COMMONWEALTH OF MASSACHUSETTS
DIVISION OF ADMINISTRATIVE LAW APPEALS
BUREAU OF SPECIAL EDUCATION APPEALS
In re: Boston Collegiate Charter School v. Urmila1
BSEA # 2009046
DECISION
This Decision is issued pursuant to M.G.L.c.71B and 30A, 20 U.S.C. §1400 et seq, 29 U.S.C. §794 and the regulations promulgated under those statues.
PROCEDURAL HISTORY
Boston Collegiate Charter School (hereinafter “BCCS” or “School”) filed a request for Hearing on April 22, 2020. The Hearing was scheduled to take place on May 11, 2020. The Hearing Officer held a conference call on May 1, 2020 in which the Parent participated. The call resulted in a rescheduling of the Hearing to July 17, 2020 as well as an agreement to participate in a prehearing conference by telephone on May 18, 2020. The Prehearing conference call was rescheduled to June 22, 2020 at the Parties’ request. The Parent did not participate in the call and did not respond to the Hearing Officer’s efforts to reschedule the call. The Hearing Officer set a new date for the prehearing conference: June 30, 2020. The Parent did not respond to the scheduling notice, did not participate in the call, and did not communicate with the Hearing Officer, the School or the School’s representatives.
The Hearing Officer sent a notice confirming the July 17, 2020 Hearing date and setting a deadline of July 10, 2020 for submission and exchange of proposed exhibits and witness lists. The notice also advised the Parties that failure to appear at the Hearing could result in dismissal, or with continuation of the Hearing without the absent party.
The School submitted its proposed exhibits and witness list on July 10, 2020 by mail and electronically. The Parent did not.
On July 13, 2020 the matter was assigned to a new Hearing Officer. The Hearing Officer confirmed the Hearing date, advanced the starting time to 9:00 a.m., and set a remote “practice session” for 8:30 a.m.
In addition to a written notice, the Parent was reminded of the impending Hearing and the time change by telephone messages from the BSEA scheduling coordinator and the School’s administrator. Several electronic messages were also sent to the Parent by the BSEA and by the School’s attorney. The Parent did not respond in any meaningful way to those engagement attempts. She did not request a postponement, scheduling or substantive accommodations or leave to submit proposed evidence late.
On July 17, 2020 the Hearing Officer telephoned the Parent to determine if she intended to participate in the Hearing. The Parent did not answer. A message with instructions about how to access the Hearing, was left on the voice mail. The Parent did not respond to the message in any way during the Hearing, or after.
The Hearing proceeded with presentation of evidence by the moving party, the School. The School submitted documents marked S-1 through S-55. The Hearing Officer reviewed the proposed exhibits for potentially objectionable material. Finding none, all were admitted. The School presented three witnesses who were examined by the School’s attorney and the Hearing Officer. At the conclusion of the proceedings the Hearing Officer established an additional time period for the Parent to review a transcript of the Hearing and to submit written arguments if she chose to do so. Closing arguments were due on August 10, 2020. The School submitted a written closing argument on that date. The Hearing Officer held the record open for an additional week to accommodate any late filings by the Parent. No parental submissions have been received by the BSEA to date. The record was closed on August 18, 2020.
ISSUE
Whether the December 2019 – December 2020 Individualized Education Program, in which the School proposes a full time placement in a substantially separate therapeutic classroom within a public school setting, is reasonably calculated to ensure that Urmila receives a free, appropriate public education?
SUMMARY OF THE EVIDENCE
1. Urmila is a thirteen year old Boston resident. She is eligible to receive special education services as a result of social-emotional and health (ADHD) disabilities. Her cognitive skills fall in the low-average range. Until the spring 2019 Urmila consistently demonstrated average academic performance. Her teachers describe her as friendly and thoughtful when she feels she has solid adult/peer relations, but unpredictably aggressive and rude when she feels anxious or disconnected. (S-4; S-14; Daigle; Cyprien)
2. Urmila attended the Dudley Street Charter School (grades 1-3) and the Boston Public Schools (grade 4) until entering the 5th grade at the Boston Collegiate Charter School in September 2017. In October 2017 Urmila received an initial diagnosis of, and prescription treatment for, ADHD. The School developed a Section 504 Plan to respond to the new diagnosis. Urmila successfully completed the 5th (2017-2018) and 6th (2018-2019) grades. (S-3; S-8; S-14; Cyprien)
3. In the spring 2019 Urmila exhibited increasing behavioral dysregulation in school. She struggled with the social demands of her peers, with maintaining emotional control and with using appropriate language. Her behavior prompted a special education eligibility evaluation. A psychological and educational evaluation found that Urmila had significant difficulty accurately perceiving, interpreting and responding to social cues. She required direct instruction in emotional regulation strategies, anxiety reduction techniques, and appropriate social communication. To address her school performance anxiety Urmila also needed structure, predictability and reduced demands in academic instruction. (S-3) The Team developed an IEP calling for some social-emotional-instructional accommodations in the full inclusion classroom along with weekly counseling in a small group setting. The Parent accepted the May 2019 – May 2020 IEP. (S-5, 6, 7; Cyprien)
4. When Urmila returned to School in September 2019 for the 7th grade her behavior immediately began to deteriorate. She was involved in several incidents that prompted external suspensions. (S-10, 11, 12, 17, 18) A teacher log documented Urmila’s daily, sometimes hourly, disruptive behavior and language and the responding adult interventions. The log entries made between September 17, 2019 and March 9, 2020, (S-12) included: daily instances of screaming in class and hallways; daily disrespectful, disparaging and threatening remarks to adults and peers; refusal to follow directions/schedules; throwing objects in class; constant class interruptions; physical aggression toward peers in class, hallways and cafeteria; skipping/leaving class; ripping up assignments, tests, texts; defacing property; and aggression toward school staff resulting in injury. On September 13, 2019 the School referred Urmila for an additional social-emotional-behavioral evaluation. (S-13; Cyprien; Daigle)
5. Sarah Daigle, a Masters level clinician, conducted a comprehensive social-emotional-functional behavioral evaluation/analysis in October 2019. (S-54) She updated the standardized testing completed in May 2019, conducted parent, student and teacher interviews, observed Urmila in school and reviewed her educational record including the behavior log and disciplinary reports. Ms. Daigle testified that during her school observation Urmila continually distracted other students and disrupted the teacher’s instructional flow with movements and “shout-outs”. Despite the presence of a behavioral aide and teacher prompts every two minutes, Urmila had difficulty regulating her emotions, maintaining attention and completing work as directed independently or with assistance. Urmila was fidgety, impulsive, loquacious and uncooperative in all settings. (Daigle; S-14)
Ms. Daigle noted that school staff appeared to be using all possible appropriate interventions to address Urmila’s emotional and academic needs and concerning behaviors within the general classroom/school setting. She observed an aide calmly redirecting Urmila and reinforcing teacher directions/expectations. She also saw increased adult:student ratio, frequent teacher check-ins and reminders, frequent breaks, check-ins with school counselors, and leaving class early with the aide. Ms. Daigle testified that those measures were inconsistently effective. (Daigle; S-14; See also: Cyprien)
Ms. Daigle testified that Urmila needed to build her social/emotional/behavioral skills so that she could attend to and engage with the learning environment, peers and adults. To do this, Urmila required educational services directed at: correcting her misperceptions of her experiences and her peers; improving the accuracy of her perceptions of social relations; improving self-regulation; improving attention and concentration. Ms. Daigle recommended more intensive, consistent social-emotional-behavioral instruction and support in a small, cohesive, peer group; school-based counseling; environmental accommodations to address her need for calming space/academic breaks; and academic support in math and science. (Daigle; S-14)
6. Nadia Cyprien is the Director of Student Support at Boston Collegiate Charter School, a grade 5 through 12 school housed on 2 campuses. (S-53) Ms. Cyprien testified that she became involved in Urmila’s education in the spring 2019 as a result of Urmila’s deteriorating behavioral profile. After the initial IEP had been accepted by the Parent Urmila’s team met weekly to ensure its ongoing implementation and to discuss strategies to address Urmila’s escalating disruptive behaviors. For example, when the behavioral para assigned to Urmila’s classroom was absent or otherwise unable to address Urmila’s needs Ms. Cyprien acted as an in-class para, or a safe space resource, or an additional adult in difficult situations. Ms. Cyprien recounted that during the fall 2019, despite full implementation of the then current IEP, Urmila’s disruptive behavior caused her to miss a significant amount of classroom instructional time and she began to fall behind academically. Ms. Cyprien noted that when Urmila participated in an “interventional block”, a small group or individual session focused on acquisition of a discrete skill, which provided high structure, frequent feedback and concrete motivators, Urmila had somewhat better and longer attention and concentration, but still lacked behavioral consistency. (Cyprien; see also: S-15; S-8)
7. The Team reconvened on December 4, 2019 to consider the results of the social/emotional/behavioral evaluation conducted by Ms. Daigle, along with the teacher’s progress reports, behavioral log, and disciplinary record. The Team agreed that Urmila was not making academic progress commensurate with her potential due to the frequency and severity of her interfering emotional dysregulation and resulting disruptive behaviors. Ms. Daigle recommended that Urmila receive all her academic instruction in the context of a small, substantially separate, classroom which could provide intensive and continuous instruction and support in social/emotional/behavioral skills. The rest of the Team, including the Parent who participated in the Team meeting by telephone at her request, concurred. (Cyprien; Daigle; S-16)
8. The School drafted an IEP outlining goals, accommodations and services necessary to meet the Team’s special education recommendations for Urmila. The proposed IEP did not identify a classroom placement as the BCCS did not have a classroom with the recommended characteristics. (Cyprien; Daigle; S-16, S-19; S-20)
9. The School also drafted a Behavioral Intervention Plan (“BIP”) which provided increased structure and accountability for Urmila while she remained in her inclusion placement. (Cyprien; S-21)
10. On December 11, 2019 the School sent the IEP and the BIP to the Parent. The Parent did not sign or return the IEP. (Cyprien)
11. Boston Collegiate Charter School does not have any substantially separate classrooms that focus on providing therapeutic services to students. When a student requires those special education interventions in order to receive a free, appropriate public education, BCCS invites a representative from the student’s district of residence to consider the student’s needs and describe the district’s resources to meet them.2 In Urmila’s case, BCCS invited Boston Public School’s to participate in the placement meeting. (Cyprien; Morrissey-Bickerton)
12. On December 19, 2019 after discussing the procedure and possible dates for a separate placement meeting with the Parent, BCCS scheduled a placement meeting with Boston and Parent for January 8, 2020. BCCS sent a written meeting invitation the same day. Follow-up emails were sent on January 2, 2020 and January 7, 2020 as a reminder. The Parent did not respond to the invitations. The Parent did not attend the meeting on January 8, 2020. BCCS attempted to call Parent, but she did not answer. As a result, BCCS disbanded the meeting. (S-22; S-28; Cyprien)
BCCS rescheduled the meeting for January 15, 2020. The Parent contacted BCCS on January 14, 2020 and indicated she could not attend the January 15, 2020 meeting. BCCS re-scheduled the meeting with her for January 16, 2020 when Parent indicated she was available. The Parent did not respond to the invitation and did not attend the meeting. BCCS again called the Parent who did not answer the phone call during the meeting. As a result, BCCS disbanded the meeting. (S-24; Cyprien; Morrisey-Bickerton; Daigle.)
BCCS scheduled a third meeting for January 30, 2020. The Parent confirmed she could attend, but indicated she wanted to participate by phone. BCCS provided the Parent with a conference call number and pin on January 24, 2020 and sent a reminder the morning of the meeting (January 30, 2020). The meeting invitation notice was provided to Parent on January 24, 2020 and January 30, 2020. The Parent again did not attend via phone. BCCS attempted to call her, but she did not answer. Concerned about Urmila’s increasingly explosive behaviors, BCCS continued with the meeting. (S-26; Cyprien; Morrissey-Bickerton; Daigle)
13. Catherine Morrissey-Bickerton, Director of Mediation and Dispute Resolution for Boston Public Schools, participated in Urmila’s placement meeting on January 30, 2020 by telephone. (S-55) BCCS reviewed Urmila’s evaluation results, the behavior logs and disciplinary records, grades and progress reports, and the IEP developed by BCCS in December 2019. As a result of the updated information the Team added academic support, ELA and math goals to the IEP.
(S-28; Cyprien) Ms. Morrissey-Bickerton told the Team that the IEP it had developed could be implemented in one of several schools in Boston that hosted a therapeutic strand. These schools operate substantially separate classrooms and programs within a typical school building. The therapeutic classrooms focus on developing social-emotional-behavioral skills including self-regulation and appropriate peer/adult communication and relationships with intensive, direct instruction and support. Therapeutics are embedded in classroom instruction and in the environment. The classroom groups are no larger than 8 students with a certified teacher. Specialized paraeducators are assigned to classrooms as needed. Academics and/or activities in the mainstream are available to students in the substantially separate program as they advance in their skill acquisition and interest. Individual and small group counseling in and outside the classroom are regular and important components of the therapeutic program. (Morrissey-Bickerton; Cyprien; S-35; S-48; S-49; S-50)
Ms. Morrissey-Bickerton testified that she spoke to Urmila’s Parent shortly after the placement meeting and offered a therapeutic classroom placement at Boston Tech. The Parent refused due to “issues” with a student already attending Boston Tech. Ms. Morrissey-Bickerton then offered Urmila a spot in a therapeutic classroom at the Edison School. Initially the Parent seemed interested, but has not followed up, or responded to multiple outreach efforts, to arrange a tour or sign the placement paperwork. Boston is holding a seat for Urmila in the 2020-2021 8th grade, therapeutic strand classroom at the Edison School. (Morrissey-Bickerton S-29; S-34; S-35; S-40; S-48; S-49 S-50; S-51)
14. On February 6, 2020 BCCS sent an updated IEP, including new academic goals and the designated therapeutic placement, to the Parent. (S-27; S-28; S-29, S-34; S-37, S-40; S-49; S-50; S-51) By the date of the hearing the Parent had not returned a signed IEP or placement and had not toured the Edison School classroom. (Morrissey-Bickerton; Cyprien)
15. Some of Urmila’s disruptive behaviors and physical aggression resulted in disciplinary actions, including external suspensions, during the 2019-2020 school year. (Cyprien; S-10-11, 12, 17, 18, 30, 31, 32, 33, 35, 36, 38, 39, 41, 42, 43, 44, 46, 47) In March 2020 Urmila was involved in 2 different scuffles with staff members in which she caused both physical contact and physical injury. As the potential disciplinary consequences, including exclusion from school, could have resulted in a cumulative ten or more days in which she would not be receiving her special education programming, BCCS held a manifestation determination meeting for each incident. At the meeting on March 4, 2020 the Parent participated by phone. The Team determined that the conduct for which Urmila would be disciplined was a manifestation of her social-emotional-behavioral disability, that the then current IEP and BIP were being fully implemented, and that an offer for additional therapeutic services to address Urmila’s special needs had been presented to the Parent. Therefore the Team did not impose discipline that would have interrupted Urmila’s special education. (Cyprien; S-40, 41, 42)
The manifestation determination meeting to address a subsequent incident involving staff injury was originally scheduled to occur on March 16, 2020. All Boston Public and Charter Schools were closed that week in keeping with the Emergency Public Health Order of Governor Baker. The meeting was rescheduled to May 7, 2020 and was held virtually. The Team determined that the conduct precipitating discipline was a manifestation of Urmila’s disabilities and, therefore, any discipline that would interfere with her special education program would not be imposed. The Team continued to recommend placement in a self-contained therapeutic classroom consistent with the IEP and placement offered to the Parent in January 2020. (Cyprien; S-43; S-44; S-45; S-47; S-28)
LEGAL FRAMEWORK
A student with special needs as defined by 20 USC §140; et seq. and MGL c.71B is entitled to receive a free, appropriate public education. A free, appropriate public education, often referred to as “FAPE”, is a set of specialized instructional methods, materials and services, curricular modifications, related therapeutic, supportive and health services, equipment, environmental adaptations and settings that are specifically tailored to an individual student’s unique learning needs and designed to provide a meaningful educational benefit to the student. Endrew F. v. Douglas County School District, 580 U.S. _____, 137 S. Ct. 988 (2017); 34 CFR 300(3) (iii); 603 CMR 28.02 (17). See also discussion at: Johnson v. Boston Public Schools, 906 F.3d 182 (1st Cir. 2018)3
The primary vehicle for delivery of FAPE is an Individualized Education Program (IEP). The IEP must be custom tailored to the student’s unique needs and potential and designed to produce “meaningful educational benefit” and “demonstrable improvement” in the educational, behavioral and personal skills identified as special needs. Lenn v. Portland School Committee, 998 F.2d 1083 (1st Cir. 1993) Whether an educational benefit is meaningful must be determined in the context of the individual student’s “circumstances” and potential to learn. A student’s goals should be appropriately ambitious…just as advancement from grade to grade is appropriately ambitious for most students in a typical classroom, Endrew F. supra, and be reasonably likely to measurably advance the student toward the goal of increased learning and independence. D.B.v. Esposito, 675 F.3d 26 (1st Cir. 2012)
To the maximum extent appropriate, students should be educated in the “least restrictive environment: (“LRE”) with the greatest exposure to and integration in the mainstream of typical school life, students and curriculum that is possible while still delivering the necessary special services. Students with disabilities should be placed in separate settings, such as a private day school, only if the nature or severity of the disability is such that the student cannot benefit from a general education setting with supports and services, or the student has demonstrated an inability to make appropriate educational progress with carefully designed and provided special education services in a mainstream setting.
The requirements of LRE and meaningful educational benefit are “correlative”: “a placement…considered better for academic reasons” does not relieve the State from the requirement to comply with the LRE provisions, and compliance with the LRE provisions does not “cure” an inappropriate placement. The desirability of mainstreaming must be weighed “in concert with the IDEA’s mandate for educational improvement: an appropriate educational plan balances the benefits gained or lost on both sides.” Roland M. v. Concord School Committee, 910 F.2d 983 (1st Cir. 1990); 20 USC §1412(a)(5)(A).
In a due process proceeding to determine whether a school district has offered or provided a free, appropriate public education to an IDEA-eligible student the burden of proof is on the party seeking to change the status quo, Schafffer v. Weast, 546 U.S. 49 (2005). In this matter the School is seeking to move the student to a more restrictive setting than that which she currently attends. Thus, the School bears the burden of proof.
FINDINGS AND CONCLUSIONS
There is no dispute that Urmila is a student with special learning needs and is entitled to a free, appropriate public education pursuant to MGL c.71B and 20 USC §1400 et seq. The issue for decision here is whether Boston Collegiate Charter School has proposed an Individualized Education Program that is appropriately responsive to Urmila’s unique, documented special education needs and is reasonably likely to enable her to make meaningful, effective educational progress in the least restrictive setting. After careful consideration of the evidence presented at hearing and the applicable law, it is my determination that it has. My reasoning follows:
First, the uncontroverted evidence at Hearing established that Urmila is a young woman with the potential to participate, with supports, in the mainstream of public school life once she acquires the age appropriate social-emotional behavioral skills expected of teenagers. Urmila displays consistent strengths in academic achievement, communication and executive functioning. Her current weaknesses in social perception, emotional regulation and behavioral control impede her ability to participate meaningfully in a mainstream environment, and interfere with the academic learning she is capable of. Based on the results of her comprehensive evaluation and observation, Ms. Daigle explained that Urmila needs intensive, targeted, direct instruction and practice in social communication skills in an environment that offers a predictable structure and routine to support emotional-behavioral learning. I found Ms. Daigle’s testimony to be consistent with the documentary record, insightful, sympathetic to Urmila, and both credible and persuasive. (Daigle; S-54, S-14; ¶5)
Ms. Cyprien testified that while Urmila currently needs intensive social-emotional-behavioral support in order to address her specific disabilities and to permit her to make educational progress, Urmila has the potential to learn the skills necessary to return to a mainstream setting for high school. Ms. Cyprien noted, in particular, that Urmila had been unable to made academic progress consistent with her potential during the last year at BCCS despite increasing use of intensive educational and behavioral supports. Based on her supervision of Urmila’s special education program for the past year, her direct experience working with Urmila and her Parent throughout the 2019-2020 school year, and her extensive experience in education, I place great weight on the testimony of Ms. Cyprien whom I found to be thoughtful, knowledgeable, and positive. (Cyprien; S-15; ¶6)
Therefore, I find that in order to make meaningful educational progress consistent with her potential, Urmila currently requires placement in a small, substantially separate, therapeutically focused classroom, designed to address the social-emotional-behavioral needs of age appropriate peers with similar presentations and age. I further find that the preponderance of evidence convincingly demonstrates that the 2019-2020 IEP developed by BCCS in December 2019, and amended in January 2020, accurately identifies the nature and extent of Urmila’s special education needs and offers services and accommodations appropriately designed to meet those needs. (S-20; S-28)
Next, the uncontroverted evidence at Hearing shows that over the course of the last year BCCS developed and implemented appropriate, and increasingly restrictive, special education interventions designed to address Urmila’s emerging social-emotional-behavioral needs. These interventions (ranging from reduced academic demands and increased teacher prompts, to in-school counseling, to assistance of an individual behavioral aide, to removal to an individual quiet workspace) failed to either address the nature and extent of Urmila’s disability-related needs or to produce an academic benefit. BCCS has exhausted the special education services and placement options it has to address Urmila’s needs. (Cyprien; Morrissey-Bickerton) The least restrictive placement capable of providing the special education services Urmila currently requires is a substantially separate therapeutic classroom in a public school setting. There is no evidence to the contrary in the record. BCCS does not have a substantially separate classroom offering the type and extent of special education services appropriate for Urmila. (Cyprien) I find, therefore, that BCCS correctly followed the regulatory process set out at 603 CMR 28.10 (6) to involve Urmila’s district of residence, Boston, in the placement planning process. Once Boston identified an appropriate classroom placement that could provide the special education services and setting Urmila’s BCCS Team had determined were appropriate for her, BCCS discharged its duty to Urmila by proposing a 2019-2020 IEP that reflected the Team’s recommendation. (S-28) Therefore, I find that the 2019-2020 IEP proposed by BCCS in January 2020 is reasonably calculated to provide a free, appropriate public education to Urmila in the least restrictive setting possible.
Finally, based on the uncontroverted testimony of Ms. Morrissey-Bickerton and supported by documents in the record, I find that Boston timely identified at least two available, appropriate classroom placements for Urmila. The preponderance of the evidence reveals that Boston representatives participated in Team meetings arranged by BCCS, described available services and schools that could potentially be appropriate for Urmila, contacted, and attempted to maintain contact with, Urmila’s Parent to encourage her participation in selecting the classroom/school placement, took the Parent’s feedback into account when selecting the Edison School therapeutic classroom, and continue to offer Urmila the least restrictive, appropriate special education placement option that can implement the 2019-2020 IEP. Therefore, I find, based on the preponderance of evidence presented, that Boston Public Schools is discharging its responsibilities to Urmila consistent with its role as her district of residence.
There being no evidence to the contrary I find that BCCS has carried its burden of proving that the 2019-2020 IEP it proposed for Urmila in January 2020 is individually tailored to her unique learning needs and designed to provide a meaningful educational benefit in the least restrictive setting consistent with that goal.4
ORDER
The 2019-2020 Individualized Education Program developed by Boston Collegiate Charter School on January 30, 2020, which calls for special education services to be delivered in a substantially separate, therapeutic, classroom within the Boston Public Schools is reasonably calculated to provide Urmila with a free, appropriate public education in the least restrictive setting possible at this time.
By the Hearing Officer
___________________________________
Lindsay Byrne
Dated: September 2, 2020