COMMONWEALTH OF MASSACHUSETTS
DIVISION OF ADMINISTATIVE LAW APPEALS
BUREAU OF SPECIAL EDUCATION APPEALS
In re: Rick1 and Foxborough Public Schools
BSEA# 11-6535
DECISION
This decision is rendered pursuant to M.G.L. Chapters 30A and 71B; 20 U.S.C. §1400 et seq.; 29 U.SC. §794; and the regulations promulgated under these statutes.
A hearing in the above entitled matter was held on June 23, 2011 at the Ahearn Middle School in Foxborough, MA. The record remained open for receipt of written transcripts and written final arguments until July 26, 2011.
Those in attendance for all or part of the hearing were:
Arlene Grubert Director of Special Education, Foxborough Public Schools (FPS)
Kim McDaniel Team Facilitator, FPS
Cathleen Robbins 6 th grade English/Language Arts and Social Studies Teacher, FPS
Alicia Compellone 6 th grade Math and Science Teacher, FPS
Mary Beth Keene Speech Pathologist, FPS
Nina Morey Special Education Liaison, FPS
Shawn Seybert School Psychologist, FPS
Robert Rossetti Librarian/Homework Club, FPS
Thomas Nuttall Attorney for FPS
Mother
Father
Darlene Coppola Court Stenographer
Raymond Oliver Hearing Officer, Bureau of Special Education Appeals
The evidence consisted of Foxborough Public Schools’ Exhibits labeled S-1 through S-18; Mother’s Exhibit labeled M-1; and approxorimately three hours of oral testimony.
HISTORY/STATEMENT OF THE CASE
Rick is a 12 year old special education student who has completed the sixth grade at the Ahearn Middle School in Foxborough, MA. Rick’s parents are divorced. Mother lives in Foxborough. Father lives in Plainville. Parents share joint legal custody of Rick. Rick resides with Mother and family in Foxborough.
Since the 2006-2007 school year, Rick has attended school in four separate school districts: 1) Foxborough Regional Charter School (FRCS); 2) Reading Public Schools (RPS); 3) Westwood Public Schools (WPS); and 4) Foxborough Public Schools (FPS). During this period from 2006 to the present, Rick has functioned under a number of Individual Education Plans (IEPs). While at FRCS Rick functioned under three IEPs (S-1, 2, 3) from June 2006 through August 2007. After Mother moved to Reading, RPS developed an IEP covering September 2007 to September 2008 (S-4). During the summer of 2008 Mother moved to Westwood where WPS developed three IEPs for Rick covering the periods of October 2008 to October 2010 (S-5, 6, 7). However, in October 2009 Mother moved back to Foxborough and Rick was enrolled in FPS as a fifth grade student in November 2009. FPS developed two IEPs for Rick, the first IEP covering December 2009 to December 2010 (S-8) and the second IEP covering December 2010 to December 2011 (S-12) which was amended in April 2011 (S-15) to reflect a Mother requested school psychological evaluation (S-13).
In May 2006 Parents and FRCS went to a BSEA hearing over the issue of extended school year (ESY) services and the BSEA in In Re: Foxborough Regional Charter School 12 MSER 139 (BSEA# 06-3158 – Crane, H.O.) ordered FRCS to provide ESY services for Rick (BSEA# 1).
In September 2006 Mother partially accepted/partially rejected the FRCS IEP (S-1). In this rejection Mother attached six typewritten pages of rejections and assertions regarding placement pending appeal rights to portions of the prior IEP. (See S-1 p. 17-23.) After team meetings to address Mother’s concerns, FRCS issued a new IEP covering June 2006-June 2007 (S-2). In December 2006 Mother partially accepted/partially rejected (PA/PR) this IEP also, along with ten pages of rejections and various declarations regarding placement pending appeal status. (See S-2 p. 19-28.) In April 2007 FRCS issued a new IEP covering April 2007 through April 2008 (S-3). In August 2007 Mother PA/PR this IEP with five pages of rejections. (See S-3 p. 17-23.)
After Mother’s move to Reading, a number of team meetings were held and in November 2007 RPS developed an IEP for Rick covering September 2007-September 2008 (S-4). In January 2008 Mother PA/PR this IEP with nine pages of rejections and stay put assertions. (See S-4 p. 17-27.)
Mother moved to Westwood over the 2008 summer and Rick was enrolled in WPS. In October 2008 WPS developed an IEP for Rick (S-5). In December 2008 Mother PA/PR this IEP with five pages of rejections plus assertions of placement pending appeal status to the prior FRCS and RPS IEPs. (See S-5 p.18-23.) In January 2009 WPS promulgated a new IEP for Rick covering January 2009 to January 2010 (S-6) which was again PA/PR by Mother in February 2009 with three pages of rejections, declarations of placement pending appeal regarding past IEPs and BSEA#1. (See S-6 p. 20-24.) In October 2009 WPS developed an IEP covering October 2009 to October 2010 (S-7). In November 2009 Mother again PA/PR this IEP with eight pages of rejections and statements regarding placement pending appeal status to specific aspects of prior FRCS, RPS and WPS IEPs. (See S-5 p. 2008-217.)
Less than one month later Mother moved back to Foxborough and Rick was enrolled in his current placement at Ahearn Middle School. After several team meetings in May 2010 FPS proposed an IEP covering December 2009 to December 2010 for Rick (S-8). On May 12, 2010 Mother PA/PR this IEP with eight pages of rejections, assertions regarding placement pending appeal rights regarding portions of the FRCS, RPS and WPS IEPs and BSEA #1 (See S-8 p. 18-26.) At a separate team meeting on May 19, 2010 the team met regarding ESY services and determined that Rick no longer qualified for ESY services. Mother filed for a BSEA hearing based upon BSEA# 1/placement pending appeal. The BSEA held that pending a BSEA decision on the merits, Rick retained placement pending appeal rights to ESY services based upon BSEA #1. (See BSEA # 10-6287 – Byrne, H.O. – hereafter BSEA #2.) In early June 2010 FPS filed for a BSEA hearing on the merits of Rick’s need for ESY services. In July 2010 BSEA Hearing Officer Scannell issued a decision that Rick met neither the federal nor the Massachusetts standard for ESY services. (See BSEA# 10-7942 – hereafter BSEA #3.)
In November-December 2010 the team convened to develop a new IEP for Rick which covered December 2010 to December 2011 (S-12). In late January 2011 Mother PA/PR this FPS IEP with three pages of rejections, concerns, and declarations of placement pending appeal rights to portions of IEPs dating back over four years (See S-12 p12-17.) Also in January 2011, pursuant to Mother’s request, FPS completed an executive function evaluation of Rick performed by the School Psychologist (S-13). In March 2011 the team reconvened to consider the results of this evaluation and issued a notice of Proposed School District Action (NPSDA)/IEP Amendment listing proposed modifications to the IEP based upon the executive functioning evaluation (S-15). Mother has never responded to the NPSDA/IEP Amendment.
On March 28, 2011 FPS filed the current hearing request before the BSEA, which was amended on April 21, 2011. Several pre-hearing conference calls/motion sessions took place and orders were issued. On April 21, 2011 the hearing was scheduled to take place in Foxborough on June 23-24, 2011. On June 15, 2011 Mother filed her response to FPS interrogatories (essentially not answering any questions); stated that she would call no witnesses and submit no documents; stated that she would attend the hearing for only 1 ½ hours on June 23, 2011, understanding that the hearing would continue without her; and requested that a court stenographer be present to record the testimony.
The hearing took place, in its entirely, on June 23, 2011. Mother was apprised of her rights and she restated her intentions as specified above. Mother was allowed to testify and then left the hearing. Witnesses were questioned by the School’s attorney, Father and the Hearing Officer. The written transcript was sent to Mother, once prepared, and she was given time to respond in writing which she did via her written closing argument.
ISSUE IN DISPUTE
Does FPS’ proposed IEP covering the period of December 2010 to December 2011 (S-12), as amended by the NPSDA/IEP Amendment of March/April 2011 (S-15), appropriately address Rick’s special education needs so as to provide him with a free and appropriate public education (FAPE) in the least restrictive educational environment?
STATEMENT OF POSITIONS
FPS’ position is that its proposed IEP for Rick, as amended, appropriately addresses his special education needs so as to provide him with FAPE in the least restrictive educational environment. FPS contends that Mother’s PA/PR of numerous IEPs promulgated over the last five years, combined with the assertions of placement pending appeal status to discrete elements of different past IEPs, is incredibly confusing and has resulted in uncertainty among the staff as to what it is that they are supposed to be implementing. FPS seeks BSEA affirmation of the appropriateness of its currently proposed IEP, as amended, so that FPS will have a “clean IEP’ from which they can move forward.
Mother’s position is that all partial rejections and stay put disagreements have been resolved amiably by the parties except two, one in the Plep B section and one in the additional information section of the IEP.
Father’s position is that he supports FPS’ proposed IEP, as amended, and desires that it be implemented as written.
BRIEF PROFILE OF STUDENT
Rick was most recently seen for a Developmental Behavioral Follow-up Evaluation on April 28, 2011 by Karen Miller, M.D., a developmental behavioral pediatrician at the Center for Children with Special Needs at Tufts Medical Center’s Floating Hospital for Children (CCSN). This evaluation (S-16) was not shared by Mother with FPS but was sent to FPS by Father (testimony, Grubert). Dr. Miller noted that Rick was a 12 year old boy being followed for Asperger’s Syndrome, an anxiety problem, concerns regarding ADHD/executive functioning issues, and stress related to divorce. Dr. Miller noted all of the specific materials received from FPS that she had reviewed. Dr. Miller reported that Father stated that this had been a break out year for Rick with good academics and increased social interactions. Dr. Miller summarized her evaluation as follows:
Overall [Rick] is a 12-year-old boy with mild Asperger’s Syndrome. Currently he is not meeting criteria for ADHD and recent testing did not show significant executive difficulties except on mother’s report. Minimal impulsivity/distractibility were noted today but were not impairing and this is not a typical context. Currently he does not meet criteria for anxiety disorder. He can get anxious and aroused in some situations and may behave impulsively at times. He benefits from structure and consistent management. Like many 12 year old boys personal hygiene is not always a priority but warrants continued efforts to improve the skills. Medication is not currently indicated.
[Rick] will continue to benefit from an IEP. Parents requested to send the full IEP for review. Strategies to improve transition to next year’s teachers were reviewed including writing a summary note of [Rick’s] strengths, weaknesses and successful strategies for working with him. He benefits from explicit directions and visuals but is functioning well on following direction according to teachers. [Rick’s] social skills have improved and he should continue to have opportunities to interact with typical peers. He will be participating in a basketball camp with typical peers which is a good idea. He will be participating in Camp Connect to continue working on his social skills. Makeup of the group should be carefully assessed as [Rick’s] skills have improved quite a bit and he now identifies with typical peers. He will continue to benefit from therapy as parents continue to have widely differing views of [Rick] and his needs. Therapist is essential to help [Rick] navigate his home life and continue to build his skills. Overall he’s done quite well. I would like to see [Rick] back in six months to review his progress.
(See S-16 for Dr. Miller’s complete evaluation.)
Pursuant to Mother’s request, in January 2011 Rick was administered an executive functioning evaluation (S-13) by FPS School Psychologist Seybert. In his Summary and Recommendations Mr. Seybert reported as follows:
[Rick] is an eleven year old sixth grade student who was referred by his mother for an executive functioning evaluation due to her concerns in the areas of organizing, planning, following through with tasks, implementing steps to a long-term project, prioritizing, modulating his emotional reactions and transitions. Formal testing in the area of executive functioning with [Rick] using the NEPSY-II revealed above average executive functioning ability. Rating scales of executive functioning filled out by his two core teachers and his father revealed typical profiles across all aspects of the scale. Ratings from his mother revealed significant concerns in the areas of Inhibition, Planning/Organizing, Self-Monitoring and Shifting. Observation of [Rick] within his classroom, lunchroom, art classroom and one-to-one testing revealed a child who completes work, attends and interacts with peers/adults in a manner that is fully typical to other students around him. His 5 th and 6 th grade report cards show A/B marks in all areas and he is doing well in all specialist areas (art, wellness, Spanish).
It is recommended that [Rick] receive “good training” interventions within his classroom. Like all students, [Rick] would benefit from monitoring of his comprehension of directions. Comprehension checks could be completed soon after directions are provided to the whole group. In order to help him with long-term assignments and complex writing projects, it is recommended that outlines and graphic organizers be employed. His breaks from the classroom (e.g., bathroom, locker) should be timed with transitions or non-academic portions of the day and be limited in time frame.
(See S-13 for complete evaluation.)
On the last assessments that were performed by FPS in November 2009 before Mother withdrew her consent on November 4, 2009, Rick’s reading skills were in the high average to superior range, math skills in the average to superior range, writing in the low average range and receptive/expressive language in the above average range. Psychological evaluation revealed a happy, social, engaging child with strengths and weaknesses. Strengths included verbal abilities, visual and verbal memory, and concept formation skills, with weaknesses in efficient information processing, sustained attention and planning/organization. Rick displayed a positive attitude and was consistently cooperative in school. (See S-1.)
SCHOOL’S PROPOSED PROGRAM
Under FPS’ proposed IEP/Amendment Rick would receive the following direct special education services/related services in settings other than the classroom (Grid C): Social Skills from the social worker for 30 minutes once per cycle; Speech-language therapy from the speech-language therapist and social worker for 60 minutes once per cycle; and Occupational therapy from the occupational therapist for 43 minutes once per cycle. Within the classroom (Grid B) Rick would also receive a social skills group with the social worker for 30 minutes once per cycle. All Rick’s service providers would consult for 15 minutes once per cycle regarding their work with Rick and his progress in their settings (Grid A). Except for these special education services, Rick is fully integrated into the regular education classroom in all areas i.e., Rick participates in a full inclusion program.
(See S-12, 15; testimony, Grubert; Robbins; Compellone; Keene.)
FINDING AND CONCLUSIONS
It is undisputed by the parties and confirmed by the evidence presented that Rick is a student with special education needs as defined under state and federal statutes and regulations. The fundamental issue in dispute is listed under ISSUE IN DISPUTE , above.
Pursuant to Schaffer v. Weast 126 S.Ct. 528 (2005) the United States Supreme Court has placed the burden of proof in special education administrative hearings upon the party seeking relief. Therefore, in the instant case, FPS bears the burden of proof in demonstrating that the proposed 2010-11 IEP, as amended, was/is appropriate to address Rick’s special education needs so as to provide him with FAPE in the least restrictive educational environment. Based upon the oral testimony, the written documentation introduced into evidence, and a review of the applicable law, I conclude that FPS has more than sufficiently met that burden. I conclude that FPS’ proposed IEP for Rick was/is appropriate to provide Rick a FAPE in the least restrictive educational environment.
My analysis follows.
Cathleen Robbins was Rick’s 6 th grade English/Language Arts (ELA) and social studies teacher. She was also Rick’s homeroom teacher and supervised Rick’s recess period. Ms. Robbins is certified in elementary education and moderate special needs. Alicia Campellone was Rick’s 6 th grade math and science teacher. She is certified in elementary education but also minored in special education. Both of these teachers testified regarding what they taught in their classes and Rick’s progress within their classes. Rick’s homeroom consisted of 22 6 th grade students and these 22 students attend all academic classes as a group.
Ms. Robbins testified that on the Massachusetts Comprehensive Assessment System (MCAS) ELA examination administered in March 2011, Rick scored within the proficient range. She testified that Rick had made good progress in ELA and social studies. She also described, in detail, a multi-step, complex assignment which she suggested to Rick be modified for him. She stated that he responded that he was going to do the same as and not be different from anyone else and that he did an exceptional job. Ms. Robbins testified about Rick’s good participation with others when working on group projects and his ability to compromise. She testified that socially and behaviorally Rick was “a really great model in the classroom. He didn’t have any issues” (Tr. p.61). She went on to testify “ He was just regular education. In fact, I was very pleased to see him develop some nice, strong friendships this year.” (Tr. p.62). She went on to describe her observations of Rick at recess including sitting and talking with friends about sports. (See testimony, Robbins.)
Ms. Campellone testified that Rick is an excellent math student, does computations with ease, and has great ability to think abstractly. She testified that Rick did very well in science as well with an excellent memory for details, good ability in understanding concepts, participating in class, and helping other students. Ms. Campellone testified that socially Rick was very friendly with peers, often worked with a partner or in small group on science projects, worked well with other students, actively participated and focused upon getting his work done. (See testimony Campellone.)
Ms. Robbins and Ms. Campellone’s testimony is supported by Rick’s report cards. All of Rick’s grades for 5 th grade (with different teachers) were in the A to B range with comments such as “Good effort”, “excellent attitude”, and “excellent behavior”. (See S-10.) Rick’s report card for 6 th grade (S-17) shows all A and B grades with an A- for each of his core academic subjects of ELA, math, science, and social studies. (See also 11/10 and 2/11 Progress Reports – S-11, 14 – for Rick’s good progress within his special education areas.)
Mary Beth Keene has been Rick’s speech-language pathologist during the last two school years. She has her state licensure plus ASHA certification. Within FPS she provides speech-language services for students who have learning disabilities or who are diagnosed on the autism spectrum, including Aspergers’s Syndrome. She also teaches social skills. Ms. Keene has provided Rick with speech-language therapy which addresses social pragmatics. She also co-treats Rick with the school social worker, Ms. Normandin, in a social skills group for students on the autism spectrum. This social skills group works on learning social skills including social rules, idioms, conversational skills, friendships, acquaintances, friendly teasing, bullying and other topics pursuant to a published curriculum Thinking Social . Ms. Keene testified that Rick is a very bright boy; that he was a leader within the group often coming up with his own idiom of the week; that he actively participated in role-play; and that Rick has made good social progress over the last school year. (See testimony, Keene.)
Robert Rosetti is the school librarian at Ahearn Middle School. He has a bachelor’s degree in special education and a masters degree in library science. Mr. Rosetti knows Rick in two capacities. First, Rick comes to the library with his class once per week where he is taught how to utilize all aspects of the library and its resources. Second, Rick has participated in homework club, which is supervised by Mr. Rosetti, for 50 minutes, twice per week over the last two school years. The size of the homework club varies between 15-30 students on any given day. Mr. Rosetti testified that Rick has never acted inappropriately in the school library and gets right to work and maintains his attention to task in the library and during afterschool homework club. Mr. Rosetti testified that Rick has so much earned his trust that over the last half of the 2010-2011 school year when the library is quite full, he allows Rick and his friend to work in a separate library classroom. Mr. Rosetti testified that he has seen “incredible progression in [Rick] to the point where he now has the ability, and I don’t think he had when he first came, to see the world from the perspective of other kids”. (Tr. p.144). Mr. Rosetti went on to describe a specific example. (See testimony, Rosetti.)
Father also provided heartfelt, emotional testimony in which he stated his support for FPS’s proposed IEP for Rick and his respect and admiration for FPS administrators and teachers for how they do their jobs and how they have helped Rick to progress. “The school is just fantastic. The IEP reflects that”. (Tr. p.149.) Father also testified:
To me its overwhelming to see all these people. They’re not the parent. The effort they put in for [Rick] is just – its just unbelievable. [Rick] is where he is today not because – yeah I’m the dad and she’s the mom. Its right here how they progressed him. And its just fantastic. I hope I made my point about the IEP and all the people here. (Tr. p. 151.)
He did better in homework in this school. He did better – the people in this school helped him make friendships, more friendships and this year he really blossomed. (Tr. p. 152.)
But I’ve seen so many improvements since he got to this school because he had a couple of moves, he went to three different schools. There’s stability here. These two teachers this year, he loves them. I mean, because he knows, when he walks into that class, that if there’s a problem, maybe not homework done or something like that or he was late, he had a problem with mom. . . . So he has no fear of coming to school because he knows his teachers. Yeah, they’re going to make him do the work, but they’re going to help him do the work. So getting along socially, every which way possible, just it’s fantastic. The IEP is good. (Tr. p. 153-153.)
(See Complete testimony of Father)
In summary, the evidence is overwhelming and unrebutted that Rick has made substantial progress in FPS over the last two years and especially in the recently completed 2010-2011 school year. The developmental-behavioral evaluation of CCSN’s Dr. Miller in April 2011 (S-16; PROFILE OF STUDENT, above); the executive functioning evaluation of School Psychologist Seybert in January 2011 (S-13; PROFILE OF STUDENT , above); and the testimony of Rick’s two teachers, speech-language pathologist and library teacher / homework coach all demonstrate a student who is progressing academically, socially, and behaviorally in his full inclusion FPS setting with limited special education services. I find that in all school areas, Rick is truly a success story.
I place substantial weight on the testimony of Ms. Robbins and Ms. Campellone who each taught Rick on a daily basis for 2-3 periods over the last school year. Similarly, I place substantial weight on the testimony of Ms. Keene who has provided Rick with language/social therapy for 2-3 periods per week over the last two years; and on Mr. Rosetti’s testimony who has also interacted with Rick approximately 2-3 periods per week over the last two years. I also note that Mr. Seybert’s executive functioning evaluation was done over a period of days with observations of Rick in different school and social settings. I find the testimony of these professionals to be compelling. I also note Father’s testimony that over the last four years he has had Rick with him for 3 days per week and participates in all team meetings and school activities concerning Rick. Therefore, his observations of Rick, over time, are given significant weight.
Based upon the totality of testimony, and the evaluations of Dr. Miller and Mr. Seybert, only Mother sees Rick as more disabled. Unfortunately, Mother chose not to participate fully in this hearing and only testified regarding the area which she perceives to be at issue. However, even Mother testified, before she left the hearing:
And I can say this either on or off the record, but I think [Rick] has made great progress this year. I have seen really, really good progress and especially socially, and I’m really impressed and I thank you for your work. (Tr. P.22)
I conclude that FPS’ proposed IEP for Rick covering December 2010 to December 2011 (S-12), as amended by the NPSDA/IEP amendment of March/April 2011 (S-15), is entirely appropriate, as written, to address Rick’s special education needs and clearly provides Rick with a FAPE in the least restrictive educational environment. This IEP is highly detailed and comprehensive, with well written goals and objectives. This IEP portrays an accurate picture of Rick, his strengths, and his areas of weakness. The special education services Rick receives are specifically tailored to address his areas of weakness while the IEP maximizes his strengths through his full inclusion in regular education class.
Although Mother had rejected S-12 for numerous reasons, she testified that there are now only two areas of dispute (testimony, Mother; M-1). Mother believes that Behaviors should be checked off an as area of concern for Rick. FPS disagrees. Based upon the unrebutted evidence, I conclude that Rick’s current behavior is no area of concern and that this box need not be checked. Mother’s other area of dispute is that FPS, in S-12, has already agreed to continue to fill out a classroom situation stress profile for Rick that was added to the current IEP from a prior IEP in a prior district. However, Mother wants each staff member to sign off that they had received a copy of such profile and to provide such written acknowledgement of receipt to Mother. (See S-12; testimony, Mother.) FPS staff find such a requirement to be excessive and insulting (testimony, Robbins; Compellone; Grubert). I concur that such a requirement is excessive, unnecessary and need not be done.
I agree with FPS that the maze of five years of PA/PR IEPs, compounded by various assertions regarding placement pending appeal rights to discrete elements of prior IEPs is a confusing morass. Such a situation is unworkable. Further, such minutiae is not required given Rick’s progress and current functioning level. An IEP is designed to be a functional blueprint for addressing a student’s special education needs, not an encyclopedia.
ORDER
FPS’ 2010-2011 IEP as amended is fully appropriate, as written, to address Rick’s special education and provides him FAPE in the least restrictive educational environment.
By the Hearing Officer
______________________
Date: September 2, 2011
1
Rick is a pseudonym chosen by the Hearing Officer to protect the privacy of the student in publicly available documents.