Oliver and Agawam Public Schools – BSEA # 08-2564 and 08-4033
COMMONWEALTH OF MASSACHUSETTS
BUREAU OF SPECIAL EDUCATION APPEALS
In Re: Oliver and the Agawam Public Schools1
BSEA # 08-2564 / 08-4033
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 these statutes. A hearing was held on January 31 and February 1, 2008, at the offices of Catuogno Reporting Services in Springfield, Ma.
Those present for all or part of the hearing were:
Herbert Gilmore, M.D. Physician, Baystate Medical Center
Lisa Bruno 7 th Grade History Teacher, Agawam Public Schools
Robin Fernandes Educational Team Facilitator, Agawam Public Schools
Tracy Jo Pass 6 th Grade Teacher, Agawam Public Schools
Carol Patrick 6 th Grade Teacher, Agawam Public Schools
Patricia DiStefano School Psychologist, Agawam Public Schools
Margaret Harak Behavior Interventionist, Agawam Public Schools
John Provost Director of Special Services, Agawam Public Schools
Peter Smith Attorney, Agawam Public Schools
Brenda Ginisi Court Stenographer, Catuogno Court Reporting
Lindsay Byrne Hearing Officer, BSEA
The official record of the hearing consists of documents submitted by the Parents marked P1-P-24; P-27-P-44; P-49-P-57; P-54; P-57 and P-61; documents submitted by the School marked S-1-S-43 and approximately 13 hours of recorded oral testimony and argument. The Parents appeared pro se . Both Parties submitted brief written closing statements on February 4, 2008, and the record closed on that date. On February 7, 2008, the Hearing Officer issued an expedited decision on the discrete issue of whether the Student is entitled to publicly funded home tutoring. This Decision addresses all other issues raised by the Parents.
a) Whether the School’s finding that Oliver is not eligible for special education pursuant to 20 U.S.C. § 1401 et seq . and M.G.L.c. 71B is supported by a preponderance of the evidence in the record? and
b) If not, whether Oliver requires an individual aide during all core academic classes in order to receive a free, appropriate public education?
a) Whether the School’s special education eligibility evaluation process violated the procedural requirements of 20 U.S.C. § 1401 et seq . and M.G.L.c. 71B and consequently denied Oliver a free, appropriate education?
b) If so, is Oliver entitled to compensatory education?
a) Were the accepted portions of Oliver’s Section 504 Plans implemented by the School?
b) If not, is Oliver entitled to receive compensatory educational services?
Summary of Evidence
1. Oliver is a twelve year old seventh grade student who has not attended school since early January 2008, at the Parents’ behest. Oliver has at least average cognitive potential and has, until recently, demonstrated academic achievement consistent with his potential. In May 2006, Oliver was diagnosed with Tourette’s Syndrome, Migraine Headaches, and Attention Deficit Hyperactivity Disorder (“ADHD”).
(P-15, S-2; P-29, S-3; P-21, S-1; S-10; Parent; Gilmore)
2. Oliver entered the Agawam Public Schools as a 4 th grade student in the 2004 – 2005 school year. Math was identified as a weakness and Oliver received intensive math instruction in a small group twice per week during his 5 th grade year, 2005 – 2006. (Parent; Pass; P-7) Kathryn Pass was Oliver’s intensive math tutor. She testified that the individualized math instruction was part of a District Curriculum Accommodation Plan (“DCAP”), a regular education service designed to provide reinforcement of 5 th grade math concepts in preparation for the MCAS. She stated that Oliver benefitted from small group instruction, reinforcement and redirection. Nevertheless Oliver received a failing grade for math at the conclusion of 5 th grade. He scored in the needs improvement range in math on the 5 th grade MCAS. (Pass; P-4; P-6; Note: this was an improvement from the Warning score Oliver achieved on the 4 th grade MCAS, P-7) In March 2006, Agawam developed an additional District Curriculum Accommodation Plan, noting that Oliver had not achieved grade level scores in math on academic achievement testing administered in February 2006. (P-23, S-25; P-21, S-1) The “DCAP” Plan called for additional organizational assistance to Oliver and daily communication with his parents. Ms. Pass testified that both DCAPs were fully implemented and provided an observable educational benefit to Oliver. (Pass) The Parent testified that she did not remember daily communications from the school during the 2005-2006 school year. (Parent)
3. During the spring, 2006, Oliver reported having severe headaches. The parent observed motor tics. The parent therefore arranged for a neurological consultation with Dr. Herbert Gilmore. (P-14) Dr. Gilmore evaluated Oliver on May 22, 2008, and concluded that Oliver had Tourette’s Syndrome, Migraine Headaches, Attention Deficit Hyperactivity Disorder, a probable learning disability, and possible mild Obsessive Compulsive Disorder. (P-15, S-2) Dr. Gilmore testified that his diagnostic information came directly from the parent. He did not interview Oliver without the parent. He had no communication with school staff or other educators. (Gilmore)
4. On June 2, 2006, Dr. Mark Elin conducted a neuropsychological evaluation of Oliver. (P-28) Oliver scored within the high average to superior range on standardized measures of intellectual functioning. Oliver achieved scores in the average to above average range in all tests of memory, sensory-motor and psychomotor abilities, visual-spatial and visual-motor skills, linguistic functioning, and general learning and executive skills capacity.
On the Woodcock-Johnson Tests of Academic Achievement, Oliver’s scores were consistently at or considerably above his then grade level, with the exception of the subtest of math calculations which, at the grade level 4.9 fell one year below his then 5.9 grade placement. Dr. Elin noted that Oliver’s performance on the Conner’s Continuous Performance Test revealed a clinically significant marker for the inattention and impulsivity components of Attention Deficit Hyperactivity Disorder. Dr. Elin concluded that Oliver’s broad learning skills performance was consistent with his general adaptive abilities. He noted that Oliver’s headaches, tics, low frustration tolerance, and poor self-esteem may affect his ability to express his skills. Dr. Elin did not report finding any evidence of a specific learning disability or a non-verbal learning disability. He provided the following DSM – IV. Diagnosis :
Axis I ADHD
Visual Spatial Constructional Difficulties (mild)
Axis II Anxiety Features
Axis III By history, Tourette’s Syndrome
Axis IV Academic
Axis V Current GAF: 61
Dr. Elin made a series of recommendations designed to assist the development of organizational skills: chunking tasks; providing outlines and notes; instruction in time management skills; extra time for tests and reading assignments; games that develop rapid processing skills, and direct occupational therapy services.
Dr. Elin recommended that Oliver work with a guidance counselor or school psychologist to develop improved coping skills and self-esteem. Dr. Elin also recommended that Oliver have access to a quiet, low distraction environment for testing and learning. Dr. Elin did not make any recommendations for a specialized curriculum, specialized instructional techniques or specialized learning environment. (P-29, S-3)
5. On June 11, 2006, Agawam received a Parent Referral for a Special Education Evaluation of Oliver. (P-33, S-27) This was the first contact the Parent had had with the Agawam Special Education Department concerning Oliver. (Parent) The Parent stated that Oliver had a learning disability in math, had headaches caused by the tics associated with Tourette’s Syndrome, and had difficulty with timed tests. On June 19, 2006, the Parent completed evaluation consent and release of information forms authorizing academic achievement testing, educational, health and psychological assessments. (P-35, S-28) On June 21, 2006, the Parent and Robin Fernandes, the Education Team Facilitator responsible for processing the Parent’s special education evaluation request, spoke on the telephone. The parent agreed to provide the school with information about the testing instruments Dr. Elin had used in his evaluation of Oliver so that Agawam staff would not use the same ones as that would invalidate the results. (Fernandes; Parent) Ms. Ferdnandes testified that she understood that the parent agreed to postpone the school’s evaluations pending receipt of Dr. Elin’s report. (S-28; Fernandez) Ms. Fernandes did not send a waiver of assessment form to the parents. (P-39; Fernandes) Because she was aware of the parents’ urgent request for the development of an IEP before the start of the new school year, Ms. Ferdnandes scheduled the team meeting for August 16, 2006, the earliest day on which all necessary Team participants could be present despite the summer vacation. (P-36, S-14; Fernandes) Ms. Fernandes believed she could reasonably accommodate the Parents’ sense of urgency by using the information available to the Team over the summer, completing the school’s supplemental testing when the school year began, and still remain within the required time lines. (P-40; Fernandes)
5. Oliver’s 5 th grade teacher, Charlene Soverow, completed the Educational Assessment on July 22, 2006. She reported that Oliver had average ability, but poor effort, poor organizational skills, and poor attention to task. She wrote that Oliver needed frequent redirection and refocusing, frequent movement breaks, and extra instruction in math. She noted, in particular, problems with homework completion and class preparedness despite frequent assistance and communication with home. Ms. Soverow did not recommend any specially designed instruction or modifications to the content, methodology or performance criteria of the regular classroom for Oliver. (P-37, S-4)
6. On August 7, 2006, Oliver was evaluated by an Occupational Therapist at Baystate Hospital. The Therapist recommended that Oliver receive direct occupational therapy once a week for four weeks to improve his attentional skills. (P-32, S-5)
7. Ms. Fernandes chaired the Team on August 16, 2006 which, along with the Parents, included Oliver’s 5 th grade Teacher and the School Psychologist, Dr. DiStefano. The Team considered Dr. Elin’s report, Ms. Soverow’s educational assessment, the Baystate Occupational Therapy evaluation, and the Parents’ perspectives and requests. Ms. Fernandes completed the Special Education Eligibility flowsheet. The Team found that Oliver had been diagnosed with two qualifying disabilities: ADHD / health impairment and Tourette’s Syndrome / neurological disorder. The Team found that Oliver was not making effective progress in school due to the disabilities. The Team found that Oliver did not need specially designed instruction in order to make effective progress in school. Thus the Team found that he met only three of the four criteria necessary for a finding of eligibility for special education. (P-36, S-14; P-38, S-15; Fernandes)
8. Ms. Fernandes sent the Team Finding of No Special Education Needs to the Parents on August 16, 2006. Ms. Fernandes also referred the matter to the Section 504 Coordinator at the middle school to schedule a Section 504 Plan Eligibility meeting. (P-38, S-15; Fernandes)
9. At the parents’ request, The Special Education Eligibility Team reconvened on September 1, 2006, to consider additional information presented by the parents. (S-16) The parents presented the consultation note completed by Dr. Gilmore on May 22, 2006. (P-15, S-2) Dr. Gilmore’s note contained diagnostic information but did not make any educational programming recommendations. The Eligibility Team determined that additional evaluations were necessary in the areas of occupational therapy and academic achievement. The parents returned their consent to additional academic achievement testing, a psychological evaluation, including observation of the student, educational, home and health assessments, on September 13, 2006. (S-17)
10. An initial Section 504 Planning meeting was held on September 15, 2006. The Section 504 Team determined that Oliver qualified for services under Section 504 as he had disabilities that affected a major life activity and could benefit from accommodations in order to participate in the regular 6 th grade curriculum. The Team developed a 504 Plan calling for specialized organizational strategies such as: a daily agenda signed by teachers and parents, extra time for completing assignments and tests, afternoon and morning teacher check-ins, weekly teacher progress reports, and small group MCAS testing. The 504 Plan also provided for weekly guidance counseling sessions and a functional behavioral assessment. (S-26)
11. The Team meeting to consider the additional evaluative information was originally scheduled to take place on October 18, 2006. It was later postponed to October 23, 2006, to accommodate a teacher training. (S-18)
12. On September 21 and 22, 2006, the school psychologist conducted a neuropsychological evaluation of Oliver. (P-54; S-43) Dr. DiStefano testified that she did not repeat any of the testing administered by Dr. Elin. Instead she focused on areas of Oliver’s learning profile identified as relative weaknesses by Dr. Elin in order to assess the impact of the weaknesses on Oliver’s learning. She observed Oliver’s functioning in the math and social studies classes. She noted multiple attention seeking behaviors, including kicking another student’s desk, laying his head on his desk, leaving to use the restroom, frequently getting up and down at his desk, and inattention to teacher directions and instruction. She observed some motor tics: eye blinks, hair tosses, and head jerking, that did not appear to affect Oliver’s comprehension or production. Dr. DiStefano noted that Oliver did need a high degree of teacher assistance with organization, as well as direct refocusing, repetition and reinforcement.
Dr. DiStefano administered the NEPSY, a standardized tool designed to assess the neurodevelopment of children up to age 12. Overall, she testified, Oliver performed at or above expected levels in measurements of attention / executive functioning and visual-spatial processing. She identified relative weaknesses in following directions and inhibition of motor response, though his scores still fell within the average range. On the NEPSY scoring sheet Dr. DiStefano mistakenly checked the female gender box and misstated Oliver’s birth date. According to Dr. DiStefano, neither mistake changed the score calculation in any way. (P-55; S-7; DiStefano) There is no contrary evidence in this record.
Dr. DiStefano evaluated parental and teacher responses on the Conner’s Rating Scale which consistently characterized Oliver’s behavior as oppositional, inattentive, restless-impulsive and hyperactive. She also noted that Oliver’s responses on the Piers-Harris Children’s Self Concept Scale indicated that he has a poor self-concept.
Overall, Dr. DiStefano testified, though Oliver has an impulsive learning style, his disability did not require specialized instruction. The results of her evaluation indicate that Oliver had the cognitive capacity and tools to progress effectively in the regular education curriculum with some accommodations. She recommended that the teacher stay physically close to Oliver, make eye contact, keep working periods brief, use physical, gestural and oral organizational techniques, provide redirection, repetition, reminders and reinforcement of all classroom instruction and behavioral norms. Dr. DiStefano did not recommend any specially designed instructional methods, materials, content or environment. (5-7; DiStefano)
13. On September 25, 2006, the school conducted an occupational therapy evaluation of Oliver. The evaluator found that Oliver demonstrated skills at to considerably above expected levels in standardized measures of visual-motor integration, motor-free visual perceptual, visual figure ground, and visual-spatial abilities. He had functional upper body strength, range of motion and muscle tone. Handwriting was fluid, accurate and legible. The evaluator noted a tendency to rush which could affect the quality of his performance. She recommended that Oliver use physical tools to improve his organizational skills, attention to detail, math calculations, and understanding of abstract concepts. She did not recommend that Oliver receive direct occupational therapy. (S-8)
14. In eight sessions between September 26 and October 16, 2006, Carol Patrick, a Teacher of Moderate Special Needs, conducted academic achievement testing. (S-43) Ms. Patrick was also one of the teachers in the 6 th grade language based class Oliver was then attending during the 2006 – 2007 school year. On the Wechsler Individual Achievement Test (“WIAT”) Oliver achieved scores in the average to considerably above average in all subtests: word reading, reading comprehension, pseudo word decoding, numerical operations; math reasoning; spelling; written expression; listening comprehension; and oral expression. His overall academic achievement score fell within the high average range. On the Key Math diagnostic test Oliver achieved average to above average scores on all subtests with a composite total score in the high end of average. He demonstrated relatively weaker performance in tests of addition, division and measurement. Ms. Patrick noted these reduced scores were still in the average range and appeared to be the result of weak rote math facts, failure to check work and organizational issues. Consistent use of organizational strategies and practice of math facts for automaticity would address the weaker areas. Ms. Patrick concluded that Oliver was capable of comprehending the information presented in the sixth grade curriculum and that, overall, math is not a weakness for Oliver. (S-10; Patrick)
During the testing sessions Ms. Patrick noted that Oliver was cooperative and polite and gave good effort but tired noticeably toward the end of each session. She observed mild tics during the first session, but seldom after that and only when particularly tense or tired. At no time did the tics appear to interfere with his work.
By contrast, in the classroom, Ms. Patrick reported, Oliver had significant difficulty staying on task, engaged in behavior that distracted other students and detracted from his own learning, and inconsistently attended to teacher instruction and direction. Oliver needed direct teacher assistance for organization, work completion, and focus. (S-10; Patrick) Ms. Patrick did not recommend any specialized curriculum, methodology or environment for Oliver. (S-10; Patrick)
15. A health assessment was completed by Oliver’s pediatrician, Dr. Shukan, on September 22, 2006. He did not indicate any restriction on Oliver’s activities due to his disabilities or treatment. The only educational recommendation contained in the physician report was for a full psychological evaluation and possibly on-going psychotherapy. (S-9)
16. The home assessment was not performed in advance of the October 23, 2006 Team. (Fernandes; P-39, P-51)
17. Kathryn Pass, Oliver’s 5 th grade intensive math teacher and his 6 th grade classroom teacher, completed the educational assessment. She reported that while he had age appropriate communication, memory and interpersonal skills with peers, Oliver had ongoing issues with adults and authority. Oliver continued to demonstrate difficulties with attention, organization and work completion, particularly with homework, that affected his academic work. (S-6; Pass)
18. The Eligibility Team reconvened on October 23, 2006. The Team considered the additional evaluation information gathered by the school in September and October, 2006. The Team acknowledged that Oliver had a disability (ADHD, Tourette’s Syndrome) and, as a result, needed classroom accommodations. The Team found, however, that Oliver did not require specialized instruction and therefore was not eligible for special education. The Team recommended that a Functional Behavior Assessment be performed. (S-19; S-20; Ferdnandes)
19. Margaret Harak, a licensed psychologist and a special education teacher, currently functioning as the Behavior Interventionist for Agawam, met with Oliver’s mother on December 7, 2006, to discuss conducting a behavioral assessment. (S-43) Dr. Harak testified that Oliver’s mother was supportive of the planned assessment. Dr. Harak initially focused on Oliver’s attention seeking behaviors in the classroom as they disrupted other student’s learning as well as his own: inappropriate peer touching and inappropriate sexual remarks and disrespectful behavior toward teachers. She developed a behavior plan for Oliver which had an immediate positive effect. (Harak, Pass, Patrick; S-38, S-11) After implementing the plan for several weeks the parent requested that it be dropped as there were difficulties with the reward component which was to be delivered at home. (Harak)
20. The mother testified that she had never met Dr. Harak, and had never discussed a Behavioral Intervention Plan with any school personnel. She did notice that Oliver’s attitude improved over the course of the 6 th grade. (Mother)
21. The Team convened on March 30, 2007, to “check-in”. (Fernandes) The teachers had ongoing concerns about project and homework completion. Dr. Harak developed an assignment completion program for use with the entire class, although the target was Oliver. It was effective for several weeks, after which Oliver could not sustain motivation for homework. (S-30, S-6, S-21, S-13; Harak; Pass)
22. Kathryn Pass was Oliver’s 6 th grade Teacher during the 2006 – 2007 school year. She testified that she taught a language based class particularly designed for students with communication issues. Organizational accommodations such as graphic organizers, reinforcement, highlighting, etc, were embedded in the structure of the class and informed all presentation and production activities. The class of 25 students stayed together for all subjects except art/gym. Besides Ms. Pass, Ms. Patrick, the special education teacher, and a paraprofessional, provided instruction in small groups of one to nine students. Ms. Pass testified that Oliver was a very academically capable student who frequently assisted less able students, particularly in science and social studies. His social skills were a significant strength in the classroom. He was compassionate, caring, and popular with peers. According to Ms. Pass, however, Oliver lacked motivation to complete assignments, was frequently restless and oppositional in a large group, and lacked focus and attention to academic instruction in the group. She observed that Oliver responded immediately and positively to the structured Behavior Intervention Plans, but that his commitment to the reward system declined over time, particularly when it was to address completion of homework. Ms. Pass reported that Oliver worked considerably better in small groups: he had better focus, better behavior and better academic progress. He needed direct assistance from the teacher in order to learn well. She affirmed that Oliver responded to positive behavioral support and could control his off task behavior for preferred subjects in all environments.
Ms. Pass testified that she implemented the Section 504 Plan for Oliver throughout the 2006-2007 school year. (S-26) The daily agenda worked well as a homework assignment and parent communication device for a while. After the agenda was lost, Ms. Pass sent daily emails to maintain communication about homework. Ms. Pass incorporated the other Section 504 Plan accommodations into the daily classroom routine for Oliver: frequent breaks, frequent praise; testing and assignment modifications; pre and post school day teacher check-ins; availability of after-school assistance. Oliver also participated in small group guidance counseling once per week. (S-26; Pass)
At the end of the 6 th grade school year Ms. Pass met with the mother, the guidance counselor and the assistant principal, Ms. Federico, to discuss carryover of the 504 accommodations into the Junior High for Oliver’s 7 th grade year. Ms. Pass recommended that Oliver be placed in a class that would continue the 504 Plan as developed and provide a great deal of organizational support in all settings. She did not recommend any specialized curriculum, instruction or learning setting for Oliver. (Pass; see also Patrick; S-31, P-3)
23. The mother testified that none of the accommodations set out in the 2006-2007 Section 504 Plan were implemented. (Parent)
24. On August 9, 2007, Dr. Gilmore wrote a “To Whom It May Concern confirming Oliver’s diagnoses of ADHD, Tourette’s Syndrome, and mild OCD. Dr. Gilmore recommended: “that he have an evaluation for an Individualized Educational Plan (IEP) and that arrangements be made for an aid to help him focus during his work because of his significant ADHD as part of his Tourette’s syndrome.” (P-16) Dr. Gilmore testified that the parent had reported to him that Oliver’s tics and migraines had increased during the summer school vacation. Dr. Gilmore had no communication directly with the school. He was unaware whether any accommodations to regular education programming were in place or contemplated for Oliver. (Gilmore) There is no indication in the record that Dr. Gilmore’s August 9 th , 2007, letter was sent to or received by the Agawam Public Schools.
25. For the 2007 – 2008 school year Oliver was placed in a 7 th grade inclusion class co-taught by an academic content teacher and a special education teacher. Lisa Bruno, the history teacher, testified that significant organizational systems and strategies were embedded in the history curriculum, including the use of an agenda, graphic organizers, computer programs, grading rubrics, and after school help. She reported that she wrote homework assignments into Oliver’s agenda, but never saw any return communication from the parents. (Bruno)
Ms. Bruno testified that Oliver had very capable academic skills but obvious attentional difficulty. He needed continual refocusing, redirection, reinforcement and reminders to stay on task. According to Ms. Bruno, the lack of assignment completion, particularly homework, as well as poor attendance, are the most significant barriers to academic progress for Oliver. (See also testimony of Pass, Patrick, Provost, Fernandes) Ms. Bruno described Oliver as happy, easy going and social with good peer relations. Although he demonstrated behavioral issues in class, such as disrespect and distracting behavior, the behavior did not rise to the level of a social-emotional disability. Ms. Bruno did observe a few minimal, non-interfering tics in the classroom, but no compulsive behaviors. Ms. Bruno testified that Oliver did not need any specialized instruction or environment. (Bruno)
Ms. Bruno testified that the Section 504 Plan that had been developed for the 2006 – 2007 school year was being implemented by the 7 th grade teachers. (S-26; Bruno) There is no credible evidence to the contrary in the record.
26. Reports and Progress Notes completed by Oliver’s 7 th grade teachers on October 2, 2007, are consistent with Ms. Bruno’s observations. (S-33, P-8) They describe poor homework completion, lack of motivation and effort in class assignments, failure to follow teacher direction, and minimal class participation. Oliver’s attendance became problematic by mid-October 2007, adding to the difficulty in completing expected assignments. (P-9, S-36; P-12; P-18; P-20; S-23) He received grades of incomplete for the 1 st marking quarter due to missing work. (Bruno; Provost; P-1, P-2, S-31) Ms. Bruno testified that she modified some assignments, excused some homework, extended some due dates, and offered additional time for after school meetings to Oliver in an effort to address the consequences of the extended absences. Oliver did not take advantage of the additional supports. (Bruno)
27. The Section 504 Team met on October 29, 2007, to discuss Oliver’s school functioning. The Team continued the communication, testing and production accommodations that had been implemented under the previous Section 504 Plan. The new Section 504 Plan also proposed weekly guidance counseling and reporting. Most significantly the 504 Plan proposed placing Oliver in a specialized class within the Junior High called the “DLC”. (S-26)
28. The DLC is a semi-self-contained small group class designed for students who need additional structural and behavioral support to maintain focus on academics and pro-social behavior. There are eight students in the program. A counselor and a paraprofessional remain with the student group at all times. The academic content teachers rotate in to provide a parallel grade level curriculum. The activities are more hands-on with greater direct teacher instruction than in the regular or inclusion classes. There is direct instruction in social skills and direct behavioral intervention and counseling as necessary. Accommodations such as workload / work completion arrangement are individualized. The students enter the DLC with either an IEP, a Section 504 Plan or a DCAP. (Bruno; Provost)
29. On October 30, 2007, The Parents requested a hearing at the BSEA challenging Agawam’s initial finding of ineligibility for special education. (Administrative Record)
30. On November 20, 2007, The Parents and school staff met in a joint Section 504 / Resolution meeting. The school proposed: placing Oliver in a combination of language based and inclusion classes; an updated Functional Behavioral Assessment; modified work completion demands including excusing work outstanding from the 1 st term; modified grading including basing final marks on 3 terms instead of 4; a third set of books; a laptop computer; weekly progress reports from teachers to be mailed to parents; teacher/staff training concerning Tourette’s Syndrome; and an internal investigation of the special education eligibility determination process for Oliver. (S-22; Provost) The father rejected the proposed resolution on December 16, 2007. (S-35) The mother testified that the components of the proposed resolution were acceptable to her. (Mother)
31. Oliver was withdrawn from school at the beginning of January 2008. As of February 1, 2008, neither the school nor the parents were providing any educational services to Oliver. (Mother; Provost)
32. John Provost, Director of Special Education for Agawam, testified that due to the number of school days missed during the 2007 – 2008 school year, Oliver could not complete the 7 th grade curriculum under any conditions by the end of the school year. Therefore, unless a modified plan is followed, Oliver will need to repeat 7 th grade in 2008 – 2009. To avert that, and accommodate Oliver’s identified learning needs, Mr. Provost suggested alterations to the outstanding Section 504 Plan for Oliver. In particular he recommended:
a) immediate placement in the DLC to meet all teacher observations that Oliver benefits from a small group learning environment, direct teacher assistance, and behavioral support systems;
b) providing summer school and a tutor during the summer to complete the 7 th grade curriculum by August 2008;
c) adding an intensive math class / math tutor to the daily schedule; and
d) homework adjustments.
Mr. Provost rejected the parents’ request for an IEP stating that the evaluations consistently find that Oliver has at least average cognitive functioning and academic achievement consistent with that potential. Mr. Provost further pointed out that all Oliver’s teachers have indicated that Oliver can and does progress effectively in the mainstream grade level curriculum with regular education accommodations to address his attentional and organizational issues. (Provost)
33. Oliver’s mother testified that in addition to the ADHD and Tourette’s Syndrome, Oliver has a learning disability in math and a nonverbal learning disability. These disabilities require special education services. She stated that she disagrees with the evaluations and teacher reports that place his academic skills, communication skills and social adjustment at age and grade appropriate levels. She also disagreed with the observations of teachers and evaluators that the motor tics associated with Tourette’s Syndrome do not interfere with Oliver’s learning or progress in the school setting. She claimed that Oliver had not received appropriate organizational and homework assistance throughout the 2005 – 2006, 2006 – 2007, and thus far in the 2007 – 2008 school year. She also claimed that teachers had not maintained home – school communication as required by Oliver’s Section 504 Plan, and that they had discriminated against and harassed Oliver due to his disability. (Parent)
Oliver’s mother described him as a young man who enjoys being with people and has a great sense of humor. He likes to go to skateboarding parks and motocross trails with groups of friends. According to her, Oliver’s behavior does not warrant placement in a small, separate classroom at the middle school. He needs only to be placed on an IEP which provides for a dedicated individual aide in all core academic classes to provide him with individualized instruction and organizational assistance, and to be relieved of homework, tests, and graded handwriting assignments. Oliver’s parents have not observed the DLC classroom. (Mother)
Findings and Conclusions
There is no dispute that Oliver has been diagnosed with Tourette’s Syndrome and ADHD, disabilities which satisfy the initial element required to qualify for services under both 20 U.S.C. § 1400 and 29 U.S.C. § 794. Nor is there any dispute that Oliver qualifies for the full protection of 29 U.S.C. § 794, popularly known as “Section 504”, which bars discrimination on the basis of disability in publicly funded educational settings, among others. The issues presented by the parents in this matter concern the procedural and substantive qualifications for receipt of special education services under the IDEA 2004 and M.G.L.c. 71B. The Parents also claim that the School failed to ensure that Oliver received the benefits of the Section 504 Plan developed for him, constituting illegal discrimination on the basis of his disability.
After careful consideration of all the evidence submitted in the hearing, as well as the arguments of both parties, it is my determination that the School’s findings of ineligibility are supported by more than a preponderance of the credible evidence in the record. I also find that the School’s procedural errors during the eligibility evaluation process were de minimus , not outcome determinative, and do not entitle Oliver to the extraordinary remedy of compensatory education. Finally, I find that the preponderance of the credible evidence supports the conclusion that Oliver’s Section 504 Plans were appropriately implemented by the school. My reasoning follows:
I. In order to receive special education services under the IDEA and M.G.L.c. 71B, a team consisting of professional educators, evaluators, parents and others familiar with the student must consider information from a variety of sources and, based on that information, determine both that a student has a disability and that because of that disability the student requires specially designed instruction or curriculum in order to make educational progress. 20 U.S.C. § 1401 (3) and (29). 34 C.F.R. 300. 306.
Although in Massachusetts, Teams use a flow sheet that breaks the analytical process for determining eligibility for special education into four steps, the required findings under Massachusetts law are essentially the same as those under federal law.2 (S-14)
Here, there is no dispute that Oliver has a covered disability. The question is whether, in the summer and fall of 2006 when the Agawam eligibility team met, Oliver was progressing effectively in regular education without specially designed instruction.3
When the initial Eligibility Team met on August 16, 2006, to discuss Oliver, it had three documents: Dr. Elin’s Neuropsychology Evaluation, an occupational therapy evaluation, and the Educational Assessment from Oliver’s immediate past classroom teacher. Dr. Elin reported that Oliver had average to above overall cognitive functioning and average to above academic functioning. He did not find any evidence of a specific learning disability or a non-verbal learning disability. Dr. Elin did not make any recommendations for specialized curriculum, instruction or environment. (See ¶4) The occupational therapist did not identify any disability requiring special education and did not make any recommendation for specialized curriculum, instruction or environment. (See ¶5) Oliver’s 5 th grade teacher, Ms. Severow, noted learning and behavioral characteristics associated with ADHD and Tourette’s Syndrome, but concluded he had the ability to progress in the regular curriculum in the mainstream. (See ¶6) Thus there was no evaluation data and no professional recommendations available to The Team that could support a finding that Oliver needed special education in order to make educational progress consistent with his educational potential. The August 16, 2006 Team’s determination that Oliver was not eligible for special education because he did not need specially designed instruction to make effective progress in regular education was consistent with the federal and state eligibility regulations and supported by all of the documents before the Team.4
When the eligibility team reconvened on September 1, 2006, it considered one additional document: a neurology consultation note. While this note established a qualifying diagnosis, it did not answer the outstanding question: whether Oliver could make effective educational progress without specially designed instruction. Therefore The Team had no basis on which it could change its prior finding of ineligibility. (See ¶9)
The Team reconvened on October 23, 2006, to consider additional evaluations conducted by the School along with current teacher reports and observations. (¶ 12, 13, 14, 15, 17, 18) The testing results obtained by Dr. DiStefano and Ms. Patrick were consistent with those reported by Dr. Elin. Oliver’s academic skills, as well as his executive functioning, memory, and visual-spatial processing skills, were at or above the range expected given his cognitive potential, age and grade. While all observers noted motor restlessness, occasional inattention and fatigue, none recommended specially designed instruction to address these weaker areas. Classroom teachers recommended additional supports such as small group, teacher directed instruction, testing modifications, and organizational assistance, to permit Oliver to benefit from the regular curriculum and environment. They noted that these accommodations, provided under a Section 504 Plan during the 2006 – 2007 school year, had permitted Oliver to participate in and benefit from instruction in the regular education curriculum and classroom. Teachers uniformly reported that Oliver had the intellectual capability and academic skills to complete assigned work, and that failure to complete homework was the single biggest factor impeding his educational progress. They did not, however, recommend that Oliver receive special education to address his homework difficulties. They recommended organizational and behavioral assistance in the context of the regular education curriculum. There is no support in any of the evaluations or teacher reports available to the October 23, 2006 Team, for a finding that Oliver needed specially designed instruction to progress effectively in the mainstream. There is no contrary evidence in the record. Therefore I find that The Team correctly concluded that Oliver was not eligible for special education services in October 2006.
II. Turning to the procedural requirements governing the Special Education Eligibility process for Oliver, I find that, contrary to the parents assertions, no significant improprieties occurred. The evidence in the record establishes two technical violations of procedure. Neither affected the outcome of the eligibility determination process or the provision of educational services to Oliver.
a) First, the Parents complain that Agawam did not complete the evaluation process within the timeframe established by federal and state law, and that this failure denied Oliver a free, appropriate public education.
The facts established at the hearing show that the Parents requested an initial special education evaluation on June 1, 2006. Agawam received the parents consent to evaluate on June 19, 2006, one of the last days of the school year. Ms. Fernandes and the mother spoke about the outstanding private evaluation of Oliver. They agreed that Agawam should not duplicate Dr. Elin’s testing, and that the Team would consider any information it received before school started in September.5 The only assessment the School could secure during the summer vacation was the teacher’s assessment. The School evaluations were conducted in September and October, 2006. The final eligibility team met on October 23, 2006.
Massachusetts special education regulations in force in June 2006, required that evaluations be completed within 30 school days of receipt of the parent’s consent to evaluate. 603 CMR 28.04 (2). The Massachusetts Department of Education’s Office of Special Education instructed schools to complete the eligibility determination process within 45 days of the parent’s consent. (P-39) No 2006 school calendar was introduced at the hearing, but a reasonable count of potential school days would place the final day for evaluating Oliver consistent with the regulatory timeline between October 13 and October 18, 2006. The deadline, then, for determining his eligibility under Massachusetts law would fall between November 2 and November 7, 2006. Here the last evaluation session was completed on October 16, 2006. (P-10) The Team finding of ineligibility was made on October 23, 2006. I find therefore that Agawam did not violate the timelines established by Massachusetts law for completing the initial evaluation and eligibility determination process. Even had Agawam exceeded the timelines by a week or two, this technical violation would have had no substantive effect on the eligibility determination. Indeed, I specifically find that any potential violation of procedural timelines in this matter is attributable to Agawam’s good faith effort to include all testing arranged or requested by the parent and, at the urging of the parent, to convene a team prior to the beginning of the 2006 – 2007 school year, and to maintain professional standards of testing validity and reliability. In addition, as Oliver was at no time during the process actually eligible to receive special education services, the fact that he did not, did not deprive him of any education benefit to which he was entitled.
When the parents initially requested a special education evaluation in June 2006, there was no federal regulation specifically governing the time frame for completion of the evaluation. Thus Agawam correctly used the relevant Massachusetts regulation in arranging the evaluation schedule for Oliver. On August 3, 2006, newly promulgated federal regulations implementing IDEA 2004 became effective. According to 34 CFR 300.301 (6)(1) an initial evaluation “must be conducted within 60 days of receiving parental consent for the evaluation; or
(ii) if the state establishes a timeframe within which the evaluations must be conducted, within that time frame.
The federal regulation thus defers to the Massachusetts regulation establishing a reasonable timeline for completing an initial evaluation. As there was no conflict between federal and Massachusetts law there was no need for the District to alter the evaluation schedule due to the intervening federal regulations, and no procedural violation of federal special education law.
b) The parents also point out that, although they consented to a home assessment on September 11, 2006, as one component of the initial evaluation, none was conducted in advance of the Team on October 23, 2006. (P-50, S-17; see also testimony of Parent, Fernandes, Provost) The parents assert that the lack of a home assessment resulted in a denial of a free, appropriate education for Oliver. The school contends that the optional home assessment focuses on a student’s familial and developmental history, and would not have added any significant relevant information to the Team’s decision-making process. See : 603 CMR 28.04 (2) (6) 3. See also : P-51. Regardless of the usefulness of the information, the failure to conduct an assessment for which the parent has given consent is a technical violation of special education procedures. Agawam attempted to remedy the violation and fill in any information missing from the Team deliberations, by sending the parents an additional home assessment consent form and questionnaire on January 4, 2007. The parents did not return the forms. They did, however, participate fully in 3 team meetings over the course of 3 months during which they had the opportunity to share any medical, developmental or social history they believed was pertinent. (Parent; Provost) Considering the hearing record as a whole, I find that the information that would have been generated had the home assessment been completed in a timely manner would not have changed the outcome of the October 23, 2006 Team meeting. As there was no support in the educational evaluations for a finding of eligibility for special education, nothing in the proposed home assessment could have led to a different conclusion. Therefore the procedural violation is de minimus , and there was no denial of a free, appropriate public education as a result. Oliver is not entitled to the extraordinary remedy of compensatory education as a result of the School’s failure to complete a timely home assessment.
III. Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, bars discrimination against individuals with disabilities. In the context of public schools, Section 504 requires a school to provide reasonable accommodations to a student with a qualifying disability that will permit the student access to all the regular programs and services available to students without disabilities. Schools develop Section 504 Plans that acknowledge a student’s disability, and set out the accommodations, modifications or services that will allow the student to participate in the regular curriculum and environment. A Section 504 Plan is not the same as an Individualized Education Plan under the IDEA. The purpose, scope, procedural protections and substantive standards are different.
Agawam has developed two Section 504 Plans for Oliver. The Parents claim that the Plan developed for the 2006 – 2007 school year, Oliver’s 6 th grade, was not implemented. (S-26; Parent) The credible evidence in the record indicates otherwise. The testimony of Ms. Pass and Ms. Patrick, Oliver’s 6 th grade teachers, persuades me that the curricular, testing, production and presentation accommodations listed in the 504 Plan were indeed delivered to Oliver. The testimony of Ms. Pass also demonstrates that the communication and organizational components of Oliver’s Section 504 Plan were implemented, or offered, to Oliver and his Parents throughout the 6 th grade year. (Pass; Patrick) Dr. Harak completed the recommended functional behavioral assessment, and developed effective behavioral plans as the Section 504 Plan anticipated. (Harak, Pass, Patrick). I found Ms. Pass, Ms. Patrick, and Dr. Harak to be knowledgeable and forthright witnesses, whose testimony was supported by the documentary record, and the testimony of Ms. Fernandes. I therefore credit their testimony in full. I also rely on the testimony of Ms. Bruno, one of Oliver’s 7 th grade teachers, which persuades me that the communication, organizational, production and presentation accommodations in the 2006 – 2007 Section 504 Plan continued to be implemented during Oliver’s 7 th grade. I do not credit the testimony of the parent as there was little intrinsic or extrinsic support for her conclusions.
The second Section 504 Plan was developed at a meeting held on October 29, 2007, during Oliver’s 7 th grade year. The Parents accepted the testing, organizational and production accommodations, which were substantially similar to those provided in the 2006 – 2007 Section 504 Plan. (Parent; S-26) The Parents rejected delivery of those services in the DLC class, as proposed in the Section 504 Plan. (Parent; Provost) The documentary evidence, along with the testimony of Ms. Bruno, establishes that the curriculum accommodations continued to be available to Oliver during the 7 th grade, but that he was unable to use or benefit from them. (Bruno; S-33; S-37; S-41) Therefore, I find that the Section 504 Plan was appropriately implemented under the circumstances of Oliver’s 7 th grade year to the extent of parental consent. As both Section 504 Plans were implemented by Agawam there is no basis for an award of compensatory education.
IV. As of the date of this decision Oliver is without any publicly funded educational services. The parties are at a stalemate. Mr. Provost thoughtfully outlined a plan for reintegrating Oliver into the Agawam Junior High School and completing the 7 th grade curriculum before the start of the 2008 – 2009 school year. (See ¶32) The proposed plan conforms to teachers’ recommendations, which were uniform and consistent over time, for delivery of grade level academic content to Oliver, with presentation and production accommodations for his ADHD, along with additional targeted intervention in his weaker academic area: math, in a behaviorally supportive, small group learning setting. (Provost) I find that such a plan comports with all the academic, behavioral and psychological recommendations in the hearing record. The additional offers of intensive tutoring and summer school, which would allow Oliver to avoid retention, are thoughtfully targeted to increase Oliver’s chances for a grade appropriate mainstream placement during the 2008 – 2009 school year. This also is consistent with good Section 504 planning. I am persuaded by the testimony of Ms. Pass and Ms. Patrick that Oliver learns best in a small group, teacher directed, setting with organizational, behavioral and attentional accommodations. I am also persuaded by the testimony of Ms. Bruno that the DLC will provide the small group instruction, opportunities for reinforcement, repetition and redirection, grade level content expectations, along with the behavioral and organizational supports which, at this time, offer Oliver the best chance for successfully completing the 7 th grade. I therefore find that adherence to the Section 504 Plan developed on October 29, 2007, with the additions and modifications suggested by Dr. Provost during his testimony on February 1, 2008, offers Oliver the reasonable access to the programs and services available to students without disabilities that he is entitled to under 29 U.S.C. § 794.
Finally, while it is clear that Oliver has the academic skills and the cognitive capacity to complete grade level assignments both in and out of school, it is apparent that the most pressing, and most chronic, factor interfering with his educational performance is homework. Uniformly teachers reported that Oliver would be making effective educational progress were he only to complete homework assignments he is cognitively and academically capable of doing. The parents argue that homework completion is associated with Tourette’s Syndrome and should be waived. The School, on the other hand, views Oliver’s aversion to homework as an attitude or control issue, not related to a disability. There is no independent support for either position. There is no diagnosis in this record of an emotional disability which could provide a disability related basis for homework refusal. Nor is there any persuasive evidence that for Oliver, homework refusal is a manifestation of Tourette’s Syndrome. The chronicity of the issue points to factors other than the 7 th grade curriculum, teachers, or setting that may precipitate and sustain homework refusal. The acuity of the issue points to the need for further evaluation. I am persuaded by the preponderance of the evidence in the record that a comprehensive, independent evaluation of Oliver’s current neuropsychological, emotional, academic, behavioral and medical functioning is critical for appropriate educational planning. Therefore, Agawam shall arrange for and fund a comprehensive, independent evaluation of Oliver, and shall reconvene an Eligibility Determination Team to consider the results when available.
Conclusions and Order
1. The School’s Findings that Oliver was not eligible for special education pursuant to 20 U.S.C. § 1401 et . seq . and M.G.L.c. 71B are supported by more than a preponderance of the credible evidence in the record. Therefore Oliver was not entitled to the development of an IEP calling for an individual aide in his core academic classes nor for any other special education service.
2. The School’s special education eligibility determination process did not violate the procedural requirements of 20 U.S.C. § 1401 et seq . and M.G.L.c. 71B, so as to entitle Oliver to an award of compensatory education.
3. The accepted portions of the 2006 – 2007 and 2007 – 2008 Section 504 Plans developed for Oliver were implemented by the School. There was no procedural or substantive violation of the provisions of 29 U.S.C. § 794. Thus Oliver is not entitled to compensatory educational services.
4. The 2007 – 2008 Section 504 Plan calling for Oliver’s placement in the DLC class, along with curricular, organizational and behavioral supports as recommended by Dr. Provost, is appropriate to meet Oliver’s current educational needs and to provide reasonable access to the regular education curriculum, environment and materials.
5. Agawam shall within 30 days of the date of this decision arrange for a comprehensive, independent evaluation of Oliver to be conducted at a facility outside the immediate geographic area. Agawam shall hold an Eligibility Determination Team meeting within 10 days of receipt of the results of the Independent Evaluation. Notwithstanding the above, Agawam is not precluded from convening a Team meeting in advance of said independent evaluation should other circumstances or information warrant it.
6. The Hearing Officer will retain jurisdiction of this matter for six months or the conclusion of the independent evaluation process, whichever is later, to ensure compliance with this Decision
Oliver is a pseudonym used for confidentiality and classification purposes in publicly available documents.
The Massachusetts definition of a student who is eligible to receive special education is found at 603 CMR 28.02(9) which reads, in pertinent part:
[A student] who has been determined by a Team to have a disability(ies), and as a consequence is unable to progress effectively in the general education program without specially designed instruction or is unable to access the general curriculum without a related service.
“Progress effectively in the general education program shall mean to make documented growth in the acquisition of knowledge and skills, including social / emotional development, within the general education program, with or without accommodations, according to chronological age and developmental expectations, the individual educational potential of the student, and the learning standards set forth in the Massachusetts Curriculum Frameworks and the curriculum of the district…” 603 CMR 28.02 (17).
Though not discussed by then Team members, I note that Oliver’s score on the math portion of the MCAS improved from a warning score in the 4 th grade to a needs improvement score in the 5 th grade. (P-16) This is another factor which would support the Team’s determination that Oliver was making appropriate effective progress.
Although the mother did not specifically recall this conversation with Ms. Fernandes, I resolve all credibility and memory issues in favor of the school witnesses. Having had the opportunity to observe the demeanor of the witnesses and to test their memories under oath, as well as to compare their testimony with the written record, I find the school witnesses, in particular Ms. Pass, Ms. Patrick, Ms. Bruno, Ms. Fernandes, Dr. DiStefano, Dr. Harak, Dr. Provost, to be thoughtful, candid, sympathetic to the student, and credible.