Henry v Everett Public Schools – BSEA #06-2597CR
COMMONWEALTH OF MASSACHUSETTS
BUREAU OF SPECIAL EDUCATION APPEALS
IN RE: HENRY1 v EVERETT PUBLIC SCHOOLS
This decision is issued pursuant to M.G.L. c.71B and 30A, 20 U.S.C.§1401 et seq ., 29 U.S.C. §794, and the corresponding regulations. A compliance2 hearing occurred at the Bureau of Special Education Appeals (BSEA) in Malden, MA on December 18, 2006. The matter was continued at the request of the Parties on that day to receive and review the written transcription from the hearing. The record closed on January 30, 20073 when written closing arguments were received from both Parties.
Those present for all or part of the hearing were:
Mother (pro se)
James Sullivan Chemistry Teacher, Everett Public Schools
Michael Fineran English Teacher, Everett Public Schools
Michael Barbiti Special Education Teacher/Liaison, Everett Public Schools
Paula Senia Special Education Teacher/Tutor, Everett Public Schools
Bridgeen McFadden Math Teacher, Everett Public Schools
Patrick Dailey History Teacher, Everett Public Schools
Anetta Kelly Director of Special Education, Everett Public Schools
Kathleen Yaeger Attorney for School District
Joan Beron5 Hearing Officer, BSEA
Elaine Hurley Court Stenographer, Catougno Court Reporting
The official record of the hearing consists of Parent’s Exhibits marked P1-P4, P8-P15, P17-P24 and P26-P27 and School Exhibits marked S1-S276 and approximately one day of stenographic7 and tape recorded8 oral testimony.
1. Has Everett implemented the compensatory services ordered in the July 20, 2006 decision for organizational support and multisensory writing instruction?9
2. If not, are there any facts that excuse Everett from performance or any facts that may bear on a remedy if noncompliance is found? see 603 CMR 28.08 (6) (b).
3. If not, does Henry require placement at Landmark as compensatory education for lack of compliance?
On July 20, 2006 the Hearing Officer issued a decision finding that Henry should have continued to be eligible for special education services and that Everett did not deliver some of the services pursuant to Henri’s last accepted IEP. Everett was ordered to provide Henry with sixty-seven (67) fifty-minute sessions (approximately 55 hours and 48 minutes) of organizational support for services not delivered in 9 th grade; ( see Decision p. 24, paragraph 4), eleven (11) 50-minute sessions (approximately 9 ½ hours) of organizational support for services missed from August 30, 2005 until October 14, 2005; ( see Decision p. 24 final paragraph) and forty (40) 50-minute sessions (33 hours and twenty minutes) of pull-out multisensory writing instruction; see Decision p. 28.10 This Hearing Officer also found that Everett’s proposed IEP, with minor clarifications, provided Henry with a FAPE in the LRE and that Henry does not require an out of district program because Everett is able to implement the program and compensatory services Henry requires; see Decision p.29-30.
That proposed IEP called for Henry’s regular education English, History and Science teachers to have consultation from a special education teacher to address written expression, and organizational and study skills. That IEP also provided a number of accommodations and specially designed instruction including, but not limited to modeling, demonstration, cuing and prompting, preferential seating, use of a planner, notebook, graphic organizers and outlines to assist in organization, encouragement of verbal responses, books on tape and time extensions for written assignments, use of Kurzweil for written assignments and home to school logs.
The proposed plan also calls for Henry to receive additional services through the day and in the summer to address writing and spelling (S16). This Hearing Officer found all of these portions of the IEP to be appropriate; see Decision p.29-30.
The proposed IEP also called for Henry to receive two periods of supportive help per six-day cycle to address spelling, writing and organization. The Hearing Officer also found that two periods (per six day cycle) of instruction in spelling, writing and organization that were proposed and outlined in the goals and objectives were appropriate, but because Everett uses the term “supportive help” to mean assistance with homework, the IEP grid should clarify that the pull-out services will be used to teach Henry study skills including outlining, note taking and other study skills as well as teaching of spelling rules and writing (as the IEP indicates in other sections and as recommended by Ms. Bloom); see Decision p.29. Ms. Bloom’s recommendations were for Henry to receive a systematic and consistent approach to organization from each of his teachers; that Henry have a master notebook system that includes a section for homework, a section for tasks Henry is currently working on and a section for long term assignments that would include graphic organizers, graphs and other materials needed for Henry to complete the assignment; that each of Henry’s academic teachers would verbally cue Henry to take out his homework, cue him to pass the homework in, verbally telling Henry the assignment that is due for the following day and check to see if Henry has written the assignment down correctly. Ms. Bloom also recommended that long-term assignments be broken down and assigned in parts with, for example, a deadline for writing a thesis statement, followed by a deadline for filling in a graphic organizer, followed by deadlines for outlines, first drafts, revisions and a final deadline for a completed product; see Decision p. 20.
On September 20, 2006 Mother sent this Hearing Officer correspondence indicating that Everett was not compliant with the BSEA order (decision) and requested that the BSEA consider an outside placement such as Landmark; see (P1). The Hearing Officer treated Mother’s correspondence as a request for a compliance hearing, and ordered the Parties to issue a status report after the Parties participated in an already scheduled meeting on October 3, 2006.11 On October 4, 2006 Mother sent a status report that indicted that the meeting on October 3, 2006 was a good and honest discussion but requested that the matter remain open until Mother had time to review the written IEP. Mother’s request was granted and the Parties were directed to issue a status report on October 16, 2006. On October 16, 2006 Mother indicated that she was dissatisfied with the IEP, and felt that Everett was out of compliance with the Hearing Officer’s decision but requested additional time to file an additional status report after her advocate reviewed the IEP.12 Everett also requested additional time to respond to Mother. The requests were granted on October 17, 200613 and both Parties were ordered to provide updated status reports with dates of availability for a compliance hearing if the matter remained unresolved. Everett was also ordered to include a copy of the IEP that it believed conformed to the decision and the schedule of service to Henry, including a schedule of compensatory services. Everett issued its schedule for compensatory services on October 30, 2006 and the IEP on November 9, 2006.14 The Narrative Description of the School District proposal (hereafter the N1) indicated that Henry would receive compensatory language arts/writing services from 7:15 a.m. to 7:45 a.m., four days per week. The N1 and the IEP also indicated that Everett would provide supportive help for five 45-minute periods in a six day cycle to work on written expression, spelling and organizational skills (Goals 1-3). The IEP also contained consultation between the special education teacher and Henry’s science, social studies and language arts teachers. The IEP also included Mother’s vision statement, corrected the dates for delivery of pull-out services and deleted information regarding Henry liking karate and engineering which Mother believed was incorrect; See (S18). On November 16, 2006 this Hearing Officer determined that Everett had provided a compensatory services plan, that the IEP provided the minor clarifications reflected in the decision, and that the five periods of supportive help provided in the IEP exceeded the two periods of organizational assistance per cycle that the Hearing Officer determined to provide Henry with a FAPE.15 However Mother was still entitled to a hearing regarding whether Everett was delivering the compensatory services and the services contained in the IEP; see Order November 16, 2006. A compliance hearing was set for December 7, 2007 and on November 21, 2006, was continued until December 18, 2006.16
STATEMENT OF THE EVIDENCE
1. Henry is a quiet and polite sixteen-year-old junior. Henry continues to be interested in art and wants to go to college or art school when he graduates (Henry). Henry attends the Everett High School and receives services pursuant to an IEP to address organizational and writing deficits; see (S18). The IEP calls for Henry to receive five 45-minute sessions per week of supportive help to provide instruction in organization, spelling and writing (S18). The IEP also provides for several accommodations in Henry’s regular education classes including: clear and explicit written, oral and visual directions which include visual, auditory and tactile prompts, modeling and demonstration; graphic organizers; semantic maps/webbing for reading comprehension and written language; word banks for spelling, preferential seating; use of a planner to keep track of assignments, use of a loose leaf notebook for content subjects and development of a process for checking that the notebooks are being maintained; breaking down long term assignments; cueing and prompting; graphic organizers; encouragement of verbal responses as appropriate; time extension for written assignments and the use of Kurzweil for written assignments, improving spelling, punctuation, and writing skills and increasing class productivity (S19). In addition the IEP calls for consultation from the special education teacher to the English and social studies teachers for one 45 minute period per cycle and consultation to the science teacher for one thirty minute period per cycle; Id. Mr. Barbiti is responsible for providing the special education services in the IEP (Barbiti). Ms. Senia provides the compensatory specialized instruction in language arts four days per week before school from 7:15 a.m. to 8:00 a.m. (Senia).
2. The decision on this matter was issued on July 20, 2006.17 Mother and Ms. Kelly began corresponding on or about August 1, 2006 (P22). Everett scheduled a meeting for August 17, 2006 to discuss scheduling of services. Mother felt that this should not occur until a TEAM meeting occurred (P22). Henry began his junior year at the Everett High School on or about August 29, 2006; see (P2). The TEAM met on September 6, 2006 to discuss the clarifications to the IEP and to begin to develop a compensatory services schedule (P3). Mother partially rejected the IEP and the TEAM met again on October 3, 2007 to try to resolve the matter.18 The TEAM met again on October 3, 2006 to discuss Mother’s partial rejection of the IEP and added services to the IEP. Mother also expressed her concerns that although Henry had a 3 ring binder broken down by subject, that he does not put down the assignments in his planner and had no back up system when he lost his notebook. At that time Henry was missing four out of 16 homework assignments in algebra and three homework assignments in English.19 Everett offered to have Henry’s former tutor, Ms. Bloom, work with Henry to help him with getting his work done (P4, Kelly). Mother turned down the offer because Henry did not want to see Ms. Bloom. Therefore the TEAM offered to have Mr. Barbiti meet Henry at the end of the day to escort him to the appropriate after school teacher’s make up sessions and coordinate with those teachers regarding any assignments or tests that needed to be made up (P4). The TEAM agreed to meet again during the second week of November 2006, after the progress reports were issued to review Henry’s progress (P4).
3. Ms. Senia began providing the compensatory education services on September 26, 2006 (Senia). On October 12, 2006 Mother told the High School principal (Dr. Stella) that she was concerned that Mr. Barbiti had not given Henry back his notebook and that she did not believe that Ms. Senia was providing appropriate services because Henry had told her that he was doing the same old thing in tutoring and had not used the computer (P14).20 Mother also emailed Dr. Stella a copy of her log that led her to the conclusion that she did not feel that Everett has been implementing the services because when she has asked Henry he has told her that Mr. Barbiti often does nothing with him or does not work with him during the whole 45-minute period, nor does Henry feel that Mr. Barbiti has helped him stay organized; see (P2, P14).
4. On October 30, 2006 Mother sent Dr. Stella another email telling him that she did not feel that Everett was complying with his IEP. Mother told Dr. Stella that she did not feel that Henry was receiving adequate assistance in spelling, writing and organization in the supportive help session and that there did not appear to be any follow through with consultation between Mr. Barbiti and Henry’s regular education teachers. Mother was also concerned that Everett had not implemented the Master Notebook system that Mother had sent information to the school about on September 11, 2006, nor was there any organizational system in place; see (P17, P8). Mother also informed Dr. Stella that she believed that Mr. Barbiti was not following through with the after school contact with Henry’s regular education teachers and that Henry was not receiving the Kurzweil spelling program promised. Mother told Dr. Stella that she did not feel comfortable approaching Mr. Barbiti about these issues (P17).
5. On November 14, 2006 Everett issued a progress report. Mr. Barbiti reported that Henry would often come to support without his planner or notebook because he left them at home but that he is able to complete almost all of his tests and quizzes in class and was able to complete most of his work in support time. Henry also used his time with Ms. Senia to work on writing including putting his ideas on paper and revising and editing his work (S16, see also Senia). Henry’s first quarter grades show that he is making effective progress in class (Barbiti, S16, see also Sullivan, Fineran, McFadden, Dailey).
6. The TEAM convened on November 14, 2006 for about two hours to review Henry’s progress; see (P2, P19, S20). Henry’s history teacher Mr. Dailey reported that Henry participated in class and after school sessions twice a week was ready with an answer when asked a question; however organization was an issue therefore he had an extra text and extra paper available for Henry to use (P19, see also Dailey). Henry’s chemistry teacher Mr. Sullivan reported that Henry’s lab skills were good, that he was good at problem solving and multiple choice testing and had good class participation. He also noted that Henry had organization issues and at times needs paper and pens for class. Henry is however getting his homework done because he is given time to do so in class or work in his sessions after school, Mr. Sullivan has also talked to Mr. Barbiti about organization issues; see (P19, Sullivan). Henry’s math teacher, Ms. McFadden, reported that Henry was receiving a “C” in Algebra II because he had not produced his notebook on two occasions and had at the time of the meeting six missing homework assignments. However Henry understands the content, receiving an 87 on both tests. Henry also often explains math to other students (P19, McFadden). Henry’s English teacher reported that Henry required frequent prompting and cueing in class but that he had great writing ideas. However, Henry had not come in with his reading assignment that week, and often does not have pens or paper requiring him to borrow from others. His daily vocabulary assignments cannot always be done because Henry does not always have his notebook. Henry was doing well in his writing and spelling sessions with Ms. Senia. Ms. Senia reported that she has used Wilson with Henry and has also started an assignment with Henry using Kurzweil. Henry however is not always prepared and has at times missed classes that had to be rescheduled and is late for some classes (P19, see also Senia). Mother expressed concern about Henry’s lack of organization. Mother’s advocate also felt that while Henry was given time to catch up on his work he was not learning any self-sufficiency or strategies to help him become organized. Mother also told the TEAM that she did not believe that Mr. Barbiti was giving Henry the services in his IEP because she had kept a log of Henry’s comments and that Henry did not spend the whole time in supportive help on reading, writing and organization; see (P19). Mother was upset that Dr. Stella went to get Henry and have him attend the last fifteen minutes of the meeting feeling that Henry would be uncomfortable addressing Mr. Barbiti about Mother’s concern that Henry did not spend the whole time in supportive help doing his work (P2, P19). Henry was able to answer Mother’s questions about what he did in supportive help.
7. A compliance hearing occurred on December 18, 2006. Henry explained that every day when he gets home from school Mother asks him what he did with Ms. Senia, what kind of work he does with Ms. Senia, if either he or Ms. Senia was late to the sessions. Mother also asks what Henry does with Mr. Barbiti at the end of the day (Henry). Henry does not really remember everything he told Mother but Mother wrote down everything Henry told her in a log; see (P2, Henry). The log indicates that Mr. Barbiti introduced himself on September 6, 2006 but did not do anything with him, that he has worked on drafts with Henry and homework, spelling and writing, and checked his binder but that there were some days (i.e., September 8, 2006, October 4, 2006, October 10, 2006, October 13, 2006, October 19, 2006, October 26, 2006) that Henry felt that he did nothing with him because he was working with another student; that there were other days (i.e., October 23, 2006, October 30, 2006) that Henry was able to leave the session because he had finished everything that was assigned; that there were three occasions that Henry did not receive supportive help because Mr. Barbiti had MCAS duty; that there were two other after sessions that were missed.21 The log also indicates and Henry believes that Mr. Barbiti does not work with him for the entire 45-minute period because he is sometimes also helping other students or Henry is using the time to complete assignments; (Henry, Barbiti, see P2).
8. Henry does spelling and writing with Mr. Barbiti but does not feel that Mr. Barbiti has been helping him with his organization because he has never worked with him on study skills such as note taking or outlining. Although Mr. Barbiti has emptied Henry’s backpack Henry, Mr. Barbiti does not go over what is in the notebook and Henry does not know what Mr. Barbiti is doing when he takes his binders or empties his backpack to look at it (Henry). Neither Mr. Barbiti nor Henry’s teachers (other than math)22 check Henry’s notebooks to make sure Henry had everything he needed or require Henry to file loose papers into his notebooks or binders (Henry, see also Barbiti, Dailey, McFadden, Sullivan). Henry has lost three binders so far this year and has lost his planner (Henry). Henry does not like to use a planner and would not unless required to, look at it (Henry). He would prefer to write any notes he has to on his left arm because it works better for him and he usually remembers when his long term assignments are due and even if he is surprised because he doesn’t remember that a test was to occur usually does well because he knows the material (Henry). Henry does not often take notes in his science class and has lost many of his science notebooks. The science teacher however gives Henry a study packet with a bunch of notes in it before each test (Henry). Henry does not often take notes in English or algebra because he can remember the material (Henry). Henry has a history book and a math book, a three-ring binder required for history and spiral notebook that contains his math that his math teacher checks, on his kitchen table. Henry sometimes forgets to put his things in his backpack to take to school. He has also at times forgotten a pen or pencil or paper in class and has to take one from the teacher’s stash or from a neighbor and there was one week in November when Henry was arriving to his English class without his novel (Henry, see also Dailey, Fineran, S15, McFadden, Sullivan). This has not however happened recently (Henry, Fineran, Dailey, McFadden, Sullivan).
9. When Henry was at Landmark during the summer he took a course in organization where the teacher showed the students all sorts of ways to take notes, such as column notes (where Henry would put the main idea in one column and the details in another column or margin notes) (Henry, see also P26). At Landmark Henry was required to keep a three ring binder that was divided into different subjects and most of his papers that he had to put into his binder were hole punched. Henry also had a planner in his organization class (Henry). Henry sometimes would not bring the 3 ring binder to class or would lose papers that were required to go into the binder or not have them hole punched if they weren’t already punched (Henry). However, Henry never lost his notebook at Landmark because he forgot it in the dorm instead of in the High School cafeteria (Henry). Henry wrote things down in his planner because the organization teacher required him to do so but never looked at it (Henry). Henry did not believe that his academic teachers at Landmark checked to see if he had his notebook but if Henry had his binder and loose papers the organization teacher would get a three-hole puncher and help Henry get things in order but almost everything he got from Landmark was already hole punched (Henry).23 Henry knows that Mother wants him to go to Landmark during the school year but he does not really want to (Henry). Henry knows however that if he went to Landmark he would not be able to miss any work, everything would get done and that he would get help with organization and study skills (Henry).
10. At Everett Henry is able to complete his homework after school (Henry). Everett agreed that Mr. Barbiti was to walk with Henry to ensure that he goes for after school help. Most of the time Mr. Barbiti does not walk with Henry but does pop in to see if he is there and talk to the teachers (Barbiti, Henry). He is not there all the time; Id. Henry is able to get to most of the after school sessions but has missed some on occasion because he is able to get his work done during the school day. Henry can if he has questions ask for help from his teachers but usually doesn’t because he understands what he needs to do; see (Henry).
11. Mr. Barbiti24 also testified at hearing. He feels that he has been complying with Henry’s IEP (Barbiti). Mr. Barbiti works with Henry and about two to four other students in a supportive help classroom during 7 th period (Barbiti, see also Henry). Supportive help at Everett High School is designed to support students in the content areas of their work (Barbiti). In supportive help Mr. Barbiti may help a student with homework, work on organization or allow students to take a test or finish their work (Barbiti). At the beginning of the year Henry had supportive help with Mr. Barbiti for three days in a six-day cycle. Supportive help was dropped to two days on or about September 18, 2006 due to a misunderstanding on Mr. Barbiti’s part but was reinstated the next day (Barbiti, see also P9). On October 3, 2006 supportive help was increased to five days per six day cycle and that Mr. Barbiti would work on noncontent based spelling and writing and organization with Henry during those supportive help sessions (Barbiti). The amount of time devoted to each subject would be at Mr. Barbiti’s discretion (Barbiti, see also P4). Mr. Barbiti’s understanding was that the other three sessions were compensatory services (Barbiti). On October 3, 2006 Mr. Barbiti also agreed that he would escort Henry down to his after school sessions to ensure he arrived for extra help (Barbiti). Mr. Barbiti and Henry did not walk side by side to these sessions. Often Mr. Barbiti would arrive after Henry was in the classroom to make sure that he was there and would talk to the teacher if needed (Barbiti). Mr. Barbiti also talked to Henry’s teachers at least twice a week during or before the school day and/or communicates through interoffice mail and memos; however there has been no formal consultation time set (Barbiti, see also Fineran, Dailey, McFadden, Sullivan).
12. Mr. Barbiti provides Henry with instruction in spelling using the Wilson program. He also provides writing instruction using a ten step writing process and works with Henry on dictation, capitalization, punctuation and editing his work (Barbiti, see S14, S1). This instruction does not last for the whole 45-minute period because Henry must also get caught up with his work (Barbiti). Mr. Barbiti’s responsibility for providing Henry with services to address organization include making sure that Henry is caught up with his work; that he has all his assignments in; that he is prepared for tests and quizzes; that his backpack is neat and organized without a lot of extraneous material that is not useful and will just clutter his bag and to ensure that Henry is making effective progress academically (Barbiti). Mr. Barbiti put together a 3-ring binder with Henry at the beginning of the year (Barbiti, Henry). Henry lost the 3-ring binder. Mr. Barbiti and Henry put together another 3-ring binder that was also lost (Barbiti, Henry). Henry also told Mr. Barbiti that he lost his planner and that he did not want another one (Barbiti, see also Henry). Mr. Barbiti has also offered Henry spiral notebooks to use but Henry does not want to use them (Barbiti). He also has periodically checked Henry’s backpack (once a week) to see that things are in order (Barbiti). Henry however may not know what Mr. Barbiti is doing when he checks his backpack; see (Henry, Barbiti). Henry’s backpack contains a 3-ring binder for history and a spiral notebook for math; however things are not always in order and may contain loose papers that don’t belong or may be a week or two old (Barbiti). Mr. Barbiti explained that with other students there has been a check between school and home where the planner goes home, the parent signs the planner and makes sure that it is placed in the backpack the following day. Then the teacher signs the planner saying that he received it. This system was not done with Henry because he did not want the planner and Mr. Barbiti does not know how to force Henry to use the notebooks or if it is his place to provide consequences for not using an organization system because there are no grades in a supportive help class (Barbiti). Mr. Barbiti does provide home to school communication through weekly calls to Mother and tells her what issues need to be addressed; see (Barbiti, Mother, S1). Mr. Barbiti believes that he is providing organization throughout the day through his consultation with the teachers so that he knows and Henry knows what needs to be done and when it is due (Barbiti). Mr. Barbiti has not however talked with the teachers about having a coordinated system such as a binder or a planner and a check off list (Barbiti). He does not provide direct instruction in note taking, outlining or time management; see (Barbiti).
13. Ms. Senia was hired to provide compensatory writing and spelling services to Henry four times a week from 7:15 a.m. to 7:45 a.m. (Senia, Kelly). There have been six make up sessions scheduled; two because of Monday holidays, and at least two because Ms. Senia was delayed due to traffic on I-93 South and at least one session where Henry was ill.25 Ms. Senia has sent notes home scheduling make up sessions for Friday mornings26 but Henry has not attended most of the makeup sessions because he has forgotten about them despite verbal reminders and notes to Mother (Senia). Henry was however able to come to one Friday makeup session when a call was placed to Mother (Senia). Ms. Senia believes that if Henry was required to keep a planner she could require Henry to write down his work for her and any changes in schedule and cue him to look at the planner during her sessions with him. When Ms. Senia has taught organization she has developed a checklist with the student and/or teachers about what needs to be done or materials needed and coordinates this with a planner or notes that would be brought home and signed by the parents; see (Senia). Ms. Senia does not do this type of organization with Henry but does work with Henry on organizing his writing using such techniques as graphic organizers, templates, brainstorming and story webbing (Senia, see also S3, S9, S13). Ms. Senia has also worked with Henry on paragraph structure, developing a main idea and expanding language and details, reading comprehension, spelling (i.e., the silent e rule and the doubling rule), word building, punctuation and adding interest to his writing (Senia). Ms. Senia also used Kurzweil for some of the writing assignments (Senia). Kurzweil27 is a good tool to use when there is a content based assignment because once the content is put in (i.e. scanned/typed) the content is read out loud and highlighted as it is being read; see (Senia). However, Kurzweil is only one tool and is not appropriate for use for all assignments and when used is more effective once the student has brainstormed and started to develop the writing (Senia). Ms. Senia also uses the LINX program, the “Spell Bound” spelling remediation workbook, the Warner writing program and other texts or handouts (Senia, see S3-13).
14. Henry’s academic teachers also explained about the services they provided to Henry. All his academic teachers have read Henry’s IEP and are aware that Henry needs accommodations in the regular education classroom to address his difficulties with organization and writing and have spoken to Mr. Barbiti about Henry’s accommodations. (McFadden, Sullivan, Fineran, Dailey) Some have also spoken to Ms. Senia about Henry (Sullivan, Barbiti).
15. In math Henry has preferential seating sitting in the front with no students in front of him. When needed Ms. McFadden28 refocuses Henry by calling his name and checking on him to see what he is doing and what work he has done while in class (McFadden). She gives visual, auditory and tactile instruction to the entire class and uses graphic organizers when needed. Ms. McFadden also gives Henry paper and a pencil if needed. This usually happens twice a week (McFadden). Math homework is written on the board. Ms. McFadden hasn’t had to modify Henry’s homework because he has been able to get all his assignments done and understands the material. Henry also comes to her after school sessions to complete work and Mr. Barbiti has checked with her to see that Henry has done it (McFadden). Ms. McFadden also walks around the class and if she sees that Henry is not writing down notes, including homework assignments, visually points to the notebook. This however is not done every day (McFadden). Ms. McFadden would however, if required, provide a daily check to see that Henry’s homework was written in his notebook or planner and has done so for other students (McFadden). Henry is receiving a B- in math but could probably get a high B if more organized (McFadden).
16. In chemistry Henry’s teacher, Mr. Sullivan29 , also provides preferential seating for Henry and keeps him organized by providing him with a summary of his notes. Mr. Sullivan also provides Henry with paper30 when needed (a couple of times per week). He refocuses Henry by verbally cueing him to begin his work and using multisensory teaching such as demonstration and lab work (Sullivan). Mr. Sullivan also consults with Ms. Senia, who incorporates chemistry vocabulary into her lessons, and talks regularly with Mr. Barbiti about the occasional homework assignment that might be due or past due or upcoming tests (Sullivan). Mr. Sullivan also consults with Mr. Barbiti when he checks in to see if Henry is at his after school sessions once per week (Sullivan, Barbiti). Henry is able to make up any homework assignments after school and is not penalized for spelling errors (Sullivan). Homework is written on the board. Mr. Sullivan however does not always check to see if Henry writes down the homework assignments in a notebook or a planner but would do so if required (Sullivan). Henry participates in class and his work shows that he understands the material (Sullivan).
17. Henry’s English teacher, Mr. Fineran31 , also provides accommodations to Henry (Fineran). He keeps Henry organized by having homework and upcoming assignments written on the board, vocabulary words and grammar to be used in class on a separate section of the board and questions to be covered that day on a separate board. He also uses graphic organizers in class (Fineran). Mr. Fineran verbally prompts Henry to take out his notebook and write down the vocabulary words. He is able to comply when prompted. Henry usually brings a pen or pencil to class but has access to extras when he forgets and usually borrows from his classmates who sit nearby (Fineran). Mr. Fineran speaks to Mr. Barbiti when Henry comes down for his weekly after school session and also talks to him at other times and provides copies of homework assignments if they are missing (Fineran). Henry currently has no missing assignments; however there was a period in early November 2006 when Henry was late with two assignments. Mr. Fineran wrote a letter to Mr. Barbiti and the assignments have been made up (Fineran, see also S15). Henry would benefit from having a three ring binder in his class (Fineran). Currently students are not required to have one. However, Henry does appear to understand the material because he answers questions correctly in class, also volunteers answers and produces appropriate work (Fineran, see S17, S22). Henry’s writing shows that he expresses his ideas clearly. Spelling remains an issue however he is not penalized for spelling mistakes (Fineran). Since November 14, 2006 Henry has shown up with his book every day (Fineran). Henry was at the time of the hearing receiving a B- in the class but could have received a higher grade if his assignments were on time (Fineran). Henry would benefit from having a three ring binder. If Henry were required to have a three ring binder Mr. Fineran would ask to see the binder to ensure that Henry had it, which would make it easier to see if Henry was writing down the notes (Fineran). Mr. Fineran would also check to see if Henry had his notebook at the end of the class session; Id.
18. Mr. Dailey32 taught Henry for Honors history during his sophomore year and teaches Henry Honors history this year as well (Dailey). Mr. Dailey provides Henry with preferential seating, does not penalize Henry for his spelling, uses word banks and graphic organizers, allows Henry extra time on tests and provides cueing and prompting to keep him on task (Dailey). Henry usually has his materials for History but if he ever came to class without a book or pencil one would be provided for him (Dailey). At the time of the hearing Henry had two late assignments. Henry is informed of the assignments missing and is allowed time to make up the assignments in the after school sessions (Daily). Mr. Dailey also consults with Mr. Barbiti daily (Dailey, see S15). He also requires a 3-ring notebook in his class and Henry like the other students is subject to a quarterly notebook check (Daily). Henry’s notebook contains all the assignments (Daily). However this is Henry’s second notebook because he lost the first one approximately four to five weeks into the first quarter. Mr. Daily agrees that Henry would benefit from a daily notebook check and is willing to do it. Henry currently participates in history class and is able to relay the right answer. He seems to enjoy the class (Dailey).
19. Everett believes that it has provided Henry with the writing and spelling instruction specified in the decision (Kelly). Ms. Senia is providing compensatory services in writing and spelling four mornings a week before school. Mr. Barbiti is providing two sessions of instruction per cycle (i.e. spelling instruction from the Wilson spelling program) pursuant to Henry’s IEP and an extra three hours of compensatory instruction in a session that allows Henry to learn skills and catch up on work that he has missed (Kelly). Everett told Mother verbally about these services and also sent her an N-1 form after the October 3, 2006 meeting explaining this schedule (Kelly, see S18). Everett also has instructors, such as Ms. Senia, that could provide this instruction or an instructor could be hired if an appropriate teacher is not available during the 6 th period where Henry would most benefit from the instruction without disrupting his schedule (Kelly). Henry requires an organizational plan that would be coordinated with home and school and that would incorporate incentives and have some meat and consequences for not using the system. This behavior plan should be developed with Henry. This has been offered and turned down by Mother (Kelly). Everett has also offered and is still willing to have an outside provider provide organization instruction with consultation to Henry’s teachers however Mother has refused this service. Everett has also offered an additional set of books for Henry to use at home but Mother did not want this (Kelly).
FINDINGS AND CONCLUSIONS
Everett has been mandated, pursuant to this Hearing Officer’s July 20, 2006 decision to provide 98 hours and 20 minutes of compensatory services. Thirty-three hours and twenty minutes of this compensatory education consists of pull-out multi-sensory writing instruction. The other 55 hours of compensatory education consists of organizational support; see Decision, July 20, 2006 p. 24, 28. This Hearing Officer also found that an appropriate prospective IEP for Henry should include consultation to Henry’s regular education English, History and Science teachers to address written expression, and organizational and study skills; the accommodations and specially designed instruction proposed by Everett such as modeling, demonstration, cuing and prompting, preferential seating, use of a planner, notebook, graphic organizers and outlines to assist in organization, encouragement of verbal responses, books on tape and time extensions for written assignments, use of Kurzweil for written assignments and home to school logs; and two sessions per six day cycle of pull-out services to address writing, spelling and organization; see Decision p. 29-30. The Hearing Officer further clarified that services in organization should include instruction in outlining, note taking and other study skills as recommended by Henry’s former tutor Ms. Bloom as well as assistance in homework completion. Ms. Bloom’s recommendations were for Henry to receive a systematic and consistent approach to organization from each of his teachers; that Henry have a master notebook system that includes a section for homework, a section for tasks Henry is currently working on and a section for long term assignments that would include graphic organizers, graphs and other materials needed for Henry to complete the assignment; that each of Henry’s academic teachers would verbally cue Henry to take out his homework, cue him to pass the homework in, verbally telling Henry the assignment that is due for the following day and check to see if Henry has written the assignment down correctly. Ms. Bloom also recommended that long-term assignments be broken down and assigned in parts with, for example, a deadline for writing a thesis statement, followed by a deadline for filling in a graphic organizer, followed by deadlines for outlines, first drafts, revisions and a final deadline for a completed product; see Decision p. 20.
After consideration of the documentary evidence and testimony in this matter, this Hearing Officer finds that Everett is implementing all of the multisensory writing instruction mandated in the decision as well as some of the organizational services. Henry is to receive pursuant to his IEP two sessions per six day cycle of pull-out services to address writing, spelling and organization; see Decision p. 29-30. Each session is approximately 45 minutes. Therefore Henry is to receive pursuant to his IEP 15 minutes per session of writing instruction, 15 minutes of spelling instruction and 15 minutes of organization per session (or 30 minutes per cycle of each service). Everett has the discretion regarding how to implement these services in order to meet Henry’s needs. Therefore if Henry requires a full session of spelling instruction in one session and the next session receives 25 minutes of writing support and 20 minutes of organization, Everett may do so as long as by the end of the IEP period Everett is providing the recommended services in each area so that Henry may meet his goals and objectives. The decision also calls for 33 hours and 20 minutes of compensatory education for spelling and writing instruction and 55 hours of compensatory education for organization. Everett needed to begin implementing those compensatory services as soon as practicable at the beginning of the 06-07 school year but it is not expected that implementation will be completed. The Hearing Officer stated in the decision that “Everett can choose to spread this time for extra sessions during the school day and/or before or after school, in the summer or continue a portion of these services into Henry’s senior year”; Decision p. 29. As long as appropriate services are implemented at a reasonable rate to allow completion, Everett will be deemed to have complied with the decision.
The evidence shows that Everett is complying with its obligation to provide Henry with the sixty minutes of spelling and writing instruction per cycle pursuant to his IEP as well as the compensatory services and the consultation in language arts as required in his IEP33 . Henry receives thirty minutes of spelling and writing instruction from Ms. Senia four days per week (two hours per week). The evidence shows that Ms. Senia is a certified special education teacher with extensive experience in teaching language arts and Ms. Senia’s testimony as well as Henry’s work samples and Henry’s testimony show that she is providing this service. Ms. Senia is also providing some of the organization Henry needs in order to complete his writing. Mother feels that the instruction is not appropriate because Ms. Senia has not used Kurzweil for most of the instruction and did not use it until November 2006. However, Ms. Senia was credible that she had Kurzweil available for her to use before she began working with Henry at the end of September 2006; that Kurzweil is not appropriate for use for all assignments and that she has used it for assignments where it was appropriate. Henry’s work samples corroborate Ms. Senia’s testimony that Henry is receiving appropriate instruction and grasping the material presented.
Ms. Senia’s testimony is also credible that she provides consultation to Henry’s chemistry teacher directly and to Mr. Barbiti who has provided this consultation and additional consultation to all of Henry’s academic teachers; see (Senia, Barbiti, Sullivan, Fineran, McFadden). Mr. Barbiti and the teachers were also credible that Mr. Barbiti has provided and the teachers (including the math teacher) have received consultation in the accommodations that Henry requires. Mother asserts that this consultation is not being properly implemented because the consultation is informal. However, each of the teachers could spontaneously tell the Hearing Officer what accommodations Henry requires and how they were implementing these accommodations in the classroom. As such, this Hearing Officer finds that Everett has implemented this consultation.34
The evidence also shows that Mr. Barbiti is also providing some additional spelling and writing instruction and some organization during Henry’s 7 th period. Henry currently has supportive help with Mr. Barbiti five days a week. Mother asserts and the record shows that Mr. Barbiti does not work on reading, writing and organization with Henry during the entire 45 minute period for five times per cycle. However the evidence shows that Mr. Barbiti is providing Henry with instruction in spelling using the Wilson program. He also provides writing instruction using a ten step writing process and works with Henry on dictation, capitalization, punctuation and editing his work (Barbiti, see S14, S1). This instruction does not last for the whole 45-minute period because Henry must have all his assignments completed and be prepared for tests. This is an appropriate accommodation for Henry to address his organizational deficits and not penalize him for his disability. Mother asserts that Mr. Barbiti is not qualified to teach spelling and writing because he is not Wilson certified. However, there was no evidence presented that Henry requires a strict Wilson program. Mr. Barbiti is a licensed special education teacher who has taught language arts. Henry’s work samples show that he is grasping the instruction.35
However, the decision also calls for Henry to receive, as part of his IEP services two days per cycle (approximately 30 minutes per 6 day cycle) and part of his 55 hours of compensatory organizational support, instruction in organization such as note taking and outlining and use of a system that includes a systematic and consistent approach to organization from each of his teachers, that helps Henry organize his homework assignments and when they are due as well as when long term assignments and other tasks (such as tests and quizzes) are due. The decision also indicated that the system should also include a way for Henry to organize the papers he needs for his work along with graphic organizers, graphs and other materials36 and that the organizational system be coordinated between Henry and his academic teachers with teachers cueing Henry to take out his homework, cueing him to pass in homework, verbally telling Henry when homework is due and checking to see if Henry is writing the assignment down correctly. The decision also indicated that long-term assignments be broken down and assigned in parts with, for example, a deadline for writing a thesis statement, followed by a deadline for filling in a graphic organizer, followed by deadlines for outlines, first drafts, revisions and a final deadline for a completed product; see Decision p. 20. The decision also calls for part of the consultation from special education to Henry’s regular education English and social studies teachers for 45 minutes per cycle and to his science teacher for thirty minutes per cycle regarding services to address organization.
The evidence shows that the organization system has only been partially implemented. Mr. Barbiti has been meeting with Henry’s academic teachers informally and in they’re after school sessions to talk about what work Henry needs to complete and coordinates with Henry and his teachers regarding when assignments are due. Henry’s teachers have been cueing Henry about when homework is due and some, like the social studies and math teachers, check Henry’s notebook; however this is not done consistently. Mr. Barbiti has also attempted to give Henry replacement binders and planners and has attempted to take extraneous material out of Henry’s notebook however this has not been effective because Henry does not want to use a planner, has indicated that he won’t look at it, has lost notebooks and does not know what Mr. Barbiti is doing when he empties Henry’s backpack. However, the evidence also shows that there currently is no consistent and systematic system for organization nor is there currently instruction in organization including note taking and outlining.
Everett agrees Henry requires an organizational plan that would be developed with Henry’s input that would be coordinated with home and school and that would incorporate incentives and have some consequences for not using the system (Kelly, see also Senia). However Everett asserts that it should be excused from providing this service because this plan has been offered and turned down by Mother and that Everett has also offered that Henry’s former tutor implement services and Mother also rejected this. Everett feels that any organization system would not be effective because Mother does not want Henry to remain in Everett. However, Everett has been mandated through a decision to provide an organizational system and does not require Mother’s consent. Everett must begin to provide Henry with instruction in organization37 and will meet with Henry to develop an organizational plan with a checklist that will be signed off by Henry (and Mother if appropriate). Once Everett designates an instructor to provide organization instruction and an organization system is developed, Everett will provide training to Henry’s academic teachers in this method. Everett will provide a status report no later than March 16, 2006 that contains the name of the instructor and a written system for organization. In the event that Mother does bar Everett from implementing the organizational system Everett will be excused from performance and will be deemed to have fulfilled its obligation pursuant to the original decision in this matter. Once this report is received Everett will have completely fulfilled their obligation under the July 2006 decision.38
By the Hearing Officer,
Joan D. Beron
Date: February 15, 2007
Henry is a pseudonym used for confidentiality and classification purposes in publicly available documents.
A July 20, 2006 decision was issued in this matter finding that Everett should have found Henry to continue to be eligible for special education services. Everett was ordered to deliver compensatory services to Henry; however, Mother’s request for placement at Landmark was denied. Mother appealed the decision to federal Court in October 2006. Mother also filed correspondence with the Hearing Officer indicating that Everett had not complied with the July 20, 2006 decision. The correspondence was treated as a request for a compliance hearing. This decision will deal only with whether Everett has complied with the Hearing Officer’s decision and if not, what the appropriate remedy should be for lack of compliance. Issues regarding the original hearing request will not be addressed in this decision.
Mother originally requested three weeks after receipt of the transcript to write a written closing argument. The transcript was to arrive on January 8, 2007. On January 10, 2007 Mother asked for an extension until February 6, 2007 because the transcript was not received as it had arrived at the BSEA that day. The extension was granted. On January 26, 2007 Mother asked that the closing arguments be due on the original date of January 29, 2007. That request was also granted. Mother’s argument arrived on January 30, 2007; however it was accepted and considered by the Hearing Officer.
Mother’s pretrial motion to sequester witnesses during Henry’s testimony was granted in part on December 11, 2006, and at hearing Henry testified in the presence of only Mother, Everett’s Counsel and the Hearing Officer. Although Mother asserted that Henry would be nervous and reluctant to testify in front of other people, at hearing Henry did not appear nervous sitting in the room with his teachers and while testifying was quiet but appeared very comfortable. At hearing Mother moved to sequester all the witnesses. Mother’s motion was not timely nor did Mother provide an adequate basis for her objection. As such that motion was denied.
Mother’s fifth motion to recuse the Hearing Officer was denied. Mother’s filing of an appeal of the decision does not in itself provide adequate rationale for recusal. Mother was provided with a detailed ruling regarding this issue on December 11, 2006.
Everett’s objections to Parent’s exhibits 5-7, P16, P25 and P28 were allowed because these exhibits were not relevant to the issue regarding whether Everett complied with the Hearing Officer’s decision. Mother objected to S16 (Henry’s progress report) because it was not signed and dated. The objection was overruled. Mother also requested several clarifications to exhibits so that the caption on the exhibit sheet would more accurately reflect what was in the exhibit. Everett provided those clarifications at hearing.
Mother received a copy of the transcript but asserts that she did not receive a diskette of the transcription. Mother was at hearing directed to contact Catougno Court Reporting for a copy for a nominal fee. This option is still available to Mother.
Mother asserts that the tape does not work. The Hearing Officer was not aware of this problem until she received Mother’s written closing argument. If Mother would like another copy of the tapes, these will be sent upon written request to the Hearing Officer.
In the decision the Hearing Officer also ordered that Everett make minor clarifications to the IEP that was the subject of the hearing (the May 2006-May 2007 IEP). Those clarifications were to change the portion of the service delivery grid that indicates “Supportive help” to “Study skills/spelling and writing instruction”; deletion in the informational section of the IEP of information that Henry likes karate and engineering; inclusion of Mother’s language in the vision statement; correction of the typographical errors for the dates of the pull-out services in the IEP and implementation of Mother’s request to use the words “Executive functioning” instead of “study skills and organization” in the goals and objectives section of the IEP. On October 30, 2006 Everett produced in its status report, an IEP that included these minor modifications. The Hearing Officer issued a ruling on November 16, 2006 that Everett complied with these modifications. Mother’s objections have been noted and her right to appeal is preserved.
The decision indicated that Everett owed Henry 107 50 minute sessions of compensatory services. The 67 fifty-minute sessions was incorrectly added therefore the amount of compensatory services owed should be 118 50-minute sessions (98 hours and 20 minutes) of compensatory services. The Hearing Officer corrected the addition error and sent it to the Parties attention; see (P24).
The October 3, 2006 meeting was the fourth meeting between the Parties to develop an agreed upon IEP and develop a compensatory services plan. At hearing Everett’s IEP was found appropriate except for some minor changes and clarifications and Everett was required to reissue the IEP with those clarifications. Mother believes that Everett was required to reconvene the TEAM to develop an IEP that Mother could accept or reject (Mother). Since Everett was ordered to issue an IEP with some minor revisions through a decision it was not required to reconvene the TEAM. However Everett did reconvene the TEAM to try to reach consensus with Mother and bring closure to the matter (Kelly). Mother continues to feel that Everett is required to reconvene the TEAM even if an IEP is ordered through decision; see (P3, P4). Mother’s right to appeal on this issue is preserved.
The Advocate provided her input on October 12, 2006. Mother included this input in her status report; see (P25). Although Mother has sought the advice of her former attorney and advocate she is proceeding pro-se in this matter.
The order was reissued on October 26, 2006 because the order incorrectly listed the next status report date as November 30, 2006 instead of October 30, 2006. The status report containing available hearing dates was received on November 3, 2006 and the revised IEP that resulted in the TEAM meeting of October 3, 2006 was received on November 9, 2006. The Hearing Officer accepted the late submission due to the erroneous November 30, 2006 date contained in the Hearing Officer’s October 16, 2006 Order.
Mother received the revised IEP on October 12, 2006 (P13).
The Hearing Officer indicated that the additional periods could be construed as compensatory services.
Everett requested that the matter be postponed due to the unavailability of the Special Education Director who was also a witness. The motion was granted and the hearing was rescheduled until December 18, 2007 to allow time to receive discovery documents that Mother had requested on November 20, 2006.
The decision was resent to the Parties on July 26, 2006 with some minor clarifications that Mother requested that included changing the spelling of the pseudonym used for the student’s name, changing the word defensive to defended and removing references to nationality. Mother subsequently requested more changes to the decision. That motion was denied; see (P21).
Mother and Everett disagreed upon the clarifications required and whether those disagreements should be resolved by a TEAM process with a right of rejection by Parent. Everett felt that it should issue an IEP pursuant to the decision. Mother talked to DOE’s Program Quality Assurance (PQA) Division and felt that after that discussion Parent had a right to an IEP meeting to discuss revisions in addition to the revisions ordered by the Hearing Officer; see (P3). Although Mother provided notes of her conversation with PQA the notes reflect Mothers interpretation; see . (P20). It is not clear what information was given to PQA; see (P20).
Henry was also failing French and has since dropped the class and has substituted another art class (Henry).
Mother also informed Dr. Stella that she was appealing the decision. That issue will be addressed by the Federal District Court.
The log also shows and Mother elicited testimony from most of the witnesses that on September 18, 2006 one of Henry’s three sessions per week of supportive help was dropped. Everett added the one session of supportive help back in immediately (Henry). Henry currently receives five supportive help sessions.
Henry testified that none of his teachers check his homework but also testified that his math teacher requires notebook checks (Henry, see also McFadden). Henry does well in math (Henry, see also P26).
During the summer Landmark concentrated on Henry’s writing and study skills (P26). Henry was always on time to class but sometimes had trouble making sure that his homework was complete and with him. He was on homework makeup for not doing his work several times per week; however, when he completed the homework he demonstrated an understanding of the material.
Mr. Barbiti is licensed in special education and has a Master’s in moderate special needs (Barbiti, S24). Mr. Barbiti is also licensed as a special education administrator (Barbiti). He has worked with students with organizational difficulties. Much of his experience is working with students with behavioral issues; however many of those students were also learning disabled and his experience includes teaching Language Arts see (S24, Barbiti).
The other session missed was because Henry was waiting for his art teacher and fell asleep (Senia).
Ms. Senia has also offered to do make up after school but Henry said that he could not attend at that time. Henry is often at his teachers’ after school sessions; see (Henry, Senia).
There are many Kurzweil products (i.e., music synthesizers, speech recognition, computer technologies). Kurweil as referred to by Mother, Ms. Senia and other witnesses refers to the Kurzweil print to speech reading technology; see (Senia).
Ms. McFadden is a certified and licensed teacher has taught for twenty years. She has taught math for eighteen of those years. She is not certified in special education but has provided numerous accommodations to special needs students including students with organizational difficulties.
Mr. Sullivan is a certified teacher with a provisional license from DOE. He has been teaching science for five years in Everett (Sullivan, S27).
Henry almost always has a pencil in chemistry class (Sullivan).
Mr. Fineran is certified and licensed in English for Grades 5-8 and 8-12. Mr. Fineran has also taught study skills as well as language arts at Sylvan Learning Center (Fineran, S29).
Mr. Dailey is certified and licensed to teach history. He also is certified as a Principal for grades 5-8 and 9-12 (Dailey, S30).
Henry’s IEP calls for Henry to receive 45 minutes per six-day cycle of consultation to Henry’s English and social studies teachers and thirty minutes of consultation to Henry’s science teachers. This consultation however also includes consultation to address organization.
Mother also indicated that the portion of the IEP that calls for weekly communication between her and special education has not been implemented because she receives weekly phone calls instead of a log. Mother has received the information through this method as well as through TEAM meetings and communications with many of Everett’s staff. Therefore Everett has implemented this requirement.
This instruction however may be duplicative of work that he receives from Ms. Senia who appears to be providing Henry with the sixty minutes of language arts instruction required in the IEP and another sixty minutes of compensatory education. It appears that Mr. Barbiti has been providing Henry with language arts instruction on at least eighteen sessions for approximately twenty minutes per session; see (S14, Henry). This amount of time can count as part of Everett’s requirement for compensatory language arts instruction.
In the decision Henry’s former tutor Ms. Bloom recommended that this be done through a master notebook system (a loose leaf notebook divided into sections for homework, long term assignments, long term projects and materials). This was used at Landmark during the summer. Henry did not often use the system.
This instruction should be done with someone who has taught organizational skills. Mr. Barbiti’s resume does not indicate that he has this experience and he has admitted that he does not know how to get Henry to be organized. Ms. Senia and Ms. Kelly however had many suggestions for how to do this. Ms. Kelly is capable of selecting a provider that can provide this instruction. It should be done during 7 th period so as to not disrupt Henry’s schedule; see (Kelly).
No compensatory services are ordered because a parent must show more than a de minimus error by the school district in order to obtain compensatory services. That is, the Parent must show a significant negative impact on the student’s special education services. Berkshire Hills Regional School District , BSEA #03-2062 (Crane 2003). With accommodations, Henry has caught up with his work and is mastering the material in all his classes. However Henry needs to learn strategies to get organized and as such the organizational piece of the IEP needs to begin to be implemented.