COMMONWEALTH OF MASSACHUSETTS
BUREAU OF SPECIAL EDUCATION APPEALS
BSEA# 07-6717
IN RE: JEREMY1 v NORTH ANDOVER PUBLIC SCHOOLS
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 corresponding regulations.
A hearing was conducted on November 28, 2007 and November 29, 2007 at the Bureau of Special Education Appeals (BSEA) in Malden, MA. The Parent’s request to continue the hearing until January 18, 20082 to file written closing arguments was granted and the record closed on that day.
Those present for all or part of the hearing were:
Parent
Sharon Jermain Parents’ Advocate
Ilda Carreiro King Reading Specialist
Brette Swanson Special Education Teacher, North Andover Public Schools
Sandra Hamilton Reading Specialist, North Andover Public Schools
Monique Greilich Special Education Department Head, North Andover
Joyce Laundre Special Education Director, North Andover Public Schools
Catherine Lyons Attorney; North Andover Public Schools
Joan Beron Hearing Officer, BSEA
Darlene Coppola Court Stenographer, Catougno Court Reporting
The official record of the hearing consists of Parents’ Exhibits marked P1-P59, School Exhibits marked S1-S263 and approximately nine hours of testimony. The record closed on January 18, 2008 when the Hearing Officer received a written and electronic closing argument from both Parties.
ISSUES
I. Does North Andover’s proposed IEP for 8 th grade provide Jeremy with a free appropriate public education (FAPE) in the least restrictive environment (LRE)?
II. If not, can the program be made appropriate with accommodations and/or modifications?4
III. Did the School District commit procedural violations that denied Jeremy a FAPE such that he is entitled to compensatory education?
IV. Would Jeremy’s continuation in his current program deny him a FAPE?
FINDINGS OF FACT
1. Jeremy is an 8 th grade student who lives in North Andover, MA (Parent). He has been receiving special education services since 4 th grade (SY 03-04) due to a learning disability that affects his ability to decode, comprehend and organize oral and written language (P1).
2. On or about March 31, 2005 the School District received an evaluation from Children’s Hospital in Boston (Children’s) of Jeremy that was conducted on February 24, 2005 (S9). At that time Parent had concerns that Jeremy forgot to bring home materials needed and required help to complete his homework, and needed tasks to be broken down into several steps in order to complete them (P19). Testing showed above average reading comprehension and word retrieval; however Jeremy scored in the low average range in processing speed, had a very slow reading rate, delayed written comprehension, effortful graphomotor performance and was approximately a half year to a year behind grade level in math. Children’s diagnosed Jeremy with a neurologically based learning disability that resulted in slow processing speed, motor sequencing and organization deficits and cognitive impulsivity (S9, see also P3). Children’s recommended that Jeremy continue to be taught in an inclusion program where the teachers continue the use of repetition and reinforcement, with extra time to complete tests or shorten assignments if needed and frequent check-ins to ensure that Jeremy is understanding the assignments. Children’s also recommended that Jeremy receive strategies to organize; that the Wilson program that Jeremy was receiving be expanded to address reading fluency and comprehension as well as decoding; that Jeremy be taught computer keyboarding skills and have access to a word processor for written work, and that counseling in school be increased to help him deal with anxiety and low self-esteem (S9).
The School District reconvened the TEAM in response to the independent evaluation. In 5 th and 6 th grades Jeremy received daily forty-minute sessions in reading, writing and math in the inclusion classroom, two fifteen-minute sessions a week of consultation, one forty minute session of daily pull-out support for organization, after school help twice a week, continued participation with the regular education reading specialist, and continued special education summer tutoring (P8, P2).
3. Jeremy ended 5 th grade (SY 04-05) with an advanced score on the MCAS (264) in science and technology (S20). However in 6 th grade (SY 05-06) Jeremy ended the year with a D+ in science with an A in Art, a B+ in physical education, a C+ in social studies, a C in language arts and a C- in math (S19). He scored in the proficient range on the MCAS English/Language Arts (242) but in the Needs Improvement range in Math (220). (S19, see also S11). Jeremy met his annual goals in both grades5 and testing showed that he improved in most of his reading skills; ( see P17, see also P28, P29, P31).6
4. Jeremy began 7 th grade (SY 06-07) without his remedial reading due to budget cuts ( see P7). In October 2006 Parent contacted Jeremy’s special education teacher because she was concerned that he was not receiving his reading support and was not making significant improvement in his sight vocabulary recognition (P33, P34, see also Parent).
5. The School District conducted reassessments in December 2006 and January 2007 (S10-S13/P20-22, see also P23). At the time of the evaluation Jeremy was receiving three B’s and a C+ on his first trimester report card (S10, S19). Jeremy scored in the average range in all areas of social emotional functioning and in expressive and receptive language ( see S10, S12). He also scored in the average range on all subtests of the Woodcock-Johnson III with weaknesses in decoding, reading fluency (24 th percentile), passage comprehension (18 th percentile), spelling (13 th percentile) and spontaneous writing (11 th percentile) (S11). Jeremy’s composite scores were also in the average range on the WISC-IV in verbal comprehension, perceptual reasoning and processing speed and in the low average range in working memory, with his greatest difficulty in recognizing important details in visual information (S10, see also S13).7
6. The TEAM convened on January 30, 2007 to consider the evaluations (S5). The School District offered an IEP that maintained the two fifteen minute sessions of consultation per week and the daily inclusion support in reading, writing and math, and daily pull-out support, six of the ten sessions with a reading specialist and the other four with a special education teacher in the learning center. The IEP also continued the summer program; ( see S5, P2). However, the IEP did not include the one session of daily pull-out support for organization ( see Parent).
7. The School District sent Parent the IEP on February 15, 2007 (S5). Parent rejected the IEP on March 6, 2007; Id. On March 23, 2007 Parent sent the School District a letter detailing her rejection, accepting the services of the IEP but rejecting the removal of the organizational services, the absence of some of the accommodations listed in the December 2005 IEP, and the absence of goals for accuracy, fluency and comprehension. Parent also asserted that the School District failed to provide Jeremy with a multi-sensory phonemically based reading program by a certified provider (S6, see also Parent).
8. In March 2007, the School District contacted its consultant, Dr. Ilda Carreiro King, regarding developing a language-based program for the 07-08 school year. Jeremy would be included in that program (Laundre, King). Dr. King administered an informal reading assessment on March 16, 2007 (S8). Jeremy displayed frustration reading 4 th grade level text. Therefore Dr. King determined that Jeremy required continued development in reading words automatically and felt that he could benefit from a program like Great Leaps which addresses the phonemic, phrase and then passage level of language (S8, King). Jeremy also displayed trouble using strategies to aid in reading comprehension of a mid second grade level text. Therefore Dr. King recommended that Jeremy receive systematic comprehension instruction; Id.
9. On April 13, 2007 the Parties went to mediation regarding the disputed IEP. Parent and the School District entered into a mediation agreement where the School District and Parent agreed to bring in the School District’s reading consultant (Dr. King)8 to review Jeremy’s records and develop a comprehensive reading program for Jeremy, including conducting a records review and an evaluation. However if Dr. King was not able to complete the evaluation by the end of the school year Parent revoked her consent (S2/P53, Laundre). The Parties also agreed that the School District’s reading consultant would immediately provide up to one hour per month of consultation to the School district staff. The Parties also added a new organizational goal, revised the reading and writing goals, revised the service delivery grid to provide daily pull out support in the learning center and added an hour per month of consultation from the reading specialist (S2/P53, Parent, King). This amended the IEP that ran from January 30, 2007 until January 30, 2008 and became Jeremy’s last accepted IEP ( see S5, S2/P5, Laundre, Greilich).
10. Dr. King was able to, and did provide consultation to the School District during the school year and in the summer (King, Swanson, Hamilton). She was not however, able to review Jeremy’s records and develop a program for Jeremy by the end of the school year (King). Therefore, Parent’s consent was revoked pursuant to the mediation agreement (Laundre). Dr. King informed the School District in late April 2007 that she was not able to evaluate Jeremy until August 2007 (King, see also Laundre). The School District did not tell Parent that Dr. King was not able to complete the evaluation during the school year (Laundre). Dr. King did inform Parent of this during the spring (Parent). However, no one from the School District requested consent from Parent to extend the time that Dr. King could complete testing (Laundre).
11. On May 15, 2007, Parent’s Advocate, on behalf of Parent, filed a hearing request requesting an out of district placement at the Landmark School (Landmark), compensatory time for the alleged lack of reading and written language support, summer programming at Landmark and any other relief deemed appropriate; ( see Hearing Request, Parent).
12. The Parties met in May 2007 for a resolution session. At that time Parent requested Landmark for the summer and for the following school year (Parent, Laundre). The School District informed Parent that it was developing a language-based program, that Jeremy would be a good candidate for that program; that the School District was in the process of hiring a teacher for the program; and that there may be 1:1 tutoring available if needed but that the School District would need Dr. King’s input to develop the specifics of the program (Laundre). Parent remembers being promised that Jeremy would receive 1:1 reading instruction pursuant to the “Landmark model”. However, Parent, also acknowledges that although she remembers some discussion regarding the program, once the School District denied Parent’s request for Landmark for the school year Parent felt that the meeting was over and did not concentrate about what was said about the program (Parent).
13. On June 12, 2007 the Parties entered into an Interim resolution agreement (S1). Parent and Parent’s Advocate were at the resolution meeting (Laundre, Parent). In that agreement the School District agreed to fund Jeremy’s summer program at Landmark with transportation; Parent agreed to waive and release the School District from all prior claims; that the TEAM would reconvene in August 2007 to review Jeremy’s participation in the Landmark summer program and determine placement for the 2007-2008 school year; and that the matter be taken “Off-calendar” with a written status report to the Hearing Officer on or before August 1, 2007 (S1).
14. Jeremy ended his seventh grade year with a B-‘s in Language Arts, math and science and a C+ in social studies (S19). On testing done in June 2007 Jeremy completed the Wilson lists 1-12 scoring at the 89th percentile on the Wilson Assessment of Decoding and Encoding (WADE) (Swanson, King, S15). Jeremy was also gaining more automaticity in his phrasing and story reading using the Great Leaps program, and was improving his proof reading skills and writing more complex paragraphs. Jeremy was also showing improvement recognizing misspelled words in his writing, had made positive gains in his understanding of decimals and geometry and was completing assignments and using his organizational folders 80% of the time (S15, see also S14).
15. A conference call before Hearing Officer Byrne was held on June 13, 2007. The Parties asked that the matter be taken “off calendar” (Laundre). The Hearing Officer granted the Parties request to assign the matter “off-calendar” status, released the June 18, 2007 hearing date and ordered the parties to submit a written status report on or before August 1, 2007; ( see Administrative Record order June 15, 2007 Byrne).
16. On July 5, 2007, the School District hired Brette Swanson, a certified and licensed teacher with twenty-two years of experience working with children with language-based learning disabilities (Swanson).9 Ms. Swanson was hired to teach a substantially separate language-based program. Ms. Swanson understood this to mean that she would be examining content area and providing instruction that would break down curriculum units, reduce vocabulary and teach using strategies such as review and relearning as well as multimodal instruction across the whole curriculum and that she would be teaching in all the curriculum areas (Swanson). Ms. Swanson was also told that Jeremy would be recommended to be in her program and reviewed Jeremy’s record after she was hired to teach the program (Swanson).
17. Dr. King completed her records review in early August and contacted Parent to get consent and set up a date for Jeremy to be evaluated so that she could develop a program for him (King). Parent told Dr. King that she didn’t know why the School District wanted to do this testing because Jeremy would be going to Landmark in the fall (King). However Parent did agree to have Dr. King evaluate Jeremy and an evaluation date was set for August 16, 2007 (King).
18. On August 7, 2007 Parent’s Advocate wrote to the School District’s Counsel requesting an August TEAM meeting pursuant to the resolution agreement; ( see P47). On August 15, 2007, the School District sent Parent notice of a TEAM meeting to occur on August 29, 2007 (P13). The notice indicated that the purpose of the TEAM meeting was “IEP development; to finalize plans for 8 th grade program; placement” (P13). The School District was not ready to fully develop Jeremy’s IEP because Dr. King had not been able to begin her evaluation. However both Parties felt that the TEAM meeting needed to occur because of the mediation agreement (Parent, Laundre). The School District also felt that it had enough information to recommend that Jeremy attend the language-based program that they talked to Parent and Advocate about during the resolution session; ( see Laundre). Parent was going to start a new job on August 20, 2007 and didn’t feel that she could go to the TEAM meeting (Parent). However she did not want to continue the meeting preferring to send her Advocate because she felt that former TEAM meetings were not productive and she would rather have her Advocate attend for her (Parent).
19. On August 15, 2007, Dr. King phoned Parent and left a message confirming the appointment the following day (King). Parent sent Dr. King a fax at 8:00 a.m. on August 16, 2007 canceling the appointment because there had been a death in the family (King, Parent). Dr. King asked Parent if the evaluation could occur the following week. Parent told Dr. King that she would be on vacation and would not be back until Wednesday or Thursday of the following week. Dr. King offered to do the evaluation on the Friday of that week10 ; however Parent indicated that she did not know when she would return (King). Dr. King asked Parent to contact her when she returned from vacation so that an appointment could be set up when school began. Parent and Dr. King agreed that Parent would send Dr. King testing that had been done by Landmark that it had done as part of the admissions process (King, see also P72).
20. On August 24, 2007 Parent sent the Special Education Director a note that said “Sharon Jermain will be attending and representing for me at the Meeting on August 29, 2007 at North Andover Middle School” (P16, Laundre).
21. About an hour and a half11 before the August 29, 2007 TEAM meeting, Parent sent an email responding to the Special Education Director’s email inquiry regarding whether she or Ms. Jermain would be attending the August 29, 2007 at 8:30 a.m. with an email that stated: “Sharon Jermain will be representing me at this meeting. She has my complete permission on all matters regarding [Jeremy’s] educational placement” (S17, Laundre).
22. A Team Meeting occurred on August 29, 2007 at 8:30 a.m. In attendance were the Advocate and Special Education Director, the TEAM Chairperson, Dr. King and the teacher of the proposed language based program (King, Swanson, Greilich, Laundre). A regular education teacher did not attend the meeting (Swanson). Parent also did not attend the TEAM meeting; however, the meeting proceeded because Parent had informed the special education director that Advocate would be going to the TEAM meeting and making decisions (Greilich, King, Swanson). The special education director began the meeting because the TEAM chairperson did not arrive until 9:00 a.m. (Laundre, Greilich). The Advocate asked what the purpose of the meeting was. The special education director told Advocate that the purpose of the meeting was to discuss Jeremy’s placement for the school year, to clarify the IEP and rewrite the service delivery grid12 (Laundre, see also S1).
Dr. King at that time had completed her records review and an informal assessment of Jeremy in March 2007 but had not at that time evaluated Jeremy because she did not have consent from Parent. Dr. King informed the TEAM members about the lack of consent and was told that she should wait for Parent to contact her to arrange a time for testing (King, see also Swanson).
Dr. King discussed her informal testing and the results of her record review indicating that the results were conflicting because a lot of the former testing showed Jeremy’s readability levels to range from second to sixth grade levels. Dr. King indicated that she would like to conduct a curriculum-based assessment. However, Dr. King did feel, based on the information that she had, that Jeremy required a language based program and told the TEAM that she and the School District had designed a program where Jeremy would be receiving language-based services across the curriculum. Dr. King also informed the Advocate that Brette Swanson was hired to primarily teach Jeremy and another student; that Ms. Swanson would be with these two students the entire day; and that Jeremy’s schedule would be parallel to another 8 th grade team in the middle school so that Ms. Swanson would have the flexibility of adapting the program for Jeremy with strategies such as preteaching and pull-out for additional concept development, while still allowing him to participate in the classroom as much as possible, particularly for labs and science13 (King, see also Swanson, Greilich).
The TEAM then discussed a schedule of classes that Jeremy would begin to attend at the start of the school year (Swanson, Greilich, King). The TEAM then wrote a list of the classes that Jeremy would be taking to ensure that the teacher was with him in every one of those classes. The TEAM also went over how many students would be with Jeremy in each of those classes. The schedule showed that Jeremy would be with one other student for social studies and science but that Jeremy would be with up to four other students for language arts and three students in the proposed reading group and would attend a regular education math class, because the School District both believed that Jeremy could access the regular education math program with modifications and that Ms. Swanson’s class would be for children who were more severely math disabled (Swanson, see also King). The TEAM also discussed the possibility of specific accommodations that might be used for Jeremy’s program such as continuing the use of Great Leaps, and software programs such as Lexia, Read Naturally or Fluent Reader (King, see also Swanson). The School District felt that Ms. Jermain liked the program because the meeting lasted for many hours and the Advocate appeared excited about the program and was very involved in developing goals, objectives and benchmarks for Jeremy. The Advocate did inform the School District that she would talk to Parent about the program. However the School District believed that the Advocate had accepted the program on behalf of Parent and believed, based on Parents’ email, that the Advocate had authority to accept the plan (Laundre, see also Greilich). However, the TEAM did not ask, and the Advocate did not indicate that she had accepted the program, and no IEP was sent to Parent or Advocate because the TEAM thought that they were supposed to implement the goals and objectives developed at mediation in April 2007, tweak the goals and objectives after the testing was done and set a date to meet on September 28, 2007 to develop the IEP (Swanson, Laundre, Greilich). The school members of the TEAM did look at progress reports brought by the Advocate that were done at the Landmark summer program, but there was not much discussion about Jeremy’s summer program at Landmark (Swanson). The school members of the TEAM indicated that they would like to look at admissions testing that was done at Landmark to help them develop their program (Swanson, King).
23. Parent and the Advocate did not discuss what occurred at the August 29, 2007 TEAM meeting until approximately September 4, 2007 or September 5, 2007 because the Advocate was hospitalized for five days (Parent). Parent and Advocate talked about the number of children that would be in the program; that in some classes there would be two students and other classes five students and that the School District would be using a Landmark model which Parent believed meant that Jeremy would be getting his reading in a 1:1 setting (like he did in the Landmark summer program) (Parent). Parent also remembers being told by Advocate that there was a lot of confusion at the meeting because the School District was calling the meeting a placement meeting and Parent thought that the TEAM was going to talk about what programs the TEAM was going to put in place for Jeremy (Parent). When Parent asked Advocate where the IEP was she was told that the School District was working on it (Parent). The School District was not aware that Parent had not meant for her Advocate to accept services on her behalf or that she did not agree that an IEP would be generated after completion of testing (Swanson, Laundre, see also Parent).
24. Jeremy began attending Ms. Swanson’s language-based program on the first day of school (September 5, 2007). Parent was aware that Jeremy had begun a new program because she and Jeremy talked about school each evening; however, Parent was confused about what services Jeremy was getting because Jeremy was not that articulate about what he was doing and about how many students were in each class (Parent). Parent believes that she did learn from the School District the following week that Ms. Swanson taught Jeremy in all his academic classes but math (Parent). Parent was still confused however about what Jeremy was doing in school (Parent). Although Parent maintains that she never consented to this placement the School District was not aware that Parent did not consent or that she was confused about Jeremy’s program because on the first day of school Ms. Swanson sent Jeremy home with his schedule and curriculum guides for the courses that he was taking and did not hear from Parent (Swanson).
25. On September 7, 2007 the School District sent Parent notice of a TEAM meeting to occur on September 28, 2007 (P14, Parent). The purpose of the TEAM meeting was to reconvene the TEAM to develop the IEP and determine placement (P14).
26. On September 13, 2007 Hearing Officer Byrne sent14 out an order to show cause order because neither party had filed a status report due on August 1, 2007 and therefore the case was considered inactive; The Order to Show Cause stated that “this case will be dismissed unless a party indicates in writing, within thirty (30) days from the date of this order, good cause why the case should not be dismissed”; ( see Administrative Record, September 13, 2007 Show Cause order, Byrne, see also Laundre).
27. Parent met Ms. Swanson at the Back-to-School night on September 20, 2007 (Parent, Swanson). Ms. Swanson talked to Parent about the curriculum and answered Parent’s questions about what topics would be covered in social studies and Jeremy’s writing. Parent told Ms. Swanson that she was concerned that Jeremy was in an inclusion math class because Landmark had told her that Jeremy was at a pre-algebra level (Parent). Ms. Swanson informed Parent that her program would be inappropriate for him because the students functioned at a lower level than Jeremy (Swanson). Parent informed Ms. Swanson that she was unhappy that he was in this program, that the program that he was in was not a placement and that she wanted him to attend Landmark (Parent, Swanson). She did not however inform Ms. Swanson that she did not consent to having Jeremy in that program or that he be removed from that program (Parent, Swanson).
28. On September 28, 200715 the TEAM reconvened to develop Jeremy’s IEP (S3). Parent did not attend this TEAM meeting (Parent, see also P14).16 However the School District was told that Advocate was there pursuant to Parent’s request (Parent). The meeting lasted about three hours and the Parties worked well together discussing Jeremy’s progress and developing goals and objectives (Swanson, King, Greilich). At the end of the meeting the School District members of the TEAM believed that Advocate on behalf of Parent agreed to Jeremy’s continued participation in a self-contained special education program with Ms. Swanson, with inclusion math with an aide and inclusion for science labs; ( see Swanson, King, Greilich). The IEP however was not sent to Parent because the Advocate had agreed that the School District would wait for the results of Dr. King’s and Ms. Swanson’s testing (Greilich, see also King, Laundre, S4). The School members of the TEAM told Advocate that they had still not gotten consent for Dr. King to conduct the testing. Another consent form was sent home with Jeremy on that day (Swanson). The written request indicated that the TEAM would reconvene after the reading evaluation was completed (P15). Parent did not know why the School District was requesting consent because she felt that she had already given consent in the mediation agreement (Parent). However, Parent did not inform the School District about her confusion and signed the consent form on or about that day17 ( Parent, see P15).
29. Parent and Advocate spoke on or about September 29, 2007 (Parent). Advocate told Parent that it was a good meeting and that it was a well-written IEP and that Jeremy would no longer be in an inclusion program. Parent told Advocate that she accepted the IEP (Parent).
30. Parent also communicated with Dr. King by email on September 29, 2007 about Dr. King’s evaluation of Jeremy on Monday, October 1, 2007. Dr. King asked Parent for a copy of Landmark’s admissions testing so that she could review it (King). Parent gave Dr. King a copy of Jeremy’s progress report at Landmark but did not share any other testing (King).
31. Dr. King conducted a curriculum based reading and writing assessment on September 27, 2007 and October 1, 2007 (S7, King). Dr. King administered the Qualitative Reading Inventory-4 (QRI-4), the AGS Reading Level Indicator, and the Reading A-Z Benchmark Assessment and reviewed Jeremy’s writing samples. When comparing Jeremy’s results on QRI word lists administered in March 2007 and September 2007 Dr. King found that Jeremy had improved on his use of multisyllabic words. Dr. King felt that Jeremy had improved to the point of dropping the use of Great Leaps and begin work in drills for content area words and begin Fluent Reader, a program that improves fluency; Id. Jeremy had independent automatic word skills at the third grade level, could comprehend 4 th and 5 th grade material and was able to read up to the 6 th grade level instructionally. When given reading comprehension testing Jeremy was able to read at a 10 th to 12 th grade level with preview of vocabulary and concepts and direct teaching of comprehension strategies however when information was more complex or if Jeremy was tired he read at a 5.8 grade level (S7). Dr. King found that Jeremy needed to continue to apply syllabication skills to content area and multisyllabic words and needed instruction in writing. Based on the above Dr. King recommended goals and objectives in fluency and comprehension to be included in his IEP (S7, King). She did not however recommend goals and objectives in decoding because Jeremy had achieved a score of 89% on the WADE and with a score above 80% he no longer needed decoding instruction according to Wilson criteria (King, see also Swanson).
32. On October 15, 2007 Advocate filed a response to the Order to Show Cause. In that response Parent requested that the Hearing Officer immediately take the matter from Off Calendar status and set a date for hearing. As grounds for the request the Advocate wrote:
“On 8/29/07 a meeting was held whereby the IEP was clarified, portion of the IEP were suppose to be re-written, and the service delivery grid was reviewed. At this meeting the Parent was notified that the North Andover Public Schools had changed Jeremy’s placement from a full inclusive program to a substantially separate program whereby Jeremy would be placed with one other student to receive the services that the district felt were needed by Jeremy
To date the Parent has never consented to this placement and as recently as the 9/28/07 Team meeting, the Parent has notified the TEAM that Jeremy’s placement was changed without a Team meeting, without the Parent’s consent, and that a Team has never indicated that Jeremy needed to go from an inclusive model to a substantially separate model”; (Parent’s Response to Order to Show Cause October 15, 2007).
The response also indicated that Parent had not yet received the IEP from the September 28, 2007 TEAM meeting and that the program that Jeremy was currently in, that she did not consent to, was inappropriate because it did not provide a 1:1 model in reading; that no specific reading program had been developed for Jeremy and that the placement that the School District was proposing was more restrictive and segregated than a placement at Landmark would be; ( see Parent’s response to Show Cause October 15, 2007). On October 29, 2007, hearing dates were set for November 28, 2007 and November 29, 2007; ( see Administrative record).18
33. The School District received Parent’s response to the Show Cause by fax on October 15, 2007 (Laundre). The special education teacher, the special education director, the TEAM coordinator and Dr. King were surprised that Parent had not consented to this placement because they were told by Parent via her email and Advocate that Advocate had authority to make educational placements for Jeremy and believed that Advocate on behalf of Parent had consented to the change of placement at the August TEAM meeting and that she had agreed that the TEAM would reconvene and that an IEP would be developed after Dr. King had completed her report (Laundre, Swanson, King, Greilich). The School members of the TEAM also believed that Advocate had consented to the program on behalf of Parent and that Parent was aware and had agreed that to the placement and that the IEP would be received when Dr. King had finished her report (Swanson, Laundre, King, Greilich).
34. Because the IEP was rejected, the School District revised Jeremy’s schedule to reflect services consistent with the last accepted IEP (P48). The special education director, upon receiving Parent’s response, sent an email to Parent that said:
“ Due to your objection to the current placement for Jeremy in Ms. Swanson’s classroom, the North Andover Middle School will revise Jeremy’s current schedule to reflect the most recently accepted IEP service delivery.”
“Please discuss this change with Jeremy so he is prepared for a revised schedule to be implemented within the next few days. If you have any questions regarding specific schedule changes please contact Ms. Greilich at the Middle School” (S18, see also Laundre, Parent). Parent did not contact the special education director regarding this email (Laundre, Parent).
35. Dr. King completed her report on or about October 17, 2007 and sent it to the School District (King, Greilich). Upon receiving the report the TEAM coordinator contacted the special education teacher and Dr. King, incorporated Dr. King’s reading and writing goals and objectives into the IEP and sent it to Parent on October 19, 2007 (Greilich, see also King, Swanson, Laundre, compare S5, S7). The proposed IEP designates that Jeremy would receive two fifteen minute sessions of consultation, daily special education math support and academic support in science. Jeremy would also receive pull out support for eight 45-minute sessions per week in reading with the other two sessions in academics, daily pull out instruction in language arts, daily pull out for social studies and science, and a five week extended school year program (S3).
36. Parent did not return the IEP; however Parent did, through her Advocate, file an amended request for relief requesting that the School District develop an appropriate reading and written language program for the remainder of the 2007-2008 school year and that it send Jeremy to an out of district program at Landmark at the end of the 2007-2008 school year ( see Amended Hearing request).
37. Jeremy’s 1 st trimester progress report issued on or about October 27, 2007 reflects estimated grades of A’s in Ms. Swanson’s Language Arts, Social Studies and Science classes and an 81 in his inclusion Math class (Swanson, P52). Jeremy’s teacher noted that Jeremy had excellent conduct and, except in math, had excellent participation and is engaged in class and in language arts, and had gotten much better in journal writing (P52, Swanson, see also P59).19 Jeremy’s teacher believed that Jeremy was very happy when he was in her program, and was engaged and animated in class, working well in group activities in social studies. He did not appear to feel segregated or ashamed of being in a special education classroom, inviting a group of six students from his homeroom to his classroom so that they could receive help organizing their binder (Swanson).
38. Jeremy returned to his last agreed upon placement in an inclusion program in late October 2007. When Jeremy was told that he would be returning to the inclusion class he was very upset (Mother). Since Jeremy has been returned to his last agreed upon inclusion program Jeremy’s teachers have noticed that his demeanor has changed. He has not been as engaged in class hoping that teachers will not call on him (Swanson). The School District has not sought to refer Jeremy to a counselor to address this change in demeanor but feel that if he should return to his former program with Ms. Swanson, the TEAM should reconvene to discuss transition planning and determine if any additional services are needed (Laundre).
39. Parent wants Jeremy to go to Landmark20 because before he attended their summer program he was ashamed of his reading and writing skills and felt that he had not achieved any progress despite a lot of energy and effort (Parent). However, when Jeremy attended Landmark in the summer he was excited about school (Parent). Jeremy was sick on the first day of the hearing and has been sick four times in the last three weeks complaining of stomachaches and headaches (Parent). Parent would like Jeremy to be successful and believes that he cannot be successful in a program that only has one other student and that at Landmark he would receive the 1:1 tutoring he needed and would learn (Parent).
40. The School District has developed IEPs for Landmark for other students; however Jeremy’s needs can be met in-district (Laundre, Greilich).
FINDINGS AND CONCLUSIONS
At issue is whether the program and services that the School District proposes for Jeremy’s 8 th grade year at the North Andover Middle School provide a free appropriate public education (FAPE) in the least restrictive environment (LRE).
Under the federal FAPE standard, an educational program must be provided under an IEP that is tailored to the unique needs of the disabled child and meets all the child’s identified special education and related service requirements. This includes academic, physical, emotional and social needs; 34 C.F.R. 300.300(3)(ii); Lenn v Portland School Committee , 910 F. 2d 983 (1 st Cir. 1990), cert. Denied, 499 U.S. 912 (1991) and Burlington v Mass. Dept. of Education, 736 F. 2d 773, 788 (1 st Cir. 1984). In addition, the IEP must be reasonably calculated to provide a student the opportunity to achieve meaningful educational progress. This means that the program must be reasonably calculated to provide effective results and demonstrable improvement in the various educational skills identified as special needs; Roland v Concord School Committee , 910 F. 2d 983 (1 st Cir. 1990).
In addition to meeting the above standard, special education and related services must be provided in the least restrictive environment. This means that to the extent appropriate, students with disabilities must be educated with children who do not have disabilities. Programs and services can only be implemented in separate settings when the nature and severity of the child’s special needs is such that the student cannot make meaningful progress in a regular education setting even with the use of accommodations and specialized services; see 20 U.S.C. 1412 (5)(A). In Massachusetts, the IEP must also enable the student to progress effectively in the content areas of the general curriculum; 603 CMR 28.02 (18). Massachusetts has defined “progressing effectively in the general education program” as “mak[ing] documented growth in the acquisition of knowledge and skills, including social/emotional development, within the general education program, with or without accommodations, according to the chronological age and expectations, the individual educational potential of the child and the learning standards set forth in the Massachusetts curriculum frameworks and the curriculum of the district”; Id.
FAPE also entails complying with the procedural requirements of the IDEA. A school district that violates a student’s procedural rights under federal or state law may be liable where “procedural inadequacies [have] compromised the pupil’s right to an appropriate education…or caused a deprivation of educational benefits.” Roland M. v Concord Public Schools , 910 F. 2d at 994 (1 st Cir. 1990); see also Murphy v Timberlane Regional Sch. Dist. , 22 F. 3d 1186, 1196 (1 st Cir. 1994) (“a procedural default which permits a disabled child’s entitlement to a free and appropriate education to go unmet for two years constitutes sufficient grounds for liability under the IDEA”); see also 20 USC s. 1415 (f)(E) (ii) (I, III). A Hearing Officer may also find that a denial of a FAPE has occurred if a School District has significantly impeded the parent(s)’ opportunity to participate in the decision making process regarding the provision of a FAPE to the parent(s)’ child, 20 USC s. 1415 (f)(E) ii)(II).
Here Parent, as the moving party, has the burden of showing that the School District’s proposed IEP is not appropriate; Schaffer v. Weast , 546 U.S. 49, 126 S. Ct. 528, 534, 537 (2005) (burden of persuasion in an administrative hearing challenging an IEP is placed upon the party seeking relief).
After review of the documents and testimony presented in this matter, I find that Jeremy’s proposed IEP is reasonably calculated to allow him to make meaningful educational progress in the least restrictive environment. I also find that while procedural violations have occurred, those procedural violations did not significantly impede the parent’s opportunity to participate in decisions regarding her child or cause Jeremy a deprivation of educational benefits, and as such Parent is not entitled to a program at Landmark or other compensatory education.
The Parties agree that Jeremy has a language-based learning disability that affect his ability to comprehend complex language, read fluently and write and organize oral and written language. Jeremy’s disability also affects his ability to organize and complete homework and class assignments. The Parties also agree that Jeremy requires a language-based program across all areas where language is broken down into manageable units, vocabulary is reduced and strategies such as multimodal instruction are used so that Jeremy can access the curriculum.
The School District’s proposed IEP calls for Jeremy to receive pull-out support for eight 45-minute sessions per week in reading with the other two sessions in academics, daily pull-out instruction in language arts, daily pull out for social studies and science, daily special education math support in an inclusion math class and academic support in science when he is included for labs. The IEP also provides for a number of accommodations, consultation between the reading specialist and special education teacher and Jeremy’s regular education teachers to allow for language based instruction across the curriculum and includes the goals and objectives recommended by a qualified special education teacher (who has tested and taught Jeremy) as well as a qualified out of district reading specialist.
Parent feels that the IEP does not offer Jeremy a FAPE because it does not offer Jeremy specialized instruction in decoding and does not offer the 1:1 tutoring in reading that he would receive at Landmark. Parent also believes that Jeremy cannot access the curriculum in math because he was at the pre-algebra level at the Landmark summer program and feels that Jeremy’s participation in science and social studies is inappropriate because he is only with one other student and was unhappy (Parent). However, Jeremy’s June 2007 scores on the WADE show that Jeremy no longer needs Wilson instruction in decoding. The evidence also shows that Jeremy was progressing in his small group instruction in language arts (Swanson, King, Greilich, P52). Parent has offered no evidence to the contrary. The evidence also shows that Jeremy was making good progress in his small group21 social studies and science and that he was able to, with modifications, access the curriculum in math with his peers; Id. The evidence also is persuasive that Jeremy was happy when he was in the proposed program and did not feel excluded interacting with peers in homeroom, science labs, math and classes like Tech Education (Swanson). Parent has asserted that Jeremy was happy to be at school when he was at the Landmark summer program and has in the last five weeks been sick four times in the last five weeks complaining of stomachaches and headaches (Parent). However, during the past five weeks Jeremy has been educated in his last agreed upon placement, an inclusion program where the School District agrees is not appropriate for Jeremy (Swanson, Greilich, Laundre).22
Parent also maintains that Jeremy was denied a FAPE because the School District committed procedural errors. Specifically Parent maintains that Jeremy began the 2007/2008 school year in a different program without her consent, did not send her an IEP to sign until October 19, 2007 even though the TEAM had reconvened on August 29, 2007 and September 28, 2007 and did not reconvene the TEAM to consider Dr. King’s subsequent evaluation. Parent is correct that an IEP was not sent to her until October 19, 2007 and that the TEAM did not convene to specifically consider Dr. King’s full evaluation.
Parent is also correct that North Andover did commit procedural violations. Although Jeremy had an amended IEP that ran until January 2008, clause 3 of the Parties’ interim resolution agreement indicates “the TEAM shall convene during August 2007 (prior to the start of the 2007-2008 school year) to review Jeremy’s participation at Landmark during summer 2007 and to determine placement for the 2007-2008 school year”.
North Andover did convene the TEAM in August 2007 to discuss placement. However, North Andover was not ready in August 2007 to develop a full IEP because Dr. King had not completed her evaluation of Jeremy. This was because the mediation agreement indicated that if it was not possible for the evaluation to be complete by the end of the school year Parent revoked consent to have evaluations done. Dr. King was not able to complete her evaluation by the end of the school year. Both Parent and the School District knew in late April or early May 2007 that Dr. King would not be able to complete her evaluation before the end of the school year. Neither party contacted the other to extend the time period for Dr. King to complete her evaluation and Parent did not give North Andover consent in a timely matter so that Dr. King could complete her evaluation before this school year began.
However, North Andover did have enough information to propose a placement for Jeremy with the information it had about Jeremy’s 7 th grade work and Dr. King’s consultation, informal testing and records review and his 7 th grade teacher’s (Ms. Hamilton’s) year end testing, and should have produced an IEP that designated the placement that it proposed. The law requires that when a TEAM is determining placement it should consider a student’s identified special needs, the types of services the student requires, and whether such services should be provided in a general education setting with supplementary aids and/or services or in a separate classroom or school. Once this is done the Team shall consider all aspects of the student’s proposed special education program as specified in the student’s IEP and determine the appropriate placement to provide the services. The Team shall then determine if the student shall be served in an in-district placement or an out-of-district placement and shall determine the specific placement that is the least restrictive environment to meet his/her needs. If an in-district setting is able to deliver the services on the IEP, the Team shall identify such placement and include such determination with the proposed IEP. ( see 603 CMR 28.06(2)).
North Andover did discuss all placement options that were brought up by the members of the TEAM in attendance, including the proposed program in Ms. Swanson’s language-based classroom for language arts, social studies and science with special education support for science labs and math. However, it did not send out an IEP even though the TEAM had determined that Jeremy should begin Ms. Swanson’s program at the beginning of the school year. Once the IEP was developed and the TEAM determined the placement the School District was required to write23 the IEP and send it to Parent and Advocate24 for consent so that those agreed upon portions of the IEP could be immediately implemented. It then should have, once Dr. King’s evaluation was received, sent the report or a summary to Parent25 , sent out notice and reconvened the TEAM to amend the IEP if necessary after it received Dr. King’s full evaluation. Or, if the TEAM did determine that the evaluation information it had was insufficient to develop a complete IEP, the School District should have developed a partial IEP with the information it had, obtained consent from Parent for an extended evaluation period, determined what time period it needed to obtain information from Dr. King and what information it needed from Dr. King to develop a complete IEP and then, when it received Dr. King’s evaluation, develop a complete IEP; ( see 603 C.M.R. 28.05 (2) 1, 3.
Parent may feel26 that Jeremy was placed in a program without her consent and that North Andover’s actions significantly impeded her opportunity to participate in the decision making process regarding the provision of a FAPE for Jeremy. If so, Parent would be entitled to compensatory education. Parent has the right to make educational decisions for her child. One of those educational decisions is to delegate decision-making authority. In this matter Parent delegated her right to participate in the TEAM process to Advocate.
Parent may not have meant for Advocate to place Jeremy in Ms. Swanson’s program however, when the School District received an August 24, 2007 email from Parent that said” “Sharon Jermain will be attending and representing for me at the Meeting on August 29, 2007 at North Andover Middle School” combined with an email an hour and a half before the meeting that said” “Sharon Jermain will be representing me at this meeting. She has my complete permission on all matters regarding Jeremy’s educational placement”, it is reasonable that the School District would believe that the Advocate had Parent’s permission to decide that Jeremy should be placed in a different program at the beginning of the school year and that Advocate, on behalf of Parent, had orally consented to this placement when she actively participated in the August and September TEAM meetings, suggested and developed goals and objectives and participated in developing a schedule for Jeremy’s participation in Ms. Swanson’s substantially separate program. It was also reasonable for the School District to believe that Parent, through her Advocate, had either asked, or the TEAM had agreed to reconvene and send a completed IEP when it received Dr. King’s evaluation.
Although the School District’s failure to draft and send Parent the IEP after the TEAM meetings and its failure to reconvene to discuss Dr. King’s full evaluation did not follow the procedures set forth in the IDEA there is nothing in the IDEA that prohibits parties from mutual agreement to extend IEP periods or other requirements. In fact, the IDEA anticipates that matters, including a student’s placement, may be resolved through mediation, or a resolution session or other proceeding prior to hearing. While North Andover may not have used good educational practice in not sending an IEP after the August and September meetings, this does not in this instant case, constitute liability for compensatory education. 27
Parent may not be happy with Advocate’s advice or her decisions. While Parent may not have intended that Jeremy go to this program it is reasonable for North Andover to believe that she consented based upon Parent’s failure to tell the School District either directly or through her Advocate.28 Any issues regarding this are between Parent and Advocate and do not constitute compensatory education from North Andover.
ORDER
North Andover’s IEP provides Jeremy with a FAPE in the LRE. As such Parents’ request for an IEP designating the Landmark School is DENIED.
By the Hearing Officer,
Joan D. Beron
Date: January 28, 2008
1
Jeremy is a pseudonym used for confidentiality and classification purposes.
2
Closing arguments were originally scheduled to be filed in December 2007. Parent’s request for an extension of time to file written closing arguments was granted.
3
The School District’s motion to exclude P2, P3, P6, P8, P9, P30, P39-P46, P56-P58, P60-64 and P71 was granted as they were either incomplete and duplicated in School exhibits or related to dates regarding claims waived in a June 2007 resolution agreement. Any exhibits regarding the appropriateness of Landmark can be resubmitted if the School District’s program is found to not provide FAPE and cannot be made appropriate with accommodations and/or modifications. The School District’s motion to exclude P4, P5, P7, P17, P18, P27, P28, P31, P65, P66, P68, P70 and P72 was denied and P69 was allowed in part; ( see Record).
4
Parent’s amended hearing request included a request for an IEP designating the Landmark school (Landmark). The School District moved that issues regarding Landmark not be included in this hearing because Parent did not comply with an order to compel discovery requests regarding Landmark. Jeremy is not currently enrolled in Landmark and there are no current openings. The matter was bifurcated. If the facts are such that the School District’s program does not, or cannot provide a FAPE, hearing dates will be set to determine whether Landmark is an appropriate program for Jeremy.
5
The 6 th grade progress report indicates that Jeremy was capable of writing a five-paragraph essay with a topic sentence, supporting paragraph, and was using compound complex sentences. However Jeremy’s special education teacher feels that this was inaccurate because it does not reflect Jeremy’s current level of performance (Swanson).
6
By June 2006 Jeremy was on the 6 th step of the Wilson reading program and was reading real words on the 88%, non-words at the 63%, and was at the 84 th percentile on the 3 rd level of the Wilson spelling program. He rose from the 16 th to the 37 th percentile in phonetic analysis and from the 5 th to the 25 th percentile in vocabulary but dropped from the 25 th to the 16 th percentile in letter/word recognition. As of June 2006, Jeremy’s silent reading comprehension had risen but remained below average (19 th percentile) (P29).
7
The Wechsler Intelligence Scale for Children (WISC) assesses the intellectual ability of students age 6 –16. Composite scores between 90 and 109 and percentile ranks between 25 and 75 are in the average range (S10). Jeremy scored at the 55 th percentile in verbal comprehension, the 30 th percentile in perceptual reasoning, the 34 th percentile in processing speed and the 21 st percentile in working memory with strengths in comprehension (75 th percentile) and vocabulary (63 rd percentile) and weaknesses in block design (9 th percentile) and matrix reasoning (16 th percentile) (S10).
8
Dr. King is a private reading and educational diagnostician employed by the School District. She is certified in elementary and middle school education, severe behavior disorders and special needs (PreK-9) and is a licensed psychologist (S21, King). She consults to approximately twenty school districts and has consulted to parents (King).
9
Ms. Swanson worked as a reading or language specialist in Massachusetts Public Schools from 1996-present. Prior to this time Ms. Swanson worked in various teaching and administrative positions at the Landmark School for ten years (Swanson, S22). Ms. Swanson also has a family member who has an administrative position at Landmark and a daughter who has been tutored by a Landmark tutor since second grade (Swanson).
10
That Friday’s date was August 24, 2007.
11
The email was sent on August 29, 2007 at 7:10 a.m. The TEAM meeting was scheduled for 8:30 a.m.; ( see S17).
12
Advocate, in her examination of the special education director also indicated that her notes reflected the same purposes for the August 29, 2007 TEAM meeting.
13
The proposed program called for Jeremy to participate in an inclusion class with an aide for the 44 labs that would be conducted during the year, but that Jeremy would be with Ms. Swanson to preview and review the material (Swanson). Jeremy would also participate in the inclusion class for homeroom and for “team-time” (group activities) and for nonacademic activities such as cooking or tech education (Swanson).
14
The Hearing Officer sent the show cause order by certified mail to School Counsel and the Advocate on October 13, 2007. Receipts were signed by an agent of School Counsel on September 17, 2007 and by an agent of Advocate on September 18, 2007 and returned to the Bureau the following day; ( see Administrative record show cause receipts September 2007).
15
The IEP incorrectly indicated that the TEAM meeting occurred on September 27, 2007 ( see S3).
16
A regular education teacher did attend this TEAM meeting.
17
Both the notice date of the consent form and Parent’s signature indicate that the form was sent on September 27, 2007. However, testimony indicated that the TEAM discussed that it did not have consent at the TEAM meeting on September 28, 2007 and the form indicates that it was faxed from Parent September 28, 2007; ( compare Swanson, P15).
18
The record reflects that the hearing dates were scheduled for the first available dates that Advocate had available.
19
Jeremy’s Landmark summer teacher also noted that Jeremy had great structure and a good first draft and had caught many corrections himself when he proofread his writing ( see P59).
20
There is not a current opening at Landmark however Parent believes that Jeremy was accepted and put on a waiting list (Parent).
21
Jeremy is grouped with anywhere between two to five children ( see Swanson).
22
Parent in her brief argues that the changes to Jeremy’s IEP from an inclusion program show that former IEPs were insufficient to meet Jeremy’s needs. However, the Hearing Officer cannot consider this issue because Parent, with the assistance of an Advocate, in consideration of the School District’s funding of Jeremy’s summer program at Landmark, waived and released the School District from all claims made prior to June 12, 2007; ( see S1/P54). Parent has not offered any evidence or raised any defenses as to why the contract should not be enforced.
23
“Upon determining that the student requires special education and based upon the evaluative data, the Team shall write an IEP for the student and decide the student’s placement. The IEP shall describe the special education and related services that the student requires and shall include all elements required under federal and state law”; 603 C.M.R. 28.05(4) (emphasis added).
24
The IDEA requires that the IEP be sent to the parent. However, in this matter Parent told the School District that Advocate had her complete permission on all matters concerning Jeremy’s placement. Therefore the IEP should have also been sent to Advocate in case Parent was delegating consent to her.
25
Summaries of assessments shall be completed so as to ensure their availability to parents at least two days prior to the Team meeting; ( see . 603 C.M.R. 28.05(1).
26
It appears that Parent did consent to Jeremy’s placement in the program. Although Parent was not given the IEP before Jeremy was placed in Ms. Swanson’s class, she did testify that she communicated with Advocate and had agreed to the placement. It appears that Parent changed her mind about Jeremy continuing in the program once she found out more information about it.
27
Procedural violations can also be awarded if those violations cause a deprivation of educational benefits. In this matter Jeremy was not denied educational benefits.
28
Parent indicates that she told Ms. Swanson at Back to School Night that she had not consented to Jeremy’s program by telling her “this was not a placement”. This is not a clear communication.