Special Education Appeals BSEA #04-0560
COMMONWEALTH OF MASSACHUSETTS
SPECIAL EDUCATION APPEALS
In Re:Student v. BSEA #04-0560
Ludlow Public Schools
DECISION
This decision is issued pursuant to 20 U.S.C. 1401 et seq. (the “IDEA”), 29 U.S.C.794, M.G.L. chs. 30A, 71B, and the Regulations promulgated under those statutes.
On August 22, 2003 the BSEA received the Parents’ requested for an expedited Hearing in the above referenced case which was granted expedited status. The Hearing was convened on Tuesday, September 2, 2003, at the Bureau of Special Education Appeals, 350 Main St., Malden, MA, before Rosa I. Figueroa, Hearing Officer.
The record closed at the conclusion of the Hearing on September 2, 2003.
Those present for all or part of the Hearing were:
Student’s Mother
Student’s Father
Derek M. Beaulieu, Esq. Attorney for the Student/Parents
Susan Edgerly Admissions Director, White Oak School
Andrea MacGovern Student’s Advocate
Claire L. Thompson, Esq. Attorney for Ludlow Public Schools
Theresa M. Kane Associate Superintendent, Director of Special Education Services, Ludlow Public Schools
Parents’ Exhibits 1 through 99 and School Exhibits 1 through 19 were admitted in evidence and were considered for the purpose of rendering this decision. PE-9 was submitted and admitted in evidence for the sole purpose of showing that The White Oak School and Curtis Blake School are the only Massachusetts approved language-based private day schools in the western part of the state.
ISSUE PRESENTED:
1. Whether Student is entitled to “stay put” placement at The White Oak School?
POSITION OF THE PARTIES
Parents’ Position:
Parents assert that Student is entitled to placement at The White Oak School (hereinafter, “White Oak”) a private day school, during the pendency of their dispute challenging the IEP proposed by Ludlow for Student’s 2003-2004 school year. They state that Student has been educated at Curtis Blake, a private day school for students with language-based disabilities, during the past several years. The program uses Orton Gillingham based methodologies and students are grouped in very small classrooms. The student body population at Curtis Blake is 80 compared to the approximately 990 students in Ludlow High School. Student is therefore, entitled to a similar private setting and White Oak is that program. The FOCUS program at Ludlow is not similar to Curtis Blake’s program for stay put purposes.
School’s Position:
Ludlow Public Schools (hereinafter, “Ludlow”) states that the goals and objectives stated in the Curtis Blake IEP and those in the proposed IEP for placement in Ludlow are very similar and would allow Student to receive her education in a self-contained language-based program. In Ludlow Student would be able to continue to use the same techniques that she used in Curtis Blake, would receive speech and language services from a speech and language pathologist in the resource room and would have opportunities to participate in extra-curricular activities. Ludlow has retained Ellen Moreau from Curtis Blake to consult to its program. Ludlow asserts that its program has tremendous flexibility and that it can offer as much 1:1 service as needed. Student has been outside the public education setting for several years and this is a perfect opportunity to transition her back into a more integrated program.
FINDINGS OF FACT:
* Born on July 28, 1989, Student is a 14 year-old ninth grader who resides with her parents in Ludlow, Massachusetts. ( PE-3; Testimony of Parent) Her entitlement to special education services and the areas of disability are not in dispute.
* Student presents with attention deficit disorder and a moderate to severe “generalized language disability which cut across all parameters of language acquisition.” (SE-12; SE-13) She has severe needs in expressive and receptive language as well as in the social-skills areas. (Testimony of Parent) She presents with anxiety in large social situations and has issues with pragmatics. Her perspective on situations is often awry causing her to respond inappropriately. (Testimony of the Parent) In the past she has also being diagnosed with compulsive disorder. (Id.) She has been described as a pleasant, friendly, polite and cooperative young lady. (SE-12)
* Steve Ziemba, Ludlow Public Schools’ Psychologist, performed a psychological evaluation in the fall of 2001. (SE-13) His report, dated October 18, 2001, states that Student’s cognitive ability fell within the low average range of intellectual functioning and that her verbal and performance ability scores were within the low average range. (SE-13) He recommended that emphasis be placed on vocabulary development, encouraging Student to pay closer attention to visual details and subtle differences and using self-editing strategies when appropriate. He further recommended that to aid the retention of information presented auditorily, teachers should provide frequent repetition of instructions and directions, teach paraphrasing skills and teach strategies such as chunking and mnemonics. (SE-13)
* Student’s 2002-2003 school year IEP offered her placement at the Curtis Blake Day School in Springfield, Massachusetts, to address her specific learning disability. (PE-3) Curtis Blake is a Massachusetts approved private day school that offers a research-based elementary and middle school program for students who present with significant problems in acquiring reading, writing, math skills or who present with a nonverbal learning disability. (PE-9) The program offers a highly individualized approach to written language acquisition and one-to-one instruction in reading, writing and pragmatics. It is language-based and uses story grammar as a learning tool across all subject areas. (PE-9) The curriculum also includes social studies, science, art, gym and specific class instruction in pragmatics[1]. (PE-9) The school is located in the classroom wing of the Temple Beth El and students are transported to the nearby Jewish Community Center for gym. (PE-9) Curtis Blake services students ages seven to fourteen. (PE-9)
* Student was educated at Curtis Blake since the second grade until she aged out of the program upon graduating from eighth grade. (SE-12; Testimony of the Parent)
* On November 8, 2002, Joanne Hassler, M.A., CCC-SLP, of Ludlow Public Schools, performed a speech and language evaluation of Student who was 13 years of age and in eighth grade at the time. (SE-12) On the CELF-3 Student obtained a score of 75, a below average score that places her in the 5% when comparing her to other children her age. On the Woodcock Reading Mastery Test, Student achieved a grade equivalence of 4.8 in word identification and 3.7 in work attack. (SE-12) In the Test of Language Competence- Expanded Edition (TLC-Expanded) Student received a total language score of 65 placing her in the 1st% when compared to her same age peers with no significant discrepancy found between her receptive and expressive language abilities. Student’s results in the phono-graphix assessment was “good” across all areas. Ms. Hassler found Student to present with weaknesses in “comprehension, text interpretation, inferential thinking, abstract and figurative language, lexical and structural ambiguities, oral expression, decoding, word attack and retrieval.” (SE-12) Her written language skills were not assessed, as she was capable of writing an expository essay of up to three paragraphs using scaffolding and with moderate teacher assistance. (SE-12) In contrast, Ms. Hassler found Student’s strengths in her “utilization of learned strategies, i.e. phrase reading, reflective pausing as a word retrieval strategy; pragmatic language; focused, on task behavior; cooperation; oral segmentation and blending up to 5 phonemes (sounds) and sound deletion, sound/symbol association; recall and production of members of a semantic class; and, manipulation of the syntactical structure of language.” Ms. Hassler concluded that Student’s language learning disability would impact upon her ability to access the curriculum successfully across all content areas. (SE-12)
* Susan Timme, Benchmark teacher[2], recommended that Student should be educated in small classroom, for the ninth grade. Student’s work should focus on word banks, no points should be deducted for spelling, that all of her teachers should meet in September to review her I.E.P. Finally, she recommended that progress reports should be generated every two weeks. (SE-11)
* The IEP for the 2002-2003 school year, which ran from July 1, 2002 through June 30, 2003, called for Student to receive services outside the general education curriculum by special educators and related service providers over 75% of the time. (PE-3; SE-10) It provided reading/Language Arts 2.5 hours five times per week; Language/Social Pragmatics,.6 hours five times per week; Social Studies/ Science 1 hour four times per week; Math.9 hours five times per week; and Art/ Physical Education, 2.25 hours once per week. It also offered Student an extended school year program. (PE-3; SE-10) According to this IEP, Student requires that learning be “facilitated by nurturing instructors who have strong interpersonal and teaching skills. She requires a slow-paced environment with short, explicit directions and cueing. These characteristics are especially important when teaching and reinforcing math skills.” (PE-3; SE-10) The Parents accepted this IEP’s program and placement in Curtis Blake in full on June 28, 2002. (PE-3; SE-10)
* Following a Team meeting on March 5, 2003 Ludlow drafted an IEP for Student’s ninth grade. (PE-4; SE-15) This IEP, which ran from September 2, 2003 to June 30, 2004, offered Student services in a substantially separate classroom in the Ludlow High School. The services would be provided by a combination of regular educators, paraprofessionals, special educators and related service providers. It provided the following services: one hour per week consultation with James Levine; once per week for 15 minutes consultation with M.E. Moreau; and once per week for 30 minutes consultation by the special education teacher. Under direct special education and related services in other settings, it offered language content five times per week for 48 minutes with the SLP; reading five times per week for 48 minutes with the SPED teacher; mathematics five times per week for 48 minutes with the Focus staff; English five times per week for 48 minutes with the Focus staff; science five times per week for 48 minutes with the SPED teacher; western civilization five times per week for 48 minutes with the SPED teacher; and Study five times per week for 48 minutes with the Paraprofessional. (PE-4; SE-15) The IEP also called for an extended school year. (PE-4; SE-15)
* The FOCUS program in Ludlow “is designed for students in grades 9 through 12 who exhibit a specific language learning disability. Serving up to 12 students, the staff consists of 1 classroom teacher, 1 reading teacher, 1 paraprofessional, and 1 speech and language pathologist/assistant. In addition, a psychologist and specific learning disabilities specialist consults with and supports the staff. The FOCUS program fosters a flexible environment that honors individual learning styles. Program course selection conforms to requirements for a high school diploma. The presentation of all subject matter is in accordance with recognized accommodations and methodology for working with a specific language learning disability. However, based on individual needs, students have the ability to take a 1:1 reading course, Language in the Content Area course, to participate in daily speech/ language group, to participate in a weekly pragmatic group, and to take courses within the high school mainstream (supported by the paraprofessional). The program’s goal is to meet the needs of the whole child within the least restrictive environment.” (PE-5; SE-3) The FOCUS program is part of the Ludlow High School, which has a student population of 989 students. (Testimony of Dr. Kane)
* Dr. Theresa Kane, Associate Superintendent, Director of Special Education Services, testified that Dr. James Levine’s (a psychologist) office consults to the teachers in the FOCUS program regarding pragmatics and behavior. (Testimony of Dr. Kane) She also testified that Ms. Moreau consults to the teachers regarding speech and language issues. (Testimony of Dr. Kane)
* In May 2003 the Parents forwarded Ludlow a list of “IEP Rectifications” they desired on the proposed IEP. (SE-14) The changes impacted the areas labeled Parent concerns, educational strengths, goal #5, section C of the grid regarding direct special education services, MCAS accommodations, and designed instruction. (SE-14)
* Student’s Team met again on June 12, 2003 to revise the proposed IEP and incorporate Parents’ requests. (SE-17; Testimony of Dr. Kane) At that time Ludlow proposed that Student partake in the FOCUS program in Ludlow. (Testimony of the Parent)
* On July 8, 2003 the Parents advised Ludlow that they were rejecting the IEP and proposed program by Ludlow for the 2003-2004 school year and that pursuant to “stay- put” Student should be placed in a private day school (a 502.5 prototype program under the federal student count) while the matter was resolved. (PE-1; SE-16) The Parents assert that Student aged out of the previous program, which was a private day school program, and as such is entitled to a similar type of program until the case is resolved and the school is responsible to locate and arrange such placement. (PE-1; SE-16) The Parents identified White Oak as a program that meets the required characteristics and notified Ludlow that Student would attend that school starting in September 2003. (SE-1; SE-16; Testimony of the Parent)
* On July 9th Ludlow sent the Parents a class schedule for Student at Ludlow. (PE-2) The schedule provided the name of the proposed teacher and the student/ teacher ratio as follows:
Period 1: Language in the Content Area with Joanne Hassler, SLP, 5:1
Period 2: Reading with TBD, 1:1
Period 3: Integrated math with Angelique Early (Focus Teacher, 9:1,
Focus paraprofessional
Period 4: PE
Period 5: English with Angelique Early, 4:1, 1 Focus paraprofessional
[Student] may choose from these options:
Period 6: Study, 1:1 Focus paraprofessional or
Earth Science with Alexander Bal (special education teacher), 14:1, 1 Focus paraprofessional
Period 7: Western Civilization with John Lattanzio (special education
teacher), 16:1, 1 Focus paraprofessional, 1 paraprofessional. (PE-2)
* On July 10, 2003, Ludlow’s attorney notified Parents’ counsel that Ludlow would not draft an IEP placing Student at White Oak. (SE-17)
* On July 15, 2003 the special education supervisor forwarded an IEP to the Parents which contained the name of some of the providers that would service Student. (PE-4; SE-15) J. Hassler would teach language content, and A. Early would teach mathematics and English. The rest of the courses listed would be taught by a special education teacher or a paraprofessional. (PE-4; SE-15)
* On or about July 18, 2003, the Parent rejected Ludlow’s placement decision to educate Student in the Focus program in the Ludlow High School and on July 23rd she rejected the service delivery grid in the IEP. (SE-18)
* During the summer of 2003 Student did not participate in a summer program as a result of a medical diagnosis of mononucleosis. (SE-19) On July 22, 2003, Student’s pediatrician ordered her to rest, not to engage in physical activity, and not to return to school until the condition cleared. (SE-19)
* In August 2003, the Parent completed an application for Student to attend White Oak. (Testimony of the Parent) The Parent had first visited White Oak in December 2002. (Id.)
* On or about August 27, 2003, three business days before the hearing, Ludlow forwarded to the Parents a new schedule for Student in the Ludlow High School Focus program. (SE-4) The schedule is divided into 7 periods, does not include lunch-time, and provides for no breaks. (SE-4) It offers Student Language in Content with Mrs. Hassler in wing C, room 101 in a small group of five students to one teacher; Reading with Mrs. Marino in wing B, room 209 on a one-to-one basis; Focus integrated Math with Mrs. Early in wing E, room 005 in a group with six students to one teacher; Western Civilization with Mrs. Early in wing E, room 005 on a one-to-one basis; Focus English with Mrs. Early in wing E, room 005 in a group with five students to one teacher; Study with a Paraprofessional in wing B, room 209 on a one-to-one basis; and, Physical Education with Mr. Brillo in the gymnasium with the regular education group. (SE-4) A videocassette recording of the alleged proposed classroom was submitted in evidence as SE-5. The video shows some of the hallways in wing D. It also shows a classroom setting, with student desks, a teacher desk, a work table in the back of the classroom, and four computer stations. On the wall above the computer stations is a map of the world and another map of the U.S., windows across the entire left wall, and blackboards on the front and right side walls. The classroom depicted in the video is labeled “D005”. (SE-5) However, Student’s proposed schedule does not place her in that setting at any time during the day. (SE-4)
* Dr. Kane testified that the program was extremely flexible and that if the Parents preferred, Student could receive adaptive physical education instead of participating in the general education ninth grade gym. Additionally, that she could leave the classroom a couple of minutes before the rest of the students to avoid the high traffic in the hallways. (Testimony of Dr. Kane) She also testified that Student would have lunch in the cafeteria with the rest of the regular education population who were having lunch during the same period. (Id.) Student’s proposed grouping is comprised of approximately 10 ninth graders all with specific language disabilities. (Testimony of Dr. Kane)
* Regarding some of the proposed teachers in Ludlow, Joanne Hassler is a Massachusetts certified speech and language pathologist, Angelique Early is a certified special needs teacher in Massachusetts, and Betsy Marino is a certified N-9 special needs teacher. (SE-7; SE-8; SE-9)
* Ms. Susan Edgerly, admissions director at White Oak, described their program. (Testimony of Ms. Edgerly) White Oak is a Massachusetts Chapter 766 approved private day school located in Westfield, MA. (PE-9; Testimony of Ms. Edgerly) It offers small group language-based instruction to students ages 9 to 18 with specific learning disabilities. At White Oak, students are grouped together according to age group, grade and ability. (Testimony of Ms. Edgerly) White Oak follows the Massachusetts Curriculum Frameworks. Students receive a one-to-one daily tutorial in reading literacy and organizational skills that runs for 50 minutes. All the teachers are either certified in special education or are working towards certification. The program runs from 8:30 to 3:30 Monday through Friday and offers students a variety of after school activities. (PE-9; Testimony of Ms. Edgerly)
* At present, the school is comprised of three buildings. (Testimony of Ms. Edgerly) The first one contains 11 classrooms, a library, and the gym. The second building contains the woodshop, media room and on the third building there are four classrooms, a cafeteria and the tutorial areas. (Id.)
* Ms. Edgerly visited Curtis Blake 40 or 50 times to attend Team meetings and to observe students to ascertain whether they are appropriate for White Oak. Over the years she also observed Benchmark and pragmatics classes. Ms. Edgerly testified that White Oak uses a variety of teaching methodologies such as Orton Gillingham and the Lead program, which are comparable to Benchmark. White Oak also has Benchmark and has used it in the past. (Testimony of Ms. Edgerly) They also use other types of methodologies, such as scaffolding and outlining similar to those used at Curtis Blake. (Testimony of Ms. Edgerly) Both schools offer similar environments. (Testimony of Ms. Edgerly, the Parent)
CONCLUSIONS OF LAW:
No dispute exists between the parties that Student has disabilities that fall within the purview of 20 U.S.C. § 1401 et seq. and M.G.L. 71B. Her entitlement and areas of disability are also not in dispute. (Testimony of Parent, Dr. Kane) Student presents with moderate to severe expressive and receptive language delays that affect aspects of language acquisition. (SE-12; SE-13; Testimony of Parent) She requires a language-based program taught in a small classroom setting with like peers. (Testimony of Parent) She also has issues with pragmatics as her perspective on situations is often awry causing her to respond inappropriately in social situations. (Testimony of the Parent)
The sole issue before me is determination of the program and placement to which Student is entitled during the “stay put” period. Upon careful consideration of the evidence before me, I find that Student is entitled to placement in White Oak. My reasoning follows:
The IDEA provides that a child shall remain placed in his/her then current educational placement during the pendency of any proceeding conducted pursuant to §1415. 20 U.S.C. c. 33 §1415(j). The Federal Regulations under IDEA specifically state that:
(a) Except as provide in §300.526, during the pendency of any administrative or judicial proceeding regarding a complaint under §300.507, unless the State or local agency and the parents of the child agree otherwise, the child involved in the complaint must remain in his or her current educational placement. 34 CFR §300.514
Because this subsection is designed to preserve the status quo pending resolution of the dispute between the parties under the IDEA, it is commonly referred to as the "stay put" provision. Verhoeven v. Brunswick School Committee, 207 F.3d 1 (1st Cir. 1999);Doe v. Anrig, 692 F. 2d 800, 810 (1st Cir. 1982). The preservation of the status quo ensures that the student remains in the last placement that the parents and the educational authority agreed to be appropriate. Id.
Massachusetts confers greater rights regarding stay put than the federal standard by triggering said rights at the onset of any dispute concerning services or placement between the Parties. The pertinent Massachusetts Regulations for Special Education Law state that:
(7) Student’s right to IEP services and placement. 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 C.M.R. 28.08:(7)
Under said standard, Student’s stay put rights were triggered when the Parents rejected the Student’s proposed placement for the 2003-2004 school year. The Parents first refused placement of Student in Ludlow on July 18, 2003 before she received the IEP. Simultaneously, the Parents notified Ludlow, through their attorney, that they intended to place Student in White Oak. Thereafter, upon receiving the IEP, Parents rejected the service delivery grid on or about July 23rd. (SE-18; Testimony of the Parent) Under Massachusetts Special Education Regulations, Students stay put rights arose when the Parent rejected the proposed program and placement. It is true that the sequence of events in the case at bar was not typical. Technically, Parents should have waited until they received the IEP to reject the program and placement. Here, there were two separate rejections one of which, the placement rejection, was made before the IEP was even issued. This procedural mistake however, does not alter the ultimate outcome of the case. First, the Parents knew since the Team meeting of June that Ludlow would not offer placement outside Ludlow, since they were told so at the Team meeting. (PE-; SE-16; SE-18; Testimony of Parent) Second, under the Massachusetts regulations stay put is triggered when there is a dispute between the parties regarding placement or services. The Parents’ second rejection of both the service delivery grid of the proposed program and the placement signed on July 23, 2003 and received by Ludlow on August 1, 2003, cured the first error. (SE-18) The question now turns to identification of the program to which Student is entitled under stay put.
There are instances however, where as in the instant case, the student cannot remain in the exact same location to receive services. In those instances, the change of location must not constitute an impermissible change in placement under the IDEA.
A transfer from one school to another with a similar or comparable program is not necessarily a change in placement within the meaning of 20 U.S.C. §1415. Weil v. Boasrd of Elementary & Secondary Educ., 931 F. 2d 1069 (5th Cir. 1991). A change in placement would occur if the proposed program changed or eliminated basic elements thereby impacting on the student negatively. In order to prevail, the Parents must show that the change of placement proposed by the school district would result in a detrimental or fundamental change or elimination of a basic element of the education program for the student. Tennesee Dept., Men. Health v. Paul B., 88 F. 3d 1466 (6th Cir. 1996); Lucenford v. Dist.of Columbia Bd. Of Education, 745 F.2d 1577 (D.C. Cir. 1984); see also, Sherri A. D. v. Kirby, 975 F. 2d 193 (5th Cir. 1992).
In ascertaining whether the program offered by the district is comparable to the previous one, one must look closely at the particular facts of the proposed program and determine what impact it will have on the student . Hale v. Poplar Bluff R-I School Dist., 280 F. 3d 831 (8th Cir. 2002)
First, I will look at the elements of the Curtis Blake program as any program identified under stay put must comport with the elements of that program. At Curtis Blake she participated in a class with between 4 and 8 students all in the same grade who presented with similar disabilities. She received a language-based program where pragmatics were addressed daily across all settings. Curtis Blake also offered a specific class for addressing social issues and pragmatics. (Testimony of the Parent) The school is very small and its student population is approximately 80 students. At Curtis Blake, Student participated in physical education, movies, and art. (Testimony of Parent) Student had to leave Curtis Blake in June 2003 when she aged out of the program upon completing the eighth grade. (Id.)
Student’s Team met on June 12, 2003 at which time Ludlow proposed that Student partake in the FOCUS program in Ludlow. (Testimony of the Parent) The program is located in Ludlow’s High School where approximately 990 students are educated. (Testimony of Parent, Dr. Kane) The Student’s proposed schedule and IEP for this setting groups her with six to 10, other students for academics, and with regular education students for physical education and lunch. She also gets one-to-one tutorials daily with a paraprofessional. (SE-4) Ludlow did not propose that Student partake in any electives.
The program offered by Ludlow would cause Student to interact with regular education students in the hallways, at lunch, during electives in the bathroom and possibly during gym, something that greatly concerned the Parents because it could expose Student to harassment. (Testimony of the Parent, Ms. Kane) Ms. Kane testified that Ludlow could have her leave the classes a couple of minutes earlier so as to avoid high traffic in the hallways. (Testimony of Dr. Kane) According to the Parents, when confronted with similar situations in the past, Student was not always able to handle them without assistance. (Testimony of the Parent) Student, who is anxious in large social situations, has never been exposed to so many students, especially mainstream students, in a school setting in the past. (Id.)
According to Ludlow, the goals and objectives in the Ludlow and Curtis Blake IEPs are similar. (SE-10; SE-15) Angelique Early, the teacher to whom Student is assigned for Focus Integrated Math [with six other students], Focus English with [five other students] and one-to-one instruction for western civilization, is certified as a special needs teacher and has expertise in dealing with students that present with behavioral problems. (SE-4; Testimony of the Parent) Language in content is provided by Ms. Hassler, a speech and language pathologist, in a group with five other students, and Reading is taught by Mrs. Merino, who is certified in special needs, on a one-to-one basis. Student would also receive a one-to-one tutorial with a paraprofessional daily. (SE-4)
A videocassette recording of the alleged proposed classroom was submitted in evidence as SE-5. As stated earlier in the facts, the video shows some of the hallways in wing D and a classroom labeled D005. Classroom D005 contains student desks, a teacher desk, a work table in the back of the classroom, four computer stations, has maps of the world and of the U.S. hanging on a wall, blackboards, etc. (SE-5) Student’s proposed schedule however, does not place her in this classroom or even in this wing of the school at any time. (See SE-4)
Ludlow asserts that its proposed program is language-based and that the rest of the students in Student’s group are ninth graders who present with specific language disabilities. (Testimony of Dr. Kane) The Parents challenged whether the classroom set- up was geared toward meeting the needs of language disabled students. When asked whether there were any graphic organizers posted on the walls, Dr. Kane explained that the fire codes did not allow the school to have too many things posted on the wall. This argument is simply not persuasive since the video submitted by Ludlow depicted maps and other posters hanging on the walls. (SE-5) Dr. Kane testified that the program was extremely flexible and that if the Parents preferred, Student could receive adaptive physical education instead of participating in the general education ninth grade gym class and that she could leave the classroom a couple of minutes before the rest of the students to avoid the high traffic in the hallways. (Testimony of Dr. Kane) She explained that the schedule presented to the Parents had been developed for purposes of “stay put” taking into account Student’s desire to partake in a regular classroom experience. (Testimony of Dr. Kane) She also testified that Student would have lunch in the cafeteria with the rest of the regular education population who were having lunch during the same period but that if needed the paraprofessional could accompany Student to lunch, or lunch could be changed to a smaller space. (Id.)
The evidence is not persuasive that the Ludlow program is equivalent to the program in which Student was enrolled in Curtis Blake over the past six years, for purposes of “stay put.” First, the size of the building, number of students enrolled, the location of the classrooms, hallways, cafeteria, and even the bathrooms that Student would have to negotiate can be overwhelming to Student and are nothing like the set up from which she comes. (See SE-6 diagrams of the school building & classroom locations.) Second, while Ludlow is willing to be very flexible with its program and offer the requisite one-to-one assistance, adaptive physical education, send an aide to lunch or have Student leave the classroom earlier to avoid high traffic, the reality is that such accommodations would offer a totally artificial environment. Student runs the risk of being segregated more than she has ever been in the past, potentially rendering this program even more restrictive than the one she came from. (Testimony of the Parent) Third, the Parents’ concern regarding Student’s ability to handle social relationships with regular education students and to avoid taunting, teasing or potentially dangerous situations, given her disabilities, is legitimate. In a school with over 900 other students she is bound to have numerous encounters with volumes of other students during bathroom breaks, lunch, recess, school assemblies, in the hallway, etc. All of these unstructured times are traditionally the times when she would be most susceptible and vulnerable. At Ludlow she would not be surrounded exclusively by special education students with similar disabilities. Rather, she would be a minority in a school with predominantly non-disabled students, quite different to the environment to which she was used to in Curtis Blake. Henry ex rel. Henry v. School Administrative Unit #29, 70 F.Supp. 2d 52 (U.S. Dist. Court NH, 1999) This in light of her social anxiety and issues with pragmatics raises concern. Fourth, the evidence is not persuasive that the academic program itself offers the level of coordination across all areas to assure that Student would participate in a language-based program across all settings where pragmatics are addressed throughout the day. See Henry ex rel. Henry v. School Administrative Unit #29, 70 F.Supp. 2d 52 (U.S. Dist. Court NH, 1999) I find that the Parents have met their burden in showing that the elements of the program proposed by Ludlow are fundamentally different from those at Curtis Blake. Lucenford v. Dist.of Columbia Bd. Of Education, 745 F.2d 1577 (D.C. Cir. 1984) In looking at the particular facts of the instant case, the evidence is persuasive that the elements mentioned above would be detrimental to Student and would constitute a change in placement. Tennesee Dept., Men. Health v. Paul B., 88 F. 3d 1466 (6th Cir. 1996) The Ludlow program would fundamentally alter Student’s then current educational placement under the "stay put" provision and is therefore not equivalent. Henry ex rel. Henry v. School Administrative Unit #29, 70 F.Supp. 2d 52 (U.S. Dist. Court NH, 1999)
Having found Ludlow’s program to be fundamentally different than the program at Curtis Blake, I now turn to White Oak. Ms. Edgerly testified that White Oak is a Massachusetts Chapter 766 approved private day school, which follows the Massachusetts Curriculum Frameworks. (Testimony of Ms. Edgerly) White Oak offers Student a highly structured language-based program in a small setting, with access to multiple computers and hands on activities in science. As in Curtis Blake, the entire student population presents with issues similar to Student’s and is grouped according to age, grade and ability. (Testimony of Ms. Edgerly) According to the Parents, Student can get the help she needs at White Oak. All the teachers are either certified in special education or are working towards certification. The program runs from 8:30 to 3:30 Monday through Friday and offers students a variety of after school activities. (PE-9; Testimony of Ms. Edgerly) In addition to the academics, Student receives a one-to-one 50 minutes daily tutorial in reading literacy and organizational skills.
The building structure described offers a smaller more manageable set-up with a much smaller student body and all the students present with similar disabilities, closer to Student’s experience in Curtis Blake (Testimony of Ms. Edgerly) Clearly, both schools offer similar environments and therefore transition into the White Oak program would be easy. (Testimony of Ms. Edgerly, the Parent)
Lastly, Ms. Edgerly’s comparison of Curtis Blake and White Oak regarding programs and methodologies was persuasive. She testified that White Oak uses a variety of teaching methodologies such as Orton Gillingham and the Lead program, which are comparable to Benchmark, the program used in Curtis Blake and that they both use similar types of methodologies, such as scaffolding and outlining. (Testimony of Ms. Edgerly) When comparing both, she stated that while they may not use the exact same methodologies, the differences would be like taking “Johnson’s aspirin vs. Bayer”. (Testimony of Ms. Edgerly) In evaluating Student’s overall experience at White Oak it is clear that White Oak would offer her an experience that is substantially similar to her prior placement at Curtis Blake. Henry ex rel. Henry v. School Administrative Unit #29, 70 F.Supp. 2d 52 (U.S. Dist. Court NH, 1999) The evidence is persuasive that White Oak constitutes the equivalent or comparable program for stay put purposes.
The sole issue before me, as stated in the Parents’ request for Hearing, was “whether, pursuant to the “stay put” provision, the White Oak School [was] the current educational placement until such time [as an] administrative and/or judicial resolution is reached.” Having addressed that issue, this matter is concluded. The Parents and/or the School District may file a request for hearing to address their dispute regarding the ultimate appropriate placement for Student’s 2003-2004 school year.
ORDER:
Student shall be placed in White Oak during the pendency of the Parties’ appeal before the BSEA.
By the Hearing Officer,
Rosa I. Figueroa
Dated: September 16, 2003
September 16, 2003
COMMONWEALTH OF MASSACHUSETTS
BUREAU OF SPECIAL EDUCATION APPEALS
LUDLOW PUBLIC SCHOOLS
BSEA# 04-0560
BEFORE
ROSA I. FIGUEROA
HEARING OFFICER
DEREK M. BEAULIEU, ATTORNEY FOR THE PARENTS
CLAIRE L. THOMPSON, ATTORNEY FOR THE SCHOOL
Footnotes
[1] The social use of language. (PE-9)
[2] Although no explanation of who she is was offered, from the exhibit one can deduce that she is apparently a teacher at Curtis Blake.