COMMONWEALTH OF MASSACHUSETTS
DIVISION OF ADMINISTRATIVE LAW APPEALS
SPECIAL EDUCATION APPEALS
In Re: Student v. Boston Public Schools
BSEA # 17-07797
This decision is issued pursuant to the Individuals with Disabilities Education Act (20 USC § 1400 et seq.), Section 504 of the Rehabilitation Act of 1973 (29 USC § 794), the state special education law (MGL ch. 71B), the state Administrative Procedure Act (MGL ch. 30A), and the regulations promulgated under these statutes.
Boston Public Schools (hereinafter, Boston) requested an expedited hearing on March 20, 2017 which was scheduled for April 4, 2017. On March 31, 2017, after the close of business, Parent requested a postponement without providing a reason for said request. The postponement request was denied because Boston alleged the Student was not being provided with special education services and programming. The hearing was held on April 4, 2017 and the record closed at that time. Both Parties submitted written closing arguments on April 6, 2017.
Those present for all or part of the hearing were:
Kaitlin Cunningham – Community Field Coordinator, Boston Public Schools
Jessica Chen – Bilingual School Psychologist, Boston Public Schools
Phyllis McLean – Senior Program Director, Boston Public Schools
Julie Muse Fisher – Senior Program Director, Boston Public Schools
Jill Vieira* – Special Education Coordinator, Boston Public Schools
Jessica Burque* – Coordinator of Special Education and Student Services, Boston Public Schools
Carolyn Weisman – Attorney, Boston Public Schools
Jane Williamson – Court Reporter
Ying Li – Interpreter
Catherine Putney-Yaceshyn – Hearing Officer
The official record of this hearing consists of Boston Public Schools’ exhibits marked S-1 through S-18 and approximately four and a half hours of recorded oral testimony.
*Testified via speaker phone
- Whether the IEP proposed by Boston for the time period from February 2017 through February 2018 proposing an in-district substantially separate classroom was reasonably calculated to provide Student with a free appropriate public education in the least restrictive environment.
- Whether Student’s placement pending appeal (stay-put) is to his last accepted IEP developed by the Quincy Public Schools.
SUMMARY OF THE EVIDENCE
The student (hereinafter, “Student”) is a 12 year old sixth grade student within the Boston Public Schools. His last accepted IEP indicates Student underwent a neuropsychological evaluation in October 2013 through the Children’s Hospital Division of Epilepsy and Clinical Neurophysiology. His cognitive abilities as assessed by the WISC-IV fell in the Extremely Low range across all areas. The Children’s Hospital report stated that Student had a “neurobehavioral disorder in the context of epilepsy, developmental delays and significant academic difficulties, and reflects widespread difficulties with relatively little variation in specific skills; therefore, overall results suggest diffuse impairment in brain functioning.” The report further noted that the results from intelligence testing were consistent with a diagnosis of Intellectual Disability in the mild range of impairment, but diagnosis was deferred because Student’s adaptive skills were estimated to be age appropriate by Mother. The IEP listed his primary disability as Neurological. (S-6, S-3)
Phyllis McLean, Senior Program Director, Boston Public Schools, first became familiar with Student when she was contacted by staff at the Edwards Middle School (Edwards) with concerns about Student’s difficulty functioning in school. Student was in a general education program and Boston was not aware that Student had been on an IEP in his prior school district, Quincy Public Schools 1. Ms. McLean spoke to staff at Edwards and briefly observed Student. Mother was not willing to agree to any additional services for Student, so the parties agreed to schedule a mediation. After the mediation Mother agreed to place Student in a temporary placement while Boston conducted a 45-day assessment to include psychological, speech and language, OT, and PT assessments, as well as academic testing and a home assessment. The Parties further agreed that the placement was a temporary placement to which no “stay-put” rights would attach and that a substantially separate classroom within the Boston Public Schools would be Student’s “stay-put” placement. (S-7, McLean)
Mother insisted that Student be placed in an inclusion classroom. Boston agreed to place Student at the Henderson, a full inclusion school, for his 45-day assessment. Student began attending the placement shortly after the mediation. (McLean)
Jessica Chen, Boston’s bilingual school psychologist, conducted a psychological evaluation of Student on January 27, 2017 and wrote a report of her findings. She noted Boston’s concerns about his noncompliant and unsafe behaviors and their impact on his learning. Ms. Chen’s report referenced Student’s last accepted IEP from Quincy Public Schools which proposed “services and placement under an autism educational diagnosis.” She noted that in January 2016 Quincy Public Schools had sought to change Student’s placement due to his noncompliance and aggression. He had reportedly displayed negative behaviors related to work avoidance and attention-seeking. She also reported that Student had been hospitalized in April 2016 due to self-harm, suicidal ideation, and aggression. At that time Mother had sought to transfer Student out of the autism classroom and to a general education setting. Quincy proposed an IEP with an autism diagnosis. Student transferred out of the Quincy Public Schools before Mother signed the IEP. (S-8)
Ms. Chen found Student to be funny, sociable and talkative during testing. She conducted the assessment almost entirely in English and Student responded exclusively in English 2. Student engaged in some animated verbal exchanges with Ms. Chen. However, he perseverated on conversation topics related to phone technology and trains. He displayed appropriate effort toward tasks, but fatigued and became increasingly distracted near the end of the assessment. As assessed by the Stanford-Binet, Student’s full scale IQ was a 70 (borderline impaired), with a nonverbal IQ of 77 (borderline impaired) and a verbal IQ of 67 (mildly impaired). His composite score in Fluid Reasoning was 10 (average) and his Quantitative Reasoning score was 8 (average). His other composite scores were in the mildly impaired range. (S-8, Chen)
Ms. Chen assessed Student’s adaptive functioning using the Adaptive Behavior Assessment System-III. One of Student’s teachers, Mr. Grubb, completed the teacher form. Student’s General Adaptive Composite (GAC) score evidenced weakened adaptive skills in the school community, with an overall score in the Low range. His scores in the social skills domain and the practical domain also fell in the Low range. His scores revealed significant concerns for behaviors associated with self-direction, including the ability to regulate body and feelings; functional academics, highlighting difficulties with reading, writing, and math; school living, including challenges with compliance to rules/routines and respect for property; health and safety, encompassing the ability to show caution when needed and avoidance of dangerous situations; and leisure and social skills, which include behaviors related to initiating and maintaining healthy peer relations.
Student’s inclusion teacher, Mrs. Marilini completed the BASC-3 ratings. Parent ratings were not returned. Student’s behaviors associated with externalizing problems were in the At-Risk Range. Mrs. Marilini noted that Student at times is restless and impulsive and has difficulty maintaining self-control. He sometimes displays aggressive behaviors, such as being argumentative, defiant and/or threatening to others. She noted that he sometimes is withdrawn, pessimistic and/or sad. The teacher ratings for Adaptive Skills Index fell within the Clinically Significant range and highlighted significantly diminished abilities for adaptive behaviors, social skills, leadership qualities, study skills, and functional communication. Ms. Marilini noted that Student has extreme difficulty adapting to changing situations and it takes him much longer to recover from difficult situations than most others his age. She further noted that Student demonstrates unusually poor expressive and receptive communication skills and has significant difficulty seeking out and finding information on his own.
Ms. Chen utilized the Gilliam Autism Rating Scale-Third Edition, a norm referenced test designed to identify autism in people ages three through twenty-two. The higher the Autism Index score, the greater is the probability that a person has autism spectrum disorder. Persons with an Autism Index score between 85 and 100 are very likely to have autism spectrum disorder. Student had an Autism Index score of 86, very likely to have autism spectrum disorder. Ms. Chen explained that the score is not a medical diagnosis, but the data corroborates observations of inflexible behaviors, difficulty coping with change and restricted interests that interfere with Student’s transitions throughout the school day. She recommended follow up with a medical professional. (S-8)
Ms. Chen interviewed Ms. Marilini who told her that Student was smart, sweet and often empathetic toward peers, but was unwilling to follow familiar routines for classwork and resisted learning new content. He often opted to walk around the classroom seeking out various objects of interest, such as Chromebooks. He had extreme difficulties with transition. He had a strong preference for his life skills and art classes and often refused to leave those settings to go to his next class. Student initially completed his classwork, but as materials became more difficult, he exhibited increased problem behaviors. His incidence of noncompliance could range from 10-45 minutes. He frequently required one-to-one adult support to de-escalate, block him from leaving the room, or to return him to class.
Ms. Chen recommended that Student be in a setting with more adult support to assist Student with expressing his frustration. She noted that Student struggles with transitions and with the sixth grade level curriculum in his current program, requiring materials more appropriate to his academic level. (Chen)
King Yan Kwok, Boston’s Bilingual-Cantonese/Mandarin Speech Language Pathologist, conducted an evaluation of Student on January 6, 2017 and wrote a report of his findings. Additionally, he observed Student in class, noting that he constantly moved and looked around and needed verbal reminders to stay seated and focused. He required a great deal of time to initiate classwork and frequent check-ins to redirect him and regain focus to finish his work. When new material was presented he required one to one assistance from the paraprofessional to explain the material explicitly. Mr. Kwok noted Student’s relative strength in formulating simple, short functional phrases and following one to two step verbal instructions. He also noted weaknesses in receptive/expressive vocabulary, spoken language comprehension and verbal expression. Although his speech and language skills were found to be functional for daily usage, the evaluator determined that Student required additional support to access the curriculum. Mr. Kwok noted that as between English and Cantonese, English is Student’s stronger academic language. He made recommendations for supports in the classroom and recommended that Student receive direct speech/ language therapy services for 180 minutes per month with a 15 minute consultation per month.
Wynne L. Freed, Boston’s occupational therapist conducted an occupational therapy evaluation on January 9 and January 17, 2017. He noted that Student has several areas of weakness in Social Participation, Hearing, Touch and Planning and Formulation of ideas. He has difficulty regulating consistent behavior so he is ready to complete class assignments and interact with peers. When he can use his hands to complete tasks he does better than when he only uses his eyes. Mr. Freed recommended occupational therapy services to better support his social participation with peers and adults and to strengthen his fine motor skills. (S-10)
John Tobin, a special education teacher at the Henderson, completed a special education report form dated January 27, 2017. He noted that Student’s behavior varied greatly from day to day and often interrupted his ability to complete his work. He struggled when there was a schedule change or when a staff member was not present. He often refuse to engage in a task, left the classroom, went to sleep, or sought out a desired item such as a computer or sensory activity at an inappropriate time. This impacted his ability to access his modified curriculum. It was difficult to teach Student any new content as he refused to complete any work that might present a challenge to him. When he was willing to work he required one to one assistance to follow classroom expectations. Some days he was completely non-compliant. If he did not get his way he got angry, yelled, ripped papers and refused to follow any directive. He wandered around the room and tried to leave. He sat where he pleased without permission and then refused to move. He missed much of the work provided to him because of his behaviors. He had difficulty interacting with certain students and got combative and loud on occasion. (S-13)
There was a Team meeting to review the results of the assessments on January 31, 2017. Each of the assessments was reviewed. Ms. Chen reported that based on her results, she needed to complete an adaptive living scale in order to have all the information the Team would require. Therefore, the Team did not make an eligibility determination or programmatic decisions at that time. (McLean)
The Team reconvened on February 17, 2017 3 and found Student eligible under the category of intellectual impairment. The Team drafted an IEP dated 2/2017-2/2018. It provided a number of accommodations and noted Student’s needs in the areas of communication, self-regulation, language (LEP student) and behavior. It proposed goals in the areas of communication skills (receptive language skills); self-regulation skills (socialization skills); reading/writing skills (vocabulary skills) and math skills (computation skills). The Grid A services included a consultation with the speech language therapist for communication skills 15 minutes per month and a consultation with the occupational therapist for self-regulation skills for 10 minutes monthly. The C grid services included communication skills with the speech language therapist 45 minutes per week; self-regulation skills with the occupational therapist 2 x 30 minutes per week, reading/writing skills with the special education teacher 120 minutes x 5 days per week, and math skills with the special education teacher 120 minutes x 5 days per week. Student was found to be eligible for extended year services and door to door transportation was to be provided. (S-3)
The program proposed by the Team, located at the Curley School currently has ten students, a special education teacher and a paraprofessional who accompanies students to mainstream specials and lunch. The students are in sixth and seventh grades and function between first and fifth grade levels for math and English language arts. The students all meet the criteria for a classification of Intellectual Impairment under the IDEA. The classroom can provide Student with the high level of repetition he requires and utilizes a variety of learning methodologies. The curriculum is modified for each student’s individual needs. Students in the program receive related services in accordance with their IEPs. The academic portion of the program consists of two classrooms located next to each other and sharing a door between the rooms which minimizes transitions throughout the day. The teacher provides supports to aide in transitions by previewing the schedule and utilizing a predictable schedule. Behavioral needs are addressed by having clear rules, a predictable schedule, visual cues and prompts. Some students have behavioral support plans and the teacher utilizes incentive charts whereby students work toward earning desired rewards. Teachers are able to consult with board certified ABAs. (Burque)
Mother disagreed with the proposed program and would not send Student to the Curley placement. (McLean) Mother kept Student out of school for some period and then agreed to send him back to the Edwards Middle School to his previous general education classroom. He did not have any access to special education supports in the general education setting, so Boston developed an interim solution whereby Student attended a substantially separate classroom at Edwards designed for students with learning disabilities. (McLean, Cunningham, Vieira) This placement was not deemed appropriate for Student, but was provided as a temporary solution while Boston awaited Parent’s response to the IEP. Student seemed less anxious in this classroom than in the general education classroom. (Cunningham)
Kaitlin Cunningham works as an Inclusive Practices Support person in Boston and currently provides Student with 1:1 support in the learning disabilities classroom. She accompanies him to all academic classes, specials, and after school electives. She noted that Student struggles significantly in all academic areas. There are 12 students besides Student in the class, 1 teacher and 1 paraprofessional. The students in the classroom access a sixth grade curriculum that Student is unable to access. Student’s academic level is significantly below the level of his peers in the classroom. The curriculum is significantly modified for Student. He engages in behavioral issues, non-compliance, and shows frustration with the work. He perseverates on off topic conversations about trains and the MBTA as well as Apple technology products. He does not want to transition from place to place and he sometimes runs from the classroom. He hits staff and peers, hides under desks, and swears when frustrated. Student’s classroom behavior necessitated Boston staff calling BEST, an outside crisis intervention team on more than one occasion. He is aggressive to Mother when she comes to pick him up and engages in self-injurious behaviors. Student requires 1:1 support to attend and requires constant prompting throughout the day. He does not access sensory tools available in the classroom even with prompting. He is unable to complete homework on his own and when he comes to school with completed homework he says that Mother did it. (Cunningham, S-14)
After an incident during which the crisis intervention team was called, Mother told Boston staff that she believed Student was copying behaviors of other children in the classroom because she reported Student had never acted that way before. Staff informed her that no other students in the classroom acted the way Student had. Mother repeated her belief that Student is copying other students and stated that she wants Student fully included. Boston staff observed Student hitting his mother and throwing items at her. They saw him push her and attempt to pull her to the ground. When staff attempted to assist Mother, she stated, “he is okay” and “he’s fine.” Student then ran out the school door and lay down against the door, blocking parents and students from coming in and out of the building. Staff was able to get the door open and Student again attempted to push Mother down the stairs and behave aggressively toward her as they left the building. (S-14)
Mother testified that Student is not autistic, but was placed with autistic children in his prior district, Quincy, and he learned to copy the behavior of the other children. She believes he requires a regular education inclusion program because he will learn from the other children. She believes he does not receive enough academic work and his behaviors get worse. She stated that he became lazy and similar to other students in his program at Quincy. He would not respond to Mother when he was in that program. When Mother came to Boston she wanted Student to be in a full inclusion program. She testified that his behavior was good in the Henderson program. Mother thinks that an inclusion program is best for Student and she wants him to have a chance to spend the rest of the school year in such a program.
FINDINGS AND CONCLUSION :
Student is an individual with a disability, falling within the purview of the Individuals with Disabilities Education Act (IDEA) 4 and the state special education statute. 5 As such, he is entitled to a free appropriate public education (FAPE). Neither his status nor his entitlement is in dispute.
The IDEA was enacted “to ensure that all children with disabilities have available to them a free appropriate public education [FAPE] that emphasizes special education, employment and independent living.” 6 FAPE must be provided in the least restrictive environment. Least restrictive environment means that, “to the maximum extent appropriate, children with disabilities are educated with children who are not disabled, and special classes, separate schooling or other removal of children with disabilities from the regular education environment occurs only when the nature or severity of the disability is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily.” 7
Student’s right to a FAPE is assured through the development and implementation of an individualized education program (“IEP”). 8 An IEP must be custom-tailored to address a student’s “unique” educational needs in a way reasonably calculated to enable him to receive educational benefits.9 For an IEP to provide a FAPE, it must be “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” 10 A student is not entitled to the maximum educational benefit possible. 11 Similarly, the educational services need not be, “the only appropriate choice, or the choice of certain selected experts, or the child’s parents’ first choice, or even the best choice.” 12 The IDEA further requires that special education and related services be designed to result in progress that is “effective.” 13 Further, a student’s level of progress must be judged with respect to the educational potential of the child. 14
Massachusetts special education regulations provide that specially designed instruction and related services described within the IEP must be sufficient to “enable the student to progress effectively in the content areas of the general curriculum.” 15 Massachusetts also requires that the special education services be designed to develop a student’s educational potential. 16
An IEP is a snapshot, therefore the IEP must take into account what was, and was not objectively reasonable when the snapshot was taken, that is, at the time the IEP was promulgated. 17 An IEP is not judged in hindsight; its reasonableness is evaluated in light of the information available at the time it was promulgated. 18 The critical inquiry is whether a proposed IEP is adequate and appropriate for a particular child at a given point in time. 19
The burden of persuasion in an administrative hearing challenging an IEP is placed upon the party seeking relief. Schaffer v. Weast, 546 U.S. 49, 126 S. Ct. 528, 534, 537 (2005) In this case, Boston is the party seeking relief, and as such has the burden of persuading the hearing officer of its position.
With the foregoing legal framework in mind, I turn to the issues before me. The first issue is the appropriateness of the IEP proposed by Boston for the time period from February 2017 through February 2018. Boston, as the moving party, had the burden of showing its proposed IEP was reasonably calculated to enable Student to make progress in light of his needs and circumstances. In this case, there was disagreement as to what Student’s needs were. Boston identified needs in the areas of behavior, communication, self-regulation, and language. It proposed goals in the areas of communication skills (receptive language skills); self-regulation skills (socialization skills); reading/writing skills and math skills. Mother believed Student’s needs could be met in an inclusion setting and she did not acknowledge that he had any needs that had to be addressed outside of an inclusion classroom. Mother’s position was not supported by any expert testimony or document in the record. In addition to Boston’s evaluations which identified Student’s areas of need, the record contained Student’s last accepted IEP from Quincy which identified similar needs to those identified by Boston. Boston additionally relied upon reports from the teachers who worked with Student at the Henderson and Edwards Schools which supported its position that Student has significant needs that require interventions. (See S-6)
The classroom proposed by Boston would address Student’s academic needs by providing him with small group classes taught by a certified special education tutor and paraprofessional support. Student’s peers in the classroom would have similar learning profiles in that they would be functioning at a similar academic level to Student and be similarly intellectually impaired. The curriculum would be modified and presented at Student’s academic level to enable him to learn the material presented. His behavioral needs would be met by providing specific rules and predictable routines. He would receive an individual behavior support plan as needed and would take part in a classroom-wide incentive based behavior plan. His schedule would be previewed to guide Student through transitions. His transitions would be limited because all of his academic instruction would be provided in one of two rooms that are connected to each other. Student’s need for self-regulation support would be addressed through occupational therapy sessions and consultation, and his speech language needs would be supported through direct services. The program allows for Student’s participation in specials and lunch with general education peers. Ms. Cunningham, who works with Student every day, credibly testified that Student requires individual attention and support and that such level of support from a special educator to maintain attention, complete academic tasks, and to learn, would be provided in the proposed Curley substantially separate classroom. I credit the testimony of Ms. Bourque, Ms. Cunningham, and Ms. Chen that the Curley program has the necessary components to provide Student with a free appropriate public education in the least restrictive environment.
Mother’s position that Student should be fully included ignores the substantial evidence reflecting that Student was frustrated, anxious, and completely unable to access the curriculum in the inclusion environment. Student’s academic skills are significantly below grade level and require remediation in a setting where he can receive instruction at his own level along with support for his behavioral and self-regulation needs. The evidence shows that Student requires a small, substantially separate special education setting to access the curriculum and make progress.
IDEA’s “stay put” provision requires that during the time that a parent and school district are engaged in an IDEA dispute resolution process, “unless the State or local educational agency and the parents otherwise agree, the child shall remain in the then-current educational placement of the child…” 20 U.S.C. Sec 1415(j); 34 CFR Sec. 300.514;Honig v. Doe, 484 U.S. 305 (1988);Verhoven v. Brunswick School Committee, 207 F.3d 1, 10 (1 st Cir. 1999) To determine a child’s “stay put” placement, courts look to the IEP that is “actually functioning at the time the dispute first arises.” Drinker v. Colonial School District, 73 F.3d 859, 867 (3rd Cir. 1996) When Student arrived at Boston, he had an accepted IEP from Quincy that provided for placement in a substantially separate classroom. When he arrived in Boston, Mother did not provide Boston with the IEP and enrolled Student as a regular education student. Boston then conducted its own evaluations at the Henderson. The Parties’ mediated agreement memorialized their agreement that Student’s stay put placement would be a substantially separate classroom within the Boston Public Schools. Boston then proposed an IEP providing for placement in a substantially separate classroom. Mother later accepted the services, but rejected the placement. Therefore, Student’s stay put placement is that specified in their mediated agreement, a substantially separate classroom within the Boston Public Schools. The substantially separate classroom is the same placement type described by Student’s last accepted IEP from the Quincy Public Schools.
Based upon the foregoing, I find that the IEP proposed by Boston Public Schools covering the 2017-2018 school year, was reasonably calculated to provide Student with a free appropriate public education in the least restrictive environment. I further find that Student’s stay put placement is a substantially separate in-district classroom as described in his last accepted IEP.
By the Hearing Officer,
Catherine M. Putney-Yaceshyn
Dated: April 14, 2017
1 Upon enrolling Student in Boston Public Schools, Parent did not present Boston with Student’s IEP from Quincy, nor did she provide any information regarding Student’s educational history or disability. (S-1, pg. 12)
2 She noted that he did not appear to understand the Mandarin dialect, as he did not respond to simple instructions. He uttered two words in Cantonese. (Chen)
3 Ms. Chen had completed additional testing at this time, including the Gilliam Autism Rating Scale (GARS-3) and the Adaptive Behavior Assessment System (ABAS-3).
4 20 USC 1400 et seq.
5 MGL c. 71B.
6 20 USC 1400(d)(1)(A). See also 20 USC 1412(a)(1)(A); Mr. I ex. Rel. L.I. v. Maine School Admin. Dist. No. 55, 480 F.3d 1 (1st Cir. 2007)
7 20 USC 1412(a)(5). See also 20 USC 1400(d)(1)(A); 20 USC 1412(a)(1)(A); MGL c. 71B; 34 CFR 300.114(a)(2)(i); 603 CMR 28.06(2)(c)
8 20 USC 1414(d)(1)(A)(i)(l)-(lll); Honig v. Doe, 484 U.S. 305 (1988); Bd. of Educ. of the Hendrick Hudson Central Sch. Dist. v. Rowley , 458 U.S. 176 (1982)
9 Lenn v. Portland Sch. Comm. , 998 F.2d 1083 (1st Cir.1993)
10 Endrew F. v. Douglas County. Sch. Dist. , 580 U.S. __ (2017)
11 Rowley , 458 U.S. at 197
12 G.D. Westmoreland Sch. Dist. , 930 F.2d 942 (1st Cir. 1991)
13 20 USC 1400(d)(4); North Reading School Committee v. Bureau of Special Education Appeals , 480 F. Supp.2d 479 (D.Mass. 2007)(the educational program must be reasonably calculated to provide effective results and demonstrable improvement in the various educational and personal skills identified as “special needs”)
14 Lessard v. Wilton Lyndeborough Cooperative School District , 518 F.3d 18 (1st Cir. 2008)
15 603 CMR 28.05(4)(b)
16 MGL c.71B; 603 CMR 28.01(3)
17 Roland M. v. Concord Sch. Comm. , 910 F.2d 983 (1st Cir. 1990)
18 Id .
19 Lenn v. Portland Sch. Comm. , 998 F.2d 1083 (1st Cir. 1993)