Nancy S. Grasmick State Superintendent of Schools 200 West Baltimore Street, Baltimore, MD 21201 410-767-0100 410-333-6442 TTY/TDD Maureen van Stone, Esq. Maryland Volunteer Lawyers Service Kennedy Krieger Institute 716 N. Broadway, Office #106 Baltimore, Maryland 21205 Executive Director, Special Education Baltimore City Public Schools 200 East North Avenue, Room 204-B Baltimore, Maryland 21202 RE: XXXXX Reference: #10-083 Dear Parties: The Maryland State Department of Education, Division of Special Education/Early Intervention Services (MSDE), has completed the investigation of the complaint regarding special education services for the above-referenced student. This correspondence is the report of the final results of the investigation. ALLEGATIONS: On March 22, 2010, MSDE received a complaint from Maureen van Stone, Esq., hereafter, the complainant, on behalf of the above-referenced student. In that correspondence, the complainant alleged that the Baltimore City Public Schools (BCPS) violated certain provisions of the Individuals with Disabilities Education Act (IDEA) with respect to the above-referenced student. MSDE investigated the following allegations: 1. BCPS has not ensured that the student has been provided with the amount of special education instruction in the placement required by the Individualized Education Program (IEP) since October 2009, in accordance with 34 CFR 300.101 and.323; and 2. BCPS has not ensured that a special education teacher has provided the student with special education instruction as required by the IEP, in accordance with 34 CFR 300.101 and.323.
Page 2 INVESTIGATIVE PROCEDURES: 1. Ms. Kathy Stump, Education Program Specialist, MSDE, was assigned to investigate the complaint. 2. On March 29, 2010, MSDE sent a copy of the complaint, via facsimile, to, Executive Director, Special Education, BCPS; and Ms. Nancy Ruley, Associate Counsel, BCPS. 3. On March 31, 2010, MSDE sent correspondence to the complainant that acknowledged receipt of the complaint and identified the allegations subject to this investigation. On the same date, MSDE notified Mrs. Lewis of the allegations and requested that her office review the alleged violations. 4. On April 9, 2010, Ms. Stump conducted a review of the student s education record at the BCPS Central Office. Ms. Tiffany Puckett, Associate Counsel, BCPS, was present at the record review. 5. On April 14, 2010, Ms. Stump, Ms. Vickie Frazier, Education Program Specialist, MSDE, and Ms. Anita Mandis, Section Chief, Complaint Investigation Section, Complaint Investigation and Due Process Branch, MSDE, conducted a site visit at XXXXXXXXXXXXXXXXXXXXXXX (XXXXXXXXXXXX) and interviewed the following school staff: a. Ms. XXXXXXXXX, Special Education Teacher; b. Ms. XXXXXXXX, Principal; and c. Ms. XXXXXXXXXXX, IEP Team Chairperson. Ms. Puckett attended the site visit as a representative of BCPS and to provide information on BCPS policies and procedures, as needed. 6. On April 14, 2010, MSDE also received electronic mail correspondence from the complainant containing additional information regarding the allegations in the complaint. 7. On May 3, 2010, Ms. Stump and Ms. Mandis conducted a follow-up site visit at XXXXXXXXXXX and interviewed the following school staff: a. Mr. XXXXXXXXXX, General Education Math and Science teacher; and b. Ms. XXXXXXXX, General Education Language Arts Teacher.
Page 3 In a separate interview, Ms. Stump and Ms. Mandis spoke again with Ms. XXXXXX. Ms. Puckett attended the site visit as a representative of BCPS and to provide information on BCPS policies and procedures, as needed. 8. MSDE reviewed documentation, relevant to the findings and conclusions referenced in this Letter of Findings (LOF), which includes: a. Correspondence and attachments from the complainant to MSDE, dated March 22, 2010; b. IEP, dated October 28, 2009; c. General Education Teachers reports on the student s progress toward achieving the annual IEP goals, dated October 28, 2009; d. Special Education Teacher s indirect service provider logs, dated between September 2009 and January 2010; e. IEP progress reports for the 2009-2010 school year; and f. Special education teacher s weekly schedule for the 2009-2010 school year. BACKGROUND: The student is eleven (11) years old and is identified as a student with a specific learning disability under IDEA. The student attends XXXXXXXXXXX, a BCPS XXXXXXX, where she receives special education and related services. During the period of time addressed by this investigation, the student s mother participated in the education decision-making process, and was provided with written notice of IEP team decisions and notice of the procedural safeguards, as required (Docs. a and b). FINDINGS OF FACT: 1. The IEP requires that the student receive special education instruction in language arts in the general education classroom as follows: a. One (1) hour per week from the special education teacher; and b. Two (2) hours per week from the general education teacher (Doc. b). 2. The IEP requires that the student receive special education instruction in math in the general education classroom as follows: a. Two (2) hours per week from the special education teacher; and b. Three (3) hours per week from the general education teacher (Doc. b). 3. The special education teacher s schedule reflects that she spends three (3) hours per week working with the student in one (1) hour increments each Wednesday, Thursday, and
Page 4 Friday. Both the special education teacher and the general education teachers report that the special education teacher does not always work with the student at the same time in the same class each week, but that she determines which class she will attend for each of the three (3) hours depending on the subject being addressed in the class (Doc. f and interview with school staff). 4. The IEP requires one (1) hour per month of indirect classroom instruction. During this period of time, the special education teacher provides consultation to the general education teachers to support their implementation of the IEP and does not work directly with the student (Doc. b). 5. The interview information and the documentation indicate that between the start of the 2009-2010 school year and January 2010, the special education teacher has provided the indirect classroom instruction to the teacher s aides rather than the student s general education teachers (Docs. d and interview with school staff). 6. The interview information indicates that the indirect classroom instruction has been provided since January 2010. However, there is no documentation to support this assertion (review of student s education record and interview with school staff). 7. The IEP requires that the student be provided with small group instruction as a supplementary aid and service, but the IEP indicates that small group instruction is one of a menu of services the teacher can choose from and does not require that all supplementary aids and services be provided each day in each class (Doc. b). 8. The general education teachers reports on the student s progress toward achieving the annual IEP goals and an on-site review of the general education teachers lesson plans indicate that the student has been provided with special education instruction in small groups within the classroom for some lessons (Doc. c and on-site review of both general education teachers lesson plans). 9. The IEP progress reports, dated November 4, 2009, January 22, 2010, and April 7, 2010, indicate that the student s is making progress toward achieving the annual IEP goals (Doc. e). DISCUSSION/CONCLUSIONS: The public agency must provide the student with special education instruction in accordance with the student s IEP (34 CFR 300.101). In this case, the complainant alleges three (3) specific violations related to the provision of the special education instruction required by the IEP:
Page 5 1. The special education teacher did not provide direct instruction to the student in the language arts and math classes Direct service, including direct classroom instruction, is an instructional service provided to the student. Direct classroom instruction is specially designed instruction conducted in the classroom or other educational setting (34 CFR 300.39). 1 Based on Findings of Fact #1-3 and 9, MSDE finds that there is information, including documentation and teacher reports, that the special education teacher is in the student s classroom for three (3) hours per week in math and language arts and that the student is making progress toward achieving the annual IEP goals. Therefore, MSDE finds no violation with respect to this aspect of the allegations. 2. The special education teacher did not work with the student to provide indirect instruction on a monthly basis in addition to the direct instruction Indirect service, including indirect classroom instruction and consultation, is a service provided for or on behalf of the student to ensure implementation of the IEP (34 CFR 300.42 and.320(a)(4)). In this case, the indirect classroom instruction required by the IEP is not a service to be provided directly to the student. This is an example of a supplementary aid and service, which are the supports and services that enable a student with a disability to be educated in general education settings with their nondisabled peers (34 CFR 300.42). Based on Findings of Fact #4, 5, and 6, MSDE finds that the indirect classroom instruction was not provided in accordance with the IEP between the start of the school year and January 2010. Based on those same Findings, MSDE finds that there is no documentation that the indirect classroom instruction has been provided since January 2010. Therefore, MSDE finds a violation with respect to this aspect of the allegations. 3. The student is not being provided with special education instruction in a small group setting. Based on Findings of Fact #7 and 8, MSDE finds that there is documentation that the student is receiving special education instruction in small group settings in both language arts and math. Therefore, MSDE finds no violation with respect to this aspect of the allegations. 1 The definitions of both direct service and indirect service can also be found in The Maryland Statewide Individualized Education Program (IEP) Process Guide ( Process Guide ), available at http://olms.cte.jhu.edu/20361. The Process Guide is issued by MSDE for use by IEP teams when developing IEP s.
Page 6 CORRECTIVE ACTIONS/TIMELINE: Student specific MSDE requires BCPS to convene an IEP meeting not later than July 1, 2010, unless the student s mother agrees to meet at a later date. At the meeting, the team must determine whether the student s ability to receive educational benefit from her program was adversely impacted as result of the violation related to the lack of provision of indirect classroom instruction in accordance with the IEP. If the team determines an adverse impact, then the team needs to determine the amount and nature of compensatory services 2 or other remedy necessary to redress the adverse impact. BCPS must provide the student s mother with proper written notice of the team s determinations, including a written explanation of the basis for the determinations, as required by 34 CFR 300.503. If the student s mother disagrees with the decisions, she maintains the right to request mediation and to file a due process complaint to resolve the dispute consistent with IDEA. School-Based MSDE requires BCPS to provide documentation by the start of the 2010-2011 school year of the steps taken to determine if the procedural violation identified in the LOF is unique to this case or if it represents a pattern of noncompliance at XXXXXXXXXXX. If there is a pattern of noncompliance, BCPS shall also provide MSDE with documentation of the steps that have been taken to ensure compliance with the requirements, including a description of how it will evaluate the effectiveness of the steps taken to ensure that the violation does not recur. Documentation of all corrective action taken is to be submitted to this office to: Attention: Chief, Complaint Investigation/Due Process Branch, Division of Special Education/Early Intervention Services, MSDE. TECHNICAL ASSISTANCE: Technical assistance is available to the parties through Mrs. Martha J. Arthur, Education Program Specialist, MSDE. Mrs. Arthur may be contacted at (410) 767-0255. Please be advised that both parties have the right to submit additional written documentation to this office within fifteen (15) days of the date of this letter if they disagree with the findings of fact 2 Compensatory services, for the purposes of this letter, mean the determination by the IEP team as to how to remediate the denial of appropriate services to the student (34 CFR 300.151). This does not address compensable awards under the Vaughn G. Consent Decree.
Page 7 or conclusions reached in this LOF. The additional written documentation must not have been provided or otherwise available to this office during the complaint investigation and must be related to the issues identified and addressed in the LOF. If additional information is provided, it will be reviewed and MSDE will determine if a reconsideration of the conclusions is necessary. Upon consideration of this additional documentation, this office may leave its findings and conclusions intact, set forth additional findings and conclusions, or enter new findings and conclusions. Questions regarding the findings, conclusions and corrective actions contained in this letter should be addressed to this office in writing. The student s parent and the school system maintain the right to request mediation or to file a due process complaint, if they disagree with the identification, evaluation, placement, or provision of a free appropriate public education for the student, including issues subject to a State complaint investigation, consistent with IDEA. MSDE recommends that this LOF be included with any request for mediation or due process. Sincerely, Carol Ann Heath, Ed.D. Assistant State Superintendent Division of Special Education/ Early Intervention Services CAH:ks c : Andrés Alonso Tiffany Puckett Jay Salkauskas XXXXXXXX Dori Wilson Martha Arthur Kathy Stump