Upper Cape Cod Regional Technical School and Sandwich Public Schools – BSEA #s 06-0501 and 06-0808
COMMONWEALTH OF MASSACHUSETTS
Bureau of Special Education Appeals
In Re: Yale and
Upper Cape Cod Regional Technical School
and Sandwich Public Schools
BSEA#06-0501 & #06-0808
This decision is issued pursuant to M.G.L. 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 1, 2005 at the offices of Murphy, Hesse, Toomey & Lehane in Quincy, MA, by agreement of the parties. Those present for all or part of the proceeding were:
Robert Dutch Assistant Principal, Upper Cape Cod Technical School
Elizabeth Griffin Guidance Counselor, Upper Cape Cod Technical School
Dan Zente Lead Teacher, Upper Cape Cod Technical School
Meredith O’Brien Reading Teacher, Upper Cape Cod Technical School
Rhonda Cushing Special Education Teacher, Upper Cape Cod Technical School
Deborah Stacy Special Education Teacher, Upper Cape Cod Technical School
Toni Link Student Services Director, Upper Cape Cod Technical School
Henry Perrin Administrator of Special Education, Sandwich Public Schools
Mary Ellen Sowyrda Attorney for Upper Cape Cod Technical School
Lindsay Byrne Hearing Officer, BSEA
The official record of the hearing consists of documents submitted by the Parent marked P-1 through P-4; documents submitted by Upper Cape Technical School marked S-1 and S-3 through S-16; and approximately 6 hours of recorded oral testimony and argument. The Parent and Sandwich Public Schools participated in the hearing pro se . Upper Cape Technical School was represented by an attorney.
Upper Cape Technical School is a regional vocational school district. Sandwich is a member town in the regional vocational school district. Yale is a resident of Sandwich. This matter originally came to the Bureau on the July 28, 2005 request of the Upper Cape Technical School for hearing. The matter was assigned BSEA #06-0501. The Motion of the Upper Cape Technical School to Join Sandwich in the proceedings was not opposed by Sandwich or the Parent and was granted. The hearing originally scheduled for August 31, 2005, was postponed to September 1, 2005, by assent of the parties. On August 8, 2005, the Parent requested a hearing involving the same issues and the same parties. That hearing request, which was assigned BSEA #06-0808, was consolidated with BSEA #06-0501, and heard at the same time.
All parties made oral closing arguments at the conclusion of testimony on September 1, 2005. The Parent’s request for additional time to consider the issues raised at the hearing was granted. On September 20, 2005, the Parent withdrew the current placement issue, which had prompted expedited scheduling of the hearing. The record was closed on September 30, 2005 after the Hearing Officer determined that all parties understood the sole remaining issue to concern the appropriateness of the special education program provided to the Student during the 2004-2005 school year at Upper Cape Technical School, and that the narrowed issue did not require presentation of additional evidence.
Whether the Upper Cape Technical School provided a free, appropriate public education to Yale in the least restrictive setting during the 2004-2005 school year?
Summary of the Evidence
1. Yale is a 16 year old Student with well documented special education needs. He has mental retardation with pervasive weaknesses in cognitive, academic and social functioning. Four administrations of the Weschler scales (Wisc-III and IV) between 1996 and 2005 reveal scores of intellectual functioning ranging consistently between the mid 60s and the mid 70s. As a ninth grade student in 2004-2005, Yale demonstrated significant weaknesses in non-rote academic tasks such as reading comprehension, multi-digit mathematical operations, and writing mechanics, all of which he performed below the fifth grade level. Socially Yale tends to be intolerant of others, have poor communication and conflict resolution skills, low frustration tolerance, and a distorted reality perspective. He lacks insight into his own behavior, and is unable to generalize appropriate social skills learned in individual and very small group settings to larger groups of peers. When he feels misunderstood, overwhelmed or threatened Yale can become verbally abusive and physically threatening. In addition he has fine and gross motor difficulties which affect his ability to attend to and participate in the mainstream demands of vocational educational programming. Yale walks with a cane and has limited independent weight-bearing ability. He also has ongoing articulation difficulties which affect the ability of the unfamiliar listener to understand his speech. (S-8, S-12, S-3; Link, Zentz, O’Brien, Dutch, Stacy, Cushing, Griffin)
2. Yale received special education services through the Sandwich Public Schools beginning in kindergarten. For his second through sixth grade years Yale attended a substantially separate special education classroom designed for students with significant behavioral issues. He received additional speech-language services in that setting. Yale had tutoring at home during his seventh and eighth grade years due to multiple orthopedic surgeries. In June 2004, Sandwich developed an IEP for implementation at the Upper Cape Technical School where Yale was enrolled as a 9th grade student for the 2004-2005 school year. (S-1, S-2; Parent)
3. The 2004-2005 IEP proposed by Sandwich was accepted by the Parent before the start of the 2004-2005 school year at Upper Cape Technical School. The IEP summarizes Yale’s educational needs as:
Yale’s primary disability is an intellectual impairment, with commensurately delayed skills in communication, which affects his progress across all curriculum areas. Yale is slower to grasp concepts, and will therefore need a slower pace of instruction. Yale also experiences difficulty remembering information presented over time. Therefore previewing of information, review and repetition, and opportunities for the relearning of material will help to aid in success. Also, concrete material presented in small amounts over short periods of time, in a repetitive manner, and utilizing consistent language is best in order to assist Yale’s ability to retain the information.
Overall communication skills are affected by articulation errors in connected speech, slow retrieval speed and slow language processing speed. Slow and inaccurate retrieval of words/vocabulary impacts his ability to recall information quickly and efficiently. Expressive and receptive language weaknesses affect written expression, auditory memory and comprehension skills.
The Parent does not dispute that this was an accurate summary of Yale’s educational needs and there is no contrary information in the record. (S-3) The IEP calls for daily special education support during inclusion English and math classes, as well as one period daily of academic support in a special education setting. In addition the IEP provides for thirty minutes per week of direct speech/language therapy.2 The IEP also calls for extensive modifications in the presentation, content, methodology and performance expectations for Yale. These modifications include:
·provide an extra set of textbooks for home use;
·allow extended time to complete all academic tasks;
·provide study guides and study questions that directly relate to the test/quiz;
·break down directions and clarify them, as needed;
·rovide rubric/model for assignments;
·reduce assignments in favor of quality over quantity;
·use multiple choice and word banks for fill-in-the-blanks on tests/quizzes;
·allow use of math charts, aids, or a calculator on assignments, quizzes, tests;
·remind to edit and review work before completion;
·allow the use of a computer for writing assignments, when feasible ;
·use cloze procedure for note taking/or copy of notes, when feasible;
·pair auditory and visual information;
·provide graphic/semantic organizers;
·preview and review new vocabulary;
·modified curriculum will be provided to teach skills for mastery that are essential to know versus those that provide enrichment;
·instruction on strategies for processing language, word retrieval auditory memory, formulation and articulation;
·concrete, step by step instruction with minimum criteria for Mathematics and English/Language Arts skills;
·individual and/or small group speech/language therapy sessions;
·complete assignments and/or tests in Academic Support class;
·retake tests in Academic Support after review of material;
·allow use of math notebook as a resource during Math testing;
·when numbers of problems or examples are reduced as a modification, his work will need to be graded according to what he was asked to complete on assignments, quizzes and/or tests.
4. Toni Link, the Student Services Director at Upper Cape, explained the schedule for ninth grade students. The students have a rotating academic/vocational schedule. One week the students have all their academic classes, the next week the students are in a vocational shop full-time. Each exploratory (9th grade) student is placed in five shops through the course of the first semester. Although the students are given some choice about the shops, placement depends on openings, schedules and shop demands as well as student interest. Grades earned in the exploratory portion determine how students are assigned to their long-term vocational selection. Students must pass both the academic and the vocational portions of their programs to be promoted to the next grade. (Link; Zentz)
5. For the ninth grade Yale followed the standard rotating schedule. During the academic week Yale was placed in a small group, Title I, English and math class and attended team-taught inclusion science and social studies classes. Meredith O’Brien, the Title I teacher, explained that the Title I class was designed specifically for students who were reading below the 5th grade level, had “failed” the MCAS, and had been recommended for additional, remedial instruction. The class of 8 students met with 2 teachers for 90 minutes per day using adapted materials consistent with the Massachusetts curriculum frameworks, with a modified pace and expectations.
According to Ms. O’Brien, Yale was generally well prepared for class, organized and eager to work. He was unable to conform his behavior to class expectations, however. Although he was seated directly next to the teacher he was unable to maintain appropriate behavior long enough to make the academic progress he was cognitively capable of. He seemed to get stuck inside his poor behavior and was unable to concentrate on the learning tasks. A “cooling off” period didn’t help. His behavior included glaring and provocative facial expressions, verbal taunts, teasing, name calling and animal noises, directed primarily at peers and extending at times to adults in authority. Ms. O’Brien attempted redirection most of the time, but also had to impose detention from time to time.
Ms. O’Brien testified that she believed Yale was capable of learning the material necessary to pass the MCAS in a different setting. She stated that Yale could be successful in a small, self-contained class with physical proximity to a teacher with whom he had a positive relationship. He needs nearly one-to-one teacher attention, multisensory instruction, immediate feedback and manipulatives in order to learn. He also needs models and instruction in appropriate social behavior. (O’Brien)
6. By October 2004, Rhonda Cushing, the Title I math teacher, was asked to provide additional one-to-one teaching to Yale. She testified that although he responded well to soft spoken instructions and physical proximity to the teacher, it was clear that the environment at Upper Cape Technical School was too stimulating for him. She observed that Yale lacked the coping and screening skills to function appropriately in a busy school environment and that he needed to learn in a smaller setting that emphasized continual instruction and practice of social/behavioral skills.(Cushing)
7. Deborah Stacy, the special education liaison and academic support teacher, met with Yale daily for one period to assist him with all his academic work. Ms. Stacy also was the special education teacher in Yale’s team taught science class. She attended all team meetings, met frequently with all Yale’s teachers to develop common strategies for addressing his behavioral and academic difficulties, and created accommodations and modifications of curricula, teaching interventions and measurements, to adapt the Upper Cape Program to Yale’s learning needs. Ms. Stacy testified that Yale worked best with close physical proximity to the teacher and immediate feedback. This strategy helped him maintain behavioral control, but prevented cooperative social interactions with peers. Ms. Stacy developed a behavioral contract with Yale but, she stated, he was unable to generalize or transfer from one setting to another. Yale had particular difficulty with adults whom he perceived as lacking authority, for example a second teacher in a room. Ms. Stacy testified that a consistent prevocational program would be more appropriate for Yale than a rotating, skills-driven vocational program. Yale has limited understanding of cause and effect and of behavioral responsibility and consequences. These deficits pose significant safety hazards to Yale and to other students in the vocational setting. Yale needs direct and continuous instruction, practice, repetition and review to promote generalization of skills, improve confidence, and eliminate interfering behaviors. (Stacy; S-16)
Ms. Stacy noted that the teachers’ progress reports were based on work toward the objectives listed in Yale’s IEP. The comments did not reflect Yale’s abilities in general or the mainstream expectations. According to those reports none of the objectives listed in the 2004-2005 IEP had been achieved by the end of the school year. (Stacy, S-6, S-4, S-3)
8. During shop week Yale participated in the 9th grade exploratory program. Yale was assigned to electrical, masonry, carpentry, marine and landscape shops. Each of the shops was a large, busy environment with 25-30 students. It quickly became apparent that Yale was unable to negotiate the shop environment independently so he was assigned a peer tutor. Each vocational teacher read Yale’s IEP and implemented the appropriate instructional and grading modifications. Each reported that Yale lacked the attentional, behavioral, cognitive and manual skills necessary for future placement in that shop area. (Link, Zentz, S-15)
9. Yale’s difficulties with the schedule and program at Upper Cape became apparent within the first week of school. Upper Cape moved immediately to modify Yale’s schedule and programming. The Special Education Director, Toni Link, increased the amount and frequency of one-to-one academic instruction, instituted modifications in shop grading and production, assigned peer tutors, enrolled Yale in a social skills group and set up a time each day to meet with Yale one-to-one. Ms. Link also instructed all teachers to refer Yale to guidance rather than to discipline when incidents requiring intervention or redirection occurred.
Ms. Link met with Yale from 1:50 to 2:10 every day address behavioral, academic, social, and shop issues and to help him plan appropriate responses. Most of their discussions centered on peer relations. They developed scripts and behavioral response plans, but Yale could not transfer the skills from the one-to-one setting to actual peer interaction. Ms. Link testified that despite daily practice and reinforcement Yale could not generalize, understand cause and effect, or “ calm down” once he lost behavioral control. Ms. Link stated that Yale’s perception of people and events is distorted. He is hypervigilant and responds to internal stimulation without reference to the reality “on the ground”.
In October Ms. Link established a weekly “social development group” which focused on improving peer communication and conflict resolution skills . Yale participated well in this small group but did not acquire skills and new concepts at the same pace as the rest of the group. Though he tried hard he was never able to apply skills learned in the group in any other setting or situation. Later in the year Ms. Link worked directly with Yale in his academic and shop classes to improve his peer interactions and promote generalization of skills. Ms. Link also worked with Yale after school to reinforce positive social and behavioral skills. Despite increased time and instruction in behavioral skills, Yale continued to have significant difficulty in all school settings. Over time Yale became more frustrated and confused, and consequently more assertive, confrontational, belligerent, defiant, prickly, loud and perseverative with both peers and teachers. This behavioral dyscontrol created a cycle of peer rejection and removal from school activities. (Link)
Ms. Link testified that the setting and services available at Upper Cape, even with significant modifications, enhancements, and adaptations, are not appropriate for Yale. She stated he needs a small, structured setting which can provide integrated social, emotional, and communication training with consistent, repetitive, concrete examples, instruction and practice in every day situations. (Link)
10. The guidance counselor, Elizabeth Griffin, testified that she saw Yale every day. They worked together to develop behavioral response plans to create positive changes in Yale’s behavior in the mainstream school environment. Yale could identify appropriate strategies and language in the counseling setting, but was unable to implement them in real time, concrete situations in the school environment. He could say: “I will not make animal noises in class” but continued to do so despite adult reminders. (Griffin)
11. Robert Dutch, the assistant principal at Upper Cape Technical School, is in charge of discipline. He met Yale the first day of the 2004-2005 school year when the first disciplinary incident occurred. As there was no modified discipline policy identified in Yale’s IEP the regular discipline code was enforced. Mr. Dutch quickly realized that regular discipline was likely to be inappropriate for Yale. He then worked with Ms. Link and Yale’s teachers to avoid disciplinary referrals except when the safety of other students or teachers was at issue. Mr. Dutch saw Yale nearly every day as he was regularly out of classes due to provocative or confrontational behavior with peers or teachers. Mr. Dutch would talk to him, or walk him to see Ms. Link or Ms. Griffin, or if necessary, impose a disciplinary suspension. Mr. Dutch testified that Yale regularly misperceived peer and teacher actions. Yale also did not understand that his behavior caused difficulty with or for others and that as a result it had, or should have, consequences. Despite informal modifications, by January 2005, Yale had accumulated 8 formal disciplinary reports. The diversions and disciplinary actions did not appear to have any instructive effect. There was no positive growth in Yale’s behavioral presentation over the course of the first semester. In fact Yale’s behavior deteriorated when he learned, at the conclusion of the shop exploratory period, that he would not be assigned to the marine shop. (Dutch)
After an exploratory first semester, 1 st year Upper Cape students are assigned to one vocational shop for the remainder of the school year. Typically assignments are made competitively, based on grades achieved in the five exploratory placements, as well as teacher recommendations and student choice. In January 2005, Yale was not assigned to his first choice shop program: marine services. He was also not assigned to any of the shops he had participated in during the exploratory program. Of the nineteen students who listed marine services as their first choice placement, sixteen were admitted. Five of the admitted students had IEPs. Of the rejected applicants only Yale had an IEP. Yale had the lowest shop grade and the lowest exploratory grade of any applicant. (S-13; Zentz)
13. I n January 2005, after another serious disciplinary referral due to an allegation of unprovoked physical aggression toward other students, a functional behavioral assessment was performed. The assessor concluded that Yale’s cognitive deficits and undersocialization caused the offending behavior and recommended that the disciplinary code be modified for Yale. The assessor recommended that Yale be excused from out-of-school suspensions, that he participate in a social skills development group with multiple opportunities to practice learned skills in a real life setting, that he meet with the school psychologist weekly, and when necessary serve detentions in the morning. (S-10; Dutch; see also S-11)
At the Manifestation Determination Meeting held subsequent to the functional behavior assessment, the Team concluded that the behavior that prompted the proposed discipline in January 2005, as well as Yale’s inappropriate behavior in general, was a manifestation of his cognitive/behavioral disability and therefore not subject to ordinary discipline. The Team proposed continuing the disciplinary diversions to Ms. Link, Ms. Stacy and Mr. Dutch, continuing and strengthening group and individual social skills development and converting any necessary suspensions to in-school detentions. The Team also recommended further evaluations to discern the cause of Yale’s persistent problematic behaviors and to garner recommendations for appropriate school responses. (Dutch, Link)
The father requested that he be telephoned prior to the imposition of any discipline. The School agreed, and attempted to comply with the request but could not always reach the father as he is frequently out-of-telephone range. The father also requested that a teacher be present during any necessary detentions so that it would not be “wasted” time. The School agreed, and did assign a one-to-one teacher to Yale during all subsequent detentions. The father agreed that a comprehensive evaluation would be helpful but decided to secure one independently and declined school offers of evaluations and assistance. (Father, Link, Dutch; S-10)
14. On March 23, 2005, Yale was seen at the Developmental Medicine Center at Children’s Hospital, Boston. After a comprehensive evaluation Dr. Spinks concluded that Yale exhibits cognitive, academic and social functioning consistent with mental retardation. No assessment of Yale’s problematic school behaviors was performed. Dr. Spinks had no communication with or direct documentation from school personnel familiar with Yale. Nevertheless Dr. Spinks recommended that Yale be placed in a small, structured, integrated behavioral, social skills and language development program. Speech/language therapy, occupational therapy and psychological services should be incorporated into the classroom. The program should include vocational instruction as well as functional academics and life skills. Instruction should be explicit, concrete, repetitive, multisensory, and practical. The setting should be predictable, small, therapeutic and responsive. (S-8)
15. The Parent testified that the Children’s Hospital report contained information irrelevant to Yale’s educational programming and highly personal to the family. He thus refused to release the entire report to the Team when it reconvened in May 2005. Instead, by agreement, Ms. Link read only the summary and recommendations to the Team. The Team agreed with the outside evaluator’s conclusions and did not pursue additional evaluations before developing an IEP for 2005-2006. (Link, Father) There are no other recent evaluations or placement/program recommendations in the record.
16. The IEP developed as a result of the May 20, 2005, Team meeting proposes that Yale be placed in a small, highly structured, pre-vocational life skills program at Sandwich High School. (S-1) (See also Perrin) No such program exists at Upper Cape Technical School. (Link)
17. One of the modifications listed in the 2004-2005 IEP is the opportunity for Yale to take a retest if necessary to improve his grade. The final exam for grade 9 reading was administered on the last day of the 2004-2005 school year. Yale received a failing grade. As school was closed there was no opportunity for a retest. Ms. O’Brien testified that although he failed that one test, the first time he had ever failed a test in reading, he still passed the course for the year. (O’Brien; S-3; P-4. See also testimony of Parent)
18. Yale passed the academic portion of the 9 th grade program at Upper Cape Technical School, but he failed the vocational shop component. Therefore he was not promoted to 10 th grade. On June 24, 2005, he was erroneously notified that he had failed both the shop and the academic portions of the 9 th grade program. (P-3, P-4, Father)
19. The Parent testified that in the right environment Yale is a conscientious, hard working student. He learns best when the subject involves something he is intensely interested in such as computers or marine science, and when he is alone with and close to an adult instructor. The availability of the marine science shop at Upper Cape Technical School was the main reason the Student and his family chose to attend Upper Cape. The father stated that Yale had been around boats and boat yards all his life and knew all necessary safety rules for working on and around boats. Therefore, according to the Parent, there was no reason Yale shouldn’t have been successful in the marine shop at Upper Cape unless he was “set up”. The Parent claimed that Upper Cape failed to meet Yale’s learning needs because the IEP didn’t address any of his learning disabilities, and no assistance or modifications were provided in any of the shops. He also claimed that Upper Cape’s disciplinary actions were unfair because the School didn’t take into account Yale’s physical disabilities. In addition Upper Cape failed to offer Yale the shops he was truly interested in and could succeed at: automotive technology; auto body; and masonry. The Parent asserted that had the Upper Cape Technical School actually delivered FAPE the Student would have been successful. Instead Upper Cape failed to offer appropriate modifications to Yale’s program such as: providing a qualified aid, implementing a contingent behavioral reward system, and preventing peer harassment, which would have allowed Yale to be successful.
The Parent testified that he did not observe Yale’s program at any time during the 2004-2005 school year and did not make specific requests for instructional modifications of the academic or shop components. The Parent’s request for modification of the School’s disciplinary responses was accommodated. (Parent)
20. The Parent claimed that Upper Cape Technical School improperly used the evaluation he procured at Children’s Hospital in March 2005. He stated that the evaluation report contained confidential family information not relevant to the assessment of Yale’s learning needs or progress, and that Upper Cape failed to adhere to the confidentiality provisions he requested. As proof he points to the appearance of the Children’s Hospital document in the School’s hearing exhibit package. Ms. Link testified that due to parental concerns she agreed to read only the summary and recommendations portion of the Children’s Hospital report to the Team on May 6, 2005. She did not distribute the report to Team members as is customary.
None of the Team members had access to the full report. The report appears in the school’s hearing documents because it is a part of the student record. Absent the special education appeals hearing no Upper Cape personnel other than Ms. Link would have seen the Children’s Hospital report. Furthermore it does not contain any unusual or damaging information. (Link, Parent; See also testimony of Stacy, O’Brien, Zentz, Griffin)
Findings and Conclusions
There is no dispute that Yale is a Student with special education needs and is thus entitled to receive a free, appropriate public education. There is also no dispute that Yale did not experience success, despite the efforts of committed and skilled educators, during his 9 th grade year at Upper Cape Technical School. The issue here is whether the Upper Cape Technical School provided that FAPE to Yale during the 2004-2005 school year. After careful consideration of all the documents and oral testimony introduced at the hearing, as well as the thoughtful arguments of all the parties, I find that Upper Cape Technical School fully and appropriately implemented the 2004-2005 IEP agreed to by the Parent, and that there is no evidence in the record of procedural or substantive violations which might support a contrary finding. This matter is highly unusual in that there is virtually no historical record to provide a context for the dispute between the parties. Although the parties agree that Yale had been receiving some sort of special education geared toward a “behavioral” disability during elementary school, the nature of the disability, the type of education programming, the progress toward IEP goals, are all unknown to me. More significantly the last two years, ostensibly the Student’s 7 th and 8 th grade years, are a veritable blank in the record. There is no record of school attendance, special education services, evaluations, or academic progress during those years. There is no information concerning the Student’s application and admission to the Upper Cape Technical School in the spring and/or summer of 2004. There is only an accepted IEP for the Student’s 9 th grade developed by his district of residence, Sandwich, for implementation by the Upper Cape Technical School. The record does not contain any of the evaluations, assessments, teacher reports or other supporting documentation for the 2004-2005 IEP. Because of that, buttressed by the Parents’ full acceptance of the 2004-2005 IEP, I am constrained to take the IEP’s description of Yale’s learning strengths and needs at face value. Indeed I found the IEP’s discussion of Yale’s learning profile to be comprehensive and validated by the later observations of his teachers and counselors at Upper Cape. (Compare S-3 and testimony of O’Brien, Stacy, Cushing, Link) Furthermore I found the modifications and accommodations listed in the IEP to be appropriate to the Student description contained in the document, as well as to the teachers’ descriptions of Yale’s behavioral and cognitive learning style while he attended Upper Cape Technical School. There is nothing in the record which would support a finding that the 2004-2005 IEP, as developed by Sandwich, would not meet Yale’s special education needs in the least restrictive setting. Therefore I find that the Parent’s first claim, that the 2004-2005 IEP on its face did not provide a free appropriate public education to Yale, is not supported in this record.
A free, appropriate public education, as defined in federal and state law, is one which is reasonably calculated to assure personalized instruction and support services tailored to meet a student’s unique needs and to permit the Student to make meaningful education progress in the least restrictive environment. As explained above there is no information in the record which would contradict or supplement the learning profile set out in Yale’s 2004-2005 IEP. The services, modifications, and settings outlined in the IEP are appropriate for and consistent with that learning profile. There was no expert evidence to the contrary presented at this hearing. There is no reason to believe, based on the information set out on the IEP, that Yale would not make meaningful educational progress in that special education program. Moreover, there is no claim here of lack of notice of parental options and due process rights, lack of meaningful parental participation in the development of the IEP, or any other procedural impropriety. Without such a showing the BSEA does not revisit accepted expired IEPs. In Re: Arlington Public Schools , 8 MSER 133, 135 (2002) and citations therein.
Turning to the parents’ claim that the 2004-2005 IEP was not fully or appropriately implemented by the Upper Cape Technical School I find there is no substantial evidence in the record to support this contention. Instead the evidence shows that the modifications and accommodations listed in Yale’s accepted IEP were implemented in all academic classes. The special education services: daily small group inclusion classes in reading and math as well as daily academic support with a special education teacher, were provided.3 (O’Brien, Cushing, Stacy) Indeed, Upper Cape Technical School added services and service enhancements as Yale’s individual needs became more apparent. These included: provision of a one-to-one peer tutor in shop classes; modification of teacher supervision and performance expectations in shop classes; assignment of a special education teacher to provide one-to-one instruction in math and academic support; creation of a weekly social skills development group; daily social skills counseling period with guidance counselor; daily social skills instruction/check-in period with special education director; after-school social skills reinforcement session; modification of the disciplinary code and creation of alternative disciplinary strategies and environment; assignment of a one-to-one teacher to in-school disciplinary periods; and advocacy. All these modifications were made in order to meet Yale’s demonstrated needs for additional academic support and instruction, enhanced supervision, and a modified environment. (Link, Stacy, Zentz, O’Brien, Griffin, Cushing) I found each of the Upper Cape Technical School service providers to be concerned about Yale’s educational functioning and programming, to be flexible and responsive to his needs and sympathetic to his behavioral difficulties, and to exhibit substantial skill and expertise in adapting instructional methods and environments to meet these needs well beyond what was required by the IEP. Furthermore, the two modifications directly requested by the Parent: assignment of a teacher to tutor Yale during any in-school disciplinary removal and prior parental notification of imposition of discipline, were both implemented immediately.4 That the concerted and committed efforts of school personnel did not succeed in ameliorating Yale’s behavioral difficulties to the point where he was available to take advantage of the modified vocational course open to him does not mean that the special education services to which the Parent agreed were not delivered. Nor does the fact that Yale failed to achieve the goals set out for him in the 2004-2005 IEP necessarily demonstrate the inappropriateness of the goals or the special education program. On the contrary, it appears both from the teacher reports and a contemporaneous independent evaluation, that Yale needs, and needed during 2004-2005, a different model of academic and prevocational programming than was available at Upper Cape Technical School. The substantial individualized modifications to the program and services delivered to Yale, however appropriate they were, could not alter the fundamentally inappropriate structure and nature of the Upper Cape Technical School. (Compare testimony of Stacy, Link, O’Brien and Cushing with the recommendations contained S-8) Therefore I find that the 2004-2005 IEP developed by Sandwich for Yale was fully implemented by Upper Cape Technical School.5
The Parent further alleges that Upper Cape Technical School discriminated against Yale and retaliated against him due to his disability when it failed to assign Yale to his first choice vocational shop, marine services, in January 2005. Upper Cape Technical School produced evidence to show that it had a legitimate, nondiscriminatory, shop placement policy in effect at that time which resulted in the placement of 11 regular education and five special education students in the shop and the exclusion of 2 regular education and one special education student applicants. There is no evidence in this record of any policy or practice which resulted in the exclusion of special education students from the marine services shop. Nor is there any evidence that Upper Cape Technical School deliberately targeted Yale for exclusion due to his disability. Therefore I find the Parent’s discrimination claim unsupported in this record.
The remaining discrete issues raised by the Parent are not sufficiently substantial, even if true, to warrant corrective action. The Parent alleges a breach of an oral confidentiality agreement concerning the use of the Children’s Hospital evaluation performed in the spring of 2005. (See ¶ 17 infra ) I did not find evidence of such a breach in this record. On the contrary, the preponderance of credible evidence in the record supports a finding that the evaluation report issued by Children’s Hospital concerning Yale was not used in any inappropriate or illegal manner. I further find that the Parent’s request for confidentiality was handled sensitively and intelligently by Ms. Link, while still allowing the Team to consider the critical relevant evaluative information. Even had a procedural violation been established by the Parent, there was no showing of any resulting harm to the Student as the findings and recommendations of the Children’s Evaluation Team were consistent with those of the Upper Cape Technical School Team and would necessarily result in a substantially similar IEP.
Finally, the Parent’s contention that Upper Cape Technical School failed to provide an opportunity for Yale to retake an English final exam, despite a specific provision in his IEP permitting retakes, was admitted by the School. (See ¶ 15 infra ) The resulting harm, a failing grade on that exam, but not in the course, is de minimis , and does not affect the substantive or procedural appropriateness of the 2004-2005 IEP, or any subsequent IEP. The School acknowledged and explained the lapse and, presumably, will guard against a repetition.
The 2004-2005 IEP developed by Sandwich Public Schools was reasonably calculated to provide a free, appropriate public education to Yale in the least restrictive setting and was fully and appropriately implemented by the Upper Cape Technical School.
By the Hearing Officer,
Lindsay Byrne, Hearing Officer
Initially the Parent presented additional issues to the Bureau. The Parent asserted that the Student had not received the speech-therapy services outlined in his 2004-2005 IEP. The School agreed and developed a plan for delivering the compensatory services due, which the Parent accepted. Therefore this decision does not address the issue of speech/language services. At the start of the hearing the Parent sought an order continuing the Student’s last agreed upon placement at the Upper Cape Cod Technical School, promotion to the 10th grade and placement in the marine science vocational program. At the conclusion of the hearing the Parent withdrew his request for prospective relief in the form of maintaining the Student’s placement at Upper Cape Cod Technical School. The Parent confirmed that the only outstanding issue on which he sought a decision was whether Upper Cape Technical School had fulfilled its obligation to provide FAPE to Yale during the 2004 -2005 school year.
See footnote 2, infra .
Speech/language service delivery is discussed elsewhere in this decision.
The Parent testified that other modifications should have been implemented to increase Yale’s chances of success in the vocational program. In particular the Parent suggested that a trained one-to-one teacher aid should have been assigned to Yale during shop classes and that a “contingent reward system” should have been implemented in all settings. While these ideas may have been good and workable, there are no recommendations for these services in the documentary record and no evidence that the Parent ever brought these requests to the Team during the 2004-2005 school year.
With the above-noted exception of speech/language services for which a remedy has already been provided to and accepted by the Parent.