In re: Shawsheen Regional Vocational Technical School
BSEA #01-0805
DECISION
This decision is written pursuant to 20 USC 1400 et seq. (Individuals with Disabilities Education Act), 29 USC 794 (Section 504 of the Rehabilitation Act), MGL chs. 30A (state administrative procedure act) and 71B (state special education law), and the regulations promulgated under said statutes.
A hearing regarding the above-named case was held at the Bureau of Special Education Appeals on August 17, 20, 21, 29, September 18, 28, and October 11, 2001. Thousands of pages of exhibits were submitted. At the request of both parties, the record remained open until October 29 th , 2001 for receipt of closing arguments and School’s exhibit #29, Profiles of English class peers’ profiles.
Persons present for all or some of the hearing were:
Student
Parents
Jill Updegraph Attorney for Student and Parents
Janice Yeh Speech/Language Therapist, Institute for Learning and Development
Wendy Stacy Educational Tutor, Institute for Learning and Development
Leatrice Johnson Director of Admissions, Landmark College (by telephone)
MacLean Gander Dean of Academic Affairs, Landmark College (by telephone)
Thomas O’Sullivan Director of Special Education, Shawsheen Regional Vocational Technical School
David Mandel Attorney for Shawsheen Regional Vocational Technical School Committee
Katherine Kettler Attorney for Shawsheen Regional Vocational Technical School Committee
James Monagle Acting Special Education Administrator, Shawsheen Regional Vocational Technical School
Paula Deal/Blanchette1 9 th , 11 th grade Study-Skills Teacher, 9 th , 11 th grade Liaison, Shawsheen Regional Vocational Technical School
Sheila Fitzpatrick 12 th grade Tutor, Liaison, Shawsheen Regional Vocational Technical School
Ms. Young 9th grade Special Education English Teacher, Shawsheen Regional Vocational Technical School
Chet Flynn 9th grade English Teacher, Shawsheen Regional Vocational Technical School
Ellen Mountain 10th grade English Teacher, Shawsheen Regional Vocational Technical School
John Brown 11th grade English Teacher, Shawsheen Regional Vocational Technical School
Nicholas. Kay 12th grade English Teacher, Shawsheen Regional Vocational Technical School
Robert Kanellas English Department Chairperson, Shawsheen Regional Vocational Technical School
Daniel Trainor Guidance Counselor, Shawsheen Regional Vocational Technical School
Vincent Restivo 11 th and 12 grade Math Tutor, Shawsheen Regional Vocational Technical School
Elaine Dangora Speech/Language Therapist, Billerica Public School
Beverly Goodman Court Reporter
ISSUES
1. Whether the Shawsheen Valley Regional Vocational Technical School (hereafter, Shawsheen) should have, and failed to, provide the special education services for Student’s freshman, sophomore, and a portion of the junior year, in accordance with the last agreed-upon seventh grade IEP; or whether Parents’ agreement to Shawsheen’s interim services superseded the last agreed-upon seventh grade IEP.
2. Whether Shawsheen failed to comply with the parties’ October 25, 1999 Settlement Agreement and subsequent IEP for Student’s 1999 – 2001 junior and senior years, entitling Student to compensation.2
3. Whether Shawsheen committed procedural violations that substantively denied Student his legally entitled special education services, or denied Parents’/Student’s participation in the TEAM process.
4. If Shawsheen is deemed to owe Student compensatory services, whether Shawsheen’s offer of 2001 – 2002 services at Shawhseen High School is sufficient, or whether Student’s requested year’s tuition at Landmark College in Putney, Vermont, is equitable compensation.
STUDENT’S/PARENTS’ POSITION
Throughout Student’s high school years at Shawsheen, Parents and Student made it clear that Student’s post-high school goal was college. Further, they continually requested placement in college-bound classes with the necessary special educational supports for such placement. If Shawsheen had followed the law, Student would have received more special education services and more effective coordination between them and the regular education services. With this, he would have been significantly more prepared for college. However, Shawsheen failed to provide the special education services in accordance with the agreed upon IEPs and Settlement Agreement – that being the seventh grade IEP, the October of 1999 Settlement Agreement, and thereafter, the March of 2000 IEP. Shawsheen was also guided by erroneous theories, assuming that special education students do not need, nor are they entitled, to be as prepared for college as non-disabled students; that homogeneous placements are a valid substitute for individualized instruction, that it is exempt from certain special education laws, and that parents have responsibilities in ensuring that Shawsheen complies with the law. As a result of Shawsheen’s failure to comply with the law, Student should be compensated with at least one year’s tuition for Landmark College in Putney, Vermont. Shawsheen’s offer to provide a post-graduate education at Shawsheen cannot compensate for the past failures, for its failure over the years is indicative of its inability to address Student’s educational needs.
SHAWSHEEN’S POSITION
Shawsheen provided Student the special education services as agreed to by Parents/Student throughout his high school years, and complied with its legal responsibilities. First in ninth grade, Parents expressly agreed to Student’s homogenous placement in the special education English, and soon thereafter, the regular education English level four class, the study-skills class, and the speech/language therapy. Parents never requested that Shawsheen implement the last agreed-upon seventh grade IEP’s inclusion English, the speech/language services during the vocational as well as academic weeks, directed study, and the social worker’s group. The ninth grade agreed-upon services were, by agreement, continued through the tenth grade and the beginning of the eleventh grade.
Parents should, for equitable reasons, be barred from pursuing compensatory claims for the ninth and tenth grades. They were clearly assertive in their advocacy for their son, yet they never requested implementation of the last agreed-upon seventh grade IEP. Further, they failed to raise compensatory claims for the ninth and tenth grade while before the BSEA on eleventh grade issues. Finally, the three-year statute of limitations should bar their claim regarding ninth grade services: not until after the beginning of the twelfth grade year did Parents raise these claims – past the three-year statute of limitations period.
If it is determined that Shawsheen failed to implement some of the last agreed-upon IEP responsibilities, Shawsheen’s services were better and more helpful for Student. The study-skills class had a well-defined curriculum, and the homogeneous English class was better able to address Student’s individual skill levels than could an inclusion class.
Shawsheen implemented the October of 1999 Settlement Agreement and the subsequent IEP for junior and senior years. Although Shawsheen was unable to hire a speech/language therapist for Student’s first semester junior year, Shawsheen has already compensated Student by providing services over the summer months.
In addition, Shawsheen did not commit procedural violations that in any way impacted Student’s education. Shawsheen did not deny Student the classes for college bound students; to the extent he was not placed in such, it is because Student did not pass the entrance requirements for such placements. Further, it should be noted that upon Student’s graduation, his transcript would have supported admission to four-year colleges.
If it is determined that there were deficiencies in providing Student his legally entitled services, Shawsheen’s proposed 13 th year IEP at Shawsheen would fully compensate Student. Landmark College is inappropriate as compensation, because it lacks the inclusion courses that Student asserts he was denied.
STATEMENT OF THE FACTS
1. Student is an eighteen-year old student who has above average – superior cognitive skills, and who is a hard working student. His WISC-III scores reflect a 24-point difference between verbal and performance skills with average scores in the verbal area and high-average to superior scores in the performance area. He has a diagnosed language-based learning disability that impedes his auditory processing, his oral and written expressive language, his organizational skills, and his self-advocacy skills. (P-37) In eighth grade, his academic skills were described as slightly below grade (in math) to at least grade level (in reading), and his general fund of knowledge was in the average range. (P-5) Student attended the Billerica Public Schools’ Locke Middle School (hereafter, Billerica) for the sixth through eighth grade years. (P-37)
2. In Student’s 1995 – 1996 seventh grade, Billerica and Parents agreed to an IEP that called for daily inclusion English for 3 ½ hours x week; daily directed study for 3 ¾ hour x week; speech/language therapy 42 minutes x week; and individual/group/and/or family counseling bi-monthly. It also called for eleven classroom modifications addressing his auditory processing needs. Further, it called for consultation among classroom teachers, the reading department, speech/language therapist and the social worker. (P-1, S-2a)
3. In Student’s 1996– 1997 eighth grade, Billerica continued to provide the above-described services, and added a daily social studies inclusion class as well as summer tutoring for 12 sessions. (P-2) An IEP calling for such services issued, however, Parents postponed their decision pending an evaluation. (P-2, page 6B of the IEP) His English teacher reported that Student did well in “a very difficult class”. (P-2)
4. In January of Student’s eighth grade, Parents obtained independent speech/language and neuropsychological evaluations at the Floating Hospital for Children at the New England Medical Center. The resulting recommendation was for intensive language-based services. (P-37) Dr. Grabowski, the Medical Center’s speech/language evaluator, assessed Student’s skills and found a significant Language-Based Learning Disability with impairments in oral as well as written language. He presented with significant problems with language processing and higher-level comprehension skills. He processed information slowly, “especially as information increased in length, linguistic complexity, became more abstract or involved higher level comprehension skills, such as the ability to inference.” She strongly recommended language-based instruction/modifications in all of his courses. She detailed strategies/modifications, and stated that they be used consistently by all of his teachers. Ideally, he should be in a small, highly structured, language-based classes, with no more than 8 – 10 students, and peers with similar cognitive/linguistic profiles and skill levels. Further, she recommended individual/small group instruction 3 – 4 times / week for writing, listening/reading comprehension and study/organizational skills. A speech-language pathologist should work in collaboration with the learning disabilities specialist to coordinate oral and written language goals. She recommended small group instruction for social skills/pragmatics, co-taught by a speech-language pathologist and psychologist. Finally, she recommended speech-language therapy 1 – 2 times / week. (P-3, P-37)3
5. On April 14, 1997, Billerica convened a Team to discuss Student’s ninth grade educational needs. Although the Billerica Team members had been sent the independent evaluation reports (as well as school evaluations), it appears that it was not discussed at the meeting. Mr. O’Sullivan attended this meeting as a representative from Shawsheen in order to inform the TEAM as to the Shawsheen program. He did not see the evaluation reports at this meeting, but rather was provided Student’s file including the evaluation reports at some later date. (O’Sullivan) The Team developed an IEP calling for only the daily study-skills class, taught by a support staff person, thus eliminating the Inclusion English, the speech/language therapy, and the social work services. (P-5)
6. On April 28, 1997, Shawsheen reissued this same IEP, but with Mr. O’Sullivan listed as the liaison. (P-5) Parents rejected this IEP on May 30, 1997, and attached their many requested revisions, including summer services for math and reading/writing; speech/language therapy; a liaison helping him with learning issues; modifications regarding testing and homework; study-skills taught by a special education teacher, with coordination with/carryover into the regular education classes; and regular education teacher training as to Student’s learning needs. Finally, Parents stated that they did not want Student placed in the bottom level classes, but wanted the “proper classroom and special education modifications” needed to be successful. They questioned “Any inclusion?” (P-5)
7. On August 29, 1997, Mr. O’Sullivan issued a revised IEP. (S-6d) It called for an English level 5 regular education placement, study-skills classes 5 x 10-day cycle, and speech/language sessions 1 x 10-day cycle. In contrast to the seventh grade IEP, this IEP had an abbreviated student performance profile and instructional profile. It stated that transition services are not needed. This IEP was neither accepted nor rejected. Thus, when Student entered Shawsheen, the last agreed-upon IEP is Student’s 1995 – 1996 seventh grade IEP. (P-1)
8. Parents sought Student’s admission to the Carroll School, a private school for children with language based learning disabilities. In May, 1997, they were informed that, although Student clearly had language needs in verbal expressive and receptive language skills, his decoding skills were above grade level, and accordingly, the Carroll School would be inappropriate for him. (P-3) After considerable thought, Parents/Student decided that Student would attend Shawsheen, based in large part, because the classes tended to be smaller than in regular high schools; given Student’s learning disabilities, that would be advantageous, for he could be provided more individual attention than could be provided in a regular high school. (Mother)
9. Student entered Shawsheen for his ninth grade in September of 1997. Shawsheen provided some special education services, but not pursuant to a signed IEP. (O’Sullivan, Mother) He was placed in a special education English class, but within a few weeks, he was transferred to a regular education level 4 English class. (O’Sullivan) He received speech/language services as well as a directed study class. (Deal/Blanchette) His ninth grade teachers reported that he was a hard working, successful student, however he struggled with math, earning a test average of 45.3%, though his participation average was 86.7%. (P-7) Parent expressed in a June of 1998 letter, that Student was very happy at Shawsheen. (P-8)
10. On May 28, 1998, Shawsheen convened its TEAM to address Student’s tenth grade 1998 – 1999 IEP needs, and on August 19, 1998, Shawsheen issued its IEP. Again, the IEP noted Student’s language processing deficits, both written and verbal. It called for the same study-skills 4 x 10-day cycle, but increased the speech/language services with a speech pathologist to 2 sessions x 10-day cycle, plus consultation ¼ hour x 10-day cycle. It included a statement regarding Students post-school vision, to attend a 4-year college, live independently, and work in his chosen profession. (P-9) Parents stated that as of September 29, 1998, they had not yet received the IEP (Mother, S-9d).
11. Prior to the beginning of his 10 th grade in June of 1998, Parents requested that Student be placed in a more challenging curriculum, i.e., the option “A” curriculum as a sophomore and Level 3 English class, and that the special education services be provided to help him succeed in the academically challenging courses. They referenced the recent neuropsychological evaluation recommendation:“ …Given his intelligence and in order to maintain his interest, it is important that the content and level of the material be appropriate to [Student’s] cognitive ability. It is also important that the speech/language personnel working with [Student] consult regularly with his teacher and that his language goals be reinforced and integrated across subjects.” Parents suggest, for scheduling reasons, that physical education could be waived in order to get the Option A curriculum and the level 3 English, and the necessary special education supports. (P-8) Despite this request, Student was again placed in the Option B curriculum, and the level 4 English class. (Mountain) He received speech/language therapy 2 x 10-day cycle, and study skills 4 x 10-day cycle. The regular education teachers and the specialists communicated regularly regarding Student’s needs. (Mountain, Deal/Blanchette)
12. Parents expressed concerns regarding Student’s 10 th grade year: in October of 1998, they requested that Student’s liaison be actively involved in monitoring Student’s progress, for “he is at high risk for failure, especially in Algebra.” (S-9e, P-10) In February of 1999, his liaison, Ms. Fox, filled out the progress reports for study-skills, saying that he is continuing to demonstrate improvement in written language, study skill, and test taking techniques. No speech/language progress report is in evidence. (P-7, P-12)
13. In March of 1999, Parents wrote Mr. O’Sullivan and again stated their position that Student’s individual needs were not being met, and again requested that Student have a liaison who would be more aggressive in consulting with all of his teachers and monitoring his progress in all his classes. Specifically, they requested that the speech/language therapist fill this role, for “she seemed to have more of a handle on his individual needs and can deal with them on an individual basis.” They again requested untimed testing. They stated their dissatisfaction with the study-skills class – the teacher was not in touch with the other teachers as to what areas to work on, Student worked mostly on homework, and the teacher did not address the auditory processing, previewing/reviewing, or the organizational needs. Because of Parents’ dissatisfaction, they stated Student would be receiving services 2 x week from the Institution for Learning and Development (hereafter, ILD). They stated that the director there “feels that [Student] is not learning strategies that should be incorporated into his everyday classrooms to help his overall functioning.” They stated that Student would receive intensive services over the summer. Finally, they stated their concern as to Student’s readiness for college after graduation. (P-14) On June 10, 1999, Father e-mailed Mr. O’Sullivan, again reiterating their concern. He stated his disappointment that there was never a tenth grade IEP, that the orally agreed upon services had not been carried out, and that Student was failing algebra. They wanted speech/language services and tutoring over the summer, for “his needs were not met in the study-skills class”. Further, they again stated their concern that Student would not be prepared for college. Finally, they reiterated their request that Student be placed in higher level classes, for “if he were at Billerica High School he would be in a college level inclusion class”. (P-14, S-10e) Student failed his tenth grade MCAS scores in math and language arts, and scored in the “needs improvement” category for science. The math and language arts scores were significantly below Shawsheen’s average, which was itself below the state’s average. (P-36) Student’s final grades were mostly B’s, with the exception of algebra where he earned a 72. (S-10i)
14. Through the Team process, Shawsheen developed another disputed IEP for eleventh grade. (P-15) This time, Parents sought the intervention of the Bureau of Special Education Appeals, and with the help of the BSEA on October 25, 1999, the parties reached a Settlement Agreement. In so doing, Shawsheen agreed to provide the college-prep Option A History class while still providing the special education services. (Student remained in the level 4 English class.) It agreed to modify Student’s schedule by eliminating gym, and provide speech/language from a special education teacher 1 x week(academic and vocational weeks); and tutoring in all other content areas 3 x week as well as after school tutoring as needed. Further, Shawsheen agreed to pay for the 2 hours x week of ILD services for the remainder of the school year, and “in connection with Student’s attendance at the School and ILD, the special education liaison shall consult weekly with Ms. Bethany Roditi of ILD … ” Shawsheen agreed to develop an IEP incorporating the terms of the Agreement. (P-16) In fact, Shawsheen did not issue the IEP until after the November 22, 2000 TEAM meeting, and not signed until March 1, 12000. (S-12k)
15. The parties dispute the degree to which Shawsheen implemented this Settlement Agreement. Parents assert that the agreement called for extensive coordination between Shawsheen’s staff and ILD’s speech/language therapist and educational tutors, in order to coordinate and reinforce the classroom and therapy work, and Shawsheen failed to do this. (Parents, Yeh, Stacy) Shawsheen asserts that little communication was required, and it complied with what was expected of them. (Monagle, Deal/Blanchette, Fitzpatrick) Throughout this school year, Shawsheen’s staff persons and ILD staff persons communicated through e-mail, voicemail, and phone calls, however, the need for such communication was unclear and sometimes in dispute. (Deal/Blanchette, Stacy, Yeh) The extent of the communication in the 11 th grade was minimal, and the parties dispute the reason for that. (Yeh, Stacy, Deal/Blanchette, Brown, Kay, Fitzpatrick) On November 22, 1999, staff and Parents met to discuss the implementation of the Settlement Agreement. It was at this time that Ms. Deal/Blanchette was assigned the role of liaison between ILD and Shawsheen staff. (Deal/Blanchette, Monogle) It was clarified that the liaison would communicate with ILD (Ms. Roditi) weekly in order to “coordinate support for Student and communicate his needs”. (P-18) On December 2, 1999, Shawsheen told Student’s math tutor to keep in close contact with his math teacher. (P-18)
16. On December 13, 1999, Mr. Monagle requested that the staff implement Dr. Roditi’s suggestion that Shawsheen staff should contact the ILD speech/language therapist and educator “in order for them to work in conjunction with us”. However, it appears that the schools differed as to their respective roles. Ms. Deal/Blanchette didn’t understand the nature of the expected communication. Other Shawsheen staff perceived ILD as providing separate services. (Monagle, Deal/Blanchette) ILD staff perceived that they were to work in a coordinated fashion, and that they would provide some consultation to Shawsheen staff. (P-21, Stacy, Yeh) ILD’s speech/language therapist, Ms. Yeh, also requested from Mr. Monagle that he have his staff send her their observations of Student’s oral language and comprehension skills. On January 18 th , Mr. Monagle e-mailed Ms.Yeh to see if his staff had provided her with the requested observations regarding Student’s language needs; they had not. Mr. Monagle requested weekly reports from ILD; they were resistant to such, for they wanted two way communcations. (Monagle, Stacy) Although there were attempts to reach each other, it appears that discussion regarding Student’s work didn’t really materialize until March of 2000. And then, the ILD staff e-mailed in more depth than the Shawsheen staff. It seems that neither the school’s staff nor the ILD staff wanted to send reports4 , but that ILD wanted two way communications in order to help Student transfer his skills. They recognized that Mr. Brown needed less coordination because of his Landmark experience, however, the 12 th grade English teacher could have benefitted from her input in order to more effectively support Student’s learning, yet her attempts to coordinate their work were not well received. (Stacy, Yeh) For example, in November of 2000, the Shawsheen and ILD staff met to discuss their respective work with Student. However, Ms. Yeh and Stacy were disappointed with the exchange, for they did not see interest in coordination. ILD asked for Mr. Kaye’s (level 3 English teacher) classroom material to use with Student; he said he was not comfortable with this. They asked for contact with Mr. Kaye; he said no time allotted, but maybe it could be arranged. Mr. Kaye later testified that he didn’t have a second set of books to loan, and he was just stating the truth that no time was allotted, and maybe it could be arranged. (P-34, Yeh, Kaye)
17. Difficulties regarding wrong e-mail addresses, incompatible time availability for phone calls, vacations, etc., interfered with the communications. (P-18, P-22, P-23, Deal/Blanchette, Fitzpatrick, Yeh, Stacy, Kaye)
18. Shawsheen provided no speech/language services from the beginning of the eleventh grade until December 18, 1999 when Shawsheen contracted with ILD’s speech/language therapist to provide the weekly service for the remainder of the school year5 . Shawsheen also provided the study-skills class 4 x 10-day cycle, with the exception of the September 17, 1999 – October 25 th , 1999 period when Student’s enrollment in the Option A History class precluded him from attending the study-skills class.6 (Mother, O’Sullivan) Pursuant to the Settlement Agreement, the study-skills classes were resumed and taught by Mr. Restivo (math), Ms. Corbett, Ms. Leydon, and Ms. Deal/Blanchette. (S-12e, S-12f, S-15h). Finally, Shawsheen funded ILD speech/language services over the summer months. The parties dispute whether those services compensated for Shawsheen’s failure to provide speech/language services during the 1 st semester, or whether the summer services were needed for FAPE. (Monagle, Mother)
19. Student’s 1999 – 2000 year-end grades were English – 81; History – 79; Algebra – 66. The teachers reported that he was a cooperative, hard worker. (S-14c) On March 7, 2000, Ms. Stacy called Ms. Blanchette to say that Student is doing very well working on writing, and has improved dramatically. His math teacher said that Student’s poor note taking and organizational skills interfered with his doing well on exams (P-18 pg. 19)
20. Shawsheen convened a TEAM meeting on April 11, 2000 to discuss Dr. McNally’s educational evaluation, and again on June 22, 2000 to address Ms. Dangora’s speech/language evaluation and Dr. Kanellas’ report regarding the appropriate English class level placement, and to develop Student’s summer and senior year IEPs. (P-24, S-13f, S-15f, 15g, S-16a,b)) They “talked about possible services for next year … looking for something similar to this year’s services”. (P-22) Parents again were concerned regarding Student’s placement levels. They requested summer speech services, asserting that Student would regress without them. (P-22) Again, in May of 2000, Mother e-mailed Mr. Monagle, stating that Michael needed summer speech and language services through Ms.Yeh as well as services through Ms. Stacy. She states that the ILD therapists opine that Student would regress without such services. (P-23) In June of 2000, Mr. Monagle e-mailed Father, offering 10 hours of speech/language services with Shawsheen’s Ms. Fitzpatrick during the summer of 2000. (P-24) Parents responded, agreeing to the 10 hours, but insisted that ILD be the service provider. They stated that this is needed as compensatory damages for Shawsheen’s gross and willful negligence. (P-24) At the June 22, 2000 meeting, Shawsheen stated again that they would make up the missed speech/language services by contracting with ILD for speech services “until we have met the time required of us”. In regards to Parents’ expressed concern regarding the level 4 English class placement, both in providing sufficient challenge, and in getting into colleges. Shawsheen suggested that Parents need to ask colleges for specifics in relation to academic expectations and course recommendations. Finally, Parents brought up the fact that Shawsheen’s Speech/Language therapist is not licensed; Mr. Monagle said that the School Committee and Superintendent, not parents, make such decisions. (P-24)
21. Shawsheen issued two IEPs: the summer IEP calling for 10 hours of Speech/Language services to be provided by Shawsheen’s Ms. Fitzpatrick, and the senior year 2000 – 2001 IEP calling for Speech/Language services 4 x 10-day cycle, and Speech/Language consultation 1 hour per 10-day cycle. (P-25, S-16a,b) (In February of 2001, this IEP was amended to add the ILD services 4 x 10-day cycle. (P-27, S-18b)
22. In November of 2000, Parents obtained an updated speech/language evaluation from Dr. Grabowski, and a neuro-psychological evaluation from Dr. Keeler at HealthSouth New England Rehabilitation Hospital. (P-37) Dr. Grabowski reiterated her previous recommendation for language based programming, stating that Student was at high risk for handling a college level curriculum. Dr. Keeler addressed the issue as to the appropriate curriculum level. He stated that the important elements to consider are 1) how severely Student’s linguistic processing deficits interfere with his ability to learn within the mainstream classes; and 2) the level of Student’s motivation to follow a typical college program. He agreed with earlier recommendations made by Dr. Khan, calling for a consistent environment of linguistic enrichment. He stated that Student’s organizational problems are a product of fundamental processing difficulties, and it is the processing difficulties that must be addressed by special education services. He stated that Student’s curriculum is insufficient, but given that he was half way through his senior year, he recommended remedial instruction 2 x week, academic support 2 – 3 x week, and speech/language therapy once x week. As for college, he recommended a specialized program offering more intense services than Curry College, such as Dean College or Landmark College. (P-37)
23. On June 19, 2001, Shawsheen convened to determine Student’s services for the 2001 – 2002 school year, in the event that Student does not graduate or needs compensatory services. They developed an IEP calling for speech/language therapy and study-skills at Shawsheen, each daily during the academic weeks. (P-28)
24. In September of 2001, Student enrolled in Landmark College’s non-credit program, in preparation for handling a college level curriculum. At Landmark, Student was placed in the Skills Development Curriculum Learning Community, a curriculum “focusing on the foundation of language skills and learning strategies required for long-term success in academic and employment contexts”.(P-33) He is scheduled for Developmental Speech Communication, which addresses oral communication and presentation skills, self-advocacy, and social pragmatics; Developmental Writing; Introduction to Reading and Study Skills; and Self and Community, each scheduled 3 x week; and a Developmental Skills tutorial 4 x week. The focus of this program is to prepare the students for college credit courses. At least two of his teachers are special education professionals. The staff receives extensive in-house training, supervision, and mentoring for the first three years there. (P-33, Johnson, Gander)
FINDINGS AND CONCLUSIONS
Student’s educational experience at Shawsheen was influenced by a myriad of circumstances and customs, such that, despite the four years’ working relationship between the parties, and despite the hard work of Student and many staff persons, his education suffered. The question is whether or not that amounted to a failure to provide his special education within the requirements of the law. I find that it did, and that compensatory services are warranted. My reasoning follows.
I find that Shawsheen was responsible for providing those services delineated in Student’s seventh grade IEP, in a comparable setting, up until the October of 1999 signing of the Settlement Agreement. Shawsheen failed, in part, to provide services in the ninth and eleventh grade. I further find that Shawsheen failed, in part, to provide eleventh grade services to which he was entitled under the parties’ October of 1999 Settlement Agreement and the subsequent IEP. Finally, I find that Shawsheen committed a series of procedural violations, some of which, interfered with Student’s education and/or Parents’ right to involvement in the determination of his IEP.
Fashioning an equitable remedy requires not only consideration of the failure to provide, but also, consideration of the education that was in fact provided. It further requires consideration of the procedural violations. An equitable remedy in this case, calls for more than specific speech/language and study-skills sessions, but less than a years’ tuition at Landmark. A half year’s tuition at Landmark College for the 2001 – 2002 school year addresses these equitable factors . Further, Parents are entitled to be reimbursed for any out-of-pocket expenses for the ILD progress reports. My reasoning follows.
I. “STAY-PUT” SERVICES – NINTH GRADE, AND RIGHTS TO COMPENSATORY SERVICES
In September of 1997, Student entered Shawsheen as a special education freshman year student, having moved from Billerica. Accordingly, Shawsheen was responsible for providing Student those special education services called for in his then current Billerica IEP, in a comparable placement, pending the development of a Shawsheen IEP that is accepted by Parents. The law states
… in accordance with §337.0, …the governing body of a regional vocational school district … shall be solely responsible for satisfying all requirements of these regulations, unless exceptions are otherwise specified…
603 CMR 28.202.2 (1993); see also 603 CMR 28.03(4)(2001)
Further, when a child moves to a new district,
The Administrator of Special Education [of the new district] shall see to it that the child’s IEP from the former community … is implemented immediately in a comparable placement. … the IEP [from the former school district] accepted by the parent remains in effect until, with the consent of the parent, the school committee of the new community … completes a new evaluation and a new IEP is written and accepted by the parent. 603 CMR 28.332.1-2(1993) see also 603 CMR 28.03(1)(c)(2001)
In this case, when Student enrolled at Shawsheen, its responsibilities were dictated by Student’s seventh grade IEP, for that was the then current IEP, in the sense that it was the last agreed-upon IEP – the “stay-put” placement. (See 603 CMR 327; 405.1; 405.2(1993); see also 603 CMR 28.08(7)(2001)). In fact, there was no subsequent accepted IEP until Student’s junior year, March of 2000.
These move-in and “stay-put” responsibilities, however, may be modified by agreement of both parties. See Gabriel C. , 3 MSER 29 (1997) (oral agreement); Egan v. Silver Lake Regional School District , 4 MSER 205 (1998) (written agreement); Verhoeven v. Brunswick School Committee , 207 F.3d 1 (1 st Cir. 1999). Yet, Shawsheen was unpersuasive in its assertion that the “stay-put” IEP was rendered moot by the Parents’ acceptance of different interim services. I find that Parents did not understand their legal entitlement to the last-agreed upon IEP, and therefore, lacked the knowledge necessary to consent to alternate services that differed from the seventh grade services. As new parents in that school community, they were trying to work with the staff, and in so doing, did the best they could in acquiring services for their son – services that he had had in the seventh and eighth grade. In their unrelenting quest to obtain services, they showed no recognition that they had a right to those services as the last agreed-upon “stay-put” services. Shawsheen clearly failed to discuss with Parents its responsibilities to provide the services called for in the seventh grade IEP, and in fact told Parents that Shawsheen didn’t provide inclusion classes, and could not provide other services because of the vocational schedule. (O’Sullivan) Mr. O’Sullivan could have discussed Shawsheen’s obligation to provide the last-agreed upon IEP services in a comparable setting on an interim basis, then proceeded to discuss what that would mean at Shawsheen, whether it made sense to modify such setting and services. He didn’t, and thus, Shawsheen is not persuasive that Parents’ verbally agreeing to other interim services, ended its responsibilities to provide those “stay-put” services in a comparable placement.
The seventh grade IEP called for:
· daily inclusion English classes with a special education teacher,
· directed study class 3 x week, plus 20 minutes x day
· speech/language therapy 1 x week, and a
· social worker session bi-monthly
· eleven classroom modifications addressing his auditory processing needs, including.
· consultation among classroom teachers, the reading department, speech/language therapist and the social worker (P-1)
In contrast, Shawsheen provided the following ninth grade special education services:
· daily (during academic weeks) special education English class, and at parents’ request after a few weeks, a regular education level 4 English class;
· speech/language therapy 1 x 10-day cycle; and
· study-skills class 4 x 10-day cycle. ( Deal/Blanchette, Flynn, O’Sullivan)
To what extent Shawsheen’s services complied with the seventh grade IEP in a comparable setting, is not easily determined, for a seventh grade placement in a regular elementary or junior high school differs significantly from a ninth grade placement in a vocational/technical high school. That is, the vocational/technical program is fundamentally different in that its goals necessitate a double curriculum – a vocational curriculum and an academic curriculum. Accordingly, the structure of the school requires two curricula that alternate weekly. The double curricula necessitate a much greater number of required courses, and therefore, much less opportunity for individualizing and modifying schedules. (O’Sullivan) Further, this vocational/technical school has made the educational decision to group students into 5 regular education skill levels (and 1 special education class) for certain academic subjects, particularly, English. Thus, a level 1 regular education class is for students with much higher reading and writing and independence skills than the lowest level 5 regular education class. (O’Sullivan, Kanellas) With these programmatic structures so different from the seventh grade program, some sense of reasonableness must apply when deciding whether Shawsheen provided the special education services in Student’s seventh grade IEP in a comparable setting. Within this context, my findings are as follows:
· Did Shawsheen’s ninth grade offer of a special needs English class placement, and soon thereafter, a regular education level 4 class placement, fulfill its responsibility to provide the inclusion English class that was taught by a special education teacher as well as a regular education teacher? Parents assert that they are not: the inclusion English offered special education teaching in a regular education class, whereas Shawsheen offered either special education teaching or a regular education class, but not both. On the other hand, Shawsheen points out that the regular education English class was taught by a teacher experienced in remedial teaching; the class was small – only twelve students; the homogeneity of the students’ skill levels allowed for more intensive direct teaching; the teaching techniques included many of the special education techniques called for, such as pre- and post- teaching; there were tightly structured weekly units with coordination between reading, writing, spelling; and consultations occurred with the speech/language therapist and the special education liaison. (Flynn) Given the totality of the situation, Shawsheen was persuasive that its ninth grade offer of either the special education English class or the regular education level 4 English class fulfilled its responsibility . The level 4 class may not provide the same level of special education expertise, but in a broader sense, taking into account the smaller size of the class, the homogeneity rather than diversity of students’ skill levels, the teacher’s experience in remedial work, and the consultation with special education personnel, the setting is generally comparable. It should be pointed out that, if Student were currently a ninth grader, Parents could certainly assert their rights to an inclusion English class, and may prevail before the BSEA. But for purposes of compensatory rights, Shawsheen’s setting is sufficiently comparable to protect them from such obligation.
· Did the speech/language therapy services and the study-skills class comply with the services called for in the seventh grade IEP? Absent a persuasive explanation, the ninth grade speech/language therapy services, offered 1 x 10-day cycle, failed to comply with the seventh grade weekly (2 x 10-day cycle) services. First, Shawsheen reduced the amount of instruction by half. That is significant, given Student’s clear need for speech/language therapy. Second, to the extent that the speech/language therapy work should be coordinated with his work, there was no explanation as to why that could not be coordinated with his academic as well as vocational work. It should be noted that in addition to the grammar, vocabulary, and written language goals, the therapy goals included auditory processing, verbal expression, and pragmatic use of language, – clearly relevant during the vocational weeks. (P-1) Third, if it was too difficult to schedule during the vocational school week (no specific evidence was provided to support this assertion), the parties should have at least discussed this difficulty in attempting to address the issue. Thus, Shawsheen failed to fully implemented the seventh grade IEP speech/language services .
· As to the study-skills class, Shawsheen is persuasive that its provision of study-skills 4 times during the academic weeks only, complied with the seventh grade IEP mandate for a directed studies class 3 x week plus the daily 20 minute session. This means that during the academic week, Shawsheen is offering 168 minutes [4×42 min] vs. the seventh grade IEP’s 226 minutes [3×42 min + 5×20]. Although this difference of 58 minutes means approximately one less class x academic week, this is not significant. It is noted that study skills were also taught at other times of the day – Shawsheen’s English class focused significantly on study skills, and several of his teachers, including his study-skills teacher, offered before- or after-school help. (Deal/Blanchette, Flynn) It is true that Shawsheen failed to provide the study-skills class during the vocational week. This is not problematic, for the directed study class was closely tied to the academic work; similarly, Shawsheen’s study-skills classes were offered to support the academic work. There is no evidence supporting the relevance of a study-skills class during the vocational week. Thus, offering it during the academic week only, is reasonable. Parents were unpersuasive as to their second concern regarding the study-skills class, i.e., that its curriculum differed from the directed studies class. In fact, both the seventh grade directed study class and Shawsheen’s study-skills class addressed study skills as it applied to Student’s academic studies. (P-1, Deal Blanchette, O’Sullivan)
· Shawsheen clearly failed to provide the bi-monthly social worker’s session. It was never discussed nor offered. (P-1, O’Sullivan)
· The evidence was insufficient to render a finding as to whether or not Shawsheen complied with the seventh grade IEP’s call for coordination between the service providers: no evidence was provided that would clarify the TEAM’s intended meaning of “consultation”. There was some evidence that the ninth grade staff-members did consult with each other in the sense that they were in communication with each other. (Flynn, Deal/Blanchette, O’Sullivan)
Having determined that Shawsheen failed to provide half of the required ninth grade speech/language therapy sessions and any of the ninth grade social worker sessions, I find that Student is entitled to the approximately 26 speech/language therapy sessions. It is true that Parents did not specifically reject the IEP for its failure to provide the speech/language therapy weekly. (P-5) However, they had repeatedly stated that language processing was a major issue for him. It is also true that Parents could have sought compensatory services for the ninth grade several times, but did not. (They appealed the eleventh grade IEP before the BSEA, but failed to seek compensation. Again, they brought the current case before the BSEA, and again failed to allege ninth grade violations until well into the proceedings.7 ) Despite this, the equities lean in favor of Parents, for it is Shawsheen’s responsibility, not Parents, to ensure compliance with the regulations. Parents clearly did nothing to interfere with such compliance. Rather, they made clear that they thought Student required more than he was getting. As to the failure to provide the bi-monthly social worker’s session, the record does not support a finding that he needed it then, or would benefit from it now. Awarding compensatory social work services would be inequitable, given such a technical rather than substantive violation. Therefore, Student is not entitled to compensation in the form of social work services.
II. “STAY-PUT” SERVICES – TENTH GRADE, AND RIGHTS TO COMPENSATORY SERVICES
Given that in tenth grade, the parties again failed to agree on an IEP, Shawsheen’s “stay-put” responsibilities continued through the tenth grade. This year, Student was again placed in the regular level four English class, taught by Ms. Mountain. Again, I find that this class setting is comparable to the seventh grade inclusion English class. Ms. Mountain was certified as a reading teacher as well as regular education teacher; she had extensive experience teaching students with learning disabilities at a non-secure facility for special needs students, her class was small, with 9 – 11 students who were functioning somewhat below grade level. She closely monitored each student’s work, giving individual attention when needed. She previewed vocabulary for reading assignments, she used brainstormed activities for writing, multi-modal approaches, organizational tools, etc.. She was available before and after school for extra help. In fact, Student noted that this class was one of his favorite classes. Ms. Mountain also was in regular contact with Student’s liaison. (Mountain) Although this was not an inclusion English class, Shawsheen was persuasive that the level of individual attention, individualized teaching techniques, and teaching at Student’s level, render the class comparable to the seventh grade inclusion English class.
Given Shawsheen’s offer in late August of 1998 to provide speech/language therapy 2 x 10-day cycle, Shawsheen fulfilled its tenth grade responsibility to provide the weekly speech/language sessions called for in Student’s seventh grade IEP . (P-9) Parents’ assertion that they did not receive the IEP until September is of little significance. First, it is unclear when they received the IEP, and second, if there was a time delay, it is de minimus .
As to the social worker’s sessions and the study-skills class, the ninth grade findings remain the same.
Accordingly, Parents are not entitled to any compensatory services for the tenth grade.
III. “STAY-PUT” SERVICES – SEPTEMBER THROUGH OCTOBER OF ELEVENTH GRADE, AND RIGHTS TO COMPENSATORY SERVICES
Shawsheen’s legal responsibilities for the eleventh grade are dictated first, by the “stay-put” rights of the seventh grade IEP, and then by the October 25, 1999 Settlement Agreement8 and the subsequent March of 2000 IEP. The seventh grade IEP is superseded by the Settlement Agreement. Although the law requires the “stay-put” services until there is a signed IEP, an agreement to alternate services can over-ride the “stay-put” rights. It is true that in Student’s ninth and tenth grade, Parents were not in a position to knowledgeably consent to alternate services. However, in Student’s eleventh grade on October 25, 1999, the agreement was made in the context of a BSEA proceeding, offering a more likely setting for knowledgeable consent, and thus, this Agreement rather than the seventh grade IEP is the appropriate measure for determining rights to compensatory services after October 25 th , 1999.
During the eleventh grade “stay-put” period , Shawsheen provided an eleventh grade regular education English class that provided a setting comparable to the Inclusion English class . Shawsheen’s teacher, Mr. Brown, had three years teaching experience at Landmark School, working with high school students with learning disabilities. Again, the class was small, and students were grouped according to skill level. In this setting, Mr. Brown was able to offer the more intensive direct teaching. He used a skills-based curriculum diagnostically designed to assess the students’ skills. He focused on reading, writing, critical thinking, and study skills. He used prewriting tools for writing such as brainstorming, outlining, graphic organizers. He individualized his teaching as needed. He previewed and reviewed the reading material. He was in touch with Student’s liaison. Finally, he was available for help before and after school. (Brown)
Shawsheen failed to provide the study-skills classes 4 x 10-day cycle during the six week period from September 17 th , 1999 to October 25 th 1999 when the Settlement Agreement was signed. Student had requested that he be placed in the Option A college-prep History class (see P-39, P-39a) that, according to Shawsheen, ruled out the possibility of a study-skills class. (This History class met eight periods a cycle, rather than the four periods of the Option B slower paced History class.) As a result, Shawsheen forced him to drop the study-skills class. Given that this college-level History class was more demanding, this denial of his right to study-skills classes significantly impacted his education. Thus, Student is entitled to approximately twenty-four study-skills classes. Shawsheen is incorrect that Parents chose to drop the study-skills class, thus overriding the stay put rights, for they were given no option. They clearly wanted both, and not until after they achieved the October 25, 1999 Settlement Agreement at the BSEA, did Student get both. It is recognized that scheduling difficulties are a reality, however, Shawsheen’s rather rigid position that “this is the schedule, and there is nothing to discuss”, denies the flexibility needed to attempt to address Student’s special education needs in a way that does not deny him access to the same courses regular education students can have. In fact, scheduling difficulties may require extended day programming in order to address a student’s special education needs.
During this “stay-put” period prior to the Settlement Agreement, Parents also assert that they should be reimbursed for ILD tutoring from March of 1999 (end of tenth grade) through October of 1999 (beginning of eleventh grade). They base this on their belief that Student needed the services. In essence, they are now asserting that such was required for FAPE, and they should be reimbursed. Given the fact that the parties agreed that this case is limited to compensatory claims, such assertion regarding denial of FAPE is beyond the scope of this hearing.
IV. THE OCTOBER OF 1999 SETTLEMENT AGREEMENT AND SUBSEQUENT IEP – ELEVENTH GRADE, AND RIGHTS TO COMPENSATORY SERVICES
The Settlement Agreement (P-16) called for:
· A modified schedule eliminating the (4) gym classes, and providing special education tutoring in speech/language 1 x week during academic as well as vocational weeks, and in content areas 3 x academic week.
· After-school tutoring as needed.
· ILD tutoring expenses for 2 hours x week for the remainder of the 1999/2000 school year.
· “ in connection with Student’s attendance at the School and ILD, the School’s special education liaison shall consult with Ms. Bethany Roditi of ILD between Monday and Thursday on a weekly basis”.
· An IEP shall issue, incorporating the above-mentioned terms of agreement.
The subsequent March of 2000 IEP called for study-skills 4 x 10-day cycle. The student instructional profile listed Student’s classroom needs for processing both verbal and written language. The intent of the parties was that this IEP also incorporate the Settlement Agreement. (O’Sullivan, Monagle) Thus, Student was to receive 2 speech/language sessions, 3 content area tutoring, and 4 ILD sessions, totaling 9 sessions x 10-day cycle – two of which are for speech/language – as well as after-school help as needed.
The major dispute regarding Shawsheen’s compliance with the Settlement Agreement and the subsequent IEP, revolves around Shawsheen’s attempts, or lack thereof, to coordinate Student’s regular education, special education, and ILD services. Shawsheen asserts that it complied with the Agreement’s call for communication, for it attempted to make the calls to ILD, and the Settlement Agreement calls for nothing more. At first glance, this could be persuasive (if it were determined that the weekly calls were at least attempted). The Agreement’s only mention of coordination is the one sentence regarding a weekly call to Ms. Roditi, the administrator of the ILD program. The Agreement is absent as to the purpose of that weekly call, as to the need for any ILD consultation for the regular education staff, as to ILD’s need for information from the Shawsheen staff, coordination between the ILD and Shawsheen curricula, and as to any coordination between Shawsheen’s special education liaison and its regular education staff. However, after looking at the context of that Agreement and at Shawsheen’s interpretation of that Agreement, it becomes clear that in deed, it did not fulfill its responsibilities. Clearly, Parents have, throughout Student’s high school years, sought a coordinated program. They continually sought special education and speech/language therapy consultation with the regular education teachers, both for purposes of educating the regular education teachers, and for coordinating the specialists’ work with the regular education program. They in fact requested that a speech/language therapist be the liaison in order to tightly coordinate the program to address his language needs. (Father, P-5, P-10, P-14, Mother, Father). This requested coordination is founded in the earlier independent evaluations that had been provided to Shawsheen. (O’Sullivan, P-37). After the signing of the Agreement, Mr. O’Sullivan and Mr. Monagle shed light on their understanding of their responsibilities. That is, the liaison was to communicate with ILD on a weekly basis to coordinate support and communicate Student’s needs, and to facilitate support. (S-12h) She also would coordinate communication between student/staff/parents. (S-12e) Given this knowledge of Parents’ relentless requests for a tightly coordinated program, and given Mr. O’Sullivan’s and Mr. Monagle’s requests of the staff, Parents were persuasive that the parties agreed to a tightly coordinated program by signing the Settlement Agreement. I find that the Agreement was not implemented as intended by the parties.
If circumstances had been different, Shawsheen may have met its obligations. However, several difficulties arose. First, Shawsheen lost its speech/language therapist, waited too long to remedy the problem, and finally chose to rely on ILD to fill that role. This set up an immediate challenge in establishing the cooperative working relationship more easily obtained by people working together in the same school. It required a more assertive effort to provide this coordination. It also meant that the ILD provider was serving as Shawsheen’s speech/language provider. Thus, ILD’s speech/language therapist’s (Ms. Yeh’s) opinion became more than just the opinion of an independent speech/language therapist; rather, her opinion becomes the only speech/language pathologist’s opinion, and in fact, becomes Shawsheen’s opinion. (Shawsheen should have, but failed to include her services on the IEP) Thus, her opinion regarding Student’s need for a fully coordinated program, is given significant weight in determining whether Shawsheen fulfilled its obligation under the Settlement Agreement. Secondly, Mr. O’Sullivan was involved in the creation of the Settlement Agreement, but soon thereafter, took a leave of absence for medical reasons, and thus, Mr. Monagle, who had not been involved, stepped in to implement the Agreement. This contributed to a time delay in implementing the Agreement. (Clearly, however, once involved, he repeatedly asked his staff to coordinate with ILD.) Third, the number of people working with Student – regular education teachers, 4 Shawsheen teachers/tutors, and 3 ILD staff – is sufficiently high to render the liaison’s role extensive. In addition to these challenges, the liaison apparently had too high a case load, and the regular education staff, although committed teachers, saw little need for, and had little interest in, working with outside educators. As a result of the circumstances and attitudes, Student’s education suffered.
Apparently, no Shawsheen liaison was assigned to implement the Settlement Agreement until the November 22, 1999 TEAM meeting, and she was not in attendance, and was not informed of her role till later.9 (Deal/Blanchette) And even then, she was unclear as to the communication expectations. Thus, the Settlement Agreement’s call for weekly communication could not begin until December, and the Shawsheen and ILD staff struggled throughout the semester to establish agreement as to what should be communicated. As Ms. Deal/Blanchette testified,
I did the best I could with my understanding. I don’t think either side understood what was going on at the time. It was laid in my lap. I did the best I could. I communicated. By end of the year, I think we had come into a pattern, which we all worked out ourselves, where if assignments needed extra help, ILD was informed, ILD asked for things. But it took a while. We were not given any guidance at that time. … I hope it’s understood that in addition to this, I had about 40 other kids I had to work with as liaison.
In fact, ILD’s educational tutor, Ms. Stacy,10 and Ms. Yeh, attempted unsuccessfully several times to contact Ms. Deal/Blanchette. Likewise, Ms. Deal/Blanchette would leave messages unanswered. It appears that people did leave phone messages and e-mail messages, so there was some communication, but they had difficulty actually talking to each other, and even the one-way communications were not weekly. Further, the nature of Ms. Yeh’s and Ms. Stacy’s communication reflects a more in-depth communication, seeking a two-way dialogue. The Shawsheen communications do not reflect that. It appears that Shawsheen’s administrator, Mr. Monagle, requested that his staff communicate with ILD, yet, apparently, the regular education teachers were much more reluctant to communicate, for they did not see the need for it, had little time, and to some extent, did not want any consultation from ILD. (Stacy, Yeh, Kaye, Deal/Blanchette, S-24, S-25, P-18, P-38) By May of 2000, near the end of Student’s eleventh grade, Ms. Deal/Blanchette states that she established a system where the regular education staff were to provide her with written weekly reports, and those would be shared with ILD; yet the staff had difficulty implementing it in writing. (Deal/Blanchette). In sum, the coordination of the support services and the content area classes did not provide Student with the support as contemplated by the signing of the October 25, 1999 Settlement Agreement and subsequent IEP.
The second area of dispute is the provision of speech/language tutoring 2 x 10-day cycle. Starting December 18, 1999, Shawsheen contracted with ILD to provide the weekly speech/language tutoring, and by all accounts, such services were excellent. However, by Shawsheen’s own admission, it failed to provide the eleventh grade speech/language services prior to December 18, 1999.11 (This spans the period governed by the stay-put period as well as the Settlement Agreement.) This was, however, compensated for during the summer of 2000 when Shawsheen funded additional ILD speech/language services. (Monagle, O’Sullivan)12 . Thus, no further speech/language compensatory services are called for. However, this failure is not limited just to speech/language therapy, for the intent of the Settlement Agreement, and less specifically, the seventh grade IEP, was that the speech/language services would be integrated and coordinated with the rest of Student’s education. Thus, this failure to provide speech/language services was in addition to the lack of coordination discussed above, further eroding the coordination contemplated in the Settlement Agreement.
Shawsheen provided the remaining provisions of the Settlement Agreement in Student’s eleventh grade, as follows:
· Study-skills 3 x 10-day cycle, as called for in the Settlement Agreement. by waiving the gym requirement so as to allow for the study-skills as well as the US History class. It further provided a fourth study-skills class. They were provided by Mr. Restivo, Ruth Corbett, Claire Leydon, and Paula Blanchette. (S-12e, 12f, 15h)
· Funding of the ILD educational tutoring services for two hours x week.
· After-school tutoring.
During this eleventh and twelfth grade period implementing the Settlement Agreement and subsequent IEP, Parents claim they should be reimbursed for ILD’s progress reports of March of 2000 and April of 2001. Apparently, Shawsheen relied on these reports. Given Shawsheen’s need for some level of coordination and input from ILD, and given the difficulty in implementing this aspect of the Settlement Agreement, these reports are clearly relevant to the ongoing designing and implementation of Student’s educational program. Accordingly, Parents are entitled for compensation in the form of reimbursement for such ILD progress report out-of-pocket expenses.
V. THE OCTOBER OF 1999 SETTLEMENT AGREEMENT AND SUBSEQUENT IEP – TWELFTH GRADE, AND RIGHTS TO COMPENSATORY SERVICES
Shawsheen’s twelfth grade responsibilities were dictated again, by the Settlement Agreement and the subsequent IEP, for there was no further accepted IEP in the twelfth grade. By all accounts, the twelfth grade implementation of the Shawsheen-ILD communication provision of the Settlement Agreement was more successful.(Yeh, Stacy, Fitzpatrick, S-25, S-26) Apparently, the parties had, by this time, developed a better working relationship, and Ms. Fitzpatrick’s active involvement helped create better communication between the ILD and Shawsheen staff. She was in contact with the ILD staff at least weekly, sometimes daily. She shared reports, she e-mailed, talked on the phone, and occasionally met with ILD in order to coordinate Student’s program. Although not clear whether required by the Settlement Agreement, she met weekly with Student’s English teacher, often with his math teacher, and occasionally with each of his other teachers. (Fitzpatrick, S-26) Shawsheen continued to provide two speech/language sessions per 10-day cycle through ILD. Ms. Stacy noted:
[because the senior year was significantly more coordinated with Shawsheen than the junior year, he made improvement] in terms of his oral expressions, being able to convey ideas as well. And that comes from having to deal with content-based material, having to talk about Slaughterhouse Five and Fahrenheit 451. [This is done] in conjunction with someone who is going to work out the organizational pieces that he needs to work on and the vocabulary and higher level reading, the inferencing. All those pieces. He needs the guidance to pull it out. But if he’s not reading that kind of material, he has no opportunity to practice and apply the skills. … The increased self-advocacy, the written expression and oral expression, all increasing this year due to the increase in services and connection to the school, a stronger connection to what was happening in school. That’s a very, very critical piece. Without it, you make minimal progress because you have nothing to base it on.
(Stacy, Day 1, pg. 109-111)
Shawsheen continued to provide the five study-skills classes per 10-day cycle by a) three times per 10-day cycle before and after school with Ms. Fitzpatrick, and b) two times per 10-day cycle through ILD. Parents’ concern as to Ms. Fitzpatrick’s credentials as a speech/language therapist, have been carefully reviewed, for it is true that she is not credentialed as a special education teacher, nor as a speech/language therapist. (The Settlement Agreement called for tutoring by a special education teacher, and the IEP stated only “support staff”). Given her extensive previous work as a speech/language therapist, given the fact that language processing is a major issue for Student, and given the fact that she served as a tutor for him, I find that she provided for Student’s needs sufficiently so as to not warrant any compensatory services.
In sum, I find no substantive failure to comply with the Settlement Agreement and IEP during the twelfth grade, and therefore, find no rights to compensatory services .
VI. TRANSITIONAL SERVICES, AND RIGHTS TO COMPENSATORY SERVICES
Parents claim that Shawsheen failed to provide the transition services necessary to help Student work towards his goal of attending college. The IDEA defines transition services as
a coordinated set of activities for a student with a disability that (1) [i]s designed within an outcome-oriented process, that promotes movement from school to post-school activities, including post-secondary education…; [and] (2) [i]s based on the individual student’s needs, taking into account the student’s preferences and interests.
34 CFR 300.29
Further, the IDEA requires that a child’s IEP must include an annually updated
statement of the transition service needs of the student … that focuses on the student’s courses of study (such as participation in advanced-placement courses or a vocational education program)…
34 C.F.R. 300.347(b)
Clearly, Shawsheen did take some steps appropriate for Student’s transition to a college. It provided him with some college prep courses, he graduated with a GPA of 3.22 and a class rank of 86/243; he participated in an SAT prep course, and scored 450-460 – all sufficient for college acceptance at Dean, Curry, and state colleges; and he received group guidance regarding the college application process. (Trainor) Parents do, however, point to several problematic areas. First, Student’s goal for college should have been addressed by the TEAM so that there could have been a discussion as to the required courses for college and the necessary special education supports to access and learn in those courses. This did not happen. After comparing his transcript to the several Program of Studies brochures (they are different for various years), it is clear that Shawsheen did fail to counsel him and then place him in the Option A and level 3 courses generally needed for college preparation. In Student’s freshman year the brochure does not delineate the college requirements, however, in his tenth grade, according to the Program of Studies’ college requirements, he was not placed in the Option A curriculum or the college prep level English class; in eleventh grade, with the BSEA involvement, he was placed in the Option A curriculum for the History class, but remained in the level 4 English class. Only in his twelfth grade year, was he placed in the level 3 college prep English class.13 Parents’ claims are of concern in that they highlight Shawsheen’s rigid approach to its offerings, forcing special needs students/parents to choose between the Option A courses (needed to fulfill many colleges’ requirements) and special education study-skills classes. Further, it may be that the leveling system is a good one and appropriate for many students. However, to the extent that a student is motivated and can handle a more challenging curriculum if given in-class supports (inclusion classes, modification of the work, close coordination with the special education teachers, etc.), Shawsheen’s rigid placement rules deny the child’s right to a program individually designed for that student in accordance with his goals – college in this case.
Though Shawsheen failed to provide sufficient transition services, their claim for compensatory services is not substantiated in the sense that, by graduation, Student could have attended college. (Trainor) Parents offered nothing to dispute this. Also, the level 4 English classes were designed to address Student’s skill deficits, and to provide him with the supports necessary for him to learn.14 Although Parents disagreed with Shawsheen’s leveling system, the use of skill levels for regular education placement decisions are not inherently discriminatory, and Student did not qualify for the higher level courses. Finally, although legal action had been required to obtain simultaneously the Option A and special education services, Student ultimately received those special education services in the eleventh grade.
VII. PROCEDURAL PROTECTIONS AND COMPENSATORY SERVICES
Parents list several alleged procedural violations as support for compensatory services at Landmark College. To the extent that Shawsheen violated the IDEA and Chapter 766 laws, each one by itself may not be significant. However, the list of violations raises questions as to Shawsheen’s commitment to the law’s intent. It is central to the legislation that a multidisciplinary team comprised of people having expertise and knowledge about the child, consider relevant information including evaluations, and design an appropriate education individualized to the child’s needs, and then, that the educators and specialists teach according to that individualized plan. The record shows that the Floating Hospital’s January 1997 evaluations – the only evaluations available to Shawsheen (prior to its evaluations in Student’s junior year), – were not considered by the TEAM. (O’Sullivan, Deal/Blanchette) Mr. O’Sullivan provided telling testimony that “My speech and language people are not at team meetings. They don’t go to the 120 team meetings that I go to, because I’m not also sure who has speech and language when I’m going to a team meeting.” It was telling testimony that the TEAM’s liaison believed that the TEAM decides the outline of services, and the administrators write the IEP, and that the goals are developed by the specialsts, not at the TEAM meeting, thus denying Parents’ participation (Deal/Blanchette); that the special education administrator did not request a copy of Student’s last-agreed upon IEP (O’Sullivan); that a teacher had seen only the IEP’s Student Profile that failed to reference Student’s language-based learning disability. (Mountain). Shawsheen never reconvened the TEAM to resolve the ninth grade disputed IEP; included no speech/language therapist on the 10 th grade IEP TEAM (despite language processing being a major area of disability); included no regular education teachers on any of the TEAMS; included no direct service providers on the eleventh grade 11/22/99 TEAM or the summer and twelfth grade 6/22/00 TEAM; and failed to include Ms. Yeh on the TEAM, despite her being Shawsheen’s speech/language direct provider in the area of Student’s disability. Finally, Shawsheen failed to take the necessary steps with the Bureau of Special Education Appeals in order to resolve a longstanding dispute, and thereby educated Student for almost three years without an agreed-upon IEP. The specific allegations and rulings regarding regulatory violations are as follows:
· Failure to notify the BSEA of Parents’ rejection of or nonresponsiveness to many IEPs in violation of 603 CMR 28.400.1: Mr. O’Sullivan was unpersuasive in asserting that he thought that he would be able to negotiate an agreement with Parents, thus negating the need for notifying the BSEA. (O’Sullivan) Clearly, he did not resolve the disagreements. Rather, he allowed the disagreements to fester for years, educating Student without an IEP, culminating in this case. Many IEPs were developed, and either rejected or unsigned, and not until March of 2000, did Parents agree to the IEP. Each such failure to notify the Bureau is a violation.
· Failure to identify a liaison in violation of 603 CMR 28.335: It appears that in Student’s junior year, the liaison was not assigned until the November 22, 1999 meeting. This violated the law, but more importantly, the liaison was critical for Student’s education, given the need for a tightly coordinated program, given the fact that the some of the service providers were not at the school, and given the large number of service providers.
· Failure to amend the IEP after moving Student from the ninth grade special education English class to the regular education English class in violation of 603 CMR 28.333.5(a): it is true that a proposed change to a more or less restrictive placement required a reconvening of the TEAM. However, there is an exception to this. When the modification did not change the prototype, the change can be made merely by agreement of the Special Education Administrator, the liaison, and Parents. See 603 CMR 28.335.2. In this case, the change to a regular education English class did not change the prototype – it remained a 502.2 placement – and Mr. O’Sullivan, Ms. Deal/Blanchette, and Parents agreed to the change. (Deal/Blanchette, O’Sullivan, Mother, Father) That is sufficient. Having determined this, however, it may be that a TEAM meeting would have been helpful, given the fact that language processing was a predominant need of his; the language arts goals might have been transferred to the speech/language specialist or the study-skills teacher, or the language arts goals could have been implemented in the regular education class (via an inclusion model). Shawsheen’s failure to provide the inclusion English class is addressed within the context of the ninth grade “stay-put” section of this decision.
· Failure to produce IEPs within 10 days of Team meetings in violation of 603 CMR 28.336.6: the long list of violations in timely issuance of IEPs is disheartening, to say the least15 . However, due to the fact that these IEPs were never agreed to, their lateness is de minimus: the seventh grade IEP, not these proposed IEPs, continued to govern. Further, much of the delay occurred over the summer months prior to the school year.
· Failure to include regular education teachers in Student’s Team meetings in violation of 34 CFR 300.344(a)(2): It is true that some of the regular education teachers provided reports for the Team, and the Team liaison was in touch with the regular education teachers. (Deal/Blanchette) However, failure to include a teacher in the Team process, denied the teachers the opportunity to learn more about Student’s needs, and to be part of the TEAM designing the IEP, deciding as a group issues such as coordination of curricula, structured communication, implementation of modification, etc. This failure occurred for the first three years.
· Failure to fully include Parents in the TEAM process by convening a pre-TEAM meeting to discuss Student’s progress: there is nothing inherently wrong with staff meeting without parents, as long as they were not developing the IEP.
SUMMARY OF FINDINGS SUPPORTING RIGHTS TO COMPENSATORY SERVICES
1. In ninth grade, Shawsheen failed to provide approximately half of the speech/language services
2. In eleventh grade, Shawsheen failed to provide approximately twenty-four study-skills classes during the six-week period from September 17, 1999 to October 25, 1999 when Student enrolled in the Option A History class. Further, throughout the eleventh grade, Shawsheen failed to provide the coordination between the support services and the content area classes as contemplated by the signing of the October 25, 1999 Settlement Agreement and subsequent IEP.
3. Shawsheen failed in part to abide by the regulatory requirements relative to procedural protections with the result that Student’s education was compromised.
4. Parents are entitled to reimbursement for the March of 2000 and April of 2001 ILD progress report out-of-pocket expenses.
SUMMARY OF FINDINGS SUPPORTING SHAWSHEEN’S POSITION THAT COMPENSATORY SERVICES ARE NOT WARRANTED
1. Shawsheen’s ninth, tenth, and eleventh grade regular education English classes fulfilled its “stay-put” responsibilities.
2. Shawsheen’s study-skills classes during academic weeks only, fulfilled its “stay-put” responsibilities.
3. Shawsheen’s failure to provide the bi-monthly social worker’s sessions did not warrant compensation.
4. Shawsheen’s provision of tenth grade speech/language therapy 2 x 10-day cycle fulfilled its “stay-put” responsibilities.
5. Alleged denials of FAPE are beyond the scope of this case. Thus, Parents’ claim for March of 1999 through October of 1999 ILD tuition reimbursement is not entertained.
6. The summer of 2000 ILD speech/language services were funded as compensation for Shawsheen’s failure to provide them during the first semester of Student’s eleventh grade, and were not provided for FAPE.
7. Shawsheen fulfilled its twelfth grade responsibility to coordinate the support services and the content area classes as contemplated by the signing of the October 25, 1999 Settlement Agreement and subsequent IEP.
8. Shawsheen’s failure to fully provide the transitional services did not warrant compensation.
COMPENSATORY SERVICES
Compensatory services must be fashioned in a way that provides Student that to which he was entitled, but denied. Yet also, they must be fashioned in a way that considers the equities in the matter. Clearly, Student was denied the 26 speech/language sessions and the 24 study-skills sessions. Less quantifiable, he was denied the closely coordinated program for a substantial portion of his junior year, and procedural violations occurred. These shortcomings affected his progress in language processing as well as his academic performance. On the other hand, part of the coordination difficulties resulted from the ILD staff’s unavailability for communicating with Shawsheen staff. Although Student should not be penalized for this, it must be considered in placing all the responsibility for compensation on Shawsheen. Also, many Shawsheen teachers went out of their way to offer extra help in class as well as before and after school. Student did receive an education, and much of it was in small classes. His junior year English teacher was experienced in the teaching of learning disabled students. After weighing the various factors, an equitable remedy is a half-year’s tuition at Landmark.
Shawsheen offers its special education services as compensation, if so ordered. However, given the four years’ difficulty in getting Shawsheen to provide the services to which he was entitled, it is reasonable that compensatory services be provided elsewhere. Shawsheen raises several objections to Landmark College – it is out of state and not approved by the Massachusetts Department of Education; it doesn’t have a speech therapist on staff, and many staff lack special education certification. On the other hand, Landmark offers a curriculum focusing on the foundation of language skills and learning strategies – a curriculum appropriate for Student. It is designed for students with learning disabilities who intend to go on to college, again, appropriate for Student. The specific classes address oral and written communication, self-advocacy, reading and study skills, again, appropriate classes addressing Student’s weaknesses. Finally, it is geared towards preparing him for college. Given that this is Parents’ chosen placement, providing one-half year’s tuition there is an equitable remedy.
ORDER
Shawsheen shall reimburse Parents for a half-year’s tuition at Landmark College.
Further, they shall reimburse Parents for out-of-pocket expenses for the March of 2000 and April of 2001 ILD progress reports.
Signed,
Sandra Sherwood
BSEA Hearing Officer
Date:
1
Ms. Blanchette married in September of 1999 when she changed her name from Deal to Blanchette. For purposes of clarity, both names are used.
2
On July 31, 2001, Parents/Student agreed to proceed solely on the claim for compensatory services, thus releasing the Billerica Public Schools as a party in this case. (S-28c) Accordingly, despite Parents’ claim otherwise, they waived their right to claim a denial of FAPE for Student’s senior year. For, if the issue of FAPE were to be addressed, Billerica would necessarily have been a party, in the event that it were determined that Student’s needs could not be met at Shawsheen, then Billerica would have been responsible. See 603 CMR 28.03(4)(i).
3
Dr. Grabowski re-evaluated Student in December of 2000, Student’s senior year, and again recommended language-based intensive programming. (P-37).
4
Ms. Blanchette wrote her colleagues, asking for weekly overviews of their upcoming classes in order to share with ILD. “This is per their request. Sorry and thanks.” (P-23)
5
Shawsheen’s speech/language therapist had resigned prior to this school year.
6
Student testified that he continued to attend some study-skills classes, but it is unclear if he was talking about this time period. (Student) If so, he missed History classes rather than study-skills classes.
7
Shawsheen has raised the statute of limitations bar applicable to claims filed with the Bureau more than three years after the alleged violation. In this case, Shawsheen alleges that the statute of limitations bars claims of violations for the ninth grade, for Parents did not notify Shawsheen of their seeking compensatory services for ninth grade until well into the twelfth grade. (They filed their BSEA Hearing request on August 8, 2000, raising claims regarding the 11 th and 12 th grade education. Not until a February 7 th , 2001 conference call, was this Hearing Officer notified that claims regarding the 9 th and 10 th grade were at issue. (The record is silent as to whether the previous Hearing Officer Byrne had been informed.) At this February 7 th , 2001 date, the statute of limitations would bar claims prior to February 7 th , 1998 – i.e., the first half of the ninth grade. However, the statute’s three years begins when Parents “knew or should have known” of the alleged violations. There is no evidence that Parents knew of their “stay-put” rights when their son entered the vocational school. To the contrary, the evidence supports a finding that they did not know, and Shawsheen did not so inform them, for they clearly asked for some of those services, were denied them, and they never raised their rights to those services under the last agreed-upon IEP. Not until after they filed this current case, was there a discussion about any “stay-put” rights. Thus, the statute of limitations does not bar the September of 1997 – February 7, 1998 “stay-put” claims.
8
This Settlement Agreement is recognized as the standard by which compensation is determined, despite the fact that there is no signed IEP until March of 2000. Unlike the ninth and 10 th grade oral “agreements” made between the parties, in this case, this 11 th grade Settlement Agreement was in writing, was intended to be immediately incorporated in an IEP, and in March, Shawsheen believed that it was codified in a signed IEP. Finally, it was developed within the context of a BSEA proceeding. Further, because the 12 th grade IEP was not accepted, this 11 th grade IEP incorporating the Settlement Agreement, becomes the “stay-put” placement until Student’s June of 2001 graduation. (O’Sullivan, Monogle).
Applying the Settlement Agreement as the standard against which the right to compensation is determined, is distinguished from the BSEA’s consideration of settlement agreements for purposes of enforcement. In this situation, the parties both agree that Shawsheen was responsible for implementing the settlement agreement; there is no request that the BSEA take jurisdiction over the Settlement Agreement for purposes of enforcement of that agreement. In fact, Shawsheen acknowledged this when it provided the ILD summer services as compensation for its failure to implement the Settlement Agreement’s speech/language services during the November – December of 1999 period. Rather, the Settlement Agreement is the standard applied to determine rights to compensatory services.
9
Although not required under the Settlement Agreement, it should be noted that a) although Floating Hospital strongly recommended a language-based program with coordination between the speech/language therapist and the teachers, and b) that Parents specifically requested that the liaison be a speech/language specialist, that did not happen.
10
Although the Settlement Agreement named Ms. Roditi as the ILD liaison, she very quickly delegated the responsibility to Ms. Yeh, the speech/language therapist. (Yeh)
11
Ms. Piscitelli had resigned suddenly over the summer, and Shawsheen was not able to replace her until January of 2000.
12
Parents were unpersuasive in their assertion that those summer services were not compensation, but rather, services needed to obtain FAPE. It is true that Parents consistently requested ILD services as necessary for FAPE reasons, but at the same time, they also characterized such services as compensation for Shawsheen’s failure to provide the semester of speech/language services. Shawsheen repeatedly offered the summer services, but stated that they were to be compensation for the previous failure to provide. Finally, Shawsheen did develop an IEP calling for summer services, but by Shawsheen rather than ILD staff. That decision was not appealed to the BSEA. (P- 19, P-24, S-12k) Accordingly, Shawsheen is persuasive that its provision of such service through ILD rather than its staff, is compensation and not implementation of the IEP.
13
In his 9 th grade, the 1997-98 brochure labels the five English class levels as “honors, college, developmental, corrective, and reading clinic”, but does not state the required level for college. In his 10 th grade, the 1998 – 99 brochure lists the Massachusetts State Colleges and University New Admissions Standards’ required courses, but not the required levels. This listing appears to require Option A’s U.S. History in order to obtain the two lab sciences required for many colleges. Student did not take that U.S. History course in his 10 th grade. In his 11 th grade, the 1999 – 2000 brochure does label the levels 1 – 3 courses as college preparatory. It further states that “Students who intend to compete for admissions into 4-year colleges and universities should enroll in the [college-preparatory courses]”; Student was placed in the level 4 English class, and was not placed in the college-preparatory course for his 11 th grade. In 12 th grade, he was placed in the level 3 course, thus, a college-preparatory course. (S-7a)
14
Dr. Kanellas opined that with his reading comprehension and writing skills, assuming that “emerging skills can support successful performance in a college-preparatory setting is, at best, not a strongly supported assumption. And that any level of instructional accommodation can either hasten or compensate for the cognitive development requisite for success at this level – particularly in a demanding twelfth-grade English Language Arts curriculum – is an equally problematic assumption.” He recommends the continued placement at the four level. (P-25)
15
The freshman year IEP (6/6/1997 meeting) was mailed 8/29/1997 – over six weeks late.
The sophomore year IEP (5/28/1998 meeting date) was mailed 8/19/1998 – over two months late. (Parents say they received it more than a month after that.)
The junior year IEP (6/24/1999) was not issued until around 9/8/1999 – approximately two months late.