ONTARIO SPECIAL EDUCATION (ENGLISH) TRIBUNAL
B E T W E E N:
K. and D.
Appellants
-and-
WINDSOR-ESSEX CATHOLIC DISTRICT SCHOOL BOARD
Respondent
DECISION
Tribunal Members: Paula Barber, Chair
Peter Cassell, Member
Donna Gracey, Member
Indexed as: D. v. Windsor-Essex Catholic District School Board
ONTARIO SPECIAL EDUCATION (ENGLISH) TRIBUNAL File #38
IN THE MATTER OF the Education Act, R.S.O, 1990, E2, as amended, 57(3) AND
IN THE MATTER OF Ontario Regulation 181/98;
AND IN THE MATTER OF the minor child, born 1992.
Tribunal Members:
Paula Barber Chair
Peter Cassell Member
Donna Gracey Member
Appearances:
Appellants:
K Parent on behalf of the child
D Parent on behalf of the child
B Advocate for the parents
M Advocate for the parents
Respondent
J. Paul R. Howard Counsel for the Windsor-Essex Catholic District School Board
Diane M. Abbey Counsel for the Windsor-Essex Catholic District School Board
David C. Murray Special Education Consultant, Windsor-Essex Catholic District School Board
The Hearing was held in the Guard Room at the Ramada Plaza Hotel and Suites, 430 Ouellette Avenue, Windsor, Ontario on July 7, 8, & 9, 10, 2003. Preliminary matters were heard on May 16 and May 23, 2003, by audio conference.
Jurisdiction
The Position of the Windsor-Essex Catholic District School Board
During the preliminary hearing conducted by teleconference on May, 9, 2003, Mr. Paul R. Howard, counsel for the Windsor-Essex Catholic District School Board (WECDSB), submitted that the Tribunal was without jurisdiction to hear and address the parents’ appeal and therefore the appeal ought be dismissed.
Mr. Howard stated that the subject matter of the parents’ appeal was not capable of being appealed because the parents’ appeal was not an appeal in respect of identification and placement “within the meaning of Section 57(3) of the Education Act”.
Mr. Howard argued as well, that because the appellants have commenced a complaint with the Human Rights Commission that the Tribunal should decline to hear the appeal to avoid a multiplicity of proceedings.
Mr. Howard relied on s.s.1 (1), 8(3), 57 and 170 (1) of the Education Act, R.S.O. 1990, c. E.2, as amended, and Ontario Regulation 181/98.
The Board submitted that the disputed IPRC decision of June 21, 2002, which described the placement as “Regular Class/Resource Assistance” and under “Recommendations” recommended that the child “Continue in present placement with Resource Support as deemed appropriate by school personnel”, was the appropriate placement for the child.
Further IPRC recommendations stated that “The parents and school establish a co-coordinated home and school program that communicates daily and specifically on identified topics”; that the child have the opportunity to practise basic socialization and life skills; and that the child needs an individualized academic program which differs from grade level expectations.”
The appellants refused to sign this IPRC decision and requested a Special Education Appeal Board hearing and subsequently, a Special Education Tribunal hearing.
The WECDSB, initially, was unsure about the grounds for the appeal to the Tribunal, having only a statement from the parents which read, ‘Our child can ill afford another day to go by without the proper program, services and supports in place.” The Board requested more information about the parents’ grounds for appeal.
The WECDSB received a letter from the Secretary of the Tribunal, B. Wyman, with an outline of the remedies that the parents were seeking from the Tribunal. Mr. Howard argued that with the exception of the first request, that the child be identified as an exceptional child with “Multiple” exceptionalities, all the other remedies fall within the scope of the Human Rights Complaint proceedings.
During the preliminary hearing, Mr. Howard argued that the remedies sought by the parents for the child were outside the jurisdiction of the Tribunal. He stated that the parental requests addressed program and services, not placement.
Mr. Howard referenced the Education Act, R.S.O. 1990, c.E.2; Ontario Reg. 181/98; E v. Brant County Board of Education (1997), 1997 CanLII 366 (SCC), 142 D.L.R. (4th) 385 (S.C/C.); B (Litigation guardian of) v. Ottawa Carleton District School Board. (2003) 2003 CanLII 19087 (ON CA), 170 O.A.C. 248 (Ont.CA); P v. Sudbury Catholic District School Board, [1997] O/J. No. 4698 (Div. Ct.) and D v. Toronto District School Board (24 December 2001), Ontario Special Education (English) Tribunal [2001 ONSET 2], in his arguments for dismissing the appeal.
Mr. Howard maintained that the remedies requested were outside the scope of the term “placement” and therefore the appeal should be dismissed.
Parents’ Position
The parents argued that the placement designation of “Regular Class with Resource Assistance” and the recommendation, “Resource Support as deemed appropriate by school personnel” was neither clear nor specific and that under the circumstances they could not agree to a placement where the placement was not described in clearer terms so that they could make an informed decision about whether the placement would meet their child’s needs as a pupil with multiple exceptionalities.
The parents are seeking a specific remedy: an appropriate placement for their child, which will ensure that the needs as identified by competent and qualified professionals, are addressed in a manner that is consistent with the Education Act and Regulations. It is the expectation of the parents that the Tribunal will address the needs, identification and placement.
The parents argued that if they were to wait until the Human Rights Complaint was resolved, valuable time might be lost regarding their child’s education. By proceeding to a Tribunal, the parents could plan for their child in a timely manner for the school year, 2003-04. A Human Rights investigator told the appellant that a Human Rights complaint could take four years.
The parents argued that the Special Education Appeal Board established by the School Board to hear the appeal decided in favour of the parents; that is that the placement as described would not allow the parents to determine if the placement would meet the needs. [The School Board did not accept the recommendations of the Special Education Appeal Board and upheld that IPRC decision, and therefore, the parents appealed to the Tribunal to hear their appeal.] The parents referenced D v. Toronto District School Board (December 24, 2001, 2001 ONSET 2), L v. Le Conseil Scolaire De District Catholique Du Centre Est De L’Ontario (November 2, 2001, 2001 ONTED 1), O v. Wentworth County Board of Education (1987 ONSET 1) and other recent tribunal decisions in which the Tribunal did not take, as quoted from the D Tribunal “a narrow view of placement as a location for a program.”
Legal Framework for the Decision on Jurisdiction
Statute and Regulations:
The Education Act and the relevant regulations do not define the term ‘placement”. However, subsection 1(1) does contain the following definitions:
“Exceptional pupil” is defined as,
a pupil whose behavioral, communication, intellectual, physical or multiple exceptionalities are such that he or she is considered to need placement in a special education program by a committee, established under subparagraph iii of paragraph 5 of subsection 11(1) of the Board
(a) of which the pupil is a resident pupil,
(b) that admits or enrolls the pupil other than pursuant to an agreement with another board for the provision of education, or
(c) to which the cost of education in respect of the pupil is payable by the minister.
A “special education program” is defined as,
in respect of an exceptional pupil, an educational program that is based on and modified by the results of continuous assessment and evaluation and that includes a plan containing specific objectives and an outline of educational services that meets the needs of the exceptional pupil.
The term “special education services” is defined as:
facilities and resources, including support personnel and equipment necessary for developing and implementing a special education program.
The Education Act, Subsection 8 (3), Powers of the Minister of Education, outlines the duties of the Minister:
The Minister shall ensure that all exceptional children in Ontario have available to them in accordance with this Act and the regulations, appropriate Special Education programs and services without payment of fees by parents or guardians resident in Ontario and shall provide for the parents or guardians to appeal the appropriateness of the special education placement and for these purposes the minister shall;
(a) require school boards to implement procedures for early and ongoing identification of the learning abilities of all pupils and shall prescribe standards in accordance with which such procedures be implemented; and
(b) in respect to special education programs and services define exceptionalities of pupils, prescribe classes, groups or categories of exceptional pupils, and require boards to employ such definitions or use such prescriptions as established under this clause.
Regulation 181 Subsection 17 (1) states that,
When making a placement decision on a referral under Section 14, the committee shall, before considering the option of placement in a special education class, consider whether the placement in a regular class, with appropriate special education services,
(a) would meet the pupils needs; and
(b) is consistent with parental preferences.
Ministry of Education Documents
The Ministry of Education’s Special Education: A Guide for Educators (2001), at page D10, defines the placement, Regular Class with Resource Assistance in the following way:
The student is placed in the regular class for most or all of the day and receives specialized instruction, individually or in a small group, within the regular classroom from a qualified special education teacher.
The Ministry of Education has published definitions of exceptionalities as required by the Education Act, Section 8(3). From Special Education: A Guide for Educators, at page A20, there is a description of all the exceptionalities, including the definition of “Multiple Exceptionalities”, the child’s identification, which is described as:
A combination of learning or other disorders, impairment, or physical disabilities that is of such a nature as to require, for educational achievement, the services of one or more teachers holding qualifications in special education and the provision of support services appropriate for such disorders, impairments, or disabilities.
Previous Tribunal Decisions
In D v. The Toronto District School Board (2001 ONSET 2) the Tribunal wrote,
the IPRC of May 28, 2001, did not identify the child’s needs in the statement of decision which stated, “See IEP” regarding strengths and needs. The parents believe that the description of the needs is fundamental to the child’s placement. The parents believe that they have a right to contribute to the statement of needs at the IPRC meeting and that they have a right to discuss special education services within the framework of the IPRC process.
The Tribunal agreed with the parents’ rights to discuss needs and services at an IPRC meeting before making a decision, and stated, in the reasons for its decision,
The Tribunal agrees with the parents that the needs of the child and the appropriateness of the placement are an integral part of an IPRC decision and that the needs and services should be discussed at an IPRC before a placement decision can be made:
Regulation 181, subsection 16 (1) The committee may discuss any proposal for special education services or special education programs and shall do so at the request of a parent or a pupil who is 16 years of age or older….
While the Tribunal acknowledges that an IPRC may only make decisions regarding identification and placement, it also recognizes that the issue of appropriate programs and services is a necessary part of an IPRC.
Regulation 181 Subsection 17(1) further supports our view that consideration of appropriate services is a necessary part of an IPRC:
When making a placement decision…the committee shall, before considering the option of placement in a special education class, consider whether placement in a regular class with appropriate special education services,
(a) would meet the pupil’s needs: and
(b) is consistent with parental preferences
Therefore the Tribunal feels that the Toronto District School Board has taken a narrow view of the term, “placement”. Regulation 181, Sections 16 and 17 acknowledges the need to discuss a pupil’s needs and the relevant special education services and programs before coming to a decision about placement. A placement is only meaningful if the parent is familiar with the programs and services attached to the placement.
The Tribunal drew from O v. Wentworth County Board of Education (1987 ONSET 1). In its reasons for hearing an appeal where there was a motion to dismiss the appeal because the Board said that the Tribunal did not have jurisdiction, the Tribunal stated,
When making a determination of placement, an IPRC must consider the nature and content of the program, and the services necessary for developing and implementing a special education program and that these should be considered as to their appropriateness in meeting the needs of the pupil.
Decision regarding Jurisdiction
The Tribunal, considering the above legislation and case law, decided the IPRC decision, June 17, 2002, of the Windsor-Essex Catholic District School Board, “Regular class placement with resource assistance” and the recommendation, “Resource Support as deemed appropriate by school personnel,” to be lacking in such clarity and detail that the parents could not make an informed decision to determine if the proposed placement as described would meet the needs of their child who had been identified as having “Multiple” exceptionalities.
The legislation uses the term “appropriate special education services”. By using the language, “resource support as deemed appropriate by school personnel,” the parents are left with nothing tangible upon which to make a decision about the placement and its appropriateness.
The Tribunal is of the opinion that it would need to hear the appeal to understand the needs of the child with “Multiple” exceptionalities and to determine if the placement that was offered to the parents for the child was appropriate to meet the needs. It is necessary to hear about the “program” offered to the child because the “program” is often intertwined with placement. If the program is inappropriate, then it follows that the placement is inappropriate.
The Board’s preliminary motion on jurisdiction is therefore rejected.
Other Preliminary Matters
There were several other matters raised at the preliminary hearing:
- Mr. Howard raised the issue of proceeding prior to the decision of the Human Rights investigation. He argued that there should not be two court proceedings occurring at the same time when there were overlapping issues and that the courts frowned upon a “multiplicity” of proceedings. The child’s father, in response, argued that it sometimes took four years for a decision from the Ontario Human Rights Commission to be released and that time was of the essence for their child. He requested that the Tribunal proceed.
The Tribunal made a decision to proceed with the hearing irrespective of the other court proceeding since the Tribunal is not a “Court” and believed that it was appropriate to get the issues resolved so that the child would be receiving an education that would meet the needs for the beginning of the school year, 2003-04.
- The child’s father objected to the proceedings by the Ontario Human Rights Commission being presented to the Tribunal by the respondent without the parents’ permission. He argued that this was privileged information that should not have been released by Mr. Howard on behalf of the Board.
The Tribunal had already received the materials prior to the teleconference when this issue was raised. The decision of the Tribunal was to seal the Human Rights documents and to prohibit this information from being made available to anyone other that the tribunal members and the secretary of the Tribunal. At the close of the Tribunal, all copies of the material relating the Human Rights Complaint that the Tribunal received for the preliminary issue would be destroyed other than the one sealed copy that would remain with the secretary for the Tribunal, Mr. Wyman,
- The advocate for the child’s family, requested an answer as to whether the Tribunal was a police agency [in the context of the Freedom of Information discussion].
The Chair responded to that query at the Hearing answering on July 7, 2003, that the Tribunal was an “administrative tribunal”, not a police agency.
Preliminary Matters raised at the Hearing, July 7, 2003:
The matter of scheduling the witnesses was agreed to by the parties.
The parties agreed to the matter of excluding witnesses, apart from Mr. Murray. The appellants requested that Mr. Murray be excluded from the hearing.
The Tribunal ruled that Mr. Murray would be allowed to remain in the hearing room as the Board’s support for Mr. Howard. Mr. Murray would be the first witness for the respondent and would remain in the room during the opening statements of the appellants.
- In the context of the receipt of the Human Rights documents at the Preliminary Hearing on May 9, 2003, the appellants requested a response from the Chair regarding whether the Special Education Tribunal was a law enforcement agency. The appellants argued that the Human Rights documents distributed by the respondent at the preliminary hearing should not have been brought forward because these were privileged documents. The respondent argued that this was evidence that the Tribunal needed in order to make a decision regarding the jurisdictional authority of the Tribunal.
The Tribunal had received the Human Rights documents prior to the preliminary hearing on May 9, 2003 and decided during the hearing that it would seal those documents.
The Tribunal responded that the Special Education Tribunal was an administrative tribunal and in its functioning would give a wide scope to parties regarding evidence submitted. During deliberations the Tribunal would weigh the evidence with respect to its relevance. The Tribunal stated that if the Human Rights documents were brought forward during the hearing that the appellants could challenge their relevance at the time and the Tribunal would make a ruling then.
The appellants requested that the Tribunal consider the Term “Multiple” to include under the category, “Communication”- the term “Language”, and under the category, “Intellectual”- the term “Mild Intellectual Disability”. Mr. Howard, on behalf of the respondent stated that respondent could agree to the term “Language/Speech” but that the Board would rely on the expert testimony to determine the most appropriate terminology, under “Intellectual”- “Mild Intellectual Disability” or “Developmental Disability”. The appellants requested that the Tribunal issue an order regarding the child’s identification, so that the appellants would not have to wait until an IPRC made the determination of her identification.
The respondent noted that its participation in the hearing on the merits was not a waiver of their concerns regarding the jurisdiction of the Tribunal. The respondent informed the Hearing that it had served notice of application for judicial review in respect of the preliminary hearing. Mr. Howard on behalf of the Board stated that this notice was given to make it clear that the Board continued to have concerns regarding the jurisdiction of the Tribunal to hear the matter.
The respondent objected to the request from the appellants that the respondent issue subpoenas to two of the appellant’s witnesses so that these witnesses could be cross-examined by the appellants.
The Tribunal decided that it would hear from these witnesses, not just receive the reports that these witnesses had prepared. The Chair signed subpoenas for one of the witnesses and due to the fact that the other witnesses would not be able to attend the hearing the parties agreed to accept her report without having her appear.
The issue regarding the disclosure of experts’ reports was resolved between the parties. During cross-examination the respondent could question the expert witness regarding her files.
The respondent questioned the relevance of calling a member of the Special Education Appeal Board. (SEAB)
The Tribunal determined that it would allow the (SEAB) witness to give testimony with the caution that the witness would only be allowed to testify as to the placement issue at hand.
- The respondent raised the issue of the scope of the proceedings and the relevant time period. The issue arose because the appellants wanted the Board to call two employees of the WECDSB who were the child’s teachers during the school year 2001-02. The respondent argued that the scope of the Tribunal is the present and wanted the Tribunal to make an order for the placement of the child, and not review past conduct.
The Tribunal stated that it would grant the appellants’ request to subpoena two witnesses from the school year, 2001-02.
- Regarding the appellants’ claim for relief for damages and cost claims and for costs related to Occupational Therapy, the Tribunal informed the appellants the Tribunal did not have authority to award costs. The Tribunal has no authority to order an agency of another ministry [Community Care Access Centre which is under the auspices of the Ministry of Health] to provide a service. The Tribunal would not consider these issues of costs and claims for damages.
PLACEMENT, IDENTIFICATION, (AND JURISDICTION REVISITED)
Introduction
According to her mother and father, the child is a ten-year-old who attended Grade 4 at the school during the past school year, 2002-03. At the age of three, extensive testing began with the child. There is no formal diagnosis of the condition, but the child has cognitive delays and apraxia of speech, central sensory processing [senses are heightened’ to light, loud noises and sounds, foul smells]; gross and fine motor ability; speech and language development (apraxia of speech) and sleep apnea. The child has severe separation anxiety. Realizing they may never know exactly what is wrong with the child, the parents began helping the child overcome the hurdles. The parents provide extensive support through a variety of professionals and support workers for the child in their home and in the community. The child is, according to her father, a happy, loving child, eager to please and eager for attention-“Everyone loves the child. The infectious laugh and smile make it impossible not to.”
The child has been identified as having multiple exceptionalities. The Ministry of Education defines the exceptionality, Multiple as:
A combination of learning or other disorders, impairment, or physical disabilities
that is of such a nature as to require, for educational achievement, the services of
one or more teachers holding qualifications in special education and the provision
of support services appropriate for such disorders, impairment, or disabilities.
Legal Framework
Statutes and Regulations
The Education Act , R.S.O. 1990, c.E.2, sections 1 (1), (3), 8(3), (11), (40), 57(3), 170(1)
Regulation 181/98, to The Education Act
Human Rights Code, R.S.O. 1990, sections 1, 10(1),(3), 11, 17
Municipal Freedom of Information and Protection of Privacy Act, (R.S.O. 1990, c. M. 56)
The Ontarians with Disabilities Act, R. S. O. 2002
Ministry of Education Documents
Policy/Program Memorandum No. 81 (July 19, 1984) Provision of Health Support Services in School Settings.
Student Focused Funding, Legislative Grants, 2003-04, ISA Level 2, section 17, ISA Level 3, Section 18.
Student Focused Funding: Addendum-ISA Guidelines 2001-02 (Summer 2001) Criteria for ISA Claims Submitted for Profiles 7.2/7.3- Intellectual Disability
Previous Tribunal Decisions
B (Litigation guardian of) v. Ottawa-Carlton District School Board (2003), 2003 CanLII 19087 (ON CA), 170 O.A.C. 248 (Ont.C.A.)
P v. Sudbury District Roman Catholic Separate School Board (1997), 104 O.A.C. 367
D and H v. Toronto District School Board (24 December 2001), Ontario Special Education (English) Tribunal [2001 ONSET 2]
L v. Le Conseil Scolaire De District Catholique Du Centre Est De L’Ontario (Novembre 2, 2001) Ontario Spécial Education (French Tribunal) [2001 ONTED 1]
O v. Wentworth County Board of Education (1987 ONSET 1)
A v. Halton Board of Education , October 29, 2000 (2000 ONSET 2)
Court Decisions
E v. Brant County Board of Education (1997), 1997 CanLII 366 (SCC), 142 D. L. R. (4th) 385 (S.C.C.)
Other Sources Cited
The United Nations Convention on the Rights of the Child, Articles 2.1, 2.2, 3.1, 3.2, 6.2, 23, 27.1, 27.2, 28, 29
The United Nations Declaration of the Rights of the Disabled Persons, section 3
Ontario Human Rights Commission, Policy and Guidelines on Disability and the Duty to Accommodate (2001)
Ministry of Education Definitions of Exceptionalities
The Ministry of Education defines “Multiple Exceptionalities as:
A combination of learning or other disorders, impairments, or physical disabilities that is of such a nature as to require, for educational achievement, the services or one or more teachers holding qualifications in special education and the provision of support services appropriate for such disorders, impairments, or disabilities.
The Ministry of Education defines “Language Impairment” as:
A learning disorder characterized by impairment in comprehension and /or the use of verbal communication or the written or other symbol system of communication, which may be associated with neurological, psychological, physical, or sensory factors, and which may:
a) involve one or more of the form, content, and function of language in communication; and
b) include one or more of:
-language delay
-dysfluency;
-voice and articulation development, which may or may not be organically or functionally based.
The Ministry of ‘Education defines a “Mild Intellectual Disability” as
A learning disorder characterized by:
a) an ability to profit educationally within a regular class with the aid of considerable curriculum modification and support
b) an inability to profit educationally within a regular class because of slow intellectual development;
c) a potential for academic learning, independent social adjustment, and economic self-support.
Issues
The Appellants’ Request
The appellants request that the placement decision of the Windsor-Essex Catholic District School Board dated June 21, 2002, “Regular Class Placement/Resource Assistance” with “Resource Support as deemed appropriate by school personnel” be set aside and that the placement be described to the degree that the parents could understand that the placement would meet the child’s needs.
The parents wanted the child within the regular classroom with 1 to 1 individualized teaching and support by a qualified, consistent adult to meet the needs so the child may benefit from a special education program designed and outlined from the Ontario Curriculum.
As well, the parents asked the Tribunal to make a decision regarding the child’s identification. The parents agree with the term, “Multiple”, but requested that the descriptors within “Multiple”, include, under the category, “Communication” that the child be identified with a Language Disability and under the category, “Intellectual”, with a “Mild Intellectual Disability”.
The parents also requested an Individual Education Plan (IEP) be created in conjunction with the parents and outside professionals involved in providing treatment for the child. The parents believed that they had no input into the June 21, 2002 decision and that they received insufficient information about the proposed placement to make an informed decision. The parents want the Board to identify the child’s needs from the evidence of professionals who have assessed the child and to draw up a comprehensive plan based on the needs. The parents do not want the needs to be based on resources available or to be written in a way to maximize ISA funding from the Ministry.
Because the parents believed that the child had regressed over the last two years, the parents wanted intensive remediation in reading, printing, Math and writing areas.
The parents wanted a personal computer for the child to allow access to the regular curriculum and to assist in language and math areas.
The parents wanted a referral to the Community Care Access Centre so that recommendations by the Occupational Therapist (O.T.) could assist the school personnel. The parent believed that the recommendations of the O.T. were not being followed. [Under Program Policy Memorandum #81, schools are responsible for establishing referral protocols with the Community Care Access Centres (CCAC) in the province so that children with therapy needs, for example, Speech Therapy and Occupational Therapy, can obtain access to professionals hired by the CCACs who will come into the schools and provide therapy to children who need this service].
The parents wanted Speech and Language Therapy from CCAC to continue until it was deemed unnecessary by a mutually agreed third party.
The parents had taken issue with the terminology, “multiple handicapped’ that had been used on the IPRC form because it does not conform to Ministry of Education definitions. Prior to the hearing the Board agreed to change the term to “Multiple” to conform to the Ministry definition.
The parents want the child to get an academic and social education, to the best of the child’s abilities and to be offered a program that manages behaviours and prepares the child to participate and learn. The parents acknowledge that the child has variability in skills, but state that the child is far more capable than the current expectations that have been set by the school. The child’s father stated that the parents believe that the child’s educational documentation is based on meeting criteria for ISA (Intensive Support Amount) funding to generate dollars for the Board, rather than meeting the child’s needs. He further stated that in an attempt to maximize that funding the Board has painted an overly negative picture of the child’s potential.
In support of their argument that the Tribunal has the jurisdiction to hear the merits of the matter regarding their child, the parents referenced D which stated that, “the needs of the child and the appropriateness of the placement are an integral part of the IPRC decision and that needs and services should be discussed at an IPRC before an IPRC decision can be made.” The Tribunal in D further stated, “While the Tribunal acknowledges that an IPRC may only make decisions regarding identification and placement, it also recognizes that the issue of appropriate program and services are interconnected with the issue of placement and the consideration of appropriate services is a necessary part of an IPRC.” B, O, A, and L were also referenced.
In his closing statement, the child’s father added that the parents wanted the Tribunal to order the Board to implement the recommendations of the Special Education Appeal Board and wanted the Tribunal to make a statement about the Board’s conduct.
The Board’s Reply
The Board requested that the Tribunal dismiss the appeal and that the decision of the Windsor-Catholic District School Board of June 21, 2002 to place the child in a “Regular Class / Resource Assistance” and “Resource Support as deemed appropriate by school personnel” be upheld. The further recommendations, that the parents and the school establish and coordinate a home and school program that communicates specifically and daily on identified topics; that the child have daily opportunities to practise basic socialization and life skills; and that the child’s needs an individualized academic program which differs from the grade expectations and outcomes were put forward by Mr. Howard. The respondent argued that the child’s needs were being met in the placement as set out in the decision of the June 21, 2002 IPRC.
The respondent continued to maintain that it has concerns regarding the jurisdiction of the Tribunal to address the issues raised by the appellants. Mr. Howard referenced the Education Act and Regulation with respect to the Tribunal’s responsibility in making an order regarding identification and placement and the ability to make recommendations regarding programs and services.
Mr. Howard indicated that the Board and parents have always been in agreement that the child is an exceptional pupil and with the child’s identification under the category “Multiple”. With clarification of the term, “Multiple”, the Board has demonstrated willingness to deal with the issue of “Language” used to describe the “Multiple” identification.
Mr. Howard stated that the current placement in the regular Grade 4 class is consistent with the Board’s inclusionary philosophy and parents’ wishes. In the view of the respondent the regular class continues to be the best placement for the child.
Mr. Howard stated that there is a divergence of views related to programs and services. The Board is providing supports and services with the resources available to it. Mr. Howard states that the child is receiving appropriate support and in some instances the child is receiving support services that some children are not. For example, the provision of speech language therapy provided by the Board was referenced in his opening statements. The Board and staff have concerns that the child not become overly dependent on the support provided so that the child may achieve complete and independent functioning, to the best of the child’s ability.
There have been occasions where the Board has ceded to the parents wishes.
According to Mr. Howard, the issues are over the appropriate program and support services to be provided to the child: the nature of the programming; teaching strategies; program delivery; and the extent of support services that should be made available to the child.
Mr. Howard ended his opening remarks with the comment that we are here to determine the most appropriate placement for the child. He stated that this past year has been a positive year for the child and reminded us to focus on the child, not the past. He further stated that past conduct should not be the focus for the Tribunal. The focus should be the best interests and appropriate placement for the child. He summed up his opening comments with a quote from the child’s classroom teacher, “The child is a joy to have around. The child is very enthusiastic. Meeting most of the needs is demanding but the child’s personality and attitude make it enjoyable. It would not be the same classroom without the child there.” Mr. Howard, on behalf of the respondent asked the Tribunal to order a placement in a regular class with support and to dismiss the balance of the parents’ appeal.
Tribunal’s Determination of the Issues
The Tribunal determined that the principal issue in this hearing is the appropriateness of the placement, Regular Class/ with Resource Assistance, for the child and whether the child’s needs can be met in this placement.
As a second issue, the parents asked the Tribunal to make a decision regarding the components of the identification category, “Multiple” to include “Language”, and “Mild Intellectual Disability”.
As a third issue, the Tribunal revisits its decision on jurisdiction in light of the evidence and argument heard at the hearing on July 7, 8, 9 and 10.
Witnesses
The Tribunal heard the following witnesses during the four days of the hearing:
For the Appellants
Mother................................... Parent
Father................................... Parent
Dr. Colleen McMullin......... Psychologist in Private Practice
Robin Patterson.................. Speech-Language Therapist (Private Practice)
Sheila Rodrigues................ In-home Support Worker
Lindsay Moir........................ Advocate, Consultant to parents
Marilyn Dolmage................. Member of Special Education Appeal Board, Social Worker in Private Practice
C………………… ………. Educational Assistant
For the Respondent
David Murray....................... Special Education Consultant
Classroom Teacher............ Teacher, (2002-03)
Fred Lessard........................ Principal
Learning Enrichment Teacher….. Teacher
M............................................ Educational Assistant
Sue Papineau..................... Speech-Language Pathologist
Kristin Nantais..................... Psychometrist
Tracy Roberts-Maurizio...... Occupational Therapist (Children’s Resource Centre)
Arguments
The Appellants’ Position:
The parents disagreed with the IPRC placement recommendation of June 21, 2002, “Regular classroom/resource assistance” and “with resources as deemed appropriate by school personnel.” The parents stated that they are appealing the decision of the IPRC because there was no opportunity to discuss the program or services within the placement that was proposed. The parents stated that they were unsure whether the proposed placement would meet the child’s needs since they were not provided with a current appropriate Individual Education Plan. The parents had not disagreed with the placement in the school year, 2001-02 because they were aware of the nature and amount of support that the child was receiving in the regular class placement. The parents agree with the identification as Multiple, but have requested that within that definition that the child be identified as having a Language Disability and a Mild Intellectual Disability.
The Windsor-Essex Catholic District School Board’s Position:
The Board’s position is that the placement, “Regular Class/Resource Assistance- with support as deemed appropriate by school board personnel” is meeting the child's needs and that the parents are really challenging programming, not placement, in that the parents want more resource support for their child. The WECDSB believes that the placement proposed by the IPRC on June 21, 2002 is the most appropriate placement for the child and believes that the past school year, in the placement that was proposed in June 2002 IPRC, the IPRC under dispute, has been successful for the child because the child showed progress in all of the various needs during the past year. The Boards’ position is that the parents’ requests are outside the jurisdiction of the Tribunal.
Analysis and Reasons
Background
The Tribunal relied on the following background information in reaching its decision:
The child is a ten-year-old student who at the time of the hearing had just completed Grade 4 at the school, in the Windsor-Essex Catholic District School Board. The pupil was diagnosed as a child with a global developmental delay of an undetermined origin in several areas: central sensory processing, gross and fine motor ability, speech and language development ( apraxia of speech), and overall cognitive development. The child has also been diagnosed with severe separation anxiety.
From Kindergarten to Grade 3, there had been a good deal of cooperation between the parents and school personnel.
The Tribunal heard that in Senior Kindergarten the child had 100% Educational Assistant support, which continued to the end of Grade 2.
In February of 2002, the child’s Grade 3 year, the relationship between the parents and school personnel deteriorated to the point that a trespass order which was still in effect at the beginning of the tribunal hearing was issued against the child’s mother.
The parents refused to sign the IPRC form from the June 21, 2002 meeting that identified the child as Multihandicap and recommended placement in the Regular Classroom with resource assistance.
Specifically, the parents object to the terminology, Multihandicap, requesting the terminology used by the Ministry of Education as, Multiple. Prior to the Tribunal hearing the Board had changed the terminology to Multiple.
The parents objected to the terminology on the IPRC form under “Recommendations” which stated, “Continue in present placement with resource support as deemed appropriate by school personnel”.
The parents claimed that at the IPRC meeting no one was prepared to discuss the programs or services that the child would have available in the proposed placement. At the meeting, the parents were told to wait until September to talk to the new principal.
In a letter to the Director of Education, dated, July 2, 2002, the parents requested an appeal of the June 21, 2002 decision, stating, “We are unable to determine if the proposed placement will meet the needs, as per Section 170(1) 7 of the Education Act. Staff of the school and members of the Identification, Placement and Review Committee were unable to produce a current appropriate Individual Education Plan for the child and were not able to describe the program and services, which would be put in place by September.” They further stated, “In essence, as parents, we were being asked to agree to a placement and agree that it would meet the needs, with little or no information. This is not acceptable to us”.
The child began school in September 2002 in a Grade 4 classroom at the school and remained there for the school year 2002-03 while the appeal processes occurred.
The parents sent another letter to the Director of Education on September 23, 2002, requesting a Special Education Appeal Board Hearing.
The Special Education Appeal Board Hearing took place on January 17, 2003.
The Appeal Board agreed with the parents’ assertion that the “wording contained in the recommendation of the IPRC decision on June 21, 2002, would exclude them from consultation about their child’s program/IEP”. The Appeal Board then stated, “We believe that the atmosphere at the time was so antagonistic that it would be unreasonable for the parents to trust that the Board would provide ‘appropriate supports”.
In its decision, The Appeal Board stated, “Based on these considerations, the Special Education Appeal Board supports the parents’ appeal in that the IPRC decision of June 21, 2002 is neither clear nor in keeping with the Ministry Regulation.”
On April 8, 2003, Mr. M. Moher, the Director of Education wrote to the child’s parents informing them that the Windsor-Essex Catholic District School Board considered the decision of the Special Education Appeal Board and decided to uphold and implement the original decision of the IPRC of June 21, 2002, stating that the Board had not received the written psychological report from Dr. McMullin.
The parents then wrote to the Secretary of the Special Education Tribunal, Mr. B. Wyman, requesting a hearing before the Special Education Tribunal.
A Special Education Tribunal was convened to hear the preliminary matters by audio conference on May 16 and May 23, 2003 and the full hearing was conducted on July 7, 8, 9, and 10.
Basis for the Decision
The principal issue in this hearing is whether the child’s needs can be met in the placement proposed in the June 23, 2002 IPRC decision.
The Tribunal heard from several witnesses regarding the child’s program in the Grade 4 classroom, the placement recommended by the June 23, 2002 IPRC. As well, the Tribunal heard from many witnesses whom the parents had hired to work with the child at home, outside the regular class placement. Report cards and reports from professionals who had assessed the child over the years were read and examined.
From the evidence presented by both the School Board’s and parents’ witnesses, there is agreement that the child is a pupil with multiple exceptionalities. She is significantly behind age peers in academic areas, and appears to be functioning at a “readiness” or early Grade 1 level.
During the past school year, the classroom teacher was able to successfully modify the academic program in the content areas in subjects such as Science and Social Studies where the child did the same subjects as classmates, but had different goals, a different evaluation scheme and fewer questions. According to the teacher who developed the system for modifying these subjects, the child was successful in achieving the expectations that he set.
We heard, as well, about the parents’ desire for the school to offer an academic program for the child, a program at a level where the child would make academic gains, rather than a “life skills” or alternative program. The parents indicated that they were frustrated by the report cards and reporting system that did not give them a clear understanding of the child’s progress in academic areas.
The parents had hired a number of people who worked with the child at home to assist with the academic program.
Dr. Colleen McMullin, a psychologist in private practice with considerable experience in assessing children with a developmental disability, testified that she believed that the child needs an intensive language arts and mathematics program to allow the child to reach potential. Dr. McMullin also testified that the child tended to withdraw, unless an adult kept the child focused on the task at hand. Dr. McMullin was very specific in her recommendations about the child’s learning needs that required one-on-one direction in an academic situation.
The parents were concerned that the Board was using the ISA criteria [the system that the Ministry of Education uses to fund school boards for students who need intensive support] as the basis for developing learning expectations for the child. By using the identifier, “Developmental Disability” as a basis for developing the program, the parents believed that the Board had lowered the expectations for the child and that those lower expectations were limiting the child’s opportunity for learning to potential.
The Tribunal heard through testimony and read in the parent’s book of documents that language had been changed from “moderate developmental” to “developmental” to ensure ISA funding requirements at a higher funding level. [In describing the two categories of an intellectual disability, the Ministry of Education, in its policy book, Special Education, A Guide for Educators, describes only two categories of disability, “Developmental” for students with severe learning needs and “Mild Intellectual Disability” to describe student with less severe needs. The Ministry of Education does not have a category to describe, a “Moderate” disability. However, in the psychometric field there are several categories used to describe a student’s level of intellectual functioning including the term, “Moderate”.]
The parents were told that the child needed to take a “life skills” program or the funding may be in jeopardy. The parents believed that they could teach the child “life skills” at home. The parents wanted the school to teach the child academic skills, not “life skills”
The child had been diagnosed with Speech “apraxia”. In accordance with Policy/Program Memorandum #81, the School Board worked with the Community Care Access Centre, which provided speech therapy to school age children. The child was discharged from the Community Care Access Centre program because the child no longer met the criteria for service. The parents wanted a speech and language program delivered to the child at school to assist with current speech and language needs.
The Child’s Needs
Academic Needs
From the evidence presented by Dr. McMullin, the child needs a highly structured educational experience with ongoing opportunity for direct instruction and immediate feedback. While acknowledging that caution is required in using grade levels to describe learning levels, Dr. McMullin reported that the child is achieving at an early grade one level, at the “readiness” level in reading and language arts. According to Dr. McMullin, the child’s performance on standardized tests may not reflect the adaptive strengths, due to the child’s highly avoidant behavior in response to unfamiliar tasks. From the Psychological Assessment Report of February 2003, Dr. McMullin states, in describing the child’s learning style, “The child instantly becomes anxious, shuts out even the task instructions and responds abruptly and minimally in an effort to escape task demands.”
Dr. McMullin continues that “extensive accommodation and modifications are indicated in this context to the degree that the child cannot initiate or self-direct the learning experience. The child needs concrete approaches and short teaching sessions allowing for immediate success and over learning.”
In her report of February 2003, Dr. McMullin stated, "The child needs opportunities to build vocabulary and verbal conceptualization skills”… “activities to enrich verbal expression and fostering the ability to categorize, draw basic conclusions and predict basic outcomes...”. “Continued efforts to develop some basic phonetic skills would be appropriate. However the continued use of more vision-focused strategies with emphasis on building a strong bank of words commonly used in every day discourse and written expression (developing functional literacy skills) would be appropriate.”
Dr. McMullin stated in her report that the child has made slow but steady academic gains since the last assessment in that the gap between the child and age peers had not widened. Dr. McMullin stated in her report that the support that the child has received at home and at school attests to the ability to profit from instruction and continued learning.
The current classroom teacher (Grade 4) reported to Dr. McMullin “in the context of the modified program, the child was making good academic gains.”
The child receives frequent tutoring at home after school hours.
Social Needs
The child’s Grade 3 teacher described the child as a pleasant, friendly, shy student with a good sense of humour. Her Grade 4 teacher described the child as good-natured, a very polite student who enjoys the classroom atmosphere. He noted that the child cares for classmates and often volunteers to help them.
Outside school, the child participated in Music therapy, social/behavioral guidance, a horseback riding program and peer groupings.
The child needs specific opportunities beyond the classroom to increase the social interaction with peers.
Emotional Needs
As noted earlier, the child has been diagnosed with separation anxiety. This manifests itself in the following manner, as described by Dr. McMullin, “At the prospect of being left in the unfamiliar office setting without mother during the initial visit, an episode of catastrophic anxiety and avoidant behavior occurred where the child required 20 minutes to contain the agitation to the point where the child would sit down.” This separation anxiety could manifest itself in safety issues in which the child could wander off when left unsupervised.
The adults working with the child at school reported that they saw no signs of anxiety or related behaviours at school.
Communication Needs
The child has been diagnosed with speech apraxia and needs assistance in speech production. The School Board reported that it would continue speech therapy by the Board speech therapist. The parents feel that this is not sufficient and they believe that their child should continue to receive CCAC assistance.
A number of reports indicated that the child needs to develop vocabulary in order to be successful in developing academic skills and, as well, the development of a functional vocabulary will be of assistance to the child in developing social skills with peers.
The parents have requested an independent third party assess the child to determine if and when the child no longer needs speech therapy by the Community Care Access Centre providers.
Physical Needs
The occupational therapy report indicated that the child needs a “slant board” for writing to help maintain proper posture and a proper grip on the writing tool. The Tribunal heard that the child continues to need assistance with personal hygiene and needs supervision for toileting.
The sensory issues related to smell require adult supervision for toileting.
Analysis
The Tribunal agrees that the term “Multiple”, the Ministry term, is the appropriate term to use, rather than the term “Multihandicapped”, a term that could limit expectations for the child. The Board and the parents had reached an agreement regarding this terminology prior to the oral hearing. The Tribunal, from the evidence presented, agreed with the parents’ request to have the descriptor of “Communication-Language” used as one of the exceptionality terms within the definition of “Multiple”. There was ample evidence that the child needs an intensive language based program to allow the child to reach potential and to communicate with others. Language development for the child will be the basis for future success in academic areas as well as in social situations. Greater emotional strength is gained when children can communicate their needs. It was clear to the Tribunal that “Language” should be one of the descriptors under the “Multiple” category in defining the child’s needs.
The parents asked the Tribunal to issue an order to have a third party determine the child’s eligibility for speech language therapy through the Community Care Access Centre. The Tribunal has no authority over the delivery of speech services delivered by an agency funded by another Ministry, in this case, the Ministry of Health and cannot issue an order regarding the delivery of speech services by the Community Care Access Centre. Mr. Howard stated that the Board will continue to provide speech services through the board Speech-Language Pathologist. The Board’s Speech-Language Pathologist stated in testimony that the reason the CCAC gave for discharging the child from their services was because the child had “plateaued” and no longer met their criteria for their service. She also said that [under Policy/Program Memorandum #81 guidelines,] the Ministry of Health is responsible for providing speech therapy to school–aged children who have apraxia. She went on to say that if the child still had apraxia, the child would not have been discharged from the services of the CCAC. The Tribunal is suggesting that the board Speech-Language Pathologist initiate another referral to the CCAC to have them either reconsider their delivery of service to the child or to clarify to the parents their decision to discharge the child from speech services.
With respect to using the term, “Mild Intellectual Disability” rather than “Developmental Disability”, the Ministry uses the following definitions to describe these areas under the broad category of “Intellectual”.
A Mild Intellectual Disability described by the Ministry as:
A learning disorder characterized by:
a) an ability to profit educationally within a regular class with the aid of considerable curriculum modification and support
b) an inability to profit educationally within a regular class because of slow intellectual development;
b) a potential for academic learning, independent social adjustment, and economic self-support.
A Developmental Disability described by the Ministry as:
A severe learning disorder characterized by:
a) an inability to profit from a special education program for students with mild intellectual disabilities because of slow intellectual development;
b) an ability to profit from a special education program that is designed to accommodate slow intellectual development;
c) a limited potential for academic learning, independent social adjustment, and economic self-support.
There is a significant difference in these definitions. Students with an identification of “Mild Intellectual Disability” have the potential for academic learning, independent social adjustment, and economic self-support. Students identified as having a developmental disability are described as having limited potential for academic learning, independent social adjustment and economic self-support. It follows that a student identified with a Mild Intellectual Disability would have programming that would foster the potential for academic learning, independent social adjustment and economic self-support as compared to a life skills program that would be less rigorous and more practical.
Because of the concern that the psychological assessment report completed in 2000 may not accurately reflect the child’s current ability, the Tribunal is recommending that another psychological assessment be completed at the end of the school year 2003-04. The Tribunal does not have confidence that the 2000 psychological assessment accurately reflects the child’s learning potential. A new assessment must be completed to determine the child’s current level of cognitive functioning in order to assist in planning an appropriate program. Subsequent to that psychological assessment, an IPRC committee can then determine the best terminology to describe the child’s intellectual needs.
The Child’s Learning Needs
The Tribunal heard many witnesses testify to the child’s learning needs. As well, the Tribunal heard from the parents that they want an academic program that will challenge their child to reach potential. The parents have been frustrated by attempts by school personnel to place the child in a “life skills” program. Given the child’s current level of functioning in the language arts area, it is not possible for a Grade 5 classroom teacher to modify the Grade 5 reading program where the focus is on using reading to learn, rather than learning how to read. The Tribunal heard from Dr. McMullin that the child is reading at a Grade 1 reading readiness level in spite of having one-to-one support until Grade 3. The Tribunal believes that an educational assistant in the Grade 5 classrooms to assist the child with a reading program at the present level is not sufficient to teach the child how to read. The child needs a qualified teacher who can provide individualized instruction in language arts using the techniques described by Dr. McMullin in order for the child to learn to read. The reading program should be an integrated language arts program, which includes oral language development, writing, and spelling as well as reading. In a sample IEP that the Tribunal received in the parents’ documentation book, there was mention made of the “Open Court” program. Assuming that this language arts/literacy program is used in the school, that resource or a similar comprehensive language arts program should be used so that the parents are able to follow the child’s progress within the language arts program.
Since the child needs an adult to help keep focused on academic tasks, the Tribunal believes it is important that the child be taught this language arts program in a separate room, for example a resource room, where there may be a small group of children at the child’s level of achievement, but the individualized instruction must be given to the child by a teacher. Reading is a complex process requiring a teacher who knows how to teach a skill-based program as well as understanding children’s developmental levels of learning.
An issue for the parents had been the method of reporting the child’s progress. The parents wanted “hard data” or a method of knowing what the child is achieving in school. Again, a comprehensive program such as “Open Court”, [The Tribunal is not recommending any specific program, but this program was mentioned in the IEP Documents section of the parent’ binder, a program like “Open Court” that begins with a specific Kindergarten language arts program and continues to Grade 5] would give the opportunity to know how well the child is achieving in the core subject of language arts. Dr. McMullin mentioned specific programs in mathematics, including some computerized programs that would give the parents the opportunity to know how much the child is achieving in this basic subject as well.
Dr. McMullin noted the child’s strength in using a computer. By capitalizing on this strength to reinforce basic skills in language arts and mathematics, the child can learn to enjoy repetition and practise new skills. A computerized program could be used at home to reinforce learning. While at school, the Tribunal believes that the child needs to have a teacher personalize the learning through direct instruction. The parents have requested that the child be provided with a computer at school. The Tribunal acknowledges the gains that many exceptional children have made using computers and is aware that according to Dr. McMullin, the child shows strength in computer skills. There may be opportunities for some limited time using a computer at school, but the Tribunal reiterates its point that while at school, the child needs direct instruction by a teacher. Practice using computer programs could be done at home so that valuable direct instruction teacher time is not spent supervising the child working on a computer program. If the parents are requesting a computer for word processing purposes rather than developing handwriting skills, perhaps a keyboard such as “Alphasmart” can be used by the child to assist with handwriting.
The Tribunal found that the child was able to be successful in the regular classroom with modifications to the Ontario Curriculum in some areas, such as Social Studies, Science, Physical Education and Religion. The Grade 4 teacher is to be commended for creating individualized work sheets for the child where the child could take the same subject and topic as the other students, but at a level where the child could achieve success. The Tribunal believes that it is important for the child to remain with the regular Grade 5 classmates for those subjects where modifications can be made to the regular program so that the child can continue to learn and to socialize with peers.
If episodes of separation anxiety occur at school in the new school year, it will be important to have close supervision while the child is learning to feel comfortable in new surroundings. There should be close adult supervision for the child to address safety needs. As well, the child continues to need adult supervision for toileting and personal hygiene.
Identification
The second issue is the issue of using the identifiers, “Language” and “Mild Intellectual Disability” to describe the identification of Multiple, the formal identification of the child. As noted above, the Tribunal received undisputed evidence that the child has a language disorder as described by the Ministry of Education in Special Education, A Guide for Educators, 2001, and can agree with the parents’ request that the child have the term “Language” included in the formal identification.
The Tribunal does not have confidence that the psychological assessment report of 2000 that was submitted into evidence accurately depicts the child’s learning potential since it was admitted under oath that the wording was changed from: “Moderate developmental” to “Developmental” to allow the Board to access a higher amount of funding under the ISA process. As well, the Tribunal heard Dr. McMullin say that due to the child’s propensity to “tune out” requests due to anxiety in a testing situation, that test results may not accurately reflect the true learning potential. According to Dr. McMullen, the child’s adaptive behaviors are considerably higher that the assessed scores.
In the placement in a Regular Classroom with resource assistance, the child has been in integrated settings for five years and is reading at a beginning grade 1 level. The child has had a modified grade level curriculum throughout those five years. For a child who has not yet learned to read, there is a considerable body of skill development related to language that the child has not yet learned. After spending a school year with a teacher teaching the child how to read, the Tribunal expects that there will be a greater comfort level in an assessment situation which presents the child with academic tasks, and there may be a truer picture of the learning potential. Therefore the Tribunal requests a new assessment to measure the effects of the new placement. The 2000 assessment will be four years old by then and it will be time for another intellectual assessment in any event.
Following a psyschological assessment in the Spring of 2004, an IPRC, with a new psychological assessment report and more informal assessment data, will be in a position to review the Ministry definitions of exceptionality under the “Intellectual” category and decide, based on the new information presented, which descriptor, “Mild” or “Developmental” best matches the child’s learning profile. The Tribunal, with unclear data presented during the hearing is unable to make an order, as requested by the parents to identify the child with a “Mild Intellectual Disability”. As mentioned, the IPRC will be in a better position to do this after another psychological assessment has been conducted.
Jurisdiction Revisited
The third issue addressed by the Tribunal was the issue of jurisdiction of the Tribunal to conduct the hearing. As noted earlier, Mr. Howard, on behalf of the Board, argued that the issue was primarily about program and services, not placement.
Much of the rationale for hearing the matter is discussed under the Preliminary Issues section of this document. In this section of the document, the Tribunal summarizes its reasons for its decision to hear the matter.
In the case of the child, a child identified with Multiple exceptionalities, the Board at the IPRC meeting of June, 2002 was not clear about the nature of support that the child would receive in the placement that was offered, “Regular Class/Resource Assistance” and the recommendation, “with support as deemed appropriate by school personnel.” At that IPRC meeting the parents stated that they were told that they would need to wait until September when the new principal arrived at the school to find out what support would be available for the child.
The definition of a Multiple exceptionality contains the description of the needs of a child using language such as “the services of one or more teachers holding qualifications in special education and the provision of support services appropriate for such disorders, impairments, or disabilities.”
In order for the parents to make an informed decision about the suitability of the placement proposed to meet the needs of their child, the Tribunal believes that is necessary for the parents to hear about the nature of the program and the services that the Board will be providing to meet the needs of their child, the child, and whether one of the teachers holds qualifications in special education.
The Tribunal believed that the parents had made a “prima facie” case and as a result of hearing the arguments put forward regarding the preliminary matter, the Tribunal proceeded with the full hearing.
During the course of the Hearing, the Tribunal heard that the identification of the child was an issue and the Tribunal was asked to rule on identification.
After hearing about the child’s needs and the nature of the placement that was developed to meet the child’s needs the Tribunal decided that the needs of the child could not be met in the placement, “Regular Class Placement with Resource Assistance” with “Resource Support as determined appropriate by school personnel”. The nature of the child’s exceptional needs require more support that can be offered in a regular class. The child’s Grade 4 teacher had provided exemplary examples of modifications that he had made to the content of Social Studies and Science. However, it is not possible to offer the child an intensive language arts and mathematics program at the child’s level in a regular classroom with an educational assistant assisting with modifications to the regular program. A teacher needs to teach the child how to read and develop language and mathematics skills and that cannot be done in the regular classroom placement described in the hearing.
With the child’s difficulty in focusing, it would not be possible to concentrate in a classroom with many children and learn effectively.
Therefore the Tribunal is making an order for a placement that the parents did not request and that the Board did not offer -- a different placement to meet the child’s needs. The Tribunal needed to hear the full arguments by both parties to understand the child’s needs and to be able to comprehend the nature of the placement described. A placement is not a description of a physical place where a child is put to receive a program. A placement must be described in sufficient detail to allow parents to make an informed decision about whether the placement would meet the child’s needs. The Tribunal finds that the placement was not described in sufficient detail to allow the parents to decide in their child’s best interests.
The Tribunal therefore believes that it had jurisdiction to hear the matter and proceeded to do so on July 7, 2003. The Tribunal further holds that it has the jurisdiction to look at the entirety of a placement – including the programming offered inside it – to determine whether the placement is appropriate. The terms “Regular Class” or “Self-Contained Class” for example, are insufficient in and of themselves to determine whether the placement meets the child’s needs. What programming is offered within a particular classroom forms an integral part of a placement. This interpretation is supported by a reading of Section 1(1) of the Education Act, as quoted earlier in these reasons:
Exceptional pupil: a pupil whose behavioural, communication, intellectual, physical or multiple exceptionalities are such that he or she is considered to need a placement in a special education program.
A placement without appropriate programming is not an appropriate placement.
Decision
The Tribunal agrees with the parents that the child’s needs are not being met in the placement described in the June 23, 2002 IPRC, “Regular Class / Resource Assistance - as deemed appropriate by school personnel.” Tribunal does not grant the specific relief requested by the appellants, however, because the Tribunal is of the opinion that the child needs a teacher to provide a comprehensive Language Arts program to address the needs. Accordingly the Tribunal orders the Windsor-Essex Catholic District School Board to provide a teacher, with special education qualifications to develop, implement and evaluate a comprehensive Language Arts program consisting of reading, writing, oral language development and listening. In addition to the Language Arts program, the Tribunal orders the Windsor-Essex Catholic District School Board to provide a teacher to provide a Mathematics program. The Tribunal expects that the delivery of the Language Arts and Mathematics program by a qualified teacher will take approximately 50% of the day. For the other 50% of the day, the child will be placed in the regular classroom with her Grade 5 peers for a modified academic program with support.
The Tribunal is therefore, ordering a change in placement from the relief requested and from the Board’s position that the placement was meeting the child’s needs, from “Regular Class with Resource Assistance”, to “Regular Class with Resource Withdrawal for the Language Arts and Mathematics program.”
Order
- The Tribunal orders that the Windsor-Essex Catholic District School Board provide the child with a coordinated, intensive Language and Mathematics program, at the child’s level, planned, implemented and evaluated by a teacher with special education qualifications. The Tribunal believes that a placement, “Regular Class with Resource Withdrawal” is a more appropriate placement to meet the child's needs. Rather than more resource support in the regular classroom, by paraprofessionals, the Tribunal is of the opinion that the child needs a teacher to be responsible for the Language Arts program and Mathematics Program. The Tribunal expects that an intensive Language Arts program involving reading, writing, spelling and oral language development as well as a Mathematics program will take approximately 50% of the day and will be conducted outside the regular classroom, in a resource room, by a qualified teacher, where there are minimal distractions for the child.
The child will be placed in the regular Grade 5 classroom for the remainder of the subjects with a modified program in subjects such as Social Studies, Science, and Religion - subjects where the child can experience success. The child will need support in the regular classroom. The school board should be very clear about the nature of support that will occur in the regular class.
The Tribunal further orders the Board to conduct a new assessment of the child’s academic needs. After the child has had an intensive Language Arts program, a new assessment of the academic potential should be conducted. This assessment can assist in developing a new understanding of the child’s needs. It is important for all professionals working with exceptional children to hold up high expectations so that the potential of children is not limited by “labels” and the Tribunal hopes that the child’s unique learning needs will be foremost in everyone’s mind in future programming for the child.
The Tribunal orders the Board to set up an effective mechanism to co-ordinate the various recommendations regarding learning provided by professionals from outside the school system that can be incorporated into the child’s Individual Education Plan (IEP) The person coordinating the services must have the confidence of the parents and the trust of the teachers.
The Tribunal orders the Board to establish a mutually agreed upon method of reporting the child’s progress in the school program. The information in the report card and the I.E.P. must be clear and specific and demonstrate the results of the child’s school program.
Finally, the Tribunal orders the Board to provide ongoing, meaningful assessments throughout the child’s schooling as required by legislation. The assessments must be conducted to better understand the child, not to meet criteria for funding by the Ministry.
Recommendations
The Tribunal questions the wisdom of placing the child in French for 40 minutes each day. The Tribunal is suggesting that the time could be better spent in strengthening the child’s language and basic literacy skills in the first language before developing a second language.
The Tribunal is aware of the challenging relationship that exists between the parents and the school. The Tribunal hopes and expects that any future relationship will be based on the child’s needs and best interests.
Obiter
The Tribunal was concerned that Board personnel may have been using the eligibility criteria for ISA level claims set out in the Ministry Publication entitled Addendum-ISA Guidelines, 2001-02, for programming purposes and in developing expectations for the child. It is tempting to try to make the needs of a child match the criteria in an ISA Level 3 profile because an approved claim generates $27,000 and an ISA level 2 claim generates $12,500. It is critically important for Board personnel to have a clear understanding of a child’s needs irrespective of the amount of money generated by a claim in order to hold appropriately challenging expectations for a child to meet potential. By holding limited expectations for children, adults can seriously limit that child’s capability of reaching his or her true potential. The Tribunal believes that if the pressure to match children to criteria for funding purposes supercedes the practice of preparing materials to better understand the needs of children and to prepare programs that will encourage and nurture children to reach their potential then there is a serious systemic issue that needs to be addressed by senior personnel at the Board level. If this is an isolated situation, then this Decision document details the issues that arose with the child; however, if this situation is occurring with other children in the school or Board, then it is important for the Board to review its practices regarding ISA claims and concomitant programming.
Mr. Murray confirmed his willingness to discuss Dr. McMullin’s assessment report of the child. He stated that he thought the report was “very profitable, especially the extensive recommendations regarding teaching and learning strategies for the child.” The Tribunal is hopeful that with Mr. Murray’s willingness and Dr. McMullin’s interest in working with the parents and the School Board the program planning process for the child will be useful and fruitful for both parties. Mr. Howard stated that Mr. Murray would co-ordinate a meeting to begin to plan the IEP. The Tribunal believes that Mr. Murray could be the person to coordinate the child’s program and to oversee the program until the time when a school based person who has the confidence of the parents can perform that co-coordinating role. It is the expectation of the Tribunal that within the coordinating role, Mr. Murray can coordinate the program goals that incorporate the recommendations of the various professionals who have assessed the child. As well, Mr. Murray, in his coordinating role can, with the principal, ensure that all staff working with the child are aware of the content of the IEP and are working towards the goals and expectations contained in that document.
Although the Tribunal has no jurisdiction over the decision of the Board to reject the Special Education Appeal Board’s decision or recommendations, the Tribunal points out that the reason the Director of Education gave to the parents for rejecting the report of the SEAB was that one of the recommendations of the SEAB was related to Dr. McMullin’s assessment report for the child and the Board did not have Dr. McMullin’s report. Now that the Board has a copy of Dr. McMullin’s report, a review of those recommendations would assist in developing the parents’ belief that the School Board is attending to their concerns regarding the child.
The Tribunal heard within the testimony of witnesses and the documents produced about the parents’ concern for the lack of attention to due process and lack of adherence to timelines regarding Special Education regulations. The Tribunal is of the opinion that the timelines are in force in order to resolve issues in a timely manner and encourages the Board to inform staff about the importance of adherence to Ministry timelines.
Paula Barber, Chair __________________________
Peter Cassell, Member ___________________________
Donna Gracey, Member ____________________________
September 30, 2003