Re: Malden Public Schools – BSEA #04-3258



<br /> Re: Malden Public Schools – BSEA #04-3258<br />

COMMONWEALTH OF MASSACHUSETTS

SPECIAL EDUCATION APPEALS

In Re: Malden Public Schools BSEA #04-3258

DECISION

This decision is issued pursuant to 20 USC Sec. 1400 et seq. (Individuals with Disabilities Education Act), 29 USC Sec. 794 (Section 504 of the Rehabilitation Act); MGL c. 71B (the Massachusetts special education statute; “Chapter 766”); MGL c. 30A (the Massachusetts Administrative Procedures Act), and the regulations promulgated under these statutes.

On February 6, 2004, Guardian filed a hearing request with the Bureau of Special Education Appeals (BSEA) alleging that Student was in a temporary Malden Public Schools placement while awaiting an outside placement previously agreed to by Malden, and had not had an IEP since November 2003. On February 11, 2004, Malden responded that Student was appropriately placed and was being served on an IEP.

A pre-hearing conference held on March 15, 2004. The Notice of Hearing issued after the conference provided that the sole issue for hearing would be whether the Student’s then-current IEP and placement met the “stay put” requirements of the IDEA and Chapter 766.

On March 25, 2004, Malden filed a Motion to Dismiss for Guardian’s Failure to State a Claim Upon Which Relief Can be Granted . The Motion was denied without prejudice on April 1, 2004.

A hearing on the merits was held on April 8, 29, and 30 and June 10, 2004, at the office of the BSEA in Malden, MA at which each party presented documentary evidence and examined and cross-examined witnesses.

Those present for all or part of the proceeding were:

Student’s guardian1

Madeline Berube Advocate for guardian

Jean O’Neill Team Chair, Salemwood School, Malden

John Aquino Teacher, Salemwood School, Malden

Susan Nestor Teacher, Salemwood School

Karen Roebuck Paraprofessional, Ferryway School, Malden

Mary Beth Brauer Teacher, Ferryway School, Malden

Roberta Lordan Teacher, Ferryway School, Malden

Emily Prince Team Chair, Ferryway School, Malden

Betsey Hanifan Elementary Program Manager, Malden Public Schools

Veronica Papenfus Special Education Administrator, Malden Public Schools

Mary Ellen Sowyrda Attorney for Malden Public Schools

The official record of the hearing consists of Parent’s Exhibits P-A through P-E; School’s Exhibits S-A through S-F, and approximately 6 hours of tape-recorded oral testimony and argument. The parties filed written closing arguments on June 25, 2004 and the record closed on that day.

ISSUES PRESENTED

1. Does Student’s last agreed-upon IEP entitle Student to a one-to-one paraprofessional in her mainstream classes at the Salemwood School, pursuant to applicable “stay put” provisions of the special education statutes and regulations?

2. If so, did Malden fully implement Student’s last agreed-upon, “stay put” IEP with respect to provision of paraprofessional assistance?

POSITION OF PARENT

Student’s last agreed-upon IEP calls for Student to be in regular education science and social studies classes with a dedicated aide providing one-to-one assistance. After Student transferred from one Malden elementary school to another, with no corresponding change in her IEP, Malden failed to provide her with a one-to-one aide as required by her last agreed-upon IEP. Rather, Malden had Student attend inclusion science and social studies classes with her entire resource room class and special education teacher, with no dedicated aide. This arrangement did not implement the last agreed-upon IEP and so was a violation of Student’s rights under applicable “stay put” regulations.

POSITION OF SCHOOL

At no point has Student’s IEP called for a one-to-one paraprofessional, and the TEAM believed that such a service would be detrimental to Student’s progress. The paraprofessional sent into the classroom at the Ferryway School under the “stay put” IEP at issue was not a one-to-one aide, but a classroom paraprofessional, who was responsible for helping Student and other special and general education students. The program in Student’s second elementary (the Salemwood) school comports with the “stay put” IEP because it entails the same or more services and supports as the first elementary school (the Ferryway).

FINDINGS OF FACT

1. Student is an eleven-year-old child who lives with Parent in Malden. She is a sweet, likeable, enthusiastic and generous child with intelligence that is at least high average and probably higher. (P-A)

2. Student has been diagnosed with ADHD, as well as significant impairment of executive functioning. These conditions seriously compromise Student’s ability to focus on tasks, complete assignments, and produce work commensurate with her abilities. Her disabilities also lead to impulsive behavior such as speaking aloud without permission or getting out of her seat. (P-A, P-B, S-A, p.3) A parentally-funded neuropsychological evaluation conducted by Aida Khan, Ph.D. in June 2002 recommends a program consisting of a 1:1 aide in regular education to keep Student focused, along with one period per day in a resource room for reading, writing and math. At one point in her report, Dr. Khan refers to the aide as the “cornerstone” of Student’s program. (P-A). On the other hand, the following year, in April 2003, Malden’s specifically rejected a 1:1 aide as not helpful to Student for reasons discussed in more detail, below. (S-D)

3. Student entered the Malden Public Schools in September 2002 as a fourth grader, after completing the previous four years at a charter school. She was enrolled in the Ferryway Elementary and Middle School as a regular education student, but received an initial IEP at the beginning of the 2002-03 school year. (S-B)

4. On or about April 16, 2003, the Team issued Student’s IEP for April 28, 2003 through April 28, 2004, corresponding to the last few months of fourth grade through most of fifth grade. (S-B) This IEP provided for placement in a partial inclusion program consisting of math and language arts in the resource room, and science, social studies and “exploratory” subjects in the regular educational classroom. Grid B of the service grid provided for 30 minutes per day of “academic support” in the general classroom, to be provided by the “regular/Sped teacher.” (S-B)

5. The notice accompanying the IEP stated that :

The team rejected the option of providing a one-to-one paraprofessional to work with [Student] in the classroom. [Student] has been learning skills to work independently, follow the school rules and participate in classes. She has demonstrated consistent progress. A one to one para will not be able to provide the specialized and remedial instruction that she needs and may in fact be a detriment in her continued progress for independent skill building.
(S-D)

6. On April 7, 2003 Parent rejected the portion of the IEP that stated “a classroom para will be available on an as needed basis…” (S-B)

7. On June 24, 2003, a mediation agreement was executed2 that amended Grid B of the April 2003-April 2004 IEP as follows: (1) Under Type of Service, delete “academic support” and insert: “social studies” “science.” (ii) Under type of personnel, for both subjects insert “regular and special ed.,” (iii) under frequency each should be “5×44 minutes” (iv) start date should be “9/03/03” (v) end date “4/28/04” (S-C)

8. From September through November 2003, pursuant to the amended IEP referred to above, a paraprofessional, Ms. Karen Roebuck, attended mainstream science and social studies classes with Student. (Roebuck, Papenfus, Lordan)

9. Karen Roebuck was and still is employed as a classroom aide at the Ferryway School. At all relevant times, Ms. Roebuck was assigned to the resource room and worked under the direct supervision of the Resource Room teacher, Ms. Gilbert (Roebuck, Papenfus)

10. During the period in question, Ms. Roebuck was permanently assigned to the Student’s resource room. Ms. Roebuck understands that she is assigned to that room and classroom teacher and not to any one student. However, part of her job is to accompany students—individually or in groups– to mainstream classes when required by their IEPs or requested to do so by the classroom teacher in order to facilitate their participation in the mainstream. (Roebuck)

11. During the period in question (September –November 2003) Student was the only resource room student who required Ms. Roebuck’s assistance in mainstream science and social studies. The TEAM discussed this fact when amending Student’s IEP to incorporate the mediation agreement. (Berube, Roebuck). Ms. Roebuck believed that if other children from the resource room were placed in these same science and/or social studies classes, she would also assist them if assigned to do so, and that it was primarily a function of the scheduling that she worked only with Student. (Roebuck, Prince) The Ferryway TEAM chairperson, Ms. Prince, did not initially know that Student was the only child in the mainstream science and social studies classes receiving Ms. Roebuck’s help. (Prince)

12. In both science and social studies classes, Ms. Roebuck usually sat next to or behind Student.3 She did not assist Student with academics or modify her curriculum because Student did not require such assistance. Rather, under the amended IEP, Ms. Roebuck’s sole function with Student was to help Student remain focused and on task, e.g., looking at the correct textbook page during group lessons. (Roebuck, Papenfus, Brauer)

13. The fifth grade science class was taught by Ms. Roberta Lordan. A second child from the resource room was also enrolled in Ms. Lordan’s class. Ms. Lordan believed that Ms. Roebuck was in the science class to “help out with these two students, {Student], and [second student].” (Lordan). Ms. Roebuck did not generally sit next to the second student (unless that child happened to sit next to Student), but did assist her on occasion. (Roebuck, Lordan)

14. Sometimes Ms. Roebuck did tasks for Ms. Lordan such as running off papers. She also sometimes sat at Ms. Lordan’s desk and did administrative work for the teacher such as grading quizzes. In addition, at Ms. Lordan’s direction, Ms. Roebuck sometimes circulated through the room and assisted other students. (Lordan)

15. In addition to the support she received from Ms. Roebuck in science class, Student also received individual assistance from Ms. Lordan, who often helped her to focus her attention on the lesson or to find answers in her textbook, worked with her on projects, and checked to see that assignments were completed. Ms. Lordan gave similar attention to other students in the class. (Lordan)

16. In Malden, the terms “one to one aide” (or paraprofessional) and “classroom” or “resource room” aide or paraprofessional denote two distinct job titles. A person holding the title of “one to one paraprofessional (“para”)” in Malden has been hired or assigned under this designation, and is assigned to a particular student to perform functions dictated or implied in the IEP. A one-on-one aide generally follows his or her assigned student throughout the day, in regular and special education classrooms as well as the corridors, lunchroom etc. Depending on the student’s individual needs, the one-on-one may modify curriculum, assist with academics, assist with physical needs, or other, similar duties related to the child’s particular situation. (Papenfus, Roebuck, Prince)

17. A classroom aide, on the other hand, is assigned to a regular or special education classroom rather than to a particular student. His or her job consists of assisting and carrying out the instructions of the classroom teacher in order to run the class. Based on the instructions of the teacher, the aide may accompany or help children individually and/or in groups. The essential difference in the two job descriptions is that a one-to-one aide is assigned to a student pursuant to an IEP, while a classroom aide is assigned to a class or teacher. (Papenfus, Roebuck, Prince)

18. On or about November 24, 2003, by an agreement between Parent and Dr. Papenfus, Student was removed from the Ferryway School. At that time, Dr. Papenfus agreed with Parent to seek an out of district placement with a one-to-one aide for Student. (Papenfus) The record contains no IEP or other written agreement to this effect other than a letter from Dr. Papenfus to Mother dated February 11, 2004, written in response to Parent’s Hearing Request. (S-E) Dr. Papenfus agreed to the one-on-one in an outside placement because “it was the path of least resistance at that point” and because Student would be going to a program where no one knew her. (Papenfus)

19. When Student first left Ferryway, she was placed on home tutoring. On or about December 1, 2003, at Parents’ request, Malden placed Student in the Salemwood School, another Malden public elementary school, where she remained up to and including the hearing. (Papenfus, Aquino) Originally, the parties intended Salemwood as an temporary placement until an outside placement was located. (Papenfus) After a time, however, Malden decided that the Salemwood placement was, in fact, appropriate for Student and that she was doing well there. (Papenfus, Aquino)

20. Student started at Salemwood as a fifth grader. Initially she was placed in a combined fifth and sixth grade resource room for reading, language arts, math, and social studies and in regular fifth grade for science and exploratories (computers and gym). (Aquino)

21. At the time of the hearing, this resource room served a total of 14 students, 8 fifth- graders and 6 sixth-graders. The class is staffed by a special education teacher, Mr. John Aquino, and one paraprofessional, Ms. Manning. Ms. Manning is assigned to one particular student with mobility issues, but also provides assistance to other members of the class on occasion. (Aquino)

22. When she entered Salemwood in December 2003, Student was one of seven fifth grade resource room students who attended regular education fifth grade science classes. Beginning in February 2004, Student, along with these same resource room classmates, also began to attend a regular education fifth grade social studies class. (Aquino)

23. Mr. Aquino and Ms. Manning accompanied the resource room students to their mainstream classes. (Aquino)

24. The social studies class was taught by a regular education teacher, assisted by a paraprofessional. Once Mr. Aquino’s resource room group joined the class, there were about 30 students in attendance, and a total of four adults (the regular education teacher, Mr. Aquino, and the paraprofessionals from both classrooms). The seating arrangement consisted of tables laid out in a square or rectangle. Usually, the resource room group arrived a few seconds after the other students and sat in whatever seats were remaining in the room. Mr. Aquino sometimes co-taught the class and stood in front to do so. At other times, Mr. Aquino and the resource room paraprofessional stood in the back of the room to observe who needed help, and also circulated among the resource room students to provide assistance or redirection as required.4 Sometimes Mr. Aquino both co-taught the class and facilitated student participation, which required him to move around the room. (Aquino)

25. The regular education social studies teacher and paraprofessional helped the resource room students as well. If Student needed help or redirection during social studies, she received it from one of the four adults in the classroom. (Aquino)

26. Mr. Aquino used a combination of group guidelines, cues to the group, individual verbal or visual cues and physical proximity to help the students from the resource room, including Student, remain on task in social studies class. Mr. Aquino felt that Student responded positively to these techniques. (Aquino)

27. The mainstream science class functioned similarly to the social studies class, with Mr. Aquino and Ms. Manning as well as the regular education science teacher, assisting the resource room students, including Student, as needed. (Aquino)

28. Student did not have a dedicated, 1:1 paraprofessional in either her mainstream or resource room classes, but, rather, received assistance from various other adults in the room. (Aquino)

29. In February 2004, the Team convened at Salemwood for an annual review and issued an IEP covering February 2004 through February 2005. This IEP calls for, among other things, inclusion in regular education, team taught social studies, and, “when her teachers feel she is ready,” regular education literature class 2-3 times per week. (S-A) Mother rejected this IEP in full on February 12, 2004, but has not put that rejected IEP at issue here.

30. Student has made progress in both her mainstream and resource room classes at Salemwood, and was happy in her placement there. (Papenfus, Aquino)

FINDINGS AND CONCLUSIONS

Based on the evidence presented at the hearing, as well as the applicable law, I conclude that Malden did not violate Student’s “stay put” rights during the period in question by not providing Student with a one-to-one paraprofessional at the Salemwood School. More specifically, I find that even as amended by the June 2003 mediation agreement, Student’s 2003-04 IEP did not call for one-to-one paraprofessional assistance in the mainstream; that, for the most part, Karen Roebuck did not function as a de facto one-to-one aide at Ferryway, and that the support in the mainstream that Malden provided at Salemwood substantially implemented Student’s last agreed IEP. Any differences between the manner of implementation at Ferryway and Salemwood do not rise to the level of a change in placement.

On the other hand, I find that Malden did violate “stay put” when it failed to allow Student to attend mainstream social studies at Salemwood until February 2003; however, this violation was de minimis , and did not contribute to a violation of FAPE.

My reasoning follows.

Legal Framework

The FAPE Standard and “stay put”

The parties agree that Student is a school-aged child with a disability who is eligible for special education and related services pursuant to the IDEA, 20 USC Section 1400, et seq ., and the Massachusetts special education statute, G.L. c. 71B (“Chapter 766”). Therefore, Student is entitled to a free appropriate public education (FAPE) as defined in federal and state law.

To provide FAPE, a school district not only must provide services that meet the substantive standards set forth in the IDEA and Chapter 766, but also must comply with the procedural requirements of the IDEA.5

One procedural protection that is a component of FAPE is the so-called “stay put” rule, which provides that when a parent disputes a school district’s proposal to change or terminate services to an eligible child, the child “stays put,” i.e., remains in the last agreed upon placement, until the dispute is resolved, unless the parents and school district agree on a different placement. 20 U.S.C. Sec 1415(e)(3), (j); 34 CFR Sec. 300.514; Verhoven v. Brunswick School Committee , 207 F.3d 1, 10 (1 st Cir. 1999); M.G.L. c. 71B; 603 CMR 28.08(7). Moreover, a school district must give parents prior notice whenever it proposes to change or terminate the placement or services of an eligible child. 20 USC Sec. 1415 (b)(3), (c); 34 CFR 300.503.6 This notice must inform parents of the nature of the proposed change or termination, the school’s reasons, the parents’ rights to an evaluation and TEAM meeting before the change is implemented, and the “stay put” rights referred to above. Id ; Stock v. Mass. Hospital School , 467 NE 2d 448, 392 Mass. 205 (1985).

Not every modification in program or services triggers the IDEA notice and stay put requirements. For example, several courts have concluded that a change from one location to another with substantially the same services at the new location does not constitute a change in placement, especially when the reason for the changed location is not related to the student7 (e.g., a school closing). However, the IDEA does not explicitly state what alterations do constitute a change in placement.8 Honig v. Doe , 484 U.S. 305, 326 (1988); Wagner et al v. Bd. of Ed. of Montgomery Cty., MD , CA DKC 2002-0763 (D. MD. 2002). Most courts have adopted the general principle that a change in placement occurs when the modification fundamentally alters the student’s program, or has a substantive impact on the student’s educational services. See, for example, Knight v. District of Columbia , 877 F.2d 1025, 1028 (D.C. Cir. 1989); Brookline School Committee v. Golden , 628 F. Supp. 113 (D. Mass. 1986); Sherri A.D. v. Kirby , 975 F.2d 193, 206 (5 th Cir. 1992).

More recent decisions in other circuits have elaborated on this standard to emphasize the impact on the student. For example, in A.W. v. Fairfax County School Board, 41 IDELR 119 (4 th Cir. 2004) , the Fourth Circuit reviewed several “stay put” decisions and noted that important factors to be considered in deciding whether a change (in location, in that case) is a true “change in placement” are whether the change impacts FAPE by “diluting” the quality of services or increasing the restrictiveness of the student’s program. The 8 th Circuit decided similarly in Hale v. Poplar Bluff R-1 School District , 280 F.3d 831 (8 th Cir. 2002). (Court found that providing identical services in a different setting constituted a change in placement under the facts of that particular case because of the impact of the change.) See Ruling on Motion for Partial Summary Decision , George and the Boston Public Schools , BSEA No. 04-4506 (Crane, 7/30/04), and cases cited therein, for a discussion of how different circuits define change in placement.

Neither the Federal District Court for Massachusetts nor the First Circuit has squarely addressed this issue, but the U.S. District Court for New Hampshire adopted OSEP’s method of analysis9 in Henry v. School Administrative District #29, et al ., 30 IDELR 788, 793 (D.NH 1999). In Henry , the District Court held that moving a student from a small private special education day school to a program in a large public high school changed student’s place on the continuum and hence constituted a fundamental alteration of educational placement. Where this student had aged out of his private school, the stay put placement was another, comparable small private school. Henry , 30 IDELR at 793.

While Massachusetts law, like federal law, does not explicitly define the program or placement changes that trigger stay put rights, BSEA decisions have held that reduction of a service in a student’s IEP does constitute such a change. Thus, if a parent rejects so much of an IEP that reduces services, the “stay put” placement is the level of service stated in the last agreed upon IEP. See, e.g., Ruling on Parents’ Motion for Stay Put Orders , 30 IDELR 203, at 206 (MacEvoy, 1/29/00) (Proposed IEP that reduced speech therapy from one hour, as stated in prior accepted IEP, to 30 minutes per week was a fundamental change sufficient to trigger stay put rights.).

Discussion

Here, there is no dispute that at all pertinent times, the parties were operating with a “stay put” IEP, that is, the 2003-2004 IEP that was drafted in April 2003 and amended by the mediation agreement of June 26, 2003. This IEP provided for daily support to Student in her mainstream science and social studies classes by regular and special education staff. There also is no dispute that the staffing patterns and service delivery format in Student’s mainstream science and social studies classes at Student’s second school, Salemwood, were not identical to those at her first school, Ferryway. Specifically, at Ferryway, Student was the only child enrolled in the resource room who also received support services from a paraprofessional in mainstream science and social studies. At Salemwood, on the other hand, Student attended mainstream science and social studies with seven other resource room students, who went to the mainstream classes as a group, accompanied by the resource room teacher and a paraprofessional.

At issue is whether this change in configuration of Student’s mainstream classes constitutes a change in placement. Parent argues that at Ferryway, pursuant to the amended IEP, Student was provided with a one-to-one paraprofessional for science and social studies; that regardless of her official job title, Ms. Roebuck functioned as such, and that Student was, therefore, entitled to a dedicated paraprofessional sitting with her in science and social studies at Salemwood. Parent further argues that the model used at Salemwood, where Mr. Aquino (and, to some degree, an aide), were responsible for assisting eight resource room students in the mainstream class was not the level of individual assistance to which Student was entitled under her “stay put” IEP.

The school, argues, on the other hand, that the IEP as amended did not require a 1:1 assistant, that Student’s status as the only child receiving paraprofessional assistance in the relevant mainstream classes at Ferryway was purely a function of scheduling. If additional students in these classes had needed such services from Ms. Roebuck, she would have provided them. Moreover, Student’s “stay put” IEP was being implemented at Salemwood because Student was receiving assistance from her resource room teacher, Mr. Aquino, in her mainstream classes, as well as from the regular education teachers and Ms. Manning. The school argues that support from a certified special education teacher (Mr. Aquino) was at least equivalent and possibly superior to the help Student had been getting from a paraprofessional at Ferryway.

In determining whether the changed format of service provision is, in fact, a change in placement, I look first to the operative document, that is, the IEP for April 2003 through April 2004 as amended by the mediation agreement of June 23, 2003. As stated in Finding No. 7, above, the 6/24/03 Mediation Agreement states only that Student should receive science and social studies in the general education classroom, with the addition of direct services from regular and special education providers. The IEP as amended does not specify individual instruction and/or support either in the service grid or elsewhere (such as in the “accommodations” section); in fact, it says nothing about the staff to student ratio.

Although the IEP clearly does not provide for a one-on-one aide, I also look to the actual functioning of the paraprofessional at the Ferryway School as well as the service delivery format at the Ferryway and Salemwood Schools to determine whether the paraprofessional at the Ferryway was a de facto one-to-one assistant, and , if so, whether that that one-to-one relationship was centrally important to Student’s program.

At the outset, I note that the parties agree that the main reason Student needed support in the mainstream classes was to ensure that she was focused and on task, and that, for the most part, she did and does not require an aide to modify her curriculum and/or deliver instruction. At Ferryway, Student happened to be the only child in the regular science and social studies classes who needed such support, which was provided by Ms. Roebuck. Ms. Roebuck testified persuasively, however, that if another child had come into the classrooms at issue who needed her help, she would be required to provide it. Additionally, the regular education teacher, Ms. Lordan testified that at times, Ms. Roebuck was not working directly with Student, but rather did tasks for Ms. Lordan. Ms. Lordan also testified that she sometimes provided Student with individual attention when needed.

I credit the testimony of Ms. Roebuck and Ms. Lordan that Student did not have Ms. Roebuck’s undivided attention at all times, and would have been required to share this attention with other children had they come into the mainstream classrooms. I also conclude from this testimony and the documents in the record that Student could still receive the support she required10 if Ms. Roebuck also helped other children or a teacher, and that Student could also benefit from support from a second adult (i.e., the teacher) as provided by Ms. Lordan. I conclude that at some times Ms. Roebuck may have functioned as a de fact o one-to-one aide (within the confines of the classroom, not within the meaning of the Malden job title) but that the one-to-one relationship was not a fundamental feature of Student’s program. Rather, what was fundamental was that Student had the opportunity to participate in mainstream science and social studies with a staff person or persons to help her focus in that setting, regardless of whether that staff person also helped others or had additional duties.

The major difference between Student’s services at Salemwood and those provided at Ferryway is that the mainstream classes at Salemwood followed an inclusion format, where Student was one of a group of eight resource room students in co-taught science and social studies classes, in contrast to Ferryway, where Student was the only child, (in social studies) or one of two children, (in science) who also was enrolled in the resource room. At Salemwood, assistance with focus and attention was provided consistently with the co-taught inclusion format, i.e., Mr. Aquino (and to a lesser extent, other adults in the class), provided group and individual redirection as needed, without being “attached” to Student or any other particular child. Arguably, this model could be viewed as a dilution of the level of service to Student. Mr. Aquino testified persuasively, however, that he had a good working relationship with Student and that he was able to help her with focusing or otherwise when needed, regardless of the needs and demands of other students in the class.

Mr. Aquino’s testimony, as well as the evidence showing that Ms. Roebuck did not spend every moment assisting Student in her mainstream classes at the Ferryway, persuades me that despite a change in the outward appearance the programs, there was, in fact, no change in the fundamental nature of the service provided to Student, and that both settings were consistent with her IEP. Finally, I find no basis to conclude that the Salemwood program was more restrictive than that offered at Ferryway. Student was enrolled in mainstream science and social studies, with supports, at both locations. The Parent has not demonstrated how the difference in the appearance of service delivery formats has made one program significantly more restrictive than the other. Both models may isolate Student from the mainstream to some degree, but if anything, it seems that using an aide to help student focus would isolate Student from typical peers at least as much as a co-taught inclusion class, where Student is one of a larger subgroup within the mainstream class, and thus may be less conspicuous.

Based on the foregoing, I conclude that there was no change in placement, and, therefore, no violation of “stay put” based on the change in service delivery formats.

Malden did violate Student’s “stay put” rights, however, when it did not place her in mainstream social studies until February 2004, approximately two months after she entered Salemwood. Given the totality of circumstances, however, (including the mutual expectation that this placement would be temporary) I find that this violation was de minimis, and the record does not show loss of FAPE as a result.

CONCLUSION

Based on the foregoing, I conclude that Malden did not violate Student’s stay put rights by changing the model of service delivery when Student transferred from the Ferryway School to the Salemwood School in December 2003. Malden did violate “stay put” by holding Student out of mainstream social studies until February 2004; however, this violation was de minimis under the circumstances.

By the Hearing Officer:

____________________ _____________________________

Sara Berman


1

The record shows that in all ways material to this matter, Student’s guardian functions identically to a parent; therefore, the guardian will be referred to as “Parent” in the remainder of this Decision.


2

Three mediations took place at various times during the 2002-03 and 2003-04 school years, but only the June 2003 mediation resulted in an agreement.


3

Ms. Lordan testified that Ms. Roebuck only sat next to Student 3 or 4 times during the three months that Student was in her class. Ms. Roebuck testified that she sat next to Student “probably most of the time.” While I am persuaded that Ms. Lordan was testifying truthfully as to her recollection, I credit Ms. Roebuck’s testimony because she was directly connected with Student’s special education services.


4

Ms. Manning primarily helped the student to whom she was assigned, but also helped other students. (Aquino)


5

Generally, the remedy for past violation of procedural rights is compensatory service, for which a school district may be liable if “procedural inadequacies [have] compromised the pupil’s right to an appropriate education … or caused a deprivation of educational benefits.” Roland M. , 910 F.2d at 994 (citations omitted); Murphy v. Timberlane Regional Sch. Dist. , 22 F.3d 1186, 1196 (1 st Cir. 1994). Here, however, the parent is not seeking compensatory service, but rather simply a declaration that Malden violated Student’s asserted right to a one-to-one aide under “stay put.”


6

The current Chapter 766 regulations adopt the notice provisions of the IDEA and implementing federal regulations.


7

On the other hand, a change in location for disciplinary reasons might give rise to “stay put” protection . Hale v. Poplar Bluff R-1 School District , 280 F.3d 831 (8 th Cir. 2002).


8

The Discussion contained in the Comment accompanying the federal “stay put” regulation, 34 CFR Sec. 300.514, states that the “term “current placement” is not readily defined. While it includes the IEP and the setting in which the IEP is implemented, such as a regular classroom or a self-contained classroom, the term is generally not considered to be location-specific.” Id. On the other hand, the Ruling in the Boston Public Schools case referred to below states that Massachusetts state regulations and DOE policy supports a conclusion that the term “placement” now refers to a specific school, and that the IEP TEAM must identify the student’s placement. Id.


9

OSEP has suggested that whether a particular change fundamentally alters a student’s program requires analysis of the following factors: (1) whether the educational program in the proposed IEP is a revision of the prior IEP; (2) whether the student will be educated with non-disabled children to the same extent as in the prior IEP; (3) whether the student will have the same opportunities to engage in non-academic and extra-curricular activities; and (4) whether the proposed placement represents a significant change in position along the continuum from the most restrictive to the least restrictive placement options. Letter to Fisher (OSEP), 21 IDELR 995 (1/26/95)


10

While I credit so much of Dr. Khan’s report that generally recommends that Student receive help with focusing, I give little weight to the specific recommendation of Dr. Khan that makes a 1:1 aide the cornerstone of Student’s program. The report was written in 2002, before Student had received any services under any model of service delivery. Moreover, Dr. Khan was not present at the hearing and has not reviewed the results of services Student received during the 2002-03 school year and subsequently.


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