COMMONWEALTH OF MASSACHUSETTS
DIVISION OF ADMINISTRATIVE LAW APPEALS
BUREAU OF SPECIAL EDUCATION APPEALS
IN RE: SPRINGFIELD PUBLIC SCHOOLS & MALCOLM1
BSEA #10-7467
DECISION
This Decision is issued pursuant to M.G.L.c.71B and 30A, 20 U.S.C.§1401 et seq , 29 U.S.C. §794 and the regulations promulgated under those statutes. A hearing was held in the above-entitled matter on September 16, 2010. Present for all or part of the proceedings were:
Mary Anne Morris Chief of Pupil Services, Springfield Public Schools
Martha von Mering Compliance Officer, Springfield Public Schools
Patricia Gray Language Learning Disabilities Coach, Springfield Public Schools
Renee Villeneuve Language Learning Disabilities Teacher, Springfield Public Schools
Marie Koski Educational Team Leader, Springfield Public Schools
Nancy Drury Instructional Leader Specialist, Springfield Public Schools
Melissa Gall Guidance Counselor, Springfield Public Schools
Luciano Valles Speech-Language Supervisor, Springfield Public Schools
Frank Dufresne Psychologist, Springfield Public Schools
Lindsay Byrne BSEA Hearing Officer
The official record of the hearing consists of documents submitted by the School marked S-1 through S-61 and approximately 3 hours of recorded oral testimony. The Parent did not appear or participate in the hearing in any way. The School was represented by counsel. The evidentiary record closed on October 25, 2010.
ISSUE
Whether the 2009-2010 Individualized Education Plan developed by Springfield Public Schools and accepted by the Parent was reasonably calculated to ensure that Malcolm received a free, appropriate public education?
PROCEDURAL HISTORY
The Team met on October 19, 2009 to develop an IEP for Malcolm. The Parent accepted the 2009-2010 IEP proposed for Malcolm on November 16, 2009. (S-41) An independent evaluation was conducted in December 2009 and January 2010. Malcolm attended the substantially separate language learning disabilities class reflected in the 2009-2010 IEP until he abruptly and without explanation ceased attending school in March, 2010. The Team reconvened on March 29, 2010 to consider the results of an independent evaluation and the impact of Malcolm’s extended absence on his educational services. (Drury) (Dufresne) The family did not attend. On April 8, 2010 the Parent wrote to Dr. Mary Anne Morris, the Chief of Pupil Services for Springfield, requesting that Malcolm be placed in a private special education school. (S-46) On April 27, 2010 the Parent retained counsel to represent her in special education matters. (S-47) Springfield requested a BSEA hearing on May 18, 2010. The Parent’s request to postpone the initial hearing date was granted and the hearing was rescheduled for August 8, 2010. The Parent did not respond to the School’s discovery requests and subsequent related orders from the Bureau. The Parent’s counsel withdrew on July 29, 2010. The Hearing was then rescheduled to September 16, 2010. The Parent did not submit proposed exhibits or witness lists. The Parent did not submit a written request for a postponement. The Parent did not appear at the Hearing on September 16, 2010. The Hearing Officer placed a telephone call to the Parent’s residence and was informed that the Parent was aware of the hearing and did not intend to attend. After the hearing concluded the Hearing Officer mailed copies of the official tape recording of the proceeding to the Parent and held the record open for thirty days to receive any parental submissions or request to re-open the hearing. None was received and the record closed on October 25, 2010. (Administrative Record)
SUMMARY OF THE EVIDENCE
1. Malcolm is a 17 year old 11th grade student with average cognitive potential and specific weaknesses in memory, attention and conceptual organization that affect his academic functioning across the board, with a particularly strong impact on tasks requiring divided or alternating attention. He has a history of regional complex pain syndrome as a result of an orthopedic injury, as well as significant episodes of depression. (S-19; S-32; S-36; S-44) He has received special education services through the Springfield Public Schools since at least the second grade to address his specific learning disabilities and accommodate his health needs. (S-1-18; 21, 22, 24, 26, 27, 35, 41, 42, 54, 59, 60)
2. During the 2008-2009 school year when he was in 10th grade, Malcolm received services in a substantially separate language learning disabilities classroom in the Central High School Building. Although Malcolm learned well in class, his absences and lack of homework completion affected the award of credits. (S-51, 52, 53, 57) Springfield offered a summer reading program which was rejected by the Parent. Springfield then arranged for individual tutorials in reading and written language (with a language learning disabilities coach, Patricia Gray, and a speech-language pathologist, Janice Kreiger) to take place over the summer 2009. (Morris) By the start of school in September 2009 Malcolm was able to make significant academic progress, to recover missing academic credits, and to achieve promotion to the 11th grade. (Gray)
3. Malcolm continued his placement in the substantially separate language learning disabilities class in Central High for the 2009-2010 school year. Malcolm received all his academic instruction in that program. The program serves 8 to 12 10th through 12th grade students with specific language learning disabilities. There are four core teachers: math, science, English and social studies. All core teachers are state certified in special education as well as their major subject area and have additional training in language based instructional methods. There is at least one paraprofessional during every instructional period. All instructors receive additional training, support, and monitoring to ensure that integrated, coordinated language based strategies are delivered and differentiated to each individual student’s need. Each student also receives daily remedial reading using an Orton-Gillingham based systematic reading program. (Gray) The classroom has, and the teachers use, visual supports for organization and instruction, cognitive maps, graphic organizers, and other tools to aid and strengthen memory and attentional weaknesses that affect language and academic performance. Both the physical environment and the instructional strategies are tightly structured. (Gray)
4. The Team conducted an annual review meeting on October 10, 2009. All Team members, including the parent, reported that Malcolm was comfortable in the substantially separate language learning disabilities classroom at Central High School and that he was making steady progress in acquisition of academic skills and achievement of his IEP goals. The Team developed an IEP updating his educational attainments and goals and continuing the services and placement in the language learning disabilities class. The Parent accepted the 2009-2010 IEP on November 16, 2009. (S-41; Gray; Koski)
5. Patricia Gray, the language learning disabilities coach for the Middle and High Schools in Springfield, testified that she worked individually with Malcolm during the summer, 2009, to ensure that he covered the material necessary for promotion from grade 10 to grade 11 in the language learning disabilities program. She also observed Malcolm in the substantially separate classroom during the 2009-2010 school year, reviewed his IEPs and attended the Team meetings in October 2009 and March 2010. Ms. Gray testified that the IEP Malcolm was following was appropriate for him, and that the substantially separate language learning disabilities class implemented Malcolm’s IEP. (Gray)
6. Nancy Drury, the instructional leader specialist responsible for training the teachers and paraprofessionals working in the language learning disabilities program, testified that the classroom Malcolm attended was very highly structured with a consistent routine, few distractions, and targeted academic instruction. According to Ms. Drury all of Malcolm’s IEP accommodations and modifications were implemented in the classroom. Ms. Drury observed Malcolm in the class in the fall 2009, spoke with his teachers and reviewed his writing samples. Ms. Drury reported that Malcolm appeared comfortable and engaged in learning. She testified that he was making “exciting and consistent” progress in the district curriculum.
7. Renee Villeneuve, the science teacher in the language learning disabilities program and Malcolm’s team liaison, testified that Malcolm was engaged and happy in the program and got along well with adults and peers. Although he had difficulty with written output, Malcolm had very good academic memory and background knowledge. He worked consistently and was making progress in all goal areas. Malcolm’s IEP had two specific accommodations he rarely used: universal access to a computer and to the school nurse, both to address orthopedic pain. Malcolm was also permitted to see the school adjustment counselor at any time due to parental reports of depression and anxiety. Malcolm never used this service. Ms. Villeneuve testified that, in her role as the liaison teacher, she was responsible for coordinating the teachers’ assessments of Malcolm’s adjustment to the class, his progress toward achievement of IEP goals, and the necessity for revising the special education techniques, approaches, services or goals. She stated that the language learning disabilities classroom provided a small, nurturing environment with academic instruction and accommodations that were appropriately tailored to Malcolm’s demonstrated needs. She also testified that Malcolm’s 2009-2010 IEP was fully implemented and that he was making appropriate progress. (Villeneuve).
Ms. Villeneuve never observed, or became aware of, any abuse, harassment or bullying that she later learned had been alleged by the Parent. She never observed Malcolm display any symptoms of anxiety, depression or physical/emotional exhaustion. (Villeneuve; see also Gall; Drury)
8. An independent neuropsychological evaluation was conducted by Dr. Brad Crenshaw at the University of Massachusetts Amherst during December 2009 and January 2010. Dr. Crenshaw reported that Malcolm displayed attention, memory and executive functioning weaknesses consistent with a diagnosis of Attention Deficit Hyperactivity Disorder, inattentive type. He recommended that Malcolm be placed in a calm, highly structured classroom with a consistent routine, few distractions and targeted instruction and support for organizational skills, metacognitive strategies and working memory. Dr. Crenshaw also recommended the use of computer based educational programs to assist with written language production. Finally he noted that adults should monitor Malcolm for a re-emergence of depression in light of his history. (P-44)
9. The Team received the independent evaluation report on March 25, 2010 and reconvened on March 29, 2010 to consider its findings and recommendations. The Team concluded that both the setting and the services recommended by Dr. Crenshaw were being delivered to Malcolm in his language learning disabilities classroom placement, and did not make any changes to Malcolm’s 2009-2010 IEP. (Morris; Koski, Dufresne; Gray)
10. Beginning in March 2010 Malcolm’s attendance became erratic. Malcolm stopped attending school on April 13, 2010 (S-51; Gall)
11. Dr. Mary Anne Morris, Chief of Pupil Services of Springfield Public Schools, testified that when she learned that Malcolm had stopped attending school, she directed the Team to reconvene to consider whether the IEP was appropriate for him, whether it was being implemented, and whether a plan should be developed to address the attendance issues. Dr. Morris contacted Malcolm’s out-of-school therapist who did not offer a medical reason for the absences. Dr. Morris also contacted Malcolm’s parent and her advocate to arrange the Team meeting at a time convenient for them. Though they selected the date, neither attended the scheduled Team. (Morris)
12. Renee Villeneuve testified that the Team convened on April 26, 2010 to discuss strategies to support Malcolm’s re-entry to school, to maintain his learning momentum, to ensure completion of 11th grade and successful results on the MCAS. The Team offered an after school tutoring program with door-to-door transportation that would help Malcolm catch up with classroom assignments and prepare for MCAS. Malcolm could also receive additional individual support periods within the language learning disabilities class or at the library. The Team proposed modifying the classroom content instruction in order to concentrate solely on the concepts and skills necessary to pass the 11th grade curriculum requirements. Nancy Drury wrote an individualized computer assisted language based learning module for biology so that Malcolm could focus on the discrete areas that would be tested on the MCAS. The Team also made the Springfield Public Schools credit recovery program available to Malcolm. The credit recovery program is an on-line learning tool that features lectures, demonstrations and assessments that address required curriculum elements for each course. The student controls the pace of presentation and completion. The student may take notes, ask questions and submit homework/exams all through the computer. The Team offered more intensive guidance and support through the school adjustment counselor along with monitoring and personal check-ins with the assistant principal. (Villeneuve, Drury, Gray, Koski) The Team also adjusted Malcolm’s transition goals to reflect their belief that he was college bound. The Team offered SAT preparation courses and consultation with the Career Development Office. (Koski)
13. The Team also offered to continue Malcolm’s direct special education services and support during the summer 2010. The Team offered the on-line credit recovery program, tutoring, computer assisted instruction and assignment of a young adult mentor. Malcolm’s Parent did not respond to any of the school’s offers. After April 13, 2010 Malcolm did not return to school during the 2009- 2010 school year, nor did he participate in any summer services. Because he did not complete 11th grade requirements, he was not promoted. Malcolm was scheduled to repeat the 11th grade in the language learning disabilities classroom at Central High School (under the 2009-2010 IEP accepted by the Parent in November 2009). He has not returned to school during the 2010-2011 school year. (Gall, Morris, Koski)
14. Team members agreed that had Malcolm participated in any of the modified services and/or the credit recovery program, he would have passed the 11th grade and the MCAS and been eligible for promotion to 12th grade. (Villeneuve, Drury, Morris)
FINDINGS AND CONCLUSIONS
The Springfield Public Schools acknowledges that Malcolm is a student with special learning needs and is entitled to receive a free, appropriate public education. It asserts here that it has fulfilled its statutory obligations: to evaluate Malcolm; to develop and implement appropriate, individualized strategies and programs to address Malcolm’s identified special educational needs and to permit him to make progress commensurate with his potential; to afford him meaningful access to regular education curricula, students and environment; and to adhere to applicable procedural protections for the student and the Parent. I agree. The clear and substantial weight of the evidence supports the conclusion that Springfield Public Schools developed a 2009-2010 Individualized Education Plan for Malcolm that was reasonably calculated to meet his special education needs in the least restrictive setting. The preponderance of the evidence further supports findings that Springfield Public Schools fully implemented the appropriate IEP, that Malcolm was making consistent progress in all curriculum and skill areas while attending the language learning disabilities classroom, and that Springfield Public Schools took appropriate measures to address, and to remediate the effects of
Malcolm’s extended absences.
The Parent did not appear at the hearing and did not challenge Springfield’s evidence in any way. I therefore viewed the evidence offered by Springfield particularly critically, drawing all available inferences in favor of an oppositional position, and asking questions of the witnesses that an opposing party might have posed. Even with that viewpoint the evidence overwhelmingly vindicates Springfield’s 2009-2010 IEP for Malcolm.
Briefly, the 2009-2010 IEP reflects the findings and service recommendations of all evaluators. There are no recommendations, including those of the independent evaluator, that are not incorporated into the IEP. (Cf S-41 and S-44; S-19; S-32, S-36, S-44) The IEP reflects the observations and recommendations of teachers and tutors who have worked directly with Malcolm during the past two years. There are no contrary or supplemental recommendations from service providers in this record. (Villeneuve, Drury, Gray. S-33) Malcolm made consistent progress in all areas while attending the language learning disabilities class. (Villeneuve; Drury; Gray; Koski; S-54; S-59; S-60) The 2009-2010 IEP was accepted by the Parent and fully implemented by Springfield. (Villeneuve, Koski, Drury, Morris; S-41; S-46) When Malcolm began to miss school in the spring 2010, Springfield immediately took steps to encourage attendance and to modify Malcolm’s program and services to address both the missing academic work and the necessary continuation of special education services. Springfield offered Malcolm additional services during the school day, after school, and throughout the summer. Had Malcolm availed himself of these services he would have been able to continue the educational progress he had demonstrated under the 2009-2010 IEP. (Morris, Villeneuve, Drury, Gray) The program and services available to Malcolm in his 2009-2010 IEP remain available to him should he elect to return to school. (Morris) There is no evidence in this record contrary to or different from the recommendations of the evaluators and teachers, or the observations and expert conclusions of Malcolm’s teachers, counselor and the administrators responsible for developing and implementing Malcolm’s special education program. Therefore I find that the 2009-2010 IEP developed by Springfield Public Schools, accepted by the Parent, implemented while Malcolm attended school, and still available to him is reasonably calculated to ensure a free, appropriate public education to Malcolm.
ORDER
The 2009-2010 Individualized Education Plan developed by Springfield Public Schools is reasonably calculated to ensure a free appropriate public education to Malcolm.
By the Hearing Officer
_________________________ ______________________
Lindsay Byrne
Dated: November 9, 2010
1
“Malcolm” is a pseudonym chosen by the Hearing Officer to protect the privacy of the Student in documents available to the public.