COMMONWEALTH OF MASSACHUSETTS
SPECIAL EDUCATION APPEALS
In Re : Student v. Hanover Public Schools
BSEA # 06-1157C
Ruling on Parents’ Motion for Compliance with the BSEA Decision and Hanover Public Schools’ Objection to Parents’ Motion
On May 22, 2006, Parents in the above referenced matter filed a Motion Contending That The Decision By DOE1 Regarding BSEA # 06-1157 Is Not Being Implemented By The Town Of Hanover. This matter is being brought under Rule XV of The Hearing Rules For Special Education Appeals , which allows a party contending that a decision of Special Education Appeals is not being implemented to file a motion requesting Special Education Appeals to order compliance with the decision.
The motion shall set out the specific areas of alleged non-compliance. The Hearing Officer may convene a hearing at which the scope of inquiry will be limited to facts bearing on the issue of compliance, facts of such nature to excuse performance, and facts bearing on a remedy. Upon a finding of noncompliance, the Hearing Officer may fashion appropriate relief and/or refer the matter to the Legal Office of the Commonwealth of Massachusetts Department of Education for enforcement.
Parents argue that Hanover Public Schools (Hanover) failed to provide a specific plan that ensured that the inclusion piece was language-intensive as called for by the decision. First, according to Parents, Student would not have sufficient opportunities to practice reading during the course of the day and that where Student was given opportunities to read in the inclusion classrooms, she would be singled out. Second, Dr. Gina Hurley (Ed. D., Educational School Psychologist for Hanover) and Ms. Stacie Barlow (MS CCC-SLP in Hanover) did not observe the proposed program prior to Student’s Individualized Educational Plan (IEP) meeting and when they observed the program they opined that no changes were needed. Third, while the decision called for individual daily Orton-Gillingham services by a qualified instructor, Parents allege that Student’s schedule actually offered her two 28 minute and three 62 minute sessions per week.
Student would receive Orton-Gillingham at the expense of missing a substantial amount of specials such as “gym, music, art and computer” limiting her opportunities to socialize and creating a very restrictive environment. Fourth, Ms. Bartlett, the proposed instructor, is not appropriately trained and is not sufficiently experienced in Orton-Gillingham. Parents state that Ms. Bartlett, is not knowledgeable enough with the level 4 Orton-Gillingham material.
As a result of the non-compliance, Parents request that Hanover continue funding Student’s placement at Carroll School for the entire 2005-2006 school year. They also seek reimbursement for Student’s participation in summer school.
On May 25, 2006, Hanover filed its Objection to Parents’ assertion that it had not fully implemented the orders pursuant to the February decision. According to Hanover, the Team developed a more specific plan that provides opportunities for Student to practice reading across all settings; specific suggestions were made by Dr. Hurley and Ms. Barlow which were incorporated into the IEP and additional observations were made by them.
On June 1, 2006, Hanover requested that the Motion be decided on the written information submitted by the Parties in lieu of a hearing. The request was granted on the same date. This Ruling takes into account all of the pleadings and documentary submissions made by the Parties through June 19, 2006.
The Decision issued on February 16, 2006, contained the following Orders:
1. Hanover shall convene the Team and modify its IEP consistent with this decision and shall incorporate the following:
· The Team shall develop a more specific plan to ensure that the inclusion piece (the regular education piece) is language-intensive, that instruction is presented in a manner that Student can access, and that there are frequent opportunities for staff to check on Student. Additionally, the plan must provide opportunities for Student to practice reading, writing and speaking skills across all settings. Dr. Hurley, Ms. Barlow, Ms. Therrien, Ms. Apuzzi and the regular education teachers must be present at the Team meeting. If the regular education teachers and/or the aide require additional training, as assessed by Dr. Hurley and Ms. Barlow, this must be provided.
· Dr. Hurley and Ms. Barlow shall conduct additional observations of the proposed classes at Hanover so that they may provide specific suggestions on how to implement their recommendations for Student across all settings. The number of observations will depend on what Dr. Hurley and Ms. Barlow deem necessary. Dr. Hurley and Ms. Barlow must develop a plan regarding coordination and implementation and must present it to the Team. Additional opportunities for them to observe the classes once the recommendations are implemented shall be built into the plan to ensure that the implementation is appropriate.
· Individual Orton-Gillingham instruction must be offered daily for 45 minutes.
· Hanover must carefully plan coordination between the inclusion and substantially separate portions of Student’s proposed program. To the extent possible, Hanover should use consistent tools and strategies across all settings to assist Student.
· All service delivery staff must be appropriately trained to deliver the service they will be responsible to deliver.
2. Hanover shall reimburse Parents for Student’s placement at Carroll and transportation from the beginning of the 2005-2006 school year, until it offers Parents an IEP consistent with this decision and is prepared to provide said program.
3. Hanover shall not reimburse Parents for any expenses associated with the testimony of Dr. Benkov including her preparation time or presence at the hearing.
Student’s Team convened on April 7, 2006 in accordance with the decision and modifications were made to Student’s IEP covering the period from July 21, 2005 through July 21, 2006. (PE-A) This IEP incorporates the modifications ordered in February 2006 including the multiple observations to ensure that the program is appropriate for Student and modified as needed. (PE-A) The IEP also provides for Student to participate in music, art and physical education; participation in summer tutoring in a multisensory approach for 90 minutes, three days per week, for seven weeks to continue work on reading, writing and spelling. Regular transportation will be provided in the same manner as it would be provided to students without disabilities. (PE-D)
On April 12, 2006 Dr. Hurley observed the program and recommended no additional modifications. (PE-B) She was supposed to have observed the program on April 7, prior to the Team meeting, but according to James Shillinglaw, the students were not engaged in the typical program on that date so Dr. Hurley returned on April 12 th to observe the proposed program at which time she recommended no changes. Parents state that none of the observations ordered were made prior to Student’s IEP meeting. (Father’s Affidavit Amendment dated June16, 2006)
Additionally, Hanover asserts that Ms. Barlow conducted two additional observations (March 29 and April 5, 2006) during the course of the development of the plan. In her affidavit dated June 19, 2006, Ms. Barlow further states that she participated in the development of the draft plan and was also a participant at the Team meeting. (Affidavit of Stacie Barlow) Ms. Barlow states that the modified IEP that resulted from the April 7 th Team meeting incorporated her suggestions including those regarding coordination and implementation proposed in her evaluation recommendations. ( Id .) Hanover asserts that if Ms. Barlow and Dr. Hurley had made recommendations following the Team meeting of April 7 th , Hanover could have made further appropriate modifications to Student’s IEP. Hanover contends that since Ms. Barlow and Dr. Hurley made no additional recommendations, the IEP did not have to be modified further. I find that Hanover has complied with my orders in this regard and agree with Hanover that the most frequent and important observations of the proposed program should occur when Student is actually in the program. The point is to make the program appropriate for Student and given that she has been out of district for a year, during which she has progressed effectively, her needs may have changed. Therefore, further modifications should be made once she is actually participating in the program. The Decision issued on February 16 th does not specify the number of observations to be made precisely to allow the experts to observe as frequently as necessary without limitation, especially once Student attends the program. For example, if observations need to occur weekly for a period of time, or more frequently and then phase out as Student settles in to the program, Hanover would be allowed to proceed in this manner. Student’s needs should guide the parties in the determination of what is appropriate and the modified IEP contemplates said flexibility. (See PE-A)
Upon reviewing the modified IEP proposed by Hanover, I find that it is consistent with my decision of February 16 th and therefore, the program at least on paper, is in compliance with my decision.
Parents challenge Ms. Bartlett’s ability to properly implement the Orton-Gillingham program for Student. They state that the phonemes proposed to be addressed in the modified IEP are inconsistent with level 4 of the Orton-Gillingham program, which is the level Student has currently mastered. In support of their position Parents offer an affidavit by Stephanie Edwards, Assistant to Phyllis Meisel, the Director of the Massachusetts General Hospital Reading Disabilities Unit, dated June 5, 2006. Said affidavit breaks down which phonograms appear at what level of the MGH Orton-Gillingham curriculum, placing a number of the phonograms proposed to be provided to Student anywhere between the second and fourth levels of Orton-Gillingham. That is: AU= 3 level; EA= 2/3 level; EI= 4 level; EY= 2 level; OU= 2/3 level and EU= 4 level. Hanover responds that having completed the Massachusetts General Hospital 10 Week On Site Orton-Gillingham Teacher Training Practicum Course, and having done the 6 months additional supervised practicum, Ms. Bartlett is a certified Orton-Gillingham reading therapist who has received the proper training to deliver Orton-Gillingham instruction. Hanover emphasizes, as discussed in the decision, that Orton-Gillingham does not provide levels. Rather, entities like Carroll School and MGH have developed their own internal level system in assessing a student’s knowledge and ability to implement Orton-Gillingham principles independently. Hanover further argues that if Ms. Bartlett gets an opportunity to work with Student, she may further adjust the Orton-Gillingham program according to what Student has mastered and in accordance with Student’s areas of need. My order is clear that Orton-Gillingham is to be delivered by a qualified, properly trained individual. Based on Hanover’s representation, Ms. Bartlett is properly qualified to offer the service and if she were to require assistance in implementing the Orton-Gillingham program for Student nothing in my decision precludes Hanover from offering whatever support Ms. Bartlett were to require, including additional training, or even assigning a different provider to offer this service. Parents’ allegations in this respect are not persuasive.
There is one area regarding Orton-Gillingham where Parents are persuasive. While Student’s modified IEP calls for one-on-one Orton-Gillingham 45 minutes daily (PE-A), Student’s daily schedule (PE-C) calls for an arrangement that is out of compliance with my decision. The schedule calls for two, 28-minute sessions per week and three, 62- minute sessions per week. (PE-C) My order is clear that one-on-one Orton-Gillingham is to be provided 45 minutes per day by a qualified, properly trained individual. (PE-C) Hanover states that two different options were discussed during the April 7 th Team meeting, one of which was to offer the Orton-Gillingham for 45 minutes daily. In spite of the discussions during the Team meeting, Parents have presented evidence that what Hanover finally proposed was inconsistent with my decision. Student’s daily schedule must be rearranged. I find Hanover out of compliance in this regard and order Hanover to comply with my decision issued on February 16, 2006, forthwith.
Parents assert that there are no opportunities for Student to read during the 6 th grade science class. (See Parents’ Affidavits dated June 4, 2006) Hanover disputes Parents’ contention in this regard and submitted an affidavit by Mr. Steve Belmore, the science teacher, who asserts that reading occurs daily in his science class. (Affidavit of Steve Belmore dated May 25, 2006) The IEP offered by Hanover provides opportunities for Student to practice reading across all settings consistent with my order. (PE-A) Without any further evidence to the contrary, I find Parents’ assertions unpersuasive in this regard.
One of Parents’ prayers for relief is that Hanover offer Student a summer program. Although Parents fail to state specifically whether this program is to be offered at Carroll, I interpret their request in this manner. Hanover’s modified IEP contemplates provision of a summer program in Hanover. (PE-D) Special education staff with specific training in multisensory approach will provide 90 minutes a day, three times per week to continue work on Student’s reading writing and spelling goals. This program will run for seven weeks. Under this IEP, Student is entitled to a summer program in Hanover, which should be a wonderful opportunity for Student to begin her transition back into Hanover. Parents’ request in this respect is denied2 .
In conclusion, I find that the modified IEP resulting from Hanover’s April 7, 2006 Team meeting is in compliance with my decision. (PE-A) Overall, I find that Hanover has been in compliance with my decision since April 12, 2006 when it offered Student the program described in PE-A. However, regarding proposed implementation of said IEP, Hanover is found to be out of compliance with the frequency in which it proposed to deliver Orton-Gillingham services and is ordered to amend Student’s schedule to allow provision of one-on-one Orton-Gillingham for no less than 45 minutes daily. Thus, Hanover’s obligation to fund Student’s placement at the Carroll School ended on April 12, 2006, when Hanover offered Student a program that substantially complied with my decision.
So Ordered by the Hearing Officer,
___________________________________
Rosa I. Figueroa
Dated: June 22, 2006
1
I note that Parents are referring to the BSEA decision issued on February 16, 2006, and not any decision issued by the Massachusetts Department Of Education.
2
I note that funding of a summer program at the Carroll School for the summer of 2006 was not part of Parents’ original request for Hearing and therefore outside the scope of my decision. Nevertheless, my decision is clear that with appropriate modifications, Hanover would be capable of providing Student with a FAPE. See Hanover v. Student , BSEA # 06-1157 (February 16, 2006.)