Student v. Salem Public Schools – BSEA # 10-6335
COMMONWEALTH OF MASSACHUSETTS
SPECIAL EDUCATION APPEALS
In Re: Student v. Salem Public Schools
BSEA # 10-6335
This decision is issued pursuant to the Individuals with Disabilities Education Act (20 USC 1400 et seq .), Section 504 of the Rehabilitation Act of 1973 (29 USC 794), the state special education law (MGL ch. 71B), the state Administrative Procedure Act (MGL ch. 30A), and the regulations promulgated under these statutes.
Parent requested a hearing on April 1, 2010, and following several telephone conference calls, the parties proceeded to Hearing on May 6, 2010. The Hearing was held at the Bureau of Special Education Appeals, 75 Pleasant St., Malden, Massachusetts, before Hearing Officer Rosa I. Figueroa. Those present for all or part of the proceedings were:
Karen Malio Director of Pupil Personnel, Salem Public Schools
Gina Gavegnano Assistant Director of Pupil Personnel, Salem Public Schools
Ana Hanton Bowditch School Principal, Salem Public Schools
Donna Gfroerer Adjustment Counselor, Bowditch School, Salem Public Schools
Natalie Clara Dudar Paraprofessional, Bowditch School, Salem Public Schools
Garrett McManus, Esq. Student’s Guardian at Litem
Colby Brunt, Esq. Attorney for Salem Public Schools
The official record of the hearing consists of documents submitted by Salem Public Schools (Salem) marked as exhibits SE-1 through SE- 51 ; recorded oral testimony and oral closing arguments. The record closed on May 6, 2010.
HEARING ISSUES2 :
1. Whether Student is safe in school?
2. Whether Student’s paraprofessional is appropriate?
POSITIONS OF THE PARTIES:
According to Parent, two main problems in Student’s current placement are interfering with Student’s ability to access the curriculum successfully. Parent states that Student is being bullied and therefore is not safe in school. Parent asserts that Student is hit by some girls in school every day, and that when she tries to defend herself by hitting back, the teachers discipline Student and not the other girls. Parent further states that the School’s assistant principal is mean to her daughter.
Additionally, Parent alleges that there are problems with the paraprofessional who is assigned to work with Student in school because she does not assist Student properly in class. She also states that the paraprofessional harms Student. Parent seeks a solution to the problems she raises. She seeks a new paraprofessional and wants Student to attend a different school.
Salem denies Parent’s allegations and asserts that Student is safe in her current placement. It states that it has taken measures to assure her safety both during periods when Student was and was not in special education. Salem asserts that Student’s disabilities fall within the autism spectrum and that she seeks negative attention and provokes others. Salem further points out that Parent withdrew Student from special education between November 2009 and February 2010. Following numerous meetings and mediations, as well as Salem seeking assistance from the courts through a Child In Need of Services (CHINS) petition, in February 2010, Parent consented to Student’s participation in special education. Salem has assigned a paraprofessional to work with Student, provided counseling assistance, offered her participation in a girls’ group for social pragmatics, and most recently has implemented a Behavior Intervention Plan, and ABA home support by a behavior specialist.
Salem further states that the paraprofessional assigned to Student is extremely well qualified to work with Student and asserts that they enjoy a positive relationship.
Salem states that the current program offered Student is a compromise that takes into account Parent’s concerns and Student’s preferences, and represents what Parent has accepted for Student. Salem wishes to pursue additional testing to better understand Student’s needs, as it suspects that Student may require services, in school and at home, in addition to those which she is currently receiving.
FINDINGS OF FACT:
1. Student is a thirteen-year-old seventh grader who resides with her mother in Salem, Massachusetts. She possesses strong rote memory skills and has very good writing skills, displaying great skill with spelling as well as with remembering times tables in math. She enjoys swimming, gymnastics, art, music and enjoys reading about animals. A neuropsychological evaluation conducted on May 12, 2008, found her cognitive abilities to fall within the low average range (SE-2). Student presents with autism spectrum disorder which impacts on her ability to maintain focus (requiring frequent redirection), and in her ability to pick-up on social cues. The IEP explains this as follows:
Her social interactions are awkward and she tends to invade the personal space of her peers. She has been noted to initiate negative interactions, whether at recess or within the structure of small group work. She needs to practice the give and take of social conversations, and while she can state the rules, she is unable to generalize the skills independently in the classroom. Academically, she will ask for help before trying. When shown exactly how to work on her own, she can complete the assignment correctly. She has difficulty applying learning to new situations. She responds best to very concrete directions. When given supports and organizational strategies are imposed, she does better. [Student] possess excellent oral fluency. She also has extreme difficulty with reading, comprehension and retention of content, pragmatics and synthesis (SE-2).
2. At present she attends seventh grade at the Nathaniel Bowditch School in Salem, MA. (SE-2).
3. Pursuant to an IEP meeting on September 8, 2009, Student’s Team drafted an IEP offering her participation in a seventh grade Pervasive Developmental Disorder (PDD) partial inclusion program at the Nathaniel Bowditch School. This IEP identified social/emotional, communication, language and behavior as Student’s areas of need stating that due to “delays associated with intellectual capabilities as well as significant language learning needs … [Student] presented] delays in the areas of reading comprehension, reduced vocabulary and reduced motor planning, which affect her ability to effectively access the general education curriculum”. (SE-2). The grid, offered speech and language therapy consultation up to sixty minutes per week ; direct services in the general education classroom for MAS Math, MAS Science, MAS Language Arts, and MAS Social Studies, five times forty minutes per week each, to be provided by the regular education, special education teachers and the paraprofessional. The IEP offered direct services outside the regular education classroom for “PDD 6-8” five times per week for eighty minutes each by the special education teacher and the paraprofessional; and social/emotional/behavior support one times fifteen minutes per week, and after-school social skills group once per week for ninety minutes, both services to be provided by the school adjustment counselor. It also offered Student participation in an extended year program five times ninety minutes per week from July 6 to August 13, 2009 (SE-2).
4. The speech and language provider found that Student’s difficulties with organization of language, as well as with pragmatic language and social perception have a negative impact, and found that Student requires that adults provide her support and scaffolding when participating in social or academic activities. Although Student was discharged from occupational therapy in October 2008, she was found to have decreased space and body awareness, and her visual perceptual skills impact her motor skills. The occupational therapy note further indicates that Student’s “deficits in her primary language affect and impact” her ability to learn English (SE-2). Parent accepted the IEP as developed on September 8, 2009.
5. On November 2, 2009, Parent requested a Hearing before the BSEA3 , seeking a change of classroom for Student who she alleged was having many problems and was coming home in crisis every day (Administrative file BSEA #10-2798).
6. On November 12, 2009, Parent wrote to the Salem School Department stating
I am writing this letter requesting that my daughter… be removed from special education program which she attends. My daughter is attending Bowditch School in Salem, Massachusetts. As we communication over that the conference calls yesterday, I am requesting that my daughter… be detached from special education program (SE-4; testimony of Parent).
7. Pursuant to Parent’s request, Salem removed Student from special education and forwarded Student’s new schedule reflecting the changes (Letter from Attorney Colby Brunt to Parent dated November 12, 2009, Administrative file BSEA #10-2798). Since Salem remained concerned over Student’s special education needs, its representatives continued to meet with Parent to discuss a proposed amendment to the previous IEP, and whether Parent would re-consider allowing Student to receive special education services (Administrative file BSEA #10-2798). Parent opted to keep Student out of special education (testimony of Ms. Malio).
8. On December 1, 2009, Attorney Brunt wrote to Parent explaining Student’s scheduling options should Parent continue to wish that Student remain outside special education (Administrative file BSEA #10-2798). Thereafter, BSEA #10-2798 remained inactive until the matter was closed ( Id. ).4
9. In January 2010, Salem filed a CHINS petition alleging that Student was a habitual school offender (testimony of Attorney Garrett J. MacManus, Ms. Malio).
10. After recognizing that Student needed academic assistance and support to access her education, while continuing to refuse Student’s participation in the Compass Program5 , Parent agreed to allow Student to receive assistance through an IEP Amendment.
11. On February 3, 2010, Salem forwarded an IEP Amendment to Parent based upon a signed mediated agreement entered into between the Parties on or about January 4, 2010 (SE-3). The Amendment proposed to offer Student participation in a
supported classroom with paraprofessional support to allow teacher to provide support to [Student] and all other students, implement classroom accommodations, monitor [Student] at lunch to ensure she has a positive lunch time experience, and monitor [Student] while she travels through the hallways. In addition, [Student] will have a choice of a locker from a field of two choices, will participate in social skills group with girls once a week for 30 minutes, and will meet with a behavioral specialist at home once a week for 60 minutes.
The Amendment offered Student participation in a ninety minute per day, five days per week, extended school year program which ran from July 6 through August 13, 2010. Additionally, the Team allowed Student to remain in her Spanish class, which Parent preferred. (SE-3)6 .
12. Under part C of the grid attached to the Amendment, Student was offered direct services outside the general education setting which consisted of participation in an after-school social skills group once per week for ninety minutes with the school adjustment counselor; social/emotional/behavioral support once per week for fifteen minutes with the school adjustment counselor; counseling/social skills once per week for thirty minutes consisting of participation in a girls’ group with the school adjustment counselor7 ; counseling once per week for forty-five minutes with the school adjustment counselor; and “PDD 6-8”8 for eighty minutes per week by the special education and the paraprofessional (SE-3). Also, sixty minutes of ABA Home support would be offered once per week by the behavioral specialist. Part B of the grid confirms provision of a one-to-one paraprofessional for her MAS Math, MAS Science, MAS Language Arts, MAS Social Studies as well as academic/social support by the paraprofessional 344 minutes per week (SE-3). Lastly, Part A reflects provision of speech and language therapy by the speech and language pathologist ( Id. ). Parent further requested that Student not participate in the Compass Program social skills group. Parent accepted the IEP Amendment in full.9
13. On March 26, 2010, a Behavior Intervention Plan (BIP) was developed for Student to address her issues regarding social relationships, aggressive behaviors, poor conflict resolution skills and school expectations. The rationale/background portion of the plan states that Student’s limited self-awareness makes her an unreliable reporter as she misreads social cues. She has also been noted to present with an incongruent affect as for example she may be stating that she is upset but is giggling or laughing when stating so. Lunch and transition time in the hallways are difficult for Student. (SE-5).
14. The BIP targets three specific behaviors: aggression and poor physical boundaries10 , verbal outbursts and staring at peers11 , and non-compliance12 . The behavior intervention strategies delineated in the BIP include pairing positive attention seeking behaviors with strong verbal praise from staff and peers, identifying replacement behaviors and positively reinforcing those behaviors (i.e., ignoring peers), use of minimal attention to extinguish negative behaviors, and reinforcing the absence of aggression, non-compliance or verbal outbursts. (SE-5). The BIP follows a point system whereby Student earns points toward positive social rewards, using friendly, positive words, complying with the expectations of staff or staying safe. A tally is kept as Student earns points each block of the day. She earns a point every five minutes for keeping her eyes on her work, an activity or the teacher during class, maintaining personal space, engaging her peers with friendly words, and when she receives no warning during a block. At the end of each block, Student meets with a staff in a private area where Student can tally the points she has earned for that block. She is then given two opportunities to trade her points during recess, in exchange for opportunities for social time with one or two girls with her paraprofessional; she may also receive a snack for her and her friends. If by the end of the day Student has received a specific number of points, she may meet to engage in conversation with a female peer and the paraprofessional at the library or SAC office. (SE-5). When encouraging positive behavior is insufficient as a motivator to deter Student from engaging in negative verbal outbursts, Student may lose “friendly words” points. A tally sheet with point expectations for each block as well as for bus and home-room time is kept on a daily basis13 . (SE-5).
15. According to Ms. Gfroerer, Ms. Malio and Ms. Dudar, the BIP was put in place the week before April school vacation and Student has been doing well on it. Whereas prior to implementation of the BIP she was in the principal or assistant principal’s office frequently, this frequency had greatly reduced (after implementation of the BIP) to one visit in approximately three weeks (testimony of Ms. Gfroerer, Ms. Malio and Ms. Dudar).
16. Salem also filed a CHINS petition to address concerns of neglect in the home and to ascertain how best to proceed. Salem’s staff opined that more was needed in terms of community-based and school-based services given the complexity of the issues and Salem’s perceived parental denial of the complexity of Student’s needs. Outside services and supports are currently in place to assist Student’s family in assessing Student’s educational, social and emotional skills and to make recommendations (SE-5).
17. According to Parent, Student is still being sent to the Director’s office and made to have lunch in that setting, something that she considers abuse (testimony of Parent). She testified that her daughter had told her that two female students hit Student in school every day and that they daily swear and call Student names such as ugly, stupid or crazy. Parent testified that there had been an incident in the previous week where Student had been hit in the bathroom and that Student pushed the other student back. Parent further stated that another student had hit Student in the hallway but that the staff had told Student that nobody had hit her. According to Parent, even though the paraprofessional walks next to Student, she does not see when others hit Student, although Student is hit every day. Parent testified that when Student is hit, she hits back. At least on one occasion, Parent took Student to the doctor after she had been hit (testimony of Parent).
18. Parent stated that the Assistant Principal was mean to Student and that she denied everything that happened to Student. Parent was also upset that the technology teacher sat Student only with a group of boys and stated that there were also problems in the Arts class where Student also sat with boys. Parent opined that when students bothered Student, the paraprofessional did not do anything. However, on cross-examination, Student conceded that she sat with three boys and two girls (testimony of Student). Parent testified that there were no problems with the Math, English and Spanish instructors (testimony of Parent). Parent holds a part-time job, is a part-time student and states that the stress of having to respond to Student’s problems in school is going to kill her because she has high blood pressure (testimony of Parent).
19. Parent testified that Student gets help from Girls Inc. in Lynn (testimony of Parent).
20. Parent stated that part of her agreement to place Student back in special education was that Student would have a paraprofessional assigned to her. However, Parent believed that there were problems with the paraprofessional because she does not help Student when other students bother her or hit her in the hallways, does not help Student in class when Student raises her hand (which Parent stated had happened the previous day in Math and Spanish classes), and in the cafeteria when Student wants to sit at a different table than the one to which she is assigned, the paraprofessional does not let Student change tables (testimony of Parent, Student). Parent and Student want the paraprofessional to come to Student immediately when she first raises her hand, and also would like Student to sit where she chooses at the cafeteria. Parent wants Student to be safe, and she wants others to be held accountable when they hit Student as it is her view that only Student is being brought to the administration office to meet with the principal and assistant principal (testimony of Parent). On cross-examination Student testified that there were more problems before April vacation (prior to implementation of the BIP), but that there were less problems after vacation, or that the problems seem to have been fixed (testimony of Student).
21. Parent opined that Student was not doing well on the BIP because Student had been brought to the office a few days before the hearing. Parent opined that Student was not getting the points and was not getting rewards such as spending time with the girls Student liked. She testified that when Student had been placed on the BIP, nobody met with Student to explain to her how the BIP worked, as a result of which Student did not know what she was doing wrong. Parent stated that Student did not like it when she got an “X”14 . Parent also testified that Student was not meeting with Ms. G froerer , the adjustment counselor, for counseling or girls’ group (testimony of Parent, Student).
22. Donna G froerer, Salem’s Middle School and High School Adjustment Counselor, holds a Master’s degree in counseling psychology and a Certificate of Advanced Graduate Studies, and is licensed as a mental health counselor in Massachusetts. She has nineteen years experience as a school guidance counselor and special education teacher. Ms. Gfroerer testified that she has been meeting weekly with Student since Parent accepted the IEP Amendment in February 2010. Since then, she has contacted Parent via telephone and spoken to her at least once. Ms. Gfroerer was also Student’s counselor in the fall of 2009, when she witnessed that Student was having behavioral problems on the bus, when in line and in the hallways. She described Student’s issues at the beginning of the school year as instances of non-compliance, aggression, verbal outbursts, and lateness to class. She began working with Student on developing positive basic social skills, personal space boundaries, conflict resolution with peers, using ignoring technique to avoid reacting to others, and “eyes focused on task” to reduce behaviors that may make others feel uncomfortable, such as staring (testimony of Ms. Gfroerer). Ms. Gfroerer also works with Student regarding reality testing issues, as Student has been observed to respond to stimulus that is not there at times. She explained that sometimes Student will yell at peers and accuse them of doing something that they have not done. Student has been observed pushing, kicking and running into other students at times for no apparent reason. Ms. Gfroerer was unclear as to whether Student was responding to anxiety or hearing things not there (testimony of Ms. Gfroerer).
23. In response to Student’s testimony Ms. Gfroerer stated that since the BIP had been implemented, Student had only been to the office on one occasion, which was, Friday April 30, 2010. Ms. Gfroerer explained that the behaviors addressed through Student’s BIP appeared to be escape responses or attention seeking. The BIP focuses on positive behaviors by offering positive feedback. She agreed that while Student was being sent to the administration office almost daily prior to implementation of the BIP, she had only been sent once or twice thereafter as Student was earning 22 of the possible 26 points needed to get a reward (testimony of Gfroerer). Student however, was not always choosing to access her reward, which consists of social time with a group of girls, because Student wanted to pick and choose which girls should participate and this was not always possible. According to Ms. Gfroerer, the success of the plan, even when Student was not “cashing in” the reward, was a sign that she needed the structure and responded to the positive attention. She further testified that Student participates in a girls group which she led last semester, but not this semester. According to this witness, Student participated in the girls’ group even when Parent removed her from special education (testimony of Ms. Gfroerer).
24. Ms. Malio, Ms. Gfroerer and Attorney McManus15 , all of whom have observed Student in school with her paraprofessional, opined that Ms. Dudar, the paraprofessional, was highly trained, effective and very appropriate with Student; she handled situations well, offering appropriate interventions and immediate feedback for inappropriate behaviors in a discrete, respectful manner, and they noted a positive relationship between Student and Ms. Dudar (testimony of Ms. Malio, Ms. Gfroerer, Attorney McManus ). If anything, Ms. Dudar was found to be overqualified to act as a paraprofessional, as she is qualified to teach and manage behavioral issues (testimony of Ms. Malio). They opined that Ms. Dudar did not ignore Student, and on the contrary, was very responsive to her, was approachable, and was appropriate. Ms. Dudar was noted to provide clear directions and her directions and responses were provided with a non-judgmental tone. Ms. Dudar was able to strike a delicate balance between knowing when to respond and when not to so as to allow Student to become more independent (testimony of Ms. Malio, Ms. Gfroerer, Attorney McManus ). Ms. Gfroerer was adamant that Ms. Dudar has not harmed Student in any way. She testified that Student is not an accurate reporter of incidents in school. Student reports negative things but not the positive. Ms. Gfroerer opined that Student was making progress with the interventions currently being implemented and believed that Student was safe at Bowditch (testimony of Gfroerer).
25. Natalie Clara Dudar, Student’s paraprofessional at the Nathaniel Bowditch School, holds a bachelors degree from Bowdoin College, where she earned a 3.58 grade point average. She has had experience as a tutor, teacher and/or aide since 2005. She holds a Preliminary Multiple Subject Teaching Credential, a pre-requisite to teaching in Los Angeles, California (SE-1). Next year, she will be an elementary school teacher in South Bronx, New York (testimony of Ms. Dudar).
26. Ms. Dudar commenced her employment in Salem in January 2010 and was assigned as Student’s paraprofessional in February of the same year. She starts her day at 7:45 a.m. by meeting Student in the cafeteria and then accompanies Student to home room, specials (art or music), two blocks of English, math, lunch and recess, between 8:00 a.m. and 12:05 p.m., and then helps Student transition into her technology class. Ms. Dudar takes her lunch break approximately between 12:15 p.m. and 12:45 p.m. (testimony of Ms. Dudar). At 12:45 p.m. Ms. Dudar resumes her responsibilities as paraprofessional and accompanies Student to her two afternoon block classes, including Spanish and the session with Ms. Gfroerer, between 2:15 p.m. and 2:30 p.m., after which she accompanies Student to the bus (testimony of Ms. Dudar).16
27. Ms. Dudar testified that there had been an incident in the girls’ bathroom on Friday, April 30, 2010. She testified that she heard shouting and when she went in there were two students confronting each other, one of whom was Student, and that the other student pushed Student. All of the students in the bathroom at that time were brought to the administration office but different stories were offered. Ms. Dudar asserted that this was the first time that Student had been brought to the office since the BIP was implemented.
28. Ms. Dudar explained that because of Student’s issues with social pragmatics, she does not communicate as other typical seventh graders. She provided examples of the communication issues explaining that Student will begin to stare at others as a means of provocation and when the other student says stop it, Student starts yelling; other times Student may hear bits of conversation and assumes that a certain word was meant for her and reacts to her assumption; when walking in the hallways, when in line at the cafeteria, or going up or down the stairs, if another student accidentally brushes against her, Student interprets this as having being hit and she may hit the other student with more force. Another instance involved a student who tapped Student on the shoulder to tell her something when they returned from recess, and Student reacted by hitting the other student in the face. While waiting for the bus in the bus room, Student engaged another student with whom she frequently has conflict. The other student told her to go away but Student lunged on her and another teacher got in between the two students to stop them. Ms. Dudar has also heard Student swearing at other students and explained that on one instance, student was looking at a boy and shouted “shut the #### up” but the boy did not respond. Student also has issues with others because she has difficulties understanding personal space. Ms. Dudar testified that Student reports incidents differently than what she has observed. According to Ms. Dudar, Student does not seem to take into consideration her approaches to others or the behaviors in which she may have engaged prior to the reactions she gets. When these incidents happen, Ms. Dudar separates the students and processes the situation, clarifying the social situation that took place to Student (testimony of Ms. Dudar).
29. Regarding the lunch room arrangement, Ms. Dudar testified that Student is assigned to sit with other seventh graders at a designated table. She is allowed to sit at other tables with students who are friendly to Student if Student is invited by the other students. In those instances, Student must first ask Ms. Dudar, who ascertains if it is a friendly invitation and then determines whether Student may change tables. Student has been allowed to change tables on at least one occasion. However, Ms. Dudar has not allowed Student to sit at a different table if no invitation has been extended (testimony of Ms. Dudar).
30. Ms. Dudar denied ignoring or ever having harmed Student. She opined that Student sought her out when she needed help and stated that when Student raises her hand in class, Ms. Dudar assists her. She further testified that she has explained to Student the manner in which the BIP works; that is, a check mark is received for good behavior, such as exchanging “friendly words”, and an X is given as a warning. Ms. Dudar opined that Student was invested in the BIP because she wants to do well in school (testimony of Ms. Dudar).
31. Karen Malio is Salem’s Director of Pupil and Personnel Services, and is the individual responsible to oversee special education in Salem. She is familiar with Student and Parent through participation in multiple mediations and other meetings, especially after Parent removed Student from special education in the fall of 2009, as the staff was greatly concerned that they could not meet Student’s needs without an IEP. It was Salem’s goal to better understand Student’s needs and explore what Salem could do to help her, as well as assist Parent in understanding Student’s needs. Ms. Malio testified that Salem provided multiple accommodations to Student even while she was not on an IEP. She also arranged for assistance with Student in the home where behaviors were problematic, and she herself worked with Parent for numerous hours, over the telephone and in meetings, to help her understand that clinical services were necessary. Ms. Malio noted Parent’s concern that she did not want her daughter to be perceived as crazy ( Id. ).
32. Parent testified that Ms. Malio told her not to call the school or come to the school so much (testimony of Parent). Ms. Malio explained that what she stated was that Parent could not absorb the Assistant Director’s time by calling so many times as they were responsible for numerous children; she told Parent that she could call but not daily. According to Ms. Malio, this occurred after Parent yelled in school “This is the worst school in the United States of America” and the school Principal sent a staff member to Parent’s home to explain that Parent had to refrain from being so loud and negative in school (testimony of Ms. Malio). After another incident in December 2009, the Resource Officer asked Parent to set an appointment if she had to go into the school and that she should not go into the school during the school day, after school, school dismissals or assembly time and be inappropriate (testimony of Ms. Malio).
33. Student’s Team last convened on April 29, 2010 to review a neuropsychological evaluation received on or about April 9, 2010. At that time, Salem proposed additional testing for Student over concerns that the IEP may not be addressing Student’s needs at the level she requires, since the current IEP reflects a compromise reached by the parties after much negotiation with Parent (testimony of Ms. Malio). Ms. Malio fears that Parent may once again withdraw Student from special education because Salem has not been able to help Parent understand the extent of Student’s needs ( Id ).
CONCLUSIONS OF LAW :
The Parties do not dispute Student’s eligibility for special education services under the Individuals with Disabilities Education Act17 (IDEA) and the state special education statute.18 As such, Student is entitled to a free, appropriate public education (FAPE).19 The dispute between the Parties is centered on Parent’s concerns over safety issues and the appropriateness of the aide assigned to Student. In rendering my decision, I rely on the facts recited in the Facts section of this decision and incorporate them by reference to avoid restating them except where necessary.
The IDEA and the Massachusetts special education law, as well as the regulations promulgated under those acts, mandate that school districts offer eligible students FAPE. FAPE requires that a student’s individualized education program (IEP) be tailored to address the student’s unique needs20 in a way reasonably calculated to enable the student to make meaningful21 and effective22 educational progress. Additionally, said program and services must be delivered in the least restrictive environment appropriate to meet the student’s needs.23 Under the aforementioned standards, public schools must offer eligible students a s pecial education program and services specifically designed for each student so as to develop that particular individual’s educational potential .24 Educational progress is then measured in relation to the potential of the particular student.25 School districts are responsible to offer students programs and services that will allow them to make meaningful, effective progress.
As the party challenging the adequacy of the services provided to Student, Parent carries the burden of persuasion pursuant to Schaffer v . Weast , 126 S.Ct. 528 (2005)26 , and must prove her case by a preponderance of the evidence.
Two issues surround the instant dispute: those are, Student’s safety and the appropriateness of Ms. Dudar, the paraprofessional. Parent is correct that Salem has a responsibility to provide Student, whose identified disabilities place her in the autism spectrum, FAPE while keeping her safe. In this regard the evidence is convincing that Salem is meeting its educational responsibility towards Student.
Parent’s entire case rests on reports made by Student as to what is happening in school. At Hearing, Parent and Student demonstrated a loving and caring relationship. They confided in each other, and Student sought Parent’s approval and direction during testimony. It is however unclear how well Parent understands the extent of Student’s disabilities, and their impact on Student. Student has issues understanding all aspects of social pragmatics. She has difficulties understanding not just social situations but also how her behavior impacts upon the reactions she is getting from others (see Facts # 22 and 28). Similarly, her disability impacts upon her ability to accurately relate back to what has actually happened, something to which Ms. Dudar and Ms. Gfroerer convincingly testified. Student’s statements that she has been called names in school, and that on occasion she may have been hit by a student are credible. However, this is only a part of the story as her disability impacts upon her ability to look at the antecedents which may have caused others to have such a reaction. Student herself has been observed to initiate or instigate aggressive behaviors and to have negative verbal outbursts (see Facts # 22 and 28).
A further instance of Student’s difficulties understanding and being able to accurately relate “the big picture” was noted during Student’s testimony. After demonstrating that she understood the difference between telling the truth and lying, she testified that following the April vacation she had been in the office every day, but when asked if she had been in the office on specific days during that week, she stated that she had not on each of the days. The credible evidence shows that she had only been in the office on Friday April 30, 2010 (testimony of Ms. Gfroerer, Ms. Dudar). Given her partial understanding of social situations, Student cannot be considered a reliable reporter in the sense that she may only be able to provide a partial presentation of her interpretation of the occurrences.
Regarding Ms. Dudar, the evidence is convincing that she is a highly-qualified individual who possesses the knowledge, experience and sensibilities to provide effective paraprofessional support to Student (testimony of Ms. Malio, Attorney McManus, Ms. Gfroerer). Ms. Dudar presented as a caring, intelligent, genuine individual who is invested in Student’s education. As such, I find her testimony to be credible. Similarly, I found Ms. Malio, Attorney McManus, and Ms. Gfroerer to be credible witnesses who had opportunities to observe and/or work with Student and who understand her needs and the impact of Student’s disabilities on accessing her education. Furthermore, the cumulative credible evidence shows that Ms. Dudar has never hit or abused Student in any way. On the contrary, Student and Ms. Dudar have been observed to enjoy a positive, constructive relationship which is allowing Student to access the curriculum and begin to gain a better understanding of social pragmatics.
Parent raised concerns that Student does not understand the BIP and therefore she does not know what she is doing wrong. This is a concern, not because multiple individuals have not explained the plan to Student (Ms. Dudar and Ms. Gfroerer did), but because it is possible that given Student’s issues she truly does not understand what it seeks to achieve. In this regard, it would be helpful to provide Student more frequent explanations and or reminders in context, for example, more specific indication of the reasons for which she is being praised or is getting points. In this regard, the individual responsible for the development of the BIP may be able to offer Student’s paraprofessional, teachers and service providers, additional support. Similarly, it is important that Parent also be offered this assistance.
The credible evidence is persuasive that Salem is providing appropriate services to Student, in particular those offered by Ms. Dudar, the paraprofessional, and that Student is presently being kept safe in school. Similarly, Salem is continuing to work with Parent to achieve the common goal of ensuring that Student is able to receive FAPE. As such, Parent has not met her burden of persuasion pursuant to Shaffer v. Weast .
At the present time, the Parties are properly pursuing additional evaluations that may shed light on the extent of Student’s disabilities and elicit recommendations to better serve her needs. There is no question that Student continues to require special education services. Student’s educational success is also dependent on interventions geared to assist Parent to understand Student’s difficulties, so that Parent will be able to provide Student the structure and interventions that prove to be effective in school, and across all other settings, including the home.
1. Salem shall continue to secure Student’s safety in school through implementation of the services and interventions in Student’s IEP Amendment and BIP.
2. Ms. Dudar is found to be appropriate, and is highly qualified to continue to offer paraprofessional services to Student.
By the Hearing Officer,
Rosa I. Figueroa
Dated: May 14, 2010
Parent did not submit any documents.
The issues for hearing were clarified during a telephone conference call on May 3, 2010 and further stated in a memorandum forwarded by Parent to the BSEA on May 4, 2010.
Salem requested that I take administrative notice of BSEA # 10-2798, a case filed by Parent against Salem in the fall 2009.
Following approximately four conference calls between the Parties and the Hearing Officer, the matter was dismissed on March 18, 2010, as a result of failure to respond to a Show cause Order (Administrative file BSEA #10-2798).
A special education program, which includes students in the autism spectrum.
The Amendment further states that Salem disagreed with Parent’s removal of Student from special education in November 2009, and therefore engaged in several mediations and held meetings which resulted in a compromise (reflected in the Amendment) which took into consideration parental concerns and Student’s needs (SE-3).
Participation in the girls group, a social skills group to address social pragmatics, is offered separate from the social time she is offered as a reward under Student’s BIP implemented in April 2010 and discussed later in this decision (testimony of Ms. Malio, Ms. Gfroerer).
PDD 6-8 presumably stands for Pervasive Developmental Disorder, sixth grade to eighth grade.
Although the Amendment is dated February 4, 2010, Parent back dated to January 8, 2010 presumably to coincide with the date of the mediated agreement.
“[Student] is frequently observed hitting, kicking, and pushing her peers, sometimes these behaviors are provoked, but many times they are unprovoked. Some of her difficulty lies in her poor physical boundaries and self-awareness, as Student will often push into people in front of her in line or try to get past them in the hall, or stand too close to her peers, who ask her to give them space”. (SE-5).
“[Student] often will yell ‘Stop!’ or ‘Stop it!’, engage in name-calling or be observed staring at specific peers she has had past issues with in the hallway. Often there is no antecedent for this behavior. It is unclear whether [Student] has distorted thought process that causes her to perceive the persecutory behaviors from her peers, or if she is deliberately engaging in negative attention seeking from her peers” (SE-5).
“[Student] has difficulty meeting many school expectations, such as getting to class on time, following directions from staff members, traveling in the hallways as expected, sitting in assigned seats, or following through with plans developed to help her with problem-solving with peers”. (SE-5).
A tally sheet block, as for example, used in English class is:
Friendly WordsPersonal SpaceEyes On Warnings
Under the BIP, Student gets checks when she does something right, counting towards points for which she gets rewards, and Xs constitute a warning when she fails to demonstrate the targeted/proper behaviors. For instance, if she does not use a nice word when addressing a peer, or if she invades their personal space, she would get an X (testimony of Parent, Ms. Dudar).
Attorney McManus who is Student’s Guardian Ad Litem (GAL) in the CHINS filed by Salem in January 2010, is responsible to look into Student’s educational needs so as to make recommendations regarding an appropriate educational setting for Student (testimony of Attorney McManus).
Before this schedule was implemented, Ms. Dudar met Student at 8:10 a.m. in home room (testimony of Ms. Dudar).
20 USC 1400 et seq .
MGL c. 71B.
MGL c. 71B, ss. 1 (definition of FAPE), 2, 3.
E.g., 20 USC 1400(d)(1)(A) (purpose of the federal law is to ensure that children with disabilities have FAPE that “emphasizes special education and related services designed to meet their unique needs . . . .”); 20 USC 1401(29) (“special education” defined to mean “specially designed instruction . . . to meet the unique needs of a child with a disability . . .”); Honig v. DOE , 484 U.S. 305, 311 (1988) (FAPE must be tailored “to each child’s unique needs”).
Board of Education of Hendrick Hudson Central School District v. Rowley, 458 U.S. 176, 192 (1982) (goal of Congress in passing IDEA was to make access to education “meaningful”); Deal v. Hamilton County Board of Education, 104 LRP 59544 (6 th Cir. 2004); (“ IDEA requires an IEP to confer a ‘meaningful educational benefit’ gauged in relation to the potential of the child at issue”); G. by R.G. and A.G. v. Fort Bragg Dependent Schs , 40 IDELR 4 (4th Cir. 2003) (issue is whether the IEP was reasonably calculated to provide student meaningful educational benefit); Weixel v. Board of Education of the City of New York , 287 F.3d 138 (2 nd Cir. 2002) (placement must be “‘reasonably calculated’ to ensure that [student] received a meaningful educational benefit”); Houston Independent School District v. Bobby R ., 200 F.3d 341 (5 th Cir. 2000) (educational benefit must be “meaningful”); Ridgewood Board of Education v. NE for ME , 172 F.3d 238 (3 rd Cir. 1999) (IDEA requires IEP to provide “significant learning” and confer “meaningful benefit”).
Lenn v. Portland School Committee , 998 F.2d 1083 (1 st Cir. 1993) (program must be “reasonably calculated to provide ‘effective results’ and ‘demonstrable improvement’ in the various ‘educational and personal skills identified as special needs’”); Roland v. Concord School Committee , 910 F.2d 983 (1 st Cir. 1990) (“Congress indubitably desired ‘effective results’ and ‘demonstrable improvement’ for the Act’s beneficiaries”); Burlington v. Department of Education , 736 F.2d 773, 788 (1 st Cir. 1984) (“objective of the federal floor, then, is the achievement of effective results–demonstrable improvement in the educational and personal skills identified as special needs–as a consequence of implementing the proposed IEP”); 603 CMR 28.05(4)(b) (Student’s IEP must be “ designed to enable the student to progress effectively in the content areas of the general curriculum”); 603 CMR 28.02(18) (“ Progress effectively in the general education program shall mean to make documented growth in the acquisition of knowledge and skills, including social/emotional development, within the general education program, with or without accommodations, according to chronological age and developmental expectations, the individual educational potential of the child, and the learning standards set forth in the Massachusetts Curriculum Frameworks and the curriculum of the district.”).
See generally In re: Arlington , 37 IDELR 119, 8 MSER 187, 193-195 (SEA MA 2002) (collecting cases and other authorities).
MGL c. 69, s. 1 (“paramount goal of the commonwealth to provide a public education system of sufficient quality to extend to all children the opportunity to reach their full potential… ”); MGL c. 71B, s. 1 (“special education” defined to mean “…educational programs and assignments . . . designed to develop the educational potential of children with disabilities . . . .”); 603 CMR 28.01(3) (identifying the purpose of the state special education regulations as “to ensure that eligible Massachusetts students receive special education services designed to develop the student’s individual educational potential…”). See also Mass. Department of Education’s Administrative Advisory SPED 2002-1: Guidance on the change in special education standard of service from “maximum possible development” to “free appropriate public education” (“FAPE”), effective January 1, 2002, 7 MSER Quarterly Reports 1 (2001) (appearing at www.doe.mass.edu/sped) (Massachusetts Education Reform Act “underscores the Commonwealth’s commitment to assist all students to reach their full educational potential”).
Hendrick Hudson Dist. Bd. of Educ. v. Rowley , 458 U.S. 176, 199, 202 ( court declined to set out a bright-line rule for what satisfies a FAPE, noting that children have different abilities and are therefore capable of different achievements; court adopted an approach that takes into account the potential of the disabled student ); Deal v. Hamilton County Board of Education, 104 LRP 59544 (6 th Cir. 2004); (“ IDEA requires an IEP to confer a ‘meaningful educational benefit’ gauged in relation to the potential of the child at issue”); HW and JW v. Highland Park Board of Education , 104 LRP 40799 (3 rd Cir. 2004) (“benefit must be gauged in relation to the child’s potential”); Houston Independent School District v. Bobby R ., 200 F.3d 341 (5 th Cir. 2000) (progress should be measured with respect to the individual student, not with respect to others); T.R. ex rel. N.R. v. Kingwood Twp. Bd. of Educ., 205 F.3d 572, 578 (3d Cir. 2000) (appropriate education assessed in light of “individual needs and potential”); Ridgewood Board of Education v. NE , 172 F.3d 238 (3 rd Cir. 1999) (“quantum of educational benefit necessary to satisfy IDEA . . .requires a court to consider the potential of the particular disabled student”); Mrs. B. v. Milford Board of Ed. , 103 F.3d 1114, 1122 (2d Cir. 1997) (“child’s academic progress must be viewed in light of the limitations imposed by the child’s disability”); MC v. Central Regional School District , 81 F.3d 389 (3 rd Cir. 1996), cert. denied 519 US 866 (1996) (child’s untapped potential was appropriate basis for residential placement); Roland v. Concord School Committee , 910 F.2d 983 (1 st Cir. 1990) (“academic potential is one factor to be considered”); Kevin T. v. Elmhurst , 36 IDELR 153 (N.D. Ill. 2002) (“ Court must assess [student’s] intellectual potential, given his disability, and then determine the academic progress [student] made under the IEPs designed and implemented by the District ”).
Schaffer v . Weast , 126 S.Ct. 528 (2005) places the burden of proof in an administrative hearing on the party seeking relief.
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