Special Education Appeals BSEA #00-0265
In re: Billerica Public Schools BSEA #00-0265
RULING ON MOTHER’S MOTION TO ORDER STAY-PUT SERVICES PENDING RESOLUTION OF THE CASE
This interim decision is rendered pursuant to 20 USC 1400 et seq. (Individuals with Disabilities Education Act), 29 USC 794 (Section 504 of the Rehabilitation Act), MGL chs. 30A (state administrative procedure act) and 71B (state special education law), and the regulations promulgated under said statutes. By agreement of the parties, the decision is based solely on the Parents’ documentary evidence submitted1 along with the Motion to Order Stay-Put Services. Billerica objected to the record’s inclusion of Parents’ exhibits 1-3, 4, 5, 7-9, 13, 21, 24-25, 27, 31-33, 36-38, 42, 44-45, 52-55, and 58 – 78 on the grounds that they are irrelevant to the issue at hand. Billerica’s objections are noted, and the following documents are excluded from the evidentiary record, as they are irrelevant to the matter at hand: exhibits 1-3, 4, 5, 13, 33, 44-45, 52-55, and 58-78. All remaining documents are hereby entered into the record. It is noted that some of these documents are not directly relevant to the issue of stay-put services, but rather, offer context, and are therefore appropriately part of the record. Exhibit 1, although not admitted into the evidentiary record, is in essence, Mother’s Motion to Order Stay-Put Services, and is therefore accepted as such.
This case initially came before the Bureau in Sept of 1999, when the mother of Student, (hereafter, Mother) appealed Billerica Public School’s (hereafter, Billerica) TEAM finding of no special needs. Mother requested an immediate convening of the TEAM and the development of an IEP. By January of 2000, the parties were able to agree, in part, on a 502.2 prototype IEP. Despite these services, Student was having great difficulties. Pursuant to numerous pre-hearings, phone conferences, etc, in September of 2000, Billerica placed Student in the Arlington School’s therapeutic educational program, first, under a diagnostic 502.9 prototype IEP, and then under 502.5 prototype IEPs. Mother accepted the Arlington School placements, but rejected the IEPs’ omission of certain academic services. At the request of the parties, the BSEA hearing has been postponed several times in order to seek in-depth evaluations and to address all of the issues at one TEAM meeting.
Mother asserts that Student is entitled to the services stated in the January 2000 IEP, that she repeatedly informed Billerica of her intent to maintain her daughter’s right to the stay-put services, and that they have not been provided.
Billerica asserts that the services detailed in the January 2000 IEP are not determinative of her stay-put rights. The subsequent acceptance of the Arlington School placement, a comprehensive and therapeutic day school, renders the specific special education services provided in the context of a regular education program, inapplicable. The January 2000 IEP services are designed to enable Student to progress in the regular education setting, whereas the Arlington School provides the more intensive, small class learning throughout the day. Further, the July 2000 Settlement Agreement supersedes the IEP for stay-put purposes, for Mother was represented by counsel, and knowingly agreed to the tutorial services three (3) times per week. Billerica in fact agrees to continue providing those tutorial services until there is a resolution of the disputed IEP.
STATEMENT OF FACTS
1. By mid-year of Student’s 7thgrade, the parties achieved a partially agreed upon January 21, 2000 IEP. It called for 502.2 prototype services at Billerica’s Marshall Middle School. In sum, the IEP called for daily tutoring in decoding and encoding, weekly tutoring in penmanship and oral/written expression, directed study class three times per week including work on written expression, and weekly sessions with the social worker. On February 18, 2000, Mother accepted the IEP but rejected certain portions, stating that the plan needs better a) performance and instructional profiles, b) goals, objectives and modifications, c) daily emotional/organizational support; d) disrupted attendance plan, and d) teacher training. (P-41) She further elaborated on March 10, 2000, stating among other things, that the instructional profile needed to include further accommodations to address her organizational deficits, that the goals and objectives should address her metacognitive difficulties, that the goals and objectives should be better measurable. (P-39)
2. Despite the provision of special education services, Student’s anxiety and sleep disorders interfered with her ability to attend school. On March 20, 2000, her psychiatrist called for a more comprehensive plan addressing her learning problems as well as her anxiety. (P-38) In April, Ms. Grodzinsky, pediatric neuropsychologist, conducted a neuropsychological assessment, and reported her urgent concern regarding Student’s emotional health. Further, she opined that Student’s refusal to provide a writing sample was driven not by a language based disability, but rather by her “rigid intellectual style, her anxiety, and her willful temperament.” She recommended that any placement “should be sensitive and supportive of Student’s inefficiencies regarding written output.” (P-36) Her recommendations included a process approach to writing, and a safety net to prevent her from continually falling behind in her work.
3. While attempting to locate a therapeutic day program, Mother requested summer of 2000 tutoring focusing on remediating gaps and on improving her expressive writing skills – two to three hours weekly. (P-28)
4. On July 27, 2000, Billerica and Parents signed a BSEA Interim Settlement Agreement, stating that Billerica would a) place Student at the Arlington School for a diagnostic period under a 502.9 prototype; b) provide an expressive written language tutorial at least three (3) hours / week, “provided by a certified special education teacher aka learning disabilities specialist and [incorporating] the recommendations of [Student’s] recent evaluations”; c) address diagnostic questions including the need for tutoring services in addition to the tutorial described in #2, and d) provide the services necessary to remediate gaps in Student’s learning. (P-23, 26) In early September of 2000, Billerica issued the diagnostic IEP calling for academic/therapeutic programming at the Arlington School and the tutoring at the Billerica Public Library three (3) hours / week. (P-23)
5. On September 11, 2000, Mother signed consent for this diagnostic evaluation at the Arlington School, making it clear that she was not giving up the stay-put rights to services specified in the 1/21/2000 IEP. (P-22) She stated:
[My daughter] has extensive and complex medical and educational issues which require continued evaluation and treatment. … This IEP diagnostic process is not beginning with a “blank slate”. … I give permission for [my daughter] to be further evaluated at the Arlington School. I understand and agree that The Arlington School is not able to implement all of the services as specified to address the needs already documented in her existing IEP. I do not agree however to forfeit my daughter’s right to receive these recommended services beyond the duration of the diagnostic evaluation period.” (P-22)
The tutoring was in fact provided three (3) hours per week, but was decreased to two (2) hours/week, and then ended on January 18, 2001 after the tutor resigned and Billerica was unable to replace her. (P-15, P-17)
6. After the diagnostic period at the Arlington School, on December 21, 2000, Billerica developed a 9/06/00 to 6/30/01 IEP calling for the Arlington School placement, but it provided for no tutorial services for expressive written language, as requested by Mother. (P-19) On January 5, 2001, Parents responded to the proposed IEP, making it clear that they objected to the discontinuance of the tutoring set up in the BSEA Interim Settlement Agreement. (P-18) Finally, on April 11, 2001, Mother accepted this IEP’s Arlington School placement, and again rejected, among other things, its lack of tutorial or remediation services called for in the BSEA Settlement Agreement. She also objected to the TEAM process that included no teacher, written language specialist, school psychologist, counselor, or nurse. She requested a TEAM meeting including the teachers, etc.. She requested that the “previously accepted” services be implemented, pending resolution of the matter. During this 2000 – 2001 school year, Billerica continued to provide the tutoring 2 – 3 hours weekly until early January. (P-15, P-19)
7. On May 15, 2001, Billerica responded to its recognition that it had failed to provide the tutoring subsequent to the tutor’s resignation in January of 2001; it offered to provide those missed services for the 2000 – 2001 school year on a compensatory basis. Further, Billerica stated that the issue of any continued need for such written language services would be addressed through the planned assessment and TEAM process. (P-11, P-12) This offer was memorialized on June 14, 2001, in a second BSEA Interim Settlement Agreement that called for 60 50-minute tutoring sessions at Lesley College. This agreement appears to assume that the three hours per week diagnostic tutorial became the stay-put service for the remainder of the 2000 – 2001 school year. The agreement also called for an educational assessment at Lesley College, as well as for reimbursement of past educational expenses. By signing this agreement, Mother waived rights to any and all claims regarding “compensatory services and/or other reimbursement for monetary claims and/or damages from the date of her enrollment in Billerica to date.” (P-10) The next day, Ms. Bronfman, Student’s psychologist at Children’s Hospital, wrote Ms. Jenkins, recommending that a more successful tutoring experience calls for careful choosing of a tutor, and optimally calls for the tutoring to be provided at the Arlington School, where Student has a good working alliance with familiar trusted adults. (P-9)
8. In September of 2001, Jerome Schultz from the Learning Lab at Lesley College, conducted a neuropsychological evaluation and provided an indepth report. In sum, he confirmed “the presence of mild, but insidious learning difficulties which co-exist with and are exacerbated by emotional difficulties.” Without further information about her previous education, he could not determine whether her constellation of relative weaknesses constitutes a learning disability, is the result of the lack of appropriate instruction, or is the consequence of time away from formal instruction. Accordingly, he recommended a diagnostic IEP, consultation to her current teachers, and monitoring of Student’s reaction to the interventions. He recommended a curriculum based assessment, as well as the NetWorks for Success Program. Finally, among other things, he recommended 1:1 instruction in writing, and an Occupational Therapy evaluation addressing the fine-motor and motor planning skills required for effective writing. (P-8) Billerica provided an Occupational Therapy evaluation in November of 2001. The resulting recommendations addressed the necessary accommodations to encourage proper hand position for writing, as well as a review of cursive handwriting. (P-7)
9. On November 26, 2001, Billerica’s TEAM reconvened and issued an 11/26/01 to 6/30/02 IEP again calling for the Arlington School placement and providing for no tutorials. On January 17, 2002, Mother again accepted the Arlington School placement, but rejected, among other things, the lack of intensive intervention in expressive written language. (P-5X)
FINDINGS AND CONCLUSIONS
The stay-put services, pending the resolution of this case, is dictated by the September of 2000 diagnostic IEP calling for three (3) hours / week tutoring, and is not dictated by the January 2000 IEP. Although the September IEP is intended to be diagnostic, with no stay-put rights attached to it,4 the totality of the evidence supports a finding that the tutoring agreed to in that IEP, not the more extensive tutoring previously agreed to, is the service that should be provided pending the resolution to this case. My reasoning follows.
The stay-put rights are protected under federal and state law, in the interest of providing a child with consistency in his/her educational programming; no changes in programming occur unless and until there is a final determination. The law states:
In accordance with state and federal law, during the pendency of any dispute regarding placement or services, the eligible student shall remain in his or her then current education program and placement unless the parents and the school district agree otherwise. 603 CMR 28.08(7)
In this case, Student had been attending the Billerica’s Middle School and receiving daily as well as weekly tutoring pursuant to the accepted 502.2 prototype January 21, 2000 IEP. Student transferred to the Arlington School in order to attend a therapeutic educational program (first under a diagnostic IEP, then under a 502.5 prototype IEP). It is true that although Mother accepted this move to the Arlington School, and agreed to tutoring three hours / week during the diagnostic period, she did not at that time agree to terminate the intensive language services beyond the diagnostic period. (P-22) If this were the totality of the evidence, one could conclude that at the end of the diagnostic period, the previously provided daily and weekly tutoring must resume. However, significant time has transpired, the parties have negotiated several agreements since the implementation of the January 2000 IEP, and the relevance of special education services in a regular education program is in question. Throughout Student’s stay at the Arlington School, she has been receiving the two – three hours weekly tutoring5, not the daily and weekly tutoring. By virtue of a) Mother’s frequent request for the continuation of the 3 hours weekly tutoring, b) the absence of requests specifically for the daily and weekly tutoring, particularly during the BSEA proceedings, c) the fact that Student has for a year received the 2-3 hours weekly tutoring, I am persuaded that the parties have agreed to such services instead of the more intensive stay-put services. I am cognizant of Mother’s repeated statements maintaining her stay-put rights, and even requests for implementation of previously agreed upon services. These requests were vague in nature and never specifically requested the daily and weekly tutoring. Given the extensive requests for the 3 hours weekly tutoring, Mother is unpersuasive that this more vague request for the previously agreed upon services should be given much weight.
In accordance with the state and federal law’s mandate that “the eligible student shall remain in his or her then current education program and placement unless the parents and the school district agree otherwise ”6, I find that the parties have agreed otherwise. Billerica shall provide the 2-3 hours weekly tutoring pending the resolution of this case.
By the Hearing Officer,
Sandra W. Sherwood
Date: May 2, 2002
Mother submitted 78 documents.
As part of the June 14, 2001 Interim Settlement Agreement, Mother waived rights to any claims prior to June 14, 2001. (P-10)
On March 13, 2002, Mother filed with the Bureau a March 6, 2002 letter to the Hearing Officer that is, in essence, a Motion to Order Stay-Put Services.
See 603 CMR 28.05(2)(b)(5).
It is recognized that some of those tutoring sessions were provided during the summer rather than during the school year.
603 CMR 28.08(7)