Special Education Appeals BSEA #99-4234
COMMONWEALTH OF MASSACHUSETTS
DEPARTMENT OF EDUCATION
BUREAU OF SPECIAL EDUCATION APPEALS
In re: Walpole Public Schools BSEA #99-4234
This decision is rendered pursuant to the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. 1400 et seq .; Chapter 766 of the Acts of 1972, M.G.L. c. 71B; Massachusetts Administrative Procedures, M.G.L. c.30A; Section 504 of the Rehabilitation Act of 1973, 20 U.S.C. 794; and the regulations promulgated pursuant to these statutes.
A hearing on the above-numbered case was held on August 9, 1999 and August 13, 1999 at the Bureau of Special Education Appeals in Malden, Massachusetts, and after oral closing arguments on August 13, 1999, the record was closed.
Persons present for all or part of the proceedings were:
Beth Karon Goldberg Attorney for Student and her Parents
Mary Joann Reedy Attorney for Walpole Public Schools
Lois Carra Neuropsychologist, New England Medical Center
Cathy Mason Educational Consultant, New England Medical Center
Mary Sullivan Kelley Director of Special Education, Walpole Public Schools
Carol Peck Special Education Teacher, Walpole Public Schools
Charles Ferro School Psychologist, Walpole Public Schools
Dayna Hutchins TEC Program Administrator
Edward Carter TEC Administrator for Special Services
Sandra Sherwood BSEA Hearing Officer
James Henderson BSEA Observer
William Crane BSEA Observer
The official record of this hearing consists of documents submitted by Student’s Mother and Father (hereafter, Parents) (marked P-1 through P-22), documents submitted by the School (marked S-1 through S-27) and approximately seven hours of recorded oral testimony.
1. Whether Walpole Public Schools’ (hereafter, Walpole) 1999-2000 proposed IEP calling for a 502.4 prototype placement at the Education Cooperative’s Learning and Vocational Center at Wayland High School (hereafter, TEC) is reasonably calculated to maximize Student’s educational development in the least restrictive setting; and if not,
2. Whether placement at Learning Prep School (hereafter, LPS), a 766 approved private day school (502.5 prototype), is reasonably calculated to maximize Student’s educational development in the least restrictive setting.
Student has been in Walpole’s special education programs throughout her schooling but has never had the appropriate language based program with a peer group of students similar to her. Her academic, cognitive, and language deficits, combined with her lack of friends or peer group, have rendered her unable to take risks in learning and unable to participate effectively in class settings. As a result, she has not made the educational progress of which she is capable. TEC, the program proposed by Walpole, offers a class of similar peers, but as a very small program in the setting of a regular education high school, is insufficient to provide her with the environment necessary for her to learn. Further, TEC does not provide a sufficiently intensive academic program for Student to reach her educational potential. In contrast, LPS provides comprehensive language based programming, a large group of similar peers, and an active community of students in both academic and extracurricular activities. LPS would provide Student with the necessary educational setting in order for her to grow academically to her potential. Further, LPS offers a vocational component which would help her to explore her vocational interests in the context of a strong academic program.
Walpole does not disagree with much of Parents’ assessment of their child. Walpole views Student as extremely shy and lacking in self-esteem, as reluctant to participate in unfamiliar or uncomfortable settings, as unable to take risks, and as capable of further academic development. However, Walpole believes that TEC can address her educational needs, in that it offers a language-based program, a group of similar peers, and vocational training necessary for Student. Its vocational training is more extensive than LPS’s in that it offers hands-on work experience.
STATEMENT OF THE FACTS
1. Student is a seventeen-year-old girl who has received special education services since pre-school. During the 1998-1999 academic year, she received special education services in a 502.3 prototype program at Walpole High School. She participated in and completed grade-level regular education classes, most recently at the 11th grade level, while receiving significant educational supports. (S-11)
2. Academic testing indicates that Student’s academic functioning is at or below the third grade level in reading (except for her phonetic decoding skills which are at the 1st grade level), with math skills slightly higher at the mid to late third grade level. (P-5, Peck, Mason)
3. Student tested overall in the slow learner range of intelligence, as reflected on the Stanford Binet Intelligence Scale, Fourth Edition. She is somewhat stronger in Abstract/Reasoning skills, which tested in the low average range. Her Verbal Reasoning skills are in the slow learner range. Her composite IQ score (based on all four domains) is 69. (P-2, P-3)
4. Student has severe learning disabilities, particularly in the area of language. Her speech/language evaluation indicates a severely and globally delayed language system with receptive and expressive language skills at the 7 to 10 year levels. She has a great deal of difficulty dealing with language of any complexity and length. Her language deficits, which date back to preschool, significantly interfere with absorbing, retaining, retrieving and using information. (P-2, P-3, P-6, S-11, Carra)
5. Student also has severe social/emotional limitations, which result in her taking a passive approach to life. She has an extremely low opinion of herself, especially with respect to her intellectual abilities and personal appearance. Her combination of language disorder, low self-esteem and lack of confidence effectively “silence” her social communication and stop her from socially engaging. She is left lonely, isolated and sad. (P-2, Carra, Ferro)
6. Student does not understand how to take positive action in her own behalf. In terms of problem-solving, strategizing and taking risks, she is often paralyzed by her own passivity and fear of failure when confronted with a new or difficult situation. In these situations, she has developed habits of shutting down, thus foreclosing opportunities to learn or interact with others. Her social/emotional needs, at times, significantly interfere with academic progress. (P-3, S-26, S-27, Mother, Carra, Ferro) Within a work/study program at the High School, Student at first had great difficulty interacting with her peers. But, the Teacher observed that over the years, as Student learned skills and became more comfortable in the environment, she interacted with others in positive and helpful ways. (Peck)
7. Student appears to have no friends who are peers. (Ferro, Mother) In some settings within the Walpole High School (for example in certain classes and during lunch), she is reported to have been able to participate and interact with others. While in other settings at the Walpole High School (for example, other classes) she appears withdrawn or quiet and stops trying. (P-14, Ferro) While at home with Parents, Student seems creative, helpful and involved, but when outside of the home in an unfamiliar or difficult setting, she often becomes reserved and does not participate in conversation. (Mother)
8. In work settings, Student has performed well, for example, mastering many different tasks at her job at McDonalds in the community. (Mother)
9. Student was referred to the Center for Children with Special Needs (hereafter, CCSN) at the New England Medical Center in Boston, Massachusetts for a comprehensive, multidisciplinary evaluation. This evaluation included a social/emotional evaluation (P-2), neuro-psychological evaluation (P-3), classroom observation (P-4), educational evaluation (P-5), and speech-language evaluation (P-6). The evaluators shared their findings and conclusions with one another in order to develop a comprehensive, multidisciplinary set of recommendations for Student.
10. Recommendations considered necessary to address Student’s educational and learning deficits and to maximize her educational development focused on the need for an adequate peer group and a comprehensive language-based curriculum.
11. With respect to the need for a peer group, CCSN evaluators found that Student would significantly benefit from a homogeneous group of students who have similar language needs and with whom she could interact in both academic and social settings. Placement in a peer group with others who have similar needs linguistically and socially, and that is safe from ridicule or criticism, would allow her to gain confidence and develop both academically and socially/emotionally. Receiving educational services within such a peer group would help Student to overcome anxiety, would help motivate her, and would allow her to take risks without fear of criticism. This is necessary for her to become more fully engaged in and benefit from the educational processes. (P-2, Carra, Mason)
12. The CCSN education consultant concluded that, in general, an adequate peer group for Student would consist of other students who (i) are at about the same grade level, (ii) have similar learning and instructional needs, (iii) are roughly at the same cognitive level, and (iv) are at the same academic level. More specifically, the consultant emphasized that since Student is not mentally retarded, she should not be placed with students whose overall IQs are in the 60s or lower. (Mason) The CCSN neuropsychological consultant, however, concluded that the requirements for a peer group for Student would be satisfied with students in the group having IQs (overall) in the range of 55 to 80, functioning at the 2d to 5th grade levels academically, and having language disabilities. (Carra)
13. CCSN evaluators also found that Student needs a language-based curriculum in order to develop to her educational potential. The language-based curriculum should be comprehensive, so as to include the consistent development of written and verbal communication skills across all subject areas. Materials in the curriculum should be broken down sufficiently, with assistance from visual presentations, so the subject matter can be understood. Student should be taught to use language as a cognitive organizer, and there should be on-going feedback/checking to ensure that instruction is effective, with adjustments in instruction as necessary. (Carra, Mason)
14. Speech/language therapy should be an integral component of Student’s language based educational program. This should include access to a speech/language pathologist as necessary – the CCSN speech/language pathologist recommended direct services for 3 sessions per week for 30 minutes each or 2 sessions per week for 45 minutes each, and consultation by the pathologist with other members of Student’s team at least once every other week for 30 minutes each. (P-8, Mason)
15. A rule-based reading program (such as the Wilson Reading Program) would be an important part of the language-based curriculum for Student. A Wilson Reading Program with a student-teacher ratio of 1:1 or 2:1, 4 times a week for 45 minutes each time would meet Student’s needs so long as the program is well integrated into the other areas of the curriculum. (Mason)
16. There is no disagreement that instruction for Student is most effective in small groups – for example, 8 to 12 students. (S-11, Mason, Peck, Ferro)
17. Student’s educational program should directly address her need to build her self-esteem, confidence and ability to self-advocate so that she can move away from being a passive, anxious and sometimes rigid learner. Student also should receive career vocational counseling, training and preparation for her eventual entry into the workplace. (Carra, Mason)
18. Walpole proposed for the 1999-2000 academic year a significantly different educational program for Student than had previously been provided. Walpole proposed that Student attend the TEC program, a substantially separate special education program (prototype 502.4) at the Wayland High School, rather than the 502.3 program that Student has attended at the Walpole High School. While taking the position that Student benefited from inclusion into regular education classes and adapted well to the program at Walpole High School, Walpole recognizes the importance of creating for Student a learning environment that includes an adequate peer group, as well as a comprehensive language based curriculum. (Ferro, Peck, Kelley)
19. TEC is a collaborative program that has been in existence at Wayland High School since 1974. Typically, the program serves 15 to 25 students, with 21 students enrolled to date for the 1999-2000 academic year. Students in the program are significantly below grade level, typically functioning at the 2d to 6th grade high school level. Since TEC is located within the Wayland High School, it also offers opportunities for mainstreaming within the high school environment. (Carter)
20. TEC utilizes small group, language-based instruction. Class size average is 8 students (with a range of 5 to 10 students in a class) across all subject areas. Content areas of courses are interdisciplinary in that much of the content of one class often overlaps with the content of other classes. (Hutchins)
21. The educational program that would be provided to Student at TEC would include participation in a structured social group, targeting the development of pragmatics and language, as planned and implemented by a speech and language pathologist. The goal is to increase mastery of the use of language – when and how to use language effectively. Students learn to understand their own needs and how to assert themselves appropriately, while taking increasing responsibility for applying these skills in social situations. This group would meet 2 times a week for 45 minutes each. (S-1, Hutchins)
22. The work on language pragmatics would be generalized across the entire curriculum. The instructional methodology for classes is language based, with significant amounts of graphic and visual presentations. The teaching strategy is designed to support language based learners, with increasing development of language skills. (Hutchins)
23. The reading program proposed for Student at TEC would be a Wilson Reading Program. Student would participate 4 times a week for 45 minutes each in this skill-based program. The program would be individualized for Student with a student-teacher ratio of 1:1, or 2:1. The reading program is integrated across all content areas so that it becomes a part of every class regardless of content. (Hutchins)
24. TEC’s speech and language pathologist would provide 1:1 therapy for Student as necessary. The pathologist also focuses on developing effective strategies for integrating a language based program into the classroom (where the pathologist team teaches) and work site (where the pathologist acts as a job coach). (Hutchins)
25. TEC would expect to meet the “Specific Instructional Strategies” recommended by Parents’ educational evaluator regarding a language based program. (See the six recommendations under the heading “Language-based programming should include:” in Parents’ Exhibit # 5.) (Hutchins)
26. At TEC, Student would participate in computer instruction which teaches discreet skills and technology relative to the workplace. She would also have the opportunity to benefit from a vocational education experience at TEC – for example, a computer lab within the principal’s office or the audiovisual office. Vocational training would allow Student to develop skills in a self-contained environment, with the opportunity later to exhibit those skills in mainstreamed settings within the high school. At TEC, Student would have lunch in the high school cafeteria, with the choice of sitting with her peers or regular education students. (S-1, Hutchins)
27. At TEC, there would be group counseling support for Student. This would address issues around self-esteem and identity – for example, what it means to be a female and to have special needs. This group is planned and implemented by a school guidance counselor and/or consulting psychologist. It would meet once a week for 45 minutes. (S-1, Hutchins)
28. TEC has established informal linkages with programs outside of the school (for example, an alternative leisure group) to allow its students to participate in extracurricular activities. (Hutchins)
29. The 21 students enrolled to date at TEC for the 1999-2000 academic year range in age from 15 to 19 (or possibly 20) years. On average, these students are at a 3d grade level of academic functioning although students perform at different levels in different subjects. The reading ability of the students is at the 1st to 5th grade levels with respect to approximately 15 students (with a small percentage of students below 1st and above 5th grade levels). (Hutchins)
30. The cognitive learning profile of the 21 students (looking globally at all cognitive domains) is an IQ level of 50 to 80 although no more than 1 or 2 students function consistently across all domains at those IQ levels. The average IQ level of all students would be mid to high 60s. Each of the 21 students presents with a language based issue although they do not all needs language based support or instruction. Some TEC students have social/emotional self-esteem issues, and two students are on a behavioral program for attention and appropriate behavior in the class. (Hutchins)
31. Six of the 21 students are in what is referred to as a transition stage – these are 19- and 20-year-old students who work 3 full days a week off campus, with 2 days a week of instruction either on or off campus. Student would not be in classes with these transition students. Also, 6 additional students would leave the school campus for 2 to 3 days a week (for 4 periods a day) for cluster employment opportunities. (Hutchins)
32. Of the remaining 9 students (who do not leave campus) the range of their reading levels (and in general their overall academic level) is as follows: 5 are at a second grade level, 3 are at a 3d grade level, and 1 is at a 4th grade level. Four of the 9 students are age 17, with the others 15 or 16 years old. (Hutchins)
33. Parents have rejected Walpole’s proposed TEC placement and request that Student attend LPS for the 1999 – 2000 school year. LPS is a 766-approved, private day school in West Newton, Massachusetts. The school’s primary focus is on providing educational services to students who have language impairment as their primary disability. (P-8, Carra, Mason)
34. LPS provides a comprehensive and intensive language-based curriculum. Its students generally are in the cognitive range of slow learner to average. There is significant work done on personal and social development throughout the day, there is group and individual counseling, and significant extracurricular opportunities are provided. Its classes are small, generally from 6 to 8, but no more than 10 students. LPS has a large enough student body (over 100 students) and small enough classes to facilitate homogenous grouping. (Carra, Mason)
35. Two CCSN evaluators have observed classes at the high school portion of LPS, have evaluated other students who have attended the school and are generally familiar with the school through contact with LPS staff. These CCSN evaluators specifically recommended the LPS for Student. (Carra, Mason) Mother also visited LPS, as did Student. Mother believes that LPS would provide the safe, nurturing and supportive environment necessary for Student to feel comfortable and to develop fully her academic potential. Both Mother and Student responded favorably to their visits to LPS. (Mother, Student)
FINDINGS AND CONCLUSIONS
Based on a careful review of the record, the applicable law, and the arguments of both parties, I find that Walpole’s proposed 1999-2000 IEP, including the educational services that have been offered Student at TEC, fail to address Student’s educational needs in a way which is reasonably calculated to maximize her educational development in the least restrictive environment. I further find that the educational program offered at LPS is reasonably calculated to meet Student’s educational needs and to maximize her educational development in the least restrictive environment. This case turns, not so much on the specific services offered by TEC and by LPS, but rather, on the environment in which those services are offered.
My reasoning follows:
1. The parties are substantially in agreement as to Student’s learning profile, her strengths and weaknesses, and indeed, her educational needs. She clearly has severe learning disabilities, particularly in the area of language; she tests overall in the slow learning range of intelligence, with somewhat stronger abstract/reasoning skills; her academic skills lie in the 1st to 3rd grade level; and she has severe social/emotional issues impeding her ability to take risks and to learn. (Carra, Mason, Ferro, IEP) She clearly needs a comprehensive language-based curriculum, speech/language services, and peers with similar cognitive and language profiles. Further, she clearly needs vocational educational, and finally, she needs a program which can address her self-esteem and self-advocacy skills. (Ferro, Carra, Mason) Rather, the parties disagree as to the appropriate environment in which this language based program should be provided.
2. Walpole was certainly thorough in its tailoring a program to meet her needs, and in many ways, its TEC program can address her needs. However, as good as the TEC program might be, Parents were persuasive that it cannot provide the setting appropriate for Student’s educational development.
3. TEC offers the language based curriculum appropriate for Student: it was detailed through the testimony of TEC’s Program Administrator, and further described in a June 28, 199 letter from the TEC Program Director to Parents. (Hutchins, S-1) It matches closely with the recommendations contained in Parents’ neuro-psychological and educational evaluations, as well as the oral testimony of the evaluators. (P-3, P-4, Carra, Mason) It offers the Wilson Reading Program, it would meet the detailed “Specific Instructional Strategies” recommended by Parents’ educational evaluator regarding a language-based program (see the six recommendations under the heading “Language based-programming should include:” in Parents’ Exhibit #5). (Hutchins) It offers speech and language pathologist services through direct assistance and through consultation with the service providers, consistent with Ms. Mason’s recommendations. (P-6, Mason) Finally, it offers vocational education appropriate for Student. (Hutchins) Although Parents assert that TEC focuses less on academics and more on vocational programming, they offered no evidence which would dispute the appropriateness of these many services. Yet, these findings do not, in themselves, render TEC’s program appropriate for this student, for these findings do not address Student’s social/emotional needs.
4. Student’s social/emotional needs are longstanding and severe; the record is clear in this regard. Student has for many, many years, had no friends at school or at home. She frequently tells her mother that she does not want to go to school, that she feels stupid. At times, other children have made fun of her, calling her weird, stupid, and dorky. She has never attended school games, dances, etc., for she feels looked down upon. (Parent) Such a long standing social history is troubling, however, it becomes more troubling when it so impacts the core of her educational development. The record is replete with examples and opinions supporting Parents’ assertion that Student’s social/emotional condition has impeded her ability to take risks in the learning process and to expand her language through social interaction. School progress reports frequently note her difficulty asking questions even in a one on one situation, her extreme shyness around other students, her failure to initiate contact, her feelings of inadequacy, her lack of any close relationships, and her tendency to stop trying. (S-27, P-14) Walpole’s psychologist (who has known her for many years and has counseled her weekly for grades 5 – 7) acknowledged that she shuts down, that her emotional issues interfere with her learning, that teacher reports are not surprising regarding her lack of peer relationships, that she needs a better peer group, and that this would help her self-esteem. (Ferro) Given her low academic skill levels, given the severity of her social/emotional deficits, given the clear connection between these deficits and her skill development, and given the lateness in her school career, Dr. Carra and Ms. Mason are persuasive in their opinions that it is critical that she be given every possible opportunity to develop herself socially, emotionally, and academically.
Walpole clearly does not dispute that Student has social/emotional difficulties, however, testimony pointing out Student’s progress in this area was insufficient to lessen the importance of addressing the acknowledged difficulties. It may be that Student developed a sense of confidence when working in a special education work study setting where, after lengthy experience, she was able to teach other students, to volunteer to do extra work, to contribute ideas, and to get along well with the peers. (S-26, Peck) However, such success merely underscores the need for such experiences, for when she can develop a sense of confidence, she is indeed able to make progress. It may also be that Student has had other successful experiences participating in class and getting along with her peers, (S-26) but this again does not negate the severity and longevity of her difficulties. It just indicates that she is at times more successful.
5. TEC cannot provide the setting necessary for Student to address her social/emotional issues, for several reasons. The potential for safe, nurturing interactions with peers is just too limited. Only nine of the high school students are there all day, and it is questionable whether all of them are appropriate peers, for some of the students are functioning in the mentally retarded range and may be inappropriate. (Mason) But even if the nine (and nine additional part time students and three students at work sites) are all appropriate peers, as they may be according to Dr. Carra’s approval of the hypothetically described peers, this small group cannot offer Student the sense of a school environment where she can be proud and she can feel safe. Rather, it is a small group within the context of a larger regular education school. Further, TEC does not offer the full range of school experiences – which for any regular education student, would include many extracurricular activities. Dr. Carra and Ms. Mason were persuasive that it is in these extracurricular settings that Student would develop the friendships and the peer group experience so necessary for her social/emotional development, and for her language development, all which would enhance her ability to progress academically. Given the years where she had no such experiences, it is time that this be provided. TEC is not set up for this. Although TEC may provide links to other agencies’ activities, this is not sufficient at this late stage in Student’s educational career. It is noted that TEC would have specific services to target her social emotional development, i.e., a structured social group targeting pragmatic language led by a speech/language pathologist, and a group counseling led by a school guidance counselor and/or consulting psychologist. As good as these services may be, given the nature of the concerns regarding the school environment, these services do not overcome the need for a more extensive safe school environment for this student.
6. LPS is able to provide Student with an educational program which is reasonably calculated to maximize her educational development in the least restrictive setting. It offers a language-based curriculum, it is geared towards students with cognitive and language profiles similar to Student’s, and the large student population allows for appropriate groupings. Of most importance, however, is its school environment. It offers extensive extracurricular programming, it emphasizes social/emotional development, and it emphasizes the need for a safe, nurturing environment. (Carra, Mason, Mother)
7. Walpole offered no evidence which would contradict a finding that LPS is appropriate for Student. Although it is true that Dr. Carra and Ms. Mason had no specific information as to LPS’ peer groups for Student, they were certainly clear in their understanding that the school is geared towards students similar to Student, that its large size allows for appropriate groupings, and that it has an extensive social/emotional focus – including the extensive extra-curricular program. This knowledge is all persuasive in supporting Parents’ claim that LPS is indeed appropriate for Student. (Carra, Mason) There can be little doubt that Student is in need of and would significantly benefit from precisely this kind of educational environment. It would help her to develop the self-confidence, emotional maturity and language skills that are essential to her reaching her educational potential. Parents, as well as their evaluators, clearly understand the importance of this opportunity for Student. (Carra, Mason, Mother) Further, Walpole’s concern that Student would be with fifteen-year old students is not problematic. When weighed against the many benefits, this concern pales. Finally, Walpole is unpersuasive in its assertion that LPS is overly restrictive. First, even at TEC, Student would have little interaction with the mainstreamed population at this time. Further, such a setting away from the mainstreamed population is exactly what Student needs at this time in her educational career.
Walpole shall provide special education services for Student at LPS for the 1999 – 2000 school year.
Sandra W. Sherwood
BSEA Hearing Officer
Date: September 2, 1999