Groton-Dunstable Regional School District – BSEA # 06-0890
COMMONWEALTH OF MASSACHUSETTS
BUREAU OF SPECIAL EDUCATION APPEALS
In Re: Groton-Dunstable Regional School District
BSEA # 06-0890
This decision is issued pursuant to the Individuals with Disabilities Education Act (20 USC 1400 et seq .), Section 504 of the Rehabilitation Act of 1973 (29 USC 794), the state special education law (MGL c. 71B), the state Administrative Procedure Act (MGL c. 30A), and the regulations promulgated under these statutes.
A hearing was held on December 4, 5, 6, and 8, 2006 in Worcester, MA before William Crane, Hearing Officer. Those present for all or part of the proceedings were:
Phoebe Adams Learning Specialist in private practice
William Mautz Pediatric Neuropsychologist in private practice
Lynne Brant Speech-Language Pathologist in private practice
Susan Palmer Language Arts Teacher, Carroll School
Anne Lowell Head of Lower School, Carroll School
Jane Young Speech-Language Pathologist, Carroll School
Karen Postal Neuropsychologist in private practice
Kathleen Schott 1 st Grade Teacher, Groton Dunstable Regional School District (RSD)
Gail DesBois Special Education Teacher, Groton-Dunstable RSD
Nancy Halleran Speech-Language Pathologist, Groton-Dunstable RSD
Patricia Ascione Guidance Counselor, Groton-Dunstable RSD
Ann Morrison School Psychologist, Groton-Dunstable RSD
Doris Sirois Team Chairperson, Groton-Dunstable RSD
Bonnie Dinsmore Assist. Principal (formerly Team Chairperson), Groton-Dunstable RSD
Betty Lavin Groton Dunstable RSD
Joan Endicott Director of Pupil Personnel Services, Groton Dunstable RSD
Joseph Green Attorney for Parents and Student
Karen Laufer Attorney for Groton Dunstable RSD
Dawn Halcisak Court Reporter
The official record of the hearing consists of documents submitted by the Parents and marked as exhibits P-1 through P-127; documents submitted by the Groton-Dunstable Regional School District (School District) and marked as exhibits S-1 through S-90 (except for S-39 because a more legible copy of this exhibit is included within the Parents’ exhibits); and four and one-half days of recorded oral testimony and argument. As agreed by the parties, oral closing arguments occurred on December 14, 2006, and the record closed on that date.
Student is eight years old (date of birth 6/23/97). She lives with her Parents in Groton, Massachusetts. Groton is located within the Groton-Dunstable Regional School District. Student is enrolled in the 3 rd grade at the Carroll School. The Carroll School, located in Lincoln, Massachusetts, is a private school for learning disabled children.
Student is engaging, likeable, curious, and eager to learn. She has a complex and pervasive language-based learning disability that effects her receptive and expressive language.1
Through 1 st grade, Student attended the public schools in Groton, receiving pull-out and inclusion services to address her language and other deficits. Beginning in the summer of 2005 (immediately following 1 st grade), Parents unilaterally placed their daughter at the Carroll School. Parents have continued their daughter’s placement at Carroll to date.
Parents have brought this action to obtain reimbursement of their expenses for placement at Carroll for the 2 nd and 3 rd grade school years and for the summers of 2005 and 2006. Parents also seek prospective placement at Carroll.
For the reasons explained below, I conclude that Parents are entitled to prospective placement at the Carroll School and are entitled to partial reimbursement for 3 rd grade (beginning November 3, 2006). Parents are not entitled to reimbursement for 2 nd grade, the first portion of 3 rd grade (through November 2, 2006), or the summers of 2005 and 2006.
The issues to be decided in this case are the following:
1. Are the three individualized education programs (IEPs) for the 2005-2006 and the 2006-2007 school years reasonably calculated to provide Student with a free appropriate public education in the least restrictive environment?
2. If not, can additions or other modifications be made to the current IEP in order to satisfy this standard?
3. If not, would placement at the Carroll School satisfy this standard?
4. Are Parents entitled to reimbursement of educational expenses for the 2005-2006 and 2006-2007 school years, as well as for the summers of 2005 and 2006?
5. Are Parents entitled to a current IEP placing their daughter at the Carroll School?
This initial statement of facts provides an introductory chronology of events, leaving the specific decisional facts to be discussed in the Findings and Conclusions section, below.
2002-2003 school year (first year of kindergarten)
During the 2002-2003 school year, Student attended kindergarten at the Boutwell School in Groton. Student attended two half-day programs. The IEP for the period 6/14/02 to 6/14/03 included special education pull-out services of speech-language therapy and social skills services, as well as summer services. Class support was to be provided by a learning disability (LD) specialist for 60 minutes, five times per week. The IEP was accepted, in full, by Parents. Testimony of Parent; exhibits P-21, P-22
In October 2002, the School District conducted occupational therapy and educational assessments. The educational assessment concluded that Student was making slow progress in the general curriculum. Testimony of Parent; exhibits P-23, P-25, S-1.
In April 2003, the IEP Team met to develop a new IEP. The IEP for the period 4/16/03 to 4/16/04 is similar to the previous IEP, discussed above, except that summer services were not included. Parents accepted the placement but neither accepted nor rejected the other parts of the IEP. Exhibits P-29, S-8.
2003-2004 school year (second year of kindergarten)
Because Student was not ready (socially or academically) to advance to 1 st grade, Student repeated kindergarten, this time in a full-day program pursuant to the IEP for the period 4/16/03 to 4/16/04. Testimony of Parent; exhibit S-2.
In October 2003, Student’s kindergarten teacher (Ms. O’Brien) wrote Parent that Student was probably in the top third of the class academically. Progress reports were also provided under the IEP. Exhibits P-32, P-39, P-41, P-45, S-2, S-4, S-10, S-11, S-12.
In October and November 2003, William Mautz, PhD conducted an independent neuropsychological evaluation at Parents’ request and paid for by the School District. Dr. Mautz found that Student had a variety of learning difficulties, and recommended that Student be placed into a substantially-separate language-based classroom for the 2004-2005 school year. Testimony of Mautz, exhibits P-31, S-5.
In November 2003, Barbara Gordon, MS, CC/SLP, conducted a speech-language evaluation due to concerns that Student’s language-based skill deficits may be impacting her academic learning. Ms. Gordon reported weakness in phonological access and storage, and recall and retrieval of phonological information, and she recommended that Student be placed in a small, language-based structured school program in which language learning and support are present throughout the day across tasks. Exhibits P-38, S-6.
In February 2004, it was apparent to the School District that Student was not making the progress that would be expected of a child who was repeating kindergarten and who had begun the school year in the upper 1/3 of her class. By February, Student was in the bottom 1/3 of her class academically. Testimony of Dinsmore.
On March 3 and 14, 2004, Gail Cahill, EdD, completed an informal assessment of Student. In a memo received by the School District on March 29, 2005, Ms. Cahill wrote that after conducting her assessment and after reviewing the reports of Dr. Mautz and Ms. Gordon, she “strongly agree[s] with their findings that [Student] exhibits red flags for dyslexia and a language based learning disability that would affect language comprehension, reading, spelling and written language.” She recommended continuing the Wilson Language Program for the sequencing of skills and materials. Exhibits P-42, S-25, S-59.
On March 9, 2004, the School District sent Parents a proposed amendment to the IEP for the purpose of increasing speech-language services from two sessions per week to three sessions per week because “[Student] had been diagnosed with a language-based learning disability.” The amendment also stated that teachers would consult with a reading specialist to implement a “science-based reading program” such as Lindamood Bell “or other multi-modal approaches,” and that Student would work with the reading specialist directly on a weekly basis to work on a “multi-modal reading program.” At the March meeting, it was agreed that Dr. Cahill would be hired by the School District to provide reading instruction to Student since the School District did not have an instructor certified in a science-based reading program. These amendments were initiated in response to the evaluations that had been completed by Dr. Mautz and Ms. Gordon. Testimony of Dinsmore; exhibits P-44, S-21.
From April through June 2004, Dr. Cahill provided Student with reading instruction one day each weekend, for a total of fourteen hours. In addition, Dr. Cahill provided three sessions during the summer of 2004. These services were paid for by the School District. Testimony of Parent; exhibits P-52, S-23, S-24, S-34.
On April 27, 2004, the IEP Team met to prepare an IEP for the remainder of kindergarten, the summer and the first three-quarters of 1 st grade. The proposed IEP reflected the following services:
· Dr. Cahill’s services during the 2003-2004 school year (described above);
· 2004 summer services for one month, consisting of
A) speech-language therapy for 30 minutes, twice per week,
B) academic support for 30 minutes, twice per week, and
C) reading services for 60 minutes, twice per week;
· four hours per week of special education services within the regular education classroom; and
· four hours per week of special education pull-out services.
The IEP was for the period 4/27/04 to 4/27/05. It was accepted, in full, by Parents. Testimony of Dinsmore; exhibits P-50, S-26, S-29, S-32.
During the summer, placement for 1 st grade was changed to the Prescott School so that Student would be able to work with Susan Palmer, a School District reading teacher who was certified in Orton Gillingham reading instruction. Testimony of Dinsmore; exhibit S-31.
2004-2005 school year (1 st grade)
During the 2004-2005 school year, Student attended 1 st grade at the Prescott Elementary School in Groton pursuant to the accepted IEP for the period 4/27/04 to 4/27/05, described above.
FIRST IEP IN DISPUTE : On March 16, 2005, the IEP Team met to prepare an IEP for the remainder of 1 st grade, the summer of 2005, and the first three-quarters of 2 nd grade. The proposed IEP reflected 2005 summer services (six weeks of reading services for 45 minutes, three times per week); six and three-quarter hours per week of special education services within the general education classroom; and five hours per week of pull-out special education services. The IEP called for continued placement at the Prescott School. The IEP was for the period 3/16/05 to 3/16/06. The IEP and placement were accepted, in full, by Parents on April 20, 2005. Testimony of Parent, Sirois, Endicott; exhibit P-64.
Although the IEP was for a period of one year, the language arts pull-out services on the IEP were listed only from 3/16/05 to the end of the 1 st grade year (6/28/05). Ms. Sirois testified that the School District did not intend to end these services. Once this was brought to the School District’s attention, the School District expected to determine what language arts pull-out services should be provided in 2 nd grade. Testimony of Sirois; exhibit S-47.
With respect to the summer services, Parent testified that at the March 2005 Team meeting, she was told that the School District did not know the identity of the summer teacher or whether the teacher would be certified in Orton Gillingham or the Wilson Reading program.
By letter of June 5, 2006, Parents requested that the School District provide their daughter with the Carroll School Summer program. When the School District declined to do so, Parents rejected the School District’s proposed summer services on June 9, 2005, taking the position that their daughter needed a comprehensive, language-based approach, rather than the proposed in-district summer services. On approximately June 11, 2005, the School District advised Parents that Gail DesBois would be the summer program teacher. Ms. DesBois is certified in the Wilson Reading program. Parents had already made a commitment to the Carroll School that their daughter would attend the Carroll summer program. Testimony of Endicott, Parent; exhibits P-67, P-71, S-50, S-51, S-54, S-55, S-58, S-59, S-60.
Ms. Endicott responded to Parents by letter dated June 14, 2005, explaining that the School District believed that its proposed summer program was appropriate for Student. The letter noted that the summer services would be 135 minutes per week for five weeks of 1:1 services from a Wilson certified teacher. Testimony of Parent; exhibits P-68, S-55.
Parents unilaterally placed their daughter at the Carroll School for the summer of 2005.
In July 2005, Parent observed her daughter “blossoming” at the Carroll summer program, coming home extremely happy and gaining self-confidence regarding her reading ability. These changes in their daughter caused Parents to re-consider their acceptance of the School District’s IEP. Parent asked her daughter where she would like to go to school; Student responded that she would like to attend 2 nd grade at Carroll because Carroll was teaching her to read. On July 29, 2005, Parents decided to send their daughter to Carroll School for 2 nd grade. Parent testified that she had been convinced by Student’s success within the Carroll School summer program that her daughter should switch to Carroll for 2 nd grade. Testimony of Parent.
By letter of August 5, 2005, Parents rejected the School District’s proposed IEP for the period 3/16/05 to 3/16/06, objecting to the decrease (from 1 st grade) of the pull-out support services from the LD specialist for language arts. By letter of August 11, 2005 to Parents, the Carroll School accepted Student for 2 nd grade. By letter of August 11, 2005, Parents rejected the School District’s proposed IEP and placement for the period 3/16/05 to 3/16/06, taking the position that their daughter needed more than an increase in the time spent by the LD specialist. The letter also explained that Parents would be taking their daughter out of the School District, privately placing her at the Carroll School, and seeking reimbursement from the School District. Ms. Endicott responded by letter to Parents, suggesting that the Team reconvene to work together to try to resolve Parents’ concerns. Testimony of Parent, Sirois; exhibits P-75, P-76, P-77, S-62 S-65, S-66.
2005-2006 school year (2 nd grade)
Parents unilaterally placed their daughter at the Carroll School for 2 nd grade.
The School District’s proposed educational services and placement for 2 nd grade were set forth in the IEP for the period 3/16/05 to 3/16/06, as described above.
SECOND IEP IN DISPUTE : On September 8, 2005, the IEP Team met to consider Parents’ concerns and their private placement at the Carroll School. The School District personnel attending the meeting took the position that Student had benefited from 1 st grade and would continue to make educational progress within a similar educational program for 2 nd grade. The School District proposed an amendment to the IEP that would increase (from 1 st grade levels) the pull-out special education services in language arts from 30 minutes, five times per week, to 45 minutes, five times per week. The School District made a commitment that the person providing these pull-out services would be certified in a science-based reading program (Orton Gillingham or Wilson Reading program) although no such person had yet been hired at the time of the Team meeting. The proposed amended IEP was for the period 9/8/05 to 3/16/06. Parents rejected the IEP and placement. Testimony of Sirois, Endicott; exhibit P-81, S-67, S-68.
On September 21, 2005, Children’s Hospital at Lexington, Massachusetts, conducted a language and auditory processing evaluation at Parents’ request. Evaluators were audiologist Kathleen West, MA, and speech-language pathologist Jean Jayne, MS. The evaluation identified weaknesses with auditory short-term memory, figurative language comprehension, word retrieval, formulation and organization of verbal output, and flexible language interpretation, and recommended intensive reading intervention on a daily basis as well as speech-language therapy twice per week. Exhibit P-79.
During the first month at Carroll, Parent noticed that her daughter was happy and was excited to be reading “Cat in the Hat” books, which Parent believed were much more difficult than what her daughter had been reading in 1 st grade. Testimony of Parent.
In October 2005, Dr. Mautz conducted a second neuropsychological evaluation at Parents’ request. Dr. Mautz determined that Student had a language-based learning disability, specifically in reading and writing, and he again concluded that Student requires a substantially-separate educational setting. Parents sent Dr. Mautz’s evaluation to the School District by letter of January 12, 2006, shortly after Parents received the evaluation. Testimony of Parent; exhibits P-82 S-71.
On March 23, 2006, Gail DesBois conducted an Achievement Evaluation on behalf of the School District for the purpose of documenting academic levels specifically in the area of reading. Testimony of DesBois; exhibits P-86, S-75.
In March and April 2006, Karen Spangenberg Postal, PhD, conducted a neuropsychological consultation at the request of the School District. The consultation included a review of previous assessments, clinical interview of Student and her mother, and brief assessment of Student. Dr. Postal also observed Student at the Carroll School on April 4, 2006. Dr. Postal found that Student had dyslexia and a language-based learning disability. She recommended intensive reading intervention on a daily basis, and two sessions of speech-language therapy per week. Testimony of Postal; exhibits P-88, S-75.
THIRD IEP IN DISPUTE : On April 7, 2006, the IEP Team met to prepare an IEP for the remainder of 2 nd grade, the summer of 2006, and the first three-quarters of 3 rd grade. At the meeting, the 2005 and 2006 neuropsychological reports were reviewed by the Team. The proposed IEP reflected summer services (six weeks consisting of 60 minutes of special education services, four times per week); sixteen and three-quarter hours per week of special education services within the general education classroom; and four hours per week of pull-out special education services. The IEP called for placement at the Swallow Union Elementary School and was for the period 4/7/06 to 4/7/07. The IEP and placement were rejected by Parents on May 10, 2006. Testimony of Sirois, DesBois; exhibits P-89, P-90, S-76, S-77.
Carroll School provided written reports of Student’s progress in 2 nd grade. Exhibits P-83, P-84, P-93, P-94.
2006-2007 school year (3 rd grade)
Parents unilaterally placed their daughter at the Carroll School for 3 rd grade.
The School District’s proposed educational services and placement for 3 rd grade were set forth in the IEP for the period 4/7/06 to 4/7/07, as described above.
On October 3, 2006, Phoebe Adams, EdM, conducted an educational evaluation at Parents’ request for the purpose of assessing Student’s current achievement levels and to assist with educational planning. Ms. Adams completed a written report which describes her testing, findings, and recommendations. Subsequent to conducting her formal evaluation, Ms. Adams observed the School District’s proposed 3 rd grade placement, and also observed Student in her classroom at the Carroll School. Exhibits P-108, P-123.
Parent testified that her daughter is doing “wonderfully” at Carroll this year.
FINDINGS AND CONCLUSIONS
Student is an individual with a disability, falling within the purview of the Individuals with Disabilities Education Act (IDEA)2 and the state special education statute.3 The IDEA was enacted “to ensure that all children with disabilities have available to them a free appropriate public education [FAPE] that emphasizes special education and related services designed to meet their unique needs and prepare them for employment and independent living.”4 Neither Student’s eligibility status nor her entitlement to FAPE is in dispute.
FAPE is provided through an individualized educational program (IEP).5 The inquiry is whether the IEP was reasonably calculated to provide an “appropriate” education as defined in federal and state law .6 If a school district fails in its obligation to provide FAPE to a student with a disability, parents may enroll their child in a private school and seek retroactive reimbursement for the cost of the private school.7
FAPE requires that a student’s IEP be tailored to address her “unique” educational needs.8
In addition, a student’s IEP must be likely to result in sufficient educational benefit or progress. According to the First Circuit, the relevant inquiry is whether the IEP is “reasonably calculated to provide ‘effective results’ and ‘demonstrable improvement’ in the various ‘educational and personal skills identified as special needs.’”9 The Massachusetts special education regulations require the IEP to be designed to enable the student to make effective progress.10
Similarly, the United States Supreme Court has identified, as a substantive educational standard, the expectation that special education services make a student’s access to her education “ meaningful.”11 Massachusetts law requires that special education services be “designed to develop [the student’s] educational potential.”12
A student’s progress should not be evaluated in a vacuum, but rather in the context of the potential of the particular student to benefit from the educational services.13
The FAPE standard is one of “moderation.”14 The “ benefit conferred [by the IEP] need not reach the highest attainable level or even the level needed to maximize the child’s potential.”15 If the IEP proposed by the school district is determined to be appropriate for a particular student, it is irrelevant that additional or different services would likely result in greater educational progress or benefit.16
In the instant dispute, Parents have the burden of persuasion that one or more of the three School District’s IEPs is not appropriate, that the current IEP, if not appropriate, could not be made appropriate through modifications that would allow Student to remain within the public school, and that the private school in which Student has been enrolled (the Carroll School) is appropriate.17
I first consider Student’s educational needs, and then discuss the appropriateness of the School District’s IEPs for purpose of prospective placement and reimbursement.
Student’s Unique Educational Needs
In determining Student’s unique educational needs, I rely principally on the testimony and report of Student’s current, private speech-language pathologist (Ms. Brant) and Ms. Adams (who recently evaluated Student), the testimony and reports of Dr. Mautz and Dr. Postal, the 2003 report of Ms. Gordon’s speech-language evaluation, the testimony of Student’s 1 st grade teacher (Ms. Schott), the testimony of Student’s 1 st grade reading teacher (Ms. Palmer), the testimony and report of the School District’s reading teacher (Ms. DesBois) who did not teach Student but evaluated her, the testimony of Student’s current speech-language pathologist (Ms. Young) who works with Student within the classroom at Carroll School, and the head of the Carroll lower school (Ms. Lowell) who has observed Student and participated in Carroll team meetings regarding Student.
There is little substantive dispute regarding Student’s educational profile of strengths and weaknesses. As early as November 2003 when Dr. Mautz completed his first neuropsychological evaluation, Student was found to have a variety of learning difficulties, including a language-based learning disability. Dr. Mautz’s 2005 evaluation further confirmed Student’s disabilities. Exhibits P-31, P-82, S-5, S-71. The School District’s own neuropsychological consultant (Dr. Postal), noting that Dr. Mautz’s evaluations were comprehensive, adopted and relied upon Dr. Mautz’s findings regarding Student’s educational disabilities. Testimony of Postal; exhibits P-88, S-75. Other School District witnesses agreed that Student has deficits regarding receptive language, integrating language, and expressive language, and has a severe deficit regarding reading. Testimony of DesBois; Halleran.18
Student is an exceptionally nice person. She is engaging, likeable, curious, and eager to learn. She works hard, tends to persist, and has a sense of humor. Student generally enjoys her interactions with her peers as well as adults in the classroom. Student has strengths regarding her fine and gross motor skills. She is athletic and artistic. In the classroom, Student tends to be silly and loses her focus, at times, but responds well to direction and structure. Testimony of Schott, Brant, Adams, Parent.
Student has the potential to make significant educational progress. This was demonstrated most clearly by Student’s relative strengths in testing regarding her listening comprehension (as compared to her reading comprehension skills) and by Student’s gains in the non-verbal area between Dr. Mautz’s 2003 evaluation and his 2005 evaluation. Testimony of Adams, Mautz; exhibits P-31, P-82, P-108, S-5, S-71.
Student has a marked discrepancy between her verbal and non-verbal intelligence. Her strengths are non-verbal or perceptual reasoning. She also performed relatively well on testing of her listening comprehension. Testimony of Adams, Mautz, DesBois; exhibits P-31, P-82, P-108, S-5, S-71.
Student has a complex and pervasive language-based learning disability that effects both her understanding (receptive language) and her oral and written production (expressive language). In addition, Student has dyslexia, which impacts her reading. She also has executive functioning difficulties in the form of severe memory deficits and attentional limitations. Student’s deficits impact negatively on her basic and elaborated language functions (i.e., difficulties with word retrieval and associated difficulties with formulation), auditory memory, simultaneous processing, phonological awareness, rapid naming speed, pragmatics of communication, processing both verbal and non-verbal information, and sustained attention. As Ms. Adams explained in her written report, Student has “persisting difficulties with acquisition, maintenance and development of basic reading and writing skills.” She “struggles to process, manipulate and reformulate language for writing, speaking and communicating. Her disabilities have ramifications in all subject areas.” In short, Student’s deficits are reflected in weaknesses in every part of language, including phonology, semantics, grammar syntax, discourse language, metalinguistics, and pragmatics. Testimony of Brant, Adams, Mautz, DesBois, exhibits P-31, P-38, P-82, P-86, P-88, P-108, S-5, S-6, S-71, S-75.
Current Appropriateness of the School District’s IEP
The School District’s current IEP, which runs from 4/7/06 to 4/7/07, includes the following inclusion and pull-out services:
· sixteen and three-quarter hours per week of special education services within the general education classroom, consisting of
1. speech-language services for 30 minutes, once per week,
2. written language services (from special education and regular education staff) for 45 minutes, five times per week,
3. reading/language arts for 45 minutes, five times per week,
4. mathematics for 60 minutes (from special education and regular education staff), five times per week,
5. academic support (from a paraprofessional) for 45 minutes, five times per week;
· four hours per week of pull-out special education services, consisting of
1. speech-language services for 30 minutes, twice per week,
2. language arts services for 60 minutes, five times per week,
3. social skills services for 30 minutes, once per week.
The IEP calls for placement at the Swallow Union Elementary School, which was selected by the School District so that Gail DesBois would be available to provide reading instruction to Student. Ms. DesBois is certified in Orton Gillingham and the Wilson Reading program. Exhibits P-89, P-90, S-76, S-77.
For purposes of assessing the current appropriateness of this IEP, I consider to be most relevant the testimony and reports of those persons who, within the last twenty-four months, have either provided services to Student or evaluated Student. These persons are Dr. Postal and Ms. DesBois for the School District, and Ms. Adams, Ms. Brant, Dr. Mautz, Ms. Young, and Ms. Lowell for the Parents.
Of these seven persons, Ms. Adams and Ms. Brant provided the most useful and persuasive testimony and evaluation report. Both Ms. Adams and Ms. Brant have exceptional knowledge, experience, and expertise directly relevant to the appropriate educational services and placement for someone with Student’s profile. Ms. Adams, a learning specialist, has completed approximately 400 evaluations of children with severe language-based learning disabilities, and has a broad range of experience consulting to parents, clinicians, and school districts regarding the educational needs of these students. She recently (October 2006) evaluated Student. Subsequently, she observed Student at the Carroll School and observed the School District’s proposed 3 rd grade placement for Student. Testimony of Adams; exhibit P-109 (resume).19
Ms. Brant, a speech-language pathologist since 1973, has extensive experience working within the public schools, including both a pull-out/inclusion model and a substantially-separate classroom. Ms. Brant has been Student’s private speech-language pathologist since August 2006, she informally tested Student, and she observed Student at the Carroll School in December 2006. Testimony of Brant; exhibit P-116 (resume). Both Ms. Adams and Ms. Brant testified in a detailed, candid, and authoritative manner, and I credit their expert testimony.
Because language is the foundation of Student’s learning, her deficits have a profound effect upon her education. For example, Student’s language processing speed is slow, she does not always perceive sounds correctly, she has significant difficulty accessing vocabulary, and weaknesses in her auditory memory result in her not being able to hold, at one time, three units of unrelated information. This makes it difficult for Student to recall oral information immediately. Also, Student’s lack of automaticity regarding language results in her working very hard to organize information in her brain, and it takes a long time for Student to process auditory information. Testimony of Brant, Adams, Palmer.
As the language presented to Student becomes longer and more complex, and is presented at a faster pace, Student has greater difficulty. Information provided to her must be broken down, or she will miss it or forget it. One has to give Student a small amount of information and then wait for her to process it. Frequent repeating is often necessary. The information must also be presented to her with the assistance of visuals (she is a “visual learner”), and there must be frequent check-ins by a teacher to make sure that Student understands the material. Testimony of Brant, Adams, Young.
Ms. Adams and Ms. Brant were persuasive that although Student has the cognitive ability to understand 3 rd grade concepts, she would not be able to access the language used in a regular education 3 rd grade classroom because of the severity of her language processing and production deficits. Accommodations and assistance within the classroom can increase the amount of knowledge available to Student but cannot remedy the underlying difficulty of accessing language and participating effectively.
In Ms. Adams’ written report, after reviewing Student’s profile, her academic achievement levels, and her history of educational services, Ms. Adams concluded, in part:
Put simply, [Student] has significant language based learning disabilities including but not limited to Dyslexia and requires that her school program be specifically designed to address the extent of her needs as the negative impact of her deficits is/will be far reaching. She cannot acquire information and learn new skills comfortably and with mastery through general education instruction accommodations and periodic pull-outs; her early risk factors and needs are clearly outlined in records dating back to her very early school years. Given her significant delays and risk factors she cannot make effective and sufficient progress in a model which is more geared toward exposure to grade level curriculum such as inclusion with a paraprofessional than well-targeted remediation such as an intensive language based program for all subject areas. . . . Because [Student] shows a number of learning and school performance problems, nearly every aspect of her school life has been impacted. For [Student], an effective program should include direct small group instruction in basic skills and language in all subjects by all teachers.
After observing the School District’s proposed 3 rd grade inclusion placement for Student at Swallow Union on October 13, 2006, Ms. Adams testified persuasively that Student does not have sufficient language skills to participate effectively and be engaged in the School District’s proposed inclusion class for a number of reasons, including its size (21 students), the pace of instruction, and the lack of sufficient classroom accommodations. Ms. Adams explained that Student has the cognitive ability to understand 3 rd grade concepts, but she would not be able to access the language used in this classroom because of the severity of her language processing and production deficits.
Ms. Brant also persuasively explained the impossibility of Student’s making effective progress within a pull-out inclusion model in 3 rd grade. Because of Student’s deficits regarding language, processing, and memory, Student cannot be expected to succeed academically in a large classroom when learning academic courses such as math, social studies, and science. The pace, complexity, and language content of a relatively large regular education 3 rd grade classroom, even with accommodations and assistance from others, are not compatible with Student’s current learning needs. Ms. Brant explained that even with a 1:1 aide for Student in the classroom, Student would always be behind, always seeking to catch up with the classroom instruction.
I find that Student requires specialized instruction in small classes with other students who have similar learning profiles so that Student will be able to keep up with the pace and complexity of the instruction and so that the teacher will be able to check in with Student to ensure her understanding. Testimony of Brant, Adams.
Ms. Adams and Ms. Brant were also persuasive, and I so find, that for Student to make effective progress over the long term regarding her language-based deficits, the concepts and skills that are taught must be integrated into all settings throughout the day so that there is sufficient carry-over and reinforcement throughout the day – in other words, there needs to be explicit and consistent language-based instruction in all academic settings, not only in the language arts class but also, for example, in science and social studies. Testimony of Adams, Brant.
In response, the School District offered the testimony and reports of Dr. Postal and Ms. DesBois. Dr. Postal presented as a highly intelligent and candid neuropsychologist who reviewed Student’s records, observed Student at the Carroll School, conducted a clinical interview of Student, and performed a limited amount of testing. Dr. Postal concluded that Student’s profile is consistent with dyslexia, which is caused by deficits in phonological processing. She opined that in order to address this deficit, a science-based, phonology-based reading program (such as Orton Gillingham) is recommended. Accordingly, Dr. Postal concluded in her report and in her testimony that Student would “clearly benefit” from intensive reading intervention on a daily basis, and would also benefit from two sessions of speech-language therapy per week. She further explained in her testimony that the daily reading intervention, at its most intensive level, would consist of one to two hours of 1:1 instruction each day. Dr. Postal reviewed the service delivery grid for each of the contested IEPs and found the proposed services from a learning disability specialist (to address reading) in each of the IEPs to be appropriate in addressing Student’s phonological processing deficits. Testimony of Postal; exhibits P-88, S-75.
In weighing the persuasiveness of Dr. Postal’s analysis and recommendations, I also consider the analysis and recommendations of the neuropsychologist retained by Parents (Dr. Mautz). Particularly in his 2005 evaluation report as well as in his testimony, Dr. Mautz strongly disagreed with Dr. Postal’s recommendations regarding services and placement. More specifically, Dr. Mautz concluded that Student “is most certainly a student requiring a substantially separate educational setting, and my opinion is that she is appropriately placed at this time.” He further opined that “meaningful gains would not be acquired” within the School District’s proposed placement. Exhibits P-82, S-71.
Dr. Postal and Dr. Mautz are both neuropsychologists, they have comparable levels of experience and expertise (compare their resumes, exhibits P-122, S-90), and they have had similar involvement with Student (although Dr. Mautz had the advantage of conducting two full neuropsychological evaluations, as compared to Dr. Postal’s neuropsychological consult, but Dr. Postal had the advantage of observing Student at the Carroll School).
I have concerns as to the analyses of both Dr. Postal and Dr. Mautz. Dr. Postal’s analysis of Student’s needed services and placement was focused principally on providing remediation for Student’s dyslexia. Student does have dyslexia, and Dr. Postal’s recommendations would likely be persuasive but for Student’s additional, related disabilities. As discussed in more detail above in the section of this Decision entitled “Student’s unique educational needs” and as recognized by Dr. Postal in her written report, Student has a combination of significant language-related deficits, only one of which is dyslexia. The overwhelming weight of the evidence was that to be appropriate for Student, her educational program must address Student’s entire language deficit, rather than part of it. Testimony of Adams, Brant, Palmer, Lowell, Young, Mautz.
Dr. Mautz’s testimony in support of an out-of-district placement was based, in part, on a risk that Student would have social or emotional difficulties within a pull-out/inclusion placement. Presumably, relevant research supports this view in general, but in the context of the facts of the instant dispute, Dr. Mautz’s concern has limited relevance to the question of whether Student may be appropriately placed in a pull-out/inclusion model or, conversely, must be placed in a substantially-separate, language-based program in order to receive FAPE.
In general, the principal expertise of both Dr. Postal and Dr. Mautz was providing a profile of Student’s educational strengths and weaknesses, rather than providing persuasive explanation in support of particular program recommendations. Compare, for example, the expertise of both Ms. Adams and Ms. Brant regarding the educational services and placement required for Student to make effective progress, and their explanations in support of their program recommendations.
I find the recommendations of Dr. Postal and Dr. Mautz to have roughly equal weight in the context of the present dispute. Dr. Postal and Dr. Mautz reached contrary conclusions regarding the appropriate services and placement for Student. When considered together, the services and placement recommendations of these neuropsychologists provide no significant additional support for either party.
The School District also relies upon the testimony and evaluation report of Ms. DesBois, who is a School District reading teacher with significant experience and expertise regarding the reading needs of special education students. Ms. DesBois has never taught or otherwise worked with or observed Student, but she conducted an Achievement Evaluation of Student for the purpose of documenting academic levels specifically in the area of reading. She administered the following tests: subtests of the Woodcock-Johnson III Test of Achievement, Tests of Word Reading Efficiency, Moats Primary Spelling Inventory, and Grade Two Dictation Task. Testimony of DesBois; exhibits P-86, S-75.
Ms. DesBois testified that had Student attended 3 rd grade at the Swallow Union School, she would have been working on Student’s language deficits. Ms. DesBois would have utilized a combination of Orton Gillingham and Wilson Reading programs. Ms. DesBois testified that she teaches children with a profile similar to Student and believes that Student would have benefited from the partial inclusion, with pull-out model reflected within the School District’s IEP for 3 rd grade. She opined that the School District’s proposed IEP would address Student’s special education needs appropriately. Testimony of DesBois.
I found Ms. DesBois to be a credible witness regarding Student’s reading difficulties and how they might be met. However, Ms. DesBois does not have significant expertise or experience regarding the broader question of what array of educational services (including placement) are necessary to address appropriately Student’s multitude of deficits.
I also note the contrary testimony of another reading teacher (Ms. Palmer) who had the advantage of being Student’s reading teacher for 1 st grade. Ms. Palmer has extensive expertise in the Orton Gillingham reading program. Ms. Palmer has a greater breadth of experience than Ms. DesBois as a result of working both within the School District and at the Carroll School both before and after working with the School District.
After reviewing the relevant evaluations, Ms. Palmer testified that Student requires a substantially-separate, language-based program to make effective progress. She explained that in order to make appropriate progress, Student needed to have the reading skills that she was learning (for example, phonological awareness) integrated into and reinforced throughout the other parts of her school day. This amount of practice and reinforcement was necessary, in Ms. Palmer’s opinion, for these skills to become “automatic,” thereby allowing Student to make effective progress regarding reading. Ms. Palmer testified that a pull-out model, even with increased amounts of time for reading instruction, would not likely be effective for Student because it lacks sufficient reinforcement of skills throughout the day, does not provide consistent teaching strategies and utilizes a relatively large class size which presents difficulties for Student given her auditory processing deficits.
Finally, the School District relies on what it believes to be Student’s significant academic progress attained in 1 st grade when the educational services were provided through a pull-out/inclusion model. The School District makes an argument that because Student made effective progress in this educational model one year, she is likely to make effective progress in a similar, somewhat enriched model two years later. But it was not disputed that what is taught and how it is taught, as well as the academic expectations, are significantly different between the 1 st and 3 rd grades. For example, during 1 st grade, many students are only beginning to learn how to read, and a primary focus of the entire year is reading. By 3 rd grade, a certain level of language mastery is assumed, and reading is beginning to be used as a tool for learning. I am satisfied that at least by the time Ms. Adams observed the School District’s proposed 3 rd grade placement (in October 2006), the pace, language used, relatively large classes, and classroom expectations were well-beyond Student’s abilities, for the reasons explained above. Testimony of Adams, Schott. I find that Student’s 1 st grade progress, in and of itself, provides insufficient basis from which one may conclude that the School District’s pull-out/inclusion model is an appropriate current or prospective placement for Student.
In conclusion, I find that in order for Student to make effective educational progress and allow Student meaningful access to public education consistent with her educational potential, Student must be provided with specialized instruction in small classes for all academic subjects, utilizing explicit and consistent language-based instruction in all academic settings throughout the day, and with other students who have similar learning profiles. This instruction model is not reflected in the School District’s current IEP (pull-out/inclusion placement at Swallow Union), nor is this model currently available within the School District. Testimony of Adams, Brant, Young, Lowell; exhibits P-82, P-108, S-71.
Accordingly, I conclude that the School District’s current IEP is not reasonably calculated to provide Student with FAPE, it cannot be modified so that it would provide FAPE, and the School District must amend its IEP to provide for an appropriate out-of-district placement. For reasons later explained in this Decision, the IEP must name the Carroll School as that placement.
Reimbursement of Parents’ Expenses for 2 nd and 3 rd Grades
I now turn to the question of whether Parents are entitled to reimbursement for any or all of the tuition and related out-of-pocket expenses for their unilateral placement of their daughter at the Carroll School for 2 nd and 3 rd grades.
In contrast to the question of Student’s current and prospective services and placement, which requires consideration of Student’s current special education needs and how they should be met now and prospectively, determination of reimbursement is a matter of equitable relief,20 requiring separate consideration of each of the three IEPs within the context of what was known or should have been known at the time that the IEP was drafted by the Team. As explained by the First Circuit, I may consider Student’s progress under that IEP,21 but the principal focus is on what was “objectively reasonable” when the IEP was actually written: actions of school systems cannot, as appellants would have it, be judged exclusively in hindsight. An IEP is a snapshot, not a retrospective. In striving for “appropriateness,” an IEP must take into account what was, and was not, objectively reasonable when the snapshot was taken, that is, at the time the IEP was promulgated. [Internal citations omitted.]22
First IEP in Dispute .
The first IEP at issue was written in March 2005, which was the spring of Student’s 1 st grade. The IEP addresses the remainder of 1 st grade, the summer of 2005, and the first three-quarters of 2 nd grade (through March 16, 2006). The IEP reflects a similar educational model to the services and placement that Student had been receiving up to this point in time in 1 st grade. I will consider Student’s progress in school when the IEP was written, as well as evaluations that had been completed. I will also consider, but give less weight to, Student’s progress in 1 st grade subsequent to the date that the IEP was written.
In general, Student’s 1 st grade teacher (Ms. Schott) testified that Student made “good” progress in 1 st grade and expected that this progress would continue in 2 nd grade. Ms. Schott described Student as an engaged and active learner in her classroom. Ms. Schott’s written progress reports throughout the year similarly reflected her view that Student was making good progress. The only two areas where Student did not make progress during 1 st grade, according to Ms. Schott, were listening and following directions. Testimony of Schott; exhibits P-55, P-56, P-63, P-66, S-13, S-14, S-15, S-16, S-17, S-39, S-41, S-43, S-44.
Student began and ended the year at grade level with respect to math. Testimony of Schott.
With respect to reading, Ms. Schott testified that Student’s Developmental Reading Assessment (DRA) scores improved from a level 2 in September to a level 4 in March 2005 to a level 12 by the end of 1 st grade (12 is a late 1 st grade level; 1 st grade levels are level “A” through level 16; 2 nd grade levels are 18 through 24). The purpose of DRA testing is to inform instruction within the classroom and to provide information to parents regarding a student’s reading level. It is an un-timed, non-standardized test that measures reading word accuracy and reading comprehension (through re-telling of what has been read) and measures (indirectly) fluency, as well as strategies when a student becomes “stuck.” The test does not measure phonics, phonemic awareness, vocabulary, or fluency rate, and does not directly measure fluency. As such, it provides one piece of information that is useful to teachers in monitoring progress, but it does not provide a complete picture of a student’s reading abilities or progress. Ms. Schott testified that what she saw in the classroom was generally consistent with the reading progress reflected in Student’s DRA scores. Testimony of Schott, Palmer, Adams, DesBois; exhibits S-47, S-87.
Ms. Schott reported that at the beginning of the year, Student needed a great deal of 1:1 support to express herself in writing. As the year progressed, Student’s writing improved, particularly her ability to express herself in response to open-ended questions, and she became a more self-confident writer. Student tended to be meticulous, often taking longer than other children to complete her work. Ms. Schott explained that by the end of the school year, Student was in the middle of her class with respect to writing. Testimony of Schott.
Student generally did well throughout the year on her spelling tests and generally improved in this area throughout the year. Testimony of Schott.
Ms. Schott testified that notwithstanding Student’s progress, Student continued to struggle with language and reading. Ms. Schott explained that she was concerned whether Student was making enough progress in the context of 1 st grade expectations. Testimony of Schott.
I found Ms. Schott to be a highly experienced teacher who developed a good understanding of Student’s strengths, weaknesses, and academic progress throughout 1 st grade. I credit her testimony with respect to Student’s academic progress.
Student’s speech-language pathologist for 1 st grade (Ms. Halleran) testified that throughout 1 st grade, she worked with Student using a visualization and verbalization program, which assisted Student to make progress regarding her memory span, focus, and ability to recall directions. Ms. Halleran reported that Student made progress in the benchmarks contained within her IEP. Testimony of Halleran; exhibits S-13, S-14.
Ms. Palmer, a reading specialist, worked with Student throughout 1 st grade providing 1:1 pull-out services for 30 minutes, four times per week, and for 45 minutes, once per week. Ms. Palmer focused on improving Student’s phonemic awareness so that Student would understand the basic sounds contained within words, and thereby be able to read words that were unfamiliar to her. Ms. Palmer used the Orton Gillingham reading program. Ms. Palmer explained that her work to address Student’s reading deficits was not coordinated or integrated with Ms. Schott’s reading instruction to Student.
In her progress reports throughout the year, Ms. Palmer wrote that Student was making progress in meeting her IEP benchmarks. Ms. Palmer’s end-of-the year progress report (June 22, 2005) indicated that Student could read closed syllables (e.g., bat, let, run) with 100% accuracy, was building her sight word vocabulary “slowly,” and had improved her reading fluency when reading phonetically controlled text. Testimony of Palmer; exhibits P-55, P-56, P-65, S-17.
Ms. Palmer testified that Student made slow progress – for example, taking all of 1 st grade to master the short vowels. By the end of 1 st grade, the skills being worked on (phonemic awareness) continued to be weak. In Ms. Palmer’s opinion, because of the time being taken to retain skills, Student did not make “meaningful” progress during 1 st grade. Ms. Palmer tested Student at the end of 1 st grade using the DIBELS Reading test (reported at the end of her June 2005 progress report, exhibit S-17), by which Ms. Palmer found that at grade level, Student could read 26 words per minute and her comprehension was at the “frustration” level. (Ms. Palmer opined that this testing was a more accurate statement of Student’s reading progress than the DRA.) Ms. Palmer concluded, on the basis of her testing and working with Student during 1 st grade, that Student began the 1 st grade year not being able to read (her reading level could not be measured at that point in time) and ended the year being able to read independently at the pre-primer level. She further concluded that Student had not made significant progress regarding rate, comprehension, and fluency during 1 st grade.
Ms. Palmer testified that had Student continued to be educated within this kind of pull-out model within the School District, Student would likely have made progress but not sufficient to begin to catch up to her peers; and Student would have likely fallen further and further behind her peers.
Student made significant gains regarding her social skills over the course of the school year, and became better able to handle open-ended activities. Student participated in a social skills and friendship group, beginning the year as somewhat immature with difficulty recognizing social cues, and ending the year with more maturity, greater self-confidence, and understanding better her personal space. Testimony of Ascione; exhibits S-13, S-14, S-16.
Parent testified that throughout 1 st grade, her daughter would cry about school, complaining that she did not understand and that she did not know what she was supposed to do when returning to the classroom from a pull-out service. Parent noted that her daughter did well on her spelling tests because every night she would review words with her daughter, but one or two weeks later, her daughter would not be able to remember how to spell these words. Parent also noted that she would provide significant assistance to her daughter in other ways – for example, projects to be completed at home. Testimony of Parent.
On March 16, 2005, the IEP Team met to prepare an IEP for the remainder of 1 st grade, the summer, and 2 nd grade. The proposed IEP reflected the following services:
· 2005 summer services for six weeks consisting of 45 minutes of 1:1 reading services from a certified special education teacher, three times per week;
· six and three-quarter hours per week of special education services within the general education classroom, consisting of
1. class support for 30 minutes, five times per week,
2. speech-language services for 30 minutes, once per week, and
3. reading/language arts for 45 minutes, five times per week;
· five hours per week of pull-out special education services, consisting of
1. speech-language services for 30 minutes, twice per week,
2. social skills services for 30 minutes, once per week,
3. language arts services for 30 minutes, five times per week,
4. mathematics for 30 minutes, twice per week.
The IEP called for continued placement at the Prescott School. Parents had requested the Prescott School in September 2004 so that Ms. Palmer, who is certified in a science-based reading program, would be available to work with their daughter. The IEP was for the period 3/16/05 to 3/16/06. The IEP and placement were accepted, in full, by Parents on April 20, 2005. Testimony of Parent, Sirois, Endicott; exhibit P-64.
The previous IEP, which was for the period 4/27/04 to 4/27/05 and which had been accepted in full by Parents, called for the following inclusion and pull-out services:
· four hours per week of special education services within the regular education classroom, consisting of
1. class support for 30 minutes, five times per week,
2. language support from a speech-language pathologist for 30 minutes, once per week, and
3. academic support for 60 minutes, once per week;
· four hours per week of special education pull-out services, consisting of
1. speech-language therapy for 30 minutes, twice per week,
2. language arts for 30 minutes, five times per week, and
3. social skills for 30 minutes, once per week.
Exhibits P-50, S-26, S-29, S-32.
At the March 16, 2005 IEP Team meeting, Ms. Schott reported to the Team that Student was having a “wonderful” year. She testified that at this time, Student was at grade level in math. Student was making progress in reading (for example, her letter knowledge was established and reversals had self-corrected) although she continued having difficulty with her phonemic skills and manipulating words. She showed an improvement, but not a significant improvement, in reading words in isolation. In March, her DRA tested at level 4. At this Team meeting, Ms. Palmer (Student’s reading teacher) reported that Student was making progress. Ms. Palmer did not propose any different or additional services for the next IEP. Testimony of Sirois, Palmer, Schott.
In a March 16, 2005 screening instrument for targeting educational risk, Ms. Scott reported that Student attained a failing score in academics, attention, and communication, and a passing grade in class participation and social behavior. Exhibits P-61, S-45.
At the time of the March 16, 2005 Team meeting, Student had been evaluated once by Dr. Mautz in October and November 2003 and by Ms. Gordon in November 2003. Dr. Mautz’s neuropsychological evaluation found that Student had a variety of learning difficulties, which, in combination, “are expressed as a significant and potentially handicapping language-based learning disability in the classroom.” He also found the possibility of an attentional disorder. On the basis of these findings, Dr. Mautz recommended that Student be placed into a substantially-separate language-based classroom for the 2004-2005 school year, with daily individual and/or small group reading support utilizing a science-based reading program. Testimony of Mautz, exhibits P-31, S-5.
Ms. Gordon’s speech-language evaluation reported weakness in Student’s phonological access and storage, and recall and retrieval of phonological information – skills that play a “pivotal role” in learning to read, listening, and reading comprehension. She recommended that Student be placed in a small, language-based structured school program in which language learning and support are present throughout the day across tasks. Exhibits P-38, S-6.
A review of the above-described evidence indicates that it is mixed, providing evidentiary support to each party. But on balance I find that the evidence favors the School District’s conclusion, on March 16, 2005, that the proposed IEP for 3/16/05 to 3/16/06 would appropriately address Student’s special education needs for 2 nd grade. I therefore conclude that the IEP was appropriate. My reasoning follows.
Nearly all of the evidence available to the IEP Team indicated that on March 16 th Student was making effective progress in 1 st grade, particularly in the areas of writing, spelling, math, and social skills. Perhaps the principal exception was Student’s reading progress, which appeared to be quite slow as of March 16 th , but by the end of the academic year, her DRA scores had jumped significantly, reflecting more significant progress in this area. Although the DRA has limited usefulness as a clinical or diagnostic tool, it can provide a relevant measure of progress regarding certain aspects of reading.
As compared to the IEP that had been in effect, the newly-proposed IEP would increase both inclusion services (that is, services within the regular education classroom) and pull-out services. I note that Ms. Schott had some concerns about Student’s progress in language arts, but it was reasonable for the IEP Team to believe that, with increased services, Student’s needs would be addressed more completely in 2 nd grade. I also note that Parents accepted the March 16 th IEP in full, as they had the previous IEP. By all reports, Parents believed, at the time, that this IEP was appropriate, and did not change their minds until Student attended the Carroll School summer program at the end of 1 st grade.
Parents argue that the School District’s reading teacher (Ms. Palmer) who had been working with Student for 1 st grade had concluded that Student was not making effective progress in reading and that Student required a substantially-separate, language-based program for 2 nd grade. All agree that Ms. Palmer has excellent credentials and experience as a reading teacher. I assume, based on Ms. Palmer’s testimony, that her opinions are as argued by Parents. Yet, it is undisputed that Ms. Palmer did not candidly share these opinions with the School District during 1 st grade.
During 1 st grade, Ms. Palmer did not recommend a different teaching model than what the School District was utilizing and proposing for the future, and during the March 2005 Team meeting, Ms. Palmer reported to the Team that Student was making progress. The only recommendation Ms. Palmer made for additional or different services was that she also spend time with Student in a small group during her regular education class time. At the time that the IEP was developed, Ms. Palmer’s expressed opinions supported the appropriateness of the School District’s IEP. Ms. Palmer is a highly qualified reading teacher, and the School District was entitled to put significant weight on her expressed views.
Parents also point to the neuropsychological evaluation by Dr. Mautz and the speech-language evaluation by Ms. Gordon, discussed above, which recommended a substantially-separate, language-based program, rather than the inclusion/pull-out model reflected in the IEP. I note that both evaluations were completed approximately one and one-half years prior to the March 16, 2005 Team meeting. Ms. Gordon did not testify, making it difficult to weigh her recommendations, and no evidence was presented regarding her experience and expertise, other than her being a speech-language pathologist.
Dr. Mautz did testify, and he presented as a highly intelligent and articulate witness who was able to determine Student’s educational strengths and weaknesses. However, as explained above, Dr. Postal (the School District’s neuropsychologist) and Dr. Mautz reached contrary conclusions regarding the appropriate services and placement for Student. When considered together, the services and placement recommendations of these two neuropsychologists provide no significant additional support for either party.
Parents also point to their experiences with their daughter at home, including her frustration with school and the significant amounts of assistance provided by Parents (for example, with spelling). This evidence is relevant and important, but not sufficient to discount the progress reported in the classroom.
Parents note, correctly, Ms. Schott’s March 16, 2005 report, indicating that Student attained a failing score in academics, attention, and communication, and a passing grade in class participation and social behavior. The purpose of the report was to provide information for the purpose of additional testing, rather than to determine Student’s educational progress. This screening instrument does not provide a comprehensive assessment of Student’s academic, attention, and communication skills, and I find that it provides little insight into Student’s progress during 1 st grade. Exhibits P-61, S-45.
Both parties have sought to use to their advantage a comparison of Student’s standardized test scores. The School District points to the increase in several subtest scores between Dr. Mautz’s October/November 2003 evaluation and his October 2005 evaluation. Parents point to the lack of progress reflected when comparing Dr. Mautz’s 2003 test scores and the test scores from the Children’s Hospital evaluation in September 2005. I do not find it possible to gain from these test scores any significant guidance regarding Student’s progress in 1 st grade, in large part because the span of time between tests runs from the fall of kindergarten to the beginning of 2 nd grade, after Student had attended a summer program at the Carroll School. Also, the scores on identical subtests from the September 2005 and October 2005 evaluations are somewhat inconsistent with each other, perhaps indicating a practice effect. Testimony of Mautz.
Finally, Parents argue, correctly, that the IEP in question did not actually include any pull-out language arts (reading) services for the 2 nd grade. These services ended, according to the IEP, at the end of 1 st grade. There was significant testimony regarding this issue. The sequence of events was as follows.
By letter of August 5, 2005, Parents rejected the School District’s proposed IEP for the period 3/16/05 to 3/16/06, objecting to the decrease (from 1 st grade) of the pull-out support services from the learning disability specialist for language arts. The IEP Team chairperson (Ms. Sirois) testified that she called Parent to explain that there was no intention to end or reduce the pull-out language arts services, and suggested to Parent that there be an August Team meeting to address this issue. Ms. Sirois recalls that she contacted Ms. Palmer to obtain a recommendation for these services for 2 nd grade and scheduled an August 15, 2005 Team meeting to address the issue. Ms. Sirois testified that Parent cancelled the meeting and soon thereafter rejected the IEP placement for 2 nd grade, with the result that no Team meeting was scheduled during the summer. Parent has no recollection of a Team meeting being scheduled or cancelled, and there is no documentary evidence of a written notice of a Team meeting. Testimony of Parent, Sirois; exhibit P-75, P-76, S-62.
I am persuaded by this evidence that the School District made a mistake regarding the IEP, with the result that Parents did not know what pull-out language arts (reading) services would be available for 2 nd grade. However, this mistake did not likely prejudice Parents or Student, given the School District’s willingness to correct the error during the summer. It is also apparent to me that Parents’ decision to place their daughter at the Carroll School for 2 nd grade was not influenced by the School District’s mistake. Because I find that the School District’s procedural error did not result in educational harm to Student and did not preclude Parents from participating fully in the IEP process, I conclude that the error is not relevant to the question of reimbursement.23
For these reasons, I find that the IEP for the period 3/16/05 to 3/16/06 was reasonably calculated to provide Student with FAPE.
Second IEP in Dispute .
On September 8, 2005, the IEP Team met and the School District proposed an amendment to the IEP that would increase pull-out special education services in language arts from 30 minutes, five times per week, to 45 minutes, five times per week. The proposed amended IEP was for the period 9/8/05 to 3/16/06. Parents rejected the IEP and placement. Testimony of Sirois; exhibit P-81, S-67, S-68.
The School District’s decision to offer this IEP amendment was based upon Student’s progress in 1 st grade and the likelihood of this progress continuing in 2 nd grade with a similar (although somewhat enriched) educational program. For the same reasons discussed, above, with respect to the earlier IEP, I find that Parents have not met their burden of persuading me that it was objectively unreasonable for the IEP Team to conclude on September 8, 2005 that the proposed IEP amendment for 9/8/05 to 3/16/06 would appropriately address Student’s special education needs for 2 nd grade.
Parents make several additional arguments to the contrary. First, Parents note that between the end of 1 st grade and the September 8 th Team meeting, Student attended the Carroll School summer program. Carroll staff found that at the beginning of their five-week summer program, Student had difficulty reading and was considered to be at the level of beginning reader – for example, she had to sound out each word as she read it and would slowly blend sounds together to make words. By the end of the summer program, Carroll found that Student had made some progress but continued to have difficulty being able to read. Testimony of Lowell, Young; exhibits P-71, P-72, P-74.
The Carroll findings regarding Student’s reading level at the end of 1 st grade raise a question regarding the accuracy of Ms. Schott’s testimony and DRA scores indicating Student’s reading level at the end of 1 st grade. However, it is not possible for me to determine that the Carroll findings are more or less accurate than Ms. Schott’s findings, and therefore this evidence does not persuade me that Student did not make effective progress in 1 st grade.
Second, Parents point out, correctly, that at the time of the September Team meeting, the School District had no one available to provide a science-based reading program to their daughter in 2 nd grade. The School District had made a commitment to Parents that the person providing the pull-out reading services would be certified in a science-based reading program (Orton Gillingham or Wilson Reading program), although no such person had yet been hired at the time of the September Team meeting. Testimony of Sirois, Endicott.
I am persuaded that the School District was prepared to hire an appropriately-qualified reading instructor. Since Parents had unilaterally placed their daughter at the Carroll School for 2 nd grade and there was no reason to believe that Parents would accept the School District’s proposed IEP or placement for 2 nd grade, the School District had no obligation to hire the reading specialist until such time as Parents indicated that their daughter would be attending the School District’s proposed educational program.
For these reasons, I find that the IEP amendment for the period 9/8/05 to 3/16/06 was reasonably calculated to provide Student with FAPE.
Third IEP in Dispute .
I have previously considered the third IEP in dispute (which runs for the period 4/7/06 to 4/7/07) and determined it to be currently not appropriate for Student, requiring the School District to amend the IEP for purposes of prospective services and placement. See section “Current Appropriateness of the School District’s IEP” of this Decision.
I now consider this same IEP, but from the perspective of whether Parents are entitled to receive reimbursement for part or all of their expenses at Carroll during the period of the IEP. To answer this question, I must determine the appropriateness of the IEP within the context of when it was written – that is on April 7, 2006.
Between the previous IEP amendment on September 8, 2005 and April 7, 2006, the following evaluations had been completed: a September 21, 2005 language and auditory processing evaluation by Children’s Hospital, an October 2005 neuropsychological evaluation by Dr. Mautz, a March 2006 Achievement Evaluation by Ms. DesBois, and a March/April 2006 neuropsychological consultation (including a written report) by Dr. Postal. I have previously considered Dr. Mautz’s and Dr. Postal’s neuropsychological evaluations, as well as the testimony and report of Ms. DesBois.
The Children’s Hospital evaluation on September 21, 2005 was for the purpose of evaluating Student’s language and auditory processing. Evaluators were audiologist Kathleen West, MA, and speech-language pathologist Jean Jayne, MS. The evaluation identified weaknesses with auditory short term memory, figurative language comprehension, word retrieval, formulation and organization of verbal output, and flexible language interpretation. In terms of reading skills, Student presented with reduced phonological processing abilities and scattered strengths with decoding. The evaluators recommended intensive reading intervention on a daily basis and speech-language therapy twice per week. Exhibit P-79.
All of the evaluations between the September 8, 2005 IEP and the April 7, 2006 IEP, with the exception of Dr. Mautz’s October 2005 neuropsychological evaluation, support, at least to some extent, the IEP proposed by the School District. The School District gained additional support for its IEP from the progress, discussed above, that Student had made in the 1 st grade within an inclusion/pull-out model.
I find that the evidence favors the School District’s determination, on April 7, 2006, that the proposed IEP for 4/7/06 to 4/7/07 would appropriately address Student’s special education needs for the period of the IEP.
I conclude that this IEP, when written, was reasonably calculated to provide Student with FAPE. However, for reasons explained below, I further find that, effective November 3, 2006, Parents satisfied their burden of persuasion that the IEP was not reasonably calculated to provide their daughter with FAPE.
Partial Reimbursement for 3 rd Grade .
Ms. Adams evaluated Student on October 3, 2006. In contrast to the other evaluators (who reviewed Student in 2 nd grade or earlier), Ms. Adams was able to make her assessment and recommendations in the context of Student’s current strengths and weakness as a 3 rd grader. By the time Ms. Adams evaluated Student, Student’s progress in 1 st grade provided relatively little persuasive authority as to what services and placement are appropriate two years later.
As previously discussed in detail in the section of this Decision entitled “Current Appropriateness of the School District’s IEP,” Ms. Adams has exceptional knowledge, experience, and expertise. Her expertise is directly relevant to the appropriate educational services and placement for someone with Student’s profile. Ms. Adams conducted a thorough evaluation of Student’s special education needs and how they should be met, and I relied heavily on Ms. Adams’ findings and conclusions (together with Ms. Brant’s testimony) in determining, above, that the School District’s IEP for 3 rd grade is not currently appropriate.
The School District, through its attorney, received Ms. Adams’ evaluation on October 20, 2006. Exhibit P-127. Although the evaluation was transmitted to the School District in the context of the litigation before the BSEA, it is not disputed that the evaluation is an independent evaluation for purposes of the Massachusetts special education regulations. These regulations provide that within ten school days from the time the school district receives a report of an independent education evaluation, an IEP Team must reconvene and consider the independent education evaluation and whether a new or amended IEP is appropriate.24 The School District did not convene a Team meeting for this purpose.
I find that the School District should have convened a Team meeting no later than November 3, 2006 (which is ten school days after the School District’s receipt of Ms. Adams’ evaluation), and at that meeting, Ms. Adams’ evaluation would have provided persuasive evidence that Student’s IEP was no longer appropriate, and that Student required a substantially-separate, language-based program.
I conclude that as of November 3, 2006, the School District’s IEP was not reasonably calculated to provide Student with FAPE.
Reimbursement for Summer Services
The state special education regulations utilize a regression standard to determine whether a summer program may be appropriate:
An extended year program may be identified if the student has demonstrated or is likely to demonstrate substantial regression in his or her learning skills and/or substantial difficulty in relearning such skills if an extended program is not provided.25
The federal special education regulations employ a FAPE standard:
(a) General . (1) Each public agency shall ensure that extended school year services are available as necessary to provide FAPE, consistent with paragraph (a)(2) of this section. (2) Extended school year services must be provided only if a child’s IEP team determines, on an individual basis, in accordance with §§300.320 through 300.324, that the services are necessary for the provision of FAPE to the child.26
A number of courts have interpreted the federal regulatory standard to mean that summer services are appropriate when the benefits accrued to a disabled student during a regular school year will be significantly jeopardized if he is not provided with an educational program during the summer months, with the parameter of requisite summer services defined by what is necessary to avoid this outcome.27
On March 16, 2005, the IEP Team met to prepare an IEP for the remainder of 1 st grade, the summer, and 2 nd grade. The proposed IEP reflected 2005 summer services for six weeks consisting of 45 minutes of 1:1 reading services from a certified special education teacher, three times per week.
On April 7, 2006, the IEP Team met to prepare an IEP for the summer and 3 rd grade. The proposed IEP reflected 2006 summer services for six weeks consisting of 60 minutes of special education services, four times per week.
The appropriateness of an IEP for the school year and the appropriateness of an IEP for the summer are judged by different standards. Evidence presented by Parents regarding summer services was relevant to the standards used to determine the appropriateness of services during the school year but not whether the summer services offered by the School Distinct would meet the above-referenced state and federal standards regarding summer services.28
For these reasons, I find that Parents have not met their burden of persuasion regarding the appropriateness of the School District’s proposed IEPs as they pertain to services for the summer of 2005 and the summer of 2006. I therefore find in favor of the School District on the issue of reimbursement for summer services.
The Carroll School
Parents are entitled to reimbursement for their out-of-pocket expenses only if I conclude not only that the proposed IEP failed to provide FAPE, but also that the privately-provided educational services were appropriate.29 Having determined that the School District’s current IEP was not appropriate as of November 3, 2006, I consider the appropriateness of Parents’ placement of their daughter at the Carroll School from that date forward.
The mission of the Carroll School is to educate and remediate children with a language-based learning disability, and then return them to the regular education setting. The educational program is specifically geared to children with language deficits. The 3 rd grade at Carroll follows the Massachusetts Curriculum Frameworks and is approved by the Massachusetts Department of Education. Testimony of Lowell.
All teachers at Carroll are trained in Orton Gillingham, and all lessons are taught from these principles. Orton Gillingham is a phonetic methodology that is used throughout the school. This results in multi-sensory teaching that includes a significant amount of repetition and spiraling back, as well as consistency and reinforcement throughout the curriculum. Since all instruction is geared towards students with a language-based learning disability, no student is pulled-out for different, more specialized instruction. The curriculum also includes 1:1 reading tutorial for each student. Once each week, a speech-language pathologist works with the class, with the classroom teacher present, addressing phonemic awareness issues. The teachers then continue to work on these issues at other times during the week. Each class has 6 or 7 students. Testimony of Lowell, Young.
In addition, in 3 rd grade at Carroll, Student is participating in the RAVE-O (retrieval, automaticity, vocabulary, engagement, and orthography) program, which was developed specifically to help students who have both a rapid-naming deficit and a language-based learning disability. Student has this double deficit. RAVE-O works, simultaneously, to address word attack skills, fluency, and comprehension. Testimony of Lowell; exhibit P-115.
Ms. Adams, who observed Student at the Carroll School, found Student’s classroom to provide intensive, frequent, and integrated instruction necessary for Student to learn effectively. Ms. Adams also noted, in her testimony, the significant improvement in reading skills during the time Student has attended Carroll School – starting at a basic readiness level (for example, working on the sounds in the alphabet and now reading chapter books). Testimony of Adams; exhibits P-96, P-123.
Dr. Postal also observed Student at the Carroll School on April 4, 2006. Dr. Postal noted that Student was a “full participant” in the class, and was correct in her responses almost all of the time. Testimony of Postal; exhibits P-88, S-75.
Ms. Palmer, who taught at the Carroll School, then taught reading to Student in 1 st grade at the School District, and currently teaches at the Carroll School, testified in support of the appropriateness of the Carroll School for Student because of Carroll’s small classes, and its language-based teaching approach used consistently throughout the day.
Over the course of her time at Carroll during the 2 nd and 3 rd grades, Student has made progress, particularly with respect to her word attack skills and her reading level (she is now beginning to read chapter books although not independently). At Carroll, Student is an engaged and enthusiastic learner. Testimony of Lowell, Young.
I find that the Carroll School provides precisely the combination of services that I have determined earlier in this Decision to be necessary for Student to receive FAPE – that is, specialized instruction in small classes for all academic subjects, with other students who have similar learning profiles, and explicit and consistent language-based instruction in all academic settings throughout the day. Testimony of Lowell, Young, Adams, Palmer.
The School District takes the position that the Carroll program is not appropriate for Student because it does not include individual speech-language services. I do not find this persuasive. The educational model utilized by Carroll intentionally does not include individual speech-language services. Instead, speech-language services are provided once each week to the entire class, with the teacher also in attendance. The skills taught by the speech-language pathologist are then integrated into the teacher’s instruction during other parts of the week. Carroll has found that this model often eliminates the need for individual speech-language therapy. Parents have also made private arrangement for individual speech-language therapy once per week from Ms. Brant. Testimony of Young, Brant. The School District has provided no evidence upon which I could conclude that this model does not meet Student’s needs appropriately.
The School District argues that the Carroll program is not appropriate for Student because it does not include services relative to Student’s social deficits. The School District provided Student with assistance to address her social deficits, through a social skills and friendship group in 1 st grade. However, there is no evidence that Student has had these deficits since she has been at the Carroll School. I also note that the Carroll School has the capacity to address this area should it be identified as an educational concern. Testimony of Lowell.
The School District also argues that Student has not received sufficient educational benefit from the Carroll School, noting that Student’s DRA scores have decreased since she has been at Carroll. Ms. DesBois administered the DRA on 2/21/06, and these DRA scores were compared with the DRA scores when the test was administered by Ms. Schott in 1 st grade. Although these scores, by themselves, indicate regression, I am not persuaded that they can be used as an accurate reflection of progress or regression from 6/10/05 when Student was in the 1 st grade to 2/21/06 when Ms. DesBois completed her testing. The DRA is not standardized and, although there is a rubric to guide scoring and although the School District personnel have been trained how to administer and score the DRA, a review of the scoring categories and process reveals a level of subjectivity that makes it impossible to be certain that one test administrator would be using the same criteria as another test administrator. In addition, I note that the DRA was most recently administered in Student’s 2 nd grade, and the appropriateness of the Carroll School for 2 nd grade is not at issue.
For these reasons, I find that the Carroll School is an appropriate placement for Student, and has been since at least November 3, 2006. The School District must reimburse Parents for their out-of-pocket expenses attributable to Student’s placement from November 3, 2006.
The Groton-Dunstable Regional School District shall amend Student’s current IEP to provide specialized instruction in small classes for all academic subjects, utilizing explicit and consistent language-based instruction in all academic settings throughout the day, with children who have learning profiles similar to Student’s learning profile. The IEP shall identify Student’s placement as the Carroll School.
The Groton-Dunstable Regional School District shall reimburse Parents for their out-of-pocket expenses (including tuition and related expenses) necessary for their placement of Student at the Carroll School, beginning November 3, 2006.
All other requested relief (reimbursement for 2 nd grade, reimbursement for 3 rd grade through November 2, 2006, and reimbursement for the summers of 2005 and 2006) is denied.
By the Hearing Officer,
Dated: December 28, 2006
COMMONWEALTH OF MASSACHUSETTS
BUREAU OF SPECIAL EDUCATION APPEALS
THE BUREAU’S DECISION, INCLUDING RIGHTS OF APPEAL
Effect of the Decision
20 U.S.C. s. 1415(i)(1)(B) requires that a decision of the Bureau of Special Education Appeals be final and subject to no further agency review. Accordingly, the Bureau cannot permit motions to reconsider or to re-open a Bureau decision once it is issued. Bureau decisions are final decisions subject only to judicial review.
Except as set forth below, the final decision of the Bureau must be implemented immediately. Pursuant to M.G.L. c. 30A, s. 14(3), appeal of the decision does not operate as a stay. Rather, a party seeking to stay the decision of the Bureau must obtain such stay from the court having jurisdiction over the party’s appeal.
Under the provisions of 20 U.S.C. s. 1415(j), “unless the State or local education agency and the parents otherwise agree, the child shall remain in the then-current educational placement,” during the pendency of any judicial appeal of the Bureau decision, unless the child is seeking initial admission to a public school, in which case “with the consent of the parents, the child shall be placed in the public school program”. Therefore, where the Bureau has ordered the public school to place the child in a new placement, and the parents or guardian agree with that order, the public school shall immediately implement the placement ordered by the Bureau. School Committee of Burlington, v. Massachusetts Department of Education , 471 U.S. 359 (1985). Otherwise, a party seeking to change the child’s placement during the pendency of judicial proceedings must seek a preliminary injunction ordering such a change in placement from the court having jurisdiction over the appeal. Honig v. Doe , 484 U.S. 305 (1988); Doe v. Brookline , 722 F.2d 910 (1st Cir. 1983).
A party contending that a Bureau of Special Education Appeals decision is not being implemented may file a motion with the Bureau of Special Education Appeals contending that the decision is not being implemented and setting out the areas of non-compliance. The Hearing Officer may convene a hearing at which the scope of the inquiry shall be limited to the facts on the issue of compliance, facts of such a nature as to excuse performance, and facts bearing on a remedy. Upon a finding of non-compliance, the Hearing Officer may fashion appropriate relief, including referral of the matter to the Legal Office of the Department of Education or other office for appropriate enforcement action. 603 CMR 28.08(6)(b).
Rights of Appeal
Any party aggrieved by a decision of the Bureau of Special Education Appeals may file a complaint in the state superior court of competent jurisdiction or in the District Court of the United States for Massachusetts, for review of the Bureau decision. 20 U.S.C. s. 1415(i)(2).
An appeal of a Bureau decision to state superior court or to federal district court must be filed within ninety (90) days from the date of the decision. 20 U.S.C. s. 1415(i)(2)(B).
In order to preserve the confidentiality of the student involved in these proceedings, when an appeal is taken to superior court or to federal district court, the parties are strongly urged to file the complaint without identifying the true name of the parents or the child, and to move that all exhibits, including the transcript of the hearing before the Bureau of Special Education Appeals, be impounded by the court. See Webster Grove School District v. Pulitzer Publishing Company , 898 F.2d 1371 (8th Cir. 1990). If the appealing party does not seek to impound the documents, the Bureau of Special Education Appeals, through the Attorney General’s Office, may move to impound the documents.
Record of the Hearing
The Bureau of Special Education Appeals will provide an electronic verbatim record of the hearing to any party, free of charge, upon receipt of a written request. Pursuant to federal law, upon receipt of a written request from any party, the Bureau of Special Education Appeals will arrange for and provide a certified written transcription of the entire proceedings by a certified court reporter, free of charge.
For a more complete profile of Student, see the section of this Decision entitled “Student’s unique educational needs.”
20 USC 1400 et seq . Congress reauthorized and amended the IDEA in 2004, with changes to take effect on July 1, 2005. Unless otherwise indicated, references in this Decision to the IDEA are to IDEA 2004.
MGL c. 71B.
20 USC 1400(d)(1)(A). See also 20 USC 1412(a)(1)(A); MGL c. 71B, ss. 2, 3.
Bd. of Educ. of the Hendrick Hudson Central Sch. Dist. v. Rowley , 458 U.S. 176, 182 (1982)
See , e.g ., Lt. T.B. ex rel. N.B. v. Warwick School Committee , 361 F.3d 80, 83 (1 st Cir. 2004) (citations and internal quotation marks omitted) ; In re: Arlington , BSEA # 02-1327, 37 IDELR 119, 8 MSER 187, 193-195 (SEA MA 2002) (collecting authorities).
20 USC 1412 (a)(10)(C)(ii); Sch. Comm. of Burlington v. Dep’t of Educ., 471 U.S. 359, 370 (1985).
E.g., 20 USC 1400(d)(1)(A) (purpose of the federal law is to ensure that children with disabilities have FAPE that “emphasizes special education and related services designed to meet their unique needs . . . .”); 20 USC 1401(25) (“special education” defined to mean “specially designed instruction . . . to meet the unique needs of a child with a disability . . .”); Honig v. DOE , 484 U.S. 305, 311 (1988) (FAPE must be tailored “to each child’s unique needs”); Burlington School Committee v. Mass. Dept. of Ed. , 471 US 359, 361 (1985) (federal law entitles eligible student “to receive at public expense specially designed instruction to meet his unique needs”); Smith v. Fitchburg Public Schools , 401 F.3d 16 (1 st Cir. 2005) (“IDEA was enacted ‘to ensure that all children with disabilities have available to them a free appropriate public education … designed to meet their unique needs,’” quoting 20 U.S.C § 1400(d)(1)(A)) .
Lenn v. Portland School Committee , 998 F.2d 1083, 1090 (1 st Cir. 1993). See also 20 USC 1400(d)(4) (purpose of the federal law is “ to assess, and ensure the effectiveness of, efforts to educate children with disabilities”) ; Roland v. Concord School Committee , 910 F.2d 983, 991 (1 st Cir. 1990) (“Congress indubitably desired ‘effective results’ and ‘demonstrable improvement’ for the Act’s beneficiaries”); Burlington v. Department of Education , 736 F.2d 773, 788 (1 st Cir. 1984) (“objective of the federal floor, then, is the achievement of effective results–demonstrable improvement in the educational and personal skills identified as special needs–as a consequence of implementing the proposed IEP”); Manchester-Essex Reg’l Sch’l Dist. Sch’l Comm. v. Bureau of Special Education Appeals of the Mass. Dept. of Education , CA No. 05-10922-NMG (D.Mass. September 27, 2006) (Gorton, J.) (utilizing the First Circuit standard quoted in the text above).
603 CMR 28.05(4)(b) (IEP must be “designed to enable the student to progress effectively in the content areas of the general curriculum”); 603 CMR 28.02(18) (defining Progress effectively in the general education program ). The IDEA incorporates state educational standards into the FAPE definition. 20 USC 1401(9)(b).
Rowley, 458 U.S. at 192. Several federal circuit courts have similarly concluded that the IEP must provide a student with meaningful access to education or that the IEP must be reasonably calculated to enable the child to receive meaningful educational benefits. E.g ., Frank G. v. Board of Educ. of Hyde Park, — F.3d —-, 2006 WL 2077009 (2 nd Cir. 2006); Deal v. Hamilton County Board of Education, 392 F.3d 840 (6 th Cir. 2004); Shore Regional High School Bd. of Educ. v. P.S. , 381 F.3d 194, 198 (3d Cir. 2004); Houston Independent School District v. Bobby R ., 200 F.3d 341 (5 th Cir. 2000) . See also D.F. and D.F. v. Ramapo Central School District, 348 F.Supp.2d 92 ( S.D.N.Y. 2004) ( “’Minimal progress’ and ‘limited progress’ is not evidence of ‘meaningful’ access to education. ‘Minimal’ and ‘limited’ progress is evidence of opportunity for only trivial advancement.”).
MGL c. 71B, s. 1 (definition of “special education”). See also MGL c. 69, s. 1 (“paramount goal of the commonwealth to provide a public education system of sufficient quality to extend to all children the opportunity to reach their full potential ”); 603 CMR 28.01(3) (identifying the purpose of the state special education regulations as “to ensure that eligible Massachusetts students receive special education services designed to develop the student’s individual educational potential”). See also Mass. Department of Education’s Administrative Advisory SPED 2002-1: Guidance on the change in special education standard of service from “maximum possible development” to “free appropriate public education” (“FAPE”), Effective January 1, 2002 , 7 MSER Quarterly Reports 1 (2001) (appearing at www.doe.mass.edu/sped) (Massachusetts Education Reform Act “underscores the Commonwealth’s commitment to assist all students to reach their full educational potential”).
Hendrick Hudson Dist. Bd. of Educ. v. Rowley , 458 U.S. 176, 199, 202 (1982) ( court declined to set out a bright-line rule for what satisfies a FAPE in part because the court noted that children have different abilities and are therefore capable of different achievements; court adopted an approach that takes into account the potential of the disabled student ). Lower federal courts have similarly considered educational progress within the context of the student’s individual potential to learn. E.g., Deal v. Hamilton County Board of Education, 392 F.3d 840 (6 th Cir. 2004) (“IDEA requires an IEP to confer a ‘meaningful educational benefit’ gauged in relation to the potential of the child at issue”); Shore Regional High School Bd. of Educ. v. P.S. , 381 F.3d 194, 198 (3d Cir. 2004) (“IEP must be reasonably calculated to enable the child to receive meaningful educational benefits in light of the student’s intellectual potential”) (Alito, J.).
Lenn , 998 F.2d at 1086.
Id . See also Rowley at 197, n.21.
See, e.g ., Lt. T.B. ex rel. N.B. v. Warwick Sch. Com., 361 F.3d 80, 83 (1st Cir. 2004) (“IDEA does not require a public school to provide what is best for a special needs child, only that it provide an IEP that is ‘reasonably calculated’ to provide an ‘appropriate’ education as defined in federal and state law.”).
Schaffer v. Weast ,126 S. Ct. 528, 163 L. Ed. 2d 387 (2005) (burden of persuasion in an administrative hearing challenging an IEP is placed upon the party seeking relief; a party who has the burden of persuasion “ loses if the evidence is closely balanced” ).
However, the parties dispute whether Student currently has social needs that must be met through the IEP. This dispute is addressed in the section, below, entitled “The Carroll School.”
For seventeen years, Ms. Adams worked as the Senior Educational Specialist with the Center for Children with Special Needs at Tufts-New England Medical Center, she has provided consultation primarily to clinicians and parents but also to school districts, she worked as a reading specialist for two years in the regular education environment, providing pull-out services to students, and she was a teacher and tutor at Landmark. Ms. Adams has been a clinical instructor at Tufts University School of Medicine from 1989 to 2006, and in 1987, she received her masters degree in reading, language, and learning disabilities. Testimony of Adams; exhibit P-109.
I also note the thoroughness of Ms. Adams’ evaluation. Ms. Adams reviewed the two neuropsychological evaluations by Dr. Mautz, the speech-language evaluation by Ms. Gordon, the language and auditory processing evaluation by Children’s Hospital, the Carroll School testing records, the two most-recently proposed IEPs, and the School District’s March 2006 evaluations (by Dr. Postal and Ms. DesBois). In addition, Ms. Adams administered the following tests: Wechsler Individual Achievement Test – 2, Standardized Reading Inventory – 2, Gray Oral Reading Test – 4 (From B), and the Kaufman Test of Educational Achievement – 2. Ms. Adams also collected information, through a questionnaire, from Student’s teacher (Linda Caplice) at the Carroll School. Ms. Adams’ evaluation report provides a clear, careful, and persuasive analysis of Student’s special education needs and how they should be addressed. Exhibit P-108.
Diaz-Fonseca v. Commonwealth of Puerto Rico , 451 F.3d 13 (1 st Cir. 2006); Roland M. v. Concord Sch. Comm., 910 F.2d 983, 999 (1st Cir. 1990).
Roland M. v. Concord Sch. Comm., 910 F.2d 983, 991 (1st Cir. 1990) ( “actual educational results are relevant to determining the efficacy of educators’ policy choices”).
Id. at 992.
20 USC 1415(f)(3)(E)(ii); Roland M. v. Concord Sch. Comm., 910 F.2d 983, 994-95 (1st Cir. 1990) (“When parents raise procedural claims, . . . they cannot recover unless there is some rational basis to believe that procedural inadequacies compromised the pupil’s right to an appropriate education, seriously hampered the parents’ opportunity to participate in the formulation process, or caused a deprivation of educational benefits.”).
603 CMR 28.04(5)(f).
603 CMR 28.05(4)(d)1.
34 CFR 300.106. Although the federal FAPE standard may, arguably, be broader than the Massachusetts regression standard, the commentary to the 2006 federal regulations appears to take the position that states may properly use regression as their criteria for eligibility for extended year services. Federal Register, vol. 71, no. 156, August 14, 2006, page 46582, 3 rd column.
Kenton County School District, v. Hunt , 384 F.3d 269, (6 th Cir. 2004); MM by DM and EM v. School Dist. of Grenville County , 37 IDELR 183 (4 th Cir. 2002); Johnson v. Indep. Sch. Dist. No. 4, 921 F.2d 1022, 1028 (10th Cir. 1990); Alamo Heights Indep. Sch. Dist. v. State Bd. of Educ. , 790 F.2d 1153, 1158 (5th Cir. 1986). Other courts have utilized a regression standard. E.g., Cordrey v. Euckert, 917 F.2d 1460, 1474 (6th Cir. 1990).
I also note that Parents presented evidence pertaining to the relatively late date when they were notified of the identity of the summer service provider. Although the qualifications of personnel may be relevant, the identity of the particular personnel who will provide the service is not. I am satisfied that the School District made clear, at an appropriate point in time, the qualifications of the summer service provider even though the identity of the service provider was not determined until a later date.
Florence County Sch. Dist. Four v. Carter , 510 U.S. 7, 11-13 (1993).