Student v. Quincy Public Schools – BSEA # 05-4960



<br /> Student v. Quincy Public Schools – BSEA # 05-4960<br />

COMMONWEALTH OF MASSACHUSETTS

SPECIAL EDUCATION APPEALS

Student v. Quincy Public Schools

BSEA #05-4960

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 October 23 and 24, 2006 at the Bureau of Special Education Appeals, before Catherine M. Putney-Yaceshyn, Hearing Officer.

PROCEDURAL HISTORY

Parent requested a hearing on June 20, 2005 and a hearing was scheduled to occur on July 12, 2005 before hearing officer Sara Berman. The parties requested a postponement of the hearing and there was a pre-hearing conference on July 12, 2005. During the next year the hearing was rescheduled several times at the request of the parties. There were numerous telephone conference calls with the hearing officer. The parties, at their request, participated in three settlement conferences with Reece Erlichman. On October 20, 2006 the case was reassigned to hearing officer Catherine Putney-Yaceshyn. The hearing was held on October 23 and 24, 2006 at the Bureau of Special Education Appeals. The parties jointly requested that they be permitted to submit written closing arguments by November 21, 2006 and their request was allowed. On November 21, 2006, Parents’ counsel requested an extension of the deadline for the submission of closing briefs until December 8, 2006, which was allowed. On December 4, 2006, Parents’ counsel made an assented to request for the deadline to be extended until December 11, 2006. The request was allowed. On December 11, 2006, the hearing officer received both the Parents’ and Quincy’s closing arguments. On December 13, 2006, Parents submitted a “Supplemental Closing Argument” and the record closed at that time.1

Those present for all or part of the Hearing were:

Student’s father

Student’s mother

Carolyn Jordan Director, Clarke School East

Terrell A. Clark Director, BCDC, Children’s Hospital Boston

Peter Hahn Attorney for Parent (observer)

Constance Hilton Attorney for Parent

Judith Todd Director of Special Education, Quincy Public Schools

Eloise Papile Team Administrator/Case Manager, Quincy Public Schools

Carol Shiffer Team Chairperson, Quincy Public Schools

Deborah Harper-Padula Occupational Therapist, Quincy Public Schools

Susan O’Keefe Special Education Teacher, Quincy Public Schools

Lauren Ryan Communication Facilitator, Quincy Public Schools

Kathleen Yaeger Attorney, Quincy Public Schools

Maryellen Coughlin Court Reporter, Catuogno Court Reporting

Laurie Jordan Court Reporter, Catuogno Court Reporting

Catherine M. Putney-Yaceshyn Hearing Officer

The official record of this hearing consists of Quincy Public Schools’ exhibits marked S-1 through S-45 and Parent exhibits marked P-1 through P-33 and approximately 10 hours of recorded oral testimony.

ISSUES

1. Did the Quincy Public Schools develop and implement a program to provide the student with a free, appropriate public education in the least restrictive environment for the 2006-2007 school year.

2. If not, what steps do the Quincy Public Schools need to take to provide the student with FAPE in the least restrictive environment

3. Whether the student is entitled to compensatory services for any portion of the 2006-2007 school year.

SUMMARY OF THE EVIDENCE

1. The student (hereinafter, “Student”) is seven years old and resides in Quincy, Massachusetts, (hereinafter,“Quincy.”) Student’s profile reflects “neuromaturational or neurodevelopmental compromise.” She demonstrates “classic symptoms of neurodevelopmental disorder with deficits evident in sensorimotor integration, temporal and spatial orientation, visual-perceptual-motor integration, and self-regulation.” She has a sensorineural hearing loss which prevents the spontaneous acquisition of spoken language. (P-18) She continues to demonstrate significant delays in receptive and expressive language skill development. She has age-appropriate skills in receptive and expressive vocabulary at the single word level. However, she struggles with higher-level language tasks. She shows significant delays in the area of speech articulation, but has made some gains since her prior assessment one year ago. (P-22) She is making good progress in learning to use her residual hearing. Without modifications, adaptations, and teaching techniques designed specifically for deaf and hard-of-hearing children, Student’s access to the curriculum is very limited. Her gross and fine motor delays also negatively impact her ability to successfully complete curriculum activities. Accommodations and ongoing direct intervention in the areas of fine and gross motor development are necessary for Student to progress in the general curriculum. (P-18)

2. Dr. Terrell Clark is the director of the clinical program for deaf and hard of hearing children at Children’s Hospital Boston. She is a pediatric psychologist whose main responsibilities are clinical. She sees many deaf and hard of hearing for clinical evaluation. She also does clinical research and teaches at Harvard Medical School. Student has been her patient since she was three years old. She has diagnosed Student with a learning disability, which she described as a neurodevelopmental disorder in addition to her hearing impairment. She has made a number of educational recommendations for Student over the years which are contained in her reports. (P-22, P-1, P-7, P-9) Dr. Clark was familiar with the documents which comprised the proposed IEP for Student (P-27, S-5) and found the services and kind of program provided for to be consistent with her recommendations for Student. She believed that the program and services described in the aforementioned document would provide Student with the services and program she requires to address her disabilities in a way that would allow her to make effective progress. She believed that Dayna Brown, who was familiar with Student, was uniquely qualified to be Student’s teacher of the deaf. She noted that because the new teacher of the deaf would not be familiar with Student and because Student does not handle transitions very easily, the transition plan would have to allow the new teacher to become familiar with Student. (Clark)

Dr. Clark discussed the skills that she believes Student’s communication facilitator must have. She referenced an e-mail she sent Parents’ attorney in December 2005 that describes what a communication facilitator does. (P-24, S-29) Dr. Clark explained that a communication facilitator pays attention to what is happening with language in the classroom, and makes sure Student is following along. She repeats or rephrases as necessary and steps back when Student is managing on her own or steps in to assist Student in interacting with others. She is expected to take good notes of language with which Student seems to be unfamiliar. She ensures that the physical environment is arranged so that Student has a clear view of whoever is speaking and that the room is quiet. Dr. Clark explained that there is no certificate or licensure for a communication facilitator and that she would expect that the position would be filled by a paraprofessional. She testified that a paraprofessional who understood the consequences of hearing loss and is energetic and mature enough to know when to pull back and let Student manage on her own is recommended. With respect to Lauren Ryan’s qualifications to be Student’s communication facilitator, Dr. Clark indicated she would require training and some supervision as she was beginning to work with Student. She explained that it would be advantageous, although not essential, for Ms. Ryan to have had experience working with students who have hearing loss. She thought it would be possible for her to receive training by working with Student at the Clarke School where the teachers of the deaf would provide training and supervision. If the training were to take place at Quincy, it would be done by the teacher of the deaf who has not yet been hired. (Clark)

With respect to the qualifications of the teacher of the deaf, Dr. Clark believes the teacher must be well-skilled and well-experienced and have had experience teaching students at Student’s level. She conceded that a less experienced teacher of the deaf could be appropriate if he or she had other life experience that make them well-qualified. (Clark)

Dr. Clark has been practicing in Massachusetts for about thirty years and has had occasion to visit all of the existing programs for children who are deaf and hard of hearing. She does not know a school or program that would be a reasonable match for Student. She has been involved in the search for an appropriate program for Student and to date, no program has been identified as appropriate for Student. (Clark) Cara Jordan, the director of the Clarke School East participated in Quincy’s search for an appropriate program for Student. She agreed that there had not been any existing program or school identified as appropriate for Student. (Jordan)

Dr. Clark believed it would be challenging to find a teacher of the deaf at this point in the school year. She acknowledged that it appeared that Quincy had made efforts to find a teacher of the deaf that had not been fruitful. She would assume that Quincy would have to do an extensive search and look throughout New England and possibly beyond. (Clark) Cara Jordan echoed Dr. Clark’s opinion that it would be difficult to find a teacher of the deaf once the school year had started. She explained how she finds new staff for her program by placing advertisements in the Boston Globe, using collaboration with schools across the country through e-mail, and communicating with the graduate program at Smith College. She recommended expanding the search geographically at this time. She explained that she has been successful finding teachers of the deaf during the spring preceding September start of the school year. She stated that she is willing to share her contact information with Quincy. (Jordan)

3. Student’s last agreed upon IEP includes an IEP Amendment page which references the parties’ settlement agreement, a Service Delivery grid, revised on June 8, 2006, a consented to Team Determination of Educational Placement page, dated June 15, 2006, an Interim Agreement, signed by the parties on April 13, 2006, and a Transition Plan. (P-27) Each page of the document is initialed by the parties. (P-27, S-5)

4. The placement page indicates that Student’s classroom will be a substantially separate classroom for the period from September 2006 through January 2007. The Service Delivery grid contains the following services in the A Grid: parent communication provided by the teacher/counselor for fifteen minutes per cycle; OT/SI consult provided by the Occupational Therapist/SI for ten minutes per cycle; PT consult provided by the physical therapist for ten minutes per cycle; Audition/Speech and Language provided by the Speech Language Pathologist/Teacher of the Deaf for ten minutes per cycle; and consultation provided by Selena Steinmentz, as provided in the additional information section of the IEP. All services are to be provided from September 11, 2006 through August 31, 2007. (P-27, S-5)

5. The C Grid contains the following services: Academic services provided by the special education staff for 22.25 hours per week; Physical Therapy provided by the physical therapist twice per week for thirty minutes sessions; SI/Occupational Therapy provided by the Occupational therapist/SI twice per week for thirty minute sessions; individual Audition/Speech and language three times per week for thirty minute sessions with the speech language pathologist and twice per week for thirty minute sessions with the teacher of the deaf; academics with the teacher of the deaf as explained in the additional information section; and communication facilitation as described in the additional information section of the IEP. All services are to be provided for the period from September 11, 2006 through August 31, 2007. (P-27, S-5)

6. The “Additional Information” section of the IEP provides that Selena Steinmentz will consult with the program monthly for the first four months and every other month thereafter. It states that a “licensed teacher of the deaf will be with [Student] on a 1:1 basis for academic time a minimum of 18 hours per week. When [Student] is not with the TOD she will be with her communication facilitator.” Agreement #3 is incorporated into the IEP amendment and attached to the document. There is a notation indicating that both Agreement #3 and the IEP amendment will be incorporated in the IEP to be developed by the Team for the period from 9/06 through 8/07. Judith Todd signed the IEP amendment on June 2 and June 15, 2006. Mother signed the document on June 15, 2006. (P-27, S-5)

7. The document entitled, “Interim Agreement #3 Between the Quincy Public Schools and [Parents] is incorporated into the IEP, giving the BSEA jurisdiction to review it. It was signed by Quincy on April 12, 2006 and by Parent on April 13, 2006. The document recites the services and program components that the parties agree Quincy will provide Student for the 2006-2007 school year. The agreement provides that Quincy will develop an IEP Amendment that contains a Service Delivery page and a Team Determination of Placement page incorporating all of the items in their agreement and that the Team will convene approximately six weeks after the beginning of the 2006-2007 school year to develop a full IEP for the school year. The agreement specifies that Quincy will provide a substantially separate program within the Quincy Public Schools with a licensed full-time special education teacher and a Teacher of the Deaf for all academic instruction. Quincy was also required by the agreement to provide a full time Communication Facilitator, no more than six to eight students including Student, similar aged peers “with similar learning disabilities, cognitive abilities, and academic, social and communication skills.” The program was to use an early kindergarten curriculum and be a full day program five days per week except on Tuesdays, a school-wide early release day. Student’s classroom was to be acoustically modified with consultation by Student’s current audiologist. Student was to receive a summer program for the summer of 2007. The agreement required a Transition plan to be developed by the Team including personnel from Clarke School East. The agreement required consultation by Selena Steinmetz and other staff as described above in the additional information portion of the IEP amendment. The agreement provided that the school building would contain equipment to provide Student’s sensory integration therapy and an O.T. with experience to provide the service to Student and consult with her other service providers. The agreement provided for training for Student with the FM Amplification system while she attends the Clarke School East and for the staff at her new program to take place after she is placed in the program. (P-27, S-5)

8. The transition plan outlined the steps that would occur between the end of the 2005-2006 school year and the beginning of the 2006-2007 school year. The plan states that “[Student]’s program will be complete, appropriate and ready for her as of the first day of school in September, 2006. QPS will ensure that all steps necessary to make the program complete, appropriate and ready for [Student] as of the first day of school will be completed according to the timelines in this Transition Plan.” Quincy was to ensure that all transition tasks were completed before the beginning of the 2006-2007 school year and the BSEA matter would remain open and a hearing would occur in October 2006 if necessary.

The acoustical engineer was to make recommendations to Quincy regarding necessary modifications to the proposed classroom and all therapy rooms and “provide the necessary services to ensure that all modifications have been made.” The modifications were to be made by September 7, 2006 and Student would remain at the Clarke School East in the event that the modifications were not made by the start of school.

Quincy was to designate/hire the classroom teacher by September 1, 2006 and provide Parents with copies of his or her resume and proof of licensure. Quincy was to hire a communication facilitator whose credentials matched the job description provided by “the BCDC” and provide Parents with a copy of his or her resume. Dayna Brown and Cara Jordan were to provide training to the communication facilitator. Quincy was to enter into employment contracts with the classroom teacher and communication facilitator as soon as possible and with Dayna Brown immediately. The classroom teacher, communication facilitator, and other staff who were to provide Student’s services were to observe Student at the Clarke School east no later than September 8, 2006. If possible, the teacher and communication facilitator were to observe Student with Dayna Brown during the summer of 2006.

The transition plan indicated that Dayna Brown would continue to provide Student’s IEP services while she attended the Clarke School East summer program. Ms. Brown was also to provide compensatory services to Student during the summer. The plan required Student’s Team, including Selena Steinmetz, to meet no later than October 10, 2006, to review the implementation of her program and services and to develop a new IEP.

The plan required Dayna Brown and Cara Jordan to prepare a transition book for Student containing pictures and other items to assist in her transition from the Clarke School East to the Quincy program. Quincy was to provide pictures of all of the staff who were to have contact with Student and of her peers, if possible. Ms. Brown, Ms. Jordan, and Parents were to provide activities such as playing on the school playground to assist with Student’s transition. Student was to have the opportunity to meet the classroom teacher and communication facilitator and view her classroom during the orientation week. The teacher and communication facilitator would meet Student prior to that time, if possible. The transition plan required Dayna Brown to provide training to the staff of the program. The Director of Special Education would be responsible for scheduling and ensuring that all personnel attend the training meetings.

During September 2006, Student was to attend the Clarke School East one or two days per week, if needed. The schedule would be determined by Dayna Brown, Cara Jordan, and Mother. Student was to attend the Quincy program for the first three days of school and the Clarke School East on Thursday and Friday of that week. Ms. Brown was to be with Student full-time for the first week of school at both the Quincy program and Clarke School East if she was available. Parents were to provide transportation until such time as Student began attending the Quincy program full time. Finally, the parties agreed “[Student] will not attend the QPS program on a full time basis until all portions of her program and all services, including all items in the transition plan, are fully in place. In this event, [Student] will attend Clarke School East.” (P-27, S-5)

9. Judith Todd has been the Director of Special Education for the Quincy Public Schools since 2001. On August 14, 2006, she received an e-mail dated August 11, 2006 from Dayna Brown in which Ms. Brown resigned her position as Student’s teacher of the deaf. Ms. Brown’s letter, dated August 10, 2006, stated that she had been concerned about the lack of information and introduction to the program she would be responsible for and indicated Ms. Todd had finally provided more details the previous week. She stated that she had recently met Lauren, the communication facilitator, who had no idea what the position was, but was eager to do on the job training. Ms. Brown stated that while providing Student with summer services in Quincy she had struggled with her commute which took well over an hour. She expressed her concern that she did not feel that she could do a thorough job overseeing the particulars of the program without a communication facilitator with deaf education experience or a background to support the specific language needs of a deaf youngster. In closing she stated that she could not do the job on a part time basis and feel confident that there would be adequate training of the classroom staff to meet Student’s needs “at this late date.” (S-22) Ms. Todd was shocked and she immediately started calling Ms. Brown. She e-mailed her and asked if she would remain on for the time until they could find a new teacher of the deaf and Ms. Brown responded that it was not possible. She also asked her if she would continue to work with Student at the Clarke School East because she had cited her long commute as an issue. In an August 22, 2006, e-mail to Ms Todd, Ms Brown stated that she was working on her fall scheduling and if her schedule was open and she was needed she would stay at Clarke for the interim. She said she would get back to Ms. Todd by the end of the week. (Todd, S-26) Ms. Brown continues to work with Student for approximately two hours per week and provides one to one services at the Needham Public library. Mother had hoped Ms. Brown would be available to provide additional hours of service, but Ms. Brown’s schedule does not allow it. (Mother)

10. Susan O’Keefe has been the special education teacher in the classroom that Student is to attend since August 30, 2006. She is certified in Moderate Special Needs Pre-K-8 and Early Childhood Education Pre-K-3. She has worked with one other student with a hearing impairment and is hard of hearing herself. When she was hired she understood that one of her students would be a seven-year-old student with a hearing impairment and other learning disabilities and she would be expected to work in conjunction with the teacher of the deaf. She met with Ms. Ryan prior to the beginning of the year to review Student’s transition plan and required accommodations to get as much in place as possible. She became aware that Student would not be attending the program until a teacher of the deaf was found to replace Dayna Brown. She currently has three students in her classroom between the ages of six and seven. Their curriculum ranges from pre-K to mid-K and one student is on the cusp of kindergarten/first grade. Additionally, Ms. Ryan and a paraprofessional are in the classroom. Ms. O’Keefe described Ms. Ryan as “eager, enthusiastic, and absolutely fabulous with children.” (O’Keefe, S-42)

11. Ms. O’Keefe called all of the parents of the students in her classroom during the first week after she was hired to set up an orientation so the students and parents could come in to see the classroom. Two parents, including Mother attended the orientation and the other parent brought her child. Ms. O’Keefe again met Mother at an Open House that was attended by twelve adults and all of the students other than Student. She described the program and answered parents’ questions. The curriculum, the Trophies program, was available for parental review. Ms. O’Keefe spoke to Mother at some point on the telephone and made some suggestions about having Student come in to the program for an hour a day and participating in the morning routine to get to know the children and teachers. Mother chose not to have Student do so. Ms. O’Keefe also offered to visit Student at home or at Clarke School East and Mother said she would let her know. Ms. O’Keefe has been ready for Student since the first day of school and thinks that she and her staff could provide an appropriate curriculum to transition her in to the classroom. (O’Keefe)

12. Lauren Ryan is the communication facilitator hired by Quincy on or about July 8, 2006, to work with Student. She is not currently a licensed teacher, but is preparing to take the teacher’s exam. She had prior experience in working with a hearing impaired child during an internship and has worked with children on IEPs and as a teacher in a small classroom for children with autism. When she was hired she understood that she would be a communication facilitator and her role was described to her by Ms. Todd. She knew she would be working with the teacher of the deaf and her role would be to facilitate Student’s transition and work with her to communicate effectively with her peers and her teachers. She met Student once at the Clarke School East and again when she observed Dayna Brown working with Student and met with Ms. Brown. (Ryan, S-41) Cara Jordan described Ms. Ryan as seeming really nice and warm. She indicated that Ms. Ryan seemed to connect with Student, which she indicated is not easy to do. (Jordan)

13. Patrick Barry, the P.T. who will be working with Student, has been working with Student since she turned three. Cynthia Camino, the speech language pathologist who would be providing Student’s services has both personal and professional experience working with students with hearing impairments. She has worked with students with hearing impairments at Snug Harbor and previously at the Bernadine School. Additionally, she has immediate family members who are hearing impaired. Debbie Harper-Padula is an OTR who would be working with Student in the program. She does not have prior experience working with students with hearing impairments. Maureen Butler, another OTR who would be working with Student does have prior experience working with children at the “CP Clinic” who were hearing impaired. (Todd)

14. Eloise Papile, the Team administrator in special education, has held her current position since August 28, 2006. She has worked in the Quincy Public Schools since 1972 as both an elementary regular education teacher and both an elementary and secondary special education teacher. Ms. Papile first met Mother on September 8, 2006. She described their meeting as pleasant and explained that she attended with Dr. Osborne, the school principal, and they met Ms. O’Keefe and Lauren Ryan. They went to Student’s classroom where there were other parents, a child, and all of the other therapists. When the room cleared, she spoke to Mother and asked her what she was looking for. Ms. Papile testified that they both wanted the same thing, to find a teacher of the deaf and for Student to come to school. Ms. Papile informed Mother that Quincy could offer drop-in therapies with the same therapists who would work with Student when she came to the classroom. Mother said that would be too traumatic for Student. Ms. Papile received a letter, dated September 11, 2006, from Mother regarding the drop in services “that you have offered us twice” and indicating, “we need to be very clear that we will not expose [Student] to any school environment because of emotional issues.” Mother indicated that although she appreciated Ms. Papile’s efforts, “please do not contact us unless the appropriate program has been put in place, in its entirety, in compliance with the agreements.” (S-15) Ms. Papile had already been looking for a teacher of the deaf when she received the letter, and continued to do so. (Papile)

15. Ms. Papile described the efforts she has made to secure a teacher of the deaf for Student’s program. She referenced a letter from Quincy’s attorney to Parents’ attorney dated September 15, 2006. (S-13) The letter listed then up-to-date information regarding Quincy’s search. It indicated that Quincy had contacted Cara Jordan, who suggested that Quincy contact a person at Smith College. Ms. Papile contacted said person and he suggested that Quincy post the position on a particular website to which many teachers of the deaf refer. Ms. Papile spoke to a teacher of the deaf within the Quincy school system who did not have any leads. Quincy called the Horace Mann School who provided leads with whom Ms. Papile followed up. Quincy was in the process of setting up an interview with one of the leads. Ms. Papile contacted the Boston Public Schools, but they were not able to assist with any leads. She contacted Emerson College and her contact suggested that she contact Boston University. She then contacted Boston University who suggested that she e-mail the job posting so that they could post it at the university. She contacted the Clarke School in Northampton and the Northeast Independent Living Center, but neither had any leads. Quincy also forwarded the posting to the BCDC and was told it would be posted on their bulletin board. Ms. Papile spoke to Mr. Larson at the Beverly School for the Deaf. He was also searching for a teacher of the deaf and had advertised in the New York Times, the Boston Globe, and the internet. Ms. Papile testified that she continues to search every day. (S-13, Papile)

16. Student is currently not attending the Quincy program as the program is not complete. (Mother, Todd) She is currently attending the Clarke School East program that both parties agree does not provide Student with a free appropriate public education in the least restrictive environment2 for two partial days. Student does not receive services on Mondays. On Tuesdays she receives O.T. for her fine motor issues. On Wednesdays she receives OT services for her SI issues for 45 minutes and P.T. for forty-five minutes. On Thursdays and Fridays Student attends Clarke School East for four hours and meets individually with Dana Brown after School at the Needham Public Library for one hour. Mother has been trying to schedule additional services with Cara Jordan, but has not been able to due to scheduling conflicts. Student gets thirty minutes of individual speech and language services while at Clarke School East. Mother refused Quincy’s offer for Student to receive drop-in therapies in Quincy because she believed that emotionally it would not be in Student’s best interest. (Mother)

17. Mother explained that Student has difficulty with transition and becomes very withdrawn when she is in an unfamiliar environment with people she does not know. She explained that Student has not attended the Snug Harbor School since school started because “emotionally, it would be the wrong thing to do to [Student].” Initially, Student did not go to school at all because Parents were concerned that if she returned to the Clarke School East Quincy would leave her there for the rest of the year. Eventually, Parents decided to put together a plan for interim services for her. Mother explained that she refused the drop-in services offered to Student by Quincy, because they were not suggested as a transitional activity and she thought it would not be in Student’s emotional best interest. Also, she did not bring Student to the orientation or open house because she has difficulty with abstract thinking and would not have understood why she was there. She did not want to explain that it was her new school and then have her not attend. Mother does not think that the interim services Student is receiving are appropriate nor that they provide all that Student requires.

18. Quincy Public School has acknowledged that it is willing to provide Student with compensatory services to the extent that Student’s interim services are not the same as the services proposed in the accepted Service Delivery Grid. (Todd)

19. Parents submitted a list of remedies they are seeking through this hearing. First, they seek an order from the hearing officer that “Quincy Public Schools take all actions necessary to develop and provide an appropriate program within the Quincy Public Schools for [Student].” They list thirteen specific items that they wish for Quincy to be ordered to do. (See P-33) Next, they request that Quincy be ordered to provide compensatory services for Student for the “academic, social and other services and program components that have not been provided to [Student] since the beginning of the 2006-2007 school year.” They suggest individual services from Dayna Brown or another qualified teacher of the deaf and/or additional services during summers as specific relief. Third, they request that the hearing officer order Quincy to continue to fund all of the services Student is currently receiving until Student’s program is completed. Finally, they ask that the BSEA case remain open after the issuance of the decision and that the hearing officer establish timelines for Quincy’s compliance with any orders. (P-33)

FINDINGS AND CONCLUSIONS:

This is an unusual case in that the parties are in agreement regarding what program elements are necessary to provide Student with a free appropriate public education in the least restrictive environment and they agree that Student is currently not receiving said program. Additionally, the parties agree that Student is entitled to receive some form of compensatory education due to Quincy’s inability to provide all of the services outlined in Student’s last accepted IEP.

The dispute in this matter arises essentially because Quincy has been unable to fill the position of teacher of the deaf, as required by Student’s IEP. (P-27, S-5) Consequently, Quincy has not been able to provide the program as described in Student’s IEP and Student has been receiving services that the parties agree do not provide her with FAPE. It is Quincy’s position that but for the unexpected resignation of Dayna Brown, it would have been able to implement Student’s IEP as developed. However, Parents believe that Quincy’s proposed program is lacking in other ways.

Because the parties agree as to Student’s needs and necessary services, as delineated in her last accepted IEP (P-27, S-5), it is unnecessary to discuss them further here. Instead, my analysis will focus on what elements of the program Quincy has been able to offer to Student and what steps are necessary to ensure Student is able to receive FAPE as soon as possible.

Clearly, Quincy has not been able to fill the position of teacher of the deaf. The parties agree that the teacher of the deaf is a significant piece of Student’s program as he or she will be required to provide instruction to Student during all academic times as well as training to the communication facilitator and other staff, including the classroom teacher. Quincy initially was able to hire a teacher of the deaf, Dayna Brown. However, Ms. Brown resigned her position prior to the beginning of the school year. Although the record contains testimony from both Mother and Ms. Todd and e-mails between Ms. Todd and Ms. Brown regarding Ms. Brown’s various reasons for resigning, neither party produced Ms. Brown to explain her reasons. Whatever her reason, Ms. Brown’s resignation left Quincy in the difficult position of having to hire a teacher of the deaf very quickly before the school year began. The testimony of Ms. Jordan, Dr. Clark, and Ms. Papile demonstrated that it is difficult to find a teacher of the deaf once the school year has started. Additionally, Ms. Papile testified that when she contacted the Beverly School for the Deaf, they too were experiencing difficulty finding a teacher of the deaf. Ms. Todd testified that she interviewed three candidates for the position during the time between Ms. Brown’s resignation and the beginning of the school year and none of the candidates who were appropriately licensed were able to take the job. (Todd) Ms. Papile testified about the efforts she has made on Quincy’s behalf to find a teacher of the deaf. (See testimony of Ms. Papile) Dr. Clark and Ms. Jordan testified as to the steps that each would take to locate and hire a teacher of the deaf. The only suggestion offered by Ms. Jordan that differed from the steps Quincy has taken was to expand the search geographically. However, Ms. Jordan did not explain how Quincy should do so. Additionally, Ms. Papile testified that she had posted an advertisement on the internet, which would have expanded the geographic reach of the advertisement. Since Ms. Jordan indicated that she has been successful in finding appropriate candidates for positions in the spring time and she is willing to share her contact information, Quincy should continue to communicate with Ms. Jordan during their search.

I find that as of the date of the hearing, Quincy had been making reasonable efforts to locate a teacher of the deaf. The testimony of Parents’ expert witnesses supports this conclusion. When asked what steps they take to locate staff, both Dr. Cohen and Ms. Jordan described a process similar to what Ms. Papile described as Quincy’s efforts. Dr. Cohen conceded that Quincy had made efforts that had not yet been fruitful. Neither witness pointed to any source that Quincy had neglected as a potential lead for a teacher of the deaf. Ms. Papile was a credible witness and I have no reason to doubt her testimony that she would continue to make similar efforts until she found a teacher of the deaf. Although Parents, in their request for relief, ask that I order that Quincy employ a recruiting agency, there was no testimony by any witness that a recruitment agency would have a higher success rate than Quincy has had in the current situation. Parents also argue that I should order Quincy to pay an attractive salary. There was no testimony as to either the salary Quincy was offering or the average salary paid to a teacher of the deaf in this region. Similarly, there was no testimony that a job candidate had refused the position due to the salary. Therefore, I am not in a position to reach any conclusion or issue any order with respect to salary.

Parents also argue that Quincy should advertise the position as a full-time position. In support of their request that the position be made full time, Parents argue that the IEP requires that the teacher of the deaf provide more than twenty hours of service to Student and in consultation. Additionally, Dr. Clark testified that a full-time position might be more attractive to a person considering relocating. Although I am not convinced by Dr. Clark’s speculative statement regarding the attractiveness of a full time position, there does appear to be some ambiguity regarding the number of hours the teacher of the deaf is required to provide services to Student. The C grid indicates that Student is to receive academic services with the special education staff for 22.5 hours per week. The grid also states that academics are to be provided by the teacher of the deaf as explained in the additional information section. The “additional information” section provides that Student will receive 1:1 services with a licensed teacher of the deaf for academic time a minimum of 18 hours per week. There is a discrepancy between the 22. 5 hours of academics referenced in the C grid and the “minimum of 18 hours of academics” referenced in the “additional information” section. Quincy must review the schedule of Student’s Snug Harbor classroom to determine whether Student is to receive 22.5 hours of academics in which case the teacher of the deaf will be required to be present, or whether she is to receive 18 hours. Additionally, the teacher of the deaf is required to provide two thirty minute audition sessions and ten minutes of consultation. The grid does not contemplate the services required on the transition plan including the training of staff. If upon review of the classroom schedule, Quincy determines that the teacher of the deaf is required to provide more than 20 hours of services to Student each week, it must change its job description and advertise for the appropriate number of hours that will be necessary to comply with Student’s IEP. Quincy must also determine whether it will be necessary to employ the teacher of the deaf for more than 20 hours per week upon initial hire to ensure that the teacher has sufficient hours in his or her schedule to perform necessary training of other staff.

There was a great deal of testimony regarding the necessary qualifications of the staff who will work in Student’s classroom. I am not persuaded by Parents’ attempt to show that Ms. Ryan is not qualified to be Student’s communication facilitator. In fact, Ms. Ryan’s qualifications exceed those of a paraprofessional (See S-41), and Dr. Clark testified that she would expect the position to be filled by a paraprofessional. Ms. Jordan testified that Ms. Ryan seemed to have connected with Student which is not easy to do. Ms. Ryan does require training before she is able to work with Student. The transition plan anticipates that Ms. Ryan would be trained by the teacher of the deaf. However, since there is not yet a teacher of the deaf, she has not received training. Once she has received training, there is no reason to believe she will be unable to perform the necessary tasks. Likewise, I am convinced that Ms. O’Keefe is appropriately credentialed and skilled to be Student’s special education teacher.

There was a great deal of testimony regarding the necessary qualifications of the teacher of the deaf. Given that it has been so difficult to locate an appropriately credentialed teacher of the deaf, I caution the parties that placing too many requirements on a potential candidate may have the adverse effect of leaving Student without a program for even longer. Although Dr. Clark testified that being a licensed teacher of the deaf would not be sufficient if the teacher were not experienced, she also indicated that life experience could make the teacher qualified for the position. The parties should be careful about excluding any appropriately licensed candidates without careful consideration.

Quincy has provided a substantially separate classroom using an appropriate Kindergarten curriculum as required by Student’s IEP. There are three other students in the classroom who are appropriately aged. There is insufficient evidence in the record to determine whether the students are cognitively similar to Student. However, there is no evidence to suggest that the peers are inappropriate3 . Parents have not met their burden in showing that the proposed peers are inappropriate. The specialists assigned to the classroom are appropriately credentialed. The physical therapist has worked with Student since she was three. The speech language pathologist has personal and professional experience working with students with hearing impairments. One of the occupational therapists has not had experience working with students with hearing impairments and will likely require some training as to Student’s needs as they pertain to her hearing impairment. There is nothing in the record to suggest that Quincy does not have appropriate equipment to provide Student’s sensory integration therapy and Quincy will ensure that they have all necessary equipment for working with Student.

There was a great deal of testimony regarding implementation of the Transition Plan. The evidence shows that Quincy did complete most of what was possible to complete without a teacher of the deaf and given Student’s absence from the classroom. Although Quincy has been unable to hire the teacher of the deaf, it did hire the classroom teacher and communication facilitator as required by the transition plan. A number of the staff were able to observe Student at the Clarke School East as required by the plan. Although Ms. O’Keefe has not yet met Student, she has made attempts in that she invited Mother to bring Student to the orientation and Open House and offered to visit her at home. Quincy has not yet provided a transition book, however, that failure is de minimus as Student is receiving services at Clarke School East and outside of Quincy until the program is ready for her and has not begun to transition. The training of staff contemplated by the transition plan was to be done by the teacher of the deaf. Quincy has not yet been able to hire the teacher of the deaf, and consequently, the training has not occurred. The parties agreed that Student would not attend Quincy and would attend the Clarke School East in the event that the program was not ready for Student.

There was testimony regarding the acoustical modifications made to the classroom. Quincy argued that it complied with the terms of the agreement in that it brought in Parents’ chosen consultant, reviewed his report, and made the necessary modifications. Parents argued that the agreement contemplated a follow up visit from the consultant to confirm that the necessary modifications were made. Additionally, Mother testified that when she visited the classroom, the modifications had not all been made. The parties also argued as to whether Quincy was required to provide Parents with a copy of the report which was eventually provided to them. I conclude that the transition plan requires that the consultant inspect the classroom and confirm that the modifications have been made prior to Student’s entering the program. The language of the transition plan says that the acoustical engineer is to make recommendations to Quincy regarding necessary modifications and to “provide the necessary services to ensure that all modifications have been made.” There does not appear to be any means that would ensure that modifications have been made other than inspection. Therefore, I find that Quincy must bring the consultant back to inspect the modifications and determine whether they have been made appropriately. This return inspection shall occur once and upon inspection the consultant shall issue a report to Quincy who shall provide a copy of the report to Parents. Quincy shall make any acoustical modifications that the consultant deems necessary for Student to receive FAPE.

It is now January and approximately half of the school year has passed. Student remains in a placement that the parties have deemed inappropriate. Additionally, Parents’ experts have determined that there is not an appropriate placement in existence in Massachusetts. This leaves the parties without many options and makes it virtually impossible for me to order any meaningful relief. The parties are in the same position now as they were in prior to the hearing in that they agree as to what Student requires and agree that she is not receiving that. They also agree that she is entitled to some compensatory services. Quincy has complied with most of the items that they are able to comply with absent a teacher of the deaf. Quincy has not yet consulted with Selena Steinmetz, as Student has not been in the program. Student’s Team has not yet reconvened to draft a new IEP for the same reason. Student continues to receive far fewer hours of services than contemplated by her IEP each week. Parents argue in their closing argument that the IDEA does not excuse a district from providing FAPE in any circumstance. They are correct. However, in light of the fact that Parents’ own experts have determined there is no appropriate placement in Massachusetts for Student and Quincy has not been able to locate and hire a teacher of the deaf to complete its own program, there is no order that I can enter to remedy the current situation.

Compensatory Education

When a school district fails to implement a student’s IEP partially or totally, and the district’s variance from the services outlined in the IEP result in a denial of FAPE to the student, that student can be awarded compensatory education services. See Murphy v. Timberlane , 973 F.2d 13 (1 st cir. 1994); Ross v. Framingham , 44 F. Supp. 2d 104 (D. Mass. 1999)

A discussion of compensatory education in In Re: Medford , BSEA #02-0640, October 31, 2002, 8 MSER 329 (SEA MA 2002) further clarifies the standards to be considered regarding an award of compensatory services.

The First Circuit Court of Appeals has long recognized the right of a student to receive compensatory education as a form of relief to remedy previous deprivations due to a deficient IEP. Pihl v. Massachusesetts Department of Education , 9 F.3d 184 (1 st Cir. 1993). Where a denial of essential special education services or a significant interruption in the provision of those services has occurred during the period of the Student’s entitlement4 to special education, compensatory services may be awarded. Stock v. Massachussetts Hospital School , 467 NE. 2d 448, 392 Mass. 205 (1985). In Massachusetts, the BSEA is authorized to review the evidence and when appropriate, award compensatory services in special education cases. Murphy v. Timberlane , 973 F.2d 13 (1 st Cir. 1994); 603 CMR 28.08 et seq . In determining whether said form of relief should be granted, several factors, such as the conduct of the parties, the specific period of time during which the specific service was denied, the appropriateness of the services offered to the student, and the type and extent of harm caused to the student as a result of any denial of a FAPE must be weighed. In deciding whether this form of relief is appropriate, the hearing officer must also take into account the parent’s actions. If a parent is found to have been given a real opportunity to participate in the team meeting, and if thereafter, the parent knowingly and voluntarily accepted the IEP, then compensatory education should not be considered for that period. W.B. v. Matula , 67 F.3d. 484 (3 rd Cir. 1995). A parent’s refusal to allow the student to access services deemed to be appropriate, or rejection of services that would otherwise render an IEP appropriate for the student, would also bar the student’s claim as to those periods. In Re: Taunton Public Schools , BSEA # 01-0462 (2001); In Re: Silver Lake Regional School District , BSEA # 01-1370 (2001); In Re: Sharon Public Schools , BSEA # 02-1490 (2002).

In the instant case, the parties agree that Student must be compensated for the IEP services she has not been provided. Parents suggest that the services be individual services from Dayna Brown or another teacher of the deaf or additional services during the summer. I am not able to quantify what Student has lost from not receiving all of the services in her IEP. There was no testimony in this regard nor was there testimony regarding what compensatory services would be appropriate at this time. For that reason, I order Quincy to confer with both the current district-wide teacher of the deaf and Parents’ consultant, Selena Steinmetz to determine what compensatory services will compensate Student appropriately.

It is unclear when Quincy will be able to locate a teacher of the deaf. Quincy had been relying on the teacher of the deaf to provide training to Ms. Ryan; consequently, she has not yet received training. Quincy shall consider whether to provide training to Ms. Ryan even though Student’s participation in the program is not yet imminent. Perhaps if she is trained (by either the district teacher of the deaf, Ms. Steinmetz, or Ms. Jordan) Student would be able to begin transitioning to the program. If Student had a trained communication facilitator she might be able to participate in therapies or non-academic activities in the Quincy classroom which might ease her eventual transition into the classroom. The Team, including Ms. Jordan, shall convene to determine whether this would be practicable or beneficial to the Student.

Quincy shall continue to fund the services that Student is currently receiving. Additionally, the Team shall consider whether Student is able to receive any additional time at the Clarke School East pending her placement in Quincy. I find that Quincy has acted in good faith in their efforts to locate a teacher of the deaf and have no reason to doubt they will continue to do the same.

I deny Parents’ request that the BSEA case remain open after the issuance of this decision. There is nothing in the Rules for Special Education Appeals that allows for a hearing officer to maintain jurisdiction over a case after the issuance of a decision. If the parties believe that there has not been compliance with my decision, they may file a request for a compliance hearing as described in Rule XV.

I do not find it necessary for Quincy to assign a case manager to schedule training and provide Parents with weekly updates as to the progress of the search. There is no reason why the Director of Special Education cannot continue to be responsible for scheduling necessary trainings or updating parents at reasonable intervals as to progress. Additionally, I do not find it necessary to order Quincy to allow Parents and their experts to observe the Quincy program as the issue of observations was resolved prior to the hearing. (See testimony of Clark, S-6)

ORDER

Based upon the foregoing, I make the following Orders.

1. Quincy will continue to communicate with Ms. Jordan during its search for a teacher of the deaf. Additionally, it shall re-contact all of the colleges/universities that provide training for teachers of the deaf to let them know they continue to have a vacancy for a teacher of the deaf.

2. Quincy shall review Student’s classroom schedule. If upon review it determines that the teacher of the deaf is required to provide more than 20 hours of services to Student each week, it must change its job description and advertise for the appropriate number of hours that will be necessary to comply with Student’s IEP. Quincy shall also determine whether twenty hours per week provides adequate time for the teacher of the deaf to provide necessary training to staff.

3. Quincy shall schedule a time for the acoustical consultant to inspect the modifications and determine whether they have been made appropriately. The consultant shall issue a written report instructing Quincy as to whether the modifications have been made appropriately to provide Student with FAPE. The report shall be provided to the Parents by Quincy. Quincy shall make any additional modifications that the consultant deems necessary.

4. Quincy shall confer with both the district teacher of the deaf and Parents’ consultant, Selena Steinmetz to determine what compensatory services will be appropriate for Student.

5. Quincy shall convene the Team to consider whether to provide training to Ms. Ryan at this time. The Team including either Ms. Jordan or Ms. Steinmetz shall determine whether this would be practicable and or beneficial to Student.

6. Quincy shall continue to fund the services that Student is currently receiving until the teacher of the deaf is in the classroom and all of Student’s transition activities have occurred. Quincy shall not be responsible for continuing to fund the services of Amy Delaney once Student is placed at Snug Harbor so long as Quincy provides a licensed therapist and appropriate equipment.

By the Hearing Officer,

____________________________________

Catherine M. Putney-Yaceshyn

Dated: January 8, 2007


1

There was no objection to Parents’ filing a supplemental brief.


2

See the testimony of Dr. Clark, Cara Jordan, Mother, Judith Todd.


3

Pursuant to the U.S. Supreme Court’s recent decision in Schaeffer v. Weast, 546 US___(2005), the moving party in a special education case has the burden of persuasion.


4

See M.G.L. c. 71B §1 establishing that the disabled student’s period of entitlement runs from the time s/he is 3 years of age until s/he attains a high school diploma (or its equivalent), or the day of the student’s twenty second birthday, whichever comes first. 603 CMR 28.02 (9).


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