Conversely, while at Walker, his psychiatrist specifically noted his resistance to therapy until he was told that all the students receive therapy. Second, given this sensitivity to different treatment (and more willingness when treated the same), he resists help from his 1:1 aide and resists modified classwork. (Torcasio) Yet any mainstreamed setting would necessarily include a 1:1 aide and modified classwork. Finally, in the mainstreamed setting, John would be under significant stress, for his inability to compare favorably to his peers, given his lower cognitive, academic, and language skills than his peers’, is stressful for him. (Curran, Marchand, Torcasio) It is time to acknowledge John’s need for learning in a setting with peers similar to him, his need for a high degree of structure that is part of the normal class routine rather than specifically applicable to him, his need for class teaching at his academic and language level rather than supplemental teaching by his aide, his need for staff with more expertise in teaching and working with students such as him, and finally, his desperate need for more successful experiences. For this reason, Ms. Levine’s opinion is not persuasive.

Having addressed the impact of Ms. Levine’s behavioral plan, several lingering concerns remain. None of these concerns, however, lessen the conclusion that a mainstreamed setting cannot provide for John’s needs. One might conjecture that an aide more experienced than Ms. Torcasio in working with students with John’s profile, might improve John’s performance, however there is little in the record supporting such conclusion. For instance, repeatedly, witnesses mentioned John’s sensitivity to being treated differently and resistance to Ms. Torcasio’s help – yet no one suggested that Ms. Torcasio did anything wrong. The second concern is that Walker’s psychiatrist disagreed with NPS’ decision to place John in a more restrictive setting. (P-6) Though her letter is clear, it is given little weight, for a) without testimony from the psychiatrist, her letter lacks the scrutiny that comes from cross-examination; and b) it was written in March, and therefore she could not take in to consideration all that transpired during the remaining school year. A third concern is that John’s behavior in fact improved after NPS reduced and sometimes eliminated any academic expectations. NPS staff convincingly opined that this change may have improved his behavior, but it was at the expense of his making any academic gains or in developing behavioral skills. (Curran, Torcasio, Marchand) Parents offered nothing to dispute this. Finally, Mother stated her openness to John’s repeating his third grade in order that he bring his academic skills to grade level. (Mother) Such a move may indeed alleviate some of the academic pressure and allow for more successful experiences. However, there is nothing in the record indicating that even if this were to occur, that the mainstreamed setting would be appropriate for him. The many issues regarding his sensitivity to different treatment, regarding his need for a highly structured setting, regarding his need for a therapeutic setting would remain. Accordingly, Mother’s suggestion does not impact the outcome of this decision.

In concluding that John cannot benefit from the mainstreamed educational setting, it is apparent that he requires and will benefit from a small group special education setting with peers of similar skills and deficits. In such setting, the curriculum would be geared to his as well as his peers’ academic, language, and behavioral needs. As his psychiatrist stated at Walker, he responds particularly well when he realizes that his program is the same as his peers’. (S-1 at page 7) Thus, his need for close interaction with adults would be no different that his peers’. A highly structured setting would be integral to the program, and his treatment would be no different than his peers’.

Boston’s proposed placement at the Manning School’s LAB program is reasonably calculated to provide John with the appropriate educational setting. It offers the highly structured behavioral and therapeutic setting, and it offers peers with academic and language skills at or slightly higher than John’s. Further, it offers opportunities for learning with the mainstreamed students, not in a mainstreamed setting, but rather, in a combining of the regular education and LAB classes. Finally, its clear bent towards preparing its students for mainstreaming offers John significant opportunities towards that goal. Although Mother stated that she believed the peers were poor role models for John, the record lacks any specificity on this issue to support her claim. It is true that the students have behavioral and emotional problems, but that is the expected peer grouping in a special education class offering the behavioral and therapeutic components that John requires. (Walker) I take note of Mother’s deep concern that her son not be trapped in a “going nowhere” environment. I am persuaded by Ms. Walker’s testimony that at the Manning School, John will have an opportunity to make progress in a way that he has not yet done so. I am persuaded by Dr. Curran, Ms. Marchand, and Ms. Torcasio of the importance in developing his social/emotional skills at this time in his educational career. However, to develop Mother’s trust that this program offers John with opportunities for success and for positive role models, it is important that Boston ensure Parents’ close involvement. Parents always retain the right to request a reconvening of the TEAM should they believe that the progress reports warrant a revisiting of the issue of mainstreaming opportunities.

ORDER

Parents shall enroll John in the Boston Public Schools. Boston shall implement NPS’ May of 2004 – February of 2005 IEP calling for a small group highly structured special education program with strong behavioral and therapeutic components as well as peers of similar academic and language skills / deficits. Boston shall convene a TEAM to address Ms.Levine’s June 22, 2004 report, reviewing its recommendations as they apply to John’s special education and potentially mainstreamed program. Further, the TEAM shall consider the appropriateness of – and/or the need for modifications in – a) the combined fourth grade LAB and regular education class for social studies, science, and math, and b) mainstreamed non-academics. Pending resolution of the mainstreaming issue, Boston shall provide mainstreamed non-academics with the addition of a 1:1 aide and a behavioral plan, and if at the Manning School, the combined classes. If the parties are unable to agree on this specific mainstreaming issue, they may seek assistance of the BSEA.

By the Hearing Officer,

___________________________

July 29, 2004


1

“John ” is a pseudonym to protect the privacy of the student in publicly available documents.


2

Originally, Newton Public Schools filed an appeal against Parents and Boston Public Schools (BSEA #04-3903). However, subsequent to Parents’ withdrawal of their son from the Newton Public Schools, Newton withdrew its hearing request, and Boston filed this case against Parents.


3

Parents submitted their exhibits as Student Exhibits S-1 – S-15, but they are herein referred to as Parent Exhibits P-1 – P-15.


4

Dr. Kuncaitis, Neuropsychologist, diagnosed the ADHD in July of 2002.


5

It would appear that the arts, crafts, and science-related lessons were in the special education setting, however the record is not explicit on this matter.


6

Dr. Curran is a PhD level psychologist who has served since 1987 as the clinical supervisor and coordinator of mental health services at North Shore Children’s Hospital. She has extensive experience in evaluating students as well as consulting with parents and schools regarding students’ emotional/behavioral needs and the implementation of behavior programs in the mainstreamed setting. (S-17E)


7

At age 10, his test results were as follows:

Peabody Picture Vocabulary Test – Third Edition – 6 yr. 6 mos; 3 rd %.

Expressive One-Word Picture Vocabulary Test – 2000 Edition – 6 yr. 3 mos; 5 th %.

Clinical Evaluation of Language Fundamentals- Fourth Edition

Concepts and Following Directions < 7 yr.; 0.1 %

Recalling Sentences – 5 yr. 8 mos; 2 nd %.

Formulated Sentences – < 7 yr.; 2 nd %.

Word Classes – Receptive – 7 yr. 2 mos; 9 th %

Word Classes – Expressive – 6 yr. 9 mos; 2 nd %

Understanding Spoken Paragraphs – 1st %.


8

Ms. Levine has a masters degree in special education and is certified as a school adjustment counselor/school social worker. Since 1997, she continues to be a behavioral consultant at the Shriver Clinical Services Corporation where she consults to school districts, agency staff, and family members regarding inclusion; she develops and consults regarding behavior plans based on functional assessments. Since 2000, she also continues as an adjunct faculty member at Lesley University, where she develops and implements graduate courses in special education and in inclusion. For two years (2000 – 2002), she coordinated an Inclusion Pilot Project with ARC of Northern Bristol County, focusing on inclusion of students with mental retardation and or severe disabilities. For three years (1994 – 1997), she served as the inclusion coordinator at the Ayer Public Schools. (P-14)


9

Dr. Curran stated that NPS did not provide the therapeutic recommendation, however, John received counseling outside of the public school. (Curran)


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