Tantasqua Regional School District and Union 61 School Districts – BSEA # 11-8641
COMMONWEALTH OF MASSACHUSETTS
Division of Administrative Law Appeals
Bureau of Special Education Appeals
In Re: Tantasqua Regional and Union 61 School Districts
BSEA # 11-8641
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 August 29, 2011 in Worcester, MA before William Crane, Hearing Officer. Those present for all or part of the proceedings were:
Judy Sampson Special Education Teacher, Southern Worcester Educational Collaborative
Kathryn Mullen Special Education Teacher, Tantasqua Regional and Union 61 School Districts
Kristen Bianchi Board Certified Behavior Analyst, Tantasqua Regional and Union 61 School Districts
Brenda Looney Special Education Director, Tantasqua Regional and Union 61 School Districts
Mary Ellen Sowyrda Attorney for Tantasqua Regional and Union 61 School Districts
The official record of the hearing consists of documents submitted by Tantasqua Regional and Union 61 School Districts (Tantasqua) and marked as exhibits S-1 through S-50; and approximately four hours of recorded oral testimony and argument.1 As agreed by the parties, oral closing arguments were made at the end of the hearing on August 29, 2011, and the record closed on that date.
Tantasqua filed the hearing request for purposes of changing Student’s placement from the Southern Worcester Education Collaborative (Collaborative), which he has attended for several years, to Tantasqua’s Pathways program (Pathways). Each placement is a substantially-separate program designed to serve children with Student’s educational profile, which includes a diagnosis of Down’s syndrome.
Parents take the position that the Collaborative is appropriate for their son, that a change of placement may result in increased behavioral difficulties, and that he should be allowed to continue his education at the Collaborative. Tantasqua takes the position that its Pathways program offers a somewhat less restrictive placement for Student and will provide greater opportunities for pre-vocational education, community involvement and socialization.
For reasons explained below, I find that the Pathways program is an appropriate and less restrictive program for Student.
The issues to be decided in this case are the following:
1. Is the IEP most recently proposed by Tantasqua reasonably calculated to provide Student with a free appropriate public education in the least restrictive environment?
2. If not, what additions or other modifications should be made to the IEP in order to satisfy this standard?
Student is a twelve-year-old, 7 th grader who lives with his Parents in Holland, MA. Holland is within the Tantasqua Regional School District. Testimony of Sampson; exhibit S-2.
Student is friendly, seeks out adult attention, and is becoming more outgoing. He demonstrates the ability to interact well with adults and is beginning to interact with his peers. He shows empathy and concern for others. He enjoys vocational tasks, particularly those with a simple, repetitive sequence or where he is able to actively move around and complete steps of the job. Testimony of Sampson; exhibits S-2, S-30, S-34, S-35, S-38, S-39.
Student has a diagnosis of Down’s syndrome and global developmental delay. His functional level is at 4.2 years. He is able to verbally express wants and needs at a basic level. He is able to attend to group activities for up to 10 to 15 minutes, depending on the activity or subject matter. His strengths are in self-help skills, math readiness, and social interaction interest. His weaknesses are in the areas of fine motor, reading skills, writing skills, and language skills. Testimony of Sampson; exhibits S-2, S-30, S-34, S-35, S-38, S-39.
Tantasqua’s currently-proposed IEP calls for Student to receive all of his education within a substantially-separate program. In addition, Student is to be assigned a full-time 1:1 aide. Student’s related services are speech-language (30 minutes, three times per week), occupational therapy or OT (30 minutes, twice per week), physical therapy or PT (30 minutes, twice per week), music therapy (30 minutes, once per week), and adapted physical therapy (45 minutes, once per week). The IEP also calls for extended year services for five weeks, during which speech-language, OT, and PT are provided. Consultation services for 15 minutes per week in each of the following areas: speech-language, OT, and PT. The IEP covers the period from 4/11/11 to 4/10/12. Exhibit S-2.
The IEP also calls for a change in placement for the 2011-2012 school year. Student has been attending the Collaborative, and the IEP calls for Student to attend Pathways for the 2011-2012 school year. Parents have not accepted the IEP and have made clear their objection to the proposed change in placement. Testimony of Looney; exhibit S-2.
Tantasqua has recently offered to continue Student’s current, private after-school program (Center of Hope), rather than proposing that Student attend Tantasqua’s after-school program. Tantasqua believes that in light of Student’s likely change in school programs, it would be best for Student to have continuity in his after-school program. Testimony of Looney; exhibit S-49.
Currently and for the past three years, Student has attended (and has been taught by Ms. Sampson at) the Dawning program, which is part of the Collaborative and which is located at the Wire Village Elementary School in Spencer, MA. When Student began at this program in 2007, he had very little expressive language, often made a “droning” sound, had one-word responses, was not able to sit in a chair or focus his attention, and had significant behavioral difficulties. Student’s behaviors include physical aggression towards others and destruction of property. Testimony of Sampson; exhibits S-9, S-10, S-11, S-12, S-14, S-16, S-17.
Through consultation from the May Institute and then assistance from Tantasqua’s Board Certified Behavior Analyst (BCBA) (Kristen Bianchi), a behavior plan was developed and implemented, with the result that Student’s aberrant behaviors have almost completely extinguished, and there is currently no aggression or destruction of property. Student’s remaining behavior difficulties involve an occasional refusal to participate (and shutting down), but Student can often be re-directed. Testimony of Sampson, Bianchi; exhibits S-31, S-32.
Over the course of the past three years, Student has made noteworthy progress in his self-help skills (for example, toileting, dressing), social interactions, expressive language, and ability to focus and attend to tasks. He has also been successful (and demonstrated substantial interest) in certain vocational tasks, particularly those with a simple, repetitive sequence. However, he has made minimal progress and demonstrated only slight improvements in his academic skills, with the result that he continues to struggle with math and reading. Testimony of Sampson; exhibits S-9, S-10, S-11, S-12, S-14, S-16, S-17.
Currently, Student’s program at the Collaborative includes six children, ages from 5 to 12, who have a wide range of functional abilities (from one year to seven years) and a range of disabilities that includes Down’s syndrome, autism, cerebral palsy, blindness, and behavioral deficits. The program is designed to teach pre-academic skills, vocational skills, social skills, language, activities of daily living, and fine motor skills. The program is staffed with one teacher and five aides, including a 1:1 aide for Student. Testimony of Sampson.
Over the course of two IEP Team meetings during the winter and spring of 2011, Tantasqua proposed that Student’s placement be changed for the 2011-2012 school year so that he would attend the Pathways program, which is located within a Tantasqua junior high school. Parents sought continuation of their son’s education at the Collaborative, where they believe that he has been, and would continue to be, appropriately educated. If Student were to continue at the Collaborative for the 2011-2012 school year, he would continue to have Ms. Sampson as his teacher in the Dawning Program. Testimony of Sampson; exhibits S-2, S-4, S-5, S-6.
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)2 and the Massachusetts special education statute.3
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.”4 FAPE must be provided in the least restrictive environment.5 Numerous courts have recognized that Congress created a strong preference in favor of a student being included within regular education classes or activities to the extent possible, often with modifications, supplemental services or supports.6
Student’s right to FAPE is assured through the development and implementation of an individualized education program or IEP.7 Each IEP must be “custom tailored to address the handicapped child’s unique needs in a way reasonably calculated to enable the child to receive educational benefits.”8
FAPE requires that the IEP be “reasonably calculated to enable the child to receive educational benefits.”9 And, “meaningful progress … is the hallmark of educational benefit under the [federal] statute.”10 Federal case law clarifies that “levels of progress must be judged with respect to the potential of the particular child”11 because “ benefits obtainable by children at one end of the spectrum will differ dramatically from those obtainable by children at the other end, with infinite variations in between ”.12 Thus, in sum, the “IDEA requires an IEP to confer a meaningful educational benefit gauged in relation to the potential of the child at issue.”13
At the same time, FAPE does not require Tantasqua to provide special education and related services that will maximize Student’s educational potential.14 Similarly, the educational services need not be “the only appropriate choice, or the choice of certain selected experts, or the child’s parents’ first choice, or even the best choice.”15
In the instant dispute, Tantasqua is the moving party (seeking to change the location of services) and has the burden of persuasion that its proposed IEP is appropriate.16
Tantasqua’s proposed IEP, which covers the period April 11, 2011 to April 10, 2012, would continue the same services from the spring of last school year into the next school year, but would change Student’s placement for the 2011-2012 school year. Parents made clear their satisfaction with the educational services that have been provided their son and their desire that he continue to receive the services that he has been receiving at the Collaborative. Parents’ objection is to the proposed change of placement, from the Collaborative to Pathways.
It is understandable that Parents would like their son to continue at the Collaborative for another year with the program’s special education teacher, Ms. Sampson. It was evident from her testimony that Ms. Sampson is a highly experienced teacher who is devoted to Student. After teaching him for three years, Ms. Sampson understands well how to work effectively with Student, has provided educational services that have allowed Student to make notable progress in a number of areas, and is appropriately credited with successful implementation of Student’s behavior plan. Testimony of Sampson.
However, as the above-explained legal standards make clear, Tantasqua has the authority to determine Student’s placement so long as that placement can appropriately meet Student’s educational needs in the least restrictive environment. For purposes of the instant Decision, I therefore focus on the appropriateness (and relative restrictiveness) of the Pathways placement, including its ability to deliver the educational services that are reflected in the proposed IEP and that Student has been receiving at the Collaborative.
In judging the appropriateness of Pathways, it is relevant to note, at the outset, Pathways’ similarity to the program that Student has been attending for three years at the Collaborative. Both the Pathways and the Dawning (Student’s program at the Collaborative) are substantially-separate programs, utilize a small classroom that is intensively staffed (at Pathways there would be one teacher and five aides for seven children, including Student’s 1:1 aide), and have been established to address the needs of a child with Student’s educational profile. Both programs are designed to teach pre-academic and academic skills (with a focus on functional and practical skills), vocational skills, language, social skills, activities of daily living (including use of the bathroom), and fine motor skills (including dressing, eating); both are prepared to address behavioral deficits of students in the classroom as necessary; both provide opportunities, as appropriate, to interact with typical peers (for example, during lunch); and neither includes children with behaviors that would be disruptive to Student’s learning. The testimony also made clear that both programs have been carefully developed and structured for their intended purposes, and that each is led by an engaged and committed teacher who is experienced in working with children with Student’s profile. After having spoken with Tantasqua staff and listening to the testimony regarding Pathways (including that of the classroom teacher), Student’s teacher at the Collaborative (Ms. Sampson) testified persuasively that the programs are very similar. Testimony of Sampson, Mullen; exhibit S-3.
In addition to the similarities of the programs, Student’s behavior consultant (Ms. Bianchi) at the Collaborative would continue to work with Student and his teacher and aide at Pathways. Ms. Bianchi has worked with Student over the past one and one-half years, adjusting his behavior plan and guiding its implementation at the Collaborative. She would continue in an identical role with Student at Pathways. Testimony of Bianchi.17
Notwithstanding the similarity of (and continuity of services between) the Collaborative and Pathways, there are important differences, all of which make Pathways better suited to meet Student’s needs.
First, the students attending Pathways would include seven children (including Student) with an age range of 12 to 13 years old, as compared to the Collaborative where there are six children (including Student), with a range of ages from 5 to 12. In addition, the children attending Pathways have functional abilities in a range from three years to eight years, as compared to the Collaborative where the children have functional abilities in a range from one year to seven years. Student is 12 years old, with functional abilities at the level of 4.2 years. Thus, there is a better age and functional grouping for Student at Pathways. Testimony of Sampson, Mullen.
Second, Pathways is located within a Tantasqua junior high school, as compared to the Collaborative which is located within an elementary school in another school district. Thus, Pathways provides a local school setting where there will likely be greater opportunity for contact with typical peers who are Student’s age. It is not disputed that it will be important to continue to develop Student’s social skills through greater involvement with both his special education peers and his typical peers. Student’s increased interest in social interactions with his peers indicates that he will likely benefit from increased opportunities to interact with typical peers. Testimony of Sampson, Mullen.
Third, Pathways, as compared to the Collaborative, offers greater opportunities for vocational learning (for example, Pathways has access to a kitchen) and for community experiences (Pathways has the use of a van to travel into the community). Vocational learning is an area of interest for Student and should be an increasingly greater focus of Student’s programming. Student will also likely benefit from greater involvement in the community. Testimony of Sampson, Mullen.
Parents provided no evidence rebutting the appropriateness of Pathways as a placement for their son. However, they did, appropriately, express concern that with a change in placement and staffing, Student’s behavior, which has been so well addressed at the Collaborative, may become worse. It is not disputed that transitions are not a strength for Student. Ms. Sampson testified that this was her only potential concern regarding the Pathways placement. Testimony of Sampson.
Yet, the evidence was persuasive that Student transitioned successfully, with minimum behavioral concerns, into a summer program this year that involved a location and staff different than his Dawning program at the Collaborative. The continuity of Ms. Bianchi as Student’s behavioral consultant ensures that Tantasqua will be able to continue to utilize and adjust as needed Student’s behavioral plan which has been successful in the past. Ms. Mullen, Student’s teacher at Pathways, has substantial experience addressing behavioral issues similar to those that Student has evidenced. Inevitably, there may be difficulties around Student’s transition into Pathways, but there is no evidence that would support a conclusion that these difficulties will either be substantial or long-lasting. Testimony of Bianchi, Mullen.
In sum, it is not disputed that Student made meaningful progress commensurate with his educational potential while attending the Collaborative for the past three years. The evidence is persuasive that placement at Pathways would likely offer Student the opportunity to continue to make meaningful progress commensurate with his potential because Pathways, although similar to the Collaborative in its basic structure, staffing and purpose, offers several noteworthy advantages to Student, as discussed above.
For these reasons, I find that Tantasqua’s proposed placement at Pathways is appropriate and that it is less restrictive than Student’s placement at the Collaborative. Accordingly, I find Tantasqua’s proposed IEP to be appropriate.
The IEP most recently proposed by Tantasqua is reasonably calculated to provide Student with a free appropriate public education in the least restrictive environment
By the Hearing Officer,
Dated: September 1, 2011
COMMONWEALTH OF MASSACHUSETTS
Division of Administrative Law Appeals
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.
Parents did not submit any exhibits, did not testify, and did not present any witnesses. Parents participated in the hearing by asking questions of Tantasqua’s witnesses and making a closing argument.
20 USC 1400 et seq .
MGL c. 71B.
20 USC § 1400(d)(1)(A).
20 USC § 1412(a)(5).
See, e.g., Oberti v. Board of Education , 995 F.2d 1204 (3 rd Cir. 1993); DeVries v. Fairfax County School Board , 882 F2d 876, 878 (4 th Cir. 1989 ); Daniel R.R. v. State Board of Education , 874 F.2d 1036, 1044 (5 th Cir. 1989). See also Rafferty v. Cranston Public School Committee , 315 F.3d 21, 26 (1 st Cir. 2002) ( “Mainstreaming may not be ignored, even to fulfill substantive educational criteria.”), quoting Roland v. Concord School Committee , 910 F.2d 983, 992-993 (1 st Cir. 1990).
20 USC 1414(d)(1)(A)(i)(I)-(III).
Lenn v. Portland Sch. Comm., 998 F.2d 1083, 1086 (1 st Cir.1993) (internal quotations and citations omitted). See also Lessard v. Wilton Lyndeborough Cooperative School Dist. , 518 F.3d 18, 23 (1 st Cir. 2008) (noting the school district’s “ obligation to devise a custom-tailored IEP”).
Bd. of Educ. of the Hendrick Tantasqua Central Sch. Dist. v. Rowley, 458 U.S. 176, 207 (1982), quoted in Lessard v. Wilton-Lyndeborough Coop. School Dist . , 518 F.3d 18, 27 (1 st Cir. 2008) (1 st Cir. 2010) .
DB v. Sutton, 07-cv-40191-FDS (D.Mass. 2009). See also Houston Independent School Dist. v. VP , 2009 WL 1080639 (5 th Cir. 2009)
standard, concluding that IEP must be reasonably calculated to provide “meaningful educational benefit”
); Lauren P. v. Wissahickon School Dist. , 2009 WL 382529 (3 rd Cir. 2009)
IEP must confer “significant learning” and “meaningful benefit” on student); 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); L.E. v. Ramsey Bd. of Educ ., 435 F.3d 384, 395 (3d Cir. 2006), citing T.R. ex rel. N.R. v. Kingwood Twp. Bd. of Educ ., 205 F.3d 572, 577 (3d Cir. 2000) (phrase “some educational benefit”, as utilized by Supreme Court in Rowley , requires provision of a “meaningful educational benefit”); 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); Hunt v. Bureau of Special Education Appeals , 109 LRP 55771, CA No. 08-10790-RGS (D.Mass. 2009) (“ School districts provide a FAPE by designing and implementing an IEP ‘reasonably calculated’ to insure that the child receives meaningful ‘educational benefits’ consistent with the child’s learning potential” citing Rowley ).
Lessard , 518 F.3d at 29 .
Rowley , 458 U.S. at 202.
Deal v. Hamilton County Board of Education, 392 F.3d 840, 862 (6 th Cir. 2004) (internal quotations and citation omitted).
Rowley, 458 U.S. at 197, n.21 (“ Whatever Congress meant by an “appropriate” education, it is clear that it did not mean a potential-maximizing education.”).
G.D. v. Westmoreland Sch. Dist., 930 F.2d 942, 948 (1 st Cir. 1991). See also Lt. T.B. ex rel. N.B. v. Warwick Sch. Com., 361 F.3d 80, 83 (1 st 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.”).
Schaffer v. Weast , 546 U.S. 49, 62 (2005) (burden of persuasion in an administrative hearing challenging an IEP is placed upon the party seeking relief; a party who has the burden of persuasion “ loses if the evidence is closely balanced” ).
Ms. Bianchi will be on maternity leave for six or eight weeks, beginning approximately in the middle of September. This will make her unavailable for in-person consultation, but she will be available by telephone. Testimony of Bianchi.