Re: Selena W. and the Newton Public Schools – BSEA #04-3458 & #04-4310
COMMONWEALTH OF MASSACHUSETTS
Bureau of Special Education Appeals
In Re: Selena W.1 & the Newton Public Schools
This decision is issued pursuant to M.G.L. c. 71B and 30A, 20 U.S.C. 1401 et seq ., 29 U.S.C. 794 and the regulations promulgated thereunder. A hearing was held in the above-entitled matter on June 15, 23 and 24, 2004, at the Department of Education in Malden, MA. Those present for all or part of the proceeding were:
Mozelle Berkowitz Coordinator of Elementary Special Education-Newton Public Schools
Marilynne Smith Quarcoo Principal, Cabot School
Cynthia Murchand Principal, Franklin School
Kathleen Curran School Psychologist, Newton Public Schools
Maggie Curtiss 1 st Grade Teacher-Newton Public Schools
Suzanne Flaherty Special Education Teacher-Newton Public Schools
Amy McDonald Teacher-Elementary Stabilization Program- Newton Public Schools
Sheryl Cohn Social Worker-ESP-Newton Public Schools
Qasim Abdul Tawwab Student Services-Metco
Lisa Reed Metco Director
Joe Ableidinger Student Attorney for Parent
Kwamina Thomas Attorney for Parent
Ouida Young Attorney for Newton Public Schools
Lindsay Byrne Hearing Officer-BSEA
The official record of the hearing consists of documents submitted jointly by the parties labeled J-1 through J-11, documents submitted by the Parent labeled P-A-P-I, documents submitted by Newton Public Schools labeled S-1 through S-47 and S-49 through S-51, and approximately 18 hours of recorded oral testimony and argument. The parties made oral closing arguments at the conclusion of presentation of evidence June 24 th , 2004, and the record closed on that date. An Interim Decision was issued on July 9, 2004.
Whether the 2004-2005 Individualized Education Plan proposed by the Newton Public Schools, which calls for the Student’s placement in a substantially separate classroom designed to address the Student’s social/emotional/behavioral/and language needs, is reasonably calculated to ensure Selena a free, appropriate public education in the least restrictive setting?
Summary of the Evidence
1. Selena is a bright eight year old student with specific learning disabilities across all language related areas. She has also been diagnosed with Attention Deficit Hyperactivity Disorder (“ADHD”) and demonstrates significant difficulty with focus, concentration, task maintenance, emotional regulation, compliance, self-control, response modulation, frustration tolerance and peer relations. Selena is a Boston resident who has attended the Newton Public Schools since kindergarten through the METCO program. She has just completed the second grade. (J-4; S-10-15; S-24; P-B; Parent, Curran, Reed, Berkowitz, Flaherty)
2. Selena attended a regular kindergarten program at the Franklin School in Newton. Difficulties with peers, non-compliance with adult directions and poor task maintenance, prompted the development of a behavior plan for Selena. The principal, Cynthia Marchand, testified that the School also informally suggested a Team evaluation. The Parent agreed to the implementation of a behavior plan but declined a Team evaluation. (Marchand; Parent; S-24)
3. Selena attended a regular 1 st grade program at the Franklin School. The behavior plan developed in kindergarten was continued in the 1 st grade. According to Meredith Curtiss, Selena’s first grade teacher, implementation of Selena’s behavior plan appeared to have no discernable effect on the targeted behaviors. (S-40) Selena’s behavior was inappropriate, offensive and, at times, provocative, across all school settings. She spoke in a loud, disrespectful voice, teased and threatened other students, made pointed disparaging remarks, referred to adult body parts, passed gas loudly and apparently intentionally, left the room without permission, refused assignments and adult directions, impulsively touched other students and their possessions, and did virtually no academic work. Ms. Curtiss provided Selena with alternative learning activities, specialized and 1-1 academic instruction, and consistent behavioral interventions. Ms. Curtiss reported no improvement with these accomodations. During the fall, 2002, Selena received specialized 1-1 reading instruction through the PIRP program, a pre-referral reading skills development program. Selena made little progress in that setting. The School offered to include Selena in a regular education peer social skills group led by the school psychologist. The Parent declined. (Curran) On November 14, 2002, the School proposed a comprehensive special education evaluation. The Parent refused to consent to the evaluation. (S-25, 26, 27; Curtiss, Marchand, Curran, Parent)
After obtaining parental consent in January, 2003, the school conducted a comprehensive special education evaluation in February and March, 2003. (J-5, 6, 8, 9, 10; S-29, S-28, S-31; S-27; S-32) At Team meetings held on March 11, 17, and 27, the school team members found Selena to be eligible for special education services due to a significant discrepancy between her at least average intellectual potential and her failure to make academic or behavioral progress with supports in the mainstream. The Parent declined the eligibility finding. (S-11, 12, 14, 15; S-13; Marchand) At a Team meeting on April 11, 2003, the Parent agreed to the eligibility determination on the basis of a specific learning disability only. The Team developed an IEP calling for special education services targeted to Selena’s documented weaknesses in literacy and mathematics to be delivered in an inclusion setting, along with accomodations in the mainstream environment and instruction. The IEP also provided for twice weekly speech-language and occupational therapy sessions. There were no special education services targeted to Selena’s social-emotional or behavioral needs. (J-3; S-11, 12; Marchand) Ms. Curran testified that the Team hoped that if Selena’s academic difficulties were appropriately addressed with special education services in a regular classroom setting the problematic behaviors would dissipate. She further testified that the substantially separate classes available at Franklin would be too low level academically for Selena and did not have appropriate behavioral supports. (Curran) The Parent accepted the proposed IEP on May 1, 2003, and services began shortly thereafter. Ms. Curtiss testified that within a month she saw improvement in Selena’s academic skills, particularly in reading. Ms. Curtiss noticed no similar improvement in Selena’s behavior as a result of the implementation of the IEP. Ms. Curtiss stated that Selena’s behavior continued to deteriorate over the course of the 2002-2003 school year; it was consistently rude, provocative, defiant, noncompliant, verbally aggressive and volatile. Selena continued to have significant difficulty focussing, maintaining attention, maintaining appropriate personal space, fidgeting and staying in the classroom. According to Ms. Curtiss to have reasonable chance of delivering appropriate services to Selena in a regular education 2 nd grade class, a placement would require:
A. a healthy relationship with the Parent;
B. a second teacher with special education and behavioral training;
C. medical management of Selena’s ADHD
D. consistent implementation of a behavior plan in all school and non-school settings.
These recommendations were echoed by the Franklin School principal, Ms. Marchand, and the school psychologist, Ms. Curran. (S-28; S-37)
4. By the end of the 2002-2003 school year, the relationship between the Parent and the School was “strained”, at best. The parties decided to give the Student a fresh start at another elementary school in Newton, the Cabot School. (Marchand, Quarcoo, Reed, Parent)
5. Marilyn Quarcoo, the principal of the Cabot School, testified that she met the Parent in May, 2003, and discussed Selena’s IEP. She selected Selena’s 2 nd grade teacher and assigned an aide to the classroom based on the requirements of her IEP. The teacher reviewed the service delivery grid and student profile prior to the start of school. All special education services were scheduled to begin the second week of school. By the second day of school, however, Selena’s behavior was out-of-control. She falsely accused the new teacher of hitting her, she threw classroom furniture, made verbal and physical threats to other students, was confrontational and verbally abusive to adults. Ms. Quarcoo arranged for a functional behavioral assessment to be performed by the school system’s consulting psychiatrist, Christopher Bellonci. She met with the Parent on the fifth day of school, September 9, 2003. (S-16, 17, 18, 19; Quarcoo)
Ms. Quarcoo testified that the behavior plan developed by the Franklin School as well as the 2003-2004 IEP were being implemented at the Cabot by September 9, 2003. The only designated service not being delivered to Selena at that time was occupational therapy as the school system lacked a provider. Selena’s occupational therapy goals and objectives all related to the development of handwriting skills. (J-3; Quarcoo; see also testimony of Flaherty) The Parent complained that Selena’s poor behavior was the result of a failure to fully implement the accepted IEP. Based on my observation of the witnesses and assessment of their relative opportunities to observe Selena in the school setting, I credit the testimony of Ms. Quarcoo.
6. Suzanne Flaherty, the special education teacher at the Cabot School, (S-42) testified she received Selena’s IEP and evaluations at the June, 2003, transition meeting. She gave copies of relevant portions of the documents to the classroom teacher and speech-language specialist and met with the classroom teacher prior to the start of school. Ms. Flaherty met Selena the first day of school and began working with her on the second day. In the classroom Selena had difficulty doing any independent seatwork. She threw student papers around the room, hers and others. She yelled rudely at the teacher. She was verbally abusive and physically threatening to the other students. She had particular difficulty at the beginning of the day. Implementation of the behavior plan, and of the accommodations listed in her IEP, did not result in improvement in her behavior. By September 9 th , the 5 th day of school, Ms. Flaherty provided special education support in a 1-1 setting outside the classroom. She also provided an additional one-half hour of “transitional” time in the learning center first thing each morning, and anytime during the day when necessary. Ms. Flaherty testified that Selena could attend to only ten minutes of any half hour instructional session and was behaviorally or attentionally unresponsive for the remainder of the scheduled time. She further testified that Selena was unable to make effective academic progress at Cabot because of her interfering behaviors. (Flaherty) I found Ms. Flaherty to be thoughtful and sincere and I credit her testimony in full.
7. After Ms. Quarcoo met with the Parent on September 9 th , the parties met weekly to discuss Selena’s behavior and placement. Despite increasing the frequency, duration, and restrictiveness of special education intervention, the Student’s behavior continued to deteriorate. By the end of September the staff believed she could not receive a meaningful education at the Cabot School. (Quarcoo, Flaherty, 5-16, 17. 18-19, 20, 21, 22, 23)
8. On September 26, 2003, the consulting psychiatrist, Christopher Bellonci, M.D., (S-47) observed Selena for thirty minutes in her regular classroom with two adults. Despite implementation of a behavior plan Dr. Bellonci found Selena to be unable to sit and attend to classroom activities. She rolled on the floor, intentionally bumped into peers, and was verbally challenging and provocative to adults and children. It was his impression that she met the diagnostic criteria for ADHD: inattention, impulsivity and hyperactivity. He shared his impression with the Parent along with his recommendation for further evaluation and medical management. He stated that the Parent was “disinclined” to follow his recommendations. Based on his observations of the Student and the reports of other school personnel, Dr. Bellonci testified that Selena would be unable to function effectively in a regular classroom without medical management of the ADHD. Even with effective medication, according to Dr. Bellonci, Selena would need a period of time in a self-contained program to retrain her behavior and address her overlying emotional difficulties. After his September 2003, observation, Dr. Bellonci recommended that Selena be placed in the Elementary Stabilization Program (“ESP”) (Bellonci)
9. A Team meeting was held on October 3, 2003, at which the School proposed, and the Parent accepted, placement in the Elementary Stabilization Program (“ESP”) (S-23, S-2, S-3) The ESP is a short term, diagnostic, substantially separate classroom placement within the Newton Public Schools designed for students experiencing behavioral crises and needing respite from school situations that are unproductive or unsafe. It follows the regular school calendar, but anticipates that students will be placed for no more than twenty to forty-five school days before returning to their sending classrooms. (S-1; McDonald, Berkowitz)
ESP is staffed by a full time special education teacher, Amy McDonald, a social worker, Cheryl Cohn, and Dr. Bellonci who consults to the program 2-4 hours per week. There are typically 1 to 3 students at any one time, though there have infrequently been as many as six. Ms. McDonald (S-44) provides all the special education instruction, including implementation of the behavior plan. She testified that Selena received one-to-one attention academically and behaviorally throughout her ESP placement. Selena made some academic progress, as demonstrated by approximately a half-year’s growth on standardized academic achievement measures. According to Ms. McDonald, Selena made minimal, if any, behavioral progress throughout the eight month placement. She entered and exited the program with significant negative behaviors that substantially interfered with her ability to benefit from academic instruction: inattention, distractibility, hyperactivity, noncompliance, defiance, impulsivity, rude and provocative language, tantrums and crying jags. (McDonald; S-4-8; S-51; P-E)
The parties agree that ESP was not an appropriate long term placement for Selena.
No IEP or extended evaluation document reflecting the ESP placement was ever developed by Newton.
10. The Team met on October 24, 2003 to discuss Selena’s adaptation to the ESP and the possibility of returning her to the Cabot School. Her IEP was amended to include a behavior plan and social-emotional goals. The Parent accepted the proposed IEP, which offered a “full inclusion” placement. The Parent testified that she understood that Selena would be returning to the Cabot School in a regular 2 nd grade classroom with specialized instruction to address her specific learning disabilities. School personnel testified that there was never an intent for Selena to return to the Cabot School, but that the IEP “just said that” because IEPs were not written for short term placements at ESP. (Cohn, McDonald, Berkowitz, Quarcoo)
11. The Team reconvened on January 29, 2004. The only formal evaluation performed during the Student’s ESP placement was an occupational therapy/sensory evaluation conducted in November, 2003. The occupational therapist did not recommend direct occupational therapy services. She noted that the Student’s behavioral and sensory responses were consistent with a diagnosis of ADHD. (J-4, 5) Dr. Bellonci, who had continued to see the Student weekly while she was at ESP recommended that she receive all her services in the context of a specialized classroom designed for students with emotional/behavioral and learning disabilities. He added that it was unlikely that she could function or benefit from a regular class placement without appropriate medical management which the Parent refused. Even with medication, Dr. Bellonci stated, Selena would need a self contained behavioral support class until she had learned and internalized appropriate interpersonal skills. (Bellonci) Cheryl Cohn, the social worker who worked with the Student throughout her ESP placement testified that Selena’s lack of improvement with the intensive therapeutic and behavioral interventions available at ESP led her to recommend that Selena be placed in a small, structured, self-contained therapeutic classroom with additional individual and family therapy. (Cohn) Amy McDonald, Selena’s ESP teacher, testified that Selena presents in the classroom with both ADHD and emotional/environmental issues and both must be addressed in a specialized classroom setting in order for Selena to be successful. (McDonald; S-8, 50; P-G) The Parent stated that she believed Selena’s poor behavior was due to the inappropriate ESP placement and that with specialized instruction to address her learning disabilities in the context of a regular classroom, Selena’s behavior would improve. (Parent)
12. Newton proposed a 2004-2005 IEP calling for the Student’s placement in a substantially separate class designed to address the learning needs of students with behavioral difficulties and specific learning disabilities. (J-1) Newton does not operate any substantially separate therapeutic classrooms at the elementary level. When students require that type and level of service Newton arranges for them to attend an out-of-district program or returns them to their home school district for appropriate programming. (Berkowitz, Bellonci) Since Selena is a Boston resident attending Newton Schools through the Metco program, she was referred to Boston for any special education programming not available in the Newton Public Schools. Selena retains her eligibility to attend Newton Schools through the Metco program for two years. (Berkowitz,; Reed)
13. The Parent accepted the special education services in the proposed IEP but rejected the Boston placement. (J-1) The parties engaged in mediation but did not reach resolution. The Team met again on April 4, 2004, but did not reach consensus on an appropriate Boston placement. On April 26, 2004, the Bureau (R. Figueroa) determined that the ESP was Selena’s “placement pending” resolution of the dispute through the due process system. (Administrative Record) Selena remained in the ESP placement through the remainder of the 2003-2004 school year.
14. On April 28, 2004, Gretchen Felopoulous conducted an independent neuropsychological evaluation of the Student. (P-A, B) Her findings concerning the Student’s cognitive strengths and weaknesses and learning style, are consistent with school reports. (Berkowitz, Cohn, Curran) She found Selena to be a student with at least average intelligence with a specific reading disability and word retrieval difficulties which are amenable to special education intervention. She further found Selena to meet the clinical criteria for ADHD and recommended medical management of that condition. Dr. Feloupoulous further recommended a specialized reading program such as Orton-Gillingham, occupational therapy, speech-language therapy, social skills training, and study skills instruction in the context of a regular classroom. She recommended the following modifications/accommodations to the regular classroom program to address Selena’s attentional issues:
A. Preferential seating
B. Break tasks up into their smaller components
C. Give written and verbal instructions to assignments, tests
D. Use multisensory teaching methods as much as possible
E. Repeat and rephrase key information
F. Establish eye contact with her before speaking
G. Allow for frequent motor breaks (e.g., send her down the hall with a note for the office, etc.)
H. Give her extra time to complete in-class work and tests
I. Reduce sources of distraction
J. Teach organization skills such as chunking, summarizing, outlining, etc.
K. Give study sheets before tests with key terms, etc.
L. Give her advance notice for larger assignments, projects
Dr. Felopoulous did not observe Selena in the classroom, or any setting other than the individual testing situation. Dr. Felopoulous did not talk to any of Selena’s teachers or service providers before issuing her recommendations. (Felopoulous)
15. With the exception of items k + l which were inapplicable the classroom, modifications recommended by Dr. Felopoulous are identical to those used by the second grade team with no particular positive result. (Flaherty) They are also substantially similar to the modifications contained in the IEP proposed by Newton in January, 2004. (J-1)
16. The Team reconvened on June 16, 2004, to consider the results of the independent evaluation. The Team, with the exception of the Parent, concluded that the regular program modifications suggested by Dr. Felopoulous had been tried and were ineffective with Selena at this time. Newton continued to propose a substantially separate classroom placement. (McDonald)
17. The Parent seeks continued placement in an inclusion setting in Newton for Selena. She testified that Selena’s behavior is the result of inappropriate instruction and placement. She stated that she had not had an opportunity to discuss a possible ADHD diagnosis with the Student’s pediatrician, and therefore could not consider medical management of that condition. (Parent)
Findings and Conclusions
There is no dispute that Selena is eligible to receive a free appropriate public education pursuant to M.G.L. c. 71B and 20 U.S.C. 1401 et seq . The issue presented for decision here is which of two models: a self contained special education classroom designed for students with learning and behavioral disabilities or a regular classroom supplemented by individualized instruction to remediate the Student’s learning disability, will ensure that the Student receives the education to which she is entitled. Certainly the evidentiary record suggests a host of other issues, among them: Whether Newton is meeting its obligation to provide “continuum of placements” to its special education students? Whether the ESP is a “diagnostic” placement if no evaluation questions are developed by the Team and presented to the providers, and no “evaluation” occurs there? Whether a Student can be placed in the ESP without an IEP designating this as the Student’s “placement”? Whether Newton met its statutory duty to this Student when it maintained her in an admittedly inappropriate placement for the better part of nine months? These questions are not before me, however, as the parties reserved them for resolution outside the due process system. I bring them forward to alert the reader first that they are not unobserved by the Bureau, and second as a caution that “strained” relations between families and school personnel frequently and unfortunately result in inexplicable procedural lapses which are harder to fix than they are to prevent.3 Turning back to the issue at hand, after careful consideration of all the evidence adduced at the hearing, and the thoughtful arguments of counsel for both parties, I find that the preponderance of the credible evidence supports implementation of the 2004-2005 IEP developed for Selena in January 2004, by the Newton Public Schools.
The IEP proposed by Newton accurately summarizes her cognitive strengths and weaknesses as outlined consistently in evaluations performed in the last 2 ½ years. (Compare J-1 and J-4-10, S-29-31, P-B) It provides services that address all of Selena’s identified disabilities: specific learning disabilities, behavioral difficulties, social-emotional difficulties and ADHD. It contains all the elements recommended, uniformly, by teachers, therapists, behavioral consultants, and administrators who have personally observed Selena in a variety of settings, who have provided special education instruction in a variety of settings and/or who have developed and implemented her behavioral plan in a variety of settings. Ms. Flaherty who taught Selena in a regular education environment recommended that she be placed in a specialized substantially separate classroom. Ms. McDonald who taught Selena in a substantially separate classroom recommended that she continue placement in a substantially separate therapeutic classroom. Ms. Curran the school psychologist who tested and observed Selena in a regular education environment recommended that she be placed in a substantially separate classroom. Ms. Cohn, the school social worker who provided social skills services in the substantially separate classroom recommended that Selena continue in a substantially separate classroom. (See also: testimony of Bellonci) No professional who worked with Selena in the past year recommended that she return to an inclusion setting. All of Selena’s service providers made the same recommendation: placement in a substantially separate program that can comprehensively address the learning, behavioral, emotional and attentional needs that Selena currently presents, along with appropriate medical management of her ADHD. The School proposed a plan consistent with these recommendations.
The only credible evidence supporting that Parent’s request for an inclusion style program, similar to that in which Selena was unsuccessful at the beginning of the 2003-2004 school year, is the recommendation of the independent evaluator, Dr. Felopoulous. Although Dr. Felopoulous conducted a thorough evaluation and her results jibe with those reported by school evaluators, I do not give her recommendation sufficient weight to outweigh those of the school personnel who know Selena in her day to day environment. Dr. Felopoulous did not have the advantage of observing Selena functioning outside a one-to-one testing situation, nor was she able to discuss Selena’s classroom functioning with any of her teachers, nor was she aware that the regular classroom modifications she was suggesting had been implemented in two different schools and three different classes by four different teachers, with little positive effect. I am persuaded that, in this matter, the consistent recommendations of those professionals who have worked with Selena day in and out over the past year should be accorded significantly more weight than those made by one psychologist, however competent, who had only a limited opportunity to see Selena function in a protected setting.
Further, I note that the Parent’s belief that Selena could function appropriately in an inclusion setting were the appropriate services to address her dyslexia and occupational therapy needs in place is not supported in the evidentiary record. The unrebutted evidence shows that Selena was receiving all the instructional services agreed to on her 2003-2004 IEP, and more, in September 2003, and yet was unable to learn effectively or indeed to function appropriately, in that setting. The Parent argues that the School’s failure to provide the agreed upon occupational therapy service made it impossible for Selena to benefit from the inclusion environment. I am not convinced that the lack of one half-hour per week of direct occupational therapy geared to development of handwriting skills could have such pervasive effect on the Student’s overall school functioning. No expert testimony was introduced on this point. I also note that Selena’s behavior did not improve noticeably when the occupational therapy service was reinstated in the late fall. I find therefore, that there was sufficient implementation of the 2003-2004 IEP in September, 2003, to draw meaningful conclusions concerning the effectiveness of an inclusion IEP for Selena. That conclusion, based on the totality of this evidence, is that special education services in an inclusion setting did not provide an appropriate education to Selena. Placement in a substantially separate classroom that provides services to address Selena’s attentional, learning, behavioral and emotional needs is the least restrictive, appropriate, special education program for her at this time.
The 2004-2005 Individualized Education Plan developed by the Newton Public Schools in January, 2004, is reasonably calculated to ensure a free appropriate public education to Selena in the least restrictive setting possible at this time. Newton shall notify the Boston Public Schools of this Decision and shall immediately transfer all the Student’s record and cooperate in any other way necessary to ensure a seamless transition to Boston Public School programming. Selena shall remain generally eligible without time limitation to attend the Newton Public Schools through her participation in the Metco program so long as she meets standard Metco criteria.
Lindsay Byrne, Hearing Officer
“Selena” is a pseudonym selected by the Hearing Officer to protect the privacy of the Student in publicly available documents.
Other issues are apparent in this record. The parties had previously agreed to resolve those issues outside this due process proceeding and requested that this decision focus on determining the appropriate special education placement for the Student for the 2004-2005 school year.
Another issue suggested by this record is whether students attending Newton Public Schools through the Metco program are treated differently than resident students in the allocation of special education resources? There was no evidence, however, in this hearing, to support a finding that Newton differentiated in any way between resident and nonresident students.