X School District – BSEA # 11-0594



<br /> X School District – BSEA # 11-0594<br />

COMMONWEALTH OF MASSACHUSETTS

Division of Administrative Law Appeals

Bureau of Special Education Appeals

In Re: X School District

BSEA # 11-0594

RULING ON MOTION FOR STAY PUT

The question to be addressed by this Ruling is whether the School District’s proposed placement of Student from a regular education classroom for one grade into a co-taught, regular education classroom for the next grade would violate his stay-put rights under federal special education law.

On August 3, 2010, Parents filed a Motion to Order Stay-Put Placement , taking the position that X Public Schools (X) was proposing to change their son’s placement from a regular education classroom in 4 th grade (the 2009-2010 school year) to a more restrictive, co-taught classroom for the 5 th grade (the 2010-2011 school year), and that the change in classroom would have a substantial, negative impact on Student’s education, in violation of stay-put principles under federal special education law.

On August 4, 2010, X filed an opposition, taking the position that the classroom for 4 th grade and the proposed co-taught classroom for 5 th grade are both regular education classrooms, that Parents have no stay-put rights to a classroom that is not co-taught, and therefore that Student’s stay-put protections do not preclude X’s proposed classroom placement.

On September 2, 2010, there was an evidentiary hearing on the motion in order to consider documents and hear testimony regarding Student’s 4 th grade placement and X’s proposed placement for 5 th grade. The official record of the hearing consists of documents submitted by the Parents and marked as exhibits P-1 through P-8; documents submitted by X and marked as exhibits S-1 through S-5; and approximately five hours of oral testimony and argument.

In order to apprise the parties in a timely manner of my ruling in this case, I issued a Summary Ruling in advance of a full Ruling. The Summary Ruling is attached as Appendix A.

Student is an individual with a disability, falling within the purview of the IDEA1 and the Massachusetts special education statute.2 Pursuant to these laws, Student was provided an individualized education program (IEP), dated 5/6/09 to 5/6/10, pursuant to which he has been receiving special education and related services. This IEP was fully accepted by Parents and then later rejected, making it the last-accepted IEP for purposes of stay-put analysis. X has proposed an IEP for the period 4/5/10 to 4/5/11, which Parents have rejected in part and accepted in part, but the accepted portions of the IEP are not relevant to the instant dispute. Exhibits S-4, S-5.

Student’s stay-put IEP calls for the following services and placement. With respect to special education services within the general education classroom, the IEP calls for written expression services by a special education teacher for 45 minutes, once per week. With respect to special education and related services to be provided outside of the regular education classroom, the IEP calls for spelling services 45 minutes, three times per week; writing services for 45 minutes, twice per week; and occupational therapy one hour, once per week. The stay-put IEP calls for Student to be placed within a full inclusion program. Exhibit S-5.

During 4 th grade (the 2009-2010 school year), Student was placed in a regular education classroom at X’s Y Elementary School that was taught by Ms. Z, who is a regular education teacher. Within that classroom, there were a total of 20 children (including Student) and five of the children (including Student) had IEPs. Testimony of Z.

During 4 th grade, Student’s written expression services within the general education classroom were provided during a 45-minute block at the same scheduled time and day each week by a special education teacher (Ms. A) who came into the classroom. Student’s spelling and writing services outside of the general education classroom were provided at the same scheduled times and days each week by Ms. A in the Learning Center, typically on a 1:1 basis or with one other child. Student received his occupational therapy services outside of school. Testimony of Z, A; exhibits P-4a, P-4b.

X’s proposed placement for Student for 5 th grade is a regular education classroom at the Y Elementary School that is to be co-taught by a regular education teacher (Ms. Rivers) and a special education teacher (Ms. C). The Y School Principal (Ms. B) testified that within this classroom, there are expected to be a total of 22 children (including Student) and eight of the children (including Student) have IEPs. There are two other regular education 5 th grade classrooms at the Y Elementary School that are each to be taught by only a regular education teacher. One of these two classrooms is expected to have a total of 21 children (four of whom have IEPs) and the other is expected to have a total of 22 children (three of whom have IEPs). Testimony of B, Rivers, C; exhibit P-2.

During 5 th grade if he were to be placed in the co-taught classroom, Student’s stay-put special education and related services would be provided as follows. Student’s written expression services that are to be provided within the general education classroom would not necessarily be provided during the same time or day each week and would not necessarily be provided within a single 45-minute block. Rather, as a general rule, the special education teacher would provide these services on a more flexible schedule so that they could occur when the classroom is focusing on writing skills and when the services would not interfere with other activities. Student’s spelling services that are to be provided outside of the general education classroom would take place in a separate tutorial room that is adjacent to the classroom, and this would occur during the scheduled literacy time period. Student’s writing services that are to be provided outside of the general education classroom would generally (but not always) be provided in the separate tutorial space. These writing services would not necessarily be provided at the same times and days each week, nor would these services likely to be provided for the same length of time whenever they are provided. Rather, as a general rule, the special education teacher would provide these writing services on a more flexible schedule depending on the most appropriate and effective time for doing so, and would likely provide them in varying time segments, again for the purpose of providing them when most effective. During 5 th grade, as in 4 th grade, Student would likely have his occupational therapy services outside of school. Testimony of C, Rivers.

X places 5 th grade students at the Y School within one of the three 5 th grade classrooms. The placement decision is made by a placement committee that seeks to ensure that each class has a similar, balanced make-up of children. Any 5 th grade special education student and any 5 th grade regular education student is eligible to be placed into any of the three 5 th grade regular education classrooms, except for special education students whose IEP calls for a substantially-separate classroom. Ms. B, Ms. Rivers, and X’s Director of Special Education (Ms. D) testified that the only substantive difference between the student make-up of the co-taught classroom and the other 5 th grade classrooms is that the co-taught classroom typically has a higher number of special education students because the classroom has two teachers, one of whom is a special education teacher. Ms. B testified that Student was selected for the co-taught classroom, in part, so that he would have the benefit of being able to work with a special education teacher on his writing deficits at any time in his classroom, rather than only during time periods designated in his IEP. Testimony of B, Rivers, D; exhibit P-2.

The IDEA’s stay-put provision provides, inter alia, that “during the pendency of any proceedings conducted pursuant to this section, unless the State or local educational agency and the parents otherwise agree, the child shall remain in the then-current educational placement of such child.”3 Its essential purpose is to preserve the status quo pending resolution of a dispute between the parties, thereby preventing unilateral action by a school district in contravention of a student’s or parent’s objection, until the completion of due process proceedings .4

IDEA stay-put principles that determine a student’s “then-current educational placement” are neither rigid nor automatic. Rather, the specific facts of the particular case guide the determination of whether proposed changes to services or setting would constitute a change of placement that would be precluded by stay-put principles. Federal court decisions make clear that the central inquiry is the actual educational impact upon the student as a result of the change of services or setting.5

As a general rule, in order to trigger stay-put protections, the educational impact must be detrimental and substantial.6 In considering what level of change has legal significance under stay put, a number of courts have articulated the standard as “a fundamental change in, or elimination of, a basic element of the educational program ” .7 Also, a school district has a continuing responsibility to maintain a student in the least restrictive environment (LRE),8 with the result that stay-put protections are triggered where the change of placement would result in a “departure from the student’s LRE-compliant setting”.9

Perhaps the federal court decision most useful to the instant dispute is John M. v. Board of Educ. of Evanston Tp. High School Dist. 202 , 502 F.3d 708 (7 th Cir. 2007) in which the court considered whether the student’s stay-put protections would be violated if the school district took a student who had been in a co-taught regular education classroom during one school year and placed him into a regular education classroom that was not co-taught for the next school year.

The court carefully reviewed the case law that has developed within the other circuits, considered the legal significance of a change between a classroom that was co-taught and a classroom that was not, and set forth a number of considerations that are relevant to the instant dispute. The court considered co-teaching as a teaching methodology—that is, a particular way of delivering instruction and services. School districts are generally given discretion to select the particular methodology that is to be used for a student, so long as the methodology is likely to allow the student to receive FAPE.10 John M . explained that in the stay-put context, a school district would normally be given the discretion to select and change methodology unless the particular methodology may be considered part of the IEP.11 “G enerally, the terms of this IEP should be enforced, without exception, as the stay-put relief .”12

The court further explained what should occur if there is a dispute as to what the IEP requires:

If the parties dispute what the IEP requires, as they do here with respect to co-teaching, the court must evaluate the IEP as a whole and determine whether such a methodology is required under the terms of the IEP. Under usual circumstances, the court should find it unnecessary to go beyond the four corners of the document in order to make that determination.13

There is nothing within Student’s stay-put IEP that explicitly requires that he not be placed within a co-taught classroom. However, Parents take the position that a co-taught classroom would nevertheless be inconsistent with an important accommodation within the IEP, which states as follows: “[Student] needs [a] predictable structured classroom environment. Consistent rules and routines, minimal disruptions and orderly transitions.”

Parents correctly point out that the proposed 5 th grade co-taught classroom would likely have fewer fixed routines and would provide greater flexibility regarding Student’s special education instruction, as compared to Student’s 4 th grade classroom. But, Student is not entitled to a placement that has the most predictable structure or the most consistent rules and routines or the fewest disruptions, but only to a placement that can implement this accommodation satisfactorily.

There was no persuasive evidence that within the co-taught classroom, there would be insufficient structure, rules or routines, or that the classroom would be unduly disruptive or disorderly. Student’s 4 th grade special education teacher (Ms. A), who is familiar with both the 5 th grade co-taught classroom and one of the other 5 th grade regular education classrooms at Y, testified that the co-taught classroom would provide greater predictability and clearer expectations than the other 5 th grade classroom, and she noted the benefit of seamlessly providing the IEP services within the co-taught model. Ms. A concluded that the co-taught classroom provides a good blend of predictability and flexibility, with extra support as needed. She recommended the co-taught classroom for Student for these reasons. In addition, there was persuasive evidence that each of Student’s stay-put special education and related services can be appropriately and fully implemented within the 5 th grade co-taught classroom. Testimony of A, Rivers, C, D.

For these reasons, I find that there is nothing explicitly or implicitly contained within Student’s stay-put IEP that precludes Student’s placement within the proposed 5 th grade co-taught classroom, and I further find that Student’s stay-put educational services can be fully implemented within this classroom.

I now turn to Parents’ arguments under least restrictive environment principles. Under state and federal special education law, a school district has an obligation to provide services in the “least restrictive environment.”14 The phrase “least restrictive environment” means that, to the maximum extent appropriate, a student must be educated with other students who do not have a disability, and that “removal . . . from the regular educational environment occurs only when the nature or severity of the disability of a child is such that education in regular classes with the use of supplementary aids and services, cannot be achieved satisfactorily.”15 The court in John M . cautioned that any “ methodological change that would dilute the statute’s policy of ‘mainstreaming’ disabled children to the ‘maximum extent appropriate’ … deserve[s] particular scrutiny.”16

In the present dispute, Student would not be removed from the general education environment as the co-taught classroom is a general education placement, and within this placement, he would be taught with students who do not have a disability. The only relevant consideration would be a somewhat larger number (and larger percentage) of special needs students in the proposed co-taught classroom. I am not aware of any legal authority that supports the proposition that principles of “least restrictive environment” are implicated under these circumstances.

Finally, I consider Parents’ argument that, regardless of how the change to a co-taught classroom is characterized and regardless of whether this consideration is addressed in the IEP, the proposed placement would sufficiently change Student’s educational programming so as to violate stay-put principles. Parents argue vigorously that this is not simply a change in the details of Student’s education. They take the position that there would be a very substantial diminution of their son’s educational services were he to be placed within the co-taught classroom. Parents provided testimony from their son’s private tutor (Ms. Provensal) and from Mother as to the importance of predictability, routine, minimization of disruptions, and structure for Student’s education. And, Parents elicited testimony from X’s 5 th grade teachers that the co-taught classroom would have fewer fixed routines and greater flexibility regarding Student’s special education instruction, as compared to Student’s 4 th grade classroom. Parents would have liked to be able to obtain additional information (which at the time of the hearing was not available) through discovery or testimony regarding the number of children who would be provided pull-out services with their son in the co-taught classroom, for the purpose of comparison with the 1:1 or 1:2 staff:student ratio for pull-out services within 4 th grade; however, for reasons explained below, I do not believe this information, if available, would have made a difference to the outcome of the present dispute. Testimony of C, Rivers, Z, Mother, Provensal; exhibit S-5.

I do not find Parents’ arguments persuasive for two reasons. First, I do not believe that stay-put principles extend to the right to replicate the precise teaching environment of a regular education classroom from one year to the next. Inevitably, a change in classroom from one year to the next may entail a different mix of special education and regular students, new teachers with different styles and abilities and with different schedules for delivering services, and different physical classroom environments. This may result, for example, in greater or lesser structure and predictability, and may result in larger or smaller student:staff teaching ratios. Stay-put principles simply do not extend to this level of detail, even though these details may have educational significance, unless the student’s stay-put IEP requires it.

Second, as discussed above, John M . made clear that at stake in this dispute is a change in teaching methodology. X is proposing that Student be taught using a methodology new to Student but one that is long-established and well-accepted. With such a change, there are likely to be both advantages for Student that have been emphasized by X (for example, more flexibility in his instruction, relatively seamless transitions from regular education to special education services within the classroom, and greater availability of special education support) and disadvantages emphasized by Parents (for example, a larger number of special education students with whom Student would be taught and less predictability of the time and day of the special education services). I do not believe this to be the kind of fundamental change in or diminution of the quality or quantity of services that is protected by stay put, unless the student’s IEP requires it.17

For these reasons, I find that X is proposing to place Student in a regular education classroom (co-taught by a regular education teacher and a special education teacher) for 5 th grade, that Student’s stay-put IEP can be fully implemented in the proposed co-taught classroom, that nothing within Student’s stay-put IEP precludes the proposed placement, that the proposed placement is consistent with Student’s right to receive his education in the least restrictive environment, and that the proposed placement would not likely result in such a substantial change in educational programming as to violate Student’s stay-put rights.

For these reasons, Parents’ Motion to Order Stay-Put Placement is DENIED .

As the parties are aware, this matter is scheduled for a hearing on the merits on October 8, 12, and 15, 2010. The parties are reminded that the hearing will address only those issues described within my order of August 10, 2010 unless an amended hearing request is filed by Parents or counterclaims are filed by X for the purpose of expanding or otherwise changing the scope of the hearing.

By the Hearing Officer,

William Crane

Dated: September 9, 2010

Appendix A
COMMONWEALTH OF MASSACHUSETTS

Division of Administrative Law Appeals

Bureau of Special Education Appeals

In Re: X School District BSEA # 11- 0594

SUMMARY RULING ON MOTION FOR STAY PUT

In order to apprise the parties in a timely manner of my ruling in this case, this Summary Ruling is issued in advance of a full Ruling. By September 10, 2010, I expect to issue a full Ruling, which will explain the bases for the findings and conclusions in the instant Ruling.

On August 3, 2010, Parents filed a Motion to Order Stay-Put Placement , taking the position that X Public Schools (X) was proposing to change their son’s placement from a regular education classroom to a more restrictive, co-taught classroom that would have a substantial, negative impact on Student’s education in violation of stay-put principles under federal special education law.

On August 4, 2010, X filed an opposition, taking the position that the classroom for 4 th grade (the 2009-2010 school year) and the proposed co-taught classroom for the 5 th grade (the 2010-2011 school year) are both regular education classrooms, that Parents have no stay-put rights to a classroom that is not co-taught, and therefore that Student’s stay-put protections do not preclude X’s proposed classroom placement.

On September 2, 2010, there was an evidentiary hearing on the motion in order to consider documents and hear testimony regarding Student’s placement from 4 th grade and X’s proposed placement for 5 th grade. The official record of the hearing consists of documents submitted by the Parents and marked as exhibits P-1 through P-8; documents submitted by X and marked as exhibits S-1 through S-5; and five hours of oral testimony and argument.

I have had an opportunity to review and consider the entire evidentiary record, as well as the arguments of both parties. On the basis of this review, I find that X is proposing to place Student in a regular education classroom (co-taught by a regular education teacher and a special education teacher) for 5 th grade, that Student’s stay-put IEP can be fully implemented in the proposed co-taught classroom, that nothing within Student’s stay-put IEP precludes the proposed placement, that the proposed placement is consistent with Student’s right to receive his education in the least restrictive environment, and that the proposed placement would not likely result in such a substantial change in educational programming as to violate Student’s stay-put rights.

For these reasons, Parents’ Motion to Order Stay-Put Placement is DENIED .

By the Hearing Officer,

William Crane

Dated: September 3, 2010


1

20 USC 1400 et seq .


2

MGL c. 71B.


3

The stay-put protections are set forth within the IDEA at 20 USC § 1415 (j) (“Except as provided in subsection (k)(4), during the pendency of any proceedings conducted pursuant to this section, unless the State or local educational agency and the parents otherwise agree, the child shall remain in the then-current educational placement of the child, or, if applying for initial admission to a public school, shall, with the consent of the parents, be placed in the public school program until all such proceedings have been completed.”) and regulations thereunder. 34 CFR §300.518 (“Except as provided in §300.533, during the pendency of any administrative or judicial proceeding regarding a due process complaint notice requesting a due process hearing under §300.507, unless the State or local agency and the parents of the child agree otherwise, the child involved in the complaint must remain in his or her current educational placement.”). The First Circuit has discussed stay-put protections (which remained the same from the IDEA to IDEA 2004) in Verhoeven v. Brunswick School Committee , 207 F.3d 1 (1 st Cir. 1999).


4

See CP v. Leon County School Bd. Florida , 483 F.3d 1151, 1156 (11th Cir. 2007) (“provision amounts to, in effect, an automatic preliminary injunction, maintaining the status quo and ensuring that schools cannot exclude a disabled student or change his placement without complying with due process requirements”); Verhoeven v. Brunswick School Committee , 207 F.3d 1, 3, 10 (1st Cir. 1999) (preservation of the status quo ensures that the student remains in the last placement that the parents and the educational authority agreed to be appropriate).


5

See, e.g., Hale v. Poplar Bluff R-1 School District, 280 F.3d 831 (8th Cir. 2002) (determination of whether there has been a change in student’s “then-current educational placement” is a “fact-specific” inquiry that considers the impact of a change of placement on student’s education);


6

See, e.g., AW v. Fairfax County School Board , 372 F.3d 674 (4 th Cir. 2004) (“ where a change in location results in a dilution of the quality of a student’s education …, a change in educational placement occurs” ); Tennessee Department of Mental Health v. Paul B ., 88 F.3d 1466 (6th Cir. 1996) (“must identify a detrimental change in the elements of an educational program in order for a chance to qualify for the stay put provision”); DeLeon v. Susquehanna Community School District , 747 F.2d 149, 153-154 (3rd Cir. 1984) (“touchstone in interpreting section 1415 has to be whether the decision is likely to affect in some significant way the child’s learning experience”).


7

Sherri A.D. v. Kirby, 975 F.2d 193, 206 (5th Cir. 1992). See also Lunceford v . District of Columbia Bd. of Educ ., 745 F.2d 1577, 1582 (D.C.Cir.1984) (applying same standard); Mr. C v. Maine School Administrative Dist. No. 6 , 2007 WL 4206166 ( D.Me. 2007) (applying same standard).


8

See, e.g., 20 USC 1412(a)(5)(A) (“To the maximum extent appropriate, children with disabilities . . . are educated with children who are not disabled, and special classes, separate schooling, or other removal of children with disabilities from the regular educational environment occurs only when the nature or severity of the disability of a child is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily.”).


9

AW v. Fairfax County School Board , 372 F.3 rd 674 (4 th Cir. 2004). See also John M. v. Board of Educ. of Evanston Tp. High School Dist. 202 , 502 F.3d 708 (7 th Cir. 2007) (“ Suggestions for methodological change that would dilute the statute’s policy of ‘mainstreaming’ disabled children to the ‘maximum extent appropriate,’ 20 U.S.C. § 1412(a)(5)(A), deserve particular scrutiny” under stay-put principles).


10

See Hendrick Hudson Dist. Bd. of Ed. v. Rowley, 458 U.S. 176, 208 (1982) (so long as school district has met its obligations to provide FAPE, any decisions regarding methodology are left to its discretion).


11

John M. v. Board of Educ. of Evanston Tp. High School Dist. 202 , 502 F.3d 708 (7 th Cir. 2007).
(“ if the court determines that the methodology is not part of the IEP but simply a methodology chosen by the middle school educational professionals, that particular methodology need not be included in the stay-put order”).


12

Id.


13

Id .


14

20 USC 1400(d)(1)(A); 20 USC 1412(a)(1)(A); 20 USC 1412(a)(5)(A); 34 CFR 300.114(a)(2(i); MGL c. 71B, ss. 2, 3; 603 CMR 28.06(2)(c).


15

20 USC 1412(a)(5)(A) (“To the maximum extent appropriate, children with disabilities . . . are educated with children who are not disabled, and special classes, separate schooling, or other removal of children with disabilities from the regular educational environment occurs only when the nature or severity of the disability of a child is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily.”); MGL c. 71B, ss. 2, 3; 34 CFR 300.114(a)(2(i); 603 CMR 28.06(2)(c). See also Burlington v. Mass. Department of Education , 471 US 359, 369 (1985) (federal statute “contemplates that such education will be provided where possible in regular public schools, with the child participating as much as possible in the same activities as nonhandicapped children”); Rome Sch. Comm. v. Mrs. B., 247 F.3d 29, 33 (1st Cir. 2001) (“ mainstreaming may not be ignored, even to fulfill substantive educational criteria”) , quoting Roland v. X School Committee , 910 F.2d 983, 992-993 (1 st Cir. 1990); Board of Education of LaGrange School District No. 105 v. Illinois State Board of Education , 184 F.3d 912, 916 (7 th Cir. 1999) (placement proposal, which did not enable the student to share a classroom with typically developing children, did not satisfy mainstreaming requirement because student’s disability and IEP did not prevent him from benefiting educationally in a more inclusive setting).


16

John M. v. Board of Educ. of Evanston Tp. High School Dist. 202 , 502 F.3d 708 (7 th Cir. 2007).


17

See John M. v. Board of Educ. of Evanston Tp. High School Dist. 202 , 502 F.3d 708 (7 th Cir. 2007) (“ We recognized that the educational status quo for a growing, learning young person often makes rigid adherence to particular educational methodologies an impossibility. Under these circumstances, respect for the purpose of the stay-put provision requires that the former IEP be read at a level of generality that focuses on the child’s educational needs and goals.”) (internal quotations and citations omitted).


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