Yul v. Boston Public Schools – BSEA # 09-1007
COMMONWEALTH OF MASSACHUSETTS
BUREAU OF SPECIAL EDUCATION APPEALS
In Re: Yul1 and the Boston Public Schools
BSEA # 09-1007
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 thereunder. A hearing was held on April 15, 16, and 27, 2009, at the Department of Elementary and Secondary Education in Malden, Massachusetts. Those present for all, or parts, of the proceeding were:
Ms. Y Yul’s Parent
Vincent G. Family Friend
Michelle P. Family
Lynn Meltzer Director, Institute for Learning & Development
Donna Sullivan Educational Consultant
Terry Gregory Director, Middle School Curriculum, Carroll School
Gayle Porter Lewis Head; Math Department, Carroll School
Larry Brown Head; Middle School, Carroll School
Karen Calahan Teacher, Carroll School
Rachel Parrish Teacher, Carroll School
Michael Lynch Counselor, Carroll School
Deborah Rooney Principal, Mary Lyon School, Boston
Janice Hanrahan Teacher, Mary Lyon School, Boston
Jill Sweeney ETF, Mary Lyon School, Boston
Michael Murphy Assistant Program Director, Boston
Jean D’Angelo Special Education Teacher, Mary Lyon School, Boston
Betty-Jean Constable Reading Specialist, Mary Lyon School, Boston
Herve Anoh Program Director, Mary Lyon School, Boston
John Cohan Teacher, Mary Lyon School, Boston
Elinda Scherr Speech-Language Pathologist, Mary Lyon School, Boston
Elizabeth Wood Observer
James Brown, Esq. Observer
Tony DeMarco B.C. Law Student Supervisor
Donn Dingle B.C. Law Student Intern for Parent
Ashley Lewis B.C. Law Student Intern for Parent
Elizabeth Kurlan Director of Litigation – Boston
Jill Murray Attorney for Boston
Julie Muse-Fisher Attorney for Boston
Maureen Piras Court Reporter
Lindsay Byrne Hearing Officer – BSEA
The official record of the hearing consists of: documents submitted by the Parent marked P-1, 2, 3A and C, 4-24, and 26-29; documents submitted by the School marked S-1 through S-26; and approximately 15 hours of recorded oral testimony. Both parties submitted written closing arguments which were exchanged and received on May 18, 2009. The record closed on that date.
The issues for hearing were set out in a Pre-Hearing Order issued on March 23, 20092 :
I. a) Whether the Boston Public Schools developed an IEP that was reasonably calculated to provide a free, appropriate public education to Yul during the 2006-2007 school year?
b) If not, is the Parent entitled to reimbursement of expenses she incurred as a result of the Student’s unilateral placement at the Carroll School for the 2006-2007 school year?
II. a) Whether the Boston Public Schools developed an IEP that was reasonably calculated to provide a free, appropriate public education to Yul during the 2007-2008 school year?
b) If not, is the Parent entitled to reimbursement of expenses she incurred as a result of the Student’s unilateral placement at the Carroll School for the 2007-2008 school year?
III. a) Whether the Boston Public Schools developed an IEP that is reasonably calculated to provide a free, appropriate public education to Yul for the 2008-2009 school year?
b) If not, is the Parent entitled to reimbursement of expenses she incurred as a result of the Student’s unilateral placement at the Carroll School for the 2008-2009 school year?
IV. Whether Boston Public Schools committed serious procedural violations during the team meetings held to develop the 2006-2007, 2007-2008 and 2008-2009 IEPs, which would entitle Yul to an additional year of publicly funded compensatory education at the Carroll School?
SUMMARY OF THE EVIDENCE
The Parties agree that Yul is a student with special learning needs and is therefore entitled to receive a free, appropriate public education in accordance with 20 U.S.C. § 1401 et seq . and M.G.L.c. 71B. The Parties also substantially agree on the nature and scope Yul’s identified learning needs. The issues for hearing concern whether Boston has proposed programs and services that were designed to permit Yul to make affective progress commensurate with his cognitive potential in the least restrictive educational environment.
1. Yul is currently a 13 year old 8 th grade student. In the 1 st grade he was diagnosed with a specific learning disability in the area of language and with Attention Deficit Hyperactivity Disorder (Parent, Meltzer). He is very bright. His scores on most standardized test instruments fall in the high average to superior range (P-4; P-6, S-15; P-12, S-13; P-22, S-16; P-15). Yul has special strengths in verbal memory, general knowledge, problem solving skills and social reasoning. His visual-motor skills, visual memory, processing speed and executive functioning skills are relative weaknesses, though still fall mostly within the average range on standardized tests (Meltzer; Sullivan; Scherr; D’Angelo).
Yul needs a specialized educational environment and specific instructional strategies in order acquire the grade level academic skills he is cognitivory capable of. Yul needs a highly structured, predictable school setting. Instruction should be multisensory, slow paced, and use clear visual models. Yul requires direct instruction and environmental support to improve his executive functioning skills. Appropriate teaching strategies include: teacher models, step by step directions, continual review and repetition, connected subject matter, consistent implementation of strategies and expectations across subject matter, extended time for tests and projects, and assistive technology (D’Angelo; Meltzer, S-16; P-22; P-6).
2. When Yul entered the Boston Public School system in the 1 st grade, he was assigned to the Mary Lyon School. He began receiving special education support and instruction in reading in the middle of his 2 nd grade year. During that 2002-2003 school year Yul made progress in the acquisition of basic literacy skills. Jean D’Angelo, Yul’s 2 nd grade teacher, testified that although Yul demonstrated weaknesses in phonemic awareness, decoding and blending, reading fluency, spelling and math language throughout the school year, he also progressed from a 1 st grade level reading skill set in the fall 2002 to a 2 nd grade level reading skill set by the end of the school year. Results on diagnostic reading assessments reflect Yul’s progress (D’Angelo). Betty Jean Constable provided direct reading specialist services to Yul three times a week during his second grade year. According to Ms. Constable, by using the WISNIAKAPP, a multisensory reading skills improvement program, Yul made steady progress toward acquisition of grade level reading skills throughout the year (see also: Rooney; S-21; S-22; S-23). Ms. Constable testified that the technologies and strategies she and Ms. D’Angelo used to address Yul’s reading weaknesses in 2002-2003 were and are in use throughout the Mary Lyon School (Constable; see also: D’Angelo; Hanrahan; Rooney).
3. At the conclusion of Yul’s 2 nd grade year Boston proposed providing additional reading/literacy support during the summer to enable Yul to reach the minimum literacy level for promotion to 3 rd grade. Without additional support Boston recommended that Yul be retained in the 2 nd grade for the 2003-2004 school year (P-29). The Parent testified that Yul’s failure to achieve a literacy level sufficient to support promotion to the next grade indicated that Boston had not, and could not, provide appropriate special education services to him (Parent).
4. In August, 2003, the Parent unilaterally placed Yul at the Carroll School, an approved private special education school in Lincoln, MA (P-27). Boston has continued to offer special education services and placement to Yul at the Mary Lyon School through the date of the hearing. In addition, though privately enrolled at the Carroll School, Boston supplied Yul with an assistive writing device (alphasmart) in 2005, and after Yul had extensive surgery in the fall, 2007, with approximately 7 weeks of home tutoring (Parent; Sweeney).
5. Since entering elementary school, Yul has been making steady progress in the acquisition of foundational academic skills though his reading rate and fluency still lag behind his other grade level academic skills (Meltzer, D’Angelo; S-16, S-15).
6. The Carroll School in Lincoln, MA is a state-approved private special education day school that provides an integrated language based curriculum to students with language based learning disabilities. Using the Orton-Gillingham method as its foundation, the Carroll School offers three academic periods per day focused on literacy, at least one devoted to math, and another to appropriate use of technology. All classes consist of small cohesive groups of students with similar learning needs and academic achievement levels. Instruction is teacher-directed and multi-sensory. Improvement in executive functioning skills through direct teaching of organizational strategies and use of accommodations such as graphic organizers, is an important goal for all students. Speech-language services are not available at the Carroll School (Gregory). Yul has attended the Carroll School since September 2003. He has made steady progress in the acquisition of literacy, organizational, foundational math and pragmatic social skills. He still displays inconsistencies and weaknesses in attention, visual memory, working memory and processing speed. He continues to need specialized instruction in math, written production, and organizational strategies (Brown; Porter-Lewis; Gregory; P-16; P-18; P-24; P-9, P-10; see also P-8, P-30).
7. The Carroll School has not had any direct contact with the Boston Public Schools or the Mary Lyon School concerning Yul. In accordance with Carroll’s policy concerning privately placed and funded students, Carroll staff members did not participate in the development of any of the IEPs proposed by Boston for Yul, did not share evaluations, progress reports, or teaching plans with Boston Public Schools, and did not visit any of the Mary Lyon classrooms proposed for Yul (Gregory.)
Mary Lyon School
8. The Mary Lyon School is a small, K-8 public elementary school. It is a specialized “inclusion” school. There is one classroom per grade. Class size is limited to 15 students. Each class is composed of 10 “typical” students and up to 5 students with IEPs. Each class has two principal teachers, both of whom are certified in regular elementary and special education. Each class also has at least one full time instructional assistant. All teachers are trained in specialized instructional programs including: WKRP, Story Grammar, Project Read, Visualization and Verbalization, Story Map; Lindamood Math; Knowing Math; Cloud Nine. Teachers are also trained in positive behavioral support techniques and crisis intervention strategies. The school focuses on the development of the “whole child,” paying special attention to improvement in social/behavioral skills, executive functioning and organizational skills, and literacy. Mary Lyon School has reading specialists, literacy coaches and speech-language pathologists on staff, as well as an occupational therapist, guidance specialists, a licensed mental health counselor, a licensed clinical social worker, and teachers for art, music, physical education and technology. All students receive two periods per week of individualized academic tutoring. Additional tutoring assistance and individual counseling is available if recommended. Both before and after school programs are open to all students without charge (Rooney; S-18, S-19)
9. Classroom instruction follows a co-teaching “workshop model” in which new concepts are presented to the whole group, the class then splits into small groups each supervised by one of the teachers or paraprofessional for additional instruction, practice, or production. Then the class reassembles into the large group for sharing and reinforcement (D’Angelo; Cohan; Rooney).
Because at least two teachers are in a classroom at any given time there is significant consistency in instructional content and technique across the curriculum. Instruction in all subjects is coordinated, multisensory and uses explicit language and organization strategies, such as scaffolding, repetition and review, visualization and verbalization, and memory supports. Reading instruction is based on the WSNIAC and Project Read systematic reading programs. Standard accommodations available to all students include: scribes; oral production/testing; audio/oral/CD texts and Perkins membership supports; on line submission of work; electronic portfolios; calculators, “aneedo” (a version of alphasmart); biweekly progress reports to parents; and additional one-to-one tutoring. Specialized accommodations listed on IEPs or indicated by student performance are also implemented. The goal is to create an individualized learning program for each student in the context of a supportive community (Hanrahan, Scherr, Cohan; D’Angelo; Constable; Rooney; see also S-18; S-17)
10. On March 10, 2006, the Team met to develop the 2006-2007 Individualized Education Plan for Yul. At the time he was a 5 th grade student at the Carroll School. Since he had initially been offered special education services in the second grade, Boston had continued to develop annual IEPs proposing inclusion services at the Mary Lyon School. There is no indication in this record that the Team had any evaluation, progress reports, or other then current information concerning Yul to add to the understanding the Team had of his functioning gleaned from evaluations and school performance during his first and second grade years at Mary Lyon (Parent; Sweeney).
Jill Sweeney, the Educational Team Facilitator at Mary Lyon, testified that the Carroll School was invited to Yul’s March 2006 Team meeting but did not attend.3 She stated that the Team only considered information that was brought to it by the Parent, which may have included Carroll School reports. The Team was held at the Beethoven School at the Parent’s request. According to Ms. Sweeney since the location change made it difficult for Mary Lyon teachers to attend. Ms. Sweeney, dual certified in regular and special education, filled the role of the regular education teacher. The team addressed both program and placement issues (Sweeney).
11. The Team developed an IEP calling for Yul’s placement in the 5 th grade, and subsequently the 6 th grade, inclusion class at Mary Lyon. Under the proposed IEP Yul would have received 2 hours per day of special education instruction in language arts, one hour per day of special education in math and one hour per day of direct emotional and organizational support and instruction (S-13, P-19). The Parent rejected the proposed placement at Mary Lyon, as well as the social/emotional goals and service. She accepted the other components of the 2006-2007 IEP (S-23; Parent; Sweeney). There is no indication in this record that the Parent’s limited rejection of the proposed 2006-2007 IEP was the subject of any formal mediation or due process event. Yul continued to attend the Carroll School throughout the 2006-2007 school year. Mary Lyon held a place open for Yul in the 5 th and 6 th grade classes to which he would have been assigned had the 2006-2009 IEP placement been accepted. This effectively capped the class size at 14 students (Sweeney).
12. In September 2007, Boston requested an opportunity to evaluate Yul (P-23). Boston received parental consent to evaluate in January 2008. The Parent, however, requested that the evaluation be limited in time and scope, and be conducted at the Carroll School during the school day (Parent; D’Angelo). Jean D’Angelo was selected to conduct the evaluation. She was familiar with Yul because she had been Yul’s 2 nd grade teacher at Mary Lyon (D’Angelo).
Ms. D’Angelo testified that she was able to test Yul for only one hour and therefore could not complete the entire Woodcock-Johnson battery as she had intended. She selected what she believed to be the most pertinent subtests in the language and reading areas. All results were within the average range (S-16, P-22; D’Angelo).
Ms. D’Angelo stated that Yul continued to exhibit the same weaknesses he had in 2 nd grade, primarily in the areas of reading fluency and spelling. Nevertheless he continued to operate within grade level expectations, indicating that he was making appropriate progress.
After observing Yul in his language class at the Carroll School and considering his testing behavior and performance, Ms. D’Angelo recommended that he receive special education services in literacy, organizational skills and writing fluency in a highly structured, predictable school setting with clear, consistent routines. In the evaluation report she wrote that all instruction should be multisensory and slow placed, use clear visual models, and be broken into small steps. She believes Yul could benefit from cooperative learning experiences. Ms. D’Angelo testified that Mary Lyon could meet all her recommendations for Yul. (D’Angelo; S-16, P-22)
13. The Team met on June 19, 2007 to develop an IEP for 2007-2008, Yul’s 7 th grade year. The Carroll School was invited to attend but did not. The Team met at the Campbell Resource Center at the Parent’s request (P-24; Sweeney; Parent). The Team developed an IEP calling for Yul to receive special education services and accommodations in an inclusion at the class Mary Lyon School during the 2007-2008 school year. The IEP provided for 90 minutes per day of direct special education in language arts and 45 minutes per day of social-emotional and organizational assistance and support (S-3, P-11). The Team considered the evaluation conducted by Ms. D’Angelo and Carroll School reports concerning Yul’s 6 th grade performance. The Team included members certified in both regular and special education.
14. On September 22, 2007, the Parent rejected the proffered placement at the Mary Lyon School, but accepted all other components on the 2007-2008 IEP. Yul continued to attend the Carroll School throughout the 2007-2008 school year. Mary Lyon continued to hold a place for Yul in the 7 th grade class for the duration of the 2007-2008 school year effectively limiting the class size to 14 (S-4; Sweeney; Rooney).
The Parent did not reject the lack of specific math goals or instruction on the proposed 2007-2008 IEP. There is no indication in this record that the substance of the 2007-2008 IEP was the subject of a mediation or other due process event (S-4; Parent)4
15. During the 2007-2008 school year the 7 th grade class proposed for Yul had 12 students. One master’s level teacher, certified in both regular and special education, was primarily responsible for instruction in math and science. One master’s level teacher, certified in both regular and special education, was primarily responsible for instruction in English language arts and social studies. The paraprofessional was enrolled in a teacher preparation program. (Rooney)
16. The Team met on June 18, 2008, to develop an IEP for Yul’s 8 th grade year. The Team considered an Occupational Therapy evaluation conducted by Boston Public Schools that concluded that Yul did not need direct occupational therapy services in order to access a free, appropriate public education (S-14). The Team also considered current academic functioning information supplied by the Carroll School (S-13; P-12). The information contained in these reports is incorporated into the resulting IEP (compare with P-1, S-5). The Team determined that Yul needed a small, highly structured academic setting with both direct and environmental academic, organizational and social/emotional supports. The Team acknowledged that Yul learns best with a multisensory approach; opportunities for hands-on, kinesthetic learning; clear expectations and consistent routines; a mix of large group, small group and one-to-one teaching. Specific accommodations to Yul’s learning needs are set out in the proposed IEP and include: print modifications; extra time to complete assignments; explicit, small step directions, access to word processing equipment, and an incentive based behavioral program. The Team determined that the proposed special education services could be provided to Yul at the Mary Lyon School (P-1, S-5).
17. On July 15, 2008, The Parent rejected the proposed 2008-2009 IEP in full. She also wrote “Despite my rejection of the IEP including the placement and classroom model I hereby consent to it’s (sic) full implementation pending…” (S-7). Yul continued to attend the Carroll School as a privately placed student throughout the 2008-2009 school year.
18. At the Parent’s request Boston conducted an Assistive Technology Evaluation. On October 15, 2008, the evaluator issued a report which contained several recommendations to the Team. She determined that Yul could benefit from print/text modifications; word processing instruction and equipment; portable technological support and alternatives for reading assignments; school-provided copies of textbooks and notes; and graphic organizers (S-12).
19. At a prehearing conference on October 22, 2008, the Parent distributed copies of a draft report of an independent evaluation conducted by Lynn Meltzer of the Institute for Learning and Development in March 2008 (S-15). Dr. Meltzer made general environmental and service recommendations as well as recommendations for appropriate strategies to improve Yul’s skills in spelling, written expression and mathematics.
20. The Team reconvened on October 29, 2008 to consider the results of the assistive technology evaluation and Dr. Meltzer’s evaluation. Although Dr. Meltzer’s report noted that her recommendations were geared to planning for Yul’s high school placement, the Team considered and incorporated the recommendations that were appropriate to the 8 th grade setting. The Team determined that most of Dr. Meltzer’s recommendations were already in place at the Mary Lyon school and were reflected in the IEP it had proposed for Yul in June 2008. However, the Team added small group math instruction to Yul’s 2008-2009 as suggested by Dr. Meltzer. The 2008-2009 IEP was also revised to include the specific recommendations generated by the assistive technology evaluation (P-5).
21. The Team also took note of Dr. Meltzer’s finding that Yul might benefit from direct speech/language therapy, a service not offered in the proposed 2008-2009 IEP. Boston requested the Parent’s consent to evaluate Yul in this area. The Parent provided consent on December 15, 2008.
22. Elinda Scherr, the speech-language pathologist for the Mary Lyon School, conducted an evaluation of Yul’s speech-language functioning in January 2009 at the Carroll School. She found that Yul performed in at least the average range in all speech-language areas and that direct services in that area were not warranted. Mr. Scherr testified that the Parent was concerned about the amount of testing Yul underwent, and placed limitations on both specific test instruments and the time allotted for the evaluation. Nevertheless, Ms. Scherr believed her evaluation was a valid indicator of Yul’s then current functioning. (Sherr; S-11).
23. The Team reconvened on March 9, 2009, to review Ms. Scherr’s speech and language evaluation. The Team agreed that direct speech language therapy was not necessary in order for Yul to receive a free, appropriate education. No further revisions to the proposed 2008-2009 IEP were made at that meeting (Scherr; S-7). The Team never received the final report of the Independent Evaluation conducted by Dr. Meltzer (Sweeney, Parent).
24. Dr. Meltzer conducted an Independent Educational Evaluation of Yul in February and March 2008. She testified that Yul is a very bright young man with exceptionally strong reasoning skills. She noted his history of relative weaknesses in processing speed, attention and concentration, and reading fluency and stated that Yul has made significant progress in the acquisition of fundamental phonemic awareness and processing, memory, reading accuracy and comprehension, spelling, writing and attentional and metacognitive skills. On standardized testing conducted as part of the independent evaluation Yul achieved scores uniformly in the average to superior range. Dr. Meltzer emphasized that despite the average scores Yul continues to require a small, structured, supportive classroom setting which incorporates accommodations such as assistive technology, print and time modifications, and direct instruction in executive functioning skills (Meltzer; P-6, S-15; P-8G).
Dr. Meltzer reviewed the IEPs proposed by Boston for the 2006-2007, 2007-2008 and 2008-2009 school years. She testified that the accommodations, teaching strategies, and multisensory methodologies were consistent with the recommendations she made in connection with her evaluation of Yul. Dr. Meltzer further stated that the revisions the Team made to the proposed 2008-2009 IEP after receiving and reviewing her evaluation report addressed the recommendations she made in the report. Dr. Meltzer has not visited the Mary Lyon School. She has never spoken to any Boston Public School personnel about Yul. She has observed the program at the Carroll School, though not in connection with her evaluation of Yul (Meltzer).
Findings and Conclusions
There is no dispute that Yul is a student with special learning needs and is therefore entitled to receive a free, appropriate public education. The dispute here is whether Boston offered one to Yul. After careful consideration of all the credible evidence presented at the hearing, and the arguments of both parties, it is my determination that Boston developed, and was able to implement, Individualized Education Plans for Yul that were tailored to meet his unique needs and were calculated to enable him to make meaningful and effective educational progress in the least restrictive environment5 . My reasoning follows:
First, the burden of persuasion in an administrative hearing challenging an Individualized Education Plan lies with the party seeking relief, typically the moving party. Schaffer v. Weast , 546 U.S. 49 (2005). Here the Parent requested this administrative hearing seeking a declaration that the IEPs developed by Boston for three successive school years did not provide Yul with the free, appropriate education to which he is entitled, and also seeking public funding of the private education she unilaterally arranged for him. As the Parent is the party seeking relief in this matter, it is she who bears the burden of persuasion. In order to prevail in this matter the Parent must have produced sufficient credible and reliable information to persuade me that the IEPs developed by Boston failed to offer services targeted to meet Yul’s identified special education needs, or that Boston lacked the capacity to appropriately implement the IEPs it developed, or that Boston so utterly disregarded the parent’s and student’s procedural rights under the IDEA 2004 and M.G.L.c.71B that the student was deprived of meaningful access to an appropriate education. She did not. Indeed there is scant evidence supporting the Parent’s position, and overwhelming credible evidence that Boston at all relevant times offered highly individualized, appropriately tailored, and potentially effective special education programs for Yul which also allowed him access to non-disabled peers and regular education settings and curricula, as is preferred under federal and state special education law.
I. 2006-2007 IEP
No substantial evidence was presented by the Parent about this IEP. Boston’s narrative of the Parent concerns and its description of the Student’s strengths and weaknesses were not challenged by the Parent. Indeed, other than the implementation of the IEP at the Mary Lyon School the Parent accepted the proposed IEP (S-1; S-2, P-19). The accommodations, methodologies, type and frequency of special education programming, as well as the setting and placement, set out in the 2006-2007 IEP are responsive to the Parent’s concerns and to the Student’s learning profile. In other words, the 2006-2007 IEP is internally consistent. It continues a program and placement in which Yul had made documented progress in earlier years (See ¶ 2). It was endorsed by an independent evaluator (See ¶ 24). There is no evidence in this record to suggest that Yul would not have made effective educational progress in the 6 th grade at the Mary Lyon School under the IEP proposed for the 2006-2007 school year. And there is no evidence that Yul’s documented disabilities were of a nature or severity that they could not be addressed with the recommended special education services in the general educational setting (603 CMR 28.06(c).) There being no evidence to the contrary, I find that the 2006-2007 IEP developed by Boston Public Schools was reasonably calculated to ensure a free appropriate public education to Yul.
II. 2007 – 2008 IEP
When the Team met on June 19, 2007, to develop Yul’s IEP for the 2007 – 2008 school year it had little new information to consider. Although the Carroll School had been invited to the Team, no teachers attended and no school reports were submitted. Ms. D’Angelo had conducted some basic language and reading skills testing, limited in time and scope at the parent’s request, in May 2007 (See ¶12). Her recommendations that Yul should receive special education instruction in phonemic awareness, spelling, reading fluency, and comprehension, organizational skills, and handwriting alternatives using a multisensory approach, in the context of a highly structured school setting, were incorporated into the IEP developed by the Team (Compare S-16, P-22, and S-3, P-11). There were no other evaluations or recommendations for the Team to consider. The Parent did not express any concerns nor did she request any additional or alternate services (Parent; Sweeney). Indeed the Parent accepted all components of the proposed IEP except its implementation at the Mary Lyon School (S-4). I find therefore that the IEP proposed for Yul’s 7 th grade year appropriately reflected the consensus of the Team on Yul’s learning needs and style, incorporated all the recommendations of the evaluators, former teachers and parent, and provided for services that were individually tailored to ensure Yul’s educational progress. Furthermore, I am persuaded by the testimony of Ms. Rooney and Ms. Sweeney that the Mary Lyon School could appropriately and effectively implement the proposed IEP, guaranteeing that Yul would have the ongoing access to regular education peers, curriculum and activities to which he is entitled.
There is no evidence in this record that could support a different result. Yul has a history of effective progress with special education support in the Mary Lyon School. There are no expert evaluations that indicate that this disability is so unique or so severe that it cannot be addressed in a public school setting. 603 CMR.28.06(c).
Indeed the great weight of all the credible evidence in this record supports the conclusion that the highly skilled staff and the comprehensive program at the Mary Lyon School offered Yul the opportunity to make meaningful and effective progress both in the acquisition of discrete skills in his areas of disability and within the general educational program. The parent has not carried her burden of proving otherwise.
III. 2008-2009 IEP
The Team met on June 18, 2008, to develop Yul’s 2008-2009 IEP. The Team had some new information to consider: an occupational therapy evaluation conducted by the Boston Public Schools which found that direct occupational therapy services were not warranted and comprehensive educational assessment/progress reports completed by the Carroll School (P-12, S-13; P-13, S-14). The Carroll School reports detailed Yul’s continued learning challenges in the areas of attention, memory, concentration, fine motor skills, and written and oral communications. The Carroll School recommended that Yul continue to receive extensive, individualized special education in a small classroom setting. Other recommendations included: slow paced instruction, reduced production expectations, highly challenging academic content, extensive use of manipulatives and other hands-on activities, support and instruction in executive functioning skills, and assistive technology for written assignments. Boston proposed an IEP calling for Yul’s placement in a small, self-contained, co-taught 8 th grade class at the Mary Lyon School (P-1, S-5; P-7). The classroom described by Ms. Hanrahan, Mr. Cohan, Ms. Scherr, and Ms. Rooney, all of whom I found to be highly skilled, candid, thoughtful and credible, met the instructional and environmental recommendations of the Carroll School (See ¶ 16). The Parent both rejected the proposed IEP and consented to its implementation (See ¶ 17). Boston held a space in the classroom open for Yul throughout the 2008-2009 school year. Yul continued to attend the Carroll School at parental expense.
I could find no credible evidence in this record to support the Parent’s position that the proposed 2008-2009 IEP provided “less support” than Yul received at the Carroll School. Even were that true, the proposed IEP contains all the services, accommodations and modifications then recommended by expert evaluators and teachers, in a setting both capable of ensuring the delivery of appropriate instruction and less restrictive than an out of district placement. Thus, I find the proposed 2008-2009 IEP to be reasonably calculated to ensure a free, appropriate education to Yul.
After Boston received the draft report of Dr. Meltzer’s independent evaluation at a prehearing conference in October 2008, the Team reconvened to review it. The Team also considered the results of an assistive technology evaluation Boston conducted at the Parent’s request. At the suggestion of Dr. Meltzer, the Team revised Yul’s IEP to include special education in the area of math. The Team also added the specific equipment and services recommended in the assistive technology evaluation (See ¶ 18, 19, 20, 21). There were no recommendations made in the two evaluations considered by the Team that were not either already reflected in the IEP or incorporated into the amended IEP (Compare P-6, S-15 and P-16A, S-12 with P-5B). In her testimony Dr. Meltzer acknowledged that the 2008-2009 IEP addressed the recommendations she made after evaluating Yul and was therefore appropriate for him (¶ 24). There is no credible evidence to the contrary in the hearing record. Therefore I find that Boston appropriately considered the information in the evaluators’ reports it had, and appropriately revised the proposed 2008-2009 to reflect the evaluators’ recommendations. Relying on the highly persuasive testimony of Mr. Cohan, Ms. Hanrahan and Ms. Rooney, I find that the Mary Lyon School could effectively implement all the services, accommodations and modifications outlined in the revised IEP proposed for Yul during the 2008-2009 school year.
Finally the Team met again on March 9, 2009, after Ms. Scherr conducted a speech-language evaluation (See ¶23). As Ms. Scherr did not recommend direct speech-language services for Yul, the Team did not add speech-language services to Yul’s IEP. As there was no recommendation from any source that Yul should receive direct speech-language services, the Team’s decision not to revise the 2008-2009 IEP appropriately and necessarily reflected the evaluative data it had.
Therefore I find that Boston took all appropriate actions to respond to Yul’s documented learning needs, to the Parent’s concerns and requests and to the recommendations of a variety of teachers and evaluators consistent with its substantive and procedural obligations under state and federal special education statutes.
IV. Procedural Violations
The Parent alleged that Boston committed serious procedural violations in the development of the three IEPs at issue here that deprived her of her right to participate meaningfully in drafting the proposed IEPs and resulted in inappropriate services for Yul. There is no evidentiary support for Parent’s assertions. For example, the Parent objected to the lack of a teacher certified in regular education on the Team that developed the 2006-2007 and 2007-2008 IEPs. Ms. Hanrahan, dually certified in regular and special education, served that function for the 2007-2008 Team meeting; Ms. Sweeney, Ms. Rooney, Ms. Martina and Ms. Zettier filled that role for the 2006-2007 Team meeting. The Parent also objected to the lack of a math goal on the 2007-2008 IEP, arguing that the 2006-2007 IEP had contained a math goal and that deleting it without a recommendation to do so was a procedural error. The Parent, however, accepted all the services and goals in the proposed 2007-2008 IEP, and did not raise any concern about a “missing” math goal until this hearing, well beyond the expiration date of that IEP. As Yul did not attend Boston Public Schools during the life of that IEP, and as there is no recommendation in the student record for that service at the time, there is no discernible harm to the Student due to the absence of a math goal on the 2007-2008 IEP6 . The Parent also now asserts that all three IEPs are deficient because the listed goals are not measureable. A review of the IEPs reveals, on the contrary, that the academic goals do contain standards of measurability. Futhermore, I am persuaded by the testimony of Ms. Hanrahan, Mr. Cohan, and Ms. D’Angelo that a student’s IEP is the starting, not the ending, point of developing appropriate and effective instructional strategies and that assessment and goal development is an ongoing responsibility of the classroom teacher. The goals set out on the three IEPs proposed for Yul formed an adequate foundation for the classroom teachers to begin appropriate assessment and instruction (see also testimony of Meltzer). The Parent complained that Boston did not hold two team meetings for each of the three IEPs at issue: one to develop the program and one to propose a placement. Ms. Sweeney explained that both the proposed instructional program and the proposed placement at the Mary Lyon School were discussed at each of Yul’s annual reviews. I credit her testimony, and can find in the record no detrimental effect on the parent’s procedural rights or the student’s substantive educational experience as a result of holding combined meetings and issuing timely IEPs.
While there is some insubstantial evidence of miscommunication and misunderstanding between the Parent and the administrative staff at the Mary Lyon School and/or the central office of the Boston Public Schools, none of Boston’s actions or inactions resulted in a deprivation of the Parent’s right to participate in the Student’s education, or in a denial of a free, appropriate public education for any period of time to Yul. I find the Parent’s assertions to the contrary to be unsupported by the great weight of the documentary and testimonial evidence in this record7 .
On the other hand, over the years at issue in the hearing, Boston Public Schools accommodated most of the Parent’s requests: Teams held in alternate locations (which made it difficult for Mary Lyon teachers to attend); multiple requests for additional evaluations; arranging for Boston evaluations to take place at the Carroll School; provision of assistive technology to the Student for use in a privately funded out of district placement, etc. The record here supports the conclusion that Boston has since 2003, maintained a commitment to meeting Yul’s learning needs, to communicating with and accommodating the Parent, and to fulfilling its duties under 20 USC 1401 et . seq . There is no credible evidence in the hearing record which could support a finding that Boston committed the type of egregious or persistent procedural violation(s) that would have denied a free, appropriate public education to Yul8 . Therefore the Parent’s request for an award of compensatory educational services and reimbursement of out-of-pocket expenses associated with Yul’s unilateral placement at the Carroll School during 2006-2009 is not warranted.
Because of this finding I do not address the appropriateness of the Carroll School placement for Yul. I do note, however, that I found the Carroll School witnesses to be uniformly and sincerely invested in Yul and in their work with him since 2003. The record demonstrates, and the Mary Lyon witnesses agree, that Yul has made consistent, impressive educational progress at the Carroll School and that Carroll has creatively and skillfully addressed Yul’s learning needs in its specialized setting.
The 2006-2007, 2007-2008 and 2008-2009 Individualized Education Plans developed by the Boston Public Schools were reasonably calculated to ensure a free, appropriate public education to Yul in the least restrictive setting. There are no significant procedural violations of any provision of the IDEA 2004 or M.G.L.c. 71B that would justify an award of compensatory education to Yul. The Parent is not entitled to retroactive reimbursement of expenses she incurred as a result of Yul’s unilateral placement at the Carroll School for those three school years.
Date: June 18, 2009
COMMONWEALTH OF MASSACHUSETTS
BUREAU OF SPECIAL EDUCATION APPEALS
EFFECT OF BUREAU DECISION AND RIGHTS OF APPEAL
Effect of the Decision
20 U.S.C. s. 1415(i)(1)(B) requires that a decision of the Bureau of Special Education Appeals be final and subject to no further agency review. Accordingly, the Bureau cannot permit motions to reconsider or to re-open a Bureau decision once it is issued. Bureau decisions are final decisions subject only to judicial review.
Except as set forth below, the final decision of the Bureau must be implemented immediately. Pursuant to M.G.L. c. 30A, s. 14(3), appeal of the decision does not operate as a stay. Rather, a party seeking to stay the decision of the Bureau must obtain such stay from the court having jurisdiction over the party’s appeal.
Under the provisions of 20 U.S.C. s. 1415(j), “unless the State or local education agency and the parents otherwise agree, the child shall remain in the then-current educational placement,” during the pendency of any judicial appeal of the Bureau decision, unless the child is seeking initial admission to a public school, in which case “with the consent of the parents, the child shall be placed in the public school program”. Therefore, where the Bureau has ordered the public school to place the child in a new placement, and the parents or guardian agree with that order, the public school shall immediately implement the placement ordered by the Bureau. School Committee of Burlington, v. Massachusetts Department of Education , 471 U.S. 359 (1985). Otherwise, a party seeking to change the child’s placement during the pendency of judicial proceedings must seek a preliminary injunction ordering such a change in placement from the court having jurisdiction over the appeal. Honig v. Doe , 484 U.S. 305 (1988); Doe v. Brookline , 722 F.2d 910 (1st Cir. 1983).
A party contending that a Bureau of Special Education Appeals decision is not being implemented may file a motion with the Bureau of Special Education Appeals contending that the decision is not being implemented and setting out the areas of non-compliance. The Hearing Officer may convene a hearing at which the scope of the inquiry shall be limited to the facts on the issue of compliance, facts of such a nature as to excuse performance, and facts bearing on a remedy. Upon a finding of non-compliance, the Hearing Officer may fashion appropriate relief, including referral of the matter to the Legal Office of the Department of Education or other office for appropriate enforcement action. 603 CMR 28.08(6)(b).
Rights of Appeal
Any party aggrieved by a decision of the Bureau of Special Education Appeals may file a complaint in the state superior court of competent jurisdiction or in the District Court of the United States for Massachusetts, for review of the Bureau decision. 20 U.S.C. s. 1415(i)(2).
An appeal of a Bureau decision to state superior court or to federal district court must be filed within ninety (90) days from the date of the decision. 20 U.S.C. s. 1415(i)(2)(B).
In order to preserve the confidentiality of the student involved in these proceedings, when an appeal is taken to superior court or to federal district court, the parties are strongly urged to file the complaint without identifying the true name of the parents or the child, and to move that all exhibits, including the transcript of the hearing before the Bureau of Special Education Appeals, be impounded by the court. See Webster Grove School District v. Pulitzer Publishing Company , 898 F.2d 1371 (8th Cir. 1990). If the appealing party does not seek to impound the documents, the Bureau of Special Education Appeals, through the Attorney General’s Office, may move to impound the documents.
Record of the Hearing
The Bureau of Special Education Appeals will provide an electronic verbatim record of the hearing to any party, free of charge, upon receipt of a written request. Pursuant to federal law, upon receipt of a written request from any party, the Bureau of Special Education Appeals will arrange for and provide a certified written transcription of the entire proceedings by a certified court reporter, free of charge.
“Yul” is a pseudonym selected by the Hearing Officer to protect the privacy of the Student in documents available to the public.
This Order also addressed application of the Statute of Limitations to the Parent’s multiple year claims under both the IDEA 2004 and Section 504 of the Rehabilitation Act of 1973. See 15 MSER 100 “2009”.
Carroll school witnesses indicated that they attend Team meetings only for publicly funded students (Gregory).
The signature page contains a request for an independent evaluation. That request was the subject of a BSEA decision: Boston Public Schools, 14 MSER 127 (2008) and is therefore not considered here.
Honig v. Doe, 484 U.S. 305 (1998); Board of Education of Hendrick Hudson Central School District v. Rowley , 458 U.S. 176 (1982); Lenn v. Portland School Committee , 998 F. 2d 1083 (1 st Cir. 1993); 20 USC 1400(d)(1)(A); 20 USC 1412(a)(1)(A); 20 USC 1412(a)(5)(A); G.L.c. 71B, §§ 2, 3; 34 CFR 300.114(a)(2)(i); 603 CMR 28.06(2)(C); 603 CMR 28.05(4); 603 CMR 28.02 (18)
Futhermore, parents are required to register concerns they may have about a student’s IEP during the “life” of the IEP. Chris A. v. Stow Public Schools , 16 EHLR 1304 (MA 1990) affirmed on appeal, Amman v. Stow School System , 982 F. 2d 644 (1992 ); In Re: Hampden-Wilbraham , 14 MSER 291 (Oliver, 2008).
Similarly I do not credit testimony of Donna Sullivan which I found to lack traditional indices of reliability.
20 U.S.C. (f)(3)(E)(2)(ii) as amended in 2004; Murphy v. Timberlane , 22 F 3d 1186 (1 st Cir 1994); Pihl v. Mass Dept. of Education , 9 F. 3d 184 (1 st Cir 1993); Roland M. v. Concord School Committee , 910 F.2d 983 (1 st Cir. 1990).