Student v Tewksbury Public Schools – BSEA #03-0539



<br /> Student v Tewksbury Public Schools – BSEA #03-0539<br />

COMMONWEALTH OF MASSACHUSETTS

SPECIAL EDUCATION APPEALS

Student v. Tewksbury Public Schools

BSEA #03-0539

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 2, 2002 at the Bureau of Special Education Appeals, before Catherine M. Putney-Yaceshyn, Hearing Officer.

PROCEDURAL HISTORY

The Parents requested a hearing on July 25, 2002. A hearing date was scheduled for August 14, 2002. On August 6, 2002, the School District requested a postponement due to school counsel’s unavailability on August 14 and the Parents objected to said postponement on August 7, 2002. The BSEA granted the postponement and the matter was scheduled for a Pre-Hearing Conference on August 21, 2002. During the August 21 Pre-Hearing Conference a Hearing was scheduled for September 4, 2002. The Parents requested a postponement of the Hearing on August 27, 2002. The Postponement request was Granted and the matter was scheduled for a Hearing on September 30, 2002. On September 25, the School requested permission to take the testimony of one of its witnesses out of order. On September 25, the Parents objected to the School’s request to take testimony out of order and consented to a postponement. On September 26, 2002, the Hearing Officer conducted a conference call with the Parties and issued an Order Postponing the Hearing from September 30 until October 2, 2002. The Hearing was held on October 2, 2002. At the conclusion of the Hearing, the Hearing Officer ordered the Parties to provide their closing arguments by October 15, 2002. The Hearing Officer received the Parents’ closing argument on October 15, 2002 and the School’s closing argument on October 17, 20021 . The record closed on October 17, 2002.

Those present for all or part of the Hearing were:

Student’s Mother

Student’s Father

Lisa Neary Hughes Grade 4 Inclusion Teacher, Tewksbury Public Schools

Emily Cotter Grade 3 Inclusion Teacher, Tewksbury Public Schools

Karen Cintolo Grade 4 Classroom Teacher, Tewksbury Public Schools

Cheryl D. Porcaro Systemwide Team Chairperson, Tewksbury Public Schools

Christine L. McGrath Superintendent, Tewksbury Public Schools

Richard Sullivan Attorney, Tewksbury Public Schools

Catherine M. Putney-Yaceshyn Hearing Officer

The official record of this hearing consists of documents submitted by the Parents, marked 1 through 3, 6, and 7, documents submitted by the School, marked 1 through 4, and approximately 3 hours of recorded oral testimony.

ISSUES

1. Whether the change in location of Student’s program denies him a free appropriate public education in the least restrictive environment.

PARENTS’ POSITION

The decision to place Student at the North Street School was one of administrative convenience and not made in the best interest of the Student. The administration should have maintained the inclusion class at the location where it had been since its inception. Student should be in the least restrictive environment which is his neighborhood school and should be transported on the general education bus directly to the school he attends.

SCHOOL’S POSITION

There is no dispute regarding the nature of Student’s disability, his eligibility for special education, nor the type of program and placement that he is currently receiving. The only issue in dispute is the ability of the Tewksbury Public Schools to determine the location of the proposed program and placement. Superintendent McGrath determined that in order to provide Student’s inclusion program and placement as required by his IEP, the location of the placement would move from the Dewing School to the North Street School. Student has never been denied appropriate transportation services. There is no dispute as to the type of placement the student is receiving, and it is legally permissible for Tewksbury to determine the location of said placement. Student is receiving a special education program in a placement that is reasonably calculated to provide FAPE.

SUMMARY OF THE EVIDENCE

1. The student (hereafter, “Student”) is a ten-year-old fourth grade student residing in Tewksbury, Massachusetts, within the Tewksbury School District (hereafter, “Tewksbury”). He is described as having “language weaknesses including weak auditory memory, auditory processing, word finding, sound production, vocabulary flexibility, word relationships, multi-step directions, pragmatics, and compensatory strategies. [Student] demonstrates difficulty following a routine and maintaining attention to tasks.” (S-4)

2. During the 2001-2002 school year (Student’s third grade), Student attended the Dewing School. His IEP called for ongoing consultation between his regular education and special education teachers and with the speech language pathologist, on an ongoing basis. There was a consult with the occupational therapist as needed. Student was placed in a co-taught inclusion class for social studies and science. He was in a substantially separate setting for language arts and math daily, and for speech and language services 3 x 30 minutes per week. The Student received summer speech and language services. (S-4)

3. Dr. Christine McGrath, the Superintendent of the Tewksbury Public Schools, testified that after the Annual Town Meeting there was a reduction of 1.2 million dollars of the school budget. She stated that she was required to reduce personnel and services. The incoming fourth grade class (Student’s class) had been divided into six regular education classes. Her budget only allowed for her to have five fifth grade teachers. She testified that if she promoted the classes in their current buildings there would be twenty-eight or twenty-nine students in each regular education class and thirty or more students in the inclusion classes.

Dr. McGrath testified that she first considered modifying the inclusion program by having the special education students spend most of the day with Ms. Hughes and an aide and having mainstreaming opportunities in the afternoon. Parents and teachers were concerned about that model and Student’s Parents rejected the IEP proposing that program. (S-3) Dr. McGrath explained that she reviewed the enrollment of fourth graders at the district’s other elementary schools and found that the class sizes at the North Street School ranged from twenty-one to twenty-three students per class. Dr. McGrath testified that if Student’s program had remained at the Dewing School enrollment would have been 699 as compared to 459 students at the North Street School. She testified that she contacted the inclusion program teachers and the North Street principal to determine whether the program could be located at the North Street School.2

Dr. McGrath testified that Ms. Hughes and Ms. Cintolo viewed the classrooms at North Street School and thought the furniture was old and stated that they wanted twenty eight desks in one room so that all students could be accommodated. She stated that her goal was to replicate the space the program had been in at the Dewing School at the North Street School. (McGrath)

4. Student’s program, now located at the North Street School, is taught primarily by Karen Cintolo, a general education teacher, and Lisa Hughes, a moderate special needs teacher, and an aide3 . They are the same individuals who would have taught Student if his program had remained at the Dewing School. (Cintolo, Hughes) There are fourteen regular education and 14 special education students in Student’s program. (Polcaro) Student’s Mother testified that Student’s teachers are exemplary and the program would be acceptable to her if it had remained at the Dewing School. She also testified that Student is doing well in school and has had few issues relating to the transition to the new school. He is participating in class and doing his homework. (Mother)

5. Mother testified that she thinks it is unfair that Student has been required to make more transitions between schools than his regular education peers and she believes that each neighborhood school should be required to provide inclusion services. She stated that transitions are particularly difficult for the Student. She felt that the decision to place Student at the North Street School was not the Team decision and was made for administrative convenience and not due to the Student’s needs. (Mother)

6. Student’s third grade teacher, Emily Cotter, testified that she had concerns about Student making the transition from Dewing to North Street School. She also testified that the North Street School provides Student with inclusion services to the same extent that the Dewing School program had the previous year. (Cotting)

7. Ms. Cintolo testified that Student had difficulty focussing during the first two weeks of school, but is doing much better now and is more on task. She stated that the beginning of the school year is difficult for all students and teachers. With supervision, the Student is doing pretty well. (Cintolo)

8. Ms. Hughes testified that Student comes in to the program quite active in the morning and it is difficult to get him to put his things away and get himself prepared for the day. He continues to have difficulty, though he is much better than he was in the beginning of the day. She testified that Student continues to have difficulty particularly in the large group setting, needing redirection and maintaining focus. The small group setting is better for Student as he focuses better. She agreed that a group setting of 28 or 29 students would be significantly less beneficial to Student than a group of 16 or 18. Student keeps to the peer group that he came with and seems to be having difficulty forming friendships outside of that group. He has become somewhat rude with other children recently. The principal recently spoke to the Dewing School children about not isolating themselves from the other children. The new school has been an adjustment to all of the students and the teachers. Student does not do well during transitions between classroom services and his pull-out services and has not improved during the school year. He had the same issues with transitioning between classroom and pull-out services last year. Ms. Hughes testified that she was not surprised that a student with Student’s disabilities would have difficulties in the beginning of the year. (Hughes)

9. Ms. Hughes testified that the carpeting that she had previously had at the Dewing School was not at the North Street School on the first day of school which was problematic because the acoustics are not good at the North Street School. The carpets were brought over to improve the acoustic quality during the third or fourth week of school. Ms. Hughes thought the poor acoustics were problematic for Student. She testified that Student is doing well. (Hughes)

10. Ms. Hughes testified that Student starts to gather his belongings and prepare to leave school at 3:00 and is at the shuttle by 3:05. School ends at 3:15. Student’s Mother sent a note to Ms. Hughes stating that she will pick up Student every afternoon. He does not ride the bus in the morning, because he goes in early for extra help. (Hughes)

11. Cheryl Porcaro testified that she is the Systemwide Team Chairperson at the Tewksbury Public Schools. She oversees in-district special education programs. She testified that she is familiar with the North Street School program and the Dewing School program that Student previously attended. She stated that the North Street program has the same teachers it had at the Dewing School, the same special education students, the same physical and occupational therapists, the same music, art, and physical education teachers and uses the same curriculum. The major change in the program is the location. She has observed Student at the North Street School four times this year for two hours each visit. The teachers had voiced concern about the move, but had stated that Student was settling in and learning. She testified that if the program had remained at the Dewing School there would have been 42 students in the inclusion program as opposed to 28 at the North Street School. (Porcaro)

12. Initially, the Tewksbury Public Schools provided Student’s transportation as follows. Student rode his regular neighborhood bus with Dewing School students to the Dewing School. When the bus reached the Dewing School all of the other students got off the bus and entered the Dewing School. Student stayed on the bus and other students of the North Street School inclusion program from the Dewing School District got on the bus and they were taken to the North Street School. At the end of the day, as described in paragraph 10, Student left class early to meet the bus at North Street School. The North Street School bus took Student to the Dewing School where Student waited on the bus for the Dewing School students to board the bus. Student was brought home with the Dewing School students. (Mother, Hughes) Beginning in early October, the morning transportation changed. Student was to ride the same bus, but the first stop would be the North Street School and he would arrive early. The travel time under the prior plan was approximately 17 minutes and under the current plan was about seven minutes. The afternoon transportation was unchanged. (McGrath)

FINDINGS AND CONCLUSIONS:

Student is an individual with a disability, falling within the purview of the Individuals with Disabilities Education Act (IDEA)4 and the state special education statute.5 As such, he is entitled to a free appropriate public education (FAPE). Neither his status nor his entitlement is in dispute. The dispute involves the narrow issue of whether or not Tewksbury’s decision to change the location of Student’s program to the North Street School from the Dewing School denies him a FAPE. For the foregoing reasons, I find that changing Student’s program’s location did not deny him a FAPE.

The Parents do not find Student’s IEP or the inclusion program inappropriate for Student. Mother testified that Student’s teachers are exemplary and that she would find Student’s program acceptable if it remained at the Dewing School. She and his teachers testified that Student is doing well at the North Street School. (Mother, Hughes, Cintolo) The Parents claim that Student is being denied FAPE because his program was moved from the Dewing School where it had previously been located to the North Street School. They argue that Student’s undisputed difficulty with transitions and the lack of a Team determination that the North Street School location was appropriate amount to a denial of FAPE.

I find no violation of the law stemming from Tewksbury’s decision to relocate the fourth grade inclusion program from the Dewing School to the North Street School. Parents argue that the change in location amounts to a change of placement and as such the decision to change the location should have been made by the TEAM. I am not persuaded by this argument for several reasons. First, the IDEA and its implementing regulations interpret the term “placement” to mean only the general program of education and not the location of said program of education. Concerned Parents & Citizens for the continuing Educ. at Malcom X v. New York City Bd. Of Educ. , 629 F.2d 751 (2d Cir. 1980). Generally, a change in the location at which a student’s educational program is provided, without a concurrent change in his or her IEP, is not a “change in placement” triggering IDEA procedural safeguards. Bayonne Board of Education , 37 IDELR 118 (May 3, 2002) “Under federal law placement refers to whether the program is offered in district or out of district, the level of services to which the Student is entitled and the amount of integration to the mainstream delineated in a Student’s IEP, but not the building in which these services are to be provided.” See In Re: Wachusett Public Schools BSEA # 02-0865 (August 31, 2001) Additionally, as held by the eighth circuit court of appeals in a recent decision, “A transfer to a different school building for fiscal or other reasons unrelated to the disabled child, has generally not been deemed a change in placement…. See Hale v. Poplar Bluff R-I Sch. Dist. , 280 F.3d 831, 834 (8 th Cir. 2002); see also Bd. Of Educ. v. Illinois State Bd. Of Educ. , 103 F.3d 545 (7 th Cir. 1996). The decision to place Student in the fourth grade inclusion program was made by the Team and was implemented at the North Street School. It did not amount to a change in placement as defined by the law. Thus, Tewksbury’s decision to change the location of Student’s program does not amount to a change in placement outside of the Team process as the Parents argue.

The Team determined that the Student required inclusion services in an in-district setting. The Parents agreed with that determination. According to the Massachusetts regulations, the school district then determines the specific instructional personnel and works with the Team to arrange the specific classroom or school to implement the placement decision. See 603 C.M.R. 28.06(2)(d)(1). In this case, Tewksbury determined it was appropriate for Ms. Hughes and Ms. Cintolo to continue to teach the fourth grade inclusion class as they had for the past eight years. Tewksbury also determined it would be appropriate to change the location of the fourth grade inclusion program in order to keep the number of students in the large group portion of the inclusion program appropriately low. Ms. Hughes testified that Student focuses better in a small group than in a large group. (Hughes) Thus, Student benefited from Tewksbury’s decision to maintain a smaller group for the fourth grade inclusion program.

Although the law gives preference to placing a student in his or her neighborhood school, there is not a mandate that all students be so placed. See Kevin G. v. Cranston Sch. Comm. , 965 F.Supp. 261 (D. RI May 23, 1997), aff’d , No. 97-1785 (1 st Cir. Nov. 17, 1997) Under both federal and state law, “Unless the student’s IEP requires some other arrangement, the student shall be educated in the school that he or she would attend if the student did not require special education.” 603 C.M.R. 28.05(6). See also 34 C.F.R. 300.552(c). In the case at hand, Student’s neighborhood school no longer has a fourth grade inclusion program. Student’s IEP requires that he attend an fourth grade inclusion program. Therefore, Student’s IEP requires “some other arrangement.” Tewksbury is not required to make a fourth grade inclusion program available in each of its elementary schools as argued by the Parents.

I am not persuaded that Student’s difficulty with transitions makes the North Street School program inappropriate for him. Although Parents expressed their displeasure with the location of the program and raised the issue of the classroom acoustics (which was corrected within the first two weeks of school) the Parents did not present any evidence that the North Street School program was inappropriate for Student. Although Student has difficulties with transitions in general, the evidence does not show that he had significant difficulty transitioning to the North Street School. Ms. Cintolo testified that Student had difficulty focusing during the first two weeks of school, but indicated he was doing better. She attributed his difficulty to the beginning of the school year in general and not to the new program location. (Cintolo) Ms. Hughes testified that she was not surprised that Student would have difficulties in the beginning of the year due to his disabilities. She also did not attribute Student’s difficulties to the new program location. (Hughes) Significantly, Mother did not testify that Student was experiencing difficulties as a result of transitioning to a new school building. Instead, she testified that when she observed Student at North Street School he was participating and he was completing his homework and doing well. (Mother)

Although I find that the fourth grade inclusion program at the North Street School is appropriate for Student, the manner in which his afternoon transportation is offered is not appropriate. Dr. McGrath testified that Student’s morning transportation had been modified, and I find that the manner in which it is currently provided is appropriate. However, the afternoon transportation requires that he leave his last class five minutes early in order to meet the shuttle which brings him back to the Dewing School and then home. Student’s IEP indicates that he does not require transportation as a result of his disability. Therefore, in accordance with 603 C.M.R. 28.05(5)(a), “transportation shall be provided in the same manner as it would be provided for a student without disabilities.” Presently, Student is required to leave his classroom five minutes early every day. Students without disabilities are not required to leave class five minutes early each day. Thus, Student should not be required to leave class early every day. Instead, he should be provided with transportation at the end of the school day, as he would be if he were not disabled.

ORDER

I find that the change in location of the fourth grade inclusion class does not deny Student FAPE in the least restrictive environment.

I find that Student’s transportation is not provided in the same manner as it would be provided for a student without disabilities. Tewksbury must offer Student transportation that does not require that Student miss the last five minutes of every school day.

By the Hearing Officer,

__________________________

Catherine M. Putney-Yaceshyn

Dated: December 2, 2002

Decision Summary

Case name : Student v. Tewksbury Public Schools

BSEA #: 03-0539

Date issued : December 2, 2002

Representation of Parties : Pro Se Parents

School represented by attorney

Issues : Whether the change in location of Student’s program denies him a free appropriate public education in the least restrictive environment.

Facts : The Student is a ten-year-old fourth grader in the Tewksbury school system. He is described as having language weaknesses including weak auditory memory, auditory processing, word finding, sound production, vocabulary flexibility, word relationships, multi-step directions, pragmatics, and compensatory strategies. He demonstrates difficulty following a routine and maintaining attention to tasks. The Parents and School are in dispute as to the actual location of the proposed program and placement. Parents argue the administration should have maintained the inclusion class at the location where it had been since its inception. Student should be in the least restrictive environment which is his neighborhood school and should be transported on the general education bus directly to the school he attends. The School take the position that in order to provide Student’s inclusion program and placement as required by his IEP, the location of the placement would move from the Dewing School to the North Street School.

Holding : The change in location of the fourth grade inclusion class does not deny Student FAPE in the least restrictive environment. It was also found that Student’s transportation is not provided in the same manner as it would be provided for a student without disabilities. Tewksbury must offer Student transportation that does not require that Student miss the last five minutes of every school day.

Prevailing party : School in part and Parents in part

Hearing Officer : Catherine M. Putney-Yaceshyn


1

The school’s argument was apparently received by the mailroom on October 15, 2002, but was not delivered to the BSEA until October 17, 2002.


2

Dr. McGrath testified that she had also considered creating a program with both third and fourth graders at the Dewing School, but the teachers thought it would be regressive. (McGrath)


3

Ms. Hughes and Ms. Cintola have taught as a team for the past eight years. (Hughes, Cintola)


4

20 USC 1400 et seq .


5

MGL c. 71B.


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