Medfield Public Schools – BSEA #07-7260
COMMONWEALTH OF MASSACHUSETTS
BUREAU OF SPECIAL EDUCATION APPEALS
In Re: Medfield Public Schools
BSEA # 07 -7260
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 October 15, 17, and 22, 2007 in Malden, MA before William Crane, Hearing Officer. Those present for all or part of the proceedings were:
Elaine Holden Educational Consultant retained by Parents
Marsha Stevens Educational Consultant retained by Parents
Ann Marie Lasoski Neuropsychologist retained by Parents
Candis Mitchell Academic Case Manager, Landmark School
Henry Willette Academic Dean, Landmark School
Janet McDermott English Teacher, Medfield Public Schools
Ann Marie Sabra English Teacher, Medfield Public Schools
Susan Johnson Special Education Teacher, Medfield Public Schools
Trinka Snyder School Psychologist, Medfield Public Schools
Patricia Mullen Inclusion Coordinator, Medfield Public Schools
Kathleen McArdle Director of Pupil Services, Medfield Public Schools
Sam Schoenfeld Attorney for Parents and Student
Mary Ellen Sowyrda Attorney for Medfield Public Schools
Darlene Coppola Court Reporter
The official record of the hearing consists of documents submitted by the Parents and marked as exhibits P-1 through P-100 (except P-60 and P-98 which were determined not to be relevant to the dispute and therefore were not admitted); documents submitted by the Medfield Public Schools (Medfield) and marked as exhibits S-1 through S-54; and approximately three and one-half days of recorded oral testimony and argument. By agreement of the parties, oral closing arguments were presented on November 20, 2007, and the record closed on that date.
I. INTRODUCTION AND POSITIONS OF THE PARTIES
This Decision addresses the question of whether Medfield must reimburse Parents for the costs of privately placing their son at the Landmark School as a residential student for his 10 th and 11 th grade years. Student is currently in the 12 th grade at Landmark. He is expected to graduate this spring and then attend college.
Parents correctly point out that their son is a bright and highly-motivated learner with multiple and significant learning deficits that impact his educational development. They take the position that (1) over the course of many years (2 nd through 9 th grades), Medfield provided education services to their son without addressing appropriately his underlying special education deficits, (2) during this time, Parents were left to their own resources to have Student evaluated privately for the purpose of identifying the scope of his learning disabilities, (3) Medfield ignored Student’s long-standing unhappiness and frustration at school, (4) by 9 th grade the Medfield program was so inadequate and counterproductive that Student “despised” school, and (5) when Medfield proposed a continuation of the 9 th grade education model into 10 th grade, they had no choice but to look elsewhere for educational services that would appropriately address their son’s unique educational needs and allow him to make meaningful and effective progress commensurate with his significant educational potential.
Medfield has declined to pay for the Landmark costs, taking the position that (1) Student made meaningful and effective progress in 9 th grade, (2) the program and services which it proposed for Student for the 10 th and 11 th grades were appropriate, principally because they followed the educational model that had been successful in 9 th grade, (3) as a school only for special education students, Landmark is unnecessarily restrictive, and (4) Student does not require a residential placement for educational reasons. Medfield argues that it has considered Student’s unique needs and that, through its IEPs, it has offered special education and related services which are responsive to those needs and which would have allowed him to make meaningful and effective progress in the 10 th and 11 th grades.
The issues to be decided in this case are the following:
1. Is the IEP proposed by Medfield for the 2005-2006 school year (10 th grade) reasonably calculated to provide Student with a free appropriate public education in the least restrictive environment?
2. Is the IEP proposed by Medfield for the 2006-2007 school year (11 th grade) reasonably calculated to provide Student with a free appropriate public education in the least restrictive environment?
3. If not, would placement at the Landmark School provide Student with a free appropriate public education in the least restrictive environment?
4. If Landmark satisfies this standard, should Parents be reimbursed for part or all of their out-of-pocket expenses for their unilateral placement of Student at Landmark for the 2005-2006 and 2006-2007 school years?
III. FACTUAL BACKGROUND
A. Student Profile
Currently, Student is in the 12 th grade at the Landmark School, having been placed there on a residential basis by his Parents since the beginning of the 10 th grade in September 2005. Immediately prior to attending Landmark, Student attended the Medfield Public Schools as a 9 th grader. Testimony of Mother.
Student is articulate, affable, sensitive, bright, and very hard-working. He demonstrates a curiosity and love for learning, with a particular interest in science. With respect to academics generally, Student seeks to be challenged and is highly motivated to succeed. For example, he is a self-motivated reader, so that even when putting in many hours of homework each night, he would continue to read for pleasure on a daily basis, sometimes reading a page or two during the school day while waiting for the next class to begin, in addition to a half hour each day after the school day. Student has engaged in and enjoyed extracurricular activities, including hockey, track, and fencing. Testimony of Mother, Father, Student, Lasoski; exhibits P-53, S-37.
Student has a variety of learning-related disabilities. He has executive functioning limitations that are evidenced in difficulty processing and remembering instructions (for example, directions or explanations as to what he is supposed to do) and that result in difficulties developing a systematic problem solving approach. Student’s executive functioning limitations also negatively impact Student’s completing his homework assignments. These limitations require, for example, that Student receive accommodations or support to assist him to understand a new task or project, and to understand what is expected of him for homework. Testimony of Lasoski; exhibits P-4 (page 2), P-53, S-5 (page 2), S-37.
Student is diagnosed with dyslexia. This is reflected in Student’s long-standing weaknesses in sentence construction and spelling although he has an average ability to recognize written words (word attack). Student’s dyslexia likely results in difficulty learning rules of phonological processing and is evidenced in Student’s relatively slow development of writing skills. Testimony of Lasoski, Holden; exhibits P-53, P-54, S-37, S-41.
Student’s dyslexia also is reflected in his relatively slow rate of reading, and relatively low fluency and accuracy in reading. Testimony of Lasoski, Holden; exhibits P-53, P-54, S-37, S-41.
Student has an attention deficit disorder (ADHD) in combination with an auditory processing deficit. Student’s attention deficit results in his being easily distracted by ambient noises. Student’s auditory processing deficit does not reflect a hearing abnormality, but rather that Student has difficulty discriminating speech and sounds, particularly where there is background noise or where Student is unfamiliar with the topic. The result is that Student may not be able to process and understand all that he is hearing, for example, in a classroom. Student’s processing deficit also limits the amount of information that Student can hold in his working memory. This requires that Student take additional time to process and understand what he is hearing. Testimony of Lasoski; exhibits P-52, P-53, S-37.
Student has pragmatic deficits related to his social skills. He also has dysgraphia, which limits his handwriting ability. Testimony of Lasoski; exhibits P-53, S-37.
B. Educational Background
Student has been receiving special education services from Medfield since 2 nd grade to address his learning deficits, particularly regarding reading and writing. Parents were generally satisfied with these services through 5 th grade. Testimony of Mother.
In 6 th grade, Parents observed that although Student’s reading was at grade level, his spelling was poor and he had difficulty organizing his writing projects for school. By 7 th grade, Parents noticed that Student had difficulty understanding what was being taught or discussed if there was competing noise in the classroom. During the 7 th grade school year, Parents privately engaged an educational consultant (June Christiaen, PhD) who, in February 2003, reviewed Student’s disabilities and his educational services. Parents then privately engaged a tutor to assist Student with his writing and also provided Student with a counselor to address his self-esteem issues. Testimony of Mother; exhibit P-55.
For 9 th grade (2004-2005), Student was placed at Medfield High School. He participated in regular education inclusion classes, with special education academic support. More specifically, Medfield’s educational program for Student, as reflected within his IEP, included the following services: academic support from special education staff in the Learning Center (which is a resource room) for 45 minutes each day; special education support for 45 minutes, twice per week within an inclusion English class; the identical support services within an inclusion math class; and consultation by a special education teacher to Student’s regular education teachers for 10 minutes per week. This IEP was accepted in full by Parents. Testimony of Mullen; exhibits P-4, S-5.
During the 9 th grade, the Learning Center provided Student an opportunity to receive individual assistance as needed and, in order to address his organizational deficits, the Learning Center teachers checked on his homework to determine whether Student understood the assignment and had completed it in full. In order to address Student’s deficits in written expression, the Learning Center special education teacher (Ms. Johnson) attempted to engage Student in additional, remedial instruction, but Student resented and resisted this additional written language work, as was reflected in some of his writings at that time. In the classrooms and Learning Center, Student had the opportunity to preview what was to be learned and to review what had been learned. Student testified that the Learning Center did not address his learning needs and that, for the most part, he used the time there simply as a study hall. He also noted that during the time he spent in the Learning Center, he was often distracted by noise coming from an adjoining room. Testimony of Johnson, Student; exhibit P-42.
During 9 th grade, Parents believed that their son’s reading abilities had improved, but they noticed that he continued to struggle with understanding directions, organizing his work, and written expression. Parents were consistently assisting Student with his homework, which typically took him 2 to 5 hours each school night. Mother placed clear expectations on Student regarding his schoolwork and monitored him closely. Student’s homework became stressful for all concerned. Testimony of Mother, Father.
Student has always worked very hard on his academics and is highly motivated to do well. He is a curious and intelligent learner. However, Student testified that during 9 th grade, he had difficulty understanding what was taught in the classroom and, on many occasions, did not bring completed homework to school. With respect to projects for school, he explained that most of the time, he was missing information. He stated that often he was not able to provide teachers with the information they were seeking. Testimony of Student, Mother, Father.
Over the course of the 9 th grade school year, Student became frustrated and angry. Although he was successful on objective testing at school, he was frustrated by not being able to demonstrate his knowledge through written projects and obtain better grades. This was particularly evident with respect to biology class (Student loves science) in which he received a final grade of “C.” Testimony of Student, Mother, Father; exhibits P-42, P-43, P-44, S-35.
Student also was the subject of teasing and harassment by other students, particularly on the hockey team. Student’s general frustration with school and homework was evidenced in head-banging at home and decreasing self-esteem, and was reflected in some of his writings at that time. During 9 th grade, Parents believed that their son grew to “despise” school, and he became more reclusive, even as he continued to work hard. Testimony of Student, Mother, Father; exhibits P-42, P-43, P-44.
Yet during this same time, Medfield staff observed Student as a well-adjusted, hard-working student who experienced specific areas of frustration – that is, with writing assignments in the Learning Center and with biology – but who was generally successful and happy at school. Student’s grades, progress reports, and teacher comments for 9 th grade indicated that he achieved success in school. For example, he received a final grade of “B + ” in both English and algebra. He received his lowest grade in biology – a “C” for the year. He received final grades of “C + ” and “B – ” in world history and engineer drawing, respectively, and final grades of “A” and “A – ” in skill development and wellness. Exhibit S-35; testimony of Snyder, McDermott, Johnson.
In May 2005, which was near the end of Student’s 9 th grade year, the IEP Team met to consider Parents’ independent educational evaluation (by Ms. Holden) and to determine Student’s educational program for 10 th grade. The meeting was attended by Parents and Medfield staff. Believing that Student was accessing the curriculum and making significant progress within the 9 th grade educational model, Medfield recommended educational services for 10 th grade that were substantially similar to those provided Student in 9 th grade. The only change in services from the 9 th grade IEP (discussed above) was that Medfield’s proposed 10 th grade IEP substituted two 45-minute periods of 1:1 Wilson reading tutorial per week for two (out of the five) periods of daily academic support in the Learning Center. Medfield offered the Wilson reading tutorial in response to Ms. Holden’s evaluation for the purpose of providing Student with a remedial program to address his reading and spelling deficits. Testimony of Mullen; exhibits P-2, P-54, S-4, S-35, S-41.
Because they believed that their son had not been making sufficient educational progress in the 9 th grade educational model and because they had observed that he had become frustrated and angry at Medfield High School, Parents rejected this IEP. Testimony of Father, Mother.
During the summer following 9 th grade (the summer of 2005), Parents decided to remove their son from the Medfield High School and place him at the Landmark School for 10 th grade (the 2005-2006 school year). He began attending Landmark in the fall of 2005 as a residential student. Testimony of Mother.
On June 1, 2006, near the end of Student’s 10 th grade year, the IEP Team met to consider Parents’ independent neuropsychological evaluation (by Dr. Lasoski) and to determine Student’s educational program for 11 th grade. Neither Medfield nor Parents invited representatives from Landmark to the meeting, and no one from Landmark was at the meeting. The meeting was attended by Parents and Medfield staff. Medfield believed that the inclusion educational program, with supports in the Learning Center, that had been provided Student in 9 th grade and that was proposed for 10 th grade, continued to be appropriate. However, Medfield concluded that inclusion support in math was no longer needed and decided to add direct services to address a social pragmatics deficit, which had been identified by Dr. Lasoski. Testimony of Mullen, McArdle.
For 11 th grade, Medfield offered, through its proposed IEP, educational services that were the same as those offered Student for 10 th grade, except for the addition of counseling by a school psychologist for 20 minutes, twice per week, to address Student’s social pragmatics, the addition of consultation by the school psychologist to other Medfield staff for 10 minutes per week, and the removal of special education inclusion support in math class. As reflected within Student’s 11 th grade IEP, Medfield’s proposed educational program for Student included the following services: two 45-minute periods of 1:1 Wilson reading tutorial per week; academic support from special education staff in the Learning Center for 45 minutes, three times each week; special education support for 45 minutes, twice per week within an inclusion English class; counseling by a school psychologist for 20 minutes, twice per week; consultation by a special education teacher to Student’s regular education teachers for 10 minutes per week; and consultation by the school psychologist to other Medfield staff for 10 minutes per week. Parents rejected this IEP. Testimony of Mullen; exhibits P-1, S-2.
During Student’s 10 th grade year at Landmark, Parents remained convinced that Student should stay at Landmark, rather than return to Medfield High School at the end of 10 th grade. They continued Student’s placement at Landmark as a residential student for 11 th grade (the 2006-2007 school year), and again for 12 th grade (the current school year). Testimony of Mother.
C. Most Recent Evaluations and Observations by Medfield and Parents
February 2005 Psychological Evaluation : During Student’s 9 th grade (his last year at Medfield), Medfield’s school psychologist (Trinka Snyder) conducted updated cognitive testing, achievement testing, and an abbreviated clinical interview to consider Student’s social and emotional wellbeing. The cognitive testing, utilizing the Wechsler Intelligence Scale for Children (4 th ed.), revealed Student’s strength in perceptual reasoning (87 th percentile), relative weaknesses in processing speed (34 th percentile) and working memory (42 nd percentile). His full-scale score was at the 63 rd percentile. Testimony of Snyder; exhibits S-39, P-28.
The achievement testing, utilizing the Wechsler Individual Achievement Test (2 nd ed.), found Student to be in the average to superior range in all subtests, other than spelling where Student scored at the 13 th percentile. Testimony of Snyder; exhibits S-39, P-28.
Ms. Snyder testified that, in her opinion, the spelling subtest score had educational implications, and the relatively low processing speed score indicated that Student should be given additional time on tests, but the other test scores did not indicate educational difficulties or weaknesses that would need to be considered or addressed. She added that Student’s educational needs should be informed more by his work products, teacher observations, and class performance than by her standardized test scores. Testimony of Snyder; exhibits S-39, P-28.
Ms. Snyder testified, in conclusion, that Student would have benefited from exposure to regular education students at Medfield High School, and would have likely “thrived” in that educational environment for 10 th and 11 th grades. Testimony of Snyder.
February 2005 Education Evaluation : During Student’s 9 th grade, Parents engaged Elaine Holden to conduct an educational evaluation of their son with respect to his reading and written expression. The evaluation occurred on 2/3/05 and 2/22/05. Ms. Holden, who is a Fellow of the Academy of Orton Gillingham Practitioners and Educators and co-owner of the Reading Foundation in New Hampshire, reviewed Student’s academic record, including previous evaluations, interviewed Parents, and formally tested Student for approximately 9 or 10 hours over the course of two days. Ms. Holden did not speak to any Medfield staff, did not observe Student in a learning environment, and did not observe any of Student’s current or past educational programs. Ms. Holden issued a lengthy and detailed report summarizing the tests that she conducted and presenting her conclusions and recommendations. In her testimony, Ms. Holden further explained the results of her evaluation and its implications for Student’s educational services. Testimony of Holden; exhibits S-41, P-54, P-100 (resume).
Ms. Holden found that Student is bright, has excellent verbal reasoning ability, and works hard to mitigate his learning deficits. Her principal findings regarding Student’s educational difficulties were that (1) Student has weaknesses in phonological awareness and phonological memory, resulting in Student’s limited ability to hold information in his memory and work with it, (2) Student has difficulty with three-syllable words, which are commonly found in reading at his level, (3) Student has not mastered the lower-level mechanics or strategies for reading and writing, instead relying principally on his intelligence and memory, (4) Student has poor sequencing abilities – that is, language labeling and manipulating used to put language in sequence – that are needed for reading, (5) Student was unable to express himself in writing at a level that would be expected for his grade, demonstrating difficulty with use of words and the mechanics of writing, and (6) Student would be easily distracted by any extraneous noise, for example, in a classroom. Testimony of Holden; exhibits S-41, P-54.
Ms. Holden’s principal recommendations were that (1) Student’s difficulties with auditory memory need to be addressed directly through remedial instruction, (2) Student should receive direct instruction in syllable counting, syllable manipulation, and syllable structure, (3) Student should receive direct, systematic instruction in written expression, (4) Student should have a direct, systematic, structured spelling program, (5) Student’s reading instruction should be as comprehensive as possible and incorporate spelling and written expression at all times, and (6) all of Student’s textbooks should be given “readability formula checks” to ensure he can access them. Ms. Holden further explained that Student requires a comprehensive educational program that will allow him to master learning strategies necessary for reading and writing. Testimony of Holden; exhibits S-41, P-54.
December 2005/January 2006 Neuropsychological Evaluation : During Student’s 10 th grade (his first year at Landmark), Parents engaged Anne Marie Lasoski, Psy.D., to conduct a neuropsychological evaluation of their son to assess his cognitive functioning, learning style, and academic performance. The evaluation occurred on 12/22/05 and 4/5/06. Dr. Lasoski reviewed Student’s academic record, including previous evaluations; she interviewed Parents; she obtained information from Landmark through a questionnaire and spoke to the Landmark case manager; and she formally tested Student for approximately 8 or 9 hours over the course of two days. Dr. Lasoski did not speak to any Medfield staff, did not observe Student in a learning environment, and did not observe any of Student’s current or past educational programs. Dr. Lasoski issued a lengthy and detailed report summarizing the records that she reviewed and the tests that she conducted. The written report presented her impressions of Student and her educational recommendations. In lengthy testimony, Dr. Lasoski further explained the results of her evaluation and its implications for Student’s educational services. Testimony of Lasoski; exhibits P-53, S-37, P-100 (resume).
Dr. Lasoski’s findings regarding Student’s educational profile (including diagnoses) are incorporated within other parts of this Decision (see, in particular, the Student Profile, part IIIA, above). Her recommendations regarding educational services and placement, which are found principally in her written report and were supplemented through her testimony, may be summarized as follows:
· The classroom should be relatively small (25 students would be too many) with minimal distraction or auditory overload. Size of classroom and teacher staffing should allow for sufficient flexibility, structure, opportunity for each student to participate, and preview/review of materials.
· The educational program should be targeted towards needs of students with dyslexia and dysgraphia. Teachers should utilize established, predictable routines when teaching, for example, writing and reading skills. In the classroom, there should be extended discussion of verbally-presented information. Instruction should target higher-level reading skills and writing skills. Organizational skills should be taught explicitly and consistently across content areas. Organizational assistance should also be provided.
· Speech and language therapy should be provided, in addition to extensive academic support.
· Support should be provided for development of Student’s social skills and pragmatics, for example, through supervised extracurricular programs and structured social programs during the summer.
· Extended time should be provided both in the classroom and for completion of standardized tests.
In her testimony, Dr. Lasoski opined that Medfield’s proposed IEPs for 10 th and 11 th grades would not be able to satisfy her recommendations for Student for the principal reason that the IEPs did not provide a consistent, integrated language-based instructional program throughout the curriculum.
Observation of Medfield Program and Record Review : Parents arranged for their educational consultant (Marsha Stevens, EdM) to observe Medfield’s proposed 11 th grade educational program for Student, to review Student’s records, and to consider the appropriateness of Medfield’s proposed programs for Student. On January 30, 2007, Ms. Stevens observed two Medfield classes (English and social studies) in which Student would have participated during 11 th grade pursuant to Medfield’s proposed IEP for that year. Ms. Stevens testified that the teachers in both classes were “good” teachers for the particular students in the classrooms, the teachers knew the subject matter being taught, and the teachers were well-organized and in control of the class.1
More specifically with respect to English, Ms. Stevens observed that the teacher spoke rapidly, with some paraphrasing (of what was being taught), turn-taking, and questions for the class. The teacher used a “stick figure” to illustrate part of his lecture. Ms. Stevens observed that the students were not taking notes. There were approximately nineteen persons (students and teacher) in the classroom.
With respect to social studies, Ms. Stevens observed that there was more interaction between teacher and students and the class was calmer, as compared to the English class. Ms. Stevens observed that there was review of previously taught material, there was structure to the teaching but no fostering of peer interaction. Ms. Stevens found that this teacher utilized a “slightly” more appropriate rate and style of teaching, as compared to the English teacher. Ms. Stevens observed that the students were not taking notes.
As compared with her observation of Student’s class at Landmark, Ms. Stevens testified that Medfield used more of a lecture style of teaching, did not foster peer-to-peer discussion, and did not discuss the process of learning.
In September 2007, Ms. Stevens observed Medfield’s 12 th grade program for Student. Ms. Stevens testified that what she observed was “remarkably similar” in terms of presentation and teaching approach, as compared to what she observed in the 11 th grade program in January 2007.
Based upon her experience and expertise as an educator, her review of Student’s records, her observation of Student at Landmark, and her meetings with Student and Parents, Ms. Stevens opined that Student needs a language-based instructional approach that addresses his dyslexia and his deficits regarding written language, memory issues, sequencing, auditory processing, and peer relationships (i.e., pragmatic language). She testified that she did not see any of this instructional approach in her observations at Medfield in January 2007 or September 2007. She concluded that neither of the Medfield classes that she observed would likely benefit Student.
Ms. Stevens also reviewed Medfield’s exhibit (S-1) that provides the class size and teacher/student ratio for the 10 th and 11 th grade programs proposed for Student. Ms. Stevens concluded that all of the class sizes would be too large for Student. In her testimony, Ms. Stevens also critiqued Medfield’s IEPs for 10 th and 11 th grades, taking the position that the goals and benchmarks were not appropriate. More specifically, Ms. Stevens testified that goal # 1 of the IEP for 5/19/05 to 5/19/06 (exhibit P-2, S-4) addressed phonics awareness but this was not an issue for Student, goal # 2 in this IEP did not include enough detail, goal # 3 was “meager” in light of Student’s extensive needs regarding organizational skills, and a grade of “C + ” was not appropriate for goal # 4. Ms. Stevens cited similar concerns with the IEP for 6/1/06 to 6/1/07 (exhibit P-1, S-2). She also noted that these IEPs (as well as previous IEPs) uniformly called for Student to write a five-paragraph essay, concluding that Student was not making progress on this goal.
Ms. Stevens further testified that, in her opinion, 45 minutes of Wilson, two times per week, as reflected on the Medfield IEPs, would be ineffective in addressing Student’s underlying needs. Ms. Stevens testified that she reviewed over fifty redacted IEPs of students who would have been taught with Student had he been placed at Medfield during 10 th and 11 th grades. She stated that, with the exception of one or two students with dyslexia, they would not likely be appropriate peers for Student.
Ms. Stevens concluded that Student could not have made effective progress in the educational programs described by Medfield’s IEPs for 10 th and 11 th grades.
A. Legal Framework
It is not disputed that Student is eligible to receive special education and related services pursuant to the Individuals with Disabilities Education Act (IDEA)2 and the Massachusetts special education law.3 Under these statutes, Student is entitled to a free appropriate public education (FAPE), which is to be provided in the least restrictive environment.4 The “least restrictive environment” means that, to the maximum extent appropriate, Student must be educated with other students who do not have a disability.5
A student’s right to FAPE is assured through the development and implementation of an individualized educational program (IEP).6 The IEP must be custom tailored to meet the “unique” needs of the particular special education student so that the student will receive sufficient educational benefit.7
The minimum required educational benefit has been described by the federal courts and in Massachusetts laws and regulations. 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.”8 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 his education “ meaningful.”9 Massachusetts has adopted additional educational standards,10 requiring the IEP to be designed to enable the student to make effective progress11 and providing that special education services must be designed “to develop [the student’s] educational potential.”12
In determining the quantum of educational benefit necessary to satisfy the IDEA, the Supreme Court has rejected a bright-line rule. Noting that students of different abilities are capable of greatly different achievements, the Court instead adopted an approach that requires consideration of the potential of the particular student.13 Lower federal courts,14 as well as Massachusetts special education regulations,15 similarly require the sufficiency of a student’s progress to be judged within the context of his individual potential or capacity to learn.
The federal FAPE standard is one of “moderation.”16 The federal courts have made clear that under this standard, the “ benefit conferred [by the IEPs] need not reach the highest attainable level or even the level needed to maximize the child’s potential.”17 If the IEPs proposed by the school district are 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.18
If the parents of a disabled student enroll their son or daughter in a private school without the consent of or referral by the school district, as is the case in the instant dispute, a BSEA Hearing Officer may require the school district to reimburse the parents for the cost of that enrollment but only if the Hearing Officer finds both that (1) the school district had not made a free appropriate public education available to the student in a timely manner prior to that enrollment and (2) the private school placement was appropriate.19
In the instant dispute, Parents have the burden of persuasion that one or both of the Medfield IEPs for the 2005-2006 and 2006-2007 school years is not appropriate, and that the private school in which Student has been enrolled by Parents (the Landmark School) is appropriate.20 Medfield stipulated that should I determine that one on more of its IEPs is not appropriate, I may consider Landmark to be appropriate as a day (but not residential) placement for Student for purposes of the instant dispute.
B. Appropriateness of Medfield’s IEPs for 10 th and 11 th Grades
The essential question to be answered in this dispute is whether Medfield’s 10 th and 11 th grade IEPs were reasonably calculated to provide Student with a free appropriate public education (FAPE) in the least restrictive environment pursuant to state and federal special education law. The parties agree that any analysis of the appropriateness of Medfield’s 10 th and 11 th grade IEPs must begin with consideration of Medfield’s 9 th grade educational program and services for Student.
Medfield’s educational program and services for 9 th grade is relevant to the instant dispute not because Parents seek relief with respect to that academic year, but rather because what Medfield proposed for 10 th and 11 th grades is substantially similar to the Medfield IEP and the services delivered for 9 th grade. Accordingly, the appropriateness of Medfield’s IEPs for 10 th and 11 th grades may be determined, in part, on the basis of Student’s progress, or lack thereof, during 9 th grade.
As discussed earlier (see Student Profile, part IIIA of this Decision), Student has a variety of significant disabilities. From the perspective of Student’s academic abilities and educational progress, these deficits impact Student principally with respect to his written expression (including organization, spelling, and substantiating his ideas) and executive functioning (including developing a systematic problem solving approach, understanding and following directions, and completing homework assignments). I note that Parents, who were intimately involved in their son’s education, were particularly concerned that in 9 th grade, Medfield was not addressing appropriately Student’s written expression and executive functioning deficits. Testimony of Mother, Father.
Student also has been diagnosed with dyslexia, which negatively impacts Student’s reading and typically requires that Student be given additional time to obtain an adequate understanding of what he has read.21
Student also has an attention deficit disorder, pragmatic deficits related to his social skills, and dysgraphia, the latter limiting his handwriting ability. There is no persuasive evidence that, with the accommodations and services provided on Student’s IEPs (for example, use of word processor for all written assignments and relatively high teacher/student ratios in his classes), these deficits impacted negatively on Student’s educational progress.
Finally, Student has an auditory processing deficit. The auditory processing concerns were noted in a 1998 speech and language evaluation, but the central auditory processing evaluation, which for the first time, clearly identified and explained this deficit, did not occur until April 27, 2007, and the written evaluation report was not received by Medfield in time to be considered for Student’s 11 th grade, which ended in June 2007. Testimony of Mullen; exhibits S-36, S-47, P-52. It would be unreasonable to hold Medfield accountable for understanding and addressing Student’s auditory processing deficits until its receipt of the central auditory processing evaluation, and therefore I do not hold Medfield accountable for addressing this deficit for 10 th or 11 th grade.22
For these reasons, when evaluating the appropriateness of Student’s 9 th grade program and IEPs for 10 th and 11 th grades, I focus principally on the likelihood of their appropriately addressing Student’s deficits relevant to written expression and executive functioning. I also consider Student’s reading deficits principally because of the concerns expressed by Ms. Holden in her written report (exhibits P-54, S-41) and testimony.
The evidence was persuasive that Student made substantial educational progress during his 9 th grade at Medfield High School with respect to written expression. There was also persuasive evidence that, with the exception of Student’s biology class, Student made progress in (and Medfield was otherwise able to accommodate his deficits regarding) his executive functioning deficits, so that Student could fully access his educational program and attain significant academic success. The evidence was also persuasive that, with accommodations (including additional time and vocabulary lists), Student was able to access and understand what he was asked to read during 9 th grade.
Substantial, credible evidence regarding Student’s progress in 9 th grade came from the testimony of Ms. McDermott, who taught Student in a 9 th grade inclusion English class.23 Ms. McDermott is a highly experienced regular education teacher who testified with clarity and candor. I found her to be a reliable witness.
Ms. McDermott’s testimony made clear that during the school year, Student had certain educational weaknesses that impacted upon his performance. These weaknesses were apparent in Student’s written work, but similar weaknesses appeared in his oral expression. At the beginning of the school year, she identified a principal weakness as Student’s difficulty developing a topic. That is, he could reach a conclusion but would not be able to support it with well-organized reasons or evidence. He had trouble elaborating the points that he was making. In addition, Student’s writing suffered from deficits in spelling, sentence structure, and capitalization. Testimony of McDermott.
To assist Student with his weaknesses in organization and development of his ideas, Ms. McDermott prompted Student with questions. Graphic organizers were also always used with respect to essays and other written projects to assist with brainstorming, organizing, and sequencing. In Ms. McDermott’s class, students worked on written expression three or four days each week. Testimony of McDermott.
Ms. McDermott was persuasive that over the course of the school year, Student made significant improvements with respect to written expression, including use of language, mechanics of writing, and organization. Ms. McDermott testified with respect to four essays, all of which were completed in class and are part of the evidentiary record – one written by Student at the beginning of the year, two written at mid-year, and the fourth written in June 2005 near the end of 9 th grade. She explained that the first writing sample in September 2004 reflected difficulty with organization, sentence structure, spelling, and capitalization. The essay included a number of fragmented sentences and contained only a small variety of types of sentence structure. Exhibit S-53.
The two mid-year essays demonstrated improved fluency, better sequencing, and more variety in sentence structure, but continued to reflect difficulty with mechanics (such as capitalization) and sentence fragmentation. These essays also demonstrated improvement in substantiating his points, and this had been a focus of Ms. McDermott’s classroom instruction. Exhibit S-53.
The 4 th essay, completed in June 2005, was part of Student’s final exam. Ms. McDermott testified that this essay demonstrated continuing improvement – that is, there were few spelling errors; the sentence structure was significantly improved, with increased variety of sentence structure and use of more complicated sentences; the essay flowed better than previous essays; and there was better use of commas and more sophisticated vocabulary. Ms. McDermott testified that this final essay was at grade level for regular education students at the end of 9 th grade; she labeled this a “strong average” paper. She also noted that there continued to be room for improvement with respect to Student’s providing an expanded introduction, more sophisticated vocabulary, improved punctuation, and greater substantiation of points made within the essay. Exhibit S-53.
Parents’ educational expert (Ms. Holden) agreed with Ms. McDermott that this 4 th essay, completed in June 2005, demonstrated improvement in Student’s written expression during the 9 th grade. Ms. Holden testified that this essay demonstrated better use of language and mechanics as compared to the written expression that she considered as part of her February 2005 evaluation.24
Ms. McDermott’s testimony was also persuasive that other areas of learning deficit – in particular, reading, and understanding and following directions – did not preclude Student from accessing the curriculum or from being fully engaged in the classroom.
Ms. McDermott testified that Student was reading materials at grade level, with a vocabulary list provided in advance to help understand what would be read. She opined (on the basis of his classroom participation and his answers to questions regarding texts that were read by the class) that he was successful at understanding what he read. She judged his reading comprehension to be average to slightly below average in relationship both to regular education 9 th graders as well as to those regular education 9 th graders whose intelligence was comparable to that of Student. She noted that Student’s literal comprehension was stronger than his inferential comprehension, although his inferential comprehension had shown improvement over the course of the year.
With respect to class participation, Ms. McDermott testified that there was a significant amount of discussion in groups and pairs in her classroom, and that Student was the most frequent participant of all of her students. She found that, in general, the quality of his responses was “good” although at times, he failed to provide support for his points. Ms. McDermott explained that his participation indicated that he was engaged in the class and that he was enjoying the literature that the class was reading.
Ms. McDermott also noted, through her report to Landmark on November 13, 2004, that Student had “made substantial progress in improving his study and organizational skills.” Progress reports from April 27, 2005 indicated that Student was making progress regarding writing, study, and organizational skills. (No progress reports were submitted into evidence for the end of the 9 th grade year.) Exhibits P-15, S-16, S-40 (page three).
In her testimony, Ms. McDermott concluded that Student was one of several who were the brightest and most successful in her classroom that year. She explained that Student was a respectful and hard working student, and he did not appear to have any difficulty understanding her directions or assignments. In each of the four quarters of the school year, Student received a grade of “B” or higher, with a final grade of “B + ” which was based on quizzes, tests, comprehension of literature, written assignments and (for 5 to 10% of the grade) class participation and homework. Ms. McDermott recommended Student for continuation of an inclusion English class at the college preparation level for the 10 th grade. Exhibit S-35.
The evidence regarding Student’s progress in 9 th grade math (algebra) similarly indicated that Student was successful. Susan Johnson, a special education teacher who served as Student’s special education aide in his inclusion math class, testified that Student was focused and engaged, responsible, needed little assistance, and was one of the better students in the math class – in Ms. Johnson’s words, an “ideal” student in this class. Ms. Johnson also observed that Student did not appear to have any difficulty understanding directions or assignments in math class. She concluded that Student was able to participate in grade-level math without special education support. In each of the four quarters of the school year, he received a grade of “B” or higher, with a final grade of “B + ”. Testimony of Johnson, exhibit S-35.
It is not disputed that Student struggled in biology during 9 th grade. There was no testimony from the biology teacher, but Ms. Johnson testified that she had regular consultation with Student’s biology teacher. She understood from the biology teacher that Student was able to comprehend the material presented in class, but had difficulty understanding teacher expectations and completing assignments. Ms. Johnson opined that these difficulties reflected Student’s organization deficits. Testimony of Johnson.
By way of further explaining Student’s difficulties with this class, Ms. Johnson added through her testimony that (1) the biology teacher was very demanding, with high expectations, (2) the vocabulary that was introduced in biology may have presented a challenge for Student, and (3) Student’s biology class was at the C-1 level, which is more demanding than Student’s other classes, which were at the C-2 level. She also noted that biology was most difficult for Student during the fall and that, on the whole, he made progress in this class. Ms. Johnson’s opinion that Student improved over the course of the year is consistent with his quarterly grades in biology. He received a “C” for the year but showed improvement in the 3 rd and 4 th quarters with grades of “C + ” and B – ” respectively. Testimony of Johnson; exhibit S-35.
Ms. Johnson’s testimony with respect to biology is consistent with Mother’s and Student’s testimony, although Mother and Student placed greater emphasis on Student’s frustration with his completion of biology projects, and Student’s difficulty being able to communicate, through these projects, what he had learned. Student’s favorite subject is science, he prides himself in his academic achievement, and he worked very hard in this subject. Within this context, both Student and his Parents became frustrated that he was not able to do better in this class. Testimony of Student, Mother, Father.
I conclude that Medfield did not sufficiently accommodate or otherwise sufficiently address Student’s executive functioning deficits with respect to his biology class. As a result, Student had difficulty understanding teacher expectations, he was not able to complete assignments and projects without significant assistance from his Parents, he was not able to communicate sufficiently to the teacher what he had learned, he did not have the opportunity to apply (in a meaningful way) his considerable interest in science, and he did not make progress commensurate with his educational potential. There were other negative implications in that Student’s experience with biology affected his overall attitude toward school and himself as a learner. Testimony of Mother, Father, Johnson.
Medfield noted, correctly, that Student achieved a passing grade (of “C”) and demonstrated some improvement in biology as reflected in his semester grades over the school year. However, there was no evidence to indicate how his biology grades were determined or what they reflected, and these grades are therefore not dispositive.25
There was no testimony or documents regarding Student’s progress in his other academic subjects, other than his grade report. He received final grades of “C + ” and “B – ” in world history and engineer drawing, respectively, and final grades of “A” and “A – ” in skill development and wellness. Exhibit S-35.
Regarding Student’s work in the Learning Center, Student’s special education teacher (Ms. Johnson) testified that, by the end of the year, Student continued to have difficulty with his organizational skills and written expression, but that he had made sufficient progress in these areas so that the academic support in the Learning Center could be reduced from five to three periods per week for 10 th grade. Ms. Johnson, who was also the special education liaison to the regular education teachers, concluded generally that Student was bright; he was able to access the curriculum; he learned a significant amount in class and through reading; he enjoyed learning, wanted to do well, and worked hard; and he would likely succeed with the support and accommodations provided through his IEP. For these reasons, she concluded that the educational model reflected within Student’s 9 th grade IEP, which would be continued into the 10 th and 11 th grade IEPs, was appropriate.
This evidence indicates that, with the exception of the biology class as discussed above, the 9 th grade educational program was appropriate for Student; and when the 9 th grade program is considered as a whole, I conclude that it allowed Student to make meaningful and effective educational progress consistent with his educational potential.
For 10 th grade, Medfield proposed an IEP utilizing substantially the same educational model as provided in 9 th grade. As compared to 9 th grade, the 10 th grade IEP (as it would have been implemented by Medfield) reflected three substantive changes. I consider each of these changes.
First, Medfield’s proposed 10 th grade IEP substituted two 45-minute periods of 1:1 Wilson reading tutorial per week for two (out of the five) periods of daily academic support in the Learning Center. In response to Ms. Holden’s evaluation, Medfield offered the Wilson reading tutorial in order to provide Student with a remedial program to address his reading and spelling deficits. Exhibits P-2, P-54, S-4, S-35, S-41; testimony of Mullen.
Ms. Mullen testified that she is certified in the Wilson reading program. She would be Student’s 1:1 Wilson tutor for 10 th grade. In her testimony, she opined that Student would likely start at step 2 of the Wilson program and move rapidly through steps 2, 3, and 4. The two 45-minute periods per week of academic support would be utilized to address Student’s IEP goals and, more specifically, to focus on written expression, organizational issues, and reading. Ms. Mullen testified that the amount of Wilson services on Student’s IEPs was appropriate and that anything more would be “over-kill.” On the basis of this testimony, I find that the Wilson tutorial, as implemented by Medfield, would have been appropriate for Student in 10 th grade, likely helping Student remediate his learning disabilities.26
The second change from 9 th grade to 10 th grade would be that physics (in 10 th grade) would take the place of biology (in 9 th grade), and Student’s physics class would be at level C-2, as compared to the biology class that was at level C-1. There are three levels of regular education classes – honors, C-1, and C-2, all of which are considered to be at the college preparatory level. As compared to C-2, C-1 is taught at a quicker pace, there is more work given to the students, and the academic expectations are higher. Testimony of Mullen. I find that, in light of Student’s difficulties with the C-1 biology class during 9 th grade, this change would have likely resulted in his being more successful academically in science for 10 th grade than for 9 th grade.
Parents and Student generally take the position that Medfield has placed Student in lower level classes so that he would likely succeed academically, rather than addressing his underlying special education deficits so as to allow him to learn at his appropriate intellectual level. And, more specifically with respect to 10 th grade science, Medfield chose to lower its expectations for Student by placing him in a less demanding class rather than seeking to accommodate his executive functioning limitations to allow Student to access and fully participate in the C-1 physics class. Parents correctly note that Student is bright, enjoys being challenged academically, and is highly motivated to succeed, particularly in science. Arguably, Medfield’s actions violated the Massachusetts requirement that special education services be “ designed to develop [Student’s] educational potential ”27 and denied Student the opportunity under Massachusetts and federal law to make educational progress commensurate with his learning potential.28
After considering these arguments, I conclude that there was insufficient evidence to support a finding in Parents’ favor relative to 10 th grade physics. There was no factual evidence describing the C-1 physics course and no expert testimony relative to the question of whether certain special education services or accommodations would have allowed Student to make effective progress in that course. In addition, even were I to agree with Parents regarding this part of the IEP (relative to physics), I would find that in all other respects, the 10 th grade IEP was appropriate, and I would further find that when considered as a whole, the IEP would likely result in Student’s receiving FAPE.
The final change from 9 th grade to 10 th grade was that in 10 th grade, English and history would be taught as a combined class, with two regular education teachers, one aide, and 38 students. This is a combined C-1 and C-2 class.
Ann Marie Sabra, who would have been Student’s 10 th grade English teacher, testified that Student would have attended a combined English/history class, which would have been taught by Ms. Sabra and a regular education history teacher. They would have been assisted by Ms. Johnson as a special education aide. The course combines world history and world literature and is a mix of C-1 and C-2 students who have a range of abilities. In this class for 10 th grade, there were 38 students, 13 of whom had an IEP and 2 of whom had a Section 504 plan.
Ms. Sabra reviewed Student’s records, spoke with Ms. McDermott, and heard testimony at the evidentiary hearing in the present dispute. She noted that when teaching this course in the past, she has had students with a profile similar to that of Student, including attentional, organizational, and language issues.
Ms. Sabra testified that had Student attended her class, she would have utilized a writing program that she has developed to address each phase of the writing process. For Student, she would continue Ms. McDermott’s work on Student’s writing organization and would seek to assist him to further expand his analysis and support for ideas. She would use graphic organizers to support Student’s writing process. She would also assist Student to understand and remember his assignments, as she has done in the past with other students with organizational deficits. She also noted that the English department at Medfield High School does not have a set curriculum for 10 th grade, thereby allowing her to teach to the needs of the particular students in her classroom. Ms. Sabra also noted that within the structure of this class, she has been able to work effectively with students who have a profile similar to that of Student.
Ms. Sabra testified persuasively, and I so find, that Student would have been appropriate for her class.
For these reasons, I find that the 10 th grade IEP was reasonably calculated to provide Student with FAPE in that it would likely have resulted in meaningful and effective progress consistent with his educational potential and would have been implemented in the least restrictive environment.
For 11 th grade, Medfield proposed an IEP utilizing substantially the same educational model as proposed for 10 th grade. As compared to 10 th grade, the 11 th grade IEP, as it would have been implemented by Medfield, reflected three substantive changes that would have been appropriate.
Counseling by a school psychologist for 20 minutes, twice per week, was added to address Student’s social pragmatics. Consultation by the school psychologist to other Medfield staff for 10 minutes per week was also added. Special education inclusion support in math class was removed from the IEP. Testimony of Mullen; exhibits P-1, S-2.
The additions would have likely strengthened the IEP. The removal of inclusion support in math was justified in light of Ms. Mullen’s credible testimony, described above relative to the 9 th grade year, that Student was able to access the math curriculum without special education support.
For these reasons, I find that the 11 th grade IEP was reasonably calculated to provide Student with FAPE in that it would likely have resulted in meaningful and effective progress consistent with his educational potential and would have been implemented in the least restrictive environment.
Because the 10 th and 11 th grade IEPs were appropriate, Parents are not entitled to reimbursement for expenses associated with their placement of Student at Landmark.
C. Parents’ Additional Evidence and Arguments
Prior to making the above findings and conclusions, I considered Parents’ additional evidence and arguments, but did not find them persuasive. My reasoning follows.
Parents relied principally on the testimony and evaluation reports of their three experts (Ms. Holden, Dr. Lasoski, and Ms. Stevens) in seeking to establish the inappropriateness of Medfield’s proposed IEPs for 10 th and 11 th grade. Ms. Holden and Dr. Lasoski each conducted a comprehensive evaluation of Student, while Ms. Stevens conducted a records review, observed Student at Landmark, and observed Medfield’s proposed 11 th grade educational program. Additionally, Parents relied on the testimony of the Landmark academic dean (Mr. Willette). All four of these persons have significant experience and expertise, and Parents’ three experts have evaluated or worked with students who have educational profiles similar to that of Student. The resumes of the three experts may be found at exhibit P-100. (For a summary of the testimony and evaluations of the three experts, see part IIIC, above.) These experts were critical of Medfield’s IEPs for 10 th and 11 th grades, recommending a different kind of educational program and a different array of educational services.
Both Parents, as well as Student, also provided relevant testimony, focusing in particular on Student’s frustrations and overall unhappiness at Medfield generally, and, in particular, in 9 th grade at the High School. Parents also made clear their view that Medfield was generally unresponsive to their son’s needs, failing to initiate evaluations to identify his underlying educational deficits and failing to craft IEPs that were responsive to his “unique” educational deficits. Finally, Student and others provided persuasive testimony regarding his notable success at Landmark.
Need for a language-based instructional program and other remedial services . Parents’ experts’ most fundamental criticism of Medfield’s proposed IEPs for 10 th and 11 th grades was that they did not offer Student a consistent, integrated language-based instructional program throughout the curriculum. The experts opined that, without this instruction, the IEPs could not effectively address Student’s special education needs. It is not disputed that although there may be certain elements of language based instruction included within Medfield’s IEPs, these IEPs do not reflect the kind of systematic, across-curriculum, language-based instruction contemplated by Parents’ experts. Testimony of Lasoski, Stevens.
The weakness of this criticism is that the evidence is persuasive (as discussed above in part IVB) that Student made effective and meaningful progress in 9 th grade without the language-based program of instruction recommended by Parents’ experts. Within their evaluation reports and testimony, Parents’ experts did not take into consideration Student’s actual educational experiences and progress during 9 th grade, with the result that they failed to address Medfield’s argument that Student was likely to do as well, or better, in 10 th and 11 th grades as he did in 9 th grade pursuant to their proposed IEPs. It simply is not persuasive to argue that Student must have a different educational model (the language-based instructional program) in order to make effective progress when the largely unrebutted evidence is that he has been making effective progress (and would likely continue to make effective progress) in Medfield’s inclusion model. As explained above (see part IVA), Medfield need not provide the best or even the experts’ preferred educational program, so long as the IEPs offer an appropriate public education.
I now turn to Parents’ experts’ recommendations for specific remedial educational services that have not been included within Medfield’s 10 th and 11 th grade IEPs. Ms. Holden recommended that Student receive direct instruction in syllable counting, syllable manipulation, and syllable structure. She further recommended that all of Student’s textbooks be given “readability formula checks” to ensure he can access them. Dr. Lasoski recommended that Student receive speech and language therapy. Arguably, these additional services would enhance Student’s educational program and result in greater educational progress.
Mr. Willette (Landmark’s academic dean) testified that he has come to know Student through a review of his records and meeting with Landmark staff initially and each year thereafter to determine Student’s schedule. Mr. Willette opined that Medfield’s proposed IEP for 10 th grade (exhibits P-2, S-4) needed to reflect more remediation in upper level decoding, that Medfield’s proposed IEP for 11 th grade (exhibits P-1, S-2) needed to reflect more remediation regarding reading fluency, and that both IEPs needed to reflect more remediation in writing paragraphs and more language-based instruction. In addition, Ms. Stevens criticized a number of goals and objectives within the IEP, as well as the approach of several of Medfield’s 11 th grade teachers.
The additional remedial services proposed by Parents’ experts (Ms. Holden and Dr. Lasoski), and Mr. Willette, and the changes needed to remedy Ms. Stevens’ concerns could, arguably, have improved the Medfield educational services. However, there is no persuasive evidence that any of these changes was necessary for Medfield to satisfy the FAPE standard. As discussed above (see part IVA), since Medfield’s IEPs would likely have provided Student with FAPE, it is irrelevant that additional or different services would likely result in greater educational progress or benefit.
Additional criticisms by Parents’ experts . Parents’ experts directed additional, specific criticisms at Medfield’s actual or proposed educational services. A concern expressed by Dr. Lasoski in her testimony and written report was that Medfield’s standardized testing of Student from February 1998 to February 2005 indicated a decline in Student’s verbal comprehension. He scored at the 91 st percentile in 1998 and at the 50 th percentile in 2005. This decline is reflected within subtest scores that indicated a decline in vocabulary, similarities (the similarities subtest reflects the ability to engage in higher level reasoning), and block design (the block design subtest reflects visual analytical or organizational skills) – the decline in each subtest was from a superior score in 1998 to an average score in 2005. Dr. Lasoski concluded that the drop reflected negatively on Student’s learning at Medfield. Testimony of Lasoski; exhibits P-53, S-37 (page 10).
The February 2005 testing referenced by Dr. Lasoski had been conducted by Medfield’s school psychologist (Ms. Snyder). (A summary of Ms. Snyder’s evaluation may be found in part IIIC, above.) Ms. Snyder testified that she, too, compared her cognitive testing with the Medfield cognitive testing (that had been done seven years earlier in February 1998 (Student’s 2 nd grade). Ms. Snyder explained the difficulty in drawing any conclusions when comparing scores in different editions of this test over the course of a seven-year span – the 1998 testing had utilized the Wechsler Intelligence Scale for Children (3 rd ed.) while Ms. Snyder had used the Wechsler Intelligence Scale for Children (4 th ed.). Ms. Snyder supported this view through her review of the actual test questions and actual test answers provided by Student in two subtests (similarities and vocabulary) where there was a significant drop in scores over the seven-year period. I found Ms. Snyder’s testimony to be persuasive that little, if any, useful information about Medfield’s educational programs may be gleaned from a comparison of test scores from these somewhat different cognitive evaluations conducted seven years apart.
Another specific concern was expressed by Ms. Stevens regarding the size of the classes proposed for Student for 10 th and 11 th grades. Ms. Stevens opined all of the proposed regular education classes were too large for Student to make effective educational progress. The class sizes of all of Student’s classes for 9 th , 10 th , and 11 th grades are found within exhibit S-1.
Ms. Stevens’ testimony is rebutted by Student’s actual progress in 9 th grade. The class sizes for Student’s 10 th and 11 th grades are similar to his class sizes for 9 th grade, except for the combined English/history class in which there would have been 38 students. I have previously determined (see part IVB) that notwithstanding its relatively large class size, the combined English/history class would likely have been appropriate for Student. Also, Ms. Stevens’ testimony was contradicted by the testimony of Dr. Lasoski regarding the maximum class size appropriate for Student. For these reasons, I am not persuaded by Ms. Stevens’ criticisms of class size.
Parents further argued, based on the testimony of their experts, that Medfield’s IEPs did not take into consideration Student’s “unique” special education needs, which included dyslexia. Ms. Mullen acknowledged that the 10 th and 11 th grade IEPs did not specifically reference that Student has been diagnosed with dyslexia or with a central auditory processing deficit. She persuasively explained, however, that the IEPs’ reference to language-based learning disability identifies Student’s learning needs related to dyslexia.
Parents, through their educational experts, raised concerns regarding the appropriateness of the proposed peers for Student in 10 th and 11 th grades. However, Ms. Mullen testified that Student’s 10 th grade peers who would be receiving special education services would typically have a learning disability. She explained that none of his peers had a behavior disorder and perhaps one of his peers had a mental health diagnosis. Also, I discount the Parents’ experts’ concerns regarding this issue because they assumed that Student must be educated in a language-based program that would provide consistent instruction of language-based principles throughout the curriculum, and their recommendations regarding peers for Student are based on that model, as compared to the inclusion model used successfully for Student in 9 th grade. I find that Medfield proposed appropriate peers for Student.
Parents questioned the qualifications of the staff who would have been working with Student. However, Ms. Mullen testified that she, Ms. Johnson, and Ms. Sabra are trained and have experience relative to working with students with a language-based learning disability, and she has specific knowledge with respect to dyslexia. Ms. Mullen further explained that she supervises the aides within the inclusion classes, and she is a certified special education teacher. Ms. Mullen would have been Student’s Learning Center teacher for 10 th and 11 th grades, and would have been his special education liaison for both years. Testimony of Mullen; exhibit S-1. I find that Medfield proposed to use staff with appropriate experience and expertise.
Need for residential placement . Parents argued that Student requires a residential placement in order to make effective educational progress. Parents’ educational expert (Ms. Stevens) testified that, in her opinion, the residential component of the Landmark placement was essential to Student’s educational growth. She explained that the residential component helped address Student’s need to improve his organizational skills, time management, and peer relationships (social pragmatics). She explained that during the after-school hours, Landmark staff reinforced what was taught at other times with respect to these deficit areas.
It is not disputed that Student has benefited from supervised study halls and support during the evening hours, assisting Student with his organizational, time management, and self-advocacy skills, all of which occur in the residential portion of Student’s placement at Landmark. However, no written evaluation or other expert testimony supports Ms. Stevens’ opinion that the residential placement is necessary in order to address appropriately Student’s educational needs. Parents’ own neuropsychologist (Dr. Lasoski) testified that although Student benefited from the residential aspects of the Landmark program, Student did not require a residential educational program in order to make effective educational progress. I further find that the evidence of Student’s success in his 9 th grade program at Medfield High School, discussed above in this Decision, is persuasive that a residential program is unnecessarily restrictive for purposes of meeting Student’s educational needs.
Student’s frustration and unhappiness at Medfield High School . A significant part of Student’s and Parents’ testimony focused on Student’s frustration, sense of failure, and general unhappiness at Medfield in general, and at Medfield High School in particular. Parents’ and Student’s testimony was supported by Student’s writings in the Learning Center (indicating resentment at being asked to engage in additional writing assignments) and in a sheet of paper created by Student indicating his head banging. Testimony of Student, Parents; exhibit P-42.
In their testimony, Parents illustrated the severity of Student’s unhappiness with their discussion of his head-banging at home, and noted that he had been sexually and physically harassed by other hockey players, and that he was teased at school.
When asked during the hearing about Student’s head banging and peer harassment, Ms. Snyder testified that she had not been aware of these incidents until she heard testimony describing them during the hearing (in the present dispute) a few days ago. She explained that had she learned of these incidents while Student was at Medfield High School, she would have been concerned and would have taken steps to seek to address them. I credit Ms. Snyder’s testimony in this regard. I therefore do not hold Medfield responsible for addressing these issues.
Equally important, the credible testimony of the Medfield witnesses was that Student was fully engaged at school and that his frustration appeared to be confined to biology and writing assignments within the Learning Center. For example, Student’s 9 th grade English teacher (Ms. McDermott) testified that Student appeared to enjoy her class; she was not aware of any frustration or difficulty that Student had with the class (including homework); and he did not appear to have difficulty with social pragmatics regarding his peers. Student’s special education teacher (Ms. Johnson) testified that in 9 th grade, although Student had areas of difficulty and frustration (in particular, the biology class and the written expression assignments in the Learning Center), he did not present as unhappy at Medfield High School. She added that she regularly consulted with his teachers who did not indicate to her that he was unhappy.
In her abbreviated clinical interview during psychological testing in February 2005, Medfield’s school psychologist (Ms. Snyder) asked Student about school, family, and friends. She concluded that from Student’s perspective, he was struggling at Medfield High School only with respect to biology. Ms. Snyder did not notice any other signs of unhappiness at school. Other teachers are generally encouraged to share with Ms. Snyder any social or emotional concerns that they might have regarding students at the high school, and Ms. Snyder received no communication of any concerns from Student’s teachers. Similarly, Parents did not raise with her any social or emotional concerns regarding their son. Testimony of Snyder; exhibits S-39, P-28.
From this evidence, I am persuaded that by the end of the 9 th grade, Student was generally frustrated and unhappy at Medfield High School. However, I find that Student’s unhappiness and frustration with school were based on specific parts of the 9 th grade curriculum – biology and writing assignments within the Learning Center – and his relationships with his peers. This may reflect the need for adjustments (for example, with respect to Student’s science course for 10 th grade and his writing assignments within the Learning Center) but is not indicative of an inappropriate educational model. For these reasons, Parents are not persuasive that Student’s unhappiness and frustration at Medfield up to and including 9 th grade indicate that the 10 th or 11 th grade IEP was inappropriate.
Student’s success at Landmark . It is not disputed that, to Student’s considerable credit, he has thrived at Landmark. He has worked extremely hard (often completing 6 hours of homework daily), has felt challenged by the courses and peers, has enjoyed learning, and has achieved academic success. At Landmark, Student has benefited from the individualized instruction, similar peers, and integrated and consistent teaching methodologies throughout the day. Student has also gained confidence and insight regarding his learning strengths and weaknesses, as demonstrated by a most thoughtful and articulate essay that he prepared for his college applications (exhibit P-93). Student has felt comfortable in the Landmark community, participating in sports and drama, and making friends. Testimony of Lasoski, Student, Mother, Father, Mitchell, Willette, Stevens; exhibits P-78 through P-89.
In short, Landmark has allowed Student to become a highly engaged, enthusiastic, confident, and successful learner. There is no doubting not only Student’s overall educational success at Landmark, but also his marked personal maturity. I agree with Parents and Student that Landmark has provided an excellent fit for Student’s particular blend of educational and personal strengths and weaknesses. Parents are to be commended for giving their son the opportunity to attend this school.
However, for reasons explained above (see part IVA), the fact that Landmark School has provided an excellent educational and personal opportunity for Student is not, without more, persuasive that Medfield’s IEPs did not meet the legal requirements contained within the FAPE standard.
Medfield’s proposed IEPs for 10 th and 11 th grades were reasonably calculated to provide Student with a free appropriate public education in the least restrictive environment.
Accordingly, Medfield is not responsible for reimbursing Parents for their out-of-pocket expenses for their unilateral placement of Student at Landmark School for the 2005-2006 and 2006-2007 school years.
By the Hearing Officer,
Dated: December 5, 2007
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 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 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.
Ms. Stevens sought to testify and Parents (through their attorney) argued that Medfield provided Ms. Stevens insufficient opportunity to observe classes in which Student would have participated at Medfield High School. Parents are persuasive that, as a general rule, having sufficient opportunity to observe is essential to the preparation of their case. However, even assuming that Ms. Stevens was provided insufficient opportunity to observe, there is little, if any, any recourse at this juncture of the proceedings. Prior to the evidentiary Hearing in this matter, Parents could have raised these concerns with the Hearing Officer and requested an order for an expanded opportunity for observation.
20 USC 1400 et seq .
MGL c. 71B.
20 USC 1400(d)(1)(A); 20 USC 1412(a)(1)(A); 20 USC 1412(a)(5)(A); MGL c. 71B, ss. 2, 3.
20 USC 1412(a)(5)(A); MGL c. 71B, ss. 2, 3; 34 CFR 300.114(a)(2(i); 603 CMR 28.06(2)(c).
Honig v. Doe, 484 U.S. 305, 311-12 (1988) ; Bd. of Educ. of the Hendrick Hudson Central Sch. Dist. v. Rowley , 458 U.S. 176, 182 (1982).
20 USC 1400(d)(1)(A) (IDEA enacted “to ensure that all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living”); 20 USC 1401(9), (29) ( “free appropriate public education” encompasses “special education and related services,” including “specially designed instruction, at no cost to parents, 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”); A.A. ex rel. J.A. v. Philips, 386 F.3d 455, 458 (2d Cir. 2004) (“IEPs are highly customized educational programs that are tailored to the particular, unique needs of disabled students”) (emphasis omitted); Lenn v. Portland Sch. Comm., 998 F.2d 1083, 1086 (1st Cir.1993) ( FAPE requires that IEP be “custom tailored to address the handicapped child’s unique needs in a way reasonably calculated to enable the child to receive educational benefits”) (internal quotations and citations omitted).
Lenn v. Portland School Committee , 998 F.2d 1083, 1090 (1 st Cir. 1993) (internal quotations omitted). 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”); Town of Burlington v. Dep’t of Educ ., 736 F.2d 773, 788 (1st Cir. 1984), aff’d 471 U.S. 359 (1985) (“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) (utilizing the First Circuit standard quoted in the text above); North Reading School Committee v. Bureau of Special Education Appeals, 2007 WL 959038, CA No. 05-11162-RCL (D.Mass. March 30, 2007) (citing the First Circuit standard quoted in the text above).
Rowley, 458 U.S. at 192 (1982) . Circuit Courts have similarly concluded that the IEP must provide a student with educational benefits that are “meaningful” or must provide “meaningful access” to public education. E.g., Frank G. v. Board of Educ. of Hyde Park, 459 F.3d 356, 364 (2 nd Cir. 2006) (“IDEA does not require states to maximize the potential of handicapped children, it must provide such children with meaningful access to education”) ; A.B. ex rel. D.B. v. Lawson , 354 F.3d 315, 319 (4 th Cir. 2004) (“state must provide children with ‘meaningful access’ to public education”); Alex R. v. Forrestville Valley Community Unit School Dist. # 221, 375 F.3d 603, 612 (7 th Cir. 2004) (question presented is whether the school district appropriately addressed the student’s needs and provided him with a meaningful educational benefit), cert. denied , 543 U.S. 1009 (2004); 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.); Houston Independent School District v. Bobby R ., 200 F.3d 341 (5 th Cir. 2000) (educational benefit must be “meaningful”); Town of Burlington v. Dep’t of Educ ., 736 F.2d 773, 789 (1st Cir. 1984) (“federal basic floor of meaningful, beneficial educational opportunity”), aff’d 471 U.S. 359 (1985).
A state may adopt additional procedural and substantive standards that are at or above the federal floor. 20 USC 1401(9)(b) (defining FAPE to include state educational standards); MGL c. 71B, s. 1 (defining FAPE to include federal FAPE standard and state educational standards); Mr. I. v. Maine School Administrative District No. 55, 480 F.3d 1, 11 (1 st Cir. 2007) (state may “ calibrate its own educational standards, provided it does not set them below the minimum level prescribed by the [IDEA].”).
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 ).
MGL c. 71B, s. 1 (“special education” defined to mean “ educational programs and assignments including, special classes and programs or services designed to develop the educational potential of children with disabilities” ); 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 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 ”); 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”).
Rowley , 458 U.S. at 202.
E.g., Beth R. v. Forrestville Valley Comm. Unit Sch. Dist. No. 221, 375 F.3d 603, 615 (7 th Cir. 2004) (“ requisite degree of reasonable, likely progress varies, depending on the student’s abilities” ), cert. denied , 125 S. Ct. 628 (2004); 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.); 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”); Houston Independent School District v. Bobby R ., 200 F.3d 341 (5 th Cir. 2000) (progress should be measured with respect to the individual student, not with respect to others); Mrs. B. v. Milford Board of Ed. , 103 F.3d 1114, 1122 (2d Cir. 1997) (“child’s academic progress must be viewed in light of the limitations imposed by the child’s disability”); Roland v. Concord School Committee , 910 F.2d 983 (1 st Cir. 1990) (“academic potential is one factor to be considered”).
603 CMR 28.05(4)(b) (Student’s IEP must be “designed to enable the student to progress effectively in the content areas of the general curriculum”); 603 CMR 28.02(18) (“ Progress effectively in the general education program shall mean to make documented growth in the acquisition of knowledge and skills, including social/emotional development, within the general education program, with or without accommodations, according to chronological age and developmental expectations, the individual educational potential of the child , and the learning standards set forth in the Massachusetts Curriculum Frameworks and the curriculum of the district [emphasis supplied].”).
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.”).
20 USC 1412 (a)(10)(C)(ii); Sch. Comm. of Burlington v. Dep’t of Educ., 471 U.S. 359, 370, 373-74 (1985).
Schaffer v. Weast , 546 U.S. 49, 126 S. Ct. 528, 534, 537 (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” ).
When given an accommodation of additional time, Student’s reading comprehension has been tested and reported by teachers to be in the average (or higher) range. For example, on the Wechsler Achievement Test (2 nd ed.) administered by Medfield’s school psychologist (Ms. Snyder) in February 2005 (during Student’s 9 th grade), Student scored in the 88 th percentile (high average) on the reading comprehension subtest. Exhibits S-39, P-28 (4 th page). Also in February 2005, Student was administered the Test of Reading Comprehension, as part of Ms. Holden’s diagnostic educational evaluation. On the paragraph reading subtest, in which Student had the opportunity to read and re-read the material, Student scored exactly average at the 50 th percentile. However, Ms. Holden noted Student’s significant difficulty with sentence sequencing with the result that in content area courses, such as science, Student would be challenged to process the information in the correct order. Testimony of Holden; exhibits P-54, S-41 (pages 9-10). Approximately one year later, Student was administered the Nelson-Denny Reading Test, as part of Dr. Lasoski’s neuropsychological evaluation in December 2005 or April 2006. This test showed that when not given extended time, Student scored at the 34 th percentile (grade equivalent of 8.9) on reading comprehension, but when given extended time, he scored at the 82 nd percentile (grade equivalent of 14.7) on reading comprehension. Exhibits P-53, S-37 (page 17). Student’s 9 th grade teachers testified that he was accessing and learning from 9 th grade reading materials (see, in particular, Ms. McDermott’s testimony in part IVB below). Testimony of McDermott, Johnson, Mullen.
The First Circuit has made clear that a school district can only be held responsible to consider what it was aware of or should have been aware of at the time that the IEP was prepared. Roland M. v. Concord Sch. Comm., 910 F.2d 983, 991-992 (1st Cir. 1990) (“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”); Town of Burlington v. Dep’t of Educ ., 736 F.2d 773, 788 (1st Cir. 1984), aff’d 471 U.S. 359 (1985) (“ ultimate question for a court under the Act is whether a proposed IEP is adequate and appropriate for a particular child at a given point in time”).
Ms. McDermott’s inclusion class initially consisted of 14 students, 12 of whom had an IEP or Section 504 plan (the class size went down to 12 during the second half of the year). She was assisted by an aide who was a certified regular education teacher. Ms. McDermott explained that she and her aide frequently circulated through the classroom, ensuring that Student (and others) were following what was being discussed, and she would spend time with Student 1:1 when he became stuck.
Parents made several arguments to the contrary. First, Parents sought to cast doubt as to whether the 4 th essay was actually written by Student. Parents relied on Student’s testimony that although there are words in the essay that he typically uses, he did not specifically recall writing this essay and he would not likely have placed some of the commas in the essay without assistance. However, Ms. McDermott’s testimony was unequivocal that the essay was part of Student’s final exam at the end of 9 th grade and that she actually observed Student write this essay in her classroom. I credit Ms. McDermott’s testimony on this point.
Second, Parents took the position that this June 2005 essay may have been computer enhanced, through a grammar check program, with the result that it did not accurately reflect Student’s writing abilities. However, Ms. McDermott testified persuasively that Student likely used a computer program for checking grammar, but the grammar check program indicates only where there may be a grammatical error, without indicating how the grammar may be corrected.
Third, Parents argued that another writing sample, done for social studies class in June 2005, was significantly inferior to the June 2005 essay done in Ms. McDermott’s class, indicating that writing skills learned in one class were not carried over into other classes. It is not disputed by Medfield that the writing skills evidenced in the social studies essay are inferior to those evidenced in the English essay, but the social studies essay was a “content driven” assignment, where less emphasis was placed on writing style. Testimony of Mullen; exhibit P-31.
See, e.g., In Re Conklin, 946 F.2d 306, 315-16 (4th Cir. 1991) (courts should not consider grade-to-grade advancement and passing marks to be dispositive as to question of whether a student received a free appropriate education); West Chester Area Sch. Dist. v. Bruce and Suzanne C , 194 F. Supp. 2d 417 (E.D.Pa. 2002) (was error to focus on student’s grades while disregarding his potential).
Ms. Holden disagreed, testifying that a Wilson Reading program should be provided a minimum of three times per week, and preferably four or five times per week, in order to provide sufficient repetition and consistency, and to be effective for Student. Both Ms. Mullen and Ms. Holden have experience and expertise in this area. Each testified credibly. I am unable to conclude that the opinion of one of these witnesses regarding Wilson Reading is more persuasive than the opinion of the other. For this reason, Parents did not meet their burden of persuasion on this point.
MGL c. 71B, s. 1 (“special education” defined to mean “educational programs and assignments including, special classes and programs or services designed to develop the educational potential of children with disabilities”); 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 authorities cited in footnotes 13 through 15 above. See also Arlington Central School Dist. v. D.K. and K.K. , 2002 WL 31521158 ( S.D.N.Y. 2002) ( “[student’s] curriculum must engage his native intelligence and … it would be inappropriate to ‘water-down’ the content of the reading or other instructional material to which he is exposed”).