COMMONWEALTH OF MASSACHUSETTS
Bureau of Special Education Appeals
In Re: Ishmael1 & Duxbury Public School
BSEA# 08-3479 / 08-4805
DECISION
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 regulations promulgated under those statutes. A hearing was held on July 1, July 17, August 1, and September 4, 2008, at the BSEA Offices, 11 Dartmouth Street, Malden, MA. Those present for all or part of the proceedings were:
Ms. W Parent
Mr. C Parent
Andrew Stephens Principal, Duxbury High School
Amy Marino English Teacher, Duxbury High School
Mary Stadelman Math Teacher, Duxbury High School
Janet Miller Academic Tutor, Duxbury High School
John Kennedy Social Studies Teacher, Duxbury High School
Susan Sullivan Social Studies Teacher, Duxbury High School
Patricia Weatherlow Special Education Teacher, Duxbury High School
Wayne Frieden School Psychologist, Duxbury High School
Margaret Malone Nurse, Duxbury High School
Deborah Corvini Special Education Administrator, Duxbury Public Schools
Joan Brinkerhoff Education Specialist, Department of
Elementary & Secondary Education
Colby Brunt Attorney for Duxbury
Rebecca Mudie BSEA Intern
Darlene Coppola Stenographer
Laurie Jordan Stenographer
Lindsay Byrne Hearing Officer
The official record of the Hearing consists of: exhibits submitted by the Mother marked P-1 through P-40, P-42 through P-68; P-70 through P-81; P-83 and P-84; exhibits submitted by the Father marked F-1 and F-2; exhibits submitted by the School marked S-1 through S-80; and approximately 15 hours of recorded testimony and argument. All parties submitted written closing arguments on October 3, 2008, and the record closed on that date.
The Mother originally submitted a request for hearing on December 18, 2007, seeking full implementation of the Student’s “stay put” IEP developed in May 2006, requesting a Team meeting, and alleging that Duxbury had failed to incorporate changes to the May 2006 IEP suggested by the Mother. The School submitted a hearing request on February 21, 2008 seeking a declaration that the IEP it had proposed in January 2008 provided a free, appropriate public education to the Student and that the parent’s December 2007 hearing request constituted improper harassment. Both appeals were assigned to Hearing Officer Catherine Putney-Yacheshyn. The matters were consolidated for all purposes on February 26, 2008. On March 4, 2008 the consolidated matters were re-assigned to Hearing Officer Joan Beron. On March 25, 2008, the BSEA dismissed the School’s harassment claim against the Mother. Thereafter the BSEA permitted the School to amend its Hearing Request to include a later developed IEP it proposed for the 2008-2009 academic year. On June 23, 2008 the BSEA issued an Order stating the following issues for resolution at hearing:
1. Did Duxbury comply with the last accepted IEP that runs from May 2006-September 2007?
2. If not, are there any facts that excuse the School District from performance or any facts that may bear on a remedy if noncompliance is found? See 603 CMR 28.08 (6)(b).
3. Is Student entitled to compensatory education because the alleged noncompliance has denied him a FAPE?
4. Does Duxbury’s proposed IEP, developed in January 2008, provide Student with a free appropriate public education (FAPE) in the least restrictive environment?
5. Does Duxbury’s proposed IEP, developed on May 30, 2008, provide Student with a FAPE in the least restrictive environment?
On June 26, 2008, this matter was administratively re-assigned to Hearing Officer Lindsay Byrne. (Administrative Record)
Summary of the Evidence2
1. Ishmael is a 17 year old senior at Duxbury High School. Standardized intellectual functioning tests have placed his cognitive potential in the superior range. (FS-IQ 128) Standardized academic achievement tests reveal achievement consistent with his intellectual potential. (P-1, S-1) During his junior year in high school, the 2007-2008 academic year, Ishmael pursued a full college preparatory academic load, including both honors level and Advanced Placement level courses. He earned B’s and A’s in all courses. Ishmael’s teachers uniformly describe him as quiet, thoughtful, serious, conscientious, attentive, participatory and deep. He had no disciplinary or behavioral issues, no noticeable difficulty complying with academic demands and timelines, and little need for academic/ social/ organizational assistance. He passed the MCAS. He scored well above 700 in both the Mathematics and the Verbal portions of the SAT. He earned the highest possible grade on the AP Chemistry exam. He was selected as a National Merit semi-finalist and as a member of Boys’ Town. He was an active member of the Drama Club and was placed in charge of the backstage operations for all productions. He was the chair of the Prom Committee and was elected “Prom King” by his peers. He earned a scholarship to a month-long Outward Bound course held on the west coast, to which he traveled and in which he participated without any special arrangements. Ishmael intends to apply to selective four year colleges and to pursue studies in engineering. (Stephenson; Marino; Kennedy; Stephens; Stadelman; Sullivan; Frieden; Weatherlow; Mother; Father; P-1, S-1 )
2. The Mother has sole physical and legal custody of the Student. During a Team meeting in May 2008, Ishmael indicated that he intended to exercise his right to authorize his own educational planning when he becomes an adult in January 2009. The Mother declined to sign an assent to Ishmael’s transition plan. (Stadelman; Father )
3. Duxbury found Ishmael eligible for special education in May 2006. The Team determined that Ishmael had been diagnosed with Attention Deficit Hyperactivity Disorder (“ADHD”) and Depression, and exhibited weaknesses in organization and homework completion. The Team developed an IEP calling for Ishmael to receive special education academic and emotional support for 306 minutes (4.5 periods) per high school cycle as well as 30 minutes per week of counseling with the school psychologist. The IEP also listed specific accommodations to be implemented in the regular education classes and curricula, among them:
preferential seating;
non-intrusive signal for refocusing;
assignment book check;
weekly progress reports to parents;
teacher scheduling of after school help whenever schoolwork is not completed on time;
extra time to complete tests;
parent notification if Ishmael sees a counselor, nurse, special education teacher or office staff outside of a regularly scheduled meeting;
breakdown of all final grades,
breakdown of long term assignments with separate due dates;
organizational assistance, e.g. calendars, binders, agendas
In addition the IEP noted that Ishmael’s depression could cause him to feel overwhelmed in school with symptoms such as sleeping or crying in class. The IEP provided that when Ishmael’s behavior in class indicated symptoms of depression the responsible adult should call the main office for an escort to the guidance counselor, the school psychologist, the nurse or the main office. There were no services or accommodations in, or modifications to, transportation, length of day or year, or any non-academic school setting. The Mother accepted the proposed IEP on May 25, 2006. (P-1, S-1)
4. The Team met on September 26, 2006 to review a recommendation from the Weaver Clinic whose clinicians had been treating Ishmael. The Team proposed modifying a few of the accommodations to the inclusion program to permit more age appropriate independence for Ishmael. The Mother disagreed with the finding of the Weaver Clinic. On October 13, 2006 she rejected the proposed changes to Ishmael’s 2006-2007 IEP. (S-2; S-3)
5. The Team conducted an annual review on May 21, 2007. Based on Ishmael’s success in meeting the goals and objectives of the 2006-2007 IEP, the Team developed an IEP containing fewer accommodations to the regular academic program. It also proposed reducing the pull-out academic support from 4.5 periods per week to 2 periods per week, beginning in January 2008, half-way through Ishmael’s junior year, to permit him to take more elective classes as he requested. The Mother rejected these changes on June 20, 2007 (S-5; Weatherlow, Father) The last accepted 2006-2007 IEP remained in effect throughout the course of the 2007-2008 school year.
6. The Team reconvened on January 7, 2008. The Team reviewed recommendations from the Weaver Clinic and Ishmael’s current teachers, as well as input from Ishmael. Based on his age, preferences and academic success the Team proposed decreasing the accommodations to Ishmael’s mainstream academic classes to permit him greater independence. The Team proposed reducing the academic support time from 4.5 periods per week to 2 periods per week. The Team also modified the “safety plan” language in the IEP, shifting the burden to Ishmael to report feeling anxious or overwhelmed, rather than having a staff member “notice”. The Mother rejected these changes on January 13, 2008. (S-16)
7. The Team reconvened on January 17, 2008 to discuss the Mother’s specific objections to the proposed IEP. Duxbury then developed another IEP which proposed eliminating some of the accommodations listed in the 2006-2007 IEP, and modifying the language of others. It also proposed decreasing the academic support to Ishmael from 4.5 periods per cycle to 3 periods per cycle. The Mother rejected the proposed January 17, 2008 – May 20, 2008 IEP. (P-29, S-17,; P-30, S-50)
8. The Team met again in May 2008. Based on teacher reports of Ishmael’s functioning during the 2007-2008 school year, as well as Ishmael’s stated preferences, the Team developed an IEP calling for a reduction in academic support services from 4.5 to 2.5 periods per cycle. It also reduced the number and modified the language of the accommodations to Ishmael’s inclusion placement. The “safety plan” language was shifted from the “accommodation” page to the Additional Information Section. There are no academic goals in the proposed IEP. With one exception, testing in a quiet area, the Parent rejected the proposed language of the accommodations. She requested the addition of one accommodation: defining a long term assignment as one to be completed over a two week or longer period, as well as reinstatement of the accommodations appearing in the 2006-2007 IEP. The Mother approved the inclusion placement and the reduction in academic support time to 2.5 periods per cycle. (P-81; S-60; S-61; Mother)
9. Amy Marino was Ishmael’s English Teacher during the 2007-2008 academic year. She testified that she reviewed and signed off on his IEP at the beginning of the school year. Mrs. Marino stated that she implemented all the appropriate modifications: Ishmael sat in the front row; he used his agenda appropriately; she checked for his attention and understanding; she offered extra time for tests; he stayed after school one time to complete a missing homework assignment. Ms. Marino completed weekly progress reports and handed them in to Patricia Weatherlow, the special education teacher who had been assigned to be Ishmael’s “monitor”. Ms. Marino described Ishmael as a capable student who earned an unmodified grade of B+ in her course. She never had any concerns about his behavioral, emotional or academic functioning. She never needed to implement the “safety plan” in his IEP. Ms. Marino testified that she would not recommend any supportive accommodations or modifications for English for Ishmael. (Marino; see e.g. S 31-36)
10. Mary Stadelman taught Ishmael accelerated pre-calculus during the 2007-2008 academic year. She testified that she read Ishmael’s IEP at the beginning of the school year, highlighted the portions appropriate for her class, laminated those portions, attached them to her seating chart, and implemented them. The accommodations she used with Ishmael were: preferential seating, extra time for tests, reassurance and redirection to maintain focus, laptop or recording in class (never used); written assignments with clear deadlines; and weekly progress reports. Ms. Stadelman noted that had there been missing homework or a drop in grades that she would have taken the action listed on the IEP, but the precipitating event never occurred. Ishmael stayed after school two times on his own initiative for extra help. Ishmael had excellent homework completion and test grades earning a final grade that permitted him to take AP Calculus in his senior year. He liked to work independently because he was quicker than most other students in the class. He has his own nontraditional organization system which worked well for him.
Ms. Stadelman testified that she was aware of the “safety plan” in Ishmael’s IEP but never implemented it on her own observation. She never observed Ishmael to be depressed. Once, in response to an email from Ishmael’s liaison, Pat Weatherlow, Ms. Stadelman provided visual surveillance of Ishmael as he walked the short distance from her room to the nurse’s office during class.
Based on her work with Ishmael and her attendance at his Team meetings Ms. Stadelman concluded that the 2006-2007 IEP in effect during the 2007-2008 school year was “too restrictive” for Ishmael. She agreed with the Student’s request to reduce the academic support time, suggested changing the weekly progress reports to monthly and thinks eliminating the teacher scheduling of additional assistance will promote Ishmael’s independence and self-advocacy. Ms. Stadelman stated that the proposed 2008-2009 IEP is appropriate for Ishmael. (Stadelman)
11. Susan Sullivan was Ishmael’s Social Studies teacher during the first semester of the 2007-2008 school year. She read his IEP before the start of school and implemented all the accommodations. She was aware of the “safety plan” in the IEP and prepared to implement it, but never had to use it. Ms. Sullivan testified that Ishmael did not need any accommodations or assistance from the Resource Room when completing his long term paper. He earned an A in all assignments and tests. Ms. Sullivan described Ishmael as “the perfect student”, a deep thinker who wrote very empathetic papers. He was serious, and attentive, participated thoughtfully in class discussions and had a wide range of knowledge. (Sullivan; see also P-72)
12. John Kennedy, Head of the Duxbury High School Social Studies Department, taught Ishmael in AP U.S. History during the 2007-2008 school year. Mr. Kennedy read Ishmael’s IEP before the beginning of the school year and implemented it throughout the year. Mr. Kennedy gave Ishmael a syllabus (detailed assignments and due dates) prior to starting each new chapter. He called the parent to alert her to assignments a few times. He prepared weekly progress reports. Ishmael sat in the front row but never needed assistance refocusing in class or completing homework. Mr. Kennedy was aware of the “safety plan” contained in Ishmael’s IEP, and observed Ishmael particularly closely after a death in the family, but never needed to implement it. Mr. Kennedy described Ishmael as a quiet, serious student and an independent thinker with excellent behavior, whose final grade, a B, was average for the class. Mr. Kennedy stated that the 2006-2007 “stay put” IEP was overly restrictive for Ishmael. In his opinion the weekly progress reports are demeaning and not necessary, or used by Ishmael, to maintain focus on tasks. Mr. Kennedy recommended that Ishmael be challenged to work independently in a supportive environment before he is required to work independently in a new one. (Kennedy; see e.g. P-71)
13. Janet Miller, Ishmael’s reading and academic tutor, testified that she had worked with Ishmael for several years and had noted “great” progress in work completion, adhering to deadlines, organizational skills, and self-advocacy. She stated that none of Ishmael’s teachers had sought her assistance to address Ishmael’s grade, organization, or timely completion of assignments. Ms. Miller believed she was aware of and adhered to Ishmael’s “safety plan” as outlined in the 2006-2007 IEP (see e.g. S-51; Miller)
14. Patricia Weatherlow, a certified special education teacher, began working with Ishmael in the Resource Room in the spring, 2006. Ms. Weatherlow is also involved in the Drama Club. She worked with and observed Ishmael in that after-school activity for two years. Ms. Weatherlow was designated as the liaison on Ishmael’s 2006-2007 IEP (P-1. S-1) as well as subsequent proposed IEPs (S-2; S-5; S-16; S-17; P-29; S-60). She was also designated as the “monitor” to oversee the implementation of the accepted IEP. (Weatherlow; Corvini; P-3). Ms. Weatherlow worked directly with Ishmael to improve his organizational skills, supervised Ms. Miller’s academic tutoring, coordinated assignments with Ishmael’s regular academic teachers, and provided education, communication, and assistance to all school staff to ensure implementation of all the accommodations set out in Ishmael’s IEP. Ms. Weatherlow stated that Ishmael’s teachers were aware of, and implemented, all aspects of Ishmael’s IEP, including the “safety plan”. (Weatherlow; see e.g. P-6, 7, 8, 9, 10, 11, 12, 14, 16, 19, 48, 49, 54, 55, 56, 57, 58, 59, 73, 74, 75; S-15, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 51, 63, 64, 65, 66, 67, 68, 69, 70, 71, 72, 73, 74, 75, 76, 79, 80)
Ms. Weatherlow testified that Ishmael has not needed assistance with the content of his academic courses, but did need and use help with organizing his work. By January 2008, Ishmael had met all the goals in the 2006-2007 IEP and could start, plan and organize assignments independently. By January 2008, most of the accommodations listed in the 2006-2007 IEP were no longer necessary to ensure that Ishmael received a free, appropriate public education. In particular Ishmael did not need weekly progress reports, grade breakdowns or calendars. He was never required to stay after school to make up missing homework. Ms. Weatherlow agreed that a reduction in Resource Room time would be appropriate for Ishmael. (P-19; S-78; Weatherlow)
Ms. Weatherlow noted that Ishmael’s “safety plan” was not implemented during his after school hours where he independently and responsibly attended to multiple activities and demands. She also noted that when she relayed concerns to the Mother about Ishmael’s mood and affect most recently on May 8, 2008, she had no response from the parent. (Weatherlow; P83; S-75)
15. Wayne Frieden, the School Psychologist at Duxbury High School, has been meeting with Ishmael weekly since his 9 th grade year. They have discussed both academic and family issues. Mr. Frieden described Ishmael as very bright, polite, motivated, interesting, curious and receptive to talking and to receiving help. Mr. Frieden testified that Ishmael has many friends and is very involved in school activities. Ishmael has made “a lot” of progress in all areas since Mr. Frieden began working with him during the 9 th grade. Although he is prone to depression and anxiety when stressed, Ishmael is currently handling stress well and actively seeking and accepting help when appropriate. In the spring, 2008 for example, after a death in the family, Ishmael met with Mr. Frieden and Ms. Weatherlow to go over his safety plan and to request extension of academic due dates. (Frieden)
Mr. Frieden is aware of both the school-wide safety plan and the student specific safety plan set out in Ishmael’s 2006-2007 IEP. He testified that Ishmael had not needed any safety plan or any crisis management services during the 2007-2008 school year. The school nurse routinely contacted Mr. Frieden and the parent whenever Ishmael visited her office. Mr. Frieden provided no supervision or service during Ishmael’s on-campus after-school activities. (Frieden)
At the May 2008 Team meeting, all the Team members, including the Student, but with the notable exception of the Mother, agreed to eliminate some academic accommodations, to modify some others, such as the monitoring reports and the safety plan, and to reduce the time spent in the Resource Room, to reflect Ishmael’s age appropriate functioning and to promote his acquisition of independence skills. (Frieden)
16. Margaret Malone is the nurse at Duxbury High School. She had the opportunity to assess Ishmael approximately 20 times during visits to the health room during the 2007-2008 school year. She is aware of his diagnosis and his safety plan and coordinated her response efforts with Ms. Weatherlow and Mr. Frieden. After evaluating Ishmael, and providing the appropriate remedy for his physical complaint, Ms. Malone would escort Ishmael back to class, ensure continuity of adult supervision and notify the administration and the parent of Ishmael’s visit. (Malone; P-60; S-52)
17. The Principal of Duxbury High School, Andrew Stephens, testified that he had attended all Team meetings for Ishmael since September 2007. He stated that the IEP designed at the May 2008 Team meeting, to be implemented during the 2008-2009 school year, met the recommendations of all Duxbury High School teaching and guidance staff, as well as the request of the Student, for a reduction of time assigned to the Resource Room and a reduction in teacher monitoring and reporting on the Student’s work completion and grades. The Team, apart from the Mother, believed the 2006-2007 IEP was overly restrictive and did not adequately move the 17 ½ year old honors student toward independence. According to Mr. Stephens, the proposed 2008-2009 IEP language concerning Ishmael’s safety plan and academic accommodations more accurately reflects the Student’s current accomplishments, cognitive and emotional functioning and maturity. (Stephens)
18. The Father testified that Ishmael has matured emotionally, educationally, and physically since the first IEP was developed in May 2006, due in large part to the efforts of the teachers at Duxbury High School. The Father believes that any IEP is too restrictive for Ishmael. The Father noted that Ishmael has no safety plan or escorts outside of school and school hours. He is achieving at an honors level academically along with participating without adult assistance or supervision in many age appropriate activities. The Father stated that Ishmael needs to be fully independent in the school setting before he goes off to college. (Father)
19. The Mother testified that although Ishmael has the potential to be a high achiever, he lacks the organizational skills to handle long term assignments. According to the Mother when faced with assignments he can’t do, Ishmael becomes overwhelmingly depressed and suicidal. The Mother has refused consent to a psychiatric evaluation proposed by the school and approved by the BSEA3 .
The Mother stated that school staff have not implemented the 2006-2007 “stay put” approved IEP during the 2007-2008 academic year. In particular she claimed:
A. the teachers failed to schedule after school sessions to help Ishmael complete missing or tardy homework;
B. the nurse did not inform the mother when Ishmael visited the health room;
C. teachers never provided grade breakdowns;
D. teachers never developed weekly or monthly calendars:
E. Ishmael’s safety plan was not implemented;
F. the resource room teachers did not provide appropriate assistance withorganizational tasks and long term assignments;
G. the school failed to convene team meetings when requested by the parent in May and September 2007.
The Mother acknowledged receiving written progress reports, grade breakdowns, and long term assignment component due dates from Ishmael’s teachers. (P-6-12; P-14; P-16; P-19; P-48; P-49; P-54 -59; P-73 -75) She acknowledged attending three Team meetings and at least one “other” meeting with Ishmael’s teachers during the 2007-2008 school year. She acknowledged that Ishmael had received all As & Bs in honors and AP level academic classes during the 2007-2008 school year, but complained that his “GPA” should have or could have been “higher’ had the teachers correctly implemented the accommodations in the accepted IEP. The Mother testified that Ishmael’s high school GPA of 3.2 is not consistent with his cognitive potential, his SAT scores, or his college aspirations (S-80; Mother)
20. Administrative Notice is taken of prior BSEA Decisions concerning this Student, and these same parties: Duxbury Public Schools and Ishmael , BSEA # 07-2419, 6/13/07 (Byrne); 13 MSER 223 (2007) and Ishmael & Duxbury Public Schools, BSEA #07-2419C, 9/25/07 (Byrne); 13 MSER 337 (2007).
Findings and Conclusions
There is no dispute that Ishmael is a student with special learning needs as defined by 20 U.S.C. § 1401 et seq ., and M.G.L. c.71B and is therefore entitled to receive a free, appropriate public education. The primary question presented here is whether Ishmael is actually receiving the education to which he is entitled. After careful consideration of all the evidence presented at the hearing, making appropriate determinations of weight and credibility, I find that Duxbury Public Schools provided a free, appropriate public education to Ishmael throughout the 2007-2008 school year that was consistent with implementation of the last accepted (2006-2007) IEP. I further find that the three IEPs Duxbury developed and proposed to the parent during the 2007-2008 school year were reasonably calculated to ensure that Ishmael continued to receive a free, appropriate public education in the least restrictive setting. My reasoning follows:
Issue 1, 2, 3:
A. The Mother alleged in her request for hearing, and argued throughout the due process proceedings, that Duxbury Public Schools had failed to fully implement the “last accepted” “stay put” IEP, and that the failure to comply with the academic accommodations and the safety plan set out in that IEP denied Ishmael a free, appropriate public education. The Mother has the burden of proving both Duxbury’s lack of compliance and the resulting harm to the student. Shaffer v. Weast , 546 U.S. 49 (2005).
The parties agree that the last accepted IEP, the one in force throughout the 2007-2008 school year, is the one developed in May 2006, to cover the 2006-2007 school year. (P-1, S-1) That IEP provided for direct special education academic support, individual counseling, organizational and communication accommodations in regular education courses and a student-specific safety plan.
All of Ishmael’s regular education teachers testified that they were aware of the accommodations listed on Ishmael’s IEP and implemented them. (Marino; Stadelman: Sullivan: Kennedy: ¶ 9-12) Ishmael’s special educators testified that Ishmael received the type, frequency and amount of direct special education support called for in the accepted IEP. (Miller; Weatherlow; ¶ P13-14) Ishmael regularly attended his weekly guidance sessions with Mr. Frieden as the IEP provided. (Frieden; ¶ P-15) Ms. Malone stated that she complied with the Mother’s request to be notified of every visit Ishmael made to the health room (Malone; ¶ P-16). Each one of the Duxbury High School staff who worked with Ishmael during the 2007-2008 school year and testified at the hearing confirmed her or his awareness of the safety plan set out in the 2006-2007 IEP. Ms. Malone, Ms. Weatherlow and Ms. Stadelman explained how they implemented the plan. None of the other witnesses had an occasion to use the plan. I found the testimony of Ms. Marino, Ms. Stadelman, Ms. Sullivan, Mr. Kennedy, Ms. Miller, Ms. Weatherlow, Mr. Frieden, Ms. Malone, Mr. Stephenson and Ms. Corvini to be candid, informed, sympathetic, and credible. Indeed I was impressed by the depth of commitment, understanding and creativity these professionals displayed in their work with Ishmael under very difficult circumstances during the 2007-2008 school year. The testimony of the witnesses was buttressed by the documentary record which showed that the organizational and communication accommodations listed on Ishmael’s IEP had been implemented throughout the 2007-2008 school year. (P-5; P-6; P-7; P-8; P-9; P-10; P-11; P-12; P-14; P-16; P-19; P-48; P-49; P-54; P-55; P-56; P-57; P-58; P-59; P-73; P-74; P-75; P-83; S-15; S-25; S-26; S-27; S-28; S-29;S-30; S-31; S-32; S-33; S-34; S-35; S-36; S-37; S-38; S-39; S-40; S-41; S-42; S-43; S-44; S-45; S-46; S-47; S-48; S-49; S-51; S-52; S-63; S-64; S-65; S-66; S-67; S-68; S-69; S-70; S-71; S-72; S-73; S-74; S-75; S-76; S-79:S-80) The Mother produced no credible evidence to contradict the testimony of the school witnesses. There is no documentary support for the Mother’s assertion that Duxbury failed to implement Ishmael’s “stay put” IEP during the 2007-2008 school year.
In her hearing request the Mother specifically indentified only one problematic area of alleged noncompliance with the IEP. She asserted that Duxbury had failed to assign specific days for Ishmael to stay after school to complete missing homework, and to notify the Mother of the assigned dates. There is no credible support for this assertion in the hearing record. On the contrary, Ishmael’s teachers consistently reported that Ishmael did not have incomplete or missing homework assignments that required advance scheduling of days to remain after school for teacher assistance. The Mother points out two documents referring to after school help (P-8, P-9). Neither, however, indicates a specific need for after school homework completion assistance, and I credit the witnesses’ testimony that such assistance was unnecessary as Ishmael handled the course work expectations successfully and independently.
In her opening and closing arguments the Mother raised several additional areas of alleged noncompliance with Ishmael’s IEP. Though technically those assertions should not be considered as the school did not have advance notice of the Mother’s claims as required by 20 U.S.C. 1415 (6) (7); 20 U.S.C. 1415 (f) (II) (B), I will nonetheless discuss them here as it is important to directly address the concerns of unrepresented parties in administrative due process hearings to the extent consistent with the intent of the law and with good sense. Because both parties examined the witnesses on these issues, and because they have been ongoing concerns of the parent as evidenced by her complaints to other special education monitoring agencies, I find that consideration of these issues as part of this due process hearing will not unduly prejudice the school.4
The Mother alleged and testified at the hearing that the school nurse failed to adhere to the IEP when she did not notify the Mother each time Ishmael visited the health room. Ms. Malone testified that she left phone messages at the Mother’s home and on her cell phone each time Ishmael visited the health room. Ms. Malone also notified the Father. (Malone; see confirming testimony of Father; see also P-60, S-52) Based on my observations of the principal witnesses, the supporting documentation, and conforming testimony of other witnesses, I credit the testimony of Ms. Malone, and specifically find the testimony of the Mother to be unreliable. Therefore I find that the preponderance of the evidence supports the conclusion that Duxbury Public Schools complied with the IEP accommodation listed in Ishmael’s 2006-2007 IEP requiring parental notification of health room visits.
The Mother alleged, and testified at the hearing, that Ishmael’s teachers failed to provide her with final “grade breakdowns” as required by Ishmael’s IEP. Ishmael’s teachers testified that final and interim grade breakdowns were provided to the Student and the Mother throughout and at the conclusion of each of the courses. (Stadelman; Sullivan; Kennedy; see eg . S-79; S-66; see also : P- 8-14; P-16; P-19; P-48; P-59; P-73-75; S-15; S-25-49; S-51; S63-76) I found the Mother’s testimony to be internally inconsistent and at variance with the documents she submitted in support of her assertion. The testimony of Ishmael’s teachers, on the other hand, was nondefensive and supported by substantial documentary evidence. Therefore I find that the preponderance of the evidence supports the conclusion that Duxbury Public Schools complied with the accommodation listed in Ishmael’s 2006-2007 IEP requiring teachers to provide final “grade breakdowns”.
The Mother alleged, and testified at the hearing, that long term assignments were not broken down into smaller units with separate deadlines, as Ishmael’s IEP required. This allegation is wholly unsupported in the evidentiary record. Ishmael’s Social Studies and English teachers cited several examples of long term assignments, such as the Holocaust Project and the History Term Paper, for which smaller units and separate deadlines were established. Ishmael was provided written reminders through syllabi and weekly progress notes. In most instances Ishmael was able to independently meet the due dates established, or to appropriately seek assistance from the teacher and/ or the special education staff. (Sullivan; Marino; Kennedy; S-66; P-6-7, 11) Therefore I find that the preponderance of the evidence supports the conclusion that Duxbury Public Schools complied with the accommodation listed in Ishmael’s 2006-2007 IEP requiring teachers to establish smaller units and separate deadlines for long term projects.
The Mother alleged, and testified at the hearing, that Duxbury failed to provide Ishmael with weekly/ monthly calendars to track his course assignments. Pat Weatherlow testified that calendars were used and available in the resource room. Ms. Miller testified that Ishmael appropriately and successfully used his “agenda” to record and monitor his assignments. (See confirming testimony of Sullivan, Marino, Kennedy; Stadelman) Based on my assessment of the relative reliability of the witnesses I credit the testimony of Ms. Weatherlow and Ms. Miller. I therefore find that the preponderance of the evidence supports the conclusion that Duxbury Public Schools substantially and functionally complied with the accommodation listed in Ishmael’s 2006-2007 IEP requiring the use of “calendars” to track assignments.
The Mother alleged, and testified at the hearing, that Ishmael did not receive appropriate resource room assistance with developing organizational skills and completing long term assignments. On the contrary, the credible evidence clearly shows that Ms. Weatherlow and Ms. Miller provided the tools and support necessary to permit Ishmael to develop and to use an individualized organizational system that permitted him to achieve better than passing grades in a demanding AP/ honors academic course load while maintaining a full schedule of extra-curricular activities and a part time job. Similarly the credible evidence shows that Ms. Weatherlow worked effectively with Ishmael, with Mr. Frieden and with Ishmael’s teachers, when the prospect of a long term assignment challenged Ishmael’s organizational and time management skills. (Weatherlow, Frieden, Kennedy) There is no evidentiary support for the Mother’s assertion that Ishmael did not receive adequate or appropriate instruction in organizational skills in the Resource Room. Therefore I find that the preponderance of the evidence supports the conclusion that the Duxbury Public Schools complied with Ishmael’s 2006-2007 IEP by providing appropriate instruction and support in Ishmael’s identified area of weakness: organizational skills.
The Mother alleged, and testified at the hearing, that Duxbury failed to hold a parent-teacher meeting before the third week of the school year, as set out in the “additional information” section of the 2006-2007 IEP. The documents submitted by the Mother show that a parent-teacher meeting was held on September 17, 2007 (P-72). Taken in conjunction with the credible testimony of Ishmael’s teachers that they had read Ishmael’s “stay put” IEP prior to the beginning of the 2007-2008 school year (Stadelman, Sullivan, Marino, Kennedy) and had immediately implemented the listed accommodations, I find the Mother’s contention to be without merit.
The Mother further alleged, and testified, that Duxbury failed to schedule a Team meeting upon her request to do so. First I note (with some surprise), that there is no regulatory obligation to convene a Team meeting solely on the request of a parent. The parent did meet with Ishmael’s teachers, and had regular communication with Special Education and high school administrative staff throughout the fall of the 2007-2008 school year. Two Team meetings were held in January 2008 and an additional one was held in May 2008 (P-27; 28; 29; 30; S-16; S-17; S-50; S-60; S-61) The parent was not ignored. Therefore I find that Duxbury Public Schools substantially complied with Ishmael’s “stay put” IEP and the special education regulations concerning Team meetings during the 2007-2008 school year.
Finally, the Mother alleged and testified at the hearing, that Duxbury High School staff did not implement the “safety plan” she approved and that appears as an accommodation on the 2006-2007 “stay put” IEP. The Mother produced no eyewitness or documentary evidence to support her assertion. While aware of the accommodation, and its seriousness, most of Ishmael’s teachers indicated that they never observed any behavior or affect that would have caused implementation of the plan during the 2007-2008 school year. (Marino, Sullivan, Kennedy, Miller) Ms. Stadelman provided visual surveillance consistent with the plan one time during the school year. Implementing the plan on one occasion each Ms. Weatherlow and Ms. Malone conveyed concerns to the Mother without response. Based on the credible testimony of the adults who worked closely with Ishmael and with each other in the school building each day, I find that Duxbury substantially and appropriately implemented the “safety plan” set out in Ishmael’s “stay put” IEP throughout the 2007-2008 school year.
In conclusion, the Mother has failed to carry her burden of proving through a preponderance of reliable evidence, that Duxbury Public Schools did not implement Ishmael’s 2006-2007 “stay put” IEP during the 2007-2008 school year. On the contrary, the substantial weight of the credible evidence in this hearing record demands the conclusion that the teachers, counselors, health professionals, support and administrative staff charged with implementing Ishmael’s IEP did so with professional expertise and human compassion. There is no evidence of denial of a free, appropriate public education to Ishmael during the 2007-2008 school year and, therefore, there is no supportable claim for compensatory education.
Had there been any showing of noncompliance with Ishmael’s “stay put” IEP the Mother would then have had to demonstrate a resulting educational harm linked to the particular deprivation. Here the only “proof” the Mother offered in support of her argument that Ishmael suffered educational harm as a result of her perceived noncompliance with one accommodation in the “stay put” IEP is her assertion that Ishmael’s final junior year GPA of 3.2 (P. 80) is not consistent with his high SAT scores or with his college aspirations. There are many reasons apart from compliance or noncompliance with IEPs for bright students, such as Ishmael, to earn A’s and B’s in AP and Honors level academic classes. Level of interest in the subject, familial circumstances, talent, teacher style and expectations, relationships with peers and other adults, time and energy demands of extra-curricular activities, among others play a significant part in student achievement. This record shows that all those circumstances played a substantial role in Ishmael’s life throughout 2007-2008. Attributing Ishmael’s better than passing regular education, honors class grades to any one factor would be impossibly speculative based on this record.
Issue 4:
B. Duxbury proposed two IEPs in January 2008. The first, issued on January 10, 2008, after a Team meeting held on January 7, 2008, proposed some language changes in the academic and organizational accommodations, as well as to the “safety plan”. The changes were recommended by Ishmael’s teachers and his guidance counselor to reflect his developing organizational skills, his more mature approach to academic responsibilities, and his stable social-emotional functioning in the high school community. The Team also proposed reducing the direct resource room assistance to Ishmael from 4.5 periods per week to 2 periods per week. (See [P 6) The majority of the Team, including the Student and his father, agreed that the changes would promote Ishmael’s independence and self-advocacy skills. The Mother disagreed and rejected the proposed changes. She did not present any evaluations or professional recommendations to the Team. (S-16)5
The Team reconvened on January 17, 2008 to consider the Mother’s objections. The Team clarified the proposed changes to the accommodations section and put additional “safety plan” language in the additional information section of the IEP. The new IEP also increased the direct resource room time from 2 periods per week to 3 periods per week. These alterations reflect thoughtful consideration of the Mother’s concerns while still addressing the then current academic / emotional status of the student and the professional judgment of the talented staff working with him. The Mother did not present any information to the Team that would supplement or contradict Duxbury’s professional recommendations. Although Duxbury had previously offered to secure pertinent evaluations to assist the Team in planning for Ishmael, the Mother has consistently refused consent to appropriate additional evaluations6 . Therefore the Team had only its own observations and assessments of Ishmael’s in-school academic, organizational, social and emotional functioning to consider when developing the January 2008, IEP. That was enough. Each of Duxbury’s witnesses was thoughtful, well qualified in their respective fields, flexible and creative in adapting teaching methods and content to Ishmael’s needs and to the barriers to Ishmael’s optimal functioning. Their recommendations are founded in a realistic assessment of Ishmael’s current educational status and goals for the future. I find, based on the substantial weight of the credible evidence in the hearing record, that the final IEP proposed by Duxbury pursuant to the January 2008 Team meetings, meets all the professional recommendations of the Team members and is reasonably calculated to ensure a free, appropriate public education to Ishmael in the least restrictive setting.
Issue 5
C. The IEP developed as a result of the Team meeting held in May 2008, to cover the 2008-2009 school year proposed changes in the language of the accommodations substantially similar to that incorporated in the IEPs proposed in January 2008. There are no academic goals in the proposed IEP. (Compare S-60 and S-17) The Mother rejected shifting the weekly monitoring reports to monthly. She also objected to placing the primary responsibility for scheduling homework make-up sessions and organizing long term assignments on the Student. She rejected any changes to the “safety plan” language as set out in the 2006-2007 IEP. (P-81) She accepted a reduction in direct resource room assistance from the last accepted 4.5 periods per week to 2 periods per week. (Mother) The Mother presented no professional evaluations or direct observations to support her objections to the proposed 2008-2009 IEP. Duxbury staff uniformly supported a reduction in direct special education support to Ishmael. Ishmael’s teachers and counselor also supported modifying the language of the accommodations, including the “safety plan”, to acknowledge Ishmael’s acquisition of age appropriate organizational, social-emotional and self advocacy skills, and to encourage continued growth toward mature, independent functioning in all settings. I found the recommendations of the Duxbury staff to be reasonable, founded in good educational practice and sound professional judgment, and designed to produce demonstrable educational benefit to Ishmael. There are no countervailing educational recommendations in this record. Therefore I find that the 2008-2009 IEP proposed by Duxbury is reasonably calculated to ensure a free, appropriate public education to Ishmael in the least restrictive setting.
Conclusion
The administrative and hearing record amply demonstrates that Duxbury Public Schools personnel not only substantially complied with the last accepted IEP for Ishmael, but also delivered carefully tailored, appropriate educational instruction and emotional support throughout the 2007-2008 school year. That they did so in spite of, rather than because of, relentless, insubstantial complaints and unsupported, and at times untruthful, ad hominem attacks, is a measure of their professionalism and dedication to all their students, and to Ishmael in particular.
Two additional items advanced by the School warrant brief discussion. First the school asserted that the BSEA’s finding in prior hearings between the same parties that the Mother’s ongoing refusal to cooperate with the BSEA-approved psychiatric evaluation of the Student relieves it of the obligation to provide a free, appropriate public education to the Student. I reject that summary as overbroad. The School always retains its statutory duty to provide “FAPE” to an eligible student, but realistically can do so only to the extent of its knowledge and within the legal limits of parental, or substitute parental consent. In this instance Duxbury has acted at all times consistent with both its obligation under the IDEA 2004 and M.G.L.c71B, and with the information it reasonably had at its disposal.
Second, Duxbury argues again that there are sufficient facts in the hearing record to support a finding that the Parent pursued this due process hearing for the improper purpose of harassing school district personnel and increasing the cost of litigation. 20 U.S.C. 1415(i) (3), 34 C.F.R. 300.517 (a) (1) (iii). The BSEA dismissed the school’s harassment claim when it was originally advanced, finding that Duxbury had not proven parental intent to harass7 . Now, having had the opportunity to offer proof of intent based primarily upon the parent’s behavior, demeanor, testimony and arguments over the course of the hearing, the School again urges the Hearing Officer to consider its harassment claim.
While it is evident from the record that the Mother’s behavior towards the school is belligerent, that her correspondence is replete with factual inaccuracies, and that her attempts to micro-manage her son’s and his teachers relationships and are both inappropriate and counterproductive, I am unable to conclude with certainty that these actions are intentional. To do so would require a predicate finding of informed reasonableness. Based on my supervision of this due process proceeding I am unable to conclude that the Mother is capable of conforming her actions to a reasonably prudent standard or of forming a specific intent to harass8 . Indeed there is only one instance in which intent to harass could be readily inferred: this is with the Mother’s actions concerning the testimony of Wayne Frieden.
During pre-hearing conferences held in May and June 2008, the Mother indicated her intent to call Mr. Frieden as a witness. The assigned hearing dates were July 1, July 17 and August 1, 2008. The Mother was informed that due to prior professional commitments involving out of state travel Mr. Frieden would not be available on any of the selected hearing dates. She was given the option of scheduling a hearing day prior to June 30, 2008, to examine Mr. Frieden, or of conducting a deposition of Mr. Frieden, or examining Mr. Frieden by telephone, or submitting a set of written questions to Mr. Frieden. The Mother rejected all these options and insisted that a subpoena be issued for his presence at the hearing on August 1, 2008. As the parties and the Hearing Officer had been notified in advance, Mr. Frieden did not appear on that date. The Mother was advised that subpoenae to BSEA Hearings are enforced through the Superior Court and she indicated her intent to seek enforcement there. When Mr. Frieden returned to the jurisdiction at the beginning of 2008-2009 school year he offered to provide testimony on any school day. The Mother spurned his offer reiterating her intent to enforce the original subpoena. The BSEA scheduled an additional day of hearing to receive Mr. Frieden’s testimony. The Mother received notice of the September 4, 2008 hearing date 26 days in advance. Six days before the hearing the Mother wrote to the BSEA stating that she would not attend the hearing and would instead seek enforcement of the original subpoena in Superior Court. The Mother did not, in fact, attend the hearing or examine Mr.Frieden in any alternate manner. As far as can be determined the Mother has not yet asked the Superior Court to enforce the BSEA subpoena issued to Mr. Frieden. (Administrative Record)
I infer from this course of action that the Mother did not genuinely wish to present Mr. Frieden’s substantive testimony for the Hearing Officer’s consideration, but rather used the due process procedures available through the BSEA in an attempt to harass and intimidate this witness. While this example illustrates the tenor of the Mother’s complaints and actions during the hearing process, it is much less clear that it would satisfy the statutory requirement that the parent’s “Request for a due process hearing was presented for an[y] improper purpose.” 34 CFR 300.517 (a) (iii). As Massachusetts law permits a parent to request a hearing “on any matter concerning the provision of special education in accordance with state and federal law”, the bar for evaluating the substance, and the intent, of any request for hearing is quite low. 603 CMR 28.08 (3) (a). While the cumulative effect on school staff of the Mother’s perennial advocacy efforts may appear to be harassment, I am not convinced that the Mother intended, or could reasonably form a specific intent, to harass the school district or to increase Duxbury taxpayers’ litigation costs when she originally filed her hearing request in December 2007.
Order
The Duxbury Public Schools substantially implemented the last accepted 2006-2007 Individualized Education Plan for Ishmael throughout the 2007-2008 school year. At no time during the 2007-2008 school year was Ishmael denied the free, appropriate public education to which he was entitled.
Both the IEP developed in January 2008, to cover the remainder of the 2007-2008 school year, and the IEP developed in May 2008, to cover the 2008-2009 school year, met the recommendations of all the education professionals working with Ishmael, were carefully tailored to meet his unique academic, organizational, and social- emotional needs, and were reasonably calculated to provide a demonstrable educational benefit in the least restrictive setting.
Date:
Lindsay Byrne, Hearing Officer
1
“Ishmael” is a pseudonym selected by the Hearing Officer to protect the privacy of the Student in documents available to the public.
2
All witnesses at hearing were sequestered for testimony at the parties’ request.
3
See : Duxbury Public Schools and Ishmael , BSEA # 07-7419, 6/13/07 (Byrne); 13 MSER 223 (2007); and Duxbury Public Schools and Ishmael , BSEA# 07-2419C (Byrne); 9/25/07; 13 MSER 33.
4
The Mother filed at least six complaints with the Program Quality Assurance Office of the Massachusetts Departmnet of Education (now the Massachusetts Department of Elementary and Secondary Education) alleging non-compliance with the 2006-2007 IEP and related infractions (P-3; P-12; P-13; P-17; Brinkerhoff), and at least two with the U.S. Office for Civil Rights (P-4, 28, 30, 31; See also: S-20-24; S-18; S-19; S-62; P-4; P-28; P-30; P-31.) The responses of those oversight agencies are informative, but not persuasive or dispositive on the issues brought to them and/or presented to the BSEA as the type, method and purpose of their investigations are substantially different than that of the BSEA.
5
The Mother has consistently rejected requests to secure an independent assessment of Ishmael’s psycho-social functioning or to provide additional information to the Team from non-school associated professionals working with Ishmael.
6
See FN3, FN5 and ¶ 20 infra :
7
Ruling on Motions, March 25, 2008 (Beron), Administrative Record.
8
For example, no reasonable parent would willingly sacrifice her child’s mental health and physical safety by refusing a proffered expert psychiatric evaluation that is responsive to her own expressed concerns (S-77). Similarly no reasonable parent would deliberately misconstrue the positive work, concern, and care of educators who enjoy her child each school day (P-83). Nor would a reasonable parent divulge the sensitive, private matters of her child in a public forum readily accessible to his peers (P-56).