COMMONWEALTH OF MASSACHUSETTS
SPECIAL EDUCATION APPEALS
In Re: Springfield Public Schools
BSEA #11-0868
DECISION
This decision is issued pursuant to the Individuals with Disabilities Education Act (“IDEA”), 20 USC Sec. 1400 et seq., Section 504 of the Rehabilitation Act of 1973 (29 USC Sec. 794); the Massachusetts special education statute or “Chapter 766,” (MGL c. 71B) and the Massachusetts Administrative Procedures Act (MGL c. 30A), as well as the regulations promulgated under these statutes.
On July 29, 2010, Parents filed a hearing request with the Bureau of Special Education Appeals (BSEA) alleging that the Springfield Public Schools (Springfield or School) was failing to provide the Student with a free, appropriate public education (FAPE). Specifically, Parents alleged that Student’s behavioral problems and failure to make effective progress in his substantially-separate language-based program within a public high school were the result of the School’s failure to appropriately identify and address the Student’s learning needs. In their hearing request, Parents asked the BSEA to find the School’s program inappropriate, to award compensatory services, and to reimburse them for various private evaluations.1
Shortly after the request was filed, the parties requested and were granted a postponement of the hearing date because they wanted to try to resolve the matter informally. These initial attempts at resolution were unsuccessful. At the parties’ request, a pre-hearing conference was held on October 15, 2010, during which the parties indicated that they wished to make further efforts to settle the dispute. Accordingly, in November 2010, the parties participated in a facilitated TEAM meeting. On November 23, 2010, the School issued a new proposed IEP and proposed Behavior Intervention Plan (BIP). The School filed a status report shortly thereafter, indicating that it was awaiting the Parents’ response to the proposals.
On January 31, 2011, the School filed a cross-request for hearing because the Parents had not responded to the School’s proposals referred to above. The School sought a finding that the IEP proposed for November 2010 to November 2011 as well as the accompanying BIP were appropriate for Student. The two matters were consolidated at the request of the parties.
A hearing was held on April 5, 6, and 15, 2011 at the office of Catuogno Court Reporting Services in Springfield and Worcester, MA. Both parties were represented by counsel. Each party had an opportunity to examine and cross-examine witnesses and submit documents into the record. The record consists of Parents’ exhibits P- 1 through P- 25, School’s exhibits S-1 through S- 60, approximately 10 hours of tape recorded testimony and argument, and the written transcript created by the certified court reporter. At the parties’ request, the conclusion of the hearing was postponed to May 20, 2011 for submission of written closing arguments and the record closed on that day.
Those present for all or part of the proceeding were:
Parent
Andrea McGovern Parent Consultant
David Drake Headmaster, White Oak School
Julie Cole Speech/Language Pathologist Springfield Public Schools
Luciano Valles L.L.D. Supervisor, Putnam Voc. H.S., Springfield
Paul Benetti Teacher, Putnam H.S.
Stuart Allsop Student Support Teacher, History, Putnam H.S.
Mario Varzeas Study Skills Teacher, Putnam H.S.
Elizabeth Humphries Inclusion Teacher, Putnam H.S.
Lynne Bibeau LLD Coach, Putnam H.S.
Brenda Cortese Special Education English Teacher, Putnam
Jesse Pion School Adjustment Counselor, Putnam H.S.
Mary Ann Morris Chief of Pupil Services, Springfield Public Schools
Carolyn Lyons, Esq. Counsel for Springfield Public Schools
Derek Beaulieu, Esq. Counsel for Parents
Sara Berman BSEA Hearing Officer
Jessica M. DeSantis Certified Court Reporter
Lisa A. Regensburger Certified Court Reporter
ISSUES PRESENTED
1. Whether the proposed IEP covering the period from November 17, 2010 to November 16, 2011 is appropriate or can be made appropriate for Student;
2. If not, whether Student requires placement in a private, special education school, namely the White Oak School, in order to receive a free, appropriate public education (FAPE).
POSITION OF PARENT
Student is an intelligent, talented high school student with ADHD and language-based learning disabilities. Student has not made effective progress in his language-based learning disabilities (LLD) program within his public vocational high school. There is no dispute that Student has some behavioral issues. According to the Parents, Student’s behavioral problems are directly related to his disabilities and are exacerbated by Student’s IEP and placement, which are inappropriate. More specifically, Student has been unable to cope with multiple changes in his schedule and configuration of services, and has been overwhelmed by the setting of a large urban high school. He has been inappropriately disciplined by High School personnel who are unaware of his needs, and has been unlawfully excluded from his special education services for infractions related to his disability. The goals and objectives of his IEPs have been inappropriate and based on outdated or inappropriate assessments. Springfield’s reading program does not meet Student’s needs. Student’s services are not coordinated among providers. Student feels disenfranchised and defensive within the school setting.
Springfield’s claim that Student’s lack of progress is due to Parents’ failure to allow implementation of a Behavior Intervention Plan (BIP) is disingenuous, as there is nothing in the proposed BIP that is not already contained in accepted portions of Student’s IEPs. Moreover, the BIPs at issue do not reflect the results of the School’s Functional Behavioral Assessments, and, as such are unlikely to remediate Student’s problems. Finally, if the School believes that Student has a significant emotional disability, it should have referred him for evaluation in this area, and offered appropriate services; the School has not done so.
According to Parents, Student requires placement in a small private day school such as the White Oak School that serves bright students with language-based learning disabilities. Student’s behavioral problems would likely be eliminated or reduced by such a placement, because Student would be receiving the consistent, integrated, appropriate services that he needs in a small setting. Without such a placement, Student will not make academic or emotional progress.
POSITION OF SCHOOL
The proposed IEP and placement for Student, including Springfield’s proposed BIP, are reasonably calculated to provide Student with a FAPE. While Student has made progress in the accepted portions of his LLD program, he would be a more successful and happier student with the additional behavioral interventions proposed in the BIP. Student has long-standing diagnoses of significant emotional and behavioral problems in addition to learning difficulties; however, Parents have failed to accept any behavioral interventions since the spring of 2010. As a result, Student’s behavior has interfered with his ability to make the progress of which he is capable. Because the Parents have not allowed Springfield to implement the full complement of services deemed appropriate for Student, they cannot meet their burden of demonstrating that the School’s program is inappropriate.
Further, Parents have presented no evaluation or expert testimony indicating that Student has not or could not make effective progress within his current program, or recommending an outside placement of any kind, including White Oak. On the other hand, Springfield’s teachers and providers have uniformly stated that the School’s proposed program is appropriate.
Finally, even if Parents are found to have met their burden of proving that Springfield’s proposed program is inappropriate, they have failed to demonstrate that White Oak is appropriate for Student. On the contrary, White Oak is incapable of serving students with the level of emotional and behavioral difficulty demonstrated by Student. Additionally, White Oak has no speech/language therapist on staff and so would be unable to provide Student with the direct speech/language services that he receives from Springfield. Finally, while White Oak staff found Student potentially appropriate, they relied on limited information when doing so, and, specifically did not have access to documentation of Student’s emotional diagnoses and behavioral difficulties
FINDINGS OF FACT
1. Student is a 15-year-old boy who lives within the Springfield Public School District. At the time of the hearing in this matter, Student was attending the tenth grade at the Putnam Vocational High School. Student’s eligibility for special education and related services is not in dispute. Student is described as an intelligent, capable, likeable student with many skills, talents and interests. Student has strong reasoning and math skills, but also has a specific learning disability that manifests in weaknesses in phonological awareness, written expression, and some aspects of executive functioning.
2. Student also has a longstanding diagnosis of ADHD which causes him to have problems with attention, focus, and hyperactivity despite ongoing medical treatment. Additionally, Student has a history of emotional and behavioral problems at least partially related to his ADHD, including difficulty regulating his emotions and refusal to work when frustrated. There is no dispute that Student needs a highly structured educational environment for at least part of his day to address his learning weaknesses. Further, Student is very sensitive, and responds best to praise, a positive environment, and gentle redirection when he loses focus or confidence. (S-4)
3. Student’s most recently accepted IEP, covering the period from December 2009 to December 2010, calls for placement in a substantially separate language-based learning disabilities (LLD) classroom for English language arts (ELA), science, and history/social studies, and placement in a general classroom with inclusion supports for math. Additionally, the IEP calls for one session per week, each, of speech/language therapy and counseling, and an extended school year. This IEP also called for numerous accommodations. (P-2)
4. The IEP in dispute, covering the period from November 2010 to November 2011 provides a similar configuration of services, with the addition of a substantially-separate study-skills class, 5×30 minutes per cycle. Parents have accepted the study-skills class, but have rejected the remainder of the IEP. (P-1)
5. Both of the foregoing IEPs refer to Behavior Intervention Plans (BIPs) designed to address behavioral issues linked to Student’s diagnosis of ADHD.
6. According to the record, Student received a diagnosis of ADHD when he was in first grade. He began receiving special education services in second grade to address behavioral issues, and was placed in substantially separate classrooms for the remainder of elementary school. At least during fifth grade (2005-2006), Student had a BIP to address reported disruptive, disrespectful, and aggressive conduct, as well as refusal to do schoolwork. (S-48, 49) From first or second grade forward, Student has received many school-based and private evaluations. He also has received counseling off and on since that time, both in and outside of school. (S-38, Mother)
7. Student transitioned into the Van Sickle Middle School in Springfield for sixth grade (2006-2007). In January 2007, Student received a private neuropsychological evaluation from Timothy Whelan, Ph.D. This evaluation revealed that Student had “core skills involving conceptual reasoning [that] are better developed than those of most children his age, and…plenty of acquired knowledge at his fingertips…” (P-18).
8. On the other hand, Dr. Whelan found that Student’s “academic fundamentals in reading, written language, and math are more than two years below grade level…” which, in the evaluator’s opinion, indicated a learning disability. Additionally, the evaluation indicated weaknesses in organization, as well as continued symptoms of ADHD despite Student’s treatment with medication. The report concluded with recommendations for “accommodations and specialized academic instruction and organizational interventions within the framework of an IEP,” as well as [o]ngoing pharmacologic and psychotherapeutic interventions…” (P-18)
9. According to Parents, Student did well during seventh grade (2007-2008) (testimony of Mother); however, Student’s seventh grade MCAS scores for the spring of 2008, were 216 (Warning) in both English Language Arts (ELA) and math.
10. By eighth grade (2008-2009), Student had moved to a partial-inclusion program in the middle school, with pull-outs for ELA and math, as well as in-school counseling. His behavior had improved2 from earlier years, but he still demonstrated hyperactivity, distractibility, and difficulty staying on task in class. His academic weaknesses were in reading, writing, organization, and attention. (S-43; P-17)
11. In the October of that year (2008), Springfield conducted a three-year re-evaluation. Achievement testing revealed “average” word reading and math reasoning, “low average” spelling skills, and weakness in written expression. He had made progress since the prior year, according to the school psychologist; however, his grades for the first marking period were “satisfactory” in French and social studies, and “unsatisfactory” in English, science, and pre-algebra. (S-44)
12. Student’s behavioral, emotional and social functioning, as measured by teacher responses to the BASC-2, showed that Student had “clinically significant” problems with attention, distractibility, study skills, homework completion, and organization. Additionally, his teacher reported that he often seemed lonely or sad, showed poor self-control, and acted without thinking. (S-44)
13. Recommendations were for accommodations such as access to a computer, teacher help with writing, preferential seating, opportunities for small group or individual work, breaking down larger assignments, provision of outlines, encouragement of Student to take notes, and to stay after school for extra help, and review of medication by Student’s private provider. (S-44)
14. In January 2009, Springfield issued an IEP pursuant to the evaluation referred to above, covering the period from January 2009 to January 2010, i.e., mid-eighth grade through mid-ninth grade. (S-42) This IEP identified Student’s disability as “ADHD/Specific Learning Disability in Written Expression.” The IEP provided goals in the areas of ELA (reading comprehension and writing), Math, Study Skills, and “Social/Behavioral.” This last goal focused on teaching problem-solving and decision-making strategies to help Student increase self-confidence and manage new situations. The service delivery grid called for ELA and Math to be taught in a substantially-separate classroom for the remainder of eighth grade. For ninth grade, the IEP proposed that all subjects except for ELA be taught in the regular classroom. Counseling was offered 1×30 minutes per cycle for the duration of the IEP.
15. This IEP included accommodations for Student’s social/emotional needs; these were a reward system for classwork and homework completion, implementation of a BIP, displaying specific behavioral rules, and seating with positive role models. (S-42)
16. Parents were dissatisfied with Student’s eighth grade program, primarily because they felt the School had failed to fully implement the services and accommodations in his IEP. The Parents believed Student regressed both academically and emotionally as a result. (P-18)
17. At the January 2009 TEAM meeting referred to above, Parents provided a written statement to this effect, stating that they were very concerned about Student’s “non-progress” in school, and asserting that Student’s IEP for 2008-2009 had not been fully implemented as of that date. They felt that Student had been “labeled” unfairly and was frustrated to the point of refusing to work and failing because his needs were not being met. Parents accepted the placement designated in the January 2009 IEP, but rejected the IEP’s failure to reflect their concerns accurately. (S-42)
18. In February 2009, Student underwent a central auditory processing (CAP) evaluation at Holyoke Medical Center. This evaluation results “suggested” possible central auditory processing problems that made it difficult for him to focus in noisy environments, but the evaluator stated that “the effects of [Student’s] ADHD on global central auditory processing abilities are significant and cannot be meaningfully separated out when both conditions seem to exist.” (P-19). The evaluator recommended various strategies and accommodations to help Student focus on auditory information and to reduce the effect of ambient noise on his ability to listen and work. (P-19)
19. The TEAM reconvened on May 21, 2009 to consider the CAP evaluation and discuss Student’s transition to high school. Springfield issued an IEP spanning the remainder of eighth grade as well as ninth grade; for ninth grade, all subjects were in the “C” grid except for Science. (S-40)
20. Student entered ninth grade at Putnam in early September 2009. Shortly after he began, Student moved into inclusion classes for ELA and Math; the teachers felt that the Grid C classes were “too easy” for Student and Parents agreed; the IEP was amended accordingly. (Mother, Manzi, S-39)
21. In October 2009, Parents obtained a psycho-educational evaluation of Student at the Curtis Blake Center of American International College (AIC) (hereafter, the “Curtis Blake evaluation.”) (S-38)
22. The Curtis Blake evaluation consisted of multiple tests of executive functioning, reading, written language, phonological awareness, and math. In sum, the evaluation revealed the following: executive functioning —strong non-verbal problem solving skills, weaknesses in working memory and retrieval, organization, strategy-generation skills; language —strong vocabulary and higher-order linguistic thinking, weaknesses in phonological processing; reading —stronger comprehension vs. weaker word reading, accuracy and fluency, weak sound-symbol knowledge required to decode; weak written expression and spelling reflecting deficits in executive functioning and language processing. In general, Student had relatively slow processing speed and difficulties with working memory and retrieval which affected many tasks. (S-38).
23. Specific test scores were as follows:
· CTOPP: Composite—73 (3d percentile), weakness in phonemic awareness, phonological memory, and rapid naming.
· WIAT: Word Reading 97 (42d percentile); peudoword decoding 78 (7 th percentile); Spelling 878 (19 th percentile)
· TOWRE: sight word 83 (13 th percentile), phonemic decoding 12 (3d percentile); total 73 (4 th percentile).
· PPVT: receptive vocabulary 109 (73d percentile);
· EOWPVT: expressive vocabulary 105 (63d Percentile)
· Burns & Roe Informal Reading Inventory: eighth grade comprehension, but weak decoding.
· WIAT II: Written Expression 77 (6 th percentile)
· WIAT II numerical operations: 111(53d percentile); math reasoning: (95 (37 th percentile)
24. The Curtis Blake evaluation endorsed Student’s placement at Putnam and recommended specialized instruction and support along with daily individualized tutorials. More specifically, the evaluators recommended:
· Explicit instruction in executive functioning and organizational skills including time management;
· Structured reading remediation at the multisyllabic level;
· Teaching metacognitive strategies;
· Teacher checks to ensure comprehension, retrieval strategies, and other supports to accommodate Student’s attention, memory and retrieval weaknesses and help him encode information in memory;
· Use of a process writing approach.
25. The TEAM reconvened on December 8, 2009 to review the results of the Curtis Blake evaluation. At that meeting, the School proposed both a speech/language evaluation and an FBA. Parents consented to the speech/language assessment, which was conducted in January 2011.
26. The speech/language evaluation revealed that Student had mild to moderate delays in receptive language and moderate to severe delays in expressive language and recommended direct services.
27. In January 2010, the TEAM issued an amended IEP which incorporated many of the Curtis Blake recommendations, moved all classes except math into Grid C, and added 1 period per week of speech/language therapy (as well as speech-language consultation) and a summer program. Parents accepted this IEP on February 8, 2010. (S-28)
28. The IEP referred to above contained a social/emotional goal similar to the goal in the January 2009 IEP, but which also stated that Student had difficulty building peer relationships. Accommodations for Student’s social/emotional needs were similar to those in the prior IEP, except that a BIP was to be implemented “as needed.” (S-28)
29. According to the School’s progress reports, for first and second marking periods, Student made some progress towards meeting his IEP goals but was distractible, had trouble completing work, would draw in class, sometimes could not be easily redirected (in History), and, in ELA was not open to receiving help and was frustrated when help was offered. (S-27)
30. During the third marking period, Student made progress in ELA, made limited progress in History due to inconsistent work and test completion. In Math, Student had trouble staying focused and did not complete homework or stay after school for help as often as he needed to. The math teacher opined that Student needed to make more effort. (S-26)
31. On May 19, 2010, the School requested Parents’ consent to conduct an FBA and risk assessment of Student. (Manzi, S-25) The basis for the request was a series3 of behavioral incidents as follows: (S-25)
· February 2, 2010—Student left class before bell rang without permission;
· February 11, 2010—Student was disruptive in History class, questioned the teacher’s knowledge, and continued to disrupt after being redirected; he left the room, upset;
· February 24, 2010—Student violated Acceptable Use policies by playing computer games on You Tube;
· February 27, 2010—Student became angry and referred to class by disability-related slur after the teacher took Student’s drawing away from him;
· April 1, 2010—Student poked History teacher in the side with a paper clip as a joke;
· April 28, 2010—Student left class early in defiance of school personnel; allegedly made physical contact with a teacher;
· May 13, 2010—Student accessed “improper” computer sites, grew agitated when another student threw an agenda book at him;
· May 20, 2010—Student drew pictures depicting prohibited topics (person with a noose around his neck; person holding a gun) (Student was allowed to draw to express himself but not in class; he was allowed to leave class to go the adjustment counselor)
· May 24, 2010—Swore at teacher during discussion about a grade, then began crying.
32. Six of the nine incidents (February 2, 24, 27, April 28, May 13 and May 20, 2010 ) took place during shop classes. Student was sent to “civility” (internal suspension or detention) for one or more class periods for each of these infractions except for the offense of April 28, for which he was suspended for three days. Student’s mother was contacted after most of these incidents. (S-25)
33. Parents agreed to the FBA. (Manzi) The School issued an interim BIP on or about May 24, 2010. This BIP identified target behaviors as issues with personal space, inappropriate language, violating school Internet policies, refusal to complete work, inattention in class and disrupting class. The behavioral goals were for Student to attend to instruction, develop appropriate Internet skills, and use the School Adjustment Counselor (SAC) to check in and learn coping skills. The method for teaching replacement behaviors included direct instruction by teachers, social skills, anger management and stress reduction training by the SAC, communication with Parents, daily behavioral check sheet, positive reinforcement/praise for three days of appropriate behavior, helping Student to give teachers cues that he was frustrated. The BIP also provided a number of accommodations to support behavior. (S-24)
34. On June 4, 2010, Student was observed by the Ms. LaValley, the High School Behavioral Specialist for approximately 1.5 hours in his substantially separate ELA class. The evaluator found that Student’s behavior was manageable, and that he could re-establish focus and complete work with frequent redirection. (S-23) On June 23, 2010, after a TEAM meeting held on June 16, the School reissued the May 24, 2010 interim BIP as the final BIP. Parents did not consent to implementation of this plan. (S-21, Manzi)
35. Student began tenth grade in September 2010. In November 2010, the parties attended a facilitated TEAM meeting that was convened to review the BIP, and revisit the Curtis Blake evaluation. The TEAM agreed to conduct an updated FBA and issue a new BIP.
36. On November 17, 2011 the TEAM issued the IEP covering November 17, 2011 to November 16, 2012. This is the IEP at issue here. This IEP provides for all academic classes except for math in a substantially separate setting, adds a daily Study Skills class, and provides for weekly speech/language therapy and counseling as well as a summer program. (S-8)
37. The “Additional Information” section of the IEP noted that the weekly meeting with the SAC and the Study Skills class would focus on organization, and the School would set up a case management system as well as a home communication system for Student. (S-8)
38. Parents did not respond to this proposed IEP until March, 7, 2011, some 4 months after it was issued, at which time they rejected both the IEP and placement, with the exception of the Study Skills class. (S-4, Mother) As a result, neither the revised IEP nor the BIP were implemented during any of 2010 – 2012.
39. Meanwhile, on January 31, 2011, the School issued a revised BIP as discussed at the November TEAM meeting. The BIP had been developed by Ms. Pion, Student’s assigned SAC, based on data provided by four of Student’s teachers and the assistant principal. (S-4) This BIP listed behavioral challenges as follows:
· Disruption of class activities with inappropriate comments that might instigate other students; being out of his seat;
· Problems with work completion, including homework and needing multiple prompts to start classwork;
· Verbal harassment, including rude comments or verbal threats when feeling attacked or not listened to;]
· Insubordination/disrespect, including 2 incidents with the librarian and one with the bus monitor where police were called; challenging the teacher’s presentation, inattention (e.g., drawing), inappropriate language, refusal to say what is upsetting him, forgetting to leave shop class, seeming anxious and agitated.
40. The strengths listed on the BIP were reading comprehension, writing, ability to refocus, accepting responsibility for behavior after processing, content knowledge and interest, completing math classwork, and extracurricular activities. (S-4)
41. The BIP goals were for Student to attend to the curriculum and classroom expectations, work with the SAC on organizational skills and coping strategies, completing assignments, and consistently interacting appropriately with peers and teacher. (S-4) The strategies to be used by the School included weekly progress reports to Parents, positive reinforcement (praise) for work completion, Monday meetings with the SAC, encouraging Student to get a pass to the counselor or dean when frustrated, daily check in before dismissal to discuss homework. (S-4)
42. The BIP provided multiple accommodations to improve behavior, including a structured, predictable setting, modified assignments, reinforcement of on-task behaviors, clear directions, frequent prompts, and the like. Positive reinforcement included immediate feedback, verbal praise, positive calls or notes to Parents. (S-4)
43. Finally, the BIP would be implemented in all settings, including all academic , elective, and vocational classes. (S-4)
Program Proposed by the School
44. As stated in the most recent, partially-rejected IEP, Springfield’s proposed program would provide Student with all academic classes except for Math in the substantially-separate program for students with language-based learning disabilities (LLD) in which Student has been enrolled since the beginning of ninth grade. The LLD program consists of a core group of dually-certified subject matter teachers who are assisted by two LLD coaches. These LLD coaches administer the Sonday program, which is an Orton-Gillingham based program used to teach decoding and encoding. The coaches both provide direct services to students and consult regularly with other LLD teachers to coordinate services. The ELA and math classes were held every week, even during shop weeks. (Gray)
45. Student received Sonday instruction from Ms. Gray or the other coach three times weekly, sometimes individually, and sometimes in a small group. Ms. Gray felt that this was sufficient because Student had some high level reading skills. (Gray)
46. It is undisputed that actual delivery of Sonday services has not been consistent. The services did not start until March 2009 for ninth grade, or November 2010 for tenth grade, and there was a gap in services in February-March 2011. (Gray)
47. Student’s tenth-grade ELA teacher, Ms. Cortese, testified about her ELA class within the LLD program. Ms. Cortese stated that her class consisted of eleven students, and that she was assisted by a paraprofessional. The class met on an alternating-week schedule; i.e., the class met 5×42 minutes on one week, and 5×90 minutes on the following week. The ELA class covered literature and writing. Additionally, on some days, students in Ms. Cortese’s class worked on the Sonday intervention program, which is an Orton-Gillingham-based program. (Sonday also was administered by LLD coaches who are part of the LLD program staff) However, Ms. Cortese testified that her primary function was not to work on the mechanics of reading but, rather, to use various methods to convey tenth grade content to her students, who presented with a variety of reading levels. (For example, with support, Student read Catcher in the Rye and Antigone) Therefore, she would use audiobooks and the like if a text were beyond the reading levels of some students, rather than try to increase their decoding skills per se. She viewed this task as within the purview of the LLD coaches. (Cortese)
48. According to Ms. Cortese, Student progressed well in her class until November 2010, at which time his behavior began to deteriorate; he became distracting and distractible, failed to complete assignments, was verbally aggressive, and sometimes used bad language. Ms. Cortese was quite concerned about his emotional status, and She felt that even though much of the proposed BIP contained in the IEP, implementation of the BIP would allow all staff—including regular education and shop teachers who would not have access to Student’s IEP– to be “on the same page” to support Student. In general, Ms. Cortese felt that her class was appropriate for Student because she could differentiate instruction to meet his needs, for example, by providing more time for a writing assignments. (Cortese)
49. Ms. Pion, Student’s SAC worked with him a couple of times during ninth grade and was his assigned counselor for tenth grade, and worked with him on his social/emotional goals; essentially, learning how to deal appropriately with frustration over schoolwork or peer interactions. She felt that his progress was inconsistent and that he sometimes seemed reluctant to have an in-school counselor.4 Ms. Pion felt that the School’s proposal to use her counseling time with Student to focus on organizational weaknesses was appropriate and would be helpful.
50. Like Ms. Cortese, Ms. Pion felt that even though many features of the proposed BIP were or could be contained in the BIP, the advantage of a BIP would be that it could be revised as needed on an ongoing basis, based on input from Parents, Student and teachers. She also felt that by distributing the BIP to non-special education staff, including School resource officers5 , Student would not be demoralized by repeated disciplines for disability-related infractions (such as not leaving class on time, humming, etc.) Ms. Pion felt that not all of Student’s social/emotional problems were related to ADHD and school-related issues, but noted that the family seemed to prefer to use private counselors to deal with non-school matters. (Pion)
51. In general, all school staff present at the hearing testified that Student would make effective progress if the rejected IEP and accompanying BIP were to be fully implemented, and that he did not need a more restrictive setting. (Pion, Cortese, Allsop, Benetti). On the other hand, there was testimony that Student’s progress under his “stay put” IEP was limited and inconsistent due to Student’s failure to complete work and, sometimes, disruptive behavior, although this progress had improved once Student started his Study Skills class, and in the case of Student’s History class, since he began working with the speech pathologist who helped him with that subject. (Allsop, Benetti, Humphries)
52. The record contains no report cards or quarterly progress reports for 2010-2011. Final (June 2010) progress reports for 2009-2010 were as follows: Science: slow, steady progress, needs much supervision to do work, inconsistent attitude. History: Steady progress, consistent work completion, disruptive behavior. ELA: “improvement toward his goals.” Math: Some progress, inconsistent effort and attitude, needs 1:1 or small group instruction to focus. Speech/language: Good progress, still needs services for expressive language. Counseling: “Respectful and polite during sessions.” (S-20) Parents did not receive all progress reports. (Mother) During tenth grade, Ms. Pion and Mother were supposed to have regular email contact; Ms. Pion testified at hearing that she mistakenly had sent her emails to an outdated address, and Mother did not receive them. (Pion).
53. The general consensus among Springfield staff seemed to be that the function of the BIP would be to consolidate and generalize behavioral goals and objectives across all settings—including inclusion classrooms, the bus, etc.—in a manner that would be more consistent than was possible if all behavior goals and accommodations were embedded in the IEP. (Allsop, Cortese, Pion)
Program Proposed by the Parents
54. The Parents seek to place Student at the White Oak School in Westfield, MA, which is a Chapter 766-approved private school serving children in grades 5 through 12 who have specific learning disabilities in the context of at least average intellectual ability. According to White Oak’s director and founder, David Drake, who testified at the hearing, White Oak uses a variety of methodologies to develop core literacy skills, including phonemic awareness, fluency, and comprehension. The materials and methodologies used depend on the needs of the particular student. The program structure consists of individual tutorials and small group instruction, with close coordination between the two. (Drake)
55. Mother contacted White Oak in approximately January 2011, and Student visited the program at that time. Student met briefly with David Drake, the program director, interviewed at more length with the Admissions Director, and toured the school. Parents provided White Oak with the Curtis Blake evaluation. Based on this information, Mr. Drake testified that Student was potentially appropriate for White Oak, which could implement the recommendations in the report. (Drake)
56. White Oak does not accept students with major emotional and behavioral disabilities, such as “conduct disorders or thought disorders.” (Drake) The school does not provide in-house counseling. The school does accept students who have behavioral issues related to their learning disabilities (including ADHD), or to frustration with a “mismatch” between student and school, because it is the school’s experience that such issues often diminish or disappear once a student is appropriately placed at White Oak. White Oak does not have a counselor on staff. White Oak also does not have a speech/language therapist on staff, although it may hire one; the school’s experience is that many speech/language interventions also can be embedded in the curriculum and provided by special education teachers. (Drake)
57. Mr. Drake testified that while he wanted more information on Student’s behavioral history, he was aware of some concerns regarding behavior related to Student’s ADHD and learning disabilities that had been mentioned in the Curtis Blake report.. (Drake)
58. Mr. Drake made clear that he had no knowledge of Student’s program at Putnam, and no ability to comment on its appropriateness for Student. (Drake)
FINDINGS AND CONCLUSIONS
Based on the evidence on the record and the parties’ arguments, I conclude that the Parent has not proved that the School’s program would be inappropriate if fully implemented, primarily because Parent has presented no current, independent, evaluation that assesses Student’s progress within the Springfield program, or the program’s fit for Student. On the other hand, with respect to Springfield’s cross-request for hearing, the School has demonstrated that the IEP of November 2010 and the accompanying BIP were reasonably calculated to provide the Student with FAPE, based on the information that the TEAM had in its possession at the time. My reasoning follows.
There is no dispute that Student is a school-aged child with a disability who is eligible for special education and related services pursuant to the IDEA, 20 USC Section 1400, et seq ., and the Massachusetts special education statute, G.L. c. 71B (“Chapter 766”). Student is entitled, therefore, to a free appropriate public education (FAPE), that is, to a program and services that are tailored to his unique needs and potential, and is designed to provide ‘effective results’ and ‘demonstrable improvement’ in the educational and personal skills identified as special needs.” 34 C.F.R. 300.300(3)(ii); North Reading School Committee v. BSEA , 480 F.Supp. 2d 489 (D. Mass. 2007); citing Lenn v. Portland School Committee , 998 F.2d 1083 (1 st Cir. 1993).
While Student is not entitled to an educational program that maximizes his potential, he is entitled to one which is capable of providing “meaningful” educational benefit, in light of his potential. See Bd.of Education of the Hendrick Hudson Central School District v. Rowley , 458 US 176, 201 (1982), Town of Burlington v. Dept. of Education, 736 F.2d 773, 789 (1 st Cir. 1984). That is, a school must consider a child’s potential in determining whether an IEP is calculated to provide that child with FAPE. Rowley , supra, at 202, Lessard v. Wilton Lyndeborough Cooperative School District , [cite].6
Education must be provided in the least restrictive environment (LRE) consistent with an appropriate program; that is, students should be placed in more restrictive environments, such as private day or residential schools, only when the nature or severity of the child’s disability is such that the child cannot receive FAPE in a less restrictive setting. On the other hand, the opportunity to be educated with non-disabled students does not cure a program that otherwise is inappropriate. School Committee of Town of Burlington v. Dept. of Education of Mass ., 471 U.S. 359 (1985).
In a due process proceeding to determine whether a school district has offered or provided FAPE to an eligible child, the burden of proof is on the party seeking to change the status quo . In the instant case, as the moving party challenging the School’s proposed IEP Parents bear this burden. That is, in order to prevail, Parents first must prove, by a preponderance of the evidence, that Springfield’s IEP and services were not appropriate, i.e., were not reasonably calculated to provide Student with FAPE. The School acknowledges that it bears the burden of proof on the appropriateness of the current IEP, covering June 2010 to June 2011. Schaffer v. Weast , 546 U.S. 49, 44 IDELR 150 (2005).
The parties agree that the Student has many strengths, including basic intelligence, interest in learning, reading comprehension, comprehension of grade level concepts, and math, and extra-curricular activities at which he excels. There also is no dispute that Student’s learning and general functioning as a student are significantly compromised by his combination of ADHD (which has not fully responded to medical treatment), emotional and behavioral challenges, in addition to a significant language-based learning disability and weaknesses in executive functioning, and that it is not altogether clear how his various learning, attentional and emotional difficulties interact. Moreover, there is no dispute that even if Student has made some progress, his school functioning has been inconsistent and sometimes troubled.
Springfield contends that Student has made effective progress, or, if he has not, it is because Springfield cannot provide Student with the full complement of services put forward in the IEP of November 2010 coupled with the BIP.
Based on the evidence, I find that the Parents have not has met their burden. The most recent IEP for 2010 -2011 contained numerous services and accommodations designed to meet Student’s special needs, including specialized instruction, a specialized reading program, speech/language therapy and counseling and study skills instruction targeting Student’s organizational weaknesses. The proposed BIP would systematically address Student’s behavioral challenges and essentially make it easier for Student to avoid repeated punishment for disability related behavior in shop classes, on the bus, etc. Of critical importance is that fact that the Parents have presented no evaluation suggesting that the IEP or placement were inappropriate. In fact, the Parents relied heavily on the recommendations of the Curtis Blake evaluation which (1) was completed in October 2009; and (2) not only did not recommend private placement but endorsed the Putnam placement. Further, Springfield considered this evaluation at least twice and incorporated many of its recommendations.
Also of critical importance is the Parent’s decision not to allow the School to fully implement the IEP and the BIP. While IEP at issue is not radically different from the prior IEP with respect to placement and services, there are at least two key additions: the proposal to have the school counselor focus on organizational skills, which are so clearly frustrating to the Student, and the BIP that would provide Student with some support, especially in shop settings, as well as provide a means to gather data on what does and does not help Student function. The Parents simply cannot make their case for a change in placement in the absence of an evaluation making a credible recommendation for such, and without allowing the School to implement a program that appears to be based on Student’s documented needs.
Despite the foregoing, the Parents have reasonably suggested that implementing the School’s proposal is not likely to be a “magic bullet” that will allow the Student to succeed. The Parents may be correct; however, to reach this conclusion before the Student has tried the School’s program would be pure speculation.
The appropriate resolution at this time is for Springfield to fully implement the IEP and BIP, for the TEAM to reconvene at the close of the first marking period—which, in any event, is the time at which the IEP will expire–to assess Student’s academic and behavioral progress, and if the Student appears not to be progressing adequately, for Springfield to advance Student’s three-year evaluation from January 2012 to immediately after the TEAM meeting. The issues for the TEAM to explore might be, for example, the effects of Student’s language and learning deficits on his frustration level and contribute to misunderstandings between Student and others; whether and how accommodations should be extended to shop classes, and whether the sheer size of Student’s current high school interferes with his ability to function there.
ORDER
The Springfield Public Schools may fully implement the IEP and BIP at issue in this matter. The TEAM shall convene at or before the IEP expires in November 2011 to assess Student’s progress, and shall advance the Student’s three-year re-evaluation if all parties (including Parents) are not satisfied that Student is making effective progress .
By the Hearing Officer:
_______________________ ______________________
Sara Berman
Date: July 5, 2011
1
Except for these requests for relief in the Hearing Request, the Parent has not otherwise mentioned or developed claims for compensatory services or reimbursement for evaluations; therefore, these claims will not be addressed here.
2
The record contains no documentation regarding sixth and seventh grade (2006-07, 2007-08), except to indicate that Student moved onto middle school.
3
The School was concerned about all of these incidents; obviously, however, the request for the FBA was based only on the incidents through May 13, 2010.
4
As of the hearing date, Student was involved with an outside counselor, but the School had not been aware of this until the hearing.
5
Student was suspended for five days after an incident on the school bus involving allegations of bullying by and against Student, of Student’s refusal to get off the bus when asked to do so, alleged improper language by a bus monitor, etc.
6
For an extensive discussion of the FAPE standard, see In Re: Cohasset Public Schools , BSEA 09-4922 (Crane, 2009)