COMMONWEALTH OF MASSACHUSETTS
SPECIAL EDUCATION APPEALS
In Re: Pioneer Valley Performing Arts Charter School
BSEA #07-0850
DECISION
This decision is issued pursuant to the Individuals with Disabilities Education Act or IDEA (20 USC Sec. 1400 et seq.) as amended by P.L. 108-4461 , by Section 504 of the Rehabilitation Act of 1973 (29 USC Sec. 794), the Massachusetts special education statute or “Chapter 766” (MGL c. 71B), the Massachusetts Administrative Procedures Act (MGL c. 30A), and the regulations promulgated under these statutes.
At issue here in general are, first, whether the 2006-2007 IEP proposed by Pioneer Valley Performing Arts Charter School (PVPA or School) are appropriate, and, second, whether PVPA fully implemented Student’s “stay-put” IEP. Subsidiary issues are whether PVPA’s grading and promotional system, as applied to Student, has deprived Student a free, appropriate public education or resulted in disability-based discrimination.
On August 2, 2006 the Parents filed a request for a hearing with the Bureau of Special Education Appeals (BSEA). At the request of the parties, the hearing was postponed several times as the parties were attempting to resolve the issues in dispute. Settlement efforts were unsuccessful. An evidentiary hearing was held on December 14, 2006 and on January 4 and 14, 2007 at the offices of Catuogno Court Reporting Services in Springfield and Worcester, MA. Both parties were represented by counsel and had the opportunity to examine and cross-examine witnesses and introduce documentary evidence.
Those present for all or part of the proceeding were:
Student’s mother
Student’s father
Dr. Heather Hornik Private neuropsychologist
Jennifer Blackburn English teacher, PVPA
James Cox History teacher, PVPA
Megan Fogarty Middle School Academic Support Teacher, PVPA
Charles Hopkins Dir. Of Academic Support, PVPA Charter School
Hasan Humadi Math teacher, PVPA
Ljuba Marsh Director of Education and student advisor, PVPA
Jackie Tolzdorf Academic Support teacher, PVPA
Thomas Vreeland Math teacher, PVPA
Kristen M. Serwecki Educational Advocate
Bryan Clauson, Esq. Attorney for Parents and Student
Edward Etheredge, Esq. Attorney for PVPA
Brenda Ginisi Court Reporter
Ian Galloway Court Reporter
The official record of the hearing consists of Parents’ Exhibits P-1 through P-49, School’s Exhibits S-1 through S-22, and S-A through S-R; approximately 5.5 hours of tape-recorded oral testimony and argument, the stenographic transcript produced by the court reporters, and the parties’ written closing arguments. The record closed on April 10, 2007.
ISSUES PRESENTED
The issues in this case are the following:2
1. Whether the IEP for 2005-2006 (the “stay put” IEP) was fully implemented during 2006-2007;
2. Whether the proposed IEP for 2006-2007 was appropriate as written, or could be made appropriate with modifications;
3. Whether PVPA committed procedural violations in its manner of determining whether Student was eligible for so-called “basic credit.”
4. Whether PVPA has accurately assessed Student’s progress towards achieving the goals and objectives stated in his IEP and in the general curriculum, or whether PVPA’s credit and promotion policies or other factors have prevented such assessment;
5. Whether PVPA has applied its credit and promotion policies to Student in a discriminatory manner, in violation of §504 of the Rehabilitation Act;
6. Whether Parents are entitled to an order directing PVPA to change any aspect of its credit or promotion policies as applied to Student;
7. Whether Parents are entitled to compensatory services;
8. Whether Parents are entitled to reimbursement for private tutoring services.
POSITION OF PARENTS AND STUDENT
PPVA has established a policy relative to grading, course credit and promotion that is entirely subjective. This policy fails to provide sufficient objective and reliable information about Student’s performance levels and progress. As a result, PPVA has not developed an IEP for Student that contains accurate measures of his performance levels or measurable annual goals, and has not provided Parents with accurate information about whether Student has been making effective progress.
Further, PPVA has discriminated against Student in violation of §504 of the Rehabilitation Act by refusing to modify its so-called “80% competency rule” as an accommodation to his disability, which requires, among other things, that students meet deadlines for work completion. Student’s disability affects his ability to meet these deadlines, but PPVA unlawfully refused to modify the rule in Student’s case.
On a related issue, PPVA deprived Student of FAPE by depriving Parents of the opportunity to participate in the process of determining whether Student could receive so-called “basic credit,” which allows for limited exceptions to the “80% rule.” Rather, Parents assert that PPVA made decisions to allow “basic credit” unilaterally, unlawfully bypassing the TEAM process in Student’s case.
Further, PPVA’s proposed IEP for 2006-2007 does not provide Student with appropriate specialized instruction and appropriate personnel to allow him to make effective progress. Finally, PVPA has not fully implemented the 2005-2006 “stay put” IEP because it has refused to provide specialized instruction within the general classroom as stated in Grid B of the “stay put” IEP. This “stay put” IEP can be modified to provide FAPE to Student.
Parents seek the following relief:
1. An order requiring PVPA to state in Student’s IEP that he will not be retained and will receive credit for all work for which he receives a grade of 60% or better;
2. An order requiring a special education teacher in each core content class at all times; this teacher shall include in progress reports statements of how Student benefits from specialized instruction and accommodations in the classroom
3. An order requiring PVPA to provide percentage grades for every goal and objective required for passing the class; to use an objective means of measuring Student’s progress, and an explanation to Student of how he can increase his percentages;
4. An order requiring PVPA to provide standards and benchmarks to Student that are aligned with the Massachusetts Frameworks and PVPA standards, and to inform Parents of the differences between the standards;
5. An order to provide Parents with detailed clarification of accommodations in the IEP that cannot be used in MCAS;
6. Compensatory services as well as reimbursement for private tutoring that Parents provided during 2005-2006.
POSITION OF SCHOOL
PPVA has a student assessment policy that focuses on competency rather than letter or number grades. Parents knew this when they enrolled Student at PPVA. PPVA also has the flexibility to allow Student and others with disabilities to succeed in the least restrictive environment, both with IEP services and with informal adjustments and accommodations. At all relevant times, PPVA has provided or proposed IEPs that are reasonably calculated to afford Student a FAPE, and, moreover, has been willing to work with Parents to make changes in his IEP as well as to make other accommodations to support Student so that he can succeed at PVPA.
Unfortunately, Parents have chosen to reject the 2006-2007 IEP. This IEP would have provided Student with FAPE, as is or with refinements that PVPA was more than willing to consider. Instead, Parents have decided to focus on forcing PPVA to change its grading and promotion policies. This focus is misplaced. These policies are irrelevant to the issue of Student’s progress towards achieving his IEP goals. Moreover, despite the Parents’ refusal accept the most recent IEP and work with PVPA towards improving it if necessary, Student has, in fact, succeeded in PPVA’s program, and would meet with even more success if PVPA could implement its proposed IEP. Finally, Student does not require the substantially separate instruction that Parents request. This service model is more restrictive than Student requires, as he has been able to succeed in the mainstream with supports. Moreover, a separate setting would stigmatize Student unnecessarily.
FINDINGS OF FACT
1. Student is a fifteen-year-old ninth grader at PVPA. The parties do not dispute Student’s profile. He is a kind, pleasant, and cooperative young man with a positive attitude towards learning. Student is enthusiastic and creative and has interests and talents in many areas, including music (he plays at least four instruments), mechanical tasks, working on electronic sound systems, and creative writing. Student has normal intellectual functioning. In general, he reads well, with some comprehension issues described more fully below. (P-1, Hornik)
2. Student has been diagnosed with ADHD as well as an atypical learning disorder. This combination of disabilities affects his working memory, executive functioning, visual-spatial organization, and regulation of his energy level. Student’s disabilities have a pervasive impact on his academic functioning.3 Student’s difficulties with attention and executive functioning in particular interfere with his ability to maintain his focus on tasks, to initiate and complete work independently, to remember and organize assignments, and to produce work consistently. Student works slowly, and has some problems with math and writing. Although he is a fluent reader, his attentional difficulties interfere with reading comprehension, especially with difficult text. Parents and teachers have been concerned with Student’s distractibility, slow processing of information, especially in math, procrastination, resistance to doing homework, failure to hand in assignments on time or at all, and difficulty with taking responsibility for his own learning. (P-1, Hornik)
3. At all relevant times, Student has attended the PVPA. PVPA is a public charter school located in Hadley, MA. PVPA serves approximately 400 students in grades 7 through 12. PVPA’s stated mission is to “offer students intensive exposure to the performing arts, within the context of an excellent college preparatory curriculum.” Its self-described educational philosophy is to “provide students with a supportive and challenging environment that is responsive to multiple learning styles, emphasizes learning through the arts, and integrates creative and critical thinking…” The school purports to have the flexibility to individualize educational programs for most students, via “small class size, use of multiple learning styles, and variety of assessment tools.” (P-36)
4. As a college preparatory school, PVPA has graduation requirements that “far exceed the Massachusetts state standards;” i.e., students must pass three or four years in each core academic course. Students also must complete a certain number of hours in a performing arts discipline and two performing arts internships as well as participate in various service projects. (S-36, Marsh, Hopkins)
5. Rather than assigning letter grades, PVPA uses a competency-based system to determine whether a student receives credit for a course and is eligible for promotion to the next course or grade. Under this system, PVPA breaks down the content of every course into components parts, which are made into a detailed list of discrete skills and substantive concepts known as “goals and objectives” or “benchmarks.” Every student enrolled in the course is given this list at the beginning of the school year. (P-36, Hopkins, Marsh, Blackburn, Vreeland)
6. To receive credit for any course, a PVPA student must complete every benchmark at the “competency” level i.e., must demonstrate understanding of the concept or skill via approximately “B” level work, or better. (P-36; Marsh, Hopkins) If a student does not complete or show competency in a course benchmark, s/he receives an “incomplete” until s/he does demonstrate competency. A student must retake courses if s/he does not complete the goals and objectives by the end of the school year. (Id.) This is not considered “failure,” as one of the philosophies of PVPA is that students should not receive “social promotion,” but should be given the opportunity to truly learn a subject before moving on to the next level. (Id.) Students are to be given help in achieving competency, and may demonstrate their understanding of the course materials in a variety of ways, including tests, quizzes, written work, oral presentations, discussions with teachers, etc. (Id.)
7. In addition to achieving competency in course content, students must comply with the so-called 80% rule in order to receive course credit. According this rule adopted in 2006,4 students must complete and hand in at least 80% of homework assignments on or before the due date set by the teacher. A student may request extensions of deadlines, and assignments submitted within the extension period are considered timely. (P-36)
8. At any given time, for any course, PVPA deems a student to be working at “full credit,” or “no credit,”5 depending on whether, at that time, s/he has handed in 80% of his/her assignments on time (including extensions), and is progressing with content (i.e., demonstrating competence on benchmarks) to the satisfaction of the teacher. A student could have a “no credit” status in a course at one point in time because of missing assignments, and then, shortly thereafter, be working at “full credit,” because s/he completes and turns in missing assignments. A student has until the end of the school year to achieve full credit status, such that working at “no credit” at one point in time does not necessarily preclude passing the course. On the other hand, a student may have a “full credit” status at one point, then be working at “no credit” if s/he misses assignments. (Vreeland)
9. Under certain circumstances, a PPVA teacher may grant a student “basic credit,” for a course, if s/he appears to be working to the best of his/her ability, but simply cannot hand in 80% of the assignments on time. To receive basic credit, the student must achieve competency at the “C” level on all benchmarks, and also must turn in at least 60% of assignments on time. If a student is allowed to work towards basic credit and meets these performance criteria, s/he will pass the course. The decision to allow basic credit in any given circumstance is made by the teacher after consultation with administrators. (Marsh, Blackburn, Hopkins)
10. Students on IEPs do not automatically work towards basic credit in any course; they are granted this adjustment in performance requirements in the same manner as students who do not have IEPs. Rather, it is PVPA’s intention that students with disabilities work towards full credit or better, like all other students, with the help of accommodations, specialized instruction, multiple opportunities to master content and the ability to demonstrate understanding of course materials in a variety of ways. (Hopkins, Marsh, S-36)
11. PVPA has an “academic support team” whose function is to provide and/or coordinate services pursuant to IDEA, §504, and Title I. This team is headed by Dr. Charles Hopkins. (Hopkins, P-36) Based on the record, it appears that the primary model for service delivery to special education students is via consultation to classroom teachers on accommodations for students with disabilities and an academic support room where students can go for help as needed. At least at the high school level, there are no substantially separate classrooms at PVPA.
12. Student first enrolled in the PVPA middle school program as a seventh grader, in the fall of 2004. Student arrived at PVPA with a documented diagnosis of ADHD and executive functioning difficulties that had caused him to struggle in elementary school with completing projects, for which he received accommodations under a §504 plan in the sixth grade, including monitoring of assignments, graphic organizers, and home-school communication. (S-G ) Student had struggled in elementary school, and had received a “warning” score on the sixth grade math MCAS exam in the spring of 2004. (Mother, P-4)
13. Student was much happier at PVPA than at his former elementary school (P-4) At midterm, (January 2005) he was progressing in all subjects. The record is unclear as to whether the §504 plan from his elementary school, issued in May 2004, was in effect during the first portion of seventh grade. The record does show, however, that PVPA conducted a §504 review meeting in early May 2004, at which Parent and teachers discussed concerns about Student’s difficulties completing work. (S-F) Student received a “warning” score on the seventh grade English language portion of the MCAS exam in the spring of 2005 (S-L).
14. In July 2005, Parents obtained a private neuropsychological evaluation by Heather Hornik, Ph.D. The evaluation consisted of interviews and standardized tests. Dr. Honk’s cognitive testing showed that Student has solidly average intelligence. However, he demonstrated slow processing speed, relatively weak visual-spatial skills, a passive approach to problem solving, and “significant problems with executive functions,” including “initiating, sustaining, inhibiting, and shifting.” (P-4) Dr. Hornik found that Student’s “difficulties with these core executive functions are part of the more observable problems of [Student’s] passiveness, his disinclination to plan and anticipate consequences, the lack of independent time and task management…” (P-4)
15. On academic tests, Student did very well on measures of reading and spelling. He scored above the 60 th percentile on all measures of the Gray’s Oral Reading Test (GORT4) and the Test of Word Reading Efficiency (TOWRE). He also scored at or above the 50 th percentile in all measures except for the math and written language portions of the Woodcock-Johnson Tests of Achievement. Student’s rankings in the four math sections of the Woodcock ranged from the tenth to the 36 th percentiles. His Writing Samples score placed him in the 28 th percentile. Dr. Hornik’s report cautions that despite his good scores within the highly controlled testing situation, Student has not been able to consistently perform at such level in the less structured environment of school, and would need much guidance, structure, and assistance and monitoring to perform more consistently. (P-6, Hornik)
16. Dr. Hornik made numerous recommendations for accommodations (e.g., pacing work with brief, achievable goals, clarifying assignments, providing color-coded homework folders, breaking down long term assignments into steps, developing calendar systems to assist with timely completion of assignments, good home-school communication, etc.) and direct instruction techniques (identifying the main idea in new information, explicitly linking new and prior information, use of templates, and the like). Dr. Hornik made additional recommendations for helping Student become more active and efficient when he studies, improving reading comprehension, writing, and math Finally, Dr. Hornik recommended extended time for both assignments and tests, and various other standard and non-standard accommodations for MCAS, including extra time, frequent breaks, access to templates and graphic organizers, and a computer. (P-6, Hornik)
17. Dr. Hornik emphasized that Student’s apparent passivity and lack of planning with his learning was directly related to his problems with executive functioning, attention, and memory, and that remediating these deficits would be a process that took time, attention, and much support and structure. (Id.)
18. In September 2005, at the beginning of Student’s eighth grade year, PVPA conducted a TEAM meeting to consider Dr. Hornik’s evaluation. The TEAM found Student eligible for special education services and issued an IEP on September 12, 2005. This IEP adopted most of Dr. Hornik’s definition of Student’s disability, as well as many of the accommodations and strategies that she recommended in her July 2005 report. The IEP contained goals and objectives in reading comprehension, writing, math, and organization/study skills.
19. The annual goals consisted only of a statement that Student would “increase his [reading comprehension/writing/math] skills so as to reach desired proficiency levels to pass his classes.” The “benchmarks/objectives” were more detailed, and included items such as utilization of taught skills such as previewing text, developing automaticity of basic math facts, and developing and using math templates to track the steps of math algorithms. (P-11)
20. The service delivery grid indicates that PVPA would provide 15 minutes per week of consultation to regular education staff, 5×50 minutes per week, each of reading comprehension/writing, math, and study skills/organization from special education staff within the general classroom, (Grid B services) and 4×45 minutes per week of “academic support” outside of the regular classroom, also from special education staff. (S-E) Parents accepted this IEP in early October 2005.
21. Student also received weekly private math tutoring after school. (P-14)
22. The IEP referred to above is the last and only IEP accepted by the Parents, and, for purposes of this appeal, has been designated the “stay put” IEP.
23. Quarterly progress reports issued in November 2005 indicated the following:
· Reading comprehension: Student was struggling even with support, as a result of attentional problems. It was too soon to tell if Student would achieve his IEP objectives. “Alignment with the content area standards and benchmarks would be helpful.”
· Writing: Student had made “some progress,” but again, it was too soon to tell if he would achieve his goal.
· Math: Skills were “developing,” but progress was hindered by attention problems. Student was not receiving “full credit” in math, and “thus not making effective progress toward this goal.” It was too soon to determine if the math goal would be achieved. (S-I)
· Study skills: Student found this area extremely difficult. He constantly struggled to keep track of assignments and materials. He had made some progress and was more organized than the prior year, but was not making “effective progress” in all classes. Student needed to have a more active role in keeping track of his belongings, and needed to develop a better sense of his organizational and attentional problems. When invested, as with music or a project, Student was successful. Student “had the best of intentions,” but was significantly affected by his organizational problems. (S-I)
24. The second quarter progress reports, written on January 25, 2006, essentially replicated those for the previous quarter, except the math report did not indicate whether Student was working at full credit, and the study skills report stated that Student had shown “glimpses of success). (S-I)
25. PVPA issued what appears to be a general course progress report (as opposed to an IEP quarterly progress report) on or about March 23, 2006, covering the period from September 2005 to that date. The report indicated that Student was working very hard, but was at risk of not receiving credit for some academic courses. Specifically, in Language Arts, Student appeared to be struggling, was “rarely focused in class” and often came to class “completely unprepared.” He had met only 53% of his deadlines, and his academic average was 76%; therefore, Student was earning “no credit.” To be at full credit, Student needed to raise his scores to 80% for both deadline compliance and grades on his work. (S-J)
26. In social studies, Student needed frequent cuing to sustain focus, and had great difficulty retaining material he was taught. The teacher was unsure whether Student understood the material. Student did not always improve his scores when he re-took tests (an option for all students), even though he studied hard. Early in the year, the teacher was considering Student for “basic credit” because Student seemed unable to raise his grade to a “B” level even with hard work, provided he turned in all assignments. By March, the teacher felt Student would be able to earn full credit, although he (the teacher) did not elaborate. (S-J)
27. In math, as of March 2006 Student was working at the “no credit” level with a 60% average on tests and quizzes and 30% on homework deadlines. The teacher commented that Student needed to “put more effort” into homework completion. (S-J)
28. The record contains no document or testimony that explain the relationship, if any, between Student’s progress under general PVPA policies as referred to above, and his progress on IEP goals and objectives.
29. During much of eighth grade, Parents and Student’s Academic Support teacher, Ms. Megan Fogarty, were in regular email contact regarding tests, assignments, Student’s behavior and attitude, and progress. Beginning in around November, Parents and PVPA (primarily via Ms. Fogarty), exchanged multiple, lengthy emails discussing Student’s difficulties in school and the possibility that he would be retained in eighth grade. As early as November 2005, PVPA issued Early Warning Notices advising Parents that Student was in danger of not passing math class. (Mother) In or about February or March, the School notified Parents of its intention to meet with them and Student to discuss the possibility of non-promotion, and the Parents informed the School that they wished to reconvene the TEAM to revise Student’s IEP, which they had rejected in part. (S-M).
30. At around this time, Dr. Charles Hopkins, Director of Academic Support for PVPA reviewed Student’s IEP, spoke with Parents, and concluded that he “shared the parents concern that the goals as formulated in this educational plan really didn’t provide either the parent or the student with a notion of when they were accomplished. They weren’t really measurable.” (Hopkins)
31. The TEAM convened on March 23, 2006. Among other things, including the issue of formulating measurable goals as referred to above, the parties discussed Student’s difficulties in math and applicability of the 80% rule. With respect to the first issue, Student’s eighth grade math teacher, Mr. Humadi, reported that Student had made no progress in math during that year. (Mr. Humadi’s class consisted of eight students and was taught by him, with assistance of Ms. Fogarty or an aide to modify curriculum for students with disabilities). (P-14, Humadi, Hopkins).
32. As an accommodation to Student’s disabilities, Parents requested that Student’s IEP include an exemption from the 80% deadline rule. Parents also requested that Student receive pull-out math services, preferably via tutoring.
33. PVPA denied Parents’ request for pullout math for several stated reasons, including that “the creation of a separate special education math class as significant potential to be stigmatizing to any student. For an adolescent who has been in regular education classes up till now, the potential is far greater and may manifest as stress (this part of the school’s concerns about overly frequent visits to the nurse [by Student].” (P-5) Also, “[c]reation of special education subject classes has almost invariably led to a “dumbing down” of expectations and a lowering of self-expectations for the student…perhaps..a greater cause of concern for a minority student’s view of himself as a learner.” Other than the comment about visits to the nurse, PVPA did not cite any specific information about how or whether this statement applied to Student, in particular.
34. PVPA issued a proposed IEP for the period from March 2006 through March 2007 that was similar to the previous IEP, but with several changes. First, the reading comprehension goal was dropped and treated as an accommodation, leaving goals for written language, math, and organization. Second, pull-out academic support services were reduced from five to four sessions per week. Attached to the IEP was a detailed list of math skills that Student either had or would be addressing, as well as a list of suggestions to improve organization. (P-1)
35. Under “additional information,” the IEP contained the following statement: “Grade level/credit: Determinations of grade level and credit are made by the regular education staff and the Director of Education. Accomplishment of IEP goals does not guarantee that a student will earn credit in a particular course or area. Goals are proposed as educationally needed instruction that will help the student progress from his/her current level. Because students in special education are often significantly below grade level in their achievement, they may or may not be able to achieve grade level work. The student must meet the state curriculum standards and the local (PVPA) graduation standards in order to graduate.” (P-1)
36. Parents rejected this IEP on April 7, 2006, although PVPA did not receive the rejected IEP until May 22, 2006. (P-1)
37. Between the date the IEP was issued and Parents’ rejection, Student received his next math grade and this time was working at “full credit,” and passing the course. The documentary record contains no explanation of how and why Student made this progress, and Mr. Hamadi was unable to recall such an explanation. (Hamadi) However, Student received a score of “needs improvement” on the math MCAS administered in the spring of 2006. (Mother)
38. Notwithstanding his difficulties throughout eighth grade, Student did a tremendous amount of work towards the end of eighth grade, and managed to pass his courses and started ninth grade, in the PVPA high school, under the 2005-2006 “stay put” IEP, in September 2006. The TEAM met twice during that month in an effort to develop an agreed-upon IEP for 2006-2007, but were unsuccessful.
39. Meanwhile, Student continued to struggle with schoolwork in ninth grade as a result of his difficulties with attention and organization. He had difficulty despite the ability to revise assignments, retake tests and quizzes, and obtain extensions on deadlines, as well as regular formal and informal assistance from regular education teachers and the Academic Support teacher, and frequent communication between the classroom and Academic Support teacher.6 (Vreeland, Cox, Blackburn, Tolzdorf).
40. In October 2006, PVPA had Student evaluated by a licensed educational psychologist in private practice. This psychologist administered the Woodcock-Johnson-III Tests of Achievement. As was the case when Dr. Hornik administered the WJ-III in 2005, most of Student’s scores ranged from grade level to well above grade level. He showed particularly strong reading skills. In contrast to 2005, Student showed “advanced ability” in written expression. Student’s math skills were at or above his grade/age level, except for slightly lower skills in math fluency. (P-39)
41. At some point in November 2006, Student received Early Warning Sheets in American History, Language Arts and Science. (P-25) According to these reports, Student was in the “Needs Improvement/Potential No Credit” category for both quality of work and “timely completion of work” in his History course. Student’s history teacher noted on the report that he had made himself available to meet weekly with Student at lunchtime to go over history assignments and concepts, and that Student needed to do so. (P-25, Cox)
42. In Language Arts, Student was in the “Needs Improvement” category for quality of work and the “Potential No Credit” category for timely completion of work and class participation. The teacher commented that Student was “a pleasure to have in class…” but that she was “concerned about his difficulty in handing work in on time,” and that Student “does not use class time to start assignments or ask questions about them.” This teacher also stated that Student should meet with her to “work on some of the skills he will need to pass the class.” (P-25, Blackburn)
43. Similarly, in Science class, Student had “Needs Improvement” status in both work quality and timely completion of work, and the teacher invited Student to meet weekly with him to “make sure he understands the material.” (S-25)
44. In November 2006, Dr. Hornik conducted a second neuropsychological evaluation. (P-19) The results were similar to those in the 2005 evaluation in that Dr. Hornik found Student scored very well on many standardized tests, but continued to show a significant executive functioning disorder (in addition to ADHD) which affects his ability to plan, organize, sustain attention, complete work, and causes him to approach work passively. As a result, Student cannot reproduce in the classroom setting the skills he can demonstrate in the highly structured setting of 1:1 testing. (Id)
45. Dr. Hornik’s recommendations for accommodations and strategies were similar to those stated in the 2005 evaluation. Additionally, Dr. Hornik commented that Student generally needed more time than typical students to complete academic work and absorb concepts, and noted that such time could be created by extending deadlines (although she cautioned that this could cause a backlog of incomplete assignments), reducing homework volume, or reducing the course load even if this meant Student would take more than four years to finish high school. (P-19)
46. Dr. Hornik commented on PVPA’s “80% rule” by stating that Student could not “consistently work at that level…” and “accumulates a backlog of work that becomes quite stressful to him and he feels his work is never done.” She noted that even thought the 80% rule allows students to ask for extensions, this is of little use to Student because he “does not have the skills for planning and organization that would enable him to anticipate in advance whether he requires extended time.” For these reasons, Dr. Hornik recommended “an exception to the 80% rule that will permit [Student] to work at his level.” (Id)
47. On December 6, 2006, a facilitated TEAM meeting was held to consider the latest evaluations and make a last attempt to agree upon an IEP before the start of the hearing in this matter. This meeting was not successful in producing an accepted IEP. (Hopkins)
48. As of the hearing in this matter, Student’s English, history and math teachers expressed continued concern that Student was either not adequately mastering concepts, not completing work in a timely manner, or both, and was at risk of not earning credit in their courses, despite accommodations and opportunities for individualized support from them or the Academic Support teacher, and despite Student’s ability to succeed in the courses. (Vreeland, Cox, Blackburn, Tolzdorf).
49. Parents expressed concern that they could not decipher PVPA’s grading system sufficiently to know whether Student was progressing on his IEP goals. They also were concerned that the 80% rule was nearly impossible for Student to meet, and should be relaxed as an accommodation to his disabilities, and commented that Student was worried and stressed over whether he would get credit for courses or be retained. (Mother)
FINDINGS AND CONCLUSIONS
After reviewing the testimony and documents on the record, I conclude that PVPA’s grading and promotion policies, while difficult to reconcile with IEP goals and objectives, did not deprive him of a free, appropriate public education or result in disability-based discrimination under sec.504. Therefore, Parents are not entitled to an order requiring PVPA to alter its policies on credit and promotion as applied to Student (Claims for Relief No. 1 and 3).
PVPA has acknowledged that the 2005-2006 IEP did not contain measurable goals. The deficiencies in this IEP in combination with the PVPA credit and promotion policies did interfere with accurate assessment of Student’s progress under his IEP and hence may have impaired appropriate adjustments to his services during eighth grade; however, Parents have not demonstrated that this led to a denial of FAPE.
I further conclude that the 2006-2007 IEP could be made appropriate for Student with the addition of regular consultation by a professional with expertise in education of students with significant executive functioning disorders. Parents have not carried the burden of proof that Student requires co-taught classes in all core subjects.
Finally, I conclude that Parents have not developed their claims for compensatory relief or reimbursement for math tutoring, and so are not entitled to relief My reasoning follows.
As a child eligible for special education under the IDEA, Student is entitled to an IEP and services that are tailored to his unique needs, and that provide significant, meaningful benefit in light of his needs and potential, that is, “effective results” and “demonstrable improvement’ in the educational and personal skills identified as special needs.” 34 CFR 300.300(3)(ii); Lenn v. Portland School Committee , 998 F.2d 1083 (1 st Cir. 1993), citing Roland M. v. Concord School Committee , 910 F.2d 983 (1 st Cir. 1990). In addition to addressing and remediating his special needs, Student’s IEP must afford him access to the general curriculum, i.e., must contain “a statement of measurable annual goals, including academic and functional goals, designed to…meet the child’s needs that result from the child’s disability to enable the child to be involved in and make progress in the general education curriculum…” 20 USC §1414(d)(A) I (aa); II (aa).
The relevant state regulations require that the IEP must “include specially designed instruction or related services…designed to enable the student to progress effectively in the content areas of the general curriculum,” 603 CMR 28.05(4)(b), that is to “make documented growth in the acquisition of knowledge and skills…within the general education program, with or without accommodations, according to…age and developmental expectations, the individual educational potential of the student, and the learning standards…in the Massachusetts Curriculum Frameworks and the curriculum of the district.” 603 CMR 28.02(17).
Finally, School districts must inform parents of an eligible child’s progress towards meeting annual goals. 20 USC §1414(d)(A)(III).
It is well settled that although school districts must provide eligible students with access to the general curriculum, and any accommodations that might be needed to make access possible, policies on grading, promotion, retention, credit, and the like generally are within the scope of the district’s authority. Moreover, “the BSEA does not have authority to hear challenges to school districts’ policies, practices or criteria as they relate to students with disabilities in general. This is the province of the Massachusetts and/or U.S. Departments of Education.” See In re: Norfolk County Agricultural High School ,7 BSEA No. 06-0390 (Berman, 2006) The BSEA may consider such policies only with respect to an individual student who alleges that as applied to him or her, the policy results in a denial of FAPE and/or in disability-based discrimination. Id.
Here, PVPA has adopted a set of policies whereby students are not granted credit unless they both demonstrate understanding of the subject matter and complete 80% of their homework assignments. PVPA created these policies because of its philosophy that students should not move on to new material or concepts until they have mastered the preceding ones.
The record shows that this system is very flexible. Students may retake tests and quizzes, revise assignments, and may use a variety of means to show their knowledge of a subject. To comply with the 80% rule, students may get extensions of deadlines. There is no evidence on the record that a student would be made to leave PVPA if he or she did not earn credit for a course because s/he did not master all the material or hand in 80% of the work. Rather, the student would simply have to repeat the course or grade. Such retention is not considered failure, as it is consistent with the underlying philosophy of PVPA that students should master the subject matter of one course before moving on to the next.
Parents simply have not demonstrated that PVPA’s policy regarding credit and promotions deprives Student of FAPE in violation of the IDEA, or prevents him from benefiting from PVPA’s program in violation of §504, such that Student must be granted an exemption from the 80% rule and/or be granted “basic credit.” The policy is flexible, and can incorporate the provisions of an IEP. (For example, a student could use an oral presentation to show knowledge of a subject if s/he has a disability affecting written work). The policies allow for Student to retake tests, redo assignments, meet formally and informally with teachers, obtain extensions of deadlines, such that Student has many opportunities to succeed. Moreover, and perhaps most importantly, if Student cannot earn credit in a course within the requisite time, either because of the 80% rule or because he has not mastered the subject matter, he would not be asked to leave PVPA. Rather, he simply would have to retake the course. This is in clear contrast to the situation in In Re Boston Public Schools , BSEA #06-6508 (Crane, 2006)8 , in which the refusal of a Boston exam school to modify certain attendance rules for a student with a medical disability resulted in the permanent exclusion of that student, and constituted a violation of §504.
The first problem in this case does not lie with the credit and promotion policy but, rather, with PVPA’s acknowledged failure to develop an IEP for 2005-2006 that had measurable goals and objectives relative to Student’s area of special needs or to align and reconcile assessment of Student’s progress in the general curriculum with his progress towards IEP goals.
Simply put, during 2005-2006, it was difficult determine whether Student was making progress towards achieving IEP goals because the only measurement of such was discussion of his progress (or lack thereof) in the general curriculum. An analogy would be a student in a conventional high school whose IEP goals were to “get A’s and B’s” in the general curriculum. The high school is not required to change its grading system for such a student. However, without measurable IEP goals, the regular educational grading system alone would not likely provide sufficient information about the student’s progress.
Parents accepted the 2005-2006 IEP, at least until the partial rejection of same in March 2006, and also elected to implement it as their “stay put” IEP for the majority of 2006-2007; therefore, they are foreclosed from claiming compensatory services during the period that this IEP has been in effect. Moreover, even if Parents had not accepted this IEP, it is not clear that it was so flawed that Student was deprived of FAPE. However, the flaws in the “stay put” IEP form at least part of the basis for the dispute in this matter.
PVPA has attempted to correct the deficiencies of the “stay put” IEP with the 2006-2007 IEP, which does, in fact, state measurable goals that are related to Student’s areas of need. It is not clear from the record, however, whether this step alone will adequately address Student’s needs.
The reason is that even with the extensive accommodations contained in Student’s IEPs for 2005-2006 and 2006-2007, most of which were adopted from the recommendations of Parents’ evaluator, Dr. Hornik, and the obvious dedication and attentiveness of his teachers, Student has had tremendous difficulty making progress in academics or progress in remediating his weaknesses in executive functioning. (For example, it is difficult for Student to request extensions on assignments because he cannot accurately assess or predict when he will need extra time).
Moreover, as stated above, it has been very difficult for PVPA to assess this progress in conjunction with his IEP in addition to PVPA curriculum standards. In light of these circumstances, I am not convinced that the mere addition of measurable goals (as in the 2006-2007 IEP) will correct these problems. On the other hand, with the addition of consultation to PVPA staff from a qualified professional with expertise in educating individuals with executive functioning problems, developing a coherent and understandable method for assessing their progress in a mainstream setting such as PVPA, and assessing such individuals’ progress both within the general curriculum and on IEP goals, the 2006-2007 IEP would be appropriate.
Compensatory Services:
` Parents may be entitled to compensatory services as an equitable remedy when “procedural inadequacies [have] compromised the pupil’s right to an appropriate education … or caused a deprivation of educational benefits.” Roland M. v. Concord, 910 F.2d at 994 (1 st . Cir. 1990) (citations omitted). Thus, for example, “a procedural default which permits a disabled child’s entitlement to a free and appropriate education to go unmet for two years constitutes sufficient ground for liability under the IDEA.” Murphy v. Timberlane Regional Sch. Dist. , 22 F.3d 1186, 1196 (1 st Cir. 1994). On the other hand, parents may not recover for technical or de minimis violations that do not deprive the child of FAPE. (Id.)
Here, Parents have made a claim for compensatory services, but have not developed such claim. They have not alleged specific facts supporting a finding of procedural violations that resulted in a denial of FAPE during a specific time period for which compensatory service is an appropriate remedy. Moreover, Parents accepted the IEP for 2005-2006, which bars them from recovering compensatory services for periods covered by that IEP.9
Reimbursement for Tutoring:
If parents of an eligible disabled child can prove that the program and services offered by their school district do not provide FAPE, they may be reimbursed for the costs of unilaterally placing their child in a private program, if they also can prove that the privately obtained services are appropriate. School Committee of Town of Burlington v. Dept. of Education of Mass ., 471 U.S. 359, 369-70 (1985).
Here, again, the Parents had accepted the 2005-2006 IEP, and the 2006-2007 would be appropriate with the addition of consultation services. Parents have simply not met their burden of showing that services have been absent or inappropriate such that PVPA would be liable for private tutoring that they obtained unilaterally. Moreover, Parents have presented no evidence regarding the appropriateness of the tutoring. For these reasons, there is no basis for me to order reimbursement for Student’s math tutoring.
ORDER
PVPA shall immediately retain an appropriately credentialed consultant with expertise in designing and implementing accommodations and services for adolescents with ADHD and executive functioning disabilities within mainstream educational settings. This consultant shall advise and inform the TEAM and all PVPA staff working with Student on methods for remediation and accommodation of Student’s disabilities, as well as for accurately and understandably assessing Student’s progress in his areas of special need as well as in the general curriculum. PVPA shall amend the 2006-2007 IEP to include the services of such consultant.
In light of the impending end of the 2006-2007 school year, the consultant shall be retained for one academic year forward from the date he/she is hired, and such shall be reflected in Student’s IEP for 2007-2008.
By the Hearing Officer:
____________________ _____________________________
Sara Berman
1
Individuals with Disabilities Education Improvement Act of 2004 or “IDEA-2004.”
2
In their Hearing Request and opening and closing arguments, the Parents have made several detailed allegations regarding PVPA’s method of assessing student progress and granting course credit. These allegations are subsumed in the statement of issues set forth above.
3
Student does very well in his performing arts classes, and these are not at issue in this hearing.
4
Prior to 2006, students had to turn in 75% of assignments on time.
5
Students can exceed the competency and “full credit” requirements, but this topic is not relevant here.
6
During eighth grade, Grid B services were provided via co-taught classes. In ninth grade, academic support was provided outside of the classroom; classes were not co-taught.
7
Ruling on Motion to Dismiss of Norfolk County Agricultural School and Parents’ Motion for Summary Judgment.
8
Ruling on Motion for Partial Summary Judgement
9
Hypothesizing that Parents are seeking compensatory services based on the absence of a parental role in issuing “basic credit,” and/or the discontinuation of co-taught classes under the “stay put” IEP, I analyze their claim as follows. With respect to the “basic credit” issue, I already have concluded the specifics of PVPA’s grading system are not relevant to the appropriateness of Student’s IEP. Therefore, Parents do not have a viable claim for compensatory services based on their non-participation in decisions regarding basic credit. As for PVPA’s discontinuation of co-taught classes at the high school level under the stay-put IEP, I find that the Parents have not demonstrated either a fundamental alteration of Student’s program, or a substantial impact on the Student’s educational services from the change in the service delivery model that would be required for me to find that PVPA had unlawfully changed Student’s placement by failure to implement the stay-put IEP. See, for example, Knight v. District of Columbia , 877 F.2d 1025, 1028 (D.C. Cir. 1989); Brookline School Committee v. Golden , 628 F. Supp. 113 (D. Mass. 1986); Sherri A.D. v. Kirby , 975 F.2d 193, 206 (5 th Cir. 1992).