This decision is issued pursuant to M.G.L. ch. 71B and 30A, 20 U.S.C. §1401 et seq ., 29 U.S.C. § 794, and the regulations promulgated under those statutes. A hearing was held in the above-entitled matter on January 7 and 29, 1999, at the offices of Catuogno Reporting Service in Worcester, Ma. Those present for all or part of the proceedings were:
Valerie Chase – Director, Personal Communication Pediatric Services
Grover Gentry – Administrator of Special Education, Wachusett
Regional School District
Kimberly Ferguson – Special Education Administrative Specialist, Wachusett
Regional School District
Barbara Kewley – Speech/Language Therapist, Wachusett Regional
Christine Coz – Advocate for the Parents
E. Jeffrey Newcombe – Attorney for the Parents
Lindsay Byrne – Hearing Officer, BSEA
The official record of the hearing consists of documents submitted by the Parents marked P-1 through P-301, documents submitted by the school labelled S-1 through S-43, and approximately 6 hours of recorded oral testimony. Both parties submitted written closing arguments by February 18, 1999, and the record closed on that date.
1. Whether the 502.8(b) Individualized Education Plan proposed by Wachusett for the 1998-1999 school year was reasonably calculated to provide the maximum feasible educational benefit to the Student in the least restrictive setting?
2. If not, is the Parents’ unilateral placement at the Chatterbox Preschool, appropriate to address the Student’s special education needs?
3. Is the Student entitled to compensatory educational services as a result of Wachusett’s failure to implement the last agreed upon individualized education plan?
STATEMENT OF THE EVIDENCE
1. The Student is a five year old child (d.o.b. 11/12/93) currently attending a private preschool program. When she was two and a half years old, the Student’s mother sought early intervention services for delayed language. (S-1, P-276) The Early Intervention Assessment identified delays in language functioning, cognition, and fine motor skills. When the Student turned three, Wachusett conducted a speech/language evaluation. In her report dated December 2, 1996, the evaluator found the Student’s overall language skills to be emerging at an eighteen month level. The evaluator recommended that the Student attend a speech and language based program, receive articulation therapy twice a week for thirty minute sessions, and undergo hearing screening. (S-3, P-92)
2. A Team meeting was held on December 11, 1996. The Team developed an IEP calling for delivery of two thirty minute sessions of outpatient speech/language therapy. (S-5, P-163) The Parents accepted the proposed plan on January 21, 1997. The Team reconvened on March 10, 1997, and, at the parents’ request, amended the plan to increase the Student’s speech/language service to three thirty minute outpatient sessions per week. (S-6, P-13) The Parents accepted the proposed amendment on March 17, 1999. That constitutes the last accepted educational plan for this Student.
On March 31, 1997, then Administrator of Early Childhood Education, Joanne Howard wrote to the Parents suggesting that the Student attend a preschool program which could provide “additional structured communication opportunities with other children” and offering to include an additional half hour with the speech therapist within the classroom setting. (S-7, P-160) There is no indication in the record that this suggestion was the result of a Team meeting, was incorporated into a proposed IEP, or was responded to in any way by the Parents.
3. In June, 1997, the Student’s speech/language therapist recommended that the Student attend a full day program with a strong emphasis on language/speech. She also recommended that a “full” evaluation be conducted to determine what was impeding the Student’s acquisition of speech/language skills. (S-17, P-17) She recommended that the Student’s speech/language services be continued at three thirty minute sessions through the summer to prevent significant regression. (S-16) Wachusett offered to continue the Student’s outpatient speech/language therapy twice a week from July 7th through August 15, 1997. (S-16) Neither the recommended nor the offered services was incorporated into an IEP. The Student did not receive services during the summer of 1997 as the Parents understood that direct speech/language therapy was “not helping.” (Testimony of Parent)
4. At a Team meeting held on June 9, 1997, the Parents requested a “full” evaluation as recommended by the Student’s speech/language therapist. Wachusett offered to fund an independent evaluation. The Parents selected Boston Children’s Hospital and scheduled a speech/language assessment for September, 1997, and a developmental evaluation for October, 1997. The record does not disclose whether Wachusett had any contact with the Children’s Hospital Team to determine whether these components constituted a “full” evaluation. (S-18-23, P-142-149) No IEP resulted from the June 9, 1997, Team meeting.
5. In September, 1997, the Parents enrolled the Student in a regular preschool program at Oakham Country Day School for two mornings a week. Wachusett did not contact the Parents about resuming speech/language therapy for the Student for the school year 1997-1998. The Student received no special education or related services during 1997-1998. (Testimony of Parent)
6. Wachusett received the Children’s Hospital Speech/Language Evaluation report on October 22, 1997. The Team did not reconvene thereafter. (S-27, P-65)
7. The Student’s IEP expired on December 11, 1997. The Team did not reconvene to address continued services to the Student. (S-5, P-163)
8. Wachusett received the Children’s Hospital Developmental Evaluation report, dated January 23, 1998, on March 18, 1998. (S-26, P-72) At the Parents’ request a Team meeting was held on March 27, 1998. (S-24, 25, P-138, 140). The Team agreed to follow up on the recommendation of Children’s Hospital for a cognitive assessment of the Student. (Testimony of Parent; see also Student profile at S-29, P-23) At the Team meeting the participants discussed preschool classroom programs available to the Student. One classroom was substantially separate, devoted to the needs of severely disabled children. The teacher of the integrated classroom attended the Team and told the participants that the program would be inappropriate for this Student (Parent; see also Ferguson.) On April 9, 1998, Wachusett sent the Parents a proposed IEP calling for the Student’s placement in an integrated preschool classroom with direct speech/language therapy three times a week and therapist consultation to the Parents and class “as needed.” (S-29, P-23) Apparently there was no discussion about resumption of direct speech/language service under the last agreed upon IEP. Neither was there any discussion of summer services. The Parents rejected the proposed IEP on May 5, 1998, citing in particular the fact that the agreed upon cognitive testing had not been performed and the integrated classroom had been deemed inappropriate for the Student by the teacher. (S-29, P-38, 39)
9. On May 5, 1998, the Parents notified Wachusett that the Student would attend a summer program through Personal Communications Pediatric Services. (S-31, P-137) There is no indication that Wachusett responded to the Parents’ request for summer services. The Team did not reconvene to discuss the issue of extended year services for this Student.
10. Wachusett first sent the Parents a packet of materials describing the available preschool program on June 26, 1998. (S-34, P-120)
11. On July 21, 1998, the Parents notified Wachusett that due to its failure to perform the recommended cognitive assessment, they had arranged for an evaluation at Personal Communications Pediatric Services. (S-35, P-135) Valerie Chase, an experienced Speech/Language Pathologist and Director of Personal Communications Pediatric Services/Chatterbox Preschool, conducted a Developmental Assessment of the Student on August 3, 1998. She found that the Student’s overall language skills were delayed one to one and half years below her chronological age. In particular, Ms. Chase noted, because of the Student’s significant auditory processing difficulty, she became overwhelmed with noise and competing auditory and visual and movement input. Ms. Chase recommended that the Student: attend a very highly structured language-based program which will emphasize auditory decoding of direction, questions, and descriptions. Classroom instruction should incorporate visual schedules, picture icons of directives, and picture-board augmentative supports. A small group of no more than 6-7 children with minimal visual and auditory distractions is essential. Programming should be provided daily (5 days per week).
In addition, intensive one-to-one speech-language therapy should be provided daily to develop [the Student’s] ability to decode verbal information and utilize language to further develop her social interactive and learning abilities. (P-53, see also Testimony of Chase.) At the hearing Ms. Chase explained that the Student’s attentional and auditory processing difficulties made it very hard for her to focus when there were different activities going on in the same space. The Student needs quiet, highly structured activities with visual cuing and repetition in order to comprehend and learn verbal language. Ms. Chase also emphasized the importance of home-school instruction and collaboration to improve the Student’s understanding, provide opportunities to practice and promote consistency. (Chase).
12. The Parents provided a copy of Ms. Chase’s assessment to Wachusett on August 14, 1998. (P-54) No Team meeting was held to consider Ms. Chase’s findings and recommendations. In a letter dated August 4, 1998, Wachusett responded saying that Ms. Chase was not a licensed psychologist and requesting, once again, that the Parents contact Wachusett for a list of approved providers. (S-36, P-132) The Parents requested the list on September 4th and again on September 23, 1999. (P-118, 117) Wachusett provided a copy of the list on September 29th and the Parents arranged for an approved assessment by October 1st, 1999. (S-41)
13. Miriam Sexton, a licensed child psychologist, conducted an independent psychological evaluation on October 8, 1998. She found the Student to test in the low average range of intellectual functioning with the predictable division of scores based on her language based disability. The Student performed significantly better on tasks involving spatial and non-verbal reasoning than on more language dependent subtests. Dr. Sexton’s findings and recommendations were consistent with those of all prior evaluators. She found the Student to have a “substantial” language disorder and delays in visual-perceptual-organizational-motor skills. Dr. Sexton recommended that the Student attend a language based preschool program with a small class size, minimal auditory and visual distractions, and visual cues to support language instruction. Dr. Sexton also recommended that the Student receive “intensive” speech/language therapy services. Finally Dr. Sexton recommended that the Student receive an occupational therapy evaluation. (P-40-50.) No Team meeting was convened to consider the results of Dr. Sexton’s independent evaluation. To date no occupational therapy evaluation has been offered by Wachusett or conducted by another evaluator.
14. On September 4, 1998, the Parents notified Wachusett that the Student was attending a five day program at Personal Communications Pediatric Services/Chatterbox Preschool. (S-37, P-118) Ms. Chase described the program developed for the Student. Three mornings a week the Student attends a classroom program in a group of seven students taught by a speech/language pathologist and one aide. The program, which is open to both typical and special needs children, is specifically designed to address language production and processing delays.1 The classroom is highly structured, with a rigid routine, consistent peer group, consistent interventions, minimal auditory and visual distractions. All activities are teacher-directed and done in a group. All oral language directions are supported by visual aids. The curriculum is geared to improve phonological awareness, decoding and comprehension of spoken language, and reciprocity and natural conversational language. The teacher uses repetition, student feedback, and visual supports, to ensure the Student’s comprehension and participation. The comprehensive written materials provided by the Chatterbox Preschool describe the curriculum (including sample lesson plans) methods and goals used by the teacher to improve the Student’s language. (P-241 – 258)
Three afternoons a week the Student receives direct speech/language therapy at Chatterbox Preschool with her classroom teacher. Two of the forty-five minute sessions are individual; one is with one other student. (Chase, Parent; See also P-286 – 301.) In addition, the teacher and the Parents meet for one hour per week to ensure there is carryover in approach and activities from school to home. Ms. Chase and the Parent testified that the Student has demonstrated steady progress this school year. Ms. Chase noted that the Student could benefit from attending the classroom program for the available five mornings per week. The Parent testified, however, that full-time attendance for the Student was not financially feasible. (Chase, Parent)
15. Kimberly Ferguson, who has directed the Early Childhood Center since April, 1998, described the classroom programs considered for this Student. No particular classroom was described or designated on the proposed IEP. (S-29, P-23)
In the Spring, 1998, the Team considered placing the Student in a substantially separate classroom designed for students with language and cognitive delays. There were seven students, one teacher and one assistant. One of the students had an individual aide. All students received in-class and pull-out speech/language therapy. The Parents rejected this placement because it was not integrated. Nor was this type of class composition indicated on the proposed IEP. (Parents; S-29, P-23)
For September, 1998, Wachusett proposed placing the Student in an integrated class taught by Carol Parker. (A letter dated August 4, 1998, confirming this placement is in the record, but the Parent denies receiving it until after the start of school. Compare P-132 and S-35) Ms. Ferguson described this program as a “regular preschool environment” with four students with special needs and seven typical children. The room is set up with a variety of learning centers that children can go to on their own initiative. A speech/language pathologist provides two half hour instructional sessions to the entire class. An occupational therapist and an adaptive physical educator each work with the class for one half hour each week. Ms. Ferguson did not describe the curriculum, instructional methods, goals or materials in use in the classroom. She did not discuss whether the proposed classroom was “language-based”, nor did she address how the recommendations for instructional and environmental modifications (such as visual cuing and reduced visual distractions), structured small group instruction and intensive language focus could be implemented in the proposed classroom. (See also materials sent to Parents in June, 1998, concerning the Early Childhood Center. P-121-130, S-34.)
FINDINGS AND CONCLUSIONS
There is no dispute that this Student has special learning needs as defined by M.G.L. c.71B and 20 U.S.C. § 1401 et seq ., and is thus entitled to receive a free, appropriate public education. The question presented here is whether the Wachusett Regional School District has offered her one. After a careful review of all the evidence submitted in this hearing, and consideration of the arguments of both parties, it is my conclusion that Wachusett has failed to provide a free, appropriate public education consistent with the requirements of state and federal special education laws to this Student.
Addressing first the substantive educational needs of this Student I rely primarily on the recommendations of the two most recent evaluators, Ms. Chase and Dr. Sexton. (S-43, P-40, P-51) They each recommended that the Student attend an intensive, language-based, preschool program in a small instructional group of no more than seven children. They recommended a highly structured, highly focussed curriculum, the use of intentional visual cues and supports and the elimination of visual and auditory distractions. They recommended that the Student receive additional, direct speech/language therapy, in a distraction free setting. They both emphasized home collaboration and support. These then are the minimum elements required for an appropriate special education program for this Student. None exist in the early childhood center program proposed by Wachusett. (See ¶ 15) All are present in the Chatterbox Preschool in which the Student was unilaterally enrolled in July, 1998. (See ¶ 14) The recommendations of Ms. Chase and Dr. Sexton are consistent with each other, consistent with the findings and suggestions made by previous evaluators, (S-27, P-65; S-26, P-72; S-3, P-92; S-7, P-276) and consistent with the Parents’ observations. (Testimony of Parent) There are no contrary, or even alternate, recommendations in the record.2 Therefore I find that the 1998-1999 Individualized Education Plan proposed by Wachusett calling for the Student’s placement in “a” early childhood center program is not reasonably calculated to provide the maximum feasible educational benefit to the Student in the least restrictive setting and does not offer her a free, appropriate public education. I further find that the evidence at the hearing supports the conclusion that the recommendations for appropriate educational programming have been, and are being, implemented at the Chatterbox Preschool. Therefore I find that the Parents were justified when they enrolled the Student in the Chatterbox Preschool.
I turn now to the compelling and distressing evidence of Wachusett’s procedural violations. The list of procedural irregularities is long, and inexplicable. Not all were raised by the Parents at the hearing, but were apparent on even a cursory review of the record. Among those which had substantial negative consequences for the delivery of appropriate special education services to this Student are:
1. Failure to assess the Student in all areas of suspected special need. 603 CMR § 28.320.2(a). Wachusett has repeatedly failed to conduct assessments recommended by referring agencies, independent evaluators, and its own service providers. This inaction has included: failure to conduct cognitive and occupational therapy assessment in December, 1997. (Compare S-1 and S-3); failure to arrange a “full” evaluation in June, 1997 (S-17); failure to conduct a cognitive assessment despite agreements to do so and repeated requests (S-27, P-65); failure to arrange for an occupational therapy assessment in the fall, 1998. (P-40, S-43);
2. Failure to develop an educational program in accordance with the recommendations of the Team. 603 CMR § 28.322.0. (Contrast S-3, P-92 and S-5, P-163; see also S-16, P-150.)
3. Failure to review the Student’s progress within ten months of her initial placement. 603 CMR § 28.330.
4. Failure to reconvene the Team upon expiration of the IEP, and upon completion of an independent evaluation on three occasions. 603 CMR §28.328. (P-72, S-26; P-51; P-40, S-43; S-5, S-6, P-13, P-1.)
5. Failure to implement an accepted IEP between June, 1997 and December, 1997. 604 CMR § 28.330.
6. Failure to deliver services consistent with the last agreed upon IEP since December, 1997. 603 CMR § 28.327.
It is clear from the record that Wachusett’s repeated failures to solicit necessary evaluations, and to fully consider those that were conducted, led directly to the development of an inappropriate IEP for this Student. It is equally clear that the failure of the school district to provide even the minimally appropriate therapeutic services to which it had agreed over the course of the last twenty months has necessarily resulted in egregious educational harm to this very young Student. How is it possible to calculate the effect of the withdrawal of 90 minutes per week of direct speech/language therapy over the course of 52 weeks on the development of appropriate language skills in a four year old? On this record I find that the Parents are to be commended for taking appropriate action to meet the educational needs of their daughter according to the recommendations of the evaluators when the school district would not.
The Parents are entitled to equitable relief as a result of Wachusett’s affirmative denial of the Student’s substantive and procedural rights to a free, appropriate public education. Florence County School District. Four v. Carter , 510 U.S. 7 (1993); School Committee of Burlington v. Massachusetts Department of Education , 471 U.S. 359 (1985). The Parents are entitled to reimbursement of all out-of-pocket expenses they incurred as a result of the Student’s unilateral placement at the Chatterbox Preschool for the 1998-1999 school year since Wachusett did not offer the Student an appropriate IEP for that school year. I note that although the evaluators have consistently recommended a five day classroom program along with additional direct speech/language therapy, the Parents were unable to afford such an intensive program. While the parents selected an appropriate program model for the Student, their financial constraints made the amount of service provision inadequate for the Student. At a minimum therefore, Wachusett is additionally responsible for compensating the Student for the two days per week of missed services due to its failure to develop an appropriate public program for the Student for 1998-1999.
Similarly Wachusett’s repeated and grievous procedural violations, particularly its failure to deliver necessary and agreed upon therapeutic services to the Student over a twenty month period, have caused serious and substantial educational harm to the Student. An award of compensatory education is therefore warranted. Such an award being equitable in nature, must be closely tailored to redress the actual damage done to the Student, to provide an actual benefit to the Student, to reflect the type and amount of loss, if calculable, and to do substantial justice. The area of special education is primarily prospective in outlook. Awards of compensatory education are unusual and typically involve the provision of additional services in the future. In this matter equity requires an award that addresses both past losses and anticipates future growth. To do substantial justice in this matter, Wachusett shall:
1. Reimburse the Parents for all out-of-pocket expenses associated with the Student’s placement at the Chatterbox Preschool from July, 1998, through the date of this decision;
2. Reimburse the Parents for any and all out-of-pocket expenses associated with the provision of speech/language therapy services to the Student from June, 1997, through the date of this decision;
3. Immediately undertake financial and programmatic responsibility for the Student’s five day per week placement at the Chatterbox Preschool. The frequency and duration of the Student’s classroom program and speech/
therapy services for the remainder of the school year shall be determined by her current service providers and Parents. Wachusett shall develop an IEP reflecting their recommendations. The IEP shall cover no less than the 1998-1999 school year and the summer, 1999;
4. Arrange for an Occupational Therapy Evaluation to be conducted no later than March 31, 1999;
5. Hold a Team meeting to consider the results of the Occupational Therapy Evaluation, to plan for the Student’s 1999-2000 school year program, and to consider additional compensatory services, no later than April 30, 1999.
In order to ensure compliance with this decision the Hearing Officer will retain jurisdiction of this matter until an IEP for the 1999-2000 school year has been accepted by the Parents.
The 1998-1999 502.8 (c) Individualized Education Plan proposed by Wachusett is substantively inappropriate and procedurally deficient. The Parent’s unilateral placement, the Chatterbox Preschool, meets the recommendations of the evaluators and is likely to provide the maximum feasible educational benefit to the Student in the least restrictive setting. The Parents are entitled to reimbursement for all out-of-pocket expenses incurred as a result of the school district’s failure to deliver agreed upon speech therapy services beginning in June, 1997, as well as its failure to offer an appropriate special education program for the 1998-1999 school year. Wachusett shall immediately implement all other remedial measures set out in this Decision.
By the Hearing Officer,
Date: March 3, 1999
Of the children other than the Student in the class one has an individualized education plan, one has articulation difficulties, two have slightly delayed expressive language, the rest are “typical.”
Wachusett argues that I should not credit the testimony or report of Ms. Chase as she was essentially recommending her own program for this Student. Under other circumstances such a recommendation might be suspect. Here, however, where Wachusett failed to conduct its own evaluations, Ms. Chase’s findings are entirely consistent with all other independent observations, and Ms. Chase herself was a competent and credible witness. I find reliance on her expertise to be appropriate. I note also that even were I to discount the report and testimony of Ms. Chase the result here would be the same as all other credible evidence supports the conclusion that Wachusett’s proposed program is inappropriate for the Student.