COMMONWEALTH OF MASSACHUSETTS
BUREAU OF SPECIAL EDUCATION APPEALS
In re: Ella1 v. Walpole Public Schools
BSEA# 10-5058
DECISION
This decision is rendered pursuant to M.G.L. Chapters 30A and 71B; 20 U.S.C. §1400 et seq.; 29 U.S.C. §794; and the regulations promulgated under these statutes.
A hearing in the above-entitled matter was held on May 24, and June 4, 2010 at the Massachusetts Department of Elementary and Secondary Education in Malden, MA.
The record, which consisted of Parents’ Exhibits labeled P-1 through P-26; Walpole Public
Schools’ Exhibits labeled S-1 through S-1; and approximately 5 ½ hours of oral testimony,
remained open until June 21, 2010 for the receipt of a final exhibit.
Those in attendance were:
Mother
Father
Anne Edgar Neuropsychologist
Ronald Thibert Pediatric Epilepsy Specialist,
Massachusetts General Hospital (Via Speaker Phone)
Leigh Horne-Mebel
Mary Ellen Pambookian Program Director, South Shore Educational Collaborative
Robert Augustine Advocate for Parents
Ellen Honeyman Director of Special Education, Walpole Public Schools (WPS)
Lilly Pelzman Team Chairperson, WPS
Margery King Special Education Teacher, WPS
Naomi Turk Consulting Clinical Psychologist, WPS
Mary Joann Reedy Attorney for WPS
Raymond Oliver Hearing Officer, BSEA
HISTORY/STATEMENT OF THE CASE
Ella is a fourteen year old girl who lives with her family in Walpole, MA. She has spent
her educational career within the Walpole Public Schools (WPS). Ella has just completed 7 th grade. She has been a special education student educated under an Individual Education Program (IEP) since 1 st grade. Ella has been diagnosed with several learning problems, several medical issues, and an emotional issue.
On March 17, 2010 Parents requested a hearing before the BSEA which was scheduled for April 21, 2010. A postponement request from WPS was granted, so that the case could proceed to mediation, which was unsuccessful. On April 15, 2010 the parties agreed to hearing dates of May 12 and 24, 2010. On May 15, 2010 Parents requested a postponement, the hearing was rescheduled for May 24 and June 4, 2010 and took place on those dates.
ISSUES IN DISPUTE
1) Is the IEP/IEP Amendment proposed by WPS appropriate to address Ella’s special education needs so as to provide her FAPE in the LRE?
2) Does Ella require an out of district placement at South Shore Educational Collaborative?
STATEMENT OF POSITIONS
Parents’ position is that Ella requires an out of district placement at South Shore Educational Collaborative (SSEC) in order to address her special education needs so as to provide her with a free and appropriate public education (FAPE) in the least restrictive educational environment (LRE). Parents contend that WPS’ currently proposed IEP does not provide Ella with FAPE in the LRE because she has failed to make educational progress within WPS placements.
WPS’ position is that its currently proposed IEP/ IEP Amendment is appropriate to address Ella’s special education needs so as to provide her with FAPE in the LRE. WPS contends that Ella does not require an out of district placement at SSEC and that such a placement would be too restrictive for her.
PROFILE OF STUDENT
Ella has been extensively evaluated both by WPS and independently/privately by parents. She has the following educational diagnoses: 1) reading disorder; 2) mathematics disorder; and 3) written language disorder. All of Ella’s learning disabilities have been documented since early in elementary school. WPS evaluations can be found at P-12, 14, 15 and S-29, 32, 33, 34, 35, 36, 39, 41, & 42. Independent/ private evaluations can be found at P-11 and S-30, 31, 37, 38, and 40.
Recently, in December 2009, Ella was referred to a neurologist and underwent an electroencephalogram (EEG). Both the waking EEG and the sleep EEG were abnormal, with fairly frequent episodes of spike wave activity bilaterally with frontal predominance, consistent with an underlying seizure disorder. Ella was put on the medication Keppra, which has been increased over time from December 2009 to May 2010 (P-19, 20). Ella has been recently evaluated by Ronald Thibert, M.D., a pediatric epilepsy specialist at Massachusetts General Hospital (MGH), who has increased the Keppra and added the medication Lanictal. Dr. Thibert testified that Ella has epilepsy; that her abnormal EEG is complicated; and that Ella experiences staring spells/ blanking out periods of various time periods called absent seizures. Ella has experienced absent seizures of very short periods (seconds), several minutes, and as long as 20 minutes. (See testimony Thibert; P-24A; P-24B.)
Additionally, Ella experiences back pain/inflammation due to rapid bone growth (testimony, Thibert) and a cheerleading accident (testimony, Mother). On May 28, 2010 Ella was seen at Children’s Hospital’s Division of Sports Medicine, and has been diagnosed with lordosis osteochondropathy be Pierre D’Hemceoint, M.D. (See P-26- letter dated June 14, 2010.)
Finally, in light of her diagnoses of epilepsy, Ella has been seen at MGH for therapy/ counseling for help to learn to adjust/ deal with this condition and she has been diagnosed with generalized anxiety. (See testimony, Horme-Mebel; P-23.)
PARENTS’ PROPOSED PROGRAM
Parents propose that Ella be placed at SSEC for the 2010-2011 school year in SSEC’s Language Enhancement Program for middle school (LEPM). SSEC’s LEPM is located at Randolph Community Middle School in Randolph, MA. The LEPM utilizes the Randolph Community Middle School’s gym for adaptive physical education; cafeteria for lunch; and school nurse for medical issues. However, LEPM has two classrooms that are together and are separate from the rest of the school. LEPM is designed for students with dyslexia/ learning disabilities, attention deficit hyperactivity disorder (ADHD); Asperger’s Syndrome, and students with well managed social and emotional issues.
There are a total of 16 students in these two classes, staffed by two certified special education teachers and an aide who is a certified regular education teacher. A speech-language pathologist, at the program for ½ of the week (2 ½ days), provides therapy and is also part of the academic program. A licensed social worker is at the program daily, both providing therapy and working with the students on their social skills development, which is embedded into the program. There is also an adaptive physical education teacher on staff.
LEPM places a strong emphasis on reading, writing, and math. Students receive classes in reading/decoding, reading comprehension, writing, math, social studies and science. All students receive speech language therapy, social skills training and adaptive physical education. Some students receive occupational therapy and physical therapy. There is an epilepsy protocol in place which is followed.
The SSEC/LEPM has an extended year six week summer program which runs four days per week.
(See testimony, Dr. Mary Ellen Pambokian, Program Director, SSEC.)
SCHOOL’S PROPOSED PROGRAM
WPS’ IEP for Ella proposes that she continue to attend the language inclusion program (LIP) at WPS’ Johnson Middle School (Johnson). Johnson would not be Ella’s regularly assigned middle school, but she transferred to Johnson in September 2009 for her seventh grade year to enable her to attend the LIP during the 2009-2010 school year.
The teacher of LIP is Ms. King, who has both a bachelors and masters degree in special education and is certified in moderate special education for grades 5 through 12. This is Ms. King’s fourth year in WPS, and she is completing her second year as teacher of LIP. Prior to coming to Walpole, Ms. King taught at the Carroll School for ten years. She is certified in both the Orton-Gillingham and Project Read methodologies and has trained other teachers in these methods. There are two classroom aides in LIP, both college graduates, one of whom has been Ella’s dedicated aide since March 2010.
There are a total of nine students in LIP. For Ella, math, reading, English/language arts (ELA) and academic support are delivered in the LIP classroom, with the following student to teacher ratios: math 5:1; reading comprehension/ Project Read 7:3; ELA/written expression/Project Read 5:1; and academic support 9:3. Additionally, Ella receives 1:1 structured reading – decoding, phonemes, spelling– from Ms. Pretti, the reading specialist, who is trained in the Wilson methodology. Ella is mainstreamed into regular education inclusion classes, accompanied by her dedicated aide, with modifications, accommodations, for social studies (12-15 students) and science (22 students). Ella receives occupational therapy for ½ hour daily and counseling from the school adjustment counselor (who also is a nurse) for ½ hour weekly. There is a seizure protocol in place. The school nurse’s office is just around the corner from the LIP classroom and the school adjustment counselor’s office is just down the hall from the LIP classroom.
Ella’s current IEP, which runs from December 2009 to December 2010, proposes that Ella receive an extended school year / summer program for five weeks, three days per week, four hours per day (P-1; 5-7). In April 2010 WPS proposed an Amendment to the current IEP (P-2; S-3) which proposes the additional summer services of a two hour tutorial for three weeks, to further address her reading, writing and math goals. The summer program itself runs from July 6, 2010 to August 5, 2010. The tutorial services would be added for one week before the summer program starts and for two weeks after the summer program ends.
(Refer to testimony Pelzman, King, Turk; see Exhs. P-1, 2, 6, 7, 8, 9, 10; S-1, 3, 6, 7, 8, 9, 10, 11, 27, 28, 46.)
FINDINGS AND CONCLUSIONS
It is undisputed by the parties and confirmed by the evidence presented that Ella is a student with special education needs as defined under state and federal law. The parties are in substantial agreement regarding the nature and manifestation of Ella’s special education needs. The fundamental issues are listed under ISSUES IN DISPUTE, above.
Based upon 1½ days of oral testimony, the exhibits introduced into evidence, and a review of applicable law, I find that WPS’ current IEP/IEP Amendment appropriately addresses Ella’s special education needs as to provide her with FAPE in the LRE. Therefore, I conclude that Ella does not require an out of district placement at SSEC’s LEPM.
My analysis follows.
Pursuant Schaffer v. Weast 126 S.Ct. 528 (2005) the United States Supreme Court has placed the burden of proof in special education administrative hearings upon the party seeking relief. Therefore, in the instant case, Parents bear the burden of proof in demonstrating that WPS’ proposed IEP / educational program is inappropriate to address Ella’s special education needs so as to provide her with FAPE in the LRE. Parents have failed to meet that burden.
Based upon the evidence presented, it is clear that Ella’s learning disabilities are of long standing duration. Ella has been extensively evaluated by WPS and Parents have provided periodic independent and/or private evaluations to WPS. These evaluations paint a comprehensive picture of Ella over time. She is a student of essentially average intelligence with learning disabilities which result in her actual academic performance lagging behind her cognitive potential. (See Parent and School Exhibits referenced under PROFILE OF STUDENT, above.) I was convinced by Parents’ testimony that Ella has always had to work hard and has struggled academically (testimony Mother, Father).
In late January 2009, Ella underwent a psychological evaluation by WPS, which revealed that her scores had dropped on the Wechsler Intelligence Scale for Children – 4 th edition (WISC-4), particularly in perceptual reasoning. Ella’s academic achievement scores, which in 5 th grade ranged from approximately grade level to 2 ½ years below grade level, depending upon the academic area tested (S-34), have also dropped quite significantly. On Mr. Edgar’s May 2009 independent evaluation, done at the end of Ella’s 6 th grade year, her word reading was at a 1.8 grade level, written language skills at a 2.5 grade level, math at an early 2 nd grade level, and spelling at a late kindergarten level (testimony Edgar; P-11; S-31).
In the narrative description of WPS’ currently proposed IEP for Ella, promulgated in January 2009, WPS’ concern regarding Ella is evident:
After significant regression was noted in [Ella’s] writing, reading, math, and handwriting skills, the TEAM became concerned as to the cause of the regression. The TEAM brought in a consultant in June to observe [Ella] and review the file. Dr. Turk suggested that the parents seek a medical evaluation to help determine the cause of the regression. An annual meeting was held on 12/4/09, at that time [Mother] informed the Team that an appointment with a neurologist had been scheduled. The meeting was continued until 12/21/09. However, as of 12/21, test results were not available from the neurologist. The Team will continue the meeting on 1/7/10 after parents receive medical update. Even with more specifically designed instruction, [Ella] continues to struggle to make progress in reading and math. The suggested schedule change will allow for more intensive instruction in the area of reading and math. (See S-7.)
Dr. Turk, WPS’ consulting clinical psychologist, had observed Ella on three separate dates over time (October 15, 29 and November 10, 2009) owing to WPS’ concern regarding Ella’s variability of performance and possible loss of previously acquired skills. Dr. Turk had observed that Ella’s attention and focus were variable, that she had difficulty with short term recall and difficulty recalling information learned previously in the week, and difficulty with a math operation that had just been modeled for her. Dr. Turk noted that Ella had also been observed by her WPS special education service providers. Dr. Turk testified that she was very concerned about Ella medically, based upon her inattention, gazing off, diminished memory, loss of previously acquired skills and changes in her handwriting (testimony; Turk; P-28; see also testimony, King). These events led to WPS’ recommendation that Parents seek medical intervention, the referral to the neurologist, and the EEG leading to the diagnosis of epilepsy/absent seizures (P-19, 20, 24a, 24b; testimony Thibert, Mother).
Dr. Thibert testified that Ella’s epilepsy/absent seizures clearly impact upon her learning, especially in her ability to focus, sustain attention, executive functioning, working memory, academics and mood. Dr. Thibert continued that Ella’s seizures affect her rate of learning and her retention of previously learned skills. He stated that he had been contacted by Dr. Turk on behalf of WPS and had spoken with her regarding Ella’s medical condition and its impact upon her learning. Dr. Thibert also testified that Ella’s seizures can be exacerbated by anxiety or stress, and that Ella’s back pain can be an additional source of stress. Dr. Thibert, who increased the Keppra and added Lanictal in May 2010, testified that these medications have helped Ella, but the seizures, although reduced, are still occurring. Finally, Dr. Thibert testified that with all the abnormal electrical activity evidenced in Ella’s EEG, the brain does not function as well as it should (even when seizures are not occurring), and this can interfere with learning. (See testimony, Thibert.)
Dr. Turk testified that she has evaluated students with abnormal EEG’s, seizures and epilepsy and that she has spoken with Dr. Thibert regarding Ella’s condition. Dr. Turk testified that cognitive ability can be affected by medical and physiological factors and that Ella’s epilepsy explains her decline in certain cognitive and academic areas. Dr. Turk testified that Ella’s seizures and neurological functioning affect her neuropsychological functioning, working memory, processing speed, visual-perceptual-spatial skills and fine motor skills. Dr. Turk testified that Ella’s learning skills will be inconsistent while her seizures are not totally managed. However, Dr. Turk also observed Ella in March 2010, after she began on the first seizure medication, and noted some improvement in Ella’s in-class functioning (testimony Turk; P-28; see also testimony Thibert.)
I find that WPS has acted professionally, reasonably and proactively over the last 1 ½ years as Ella’s symptoms manifested themselves. The record is replete with evidence of extensive and frequent team meetings, highly detailed team notes, securing the consultative services of Dr. Turk, as well as numerous modifications, accommodations and additions to Ella’s IEP. I find that WPS took an active role in documenting Ella’s symptoms and in steering Parents in the appropriate direction to diagnose the course of Ella’s cognitive regression and loss of skills. Ella’s LIP teacher during the 2009-2010 school year, Ms. King, through her daily observations of Ella, researching Ella’s previously acquired skills, documenting their loss, and bringing her concerns to the attention of WPS, was instrumental in securing the services of Dr. Turk, which ultimately led to the recommendation for medical intervention. In summary, I conclude that WPS did an excellent job in monitoring and documenting Ella’s difficulties so that the appropriate interventions could occur. (See testimony Pelzman; King; Turk; P-3,4,5,6,7,8,9,10; S-6,7,8,9,10,11,12,13,14,15.)
I truly sympathize with Ella and her Parents. Ella’s condition frustrates her and she is having difficulty adjusting to it. She is embarrassed by her seizures and concerned about what peers think (testimony, Mother; Horne-Mebel; King). However, these issues must be viewed in the context of Ella’s many areas of strength. She is highly motivated, wants to do well, and has a good work ethic. Her verbal comprehension and verbal abilities have remained strengths for her. She benefits a great deal from oral discussions, listening and dialogue. She also has excellent social skills. (See testimony, King, Turk, Pelzman.)
I find that WPS’ proposed IEP/IEP Amendment provide Ella FAPE in the LRE (see SCHOL’S PROPOSED PROGRAM, above). The LIP provides Ella with multi-sensory instruction; very small group or 1:1 special education instruction in her area of greatest weakness; and integration into the mainstream regular education subjects of social studies and science (with supports), where her verbal strengths can be utilized in larger groups and she can maintain and expand upon her excellent social skills. I note the testimony of Dr. Turk and Ms. King that Ella interacts very well with peers in both the special education and regular education classroom; that peers seek her out and want to be grouped with her for various activities; and that she derives great benefit from the regular education content and socialization, which helps her self esteem and friendships with typical peers (testimony, Zurk; King).
I also note the proximity of the LIP classroom to the school nurse’s office and to the school adjustment counselor (also a nurse). This has allowed Ella and the school nurse to form a comfortable relationship. Ella is sometimes disoriented after an absent seizure, especially one of longer duration, and it is scary for her to reorient herself. Ms. King often discreetly allows Ella to go to the school nurse, who is calming and soothing, for a break and to recover. Ella also has a good rapport with the school adjustment counselor (see testimony, King; S-27, 46).
The WPS IEP/IEP Amendment not only provides for an extended school year (summer) program, but, in addition, tutorials to prevent substantial regression of skills
In summary, I conclude that WPS has been and is doing everything possible to address the totality of Ella’s special education needs. WPS is doing so in an environment that is familiar to Ella, with professionals who have experience with her, care about her, and are sensitive to all of her special education needs. The reality is that until Ella’s medical/seizure situation is stabilized and brought under better control, her learning skills may remain variable with gains, regression, re-acquisition of skills, and then loss of re-acquired skills again (see testimony, Thibert; Turk). Unfortunately, a change in educational placement is not going to alter that reality.
ORDER
1. WPS’ proposed IEP/IEP Amendment are appropriate to address Ella’s special education needs so as to provide her FAPE in the LRE.
2. Ella does not require placement at SSEC’s LEPM.
By the Hearing Officer
_________________
Dated: July 30, 2010
Raymond Oliver
EFFECT OF BUREAU DECISION AND RIGHTS OF APPEAL
Effect of the Decision
20 U.S.C. s. 1415(i)(1)(B) requires that a decision of the Bureau of Special Education Appeals be final and subject to no further agency review. Accordingly, the Bureau cannot permit motions to reconsider or to re-open a Bureau decision once it is issued. Bureau decisions are final decisions subject only to judicial review.
Except as set forth below, the final decision of the Bureau must be implemented immediately. Pursuant to M.G.L. c. 30A, s. 14(3), appeal of the decision does not operate as a stay. Rather, a party seeking to stay the decision of the Bureau must obtain such stay from the court having jurisdiction over the party’s appeal.
Under the provisions of 20 U.S.C. s. 1415(j), “unless the State or local education agency and the parents otherwise agree, the child shall remain in the then-current educational placement,” during the pendency of any judicial appeal of the Bureau decision, unless the child is seeking initial admission to a public school, in which case “with the consent of the parents, the child shall be placed in the public school program”. Therefore, where the Bureau has ordered the public school to place the child in a new placement, and the parents or guardian agree with that order, the public school shall immediately implement the placement ordered by the Bureau. School Committee of Burlington, v. Massachusetts Department of Education , 471 U.S. 359 (1985). Otherwise, a party seeking to change the child’s placement during the pendency of judicial proceedings must seek a preliminary injunction ordering such a change in placement from the court having jurisdiction over the appeal. Honig v. Doe , 484 U.S. 305 (1988); Doe v. Brookline , 722 F.2d 910 (1st Cir. 1983).
Compliance
A party contending that a Bureau of Special Education Appeals decision is not being implemented may file a motion with the Bureau of Special Education Appeals contending that the decision is not being implemented and setting out the areas of non-compliance. The Hearing Officer may convene a hearing at which the scope of the inquiry shall be limited to the facts on the issue of compliance, facts of such a nature as to excuse performance, and facts bearing on a remedy. Upon a finding of non-compliance, the Hearing Officer may fashion appropriate relief, including referral of the matter to the Legal Office of the Department of Education or other office for appropriate enforcement action. 603 CMR 28.08(6)(b).
Rights of Appeal
Any party aggrieved by a decision of the Bureau of Special Education Appeals may file a complaint in the state superior court of competent jurisdiction or in the District Court of the United States for Massachusetts, for review of the Bureau decision. 20 U.S.C. s. 1415(i)(2).
An appeal of a Bureau decision to state superior court or to federal district court must be filed within ninety (90) days from the date of the decision. 20 U.S.C. s. 1415(i)(2)(B).
Confidentiality
In order to preserve the confidentiality of the student involved in these proceedings, when an appeal is taken to superior court or to federal district court, the parties are strongly urged to file the complaint without identifying the true name of the parents or the child, and to move that all exhibits, including the transcript of the hearing before the Bureau of Special Education Appeals, be impounded by the court. See Webster Grove School District v. Pulitzer Publishing Company , 898 F.2d 1371 (8th Cir. 1990). If the appealing party does not seek to impound the documents, the Bureau of Special Education Appeals, through the Attorney General’s Office, may move to impound the documents.
Record of the Hearing
The Bureau of Special Education Appeals will provide an electronic verbatim record of the hearing to any party, free of charge, upon receipt of a written request. Pursuant to federal law, upon receipt of a written request from any party, the Bureau of Special Education Appeals will arrange for and provide a certified written transcription of the entire proceedings by a certified court reporter, free of charge.
1
Ella is a pseudonym chosen by the Hearing Officer to protect the privacy of the student in publicly available documents.