Wendell v. Stoneham Public Schools – BSEA # 08-1853
COMMONWEALTH OF MASSACHUSETTS
BUREAU OF SPECIAL EDUCATION APPEALS
In Re: Wendell1 and the Stoneham Public Schools
This Decision is issued pursuant to M.G.L.c. 71B and 30A, 20 U.S.C. 1401 et . seq. , 29 U.S.C. 794 and the regulations promulgated under those statutes. A hearing was held in the above-entitled matter on January 27, 2009 at 75 Pleasant Street, Malden, Massachusetts. Those present for all, or parts, of the proceeding were:
Ms. “Wendell” Student’s mother
Mr. and Mrs. “Wendell” Student’s grandparents
Mr. “Wendell” Student’s uncle
Mr. L. Family Friend
Maria deLourdes Serpa Parent advocate
Sarah Fennelly Reading Teacher, Stoneham Middle School
Kathleen Spike School Psychologist, Stoneham Middle School
Susan McClory Science Teacher, Stoneham Middle School
Maureen Angelo Special Education Teacher, Stoneham Middle School
Frank Scott Pupil Personal Administrator, Stoneham Middle School
Thomas Nuttal l, Esq. Attorney for Stoneham Public Schools
The official record of the hearing consists of documents submitted by the Parent marked P-1 through P-202 and approximately 6 hours of recorded testimony and argument. The Parent was at all times pro se . The School was represented by an attorney. Both parties submitted written closing arguments on February 9, 2009, and the record closed on that date.
The Parent originally filed a hearing request on September 18, 2007, seeking to add specific special education services, to increase the frequency of accepted services, and to implement some assistive technology in the inclusion special education program she had accepted for the 2007-2008 school year (S-143, S-19). The Parent and the School communicated throughout the school year and the Parent did not proceed to hearing.
In April 2008, a new Individualized Education Plan was developed to cover the remaining months of the 2007-2008 school year, and the Student’s transition to the Middle School for the 2008-2009 school year (S-6). The Parent requested measureable goals, but otherwise accepted the inclusion placement and special education services offered in the 2008-2009 IEP. She indicated she intended to proceed to hearing on claims for compensatory education arising from the rejected 2007-2008 IEP. During a conference call immediately prior to the scheduled hearing the Parent changed positions and requested a publicly funded placement at the Landmark School. The Parent thereafter submitted an Amended Hearing Request listing issues relevant solely to the 2008-2009 school year. The School’s Motion to Dismiss the original hearing request was not opposed by the Parent and was Granted on December 3, 2008. The issues for resolution at the hearing are:
1. Whether the IEP developed by the Stoneham Public Schools for implementation during the 2008-2009 academic year is reasonably calculated to provide a free, appropriate public education to the Student?
2. If not, does the Student require placement at the Landmark School in order to receive a free, appropriate public education?
Summary of Evidence
1. Wendell is a twelve year old student who attends the sixth grade at the Stoneham Middle School. He is a bright, engaging, positive young man with particular strengths in social skills, oral language, math, science, general knowledge and leadership. He is motivated to learn, participates enthusiastically in school, and is a model for his classmates (Parent, Angelo, McClory, S-6). Wendell has been identified as a student with specific learning disabilities in the areas of written expression and reading. He has also been diagnosed with Attention Deficit Hyperactivity Disorder, Combined Type (S-22). Wendell has received special education support services since at least the third grade (P-7).
2. In February 2007, when Wendell was a 10 year old 4 th grade student, he had a comprehensive neuropsychological evaluation at Massachusetts General Hospital. The examiners found that Wendell’s intellectual abilities were solidly in the average range, with no significant differences between his verbal and nonverbal skills. The examiners noted that tests of academic achievement showed Wendell to be functioning grossly within the average range, though Wendell’s reading skills were below grade level expectations. The evaluation revealed both cognitive strengths, in concept formation, flexibility, verbal learning and memory, along with cognitive weaknesses in organizing and integrating complex visual and motor information. The examiners concluded:
[Wendell] is currently placed in a regular classroom setting. Based on his academic achievement testing, it appears that [Wendell] is making adequate progress and is benefiting from the specialized services that he is receiving or has received in the past. Thus, continued placement in this setting is recommended…”
They recommended the use of classroom modifications and strategies in that setting, if not already in place:
1. multi sensory instruction centered on conceptual learning;
2. breakdown complex tasks into smaller units;
3. opportunities for repetition and clarification and frequent check-ins;
4. reinforcement and reassurance from teacher;
5. limitation of timed activities;
6. keyboarding in lieu of handwriting;
7. scribe on tests with lengthy written component;
In addition they recommended that the special education services outlined in the then current IEP be continued and that the following specific direct services be added:
1. a behavior modification program designed to sustain Wendell’s attention in the classroom setting;
2. a structured, sequential phonological decoding skills program twice weekly for 45 minutes;
3. a systematic approach to written language twice weekly for 45 minutes;
4. occupational therapy to improve handwriting skills (S-22).
3. Prior to receiving the Massachusetts General Hospital (MGH) evaluation report, The Team reconvened to develop Wendell’s IEP for the 2007-2008 school year. The proposed IEP continued his then current service delivery of full inclusion programming, with daily 30 minute pull-out services focused on reading and writing (S-19). On June 19, 2007, the TEAM reconvened to consider the MGH evaluation report. At that time, the TEAM amended the IEP to provide extended year services, and recommended further testing related to assistive technology and phonemic skills. This IEP was accepted in part and rejected in part by the Parent on June 25, 2007 (S-18).
4. During the 2007-2008 school year Wendell was placed in an inclusion 5 th grade setting with daily one half hour of academic support outside the classroom.
5. Stoneham conducted a reading evaluation in October 2007. Although the examiner suggested instructional modifications and strategies, she did not recommend any direct reading skills intervention for Wendell (S-13).
6. Stoneham conducted an assistive technology evaluation in October 2007. The examiner concluded: “No assistive technology services are recommended at this time as [Wendell’s] skills are in the average to high average range for his age and grade level.” (S-12)
7. The Team reconvened on December 21, 2007 to consider the results of Stoneham’s evaluations. Stoneham proposed adding an additional one half hour of academic support targeted to reading and writing, and adding an extended school year component for the summer 2008 when Wendell would be transitioning from elementary to middle school. The parent rejected the proposed Amendment in full (S-11).
8. On March 8, 2008, Wendell saw Gretchen Timmel, an educational psychologist at Massachusetts General Hospital. Ms. Timmel interviewed Wendell and reviewed some of his schoolwork and prior evaluations. She did not conduct a formal evaluation. Ms. Timmel reported that she supported the previous MGH recommendations for a twice weekly multisensory reading program, a systematic written language program, and computerized reinforcement of reading skills (S-9; See also S-7).
9. The Team reconvened on April 9, 2008 to consider Ms. Timmel’s recommendations, to develop a new IEP to cover the remaining months of Wendell’s program at the elementary school, and to adjust his services to the setting and schedule of the Stoneham Middle School. Stoneham thereafter drafted an IEP proposing to increase special education services. For the remainder of Wendell’s 5 th grade year Stoneham offered to begin an individual Wilson Reading Program twice a week. For the start of Middle School in September 2009, Stoneham proposed: 1 period per day each of special education instruction and assistance in an inclusion setting for English language arts, written language, and content support. The IEP also provided for a continuation of the individual Wilson Reading Program for three 56 minute periods per six day cycle, along with special education assistance in the resource room for the other 3 periods over the remaining three days of the six day cycle. On May 12, 2008, the Parent indicated that she rejected the reading and writing goals set out on the IEP, and requested specialized computer software. All other accommodations and services were accepted (S-6).
10. Sara Fennelly is the special education reading and English teacher at Stoneham Middle School. She testified that she began implementing the Wilson Reading Program with Wendell in April 2008, as soon as the Parent consented to the service. She noted that she worked with Wendell twice a week at the Colonial Park Elementary School to ease his transitional anxiety since he would then know her and the program when he arrived at the Middle School. Ms. Fennelly testified that Wendell is a quick and motivated learner who has made good progress using the systematic sound recognition / decoding reading program. She explained that WADE is a tool which identifies target areas for improvement according to the Wilson Reading protocols. Ms. Fennelly used the WADE consistently to track Wendell’s progress. In April 2008, when Ms. Fennelly began working with him, Wendell’s total sound recognition score was 68%. When assessed again in November 2008, Wendell’s sound recognition was 76%. Ms. Fennelly then implemented Dr. Serpa’s recommendation to modify delivery of the Wilson Reading Program. She changed from the standard sequential presentation to an alternate model which increased the intensity of intervention and targeted only identified weaknesses. Between mid November 2008 and the first week of January 2009, Wendell’s sound recognition score improved to 79%. Ms. Fennelly testified that although fluency is still a weakness he is able to read with comprehension on grade level (Fennelly; S-23; P-15; S-24; P-2; See also testimony of Parent).
11. Maureen Angelo is the 6 th grade special education teacher at the Stoneham Middle School. She assists Wendell in a co-taught English Language Arts class, and three times per week in an academic resource room. Until November 2008, she also provided special education support to Wendell in a co-taught social studies class. In November at the recommendation of Dr. Serpa and his teachers, Wendell changed to a regular social studies class. This move greatly reduced his school anxiety.
Ms. Angelo testified that Wendell uses the Collins approach, a structured, sequential, systematic written language program as recommended by the evaluators at MGH (S-22). Ms. Angelo offered an additional specialized spelling program but Wendell declined to participate (S-25). In the Language Arts class Wendell follows the grade level curriculum in grammar, composition and literature. Ms. Angelo implements the necessary accommodations to help Wendell focus. These include segmenting instruction and directions; repetition; previewing; extended time for assignments; modified tests, assignments, spelling; small group testing; some oral reading of tests. Ms. Angelo stated she has not observed any significant frustration in the language arts class or the resource room. She concluded that Wendell is making good progress in language arts for a student with a written expression disability (Angelo, P-2).
12. Susan McClory teaches Wendell in a regular education science class. She testified that he is totally at home and appropriately placed in her class. He is likeable, has strong auditory skills, strong leadership skills, and boundless current event knowledge. Although his IEP accommodations are available: preferential seating, modified tests/assignments, word backs, reduced number of choices, etc., Wendell rarely makes use of them. Ms. McClory stated that Wendell reads aloud in class willingly and “flawlessly.” He functions in the top 25% of the class of 27 students, most of whom do not have IEPs (McClory).
13. Maria DeLourdes Serpa, EdD, teaches assessment methods at Lesley College. At the parent’s request in the fall of 2008 Dr. Serpa met Wendell and reviewed the assessments in his school record. She did not formally evaluate Wendell, nor did she formally analyze the body of assessments. Dr. Serpa did not observe Wendell’s program at the Stoneham Middle School, nor did she visit the Landmark School. Dr. Serpa did attend a Team meeting held on November 7, 2008, to discuss Wendell’s transition to the Middle School. She agreed that the Wilson Reading Program is the “right” method to address the student’s reading disability. Dr. Serpa recommended delivering the individual program daily, instead of three days per week, to increase the intensity and hasten progress (Serpa).
14. At the November 2008 Team, the Parent described Wendell’s significant anxiety around his social studies class. The Team agreed that that particular class was not a good fit for Wendell and recommended changing teachers (Parent; Student; Angelo).
15. As a result of the Team meeting on November 7, 2008, Stoneham proposed an Amendment to Wendell’s 2008-2009 IEP. Consistent with Dr. Serpa’s recommendation, Stoneham proposed increasing the delivery of individual Wilson Reading Program instruction to the Student from three periods per 6 day cycle to daily. Stoneham also removed Wendell from the co-taught social studies class and placed him in a regular education social studies class. The Parent accepted the Amendment on November 17, 2008 (S-26; S-27; S-28; S-29).
16. The Parent testified that, although she accepted the special education services offered by the Stoneham Public Schools, she believes they are not adequate or appropriate to address the severity of her son’s special education needs. She testified that standardized testing indicates a continued decline in Wendell’s academic performance relative to his age and grade peers. She stated that Stoneham has failed to properly identify her son’s disability, and that his needs cannot be met under any circumstances in the Stoneham Public School. The parent continued to seek public funding for a special education placement at the Landmark school (parent).
Findings and Conclusions
There is no dispute that Wendell is a student with a disability as defined by 20 U.S.C. 1401 et seq and M.G.L.c. 71B and is thus entitled to received a free, appropriate public education. The sole issue here is whether Stoneham has met its statutory obligation to provide a free, appropriate pubic education to Wendell during the 2008-2009 school year. After careful consideration of all the evidence presented at the hearing, and the arguments of both parties, it is my determination that is has. My reasoning follows:
Wendell is a bright, sociable boy with a specific learning disability in decoding and written expression. Aside from receiving a half hour daily of special education support and assistance Wendell had been fully included in regular education throughout his elementary school years. The record shows that he progressed from year to year. There are no evaluations, assessments or reports that recommend a different setting or a different level of services for Wendell. After a comprehensive evaluation conducted by neuropsychologists at MGH in February 2007, recommended delivery of a structured sequential reading program, Stoneham offered to implement a Wilson Reading tutorial for Wendell (¶3, 5, 7). The Parent consented to the delivery of this service in April 2008. The preponderance of the evidence in this record shows that Wendell has made rapid, meaningful progress in the acquisition of targeted reading skills using the Wilson Reading Program (¶10).
In March 2008, after an informal assessment of the Student, and prior to the introduction of the Wilson Reading Program, Ms. Timmel of MGH recommended the use of both structured reading and systematic writing programs for Wendell. Both recommendations were adopted by the Team in April 2008, set out in the proposed 2008-2009 IEP, and are currently being delivered to Wendell (¶8, 9, 10, 11). There are no other educational recommendations in the documentary record. Wendell is otherwise fully included in the regular 6 th grade educational program at Stoneham Middle School, is earning unmodified passing grades, participates at grade level expectations in regular education instruction and activities, and is making appropriate educational progress in regular education and toward the goals set out in his IEP (Fennelly, Angelo, McClory). None of Wendell’s teachers recommended any additional special or regular education service or change of setting. However, when the Parent’s advocate, Dr. Serpa, suggested at a Team meeting in November 2008 that Wendell might make more rapid progress in acquiring age/grade level reading skills with a daily rather than every other day tutorial, Stoneham immediately offered to double the tutorial time (¶13, 14). I find therefore, based on the clear, uncontroverted evidence introduced at this hearing, that Stoneham Public Schools has taken into consideration all the available evaluations and experiential recommendations concerning Wendell’s special education needs, has crafted an IEP that is responsive to those recommendations and allows Wendell to progress commensurate with his considerable educational potential, and is implementing the recommended services in the least restrictive educational setting possible consistent with its statutory duty.
The only recommendation to support the Parent’s request for a publicly funded placement at the Landmark school was that of Dr. Serpa. I accord her opinion minimal weight because she did not assess Wendell, was not aware of the special education programs or services Wendell had received or was currently receiving, did not observe Stoneham’s program or talk to his teachers, and did not visit Landmark. Therefore the Parent did not carry her burden of proving by a preponderance of credible evidence that the 2008-2009 Individualized Education Plan developed by the Stoneham Public Schools is not carefully tailored to meet Wendell’s special education needs. I do not therefore reach the issue of the appropriateness of the Parent’s proposed placement at the Landmark school.
The 2008-2009 Individualized Education Plan developed by Stoneham Public Schools in April 2008, and the Amendment developed in November 2008, are reasonably calculated to provide a free, appropriate public education to Wendell. Stoneham has fulfilled its obligation to Wendell under both federal and state special education statutes.
Date: March 10, 2009
COMMONWEALTH OF MASSACHUSETTS
BUREAU OF SPECIAL EDUCATION APPEALS
EFFECT OF BUREAU DECISION AND RIGHTS OF APPEAL
Effect of the Decision
20 U.S.C. s. 1415(i)(1)(B) requires that a decision of the Bureau of Special Education Appeals be final and subject to no further agency review. Accordingly, the Bureau cannot permit motions to reconsider or to re-open a Bureau decision once it is issued. Bureau decisions are final decisions subject only to judicial review.
Except as set forth below, the final decision of the Bureau must be implemented immediately. Pursuant to M.G.L. c. 30A, s. 14(3), appeal of the decision does not operate as a stay. Rather, a party seeking to stay the decision of the Bureau must obtain such stay from the court having jurisdiction over the party’s appeal.
Under the provisions of 20 U.S.C. s. 1415(j), “unless the State or local education agency and the parents otherwise agree, the child shall remain in the then-current educational placement,” during the pendency of any judicial appeal of the Bureau decision, unless the child is seeking initial admission to a public school, in which case “with the consent of the parents, the child shall be placed in the public school program”. Therefore, where the Bureau has ordered the public school to place the child in a new placement, and the parents or guardian agree with that order, the public school shall immediately implement the placement ordered by the Bureau. School Committee of Burlington, v. Massachusetts Department of Education , 471 U.S. 359 (1985). Otherwise, a party seeking to change the child’s placement during the pendency of judicial proceedings must seek a preliminary injunction ordering such a change in placement from the court having jurisdiction over the appeal. Honig v. Doe , 484 U.S. 305 (1988); Doe v. Brookline , 722 F.2d 910 (1st Cir. 1983).
A party contending that a Bureau of Special Education Appeals decision is not being implemented may file a motion with the Bureau of Special Education Appeals contending that the decision is not being implemented and setting out the areas of non-compliance. The Hearing Officer may convene a hearing at which the scope of the inquiry shall be limited to the facts on the issue of compliance, facts of such a nature as to excuse performance, and facts bearing on a remedy. Upon a finding of non-compliance, the Hearing Officer may fashion appropriate relief, including referral of the matter to the Legal Office of the Department of Education or other office for appropriate enforcement action. 603 CMR 28.08(6)(b).
Rights of Appeal
Any party aggrieved by a decision of the Bureau of Special Education Appeals may file a complaint in the state superior court of competent jurisdiction or in the District Court of the United States for Massachusetts, for review of the Bureau decision. 20 U.S.C. s. 1415(i)(2).
An appeal of a Bureau decision to state superior court or to federal district court must be filed within ninety (90) days from the date of the decision. 20 U.S.C. s. 1415(i)(2)(B).
In order to preserve the confidentiality of the student involved in these proceedings, when an appeal is taken to superior court or to federal district court, the parties are strongly urged to file the complaint without identifying the true name of the parents or the child, and to move that all exhibits, including the transcript of the hearing before the Bureau of Special Education Appeals, be impounded by the court. See Webster Grove School District v. Pulitzer Publishing Company , 898 F.2d 1371 (8th Cir. 1990). If the appealing party does not seek to impound the documents, the Bureau of Special Education Appeals, through the Attorney General’s Office, may move to impound the documents.
Record of the Hearing
The Bureau of Special Education Appeals will provide an electronic verbatim record of the hearing to any party, free of charge, upon receipt of a written request. Pursuant to federal law, upon receipt of a written request from any party, the Bureau of Special Education Appeals will arrange for and provide a certified written transcription of the entire proceedings by a certified court reporter, free of charge.
“Wendell” is a pseudonym selected by the Hearing Officer to protect the privacy of the Student in documents available to the public.
Parent’s exhibits 7, 14 and 15 were initially admitted “de bene.” At the conclusion of the hearing the Hearing Officer determined that there was sufficient authenticity and probative value in each document to justify inclusion in the evidentiary record, with minimal prejudice to the School.