COMMONWEALTH OF MASSACHUSETTS
BUREAU OF SPECIAL EDUCATION APPEALS
In Re: Weymouth Public Schools
BSEA # 09-1335
RULING REGARDING PARENT OBSERVATION
A. Introduction
The purpose of this Ruling is to determine the parameters of Parent’s request to observe her daughter’s current educational program.
By letter dated February 2, 2009, Parent requested that the Bureau of Special Education Appeals (hereinafter, “BSEA”) order the Weymouth Public Schools (hereinafter, “Weymouth”) to allow her to observe her daughter’s educational program. Following a conference call with the parties during which this issue was discussed, Parent filed a letter dated February 11, 2009, setting forth in detail her request for observation. On February 13, 2009, Weymouth filed its opposition, which consisted of two affidavits—one from the principal and the other from Student’s autism specialist. Parent’s request was the subject of a telephonic motion hearing on February 17, 2009.
The parties have scheduled hearing dates of April 7 and 8, 2009 to address the merits of Parent’s hearing request. The hearing request disputes the appropriateness of Weymouth’s current special education and related services, and seeks a small, highly-structured language-based classroom.
Parent, who is pro se , explained during the motion hearing that she intends to conduct an observation of her daughter’s program without an additional observation by a consultant unless it becomes apparent to Parent (after beginning the observation process) that observation by a consultant is necessary. Parent further explained that at that point in time, she would discontinue her own observation and hire a consultant for this purpose.
B. Facts
The following facts are derived from unrebutted information provided by Parent (for example, through her hearing requests and letters), unrebutted information provided by Weymouth (for example, through an affidavit, and an agreement between the parties), and Student’s IEP pursuant to which she is currently receiving special education and related services.
Student attends the 2 nd grade at Weymouth’s Nash School. Student carries a diagnosis of PDD-NOS. Her IEP indicates that Student has weaknesses regarding motor skills, language, attention, and social skills.
The IEP provides the following explanation of how her disability affects her progress in the curriculum areas:
[Student’s] disability affects all areas of development including classroom attending and participation. Her difficulty understanding and using language impacts her ability to access the curriculum and participate in classroom activities. [Student] can be distracted and have difficulty attending to classroom activities and instruction given. Although, [sic] her inappropriate behaviors are more subtle, they interfere with learning and demonstrating skills.
The IEP further indicates that her disability affects all areas of the curriculum, including art, music, and physical education, and all academic subjects. The IEP also notes Student’s inappropriate behaviors, which can interfere with her ability to engage in interactions with adults and peers.
Student attends a variety of classes and participates in a variety of activities and therapies during the school day, including occupational therapy, physical therapy, communication instruction from a speech-language therapist, art class, music class, recess period, lunch, a resource room, and a classroom in the morning and a classroom in the afternoon. These educational services at school are provided by eight different people each week. One of the service providers is Weymouth’s autism specialist who provides direct services to Student for two hours per week. At all times during the school day, Student is accompanied by a Weymouth staff person who is dedicated to working only with Student. Student also receives home-based ABA services.
Parent is highly engaged with her daughter’s education, including implementation of strategies within the home that complement instruction and approaches utilized during the school day.
C. Statutory Framework
For many years, parents have had the right to observe any program proposed for their son or daughter.1 Recently, MGL c. 71B, s. 3 was amended by chapter 363 of the acts of 2008 to include the following additional, specific provisions relevant to a parent’s right to observe his or her child’s educational program:
To insure that parents can participate fully and effectively with school personnel in the consideration and development of appropriate educational programs for their child, a school committee shall, upon request by parents, provide timely access to parents and/or parent-designated independent evaluators and educational consultants for observations of a child’s current program and/or of any program proposed for the child, including both academic and nonacademic aspects of any such program. Parents and/or their designees shall be afforded access of sufficient duration and extent to enable them to evaluate the child’s performance in a current program and/or the ability of a proposed program to enable the child to make effective progress. School committees shall impose no conditions or restrictions on such observations that are not necessary to ensure the safety of children in a program or the integrity of the program while under observation or to protect children in the program from disclosure by an observer of confidential and personally identifiable information in the event such information is obtained in the course of an observation.
During the motion hearing, Weymouth urged me to be guided by Technical Assistance Advisory SPED 2009-2: Observation of Education Programs by Parents and Their Designees for Evaluation Purposes (hereinafter, “ Advisory SPED 2009-2” ).2 Parent may have not been aware of Advisory SPED 2009-2 , but in any event, she did not object to Weymouth’s request that I be guided by it.
Advisory SPED 2009-2 was issued on January 8, 2009 by the State Director of Special Education (Marcia Mittnacht) for the purpose of providing guidance regarding this new law.3 I am aware of no administrative or judicial decisions interpreting this law. Advisory SPED 2009-2 , which was developed after a process of consultation with various stakeholders, appears to provide a balanced and thoughtful discussion of the law that is consistent with the statutory language.
In my discussion of the law in the instant Ruling, I will refer to Advisory SPED 2009-2 for guidance, particularly where the meaning or implications of the law are not self-evident.
D. Discussion
The above-quoted statute, read together with Advisory SPED 2009-2 , may be understood as follows where the observation pertains to a current educational program (the statute varies slightly when the focus of the observation is a proposed educational program).
A school district is to provide a parent with an opportunity to evaluate fully the student’s educational program, including student’s performance in that program.4 An observation may include evaluation of both academic and nonacademic aspects of the student’s educational program,5 and a school district may not impose arbitrary limitations—for example, limiting the observation to certain, specific classes or activities—that would preclude a full evaluation.6 The complexity of the student’s needs, as well as the programs to be observed determine the scope of the observation.7 The end result must be that the observation will be sufficient for the purpose of the parent’s being able to participate fully and effectively with school personnel in determining the student’s appropriate educational program.8
A school district may impose limitations on a parent’s otherwise appropriate observation in only the following three respects: (1) to ensure the safety of students in the program, (2) to ensure the integrity of the program while under observation, and (3) to protect the students in the program from disclosure of confidential and personally identifiable information.9
The statute explicitly requires the school district to schedule the observation so as to provide “timely access” to the parent.10 At the same time, the expectation is that the parent and school district will plan together the logistical aspects of the observation over a reasonable period of time.11
I now turn to the instant dispute between Parent and Weymouth, and apply the above legal standards to the relevant facts.
Student’s educational needs are complex, her special education services are multi-dimensional, and there are many persons (eight) providing these services to Student. Student’s educational program is not properly understood as being limited to one particular therapy (for example, occupational therapy), or one particular location (for example, the classroom or the resource room), and Parent has a legitimate interest in evaluating both academic and nonacademic portions of the school day. Student’s special education services continue throughout the school day.
The complexity and extensive nature of Student’s disabilities and services support Parent’s observation request. Parent has requested that she be allowed to observe each element of her daughter’s school day. She has clearly explained the importance of her being able to do so for the purpose of working with Weymouth school personnel so that she may propose adjustments in her daughter’s special education and related services. Parent has set forth a schedule pursuant to which she would be able to observe each element of her daughter’s special education services. Parent has provided a proposed schedule of her visit for purposes of observing each element of Student’s education. The visits would be spread out over the course of four or five days, and total approximately 13 hours.
In sum, Parent has made a credible argument that the above-quoted statute requires Weymouth to permit her observation as requested.
In opposition, Weymouth puts forth essentially four arguments. First, Weymouth takes the position that an observation by Parent of one hour per month is sufficient. Weymouth supports this position through an affidavit of the Weymouth autism specialist who provides direct services to Student. Rather than being written specific to Student and her disabilities and services, this affidavit is framed in general terms, stating simply that “1 hour per month is sufficient time to enable a parent or consultant to evaluate a child’s performance in a program and the ability of a proposed program to enable such child to make effective progress.”
As discussed above, the relevant statute, as interpreted by Advisory SPED 2009-2 , requires that the extent of Parent’s observation be determined on the basis of the complexities of the Student’s special education needs as well as the nature and scope of her educational program to be observed. By failing to consider either Student’s particular needs or the specific nature of her educational program to be observed, the autism specialist’s affidavit has no probative value.
Second, Weymouth’s affidavit from the principal recites the rule, as adopted by the Weymouth School Committee, that visits by a parent to a classroom should not exceed 60 minutes per month. This approach, similarly, is not individually-tailored to Student’s disabilities and educational services.
The Advisory SPED 2009-2 cautions against this approach, advising school districts as follows:
School districts and parents have reported that, typically, observations are between one and four hours. While useful as a general rule, the Department recommends that district policies and practices specify that the duration and extent of observations will be determined on an individual basis. Districts should avoid rigid adherence to defined time limits regardless of the student’s needs and settings to be observed . [Emphasis supplied.]
For this reason, the principal’s recitation of the 60 minutes per month rule is unpersuasive.
Third, Weymouth takes the position that the observation proposed by Parent would compromise the integrity of the educational program while under observation. As discussed above, likely interference with program integrity is one of three ways in which the statute allows a parent’s otherwise appropriate observation to be limited.
In support of this argument that the integrity of the educational program would be compromised by Parent’s proposed observation, Weymouth relies upon the principal’s affidavit, which states in paragraph # 6:
In my professional opinion, frequent visits by an individual impacts the classroom dynamic, can cause disruption to the classroom environment, and puts the integrity of the program at risk. For this reason, to maintain order and to protect the integrity of the program, visits by a parent to the classroom, should not exceed sixty minutes per month ….
In effect, this argument is that an observation, regardless of who is observing and regardless of the circumstances of the observation, is likely to disrupt the classroom, impact the classroom dynamic, and thereby put the integrity of the educational program at risk unless the observation is limited to one hour per month.
Advisory SPED 2009-2 specifically addressed this concern as follows:
Program Integrity: We recognize that the classroom routine is affected on some level when any visitor enters the classroom, whether that person is the principal, another teacher, or an individual from outside the school environment. That fact in and of itself is not a basis for denying or restricting access to a classroom.
I find Advisory SPED 2009-2 persuasive that the principal’s concern regarding an observation disrupting the classroom is a generic concern applicable to any observation and therefore does not rise to the level of compromising the integrity of an educational program, at least as that principle is set forth within the statute. For this reason, I find that the principal’s concern cannot be the basis for limiting an otherwise appropriate observation.
Finally, Weymouth makes a general argument that simply because of the large amount of observation time requested by Parent (13 hours), her request should be substantially reduced. As discussed above, Parent is entitled to an observation that will allow her to participate fully and effectively with school personnel in determining Student’s appropriate educational program. This is the underlying purpose of the statute. Parent is entitled to no more than this opportunity, and also no less.
Intuitively, I agree with Weymouth that Parent may not likely need 13 hours of observation for this purpose. However, neither Weymouth nor Parent has provided any basis upon which I might determine which of the 13 hours may be eliminated while, at the same time, allowing Parent sufficient opportunity to observe. I may not simply guess, on the basis of my intuition.
Consequently, where Parent has provided a prima facie case in support of her proposed observation, where each of Weymouth’s arguments to the contrary is lacking in merit, and where Weymouth has provided no basis upon which I may evaluate how Parent’s proposed number of hours of observation may be appropriately reduced, Parent’s observation request must be allowed in total.12
E. Order
Parent’s observation request, as set forth within her February 11, 2009 letter to Weymouth’s attorney, is ALLOWED .
By the Hearing Officer,
_________________
William Crane
Date: February 20, 2009
1
603 CMR 28.07(1)(a)3 (“Parents have the right to observe any program(s) proposed for their child if the child is identified as eligible for special education services.”)
2
Weymouth also requested that I be guided by the Governor’s letter accompanying his signing chapter 363 of the acts of 2008. I am aware of no basis for relying upon this letter for purposes of my interpreting the statute, and therefore I do not consider it for purposes of this Ruling.
3
Advisory SPED 2009-2 may be found at: http://www.doe.mass.edu/sped/advisories/09_2.html
4
MGL c. 71B, s. 3 (“Parents and/or their designees shall be afforded access of sufficient duration and extent to enable them to evaluate the child’s performance in a current program and/or the ability of a proposed program to enable the child to make effective progress.”); Advisory SPED 2009-2 (“ The law is clear that a district may not arbitrarily limit observations to certain academic classes if such limitations would not allow an observer to evaluate fully whether a program is or would be appropriate for the identified student with disabilities.”).
5
MGL c. 71B, s. 3 (school committee must allow “observations of a child’s current program …, including both academic and nonacademic aspects of any such program”).
6
See footnote 4, above.
7
Advisory SPED 2009-2 . (“T he complexities of the child’s needs, as well as the program or programs to be observed, should determine what the observation will entail and what amount of time is needed to complete it.”).
8
MGL c. 71B, s. 3 (“To insure that parents can participate fully and effectively with school personnel in the consideration and development of appropriate educational programs for their child, a school committee shall …”); Advisory SPED 2009-2 (“ The purpose of the law is to ensure that parents can participate fully and effectively in determining the child’s appropriate educational program.”).
9
MGL c. 71B, s. 3 (“School committees shall impose no conditions or restrictions on such observations that are not necessary to ensure the safety of children in a program or the integrity of the program while under observation or to protect children in the program from disclosure by an observer of confidential and personally identifiable information in the event such information is obtained in the course of an observation.”); Advisory SPED 2009-2 (“ The observation law states that districts may not condition or restrict program observations except when necessary to protect: 1. the safety of the children in the program during the observation; 2. the integrity of the program during the observation; and 3. children in the program from disclosure by an observer of confidential or personally identifiable information he or she may obtain while observing the program.”) (emphasis in original).
10
MGL c. 71B, s. 3.
11
Advisory SPED 2009-2 (“ The obligation to provide “timely access” to the program for purposes of observation is a core component of the observation law. … It is also important to note that the timely access requirement does not mean that a school district must allow observations on demand, or that parents or designees may unilaterally set a schedule for observations. As noted, school administrators may take a reasonable period of time to inform school staff and plan the logistical aspects of an observation.”).
12
As discussed above in the text accompanying footnotes 10 and 11, Weymouth is required to schedule the observation so as to provide “timely access” to Parent. At the same time, the expectation is that Parent and Weymouth will plan together the logistical aspects of the observation, including the particular days during which each part of the observation will be completed.