Sharon Public Schools and Paul – BSEA # 08-4524
COMMONWEALTH OF MASSACHUSETTS
BUREAU OF SPECIAL EDUCATION APPEALS
In Re: Sharon Public Schools and Paul1
BSEA # 08-4524
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 March 20, 2008, at 11 Dartmouth Street, Malden, MA. The school was represented by an attorney. The parents had given the BSEA and the school prior notification of their intent not to participate in the Hearing and, in fact, they did not appear on the hearing date. The parents were not otherwise represented at the hearing. Those present for all or part of the proceeding were:
Judy Levin-Charns Assistant Superintendant for Student Services –
Sharon Public Schools
Arlene Grubert Special Education Administrator, K-6 – Sharon
John Marcus Principal, Cottage St. School – Sharon
Sharyn Wedge Speech-Language Pathologist – Sharon
Kathryn Rocha Occupational Therapist – Sharon
Florence Smith Grade 5 Teacher – Sharon
Olga Ryder Special Education Teacher – Sharon
Roger Bourassa Instructional Assistant – Sharon
Barry Mintzer Attorney for Sharon
Jill Kourafas Court Reporter
Lindsay Byrne Hearing Officer
The official record of the Hearing consists of documents submitted by the Parents, marked P-1 and P-2; documents submitted by the School marked S-1 through S-61; and approximately 6 hours of recorded testimony and argument. The School submitted a written closing argument on April 17, 2008. The record was held open to permit the parents an opportunity to receive a written transcript of the hearing and to submit a closing argument. The parents submitted a written closing argument on May 8, 2008. The record closed on May 12, 2008.
Pertinent Procedural History
There is a long history of conflict between these parties. The School identified Paul as a Student with disabilities before his Kindergarten year. The School has offered special education and related services since that time. The Parents have accepted these services at times, and at other times have rejected the proffered services insisting that Paul does not have any special learning needs or disabilities of any type.
This appeal was requested by the School on February 15, 2008, and assigned an initial hearing date of March 20, 2008. The School seeks administrative approval of the IEP it developed for the time period February 1, 2008 to February 1, 2009. In their response the Parents requested that the Student be immediately removed from all special education services pending the hearing decision. During conference calls on March 7 and 11, 2008, and in a subsequent letter to the Hearing Officer, the Parent continued to reject special education services for his son. As the parents were proceeding without an advocate or attorney the Hearing Officer construed the Parents’ request as a Motion to Revoke Consent for Special Education and for Placement in Regular Education. The School submitted a written opposition to termination of special education services and for “Stay Put” on March 13, 2008. The BSEA issued a Ruling on March 19, 2008, granting the Parents’ Motion and finding that Parents are entitled to revoke consent to special education services for a minor at any time in the absence of judicial limitations on parental rights. The School requested reconsideration of that Ruling on March 31, 2008. The Parents did not submit a response to the School’s Motion. The BSEA denied the School’s Motion on April 28, 2008.
1. Whether the 2008–2009 Individualized Education Plan developed the School on January 29, 2008, is reasonably calculated to provide a free, appropriate public education to Paul.
Summary of the Evidence
1. Paul is currently an 11 year old, 5 th grade student. Both school-based and outside evaluators have consistently identified areas of substantial impairment in communication, cognitive, physical, and behavioral skills. The parents have at times accepted special education and related services to address some of these skill deficits, and at times have insisted that Paul is not a student with a disability and have rejected all components of a special education program.
In March 2001, before entering Kindergarten, Paul was diagnosed with severely impaired receptive and expressive language skills and poor oral-motor abilities. The School developed an IEP for Paul providing for speech-language therapy. Initially the IEP was accepted by the Parent. By the start of Kindergarten in the fall, 2001, the Parent had revoked consent to provision of related services. No special education services were delivered during the 2001–2002 school year. Paul demonstrated significant academic and behavioral difficulties throughout the year. During first grade at the Cottage St. School, Paul’s physical, academic, communication and behavioral difficulties continued to increase. School-based evaluations were completed, curricular modifications implemented and related services begun in the fall of 2002. Paul’s academic and behavioral challenges continued. The Parents removed Paul to a private school in December 2002. After Paul attended the private school two weeks, the parents were informed that it could not meet Paul’s learning needs. Paul re-enrolled in Sharon Public Schools. Pursuant to an accepted IEP Paul was placed in the Intensive Primary Program for the remainder of the 2002–2003 school year. Teachers noted that Paul engaged in aggressive behaviors on a daily basis in all settings and with all different members of his instructional team. These behaviors interfered with his ability to make educational progress commensurate with his learning potential. (S-53, S-55)
2. In January 2003, Paul was evaluated by Dr. Alan Gordon. On the WISC III, a standardized measure of intellectual functioning, Paul achieved a full scale score of 76 placing him in the borderline range of cognitive potential. His reading achievement scores on the WRAT placed him the average range of first grade students. Dr. Gordon concluded that Paul could appropriately be diagnosed with Attention Deficit Hyperactivity Disorder. (P-57)
3. In August 2003, Dr. Alan Silken, a pediatric neurologist and psychiatrist diagnosed Paul with Pervasive Developmental Disorder. (S-56)
4. Sharon Public Schools conducted a psychological assessment of Paul in March 2004. On the WISC – IV, a standardized measure of intellectual functioning, Paul earned a composite score of 59, which placed him in the extremely low range of cognitive potential. (S-55)
5. In May 2004, the end of Paul’s 2 nd grade year, the parents requested that Paul be withdrawn from special education services and placed full time in a regular education classroom during the 2004-2005 school year. At the time Paul had an accepted IEP calling for intensive academic, behavioral and social/emotional support in both separate and mainstream settings, along with individual sessions of speech/language, occupational and physical therapy. Sharon and the Parents met many times during the remainder of the 2003–2004 school year and throughout the summer to attempt to develop a workable plan for Paul for the 2004–2005 school year. No agreement was reached by the start of the school year.
6. Paul did not successfully completed the 2 nd grade curriculum during the 2003-2004 school year. Therefore, consistent with the parents’ request and rejection of special education, he was retained and placed in the regular education second grade for the 2004–2005 school year. In lieu of specialized services the parents agreed that were Paul’s behavior to become disruptive he would be sent home. Paul’s aggressive behaviors in the classroom escalated. Among the problematic behaviors cited by the school were shouting, pulling on his fingers to the point of self-injury, hitting other children, grabbing the clothes and bodies of staff members, punching the principal, as well as ripping out the principal’s hair and breaking his glasses. As a result of these behaviors and in accordance with the agreement between the school and the parents, Paul was sent home nearly everyday. The School determined that Paul could not progress or function effectively in regular education and by the end of September 2004, requested assistance from the Bureau of Special Education Appeals. (S-58)
7. Since October 2004 Paul has been assigned to The Developmental Learning Program (the “DLP”). The DLP is a substantially separate elementary age classroom which is designed to meet the academic and behavioral needs of a small group of diverse learners, including those with limited cognitive ability, a slower rate of learning and receptive/expressive language disabilities. Instruction parallels the Massachusetts Curriculum Frameworks, and is taught to each student at that student’s cognitive level. Olga Ryder, the DLP teacher, explained that the goal of the DLP program is to address each student’s skill development needs and to provide the necessary support for that student’s meaningful participation in the mainstream. For example, Ms. Ryder provides individualized activities and instructional material for Paul to use during the mainstream “Before School Work Period” as well as to supplement the direct instruction from the one-to-one aide assigned to Paul while he is in the regular classroom. (Ryder; S-7)
8. During the fall of 2004 and winter 2005, Paul engaged in a variety of disruptive behaviors in both mainstream and special education settings. Problematic behaviors included: shouting, physical aggression toward other students, teachers and administrative staff, disrobing, public urination, inappropriate self-stimulatory activities, and property destruction. These behaviors were most pronounced while Paul was in the mainstream 2 nd grade with an aide. They decreased, though were not eliminated, when Paul returned to the nearly full time placement in the DLP. They were further reduced, though not extinguished, upon implementation of a Behavioral Intervention Plan in March 2005. (S-53; S-61; Ryder; Grubert)
9. A Functional Behavioral Assessment was conducted in March 2005. The resulting Behavioral Intervention Plan called for implementation of a redirectional plan beginning with distraction and redirection and culminating with removal to a “quiet room.” Paul responded positively to the Behavior Plan. (S-53; S-6D; S-61; Grubert)
10. In April 2005, The Team agreed that academics were a relative strength for Paul, but that his disruptive behavior prevented him from accessing appropriate instruction in any setting for most of the school day. Sharon developed an IEP calling for Paul to be placed full time in the DLP, with a consistent Behavioral Intervention Plan, and speech, occupational and physical therapies. The IEP also provided that Paul could be placed in a mainstream class with an aide for 30 minutes per day. Behavioral data would be collected to determine whether an increase or decrease in the time to be spent in the mainstream was warranted. Summer education services were also offered. The proposed 2005–2006 IEP was accepted by the parents. (S-61)
11. In April 2006, The Team reconvened. Team Members reported that Paul could successfully attend the first 20 minutes of welcome activities in the regular third grade with an aide. After that he spent most of his school day in DLP or the quiet room. The Team reported that Paul had made some progress in the acquisition of communication, academic, social, and behavioral skills:
[Paul] has all his work scribed for him by an assistant as his handwriting is illegible. The computer is used on occasion, but due to fine motor issues, keyboarding is laborious for [Paul] and he quickly tires of the activity. The largest obstacle to [Paul’s] ability to access the general education curriculum is behavior. Behavioral outbursts have decreased over the past year. His comfort level is best when he is in the DLP classroom, performing tasks that are of a high interest level to him and that do not challenge him. There continues to be non-compliance around following his schedule and in general around staff requests. Compliance is better when [Paul] is in a good mood and displaying a positive attitude. [Paul’s] tendency toward aggressive behavior to staff and peers has decreased dramatically. [Paul] performs best in a small self-contained classroom where behavioral issues can be addressed while increasing academic demands and challenges. (S-17).
(See also : S-35, S-36, S-37, S-38, S-39, S-40, S-41, S-42.)
Sharon proposed a substantially similar, DLP-based, IEP for Paul for the 2006-2007 school year. That IEP was accepted by the parents. (S-17).
12. During the 2006-2007 school year Paul was better able to control his disruptive behaviors and increase the amount of time he spent in the regular 4 th grade class. A psychological evaluation conducted in December 2006, using the WISC-IV, placed his verbal reasoning abilities in the borderline range and his non-verbal reasoning abilities in the extremely low range. (S-18) Evaluations and progress notes from the Speech-Language Pathologist, Physical Therapist and Occupational Therapist consistently reported that Paul was making steady progress but still functioning at a significantly impaired level, equivalent to a 3-4 year old. (S-19; S-20; S-21; S-25; S-26; S-27; S-28; S-29; S-30; S-31; S-32; S-33; S-34; Wedge; Rocha) Ms. Ryder, his DLP Teacher, reported that Paul was working on academic concepts at the beginning 1 st grade level such as counting with 1:1 correspondence, identifying coins and values and identifying basic vocabulary with prompting and support. (Ryder; S-22; S-23; S-16) She testified that Paul’s dangerous behaviors, such as slamming doors and noncompliance with staff directions, continued to interfere with instruction and progress. The Team found that Paul learned best in a small, self-contained classroom where his behavioral needs could be addressed in a consistent, comprehensive manner while also increasing the academic demands in a structured, systematic way. They determined that Paul continued to require constant adult support and supervision in all settings throughout the school day to encourage safe, appropriate behavior and increase his access to the general curriculum. (S-16) To address the parents’ request for greater inclusion in the regular education setting, Sharon proposed an IEP for the period 2/1/07 to 2/1/08 that increased Paul’s instructional time in the mainstream from 30 minutes daily to 90 minutes daily. (S-16) The parents accepted the proposed IEP.
13. During the 2007-2008 school year Paul attended the regular 5 th grade for up to ninety minutes a day. He had an individual instructional aide with him at all times in the mainstream. When not with the regular 5 th grade class Paul received direct instruction individually in another setting, or in a small group in the “DLC” classroom, or had been placed in the “quiet room” for behavioral reasons.
Florence Smith, the 5 th grade classroom Teacher, testified that she had known Paul since his 1 st grade year when she was his computer teacher. She explained that while Paul had a wonderful sense of humor and some nice peer interaction skills, his behavior has always been unpredictable and has interfered with his learning and that of other students. During the fifth grade, for example, Ms. Smith observed shouting, tipping desks over and throwing objects around the class without any known trigger. Ms. Smith testified that Paul does not typically respond to reminders or redirections. Instead these strategies ordinarily increase his oppositionality. Ms. Smith acknowledged that Paul’s problematic behaviors have significantly decreased in frequency and intensity since the consistent implementation a Behavior Intervention Plan (“BIP”) beginning in January 2008. (S-2; S-3) Nevertheless, according to Ms. Smith, Paul does not have the academic skills or cognitive capacity to work and learn at a fifth grade level without special education. He cannot independently access or participate in the regular 5 th grade curriculum and environment. (Smith; S-47, 48, 49)
14. Roger Bourassa has been Paul’s one-to-one instructional assistant since November 2007. Mr. Bourassa is responsible for modifying the instructional presentation and production demands to parallel the regular fifth grade class, for providing supplemental or alternate direct instruction in skill deficit areas such as reading, and for consistent implementation of the Behavioral Intervention Plan. Mr. Bourassa testified that Paul cannot access or meaningfully participate in the regular fifth grade class. He explained that while Paul can decode text at near grade level he has little comprehension of the material, which he absorbs at the 1 st or 2 nd grade level. In math Paul is working on rote counting, 1-1 correspondence and number sets with manipulatives. He cannot do simple addition without assistance and cannot participate in the 5 th grade math program which involves fractions and decimals. Mr. Bourassa has observed that Paul can understand grade appropriate social communication, but not grade-appropriate academic communication. (Bourassa)
Mr. Bourassa testified that Paul’s behavior has improved significantly since January, 2008, when the staff began consistent implementation of his Behavior Intervention Plan. The Plan provides predictability and routine and has resulted in increased compliance with directions, longer periods of productive work, and small, but noticeable, gains in academic skills. (Bourassa)
15. Olga Ryder, who has been Paul’s special education teacher in the DLP since 2003, testified that Paul cannot access the regular 5 th grade curriculum without special education. Paul’s combination of cognitive, motor, and behavioral impairments requires continuous support in all settings to participate in school in an age and environment appropriate manner, and to learn. Ms. Ryder noted that when special education support had been removed at other times at the parents’ request, Paul’s problematic and disruptive behaviors increased. He became dangerous to himself and to others and remains so on occasion even with supports. On the other hand, consistent implementation of a behavior plan in 2005 and 2008 improved Paul’s behavior over time and allowed him to make slow academic progress. (Ryder)
16. Behavioral notes kept from November 2007 to March 2008 document Paul’s maladaptive behaviors in school, ranging from passive noncompliance with teacher directions and hand-wringing, to belligerence and oppositionality including shouting in class, calling teachers demeaning or vulgar names and tearing and scattering paper, to dangerously disruptive behavior including throwing objects at other students and threatening, hitting, and shoving other children and staff. (S-50; S-51; S-52; S-59; see also testimony of Marcus, Grubert) Although most of Paul’s disruptive behaviors have been addressed through removal to a supervised quiet room as contemplated in his Behavior Intervention Plan, he has been suspended twice since January 2008 for particularly dangerous behavior. (S-50; S-59; Marcus)
17. Kathryn Rocha is the Occupational Therapist who has worked with Paul since 2006. She testified that while Paul has made small improvements over time, his extremely weak hand muscles and hand-eye coordination make it unlikely that he will have legible handwriting beyond a functional signature or one word answers. She stated that Paul could not make educational progress without occupational therapy. She recommends that Paul participate in one thirty minute occupational therapy session in the class, and one individual 30 minute session outside the classroom. (Rocha, S-10)
18. Sharyn Wedge, a Speech-Language Pathologist, has worked with Paul for three of the last four years. She testified that he has made some progress in articulation, expressive language and social communication, but that he continues to need direct speech-language therapy services. She noted that he works better in one-to-one settings outside the classroom. Ms. Wedge also reported that, in the past, when Paul did not receive speech-language services, his frustration level rose and his disruptive behaviors increased. (Wedge; S-7)
19. On January 29, 2008, the Team met to discuss Paul’s progress and develop a new IEP covering the period January 2008, to January 2009. Some progress was noted in skills addressed in speech-language, occupational and physical therapy, though continued direct service in these areas was recommended. Paul met his goals for participation in the mainstream class for time, but not for behavior. Overall, school staff reported that the type and the frequency of disruptive behaviors had not improved and remained the most important impediment to learning for Paul. (S-1; S-7–S-15; Smith; Ryder; Bourassa)
The Team developed an IEP which increased the amount of time Paul would spend in the mainstream 5 th grade class from ninety minutes to three hours. The proposed IEP also included an additional 60 minutes per day in the mainstream for lunch and special classes (art, music, physical education, etc.) Paul would be accompanied by a dedicated 1:1 assistant at all times in the mainstream. Paul would also receive direct special education academic instruction for 90 minutes per day in the DLP. The IEP incorporated the Behavioral Intervention Plan developed in January 2008. The IEP included direct related services in the areas of speech and language, occupational therapy, physical therapy, and adaptive physical education as recommended by his therapists.
20. The Parent objected to the IEP planning process. He insisted that Paul had no disabilities and could succeed in regular education without any special education supports or related school based assistance. He asked that Paul be treated as a regular education student and fully included in the fifth grade class. (Ryder, Grubert, S-1) The Parent formally rejected the proposed 2008-2009 IEP on February 7, 2008, and again requested that all special education services be terminated. (S-5; S-6)
21. The School requested a due process hearing on February 15, 2008, seeking a ruling that the IEP developed by the Team on January 29, 2008, would provide the free, appropriate public education to which Paul is entitled. The parents requested a ruling that they were entitled to revoke consent at anytime to the provision of special education services to Paul, and could insist that Paul be enrolled in an entirely regular education program. The BSEA issued a Ruling on March 19, 2008 finding that parental consent is a necessary precondition for delivery of special education services to a minor student. The BSEA also found that the parents had revoked their consent to the continuation of special education programming for Paul and, therefore, that Paul should be attending the 5 th grade as a regular education student. (Administrative Record)
Conclusions and Order
After careful consideration of all the documents submitted in this matter, of the witness testimony, of the able arguments of counsel for the school, and the written argument of the parents, it is my determination that:
1. Paul is a student with a disability entitling him to receive a free, appropriate public education pursuant to 20 U.S.C. § 1401 et. seq. and M.G.L.c. 71B;
2. The 2008-2009 IEP developed by Sharon Public Schools is reasonably calculated to provide a free, appropriate public education to Paul; and
3. Enrollment in a regular education program, without special education supports and services, will constitute a denial of Paul’s right to a free, appropriate public education.
My reasoning follows:
The moving party in a Bureau of Special Education Appeals hearing typically bears the burden of proving its position by a preponderance of the evidence. Schaeffer v. Weast , 546 U.S. 49 (2005). In addition, in administrative hearings in Massachusetts, consistent with the perspective of IDEA regulations, the burden of proof is typically placed on the party seeking the more “restrictive” outcome. In this matter that means that in order to prevail, Sharon Public Schools must have produced persuasive evidence that Paul is eligible to receive special education services and, that the IEP Sharon offered as a result, provides individually tailored services and supports that will allow Paul to make effective educational progress consistent with his potential in the least restrictive setting. It did.
The educational history provided by the School includes medical, developmental, psychological, and educational evaluations which have consistently reported over the course of the last five years that Paul has a constellation of cognitive, perceptual, communication, motor and behavioral impairments. (S-56; S-57; S-55; S-54; S-53; S-22; S-18; S-19; S-20; S-21) These impairments result in general developmental delay and cause Paul to operate in all functional capacities well below typical expectations for his chronological age. As a result, Teams of evaluators, educators and related service providers meeting at least annually since Paul’s Kindergarten year in Sharon, have determined that Paul is eligible for special education services. See: 603 CMR 28.02 (9); 603 CMR 28.05(2). There is no contrary evidence in this record.
Further, there is no evidence in this record indicating that Paul can make effective educational progress in regular education without specially tailored instruction. Indeed the record shows the opposite. During those times the parents have withdrawn or refused special education services, Paul was unable to independently access any meaningful education due to his disruptive behaviors, cognitive limitations, and physical difficulties. On the other hand, the record shows that Paul is able to make some education progress, and participate in the mainstream environment, when he follows a program combining consistent, effective behavioral interventions, one to one academic/behavioral assistance, and direct individual specialized instruction and related therapies. (S-53; S-2; Bourassa; Ryder; Smith)
Those determinations, including the one made in January 2008, are more than amply supported by the evidentiary record. There is no independent support for the parents’ position that Paul is not disabled and does not require special education.
The 2008-2009 IEP developed by Sharon reflects the recommendations and observations of the educational personnel who have worked closely with Paul this year and, in some cases, for the past five years. (S-1) The IEP continues Paul’s placement in both the regular fifth grade and the DLC, as recommended by both the regular and special education teachers. It doubles the amount of time Paul will spend in the regular education environment, an increase which reflects both the parents’ request for greater mainstream contact and an acknowledgement that consistent implementation of a behavior plan as provided in the IEP, along with one to one supervision, permits Paul to better manage his behavioral challenges. The IEP provides direct services in speech/language, occupational and physical therapies as recommended by his current therapists. (See S-7–S-15; S-19–S-21; Rocha; Wedge) All witnesses at the hearing testified credibly and movingly that Paul currently benefits, and could continue to benefit, from the special education and related services offered through the 2008-2009 IEP. They further testified that without targeted, specialized instruction, therapy and behavioral interventions, Paul cannot meaningfully participate in, or derive a benefit from, his educational placement. There is no contrary evidence in the record. There is no evidence that the 2008-2009 IEP developed for Paul by Sharon is overly restrictive, has an inadequate or inappropriate type, level, frequency or setting of instructional or therapeutic intervention, does not conform to the recommendations of evaluators and educators, or has any fatal procedural defect.
I find therefore, based on the clear and convincing evidence presented at the hearing, that the 2008-2009 IEP developed by Sharon is reasonably calculated to provide the free, appropriate public education to which Paul is entitled, in the least restrictive setting in which he can effectively make academic, social-emotional, and behavioral progress. Furthermore, I credit the testimony of Ms. Ryder, Ms. Smith, Mr. Bourassa, and Ms. Grubert, all of whom I found candid, thoughtful and sympathetic, that Paul cannot make effective educational progress without the special education supports and services offered in the 2008-2009 IEP. As there is no evidence in the record to support a different conclusion, I find that rejection of special education services and enrollment in an entirely regular education program as the parents wish will abrogate Paul’s individual rights as a student with a disability to a free, appropriate public education under 20 U.S.C. § 1400 et seq . and M.G.L.c. 71B.
The 2008-2009 IEP developed by Sharon is reasonably calculated to provide a free, appropriate public education to Paul.
Date: May 14, 2008
Paul is a pseudonym chosen by the Hearing Officer to protect the privacy of the Student in documents available to the public.