Boston Public Schools – BSEA#s 09-2167 and 09-2209
COMMONWEALTH OF MASSACHUSETTS
BUREAU OF SPECIAL EDUCATION APPEALS
In Re: Boston Public Schools
BSEA # 09-2167 and 09-2209
This decision is issued pursuant to the Individuals with Disabilities Education Act (20 USC 1400 et seq .), Section 504 of the Rehabilitation Act of 1973 (29 USC 794), the state special education law (MGL c. 71B), the state Administrative Procedure Act (MGL c. 30A), and the regulations promulgated under these statutes.
A hearing was held on October 15, 2008 in Malden, MA before William Crane, Hearing Officer. Those present for all or part of the proceedings were:
Pamela Smith Friend of Parent
Lisa Peabody Parent of another Boston student
Rebecca Haskell Paraprofessional, Mason Elementary School, Boston Public Schools
Bebhinn O’Connell Teacher, Mason Elementary School, Boston Public Schools Jennifer McCann Teacher, O’Hearn Elementary School, Boston Public Schools Carol Ostiguy Evaluation Team Facilitator, Boston Public Schools
Helen Murphy Assistant Program Director, Boston Public Schools
Andrea Alves Thomas Attorney for Boston Public Schools
The official record of the hearing consists of documents submitted by Student’s Mother (Parent) and marked as exhibits P-A through P-B10; documents submitted by the Boston Public Schools (Boston) and marked as exhibits S-A through S-H3, and the second attachment to Boston’s hearing request, which is marked as exhibit S-I; and four hours of recorded oral testimony and argument. As agreed by the parties, oral closing arguments occurred at the end of the hearing on October 15, 2008, and the record closed on that date.
On September 22, 2008, Parent filed with the Bureau of Special Education Appeals (BSEA) a request for hearing. Taking the position that Boston has proposed educational services that are unsafe for her son and believing that Boston cannot be trusted either to provide consistent services or to implement what it has agreed to provide, Parent has kept her son home from school since the beginning of the 2008-2009 school year.
On September 25, 2008, Boston filed its own request for expedited hearing, seeking an order that its proposed individualized education program (IEP) is appropriate and that Student should be placed in its proposed classroom at the Mason Elementary School.
The BSEA consolidated the two disputes and held an evidentiary hearing on the automatic hearing date scheduled for Boston’s hearing request—that is, October 15, 2008.
By agreement of the parties, the issues to be addressed in these consolidated cases is limited to the following:
1. Is the IEP most recently proposed by Boston reasonably calculated to provide Student with a free appropriate public education in the least restrictive environment?
2. If not, can additions or other modifications be made to the IEP in order to satisfy this standard?
3. If not, would placement at Kids Are People Too satisfy this standard?
Student Profile . Student is a seven-year-old young boy who lives with his mother (Parent) in Dorchester, MA. Student is described as “truly an adorable young boy with enthusiasm for life.” By all reports, he enjoys school and interacting with his peers, and he is a valued member of the school community. Testimony of Parent, McCann; exhibit S-H1.
Student has multiple, significant disabilities. He has a well-documented history of global cognitive delay and cortical vision impairment. He also has a history of infantile spasms and a mixed seizure disorder; the seizures have been well-controlled through medication. Testimony of Parent, McCann; exhibits S-E, S-H1.
Student’s Individualized Education Program . Student’s currently-proposed IEP calls for him to be placed in a 1 st grade inclusion classroom with a dedicated 1:1 aide. The IEP calls for the additional special education and related services described below.
Special education and related services delivered within the classroom are:
· Readiness services from a special education teacher for one hour per day, five days per week.
· Behavior/social emotional services from a special education teacher and a regular education teacher for one hour per day, five days per week.
Special education and related services delivered within and outside the classroom are:
· Language services from a speech and language pathologist for a half hour per day, two days per week.
· Occupational therapy from an occupational therapist for a half hour per day, two days per week.
· Physical therapy from a physical therapist for a half hour per day, two days per week.
· Visual motor skills instruction from a vision teacher for a half hour per day, two days per week.
· Orientation and mobility services from an orientation and mobility specialist for a half hour per day, one day per week.
· Music therapy from a music teacher for a half hour per day, one day per week.
The currently-proposed IEP also calls for extended year services. Exhibit S-E.
Educational History . The classroom that Student attended last school year for 1 st grade at Boston’s O’Hearn Elementary School (O’Hearn) included two teachers (both dually certified in special education and regular education) and 24 children, seven of whom had IEPs.
At the end of the last school year, Parent requested that her son not return to O’Hearn. After Parent visited Boston’s Mason Elementary School (Mason), Parent and Boston agreed that Student would attend the Mason for the current school year (2008-2009). It was also agreed that Student would repeat 1 st grade during the current school year.
The classroom proposed for the current school year at the Mason is similar to, although smaller than, last year’s classroom. It includes two teachers (one of whom is dually certified in regular and special education, and the other is certified in regular education) and 13 children, two of whom have IEPs. Mason is an “inclusion” school in that it has been specifically structured and designed for the integration of special education children into a regular education environment. Testimony of O’Connell; exhibit S-E.
As of the date of the hearing in this dispute (October 15, 2008), Parent had yet to allow her son to attend school during the current school year. Student has remained home with Parent during this time period, receiving no educational services from Boston. Testimony of Parent.
Introduction . It is not disputed that Student is an individual with a disability, falling within the purview of the federal Individuals with Disabilities Education Act (IDEA)1 and the Massachusetts special education statute.2 The IDEA was enacted “to ensure that all children with disabilities have available to them a free appropriate public education [FAPE] that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living.”3 The Massachusetts special education statute also includes a FAPE requirement.4 FAPE must be provided in the least restrictive environment.5
The Supreme Court has explained that under the federal statute, FAPE is intended to require special education services that allow a student to access public education .6 Access must be meaningful,7 and sufficient to confer educational benefit,8 but need not maximize a student’s educational potential.9 In addition, FAPE is defined by the IDEA to include state educational standards.10 Massachusetts and federal educational standards require that the IEP be designed to enable the student to make effective progress.11 Massachusetts standards also mandate that the special education services be designed to develop the student’s educational potential.12
Student’s right to FAPE is assured through the development and implementation of his IEP.13 The IEP must be custom tailored to meet his “unique” needs so that he will receive sufficient educational benefit.14 The initial issue presented is whether the programming and specialized services embodied in Boston’s most recently-proposed IEP are consistent with these legal standards . Boston has the burden of persuading me that the IEP is appropriate.15
Appropriateness of Boston’s Proposed IEP . The currently-proposed IEP was implemented by Boston in May 2008, which was near the end of the 2007-2008 school year (the current IEP runs from May 2008 to May 2009). The special education and related services implemented prior to May 2008 were substantially similar to what is reflected in the current IEP; and although Student was assigned a new school for the 2008-2009 school year, the classroom structure and learning accommodations for the current school year would be substantially the same as the last school year. Also, by agreement of the parties, Student is repeating 1 st grade during the 2008-2009 school year. Therefore, relevant evidence of the appropriateness of the current IEP may be obtained from Student’s experience during the 2007-2008 school year. Testimony of McCann, O’Connell, Ostiguy; exhibit S-E. See also the Educational History section of this decision, above.
Perhaps Student’s most significant immediate impediment to learning is his limited communication skills. The classroom during the 2007-2008 school year used a total communication approach with Student. This approach incorporated the Pictures Exchange Communication System (PECS), which allowed Student to make requests and select favored objects and activities. The classroom teacher and Student’s 1:1 aide were trained to use the PECS communication system. In addition, simple forms of sign language, as well as gestures, were used to communicate with Student. Testimony of McCann; exhibit S-A.
Assistive technology was utilized to support Student’s communication and learning. The classroom utilized voice output switches that allowed Student to participate in singing songs and shared reading activities. A touch screen monitor was used to allow Student to access a computer. Testimony of McCann; exhibits S-A, S-B3.
During the 2007-2008 school year, Student made steady progress with communication skills. He was able to utilize the PECS communication system successfully throughout the day; he has learned to make selections from a field of four; and he has learned new communication signs and consistently produced signs such as open , help , stop , out , off and again using hand-over-hand assistance. Testimony of McCann; exhibits S-A, S-B3, S-B6.
During the 2007-2008 school year, Student was also able to learn to identify body parts, identify his name, write the letter “N”, match various objects one-to-one, increase periods of visual attention, and follow a daily schedule. Exhibits S-A, S-B3.
Student benefitted from his interactions with his teachers and peers. Student is highly social and spontaneously initiates social interaction with familiar peers and adults by physically approaching them, smiling, and vocalizing. Over the course of the past school year, Student’s social interactions increased and his social skills improved. It is also noteworthy that the O’Hearn teacher and Parent agreed that Student loved school last year. Testimony of McCann, Parent; exhibit S-A.
Student’s physical therapist noted in her written progress report that Student made significant improvement in his dynamic balance, as well as his ability to walk over a low hurdle and to use the stairs. Student made progress regarding his functional fine-motor and visual-motor skills, allowing for increased self-care and improved eye-hand coordination. Exhibits S-A, S-B1, S-B2, S-B4.
During the hearing, Parent expressed significant concern regarding assistance with Student’s toileting. Parent was particularly upset that on two occasions, Student has come home from school with soiled pull-ups. Parent concluded that Boston’s practices made school unsafe for her son.16 Student does not use the toilet independently and does not communicate his toileting needs. The teacher from Student’s O’Hearn classroom testified that Student’s 1:1 aide (under the teacher’s supervision) was responsible for Student’s toileting at school, that she believed that the aide was very conscientious regarding Student’s toileting needs, and she was never aware of Student’s being left with soiled pull-ups. The 1:1 aide assigned to Student for the current school year at Mason also testified regarding her ability to work effectively on Student’s toileting needs, as well as on his educational needs, discussed above. Testimony of McCann, Haskell. Testimony of Parent, McCann, Haskell. On the basis of this evidence, I am persuaded that Boston has put in place a plan and services that are appropriate to address Student’s toileting needs.
On April 2, 2008, Parent’s consultant (Gretchen Timmel, MEd) from the Psychological Assessment Center at Massachusetts General Hospital observed Student in his classroom. Ms. Timmel’s written report concluded: “With respect to today’s observation, it is my strong impression that [Student’s] current educational placement is workable for him.” Ms. Timmel then described five areas of recommendations. Student’s teacher from O’Hearn testified with respect to each area of recommendation, explaining how the classroom implemented the recommendation. The only recommendation that Boston did not implement was that Student receive home services that involve an applied behavior analysis (ABA) component in order to target several areas of development. After reviewing Boston’s own ABA evaluation, Student’s IEP Team considered this recommendation and concluded that it was unnecessary in order for Student’s IEP to be appropriate. Testimony of McCann; exhibit S-B9.
This evidence amply demonstrates that within the context of his particular capacity to learn, Student made meaningful and effective educational progress during the 2007-2008 school year at O’Hearn. I find that Boston’s most-recently proposed IEP would provide substantially the same special education and related services at Mason for the 2008-2009 school year as was provided at O’Hearn for the 2007-2008 school year. As earlier noted, the parties agreed that Student would repeat 1 st grade during the current school year. For these reasons, I conclude that the most recently-proposed IEP is reasonably calculated to allow Student to make meaningful and effective educational progress during the time period covered by the IEP.
Parent’s Concerns . At the hearing, Parent presented her own testimony and that of another parent of a special needs child in the Boston Public Schools. Parent also provided a number of letters, notes, reports, parts of an IEP, and mediation agreements to support her contentions. Parent did not seek to establish through expert testimony that Boston’s proposed IEP is inappropriate as written; nor did Parent seek to establish that Student failed to make substantial educational progress during the 2007-2008 school year at O’Hearn; nor did she provide any evidence that would indicate that the special education and related services Student would receive at Mason are less adequate than those he received at O’Hearn.
Rather, Parent’s position, which she explained clearly and strongly in her own testimony, is that Boston and its educational and administrative staff cannot be trusted to educate her son safely, consistently, and appropriately. More specifically, Parent believes that there have been incidents that reflect unsafe practices by Boston, that Boston’s educational services have been inconsistent and unreliable, that Boston Public Schools is a political environment where there is inappropriate gossiping about her son, and that Boston has not complied with mediation agreements setting forth its responsibilities, thereby further indicating that Boston cannot be trusted. In light of these concerns, Parent seeks to have her son educated at Kids Are People Too, which is a private, full-year, inclusion program. Testimony of Parent.
State and federal special education laws do not require that a school district provide special education and related services to satisfy the desires, no matter how strongly felt, of a parent; rather the law requires only that a school district provide an educational program that is appropriate to meet the unique needs of the particular student. The school district may utilize a variety of teaching approaches, services, and accommodations, so long as the proposed program is reasonably calculated to provide the student with an appropriate public education in the least restrictive environment.
In order to evaluate Parent’s claims, I consider more specifically her particular allegations against Boston. When rejecting Boston’s most recently-proposed IEP, Parent wrote a note, dated May 30, 2008, outlining the reasons for her rejection. Parent testified with respect to these concerns, and I consider each of them below.
First, Parent has sought a 1:1 paraprofessional or aide for her son. Parent testified that she was not persuaded that the IEP called for a 1:1 paraprofessional that would be dedicated to her son. The proposed IEP states that “[Student] requires a 1:1 at all times”; however Parent is correct that the service delivery grid, which sets forth the specific special education and related services to be provided Student, does not make reference to the services of a 1:1 paraprofessional or aide. The unrebutted testimony was that Student was provided a 1:1 dedicated aide during the last school year and that a dedicated 1:1 aide (Haskell) has been hired and is available to assist Student as soon as he returns to school; and Boston agrees that a 1:1 dedicated aide should be provided to Student pursuant to his IEP. Testimony of Parent, Peabody, Haskell; exhibits S-E, S-F. I find that the proposed IEP should be amended to include the 1:1 dedicated aide in the service delivery grid of the IEP.
Second, Parent has sought to have her IEP Team meetings in March of each year, rather than in May (the last Team meeting was in May 2008). She explained that a meeting in March would allow her to review her son’s progress and Boston’s plans for the summer and the next school year. Testimony of Parent; exhibit S-F. The timing of Student’s annual IEP Team meeting is not relevant to the issue of the appropriateness of Student’s IEP, and I therefore do not consider it further.
Third, Parent has sought to have her consultant, Gretchen Timmel, “involved” with her son’s “school work.” Parent believes that Student’s teacher from last year verbally agreed to this. There was no further explanation regarding any agreement between the parties. Testimony of Parent; exhibit S-F. With respect to this issue and several others discussed below, it is apparent from Parent’s testimony that she would like this added to her son’s IEP. However, without additional evidence in support of the educational need for these services, Parent’s desire for such result is not persuasive. Parent provided no expert testimony or report from which I might conclude that Ms. Timmel’s continuing involvement is necessary in order for Student’s IEP to be appropriate.
Fourth, Parent has sought to have Boston repeat the ABA evaluation that it conducted on March 10, 2008. Testimony of Parent; exhibits S-B9, S-F. Other than Parent’s expressed desire that this occur, there is no evidentiary basis that would support a finding that a repeated ABA evaluation is necessary.
Fifth, Parent has sought more emphasis on vocalization during Student’s speech and language therapy. Boston provided testimony that vocalization is being addressed on a consistent basis during speech and language therapy. Testimony of Parent; exhibits S-B3, S-F, S-G3. Other than Parent’s expressed desire that this occur, there is no support in the record for a finding that an increased emphasis on vocalization is necessary. Parent has also expressed her desire for more speech and language services and more music therapy, but again I have no basis to conclude that such increases in services are required in order for Student to receive an appropriate educational program.
Sixth, Parent expressed concern regarding implementation of part of the most recent mediation agreement, and this topic is discussed separately below.
Seventh, Parent has sought to have Ms. Timmel’s recommendations (as contained in her written report of observation) implemented within Student’s classroom. Earlier in this decision, I addressed the implementation of Ms. Timmel’s recommendations. The only recommendation that Boston did not implement was that Student receive home services that involve an ABA component to target several areas of development. Boston has conducted its own ABA evaluation, and on the basis of this evaluation and the consideration of Student’s IEP Team, Boston concluded that it was unnecessary to implement Ms. Timmel’s recommendation. Ms. Timmel did not testify and therefore I did not have the benefit of her thinking as to the importance of this recommendation with respect to Student’s current IEP, nor do I know whether she has considered Boston’s ABA evaluation and if so, whether that evaluation would change Ms. Timmel’s recommendation. Testimony of Parent, McCann; exhibits S-B9, S-F, S-H1. For these reasons, I am unable to conclude that Ms. Timmel’s recommendation must be implemented by Boston in order that its most recently-proposed IEP be appropriate.
Finally, Parent has sought a private summer program for the summer of 2009. The most recently-proposed IEP includes provision for extended year services, but the IEP ends in May 2009 and therefore does not include the summer of 2009. There was also no testimony regarding the summer program that Boston would propose for Student for the summer of 2009. Testimony of Parent, McCann; exhibit S-F. Accordingly, I have no basis to require Boston to provide Student with a private program for the summer of 2009.
Another area of Parent concern is Boston’s alleged failure to implement fully the most recent mediation agreement. Parent and Boston have engaged in multiple mediations, leading to a number of agreements between 2004 and 2007. Parent complains, in particular, about the mediation agreement dated December 19, 2007. At that time, Parent had kept Student at home since November, and the mediated agreement provided that Parent would return her son to school under certain specific conditions. Parent testified that a number of these specific conditions were not met by Boston. Testimony of Parent; exhibit P-A8. I consider each of Parent’s claims under the agreement.
First, the December 19, 2007 mediation agreement required Boston to use a communication notebook to facilitate home/school communication, with communication to occur on a weekly basis from the special education teacher and on a daily basis from Student’s 1:1 aide. Parent takes the position that the aide did not communicate daily through the communication notebook. However, the teacher’s testimony was persuasive (and was supported by documentation) that the aide did communicate daily. The aide’s communication was principally through the form of a check list, with occasional written notes. It was also noted that the teacher communicated with Parent more frequently than weekly. Testimony of McCann; exhibits P-A8 (par. D4), P-B7. Parent may have expected more written notes from the aide, but the mediation agreement does not require it.
Second, the mediation agreement required Boston to implement a toilet schedule “per [Student’s] IEP.” Student’s teacher testified that a toilet schedule was followed last year for Student. Testimony of McCann; exhibit P-A8 (par. D2). Parent does not dispute this, but her concern appears to be that the toilet schedule is not included within the IEP. This claim was not able to be substantiated since the IEP for this time period was not in evidence. I find no basis for requiring Boston to include a toilet schedule in the most recently-proposed IEP.
Third, the mediation agreement provided that Student is to be afforded compensatory itinerant services for a time period of two weeks when these services were not provided to Student. Testimony of Parent; exhibit P-A8 (par. F). The parties disputed whether these compensatory services have been provided. There was not sufficient evidence for me to make a finding regarding this issue. The issue of compensatory relief was not within the scope of the hearing, other than through its relevance to Parent’s position that Boston cannot be trusted to provide appropriate services in the future. Nevertheless, I recommend that Boston make a careful inquiry into this issue, send a written report to Parent with its findings, and make up all missed sessions other than those which Boston can establish have already been provided.
Fourth, the mediation agreement stated that Parent is requesting a formal music evaluation, and further stated that Boston would forward to Parent a consent form for such an evaluation. In March 2008, Boston’s music therapist conducted a music evaluation, which resulted in a recommendation for music therapy for a half hour, once per week. This service is reflected within Student’s most recently-proposed IEP. Exhibits S-B7, S-E. Parent’s principal concern was that the evaluation was not done in a timely basis; but without knowing when Parent provided her consent to Boston, I am not able to make a finding regarding this claim.
Finally, I note Parent’s concerns regarding appropriate and consistent toileting of her son. Parent views this as an important safety issue. I have addressed this issue in this decision, above. Other miscellaneous concerns—for example, that Boston did not provide Parent with a ticket to the swan boats, as apparently promised by a Boston teacher at the end of the last school year, or that Boston Public Schools is a political environment where staff inappropriately gossip with other Boston staff about her and her son—simply are not relevant to the question of whether Boston has proposed an appropriate IEP. Testimony of Parent; exhibit P-B9.
In summary, Parent has testified as to the many concerns and frustrations that she has with Boston. I do not doubt the sincerity and strength of Parent’s convictions. I also agree with Parent that Boston may have made some mistakes in the past and may not have done what she believes they agreed to do. Yet, taken together, these incidents do not persuade me that Boston cannot be trusted to implement appropriately its most recently-proposed IEP. In the final analysis, Parent has provided no evidentiary basis for a finding that her concerns render Boston’s proposed IEP inappropriate or the placement unsafe.
In contrast, Boston has provided credible and persuasive testimony, supported by documentation, that it has proposed an IEP and placement that are well-suited to address Student’s unique educational needs in the least restrictive environment and that are likely to result in meaningful and effective educational progress if he were to attend school. In addition, I note that to its credit, Boston has sought to go beyond what is minimally required under the law, all for the apparent purpose of trying to accommodate Parent’s desires so that she would allow her son to attend school.
Boston’s IEP therefore must be found to be appropriate.
It is most unfortunate that a severely disabled young boy, who loves to go to school and who made demonstrable progress during the last school year and who would likely continue to do so in Boston’s proposed educational program, has been kept home from school since the beginning of the current school year. My decision will serve no useful purpose unless it facilitates Student’s return to school as quickly as possible.
Boston’s most recently-proposed IEP is appropriate in that it is reasonably calculated to provide Student with a free appropriate public education in the least restrictive environment. Provided, however, Boston shall amend the IEP to include within the service delivery grid the services of a 1:1 dedicated aide.
By the Hearing Officer,
Dated: October 21, 2008
COMMONWEALTH OF MASSACHUSETTS
BUREAU OF SPECIAL EDUCATION APPEALS
THE BUREAU’S DECISION, INCLUDING 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 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 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.
20 USC 1400 et seq .
MGL c. 71B.
20 USC 1400(d)(1)(A). See also 20 USC 1412(a)(1)(A).
MGL c. 71B, ss. 1, 2, 3.
The phrase “least restrictive environment” means that, to the maximum extent appropriate for the particular student, the student is to be educated with other students who do not have a disability. 20 USC 1400(d)(1)(A); 20 USC 1412(a)(1)(A); 20 USC 1412(a)(5)(A); MGL c. 71B, ss. 2, 3; 34 CFR 300.114(a)(2(i) ; 603 CMR 28.06(2)(c).
Rowley, 458 U.S. at 192 (1982) (“intent of the Act was more to open the door of public education to handicapped children on appropriate terms than to guarantee any particular level of education once inside”) .
Rowley, 458 U.S. at 192 (“in seeking to provide such access to public education, Congress did not impose upon the States any greater substantive educational standard than would be necessary to make such access meaningful”); Frank G. v. Board of Educ. of Hyde Park, — F.3d —-, 2006 WL 2077009 (2 nd Cir. 2006); A.B. ex rel. D.B. v. Lawson , 354 F.3d 315, 319 (4 th Cir. 2004) (“state must provide children with ‘meaningful access’ to public education”); Alex R.. v. Forrestville Valley Community Unit School Dist. # 221, 375 F.3d 603, 612 (7 th Cir. 2004) (question presented is whether the school district appropriately addressed the student’s needs and provided him with a meaningful educational benefit), cert. denied , 543 U.S. 1009 (2004); Deal v. Hamilton County Board of Education, 392 F.3d 840 (6 th Cir. 2004); Shore Regional High School Bd. of Educ. v. P.S. , 381 F.3d 194, 198 (3d Cir. 2004); Houston Independent School District v. Bobby R ., 200 F.3d 341 (5 th Cir. 2000); Adams v. Oregon , 195 F.3d 1141, 1145 (9 th Cir. 1999); Town of Burlington v. Dep’t of Educ ., 736 F.2d 773, 789 (1st Cir. 1984) (“federal basic floor of meaningful, beneficial educational opportunity”), aff’d 471 U.S. 359 (1985).
Rowley, 458 U.S . at 200 ( “ Implicit in the congressional purpose of providing access to a ‘free appropriate public education’ is the requirement that the education to which access is provided be sufficient to confer some educational benefit upon the handicapped child.”).
Rowley , 458 U.S. at 197, n.21 (1982) (“ Whatever Congress meant by an “appropriate” education, it is clear that it did not mean a potential-maximizing education.”); Lt. T.B. ex rel. N.B. v. Warwick Sch. Com., 361 F.3d 80, 83 (1st Cir. 2004) (“IDEA does not require a public school to provide what is best for a special needs child, only that it provide an IEP that is ‘reasonably calculated’ to provide an ‘appropriate’ education as defined in federal and state law.”).
20 USC 1401(9)(b); Winkelman v. Parma City School Dist., 127 S.Ct. 1994, 2000-2001 (2007) (“education must … meet the standards of the State educational agency). See also MGL s. 71B, s.1 (definition of FAPE, describing Massachusetts educational standards as those “ established by statute or established by regulations promulgated by the board of education”).
Massachusetts standards: 603 CMR 28.05(4)(b) (IEP must be “designed to enable the student to progress effectively in the content areas of the general curriculum”); 603 CMR 28.02(18) (defining Progress effectively in the general education program ). Federal standards: 20 USC 1400(d)(4) (purposes of this title are . . . to assess, and ensure the effectiveness of , efforts to educate children with disabilities” (emphasis added); Lenn v. Portland School Committee , 998 F.2d 1083, 1090 (1 st Cir. 1993) (program must be “reasonably calculated to provide ‘effective results’ and ‘demonstrable improvement’ in the various ‘educational and personal skills identified as special needs’”); Roland v. Concord School Committee , 910 F.2d 983, 991 (1 st Cir. 1990) (“Congress indubitably desired ‘effective results’ and ‘demonstrable improvement’ for the Act’s beneficiaries”); North Reading School Committee v. Bureau of Special Education Appeals, 480 F.Supp.2d 479, 489 (D.Mass. 2007 ) (educational program “must be reasonably calculated to provide effective results and demonstrable improvement in the various educational and personal skills identified as special needs”).
MGL c. 71B, s. 1 (defining the term “special education” to mean “educational programs and assignments including, special classes and programs or services designed to develop the educational potential of children with disabilities” ). See also MGL c. 69, s. 1 (“paramount goal of the commonwealth to provide a public education system of sufficient quality to extend to all children the opportunity to reach their full potential ”); 603 CMR 28.01(3) (identifying the purpose of the state special education regulations as “to ensure that eligible Massachusetts students receive special education services designed to develop the student’s individual educational potential”); Mass. Department of Education’s Administrative Advisory SPED 2002-1: Guidance on the change in special education standard of service from “maximum possible development” to “free appropriate public education” (“FAPE”), Effective January 1, 2002 , 7 MSER Quarterly Reports 1 (2001) (appearing at www.doe.mass.edu/sped) (Massachusetts Education Reform Act “underscores the Commonwealth’s commitment to assist all students to reach their full educational potential”).
20 USC 1414(d)(1)(A)(i)(I)-(III); Honig v. Doe, 484 U.S. 305, 311-12 (1988) ; Bd. of Educ. of the Hendrick Hudson Central Sch. Dist. v. Rowley , 458 U.S. 176, 182 (1982).
20 USC 1400(d)(1)(A) (IDEA enacted “to ensure that all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living”); 20 USC 1401(9), (29) ( “free appropriate public education” encompasses “special education and related services,” including “specially designed instruction, at no cost to parents, to meet the unique needs of a child with a disability”); Honig v. DOE , 484 U.S. 305, 311 (1988) (FAPE must be tailored “to each child’s unique needs”); Lessard v. Wilton Lyndeborough Cooperative School Dist. , 2008 WL 484042 (1 st Cir. 2008) (noting the school district’s “ obligation to devise a custom-tailored IEP”) ).
The burden of persuasion in an administrative hearing challenging an IEP is placed upon the party seeking relief. Schaffer v. Weast , 546 U.S. 49, 62 (2005). In the present dispute, both parties seek relief, but it is Boston that is specifically seeking a determination that its proposed IEP is appropriate.
Parent identified one such incident as occurring during a recent summer program. Parent’s exhibits also include a letter, dated November 12, 2004, in which she stated that her son would no longer be attending school because the 1:1 aide had not changed his diaper. Testimony of Parent; exhibit P-A3.