COMMONWEALTH OF MASSACHUSETTS
SPECIAL EDUCATION APPEALS
Sharon Public Schools v. Student
BSEA #09-3175
DECISION
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 under said statutes.
A hearing was held on December 9, 2008 at the Bureau of Special Education Appeals before Catherine M. Putney-Yaceshyn, Hearing Officer.
PROCEDURAL HISTORY
Sharon Public Schools requested an expedited hearing on November 19, 2008 and the hearing was held on December 9, 2008. Both Parents participated in the hearing via telephone conference call by agreement of the parties. Both parties made oral closing arguments and the record closed on December 9, 2008.
Those present for all or part of the Hearing were:
Mother1
Father2
Steven Kaplan Director of Special Services, Sharon Public Schools
Kevin O’Rourke Principal, Sharon Middle School
Chris Mathews Instructional Assistant, Sharon Public Schools
Rachel Memeth Cohen Special education coordinator, Sharon Middle School
Naami Turk Consulting Clinical Psychologist to Sharon Public Schools
Thomas Nuttall Attorney for Sharon Public Schools
Catherine Putney-Yaceshyn Hearing Officer
The official record of this hearing consists of Sharon Public Schools’ exhibits marked S-1 through S-15, Parent’s exhibits marked P-A through P-E; and approximately three hours of recorded oral testimony.
ISSUES
1. Whether the IEP proposed on November 3, 2008 for the period from November 3, 2008 through November 3, 2009 is reasonably calculated to provide Student with a free appropriate public education in the least restrictive environment.
2. Whether Parents ongoing refusal to permit Sharon Public Schools to implement such services constitutes a denial of a free appropriate public education to Student.
SUMMARY OF THE EVIDENCE
1. The student (hereinafter, “Student”) is a twelve-year-old student sixth grade student who resides in Sharon and attended the Sharon Middle School until a disciplinary incident on October 25, 2008. (S-2, O’Rourke)
2. Student has “a constellation of cognitive, perceptual, communication, motor and behavioral impairments. These impairments result in general developmental delay and cause [Student] to operate in all functional capacities well below typical expectations for his chronological age.” He has been diagnosed with attention deficit hyperactivity disorder and Pervasive Developmental Disorder. (S-15)3 His speech intelligibility and social communication abilities are reduced. (S-2)
3. Student has received special education services somewhat sporadically since he was in Kindergarten because his parents have withdrawn their consent for Student to receive special education services at various times. When special education services were removed at parents’ request, Student’s disruptive and inappropriate behaviors increased. At such times, he became dangerous to himself and to others and remains so on occasion even with supports. However, with consistent implementation of his behavior plan in 2005 and 2008, Student’s behavior improved over time and allowed him to make slow academic progress. (S-15)
4. Student was the subject of a BSEA decision issued on May 15, 2008, by Hearing Officer, Lindsay Byrne. I take administrative notice of that decision which is marked as S-15. In that decision, the hearing officer found that the 2008-2009 IEP developed by Sharon was reasonably calculated to provide a free, appropriate public education to Student. She also found that Parents’ rejection of special education services and enrollment in an entirely regular education program would abrogate Student’s individual rights as a student with a disability to a free, appropriate public education. (S-15)
5. Student moved to Texas to live with his father in April 2008 and attended an elementary school there. Student’s Father enrolled him as a regular education student and did not allow for Student to receive special education services. Student was suspended for physical aggression over ten times during the two months that he attended school in Texas. His aggressive behaviors decreased significantly after he was placed in a classroom with two teachers and minimal academic demands. Student failed his academic classes and scored in the extremely low range on standardized testing while in Texas. If he had remained in Texas he would have been retained in the fifth grade. (S-2, O’Rourke, Father)
6. Student returned to Sharon Public Schools on September 22, 20084 . Mother registered Student as a regular education student and he was assigned to a regular education team. Student began engaging in inappropriate classroom behavior almost immediately. He refused assistance from the teacher and the instructional assistant and would scream, “Get away from me!” and “I don’t want your help!” when staff attempted to assist him in the classroom. He would perseverate on things in the classroom as well. On one occasion he had not completed his homework. His teacher instructed him to complete the work in class and he shouted that homework was to be done at home. His outbursts were often accompanied by arm waving and screaming and his behaviors frightened students and staff. He was having behavioral incidents on an almost daily basis. Often Student would refuse to leave the classroom when a staff member tried to remove him to another setting to calm down. When he did leave the classroom he would often continue screaming. Many times he attempted to do school work and became frustrated and would “explode.” The teaching staff would remove him from the room and occasionally he would be able to return to the next class. He rarely made it through a day without being removed from his general education classroom. (O’Rourke)
7. On October 25, 2008, Christine Mathews, the instructional assistant in Student’s class, was in social studies class with Student. The students were doing a project with scissors. Student looked at Ms. Mathews and the classroom teacher and shouted that he hated them and waved the scissors around. Ms. Mathews tried to take the scissors from him and he almost cut her and then ran toward the front of the room. Mr. O’Rourke, the school principal, was called to Student’s classroom to assist because Student’s behavior had become dangerous. As he approached the classroom he could hear Student yelling from several doors away. He brought Student to his office and could not calm him. Student told Mr. O’Rourke he would hit him if he called his home and lunged at him swinging his arms over his head. Mr. O’Rourke called student’s Mother who arrived approximately twenty minutes later. Student waved his arms at Mother and said he did not want to go with her. (O’Rourke)
8. Mr. O’Rourke suspended Student for six days as a result of the October 25, 2008 incident. He requested that a safety evaluation of Student be conducted and convened a Team meeting. (O’Rourke)
9. Naami Turk, Psy.D, is a consulting clinical psychologist to the Sharon Public Schools and a Massachusetts licensed clinical psychologist. She was asked to conduct a safety evaluation of Student and was familiar with him from prior evaluations she had conducted. She described Student’s mental status during the evaluation as stable and based in reality. She explained that Student did not show any remorse regarding the incident and also did not indicate any intent to act aggressively. Instead, he flatly denied that the incident occurred. He did not feel badly about the incident because he did not think he had done anything wrong. She explained that Student’s thinking can be very inflexible. Additionally, he does not feel safe at Sharon Middle School. Student thinks that staff members try to get him mad intentionally. He could not understand why the rules regarding reading out loud are different in the general education classroom than in the substantially separate classroom. He was not able to shift his cognitive perspective of how others may have felt during the scissors incident. Dr. Turk observed inappropriate self-stimulatory behaviors such as hair pulling, shifting in his seat, and repeating things in a perseverative manner.
10. Dr. Turk concluded that Student did not see his behavior as unsafe, but he feels unsafe. Additionally, Student is not able to demonstrate accountability for his actions that lead to the suspension. She recommended that Student be educated in an environment where his cognitive and behavioral needs can be better evaluated. She stated that he needs a small setting with structure and very consistent rules. She indicated Student would benefit from a clearly communicated and highly structured behavior plan that informs him of expectations in the academic, behavioral and social domains. She believes that Student needs to gain functional self-care skills pertaining to hygiene and functional daily living skills. She believed that over time he could return to the inclusion setting for portions of his day. (Turk)
11. The Team convened on November 3, 2008 to review Dr. Turk’s safety evaluation. Sharon staff expressed their desire for Student to participate appropriately and safely as a sixth grader in the Sharon Middle School community and utilize all of the supports and services he requires for optimal academic and social success. Father’s expressed his desire for Student to have as much of a “normal schedule” as possible. He requested that Student be permitted to attend all classes within general education, with small groups for reading and math. Additionally, Father advocated for Student to be taught the sixth grade curriculum and be held to the same standards as other sixth graders in all of his academic work.
The Team discussed the fact that Student had returned to Sharon and attended school for approximately four weeks. He was suspended for over ten days during that period. He had been very disruptive and non-compliant in all of his sixth grade classes. He handed in incomplete homework and his test and quiz scores have been extremely low. His teachers were unclear as to what Student understood in his sixth grade classes due to his sporadic attempts at homework, classwork, and projects. Student often becomes belligerent when offered assistance, such as a scribe or a suggestion to type his work in school. On several occasions Student has had outbursts and has not been able to return to the classroom because he has become increasingly agitated and full of rage. The staff is concerned about Student’s safety and the safety of others when he raises his arms in a threatening manner and when he verbally screams threats to them.
The Team recommended a number of accommodations to assist Student in the classroom. The accommodations included but were not limited to providing positive reinforcement at all times to foster appropriate behavior, providing sensory motor activities/motor breaks to facilitate attention and compliance, utilizing a multisensory approach to teaching, providing Student with an adult scribe for writing tasks or allowing Student to use a keyboard. Father objected to Sharon’s providing Student with accommodations and insisted that Student work at grade level with no modifications.
The Team recommended that Student receive small group instruction for all academics and specials. It recommended facilitated social interaction with peers and adults to reinforce appropriate behavior. The Team also recommended Student receive individualized support for instruction and reinforcement of receptive/expressive language and articulation skills, reading and math. A daily behavioral plan with appropriate rewards and reinforcement was recommended. The Team recommended a modified sixth grade curriculum including homework and tests.
The Team proposed that Student be educated in a substantially separate classroom. They proposed a weekly consultation in speech and language, occupational therapy, physical therapy, and by the special education teacher. They recommended direct services in a separate setting for speech and language 1 x 40 minutes per cycle to address social skills and pragmatics; occupational therapy 1 x 30 minutes per cycle; classroom instruction by a special education teacher and/or special education assistant 5 x 45 minutes per cycle in a substantially separate classroom for math, English Language Arts, science, and social studies; a 1:1 instructional assistant 5 x 45 minutes per cycle in a substantially separate classroom for math, English Language Arts, science, and social studies; and adapted physical education with the physical therapist 1 x 40 minutes per cycle.
The Team determined that Student is very frustrated in the general education classes which may explain the increase in his acting out behaviors. The Team feels very strongly that an inclusive environment is detrimental to Student and that he requires a smaller, more contained environment where he can receive individualized assistance and work on a modified curriculum that meets his academic needs. They also determined that he required a behavior intervention plan which they indicated was attached to the IEP5 .
12. Student has been receiving one to one tutoring sessions, taught by Christine Mathews, at the Sharon High School in a conference room in the Special Services Office since a Team meeting was held on November 3, 2008 during which the Team determined Student required an alternative placement. (O’Rourke, Kaplan, Mathews) Ms. Mathews testified that Student struggles with number sense and comprehends very little of what he reads. She noted that when he struggles with his behavior, they get nothing done during tutorial sessions. She noted that the first day that she tutored Student the session went very well. However, the second day of tutoring he had not finished his homework and he perseverated on that. He often yells and screams at her and has yelled so loudly that the school resource officer and the high school principal have come to the room to investigate. When Student feels that he cannot do an assignment his behaviors escalate. He sometimes tries to run out of the room and has been sent home from tutoring due to his behaviors during the past two weeks. Ms. Mathews does not believe Student benefits from instruction in the sixth grade curriculum because there are too many gaps in his knowledge. (Mathews)
13. Ms. Mathews was the instructional assistant in Student’s regular education classes before he was removed. He had difficulty with her presence and would scream at her when she tried to help him. He refused help from both Ms. Mathews and the classroom teacher, refused Ms. Mathews scribing, and refused help from all teachers and aides. Ms. Mathews noted that Student’s writing is illegible and when asked he could not read back to her what he had written. (Mathews)
14. Steven Kaplan is the Director of Special Services at Sharon Public Schools. He became aware of Student’s behavioral issues very soon after Student began attending Sharon Middle School. He has had two or three telephone conversations with Father, most recently on December 15, 2008. During that conversation he relayed Sharon’s concern that Student is frustrated by the demands that he do grade level work. He explained to Father that Sharon wanted to provide Student with instruction that would enable him to learn. Either he, Mr. O’Rourke, or Ms. Cohen have responded every time he received a communication from Father.
15. Mr. Kaplan testified that he has had to intervene during Ms. Mathews’ sessions with Student on may occasions. His office is right outside of the room where the tutorial is held and he often hears Student screaming. He has received two e-mails from department chairs requesting that he find an alternate location for Student’s tutoring because of the disruption he causes. He has also overheard Student perseverating about different issues and noted that it is difficult for Student to shift once he is focused on one task.
16. Mr. Kaplan thinks that the IEP proposed at the November 3, 2008 meeting is appropriate for Student because it addresses all of his areas of need. He explained that Student requires a great deal of structure and a small learning environment where he will not be frustrated and where he will have success in learning. He has requested parental consent to send packets to out of district placements, but Parents have not consented. He has sent blind referral packets to the Charms Collaborative, South Shore Collaborative, and one other school. The Charms program indicated they had a program that appeared to meet Student’s needs based upon Sharon’s referral packet. The Charms program is for middle school students with a range of abilities. There are currently six students enrolled in the program which is taught by one teacher and two assistants. The program can provide speech therapy, occupational therapy, physical therapy, and any necessary related service. The program could implement Student’s proposed IEP. (Kaplan)
17. Father testified that he believes that Student should be instructed in grade-level work and should be tested at grade-level. He is working with Student to try to catch him up to grade level. He believes that Student’s last accepted IEP could be effective for Student, but it has to be given a chance. He agrees that Student is not currently at grade-level and blames Sharon Public Schools for providing “improper special education.” He feels that it is unfair not to offer Student “exit criteria” for exiting special education. He wants Sharon Public Schools to agree that when Student achieves grades of seventy-five percent in all of his academic classes he will be permitted to be educated in the general education environment. (Father)
18. Mother testified that she does not think that Student has a disability and she sees “no problems with” Student. She does not see him hurt others or himself. She testified that he is a good boy and is funny. (Mother)
FINDINGS AND CONCLUSIONS:
Student is an individual with a disability, falling within the purview of the Individuals with Disabilities Education Act (IDEA)6 and the state special education statute.7 As such, he is entitled to a free appropriate public education (FAPE). Although Parents do not acknowledge that Student has significant disabilities, they did not challenge his eligibility in this hearing. Thus, neither his status nor his entitlement is in dispute. Under the FAPE standard, the IEP proposed by the school district must offer the student a free appropriate public education that meets state educational standards. This education must be offered in the least restrictive environment appropriate to meet the student’s individual needs8 . Federal law also requires that the student be able to fully participate in the general curriculum to the maximum extent possible. 20 USC § 1415(d)(1)(A)(iii); 34 CFR 300.347(a)(2)(I) and (a)(3)(ii); 64 Fed. Reg. No. 48, page 12595, column 1; See also, In Re: Worcester Public Schools, BSEA # 00-1912, 6 MSER 194 (2000).
Additionally, the student’s education must be offered in the least restrictive environment appropriate to meet his/her individual needs9 . 20 USC §1414(d)(1)(A)(iii); 34 CFR 300.347(a)(2)(i) and (a)(3)(ii); 64 Fed. Reg. No. 48, page 12595, column 1; MGL c. 71B § 1; 603 CMR 28.02 (12). See In re: Worcester Public Schools , BSEA # 00-0912, 6 MSER 194 (SEA MA 2000) and In re: Gill-Montague Public Schools District , BSEA # 02-1776, August 28, 2002.
As stated by the federal courts, the LEA is responsible to offer students meaningful access to an education through an IEP that provides “significant learning” and confers “meaningful benefit” to the student10 , through “personalized instruction with sufficient support services …”11 . The requirements of the law assure the student access to a public education rather than an education that maximizes the student’s individual potential. Lenn v. Portland School Committee , 998 F.2d 1083 (1 st Cir. 1993); GD v. Westmoreland School District , 930 F.2d 942 (1 st Cir. 1991).
The burden of persuasion in an administrative hearing challenging an IEP is placed upon the party seeking relief. Schaffer v. Weast , 546 U.S. 49, 126 S. Ct. 528, 534, 537 (2005) In this case, Sharon is the party seeking relief, and thus has the burden of persuading the hearing officer of its position.
In the most recently proposed IEP, Sharon proposes Student be placed in a substantially separate classroom to address his academic and behavioral needs. The settings that they have considered are out-of-district settings because Sharon does not have a program that can provide the services the Team deems necessary for Student. Both state and federal law require that special education students are educated in the least restrictive environment. This means that to the maximum extent appropriate, students with disabilities must be educated with students who do not have disabilities. Programs and services can only be implemented in separate settings when the nature and severity of the child’s special needs is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily. See 20 U.S.C. 1412 (5)(A).
The evidence before more resoundingly shows that Student is not able to make progress in the general education setting. Although Parents do not acknowledge Student’s disabilities, his disabilities are significant and impact his learning to a large degree. Student was not successful during his time in Texas nor was he successful in the general education environment in Sharon as evidenced by the significant number of behavioral episodes he experienced in both settings and his lack of academic success. He is also not successful in the one to one tutoring sessions with Ms. Mathews. He is apparently frustrated by the grade-level academic demands even in the one to one environment.
The IEP proposed by Sharon for the period from November 3, 2008 through November 3, 2009 proposes supports for Student in all of his areas of need. It proposes modified curriculum to address Student’s academic weaknesses and address his frustration. It proposes speech language therapy to address his deficits in that area. It proposes occupational therapy to address his weaknesses in visual motor and fine motor skills, motor speed and sensory modulation. Additionally, the IEP proposes that Student receive all of his academic instruction in a small setting with a special education teacher and a 1:1 instructional assistant. Additionally, the IEP included a behavioral plan, which has proven to be effective for Student in the past.
Steven Kaplan credibly testified that the IEP would meet all of Student’s identified needs. I relied upon Dr. Turk’s testimony regarding her evaluation of Student. I found her to be credible and knowledgeable of Student’s needs especially given her prior history of evaluating him. The IEP is responsive to her clinical recommendations for an appropriate program for Student, namely a small and structured setting with clear expectations.
Sharon has identified the Charms Collaborative as having a program that would be appropriate to meet Student’s needs. Although Sharon did not provide extensive information about the program, it appears that the program would be able to provide all of the services required by Student’s IEP and as such it would be an appropriate placement for him.
It is unfortunate that Parents do not recognize Student’s significant needs and the way they impact his ability to learn. Student appears to be becoming increasingly frustrated with his academic limitations and clearly requires special education services. It is also apparent that Student has developed the opinion that he should not accept help from teachers and instructional assistants at school. His belief that he should not accept help from those whose job it is to assist him is not going to aide him in his learning. The Team should consider adding a weekly counseling session to Student’s IEP to assist Student in recognizing his learning differences and assure him that it is appropriate to seek assistance from teachers, instructional assistants, and other school staff.
I find that the IEP proposed by Sharon for the period from November 3, 2008 through November 3, 2009 is reasonably calculated to provide Student with a free appropriate public education in the least restrictive environment. I further find that insisting that Student be educated in the general education setting does a great disservice to Student and has created an environment that has been unsafe for Student, staff, and peers. Student has demonstrated that he is unable to access the curriculum in the general education environment and that he has become frustrated by his difficulty. Student requires supports and services to access the curriculum.
ORDER
Based upon the foregoing, I find that Sharon’s proposed IEP for the period from November 3, 2008 through November 3, 2009 is reasonably calculated to provide Student with a free appropriate public education in the least restrictive environment. Sharon shall take whatever steps it deems necessary to allow it to implement this IEP. Additionally, the Team shall consider whether Student requires counseling to address his refusal to accept assistance from staff.
I further find that Parents ongoing refusal to permit Sharon Public Schools to implement such services constitutes a denial of a free appropriate public education to Student and that his continued attendance in the regular education public school environment poses a substantial risk of danger and disruption to Student and others.
By the Hearing Officer,
____________________________________
Catherine M. Putney-Yaceshyn
Dated: December 18, 2008
1
Mother participated in the entire hearing via telephone conference call.
2
Father participated in the entire hearing via telephone conference call.
3
The record in the instant case does not otherwise contain evaluation reports other than the Safety Evaluation completed by Dr. Turk. However, the decision rendered in BSEA # 08-4524 (May 15, 2008) is part of the record and its findings were based upon a thorough review of medical, developmental, psychological, and educational evaluations. (S-15) There is no evidence that Student’s profile has changed since May 2008.
4
Sharon’s academic year began on August 26 or August 27, 2008. (O’Rourke)
5
The IEP in the record did not contain the behavior intervention plan. (S-2)
6
20 USC 1400 et seq .
7
MGL c. 71B.
8
20 USC 1412(5)(A)
9
20 USC 1412(5)(A); 603 CMR 28.02(12)
10
For a discussion of FAPE see Hendrick Hudson Bd. Of Education v. Rowley , 458 U.S. 176, 188-189 (1992); Cedar Rapids Community School District v. Garret F., 526 U.S. 66 (1999); Burlington v. Department of Educatio n , 736 F. 2d 773 (1 st Cir. 1984). Houston Independent School District v. Bobby R ., 200 F.3d 341 (5 th Cir. 2000); Stockton by Stockton v. Barbour County Bd. of Educ., 25 IDELR 1076 (4 th Cir. 1997); MC v. Central Regional School District , 81 F.3d 389 (3 rd Cir. 1996), cert. denied 519 US 866 (1966); Ridgewood Board of Education v. NE , 30 IDELR 41 (3 rd Cir. 1999). See also GD v. Westmoreland School District , 930 F.3d 942 (1 st Cir. 1991).
11
Board of Education of Hendrick Hudson Central School District v. Rowley, 458 U.S. 176, 203, 102 S.Ct. 3034, 3049 (1982).