Needham Public Schools – BSEA # 07-2282
COMMONWEALTH OF MASSACHUSETTS
BUREAU OF SPECIAL EDUCATION APPEALS
In Re: Needham Public Schools
BSEA # 07-2282
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 January 30, 2007 and February 2, 5, and 9, 2007 in Malden, MA before William Crane, Hearing Officer. Those present for all or part of the proceedings were:
Bonnie Singer Speech-Language Pathologist for Parents
Penny Prather Neuropsychologist for Parents
Larry Brown Head of Middle School, Carroll School
Patricia Sabbey Special Education Teacher, Needham Public Schools
Andrea George Special Education Teacher, Needham Public Schools
Maureen Lyons Social Studies Teacher, Needham Public Schools
Coni Hebden Team Chairperson, Needham Public Schools
Megan Zweiback Team Chairperson, Needham Public Schools
Susan Abrahamson Speech-Language Pathologist, Needham Public Schools
Kathleen Rogers Reading Specialist, Needham Public Schools
Iris Miller Psychologist, Needham Public Schools
Mary Sterling Consultant for Needham Public Schools
Valerie Flynn Director of Special Education, Needham Public Schools
Daniel Heffernan Attorney for Parents and Student
Rebecca Bryant Attorney for Needham Public Schools
Patricia McLaughlin Court Reporter
Heidi Bates Court Reporter
Laurie Jordan Court Reporter
Ian Galloway Court Reporter
The official record of the hearing consists of documents submitted by the Parents and marked as exhibits P-1 through P-29; documents submitted by the Needham Public Schools (Needham) and marked as exhibits S-1 through S-48; and four days of recorded oral testimony. In lieu of written closing arguments, oral closing arguments were made on February 14, 2007, and the record closed on that date.2
This case presents the question of whether Parents should be reimbursed for the unilateral placement of their son at the Carroll School (Carroll), a private school for students with language-based learning disabilities. Parents placed their son at Carroll for the 2005-2006 and 2006-2007 school years (Student’s 5 th and 6 th grades), as well as for the summers of 2005 and 2006. Parents also seek prospective placement at Carroll.
The parties agree that Student’s education should include language-based instruction in order to address appropriately his learning needs. Needham takes the position that it offered Parents appropriate, language-based programs for the entire time period in question. Parents disagree, arguing that Needham proposed programs that did not actually provide language-based instruction, that the proposed 6 th grade inclusion classes in science and social studies would have been inaccessible and largely meaningless to their son, and that the proposed peer groupings included students with such a broad range of educational needs as to make appropriate instruction impossible.
For reasons explained below, I concluded that Needham offered appropriate educational services and programs to Student, except for the math class during the first half of 6 th grade. I declined to order reimbursement of any of Parents’ expenses, and I declined to order prospective placement at Carroll.
This is a close case that was exceptionally well litigated by both attorneys. The parties presented highly experienced, knowledgeable experts who testified credibly in support of their positions. Needham prevailed because, in the final analysis, its experts were as persuasive, or in some instances somewhat more persuasive, than Parents’ experts regarding the essential, disputed aspects of this case; and because Parents have the burden of persuasion regarding each part of this dispute.
The issues to be decided in this case are the following:
1. Are the individualized education programs (IEPs) for the 2005-2006 and the 2006-2007 school years reasonably calculated to provide Student with a free appropriate public education in the least restrictive environment?
2. If not, can additions or other modifications be made to the current IEP in order to satisfy this standard?
3. If not, would placement at the Carroll School satisfy this standard?
4. Are Parents entitled to reimbursement of educational expenses for the 2005-2006 and 2006-2007 school years, as well as for the summers of 2005 and 2006?
5. Are Parents entitled to a current IEP placing their son at the Carroll School?
This part of the Decision provides a Student profile, a chronology of events, including a description of the services proposed in all of the disputed IEPs, and a discussion of the peers with whom Student would have been placed in 5 th and 6 th grades.
Student is a twelve-year-old (date of birth 1/6/95) 6 th grader who lives with his mother and father (Parents) in Needham, Massachusetts. For the current school year (2006-2007) and the previous school year, Parents unilaterally placed their son at the Carroll School, which is a private school for children with language-based learning disabilities. Testimony of Parent, Brown.
There is no substantive dispute regarding Student’s educational strengths and deficits.
Student’s overall cognitive abilities are in the average to high average range, with relatively even summary scores for verbal and performance areas on the Wechsler Intelligence Scale for Children – 3 rd Edition. Student demonstrated relative strengths regarding his conceptual abilities, logical reasoning, attention to detail, and visual-spatial analysis. He has excellent math problem-solving skills. Student also has a strong work ethic in that he is conscientious, persistent, and diligent. Testimony of Prather, Miller, Singer, Sterling, Parent; exhibits S-2, S-9, S-10, S-29, S-35.
Student’s cognitive and linguistic deficits include the following: (1) exceptionally slow visual and auditory processing speed, typically requiring a significant amount of time to process language, (2) retrieval deficits which, together with slow processing speed, result in response delays – that is, he must pause before he responds – from 1 or 2 seconds up to 2 minutes, depending on the context, (3) verbal memory weaknesses involving both short term and working memory, resulting in Student’s quickly losing information from memory, sometimes forgetting where he is in solving a problem, and having difficulty with multi-tasking, (4) integration deficits, making it difficult for Student to understand the “big picture” and, at the same time, understand the details of what is being presented or discussed, (5) linguistic weaknesses, including deficits in syntax and semantics, making it difficult for Student to understand linguistically complex material, and (6) attentional deficits, which result in a general reduction in efficiency, difficulty in compensating for his linguistic weaknesses, and distractibility. Testimony of Prather, Singer, Miller, Brown, George; exhibits S-2, S-9, S-10, S-29, S-35.
Parents’ and Needham’s experts’ points of divergence regarding Student’s deficits were more a matter of emphasis than substance. One of Parents’ experts (Dr. Prather), in particular, made clear her opinion regarding the importance of Student’s significant deficits in the area of academic (reading and math) fluency, which, Dr. Prather explained, negatively impacts how Student learns and how he experiences school. Reading fluency is a term that reflects a combination of how quickly one reads and how accurately one reads. Related to this deficit is Student’s difficulty with automaticity. This combination of deficits results in learning being very slow and very effortful. The parties do not dispute Student’s deficits in this area. Testimony of Prather, Miller.
2003-2004 school year (3 rd grade)
On October 25 and 29, 2003, Penny Prather, PhD, conducted a neuropsychological evaluation at Parents’ request. Exhibit S-2.
In response to Dr. Prather’s evaluation, Needham proposed an IEP that continued Student’s placement in an integrated program at Needham’s Newman Elementary School and provided Student with special education services of occupational therapy and speech-language therapy. He also received instruction in Project Read. Testimony of Parent, Hebden; exhibit P-12.
In February 2004, Needham conducted its own assessments in the areas of math, speech-language, and reading. An IEP Team meeting occurred in March 2004 to consider these evaluations. The Team proposed adding academic support in the regular education classroom and special education reading services. Exhibits S-3, S-4, S-5, P-13.
2004-2005 school year (4 th grade)
Student continued in the integrated program at Newman Elementary School. A Team meeting at the end of September 2004 determined that in lieu of Project Read, Student should receive the Wilson Reading program for 50 to 60 minutes, four times per week in order to provide him with a slower-paced and more systematic reading instruction. This instruction began in late November 2004. Testimony of Parent, Hebden, Rogers; exhibit S-7.
Needham’s proposed IEP, as revised in the fall of 2004, called for academic support in the regular education classroom, with pull-out services for reading, speech-language services, phonics, written language, and occupational therapy. Exhibits S-7, S-8.
In September 2004, Dr. Prather did further testing of Student at Parents’ request. Testimony of Parent, Prather; exhibit S-10.
During this school year, Parents tried putting their son on medication to address his attentional issues, but the medication was not effective, indicating to Parents that Student’s attentional deficits were the result of his processing and language deficits. Testimony of Parent.
Mother noticed that academic tasks were extremely effortful for her son and he took a long time to complete his schoolwork, even though he was bright and had a good work ethic. Mother understood that her son’s reading fluency was not improving even though he was learning more words, with the result that her son was not a functional reader. Testimony of Parent.
In January 2005, Dr. Prather did further testing of Student at Parents’ request. Testimony of Parent, Prather; exhibit S-10.
On February 25, 2005, Bonnie Singer, PhD., conducted a speech-language evaluation at Parents’ request. Exhibit S-9.
On May 21, 2005, Dr. Prather and Stacey Ward, CAGS, conducted a follow-up academic evaluation at Parents’ request. Exhibit S-10.
In the spring of 2005, Student’s reading teacher (Ms. Rogers) completed an historical review of Student’s reading scores. Testimony of Rogers; exhibit S-11.
On May 27, 2005, the IEP Team met to review Dr. Singer’s evaluation and Student’s progress, and to consider Student’s educational program for the summer of 2005 and for the 5 th grade. (The proposed placement and services for the summer and for 5 th grade are described below.) After the May Team meeting, Parents applied for admission to the Carroll School where Student was accepted. Testimony of Parent, Hebden, Rogers; exhibits S-14, S-15.
Summer of 2005
Parents placed Student at the Carroll School summer program during the summer of 2005.
Through its proposed IEP, Needham offered the following services for the summer of 2005: Wilson decoding/encoding tutoring twice per week for eight weeks for the purpose of preventing substantial regression of skills. Exhibit S-14.
An agreement, dated June 30, 2005, provides that Needham will reimburse Parents for educational services in the amount of $935. The agreement then states: “The parties agree that this will provide the extended school year services for Wilson instruction as outlined in [Student’s] IEP and referred to above.” S-19.
2005-2006 school year (5 th grade)
Student was privately enrolled by his Parents at Carroll for this school year.
Needham’s proposed IEP for 5 th grade, developed at the May 27, 2005 Team meeting, continued Student’s placement in an inclusion setting at the Newman Elementary School. Academic support was proposed in the regular education classroom, with pull-out services for reading, speech-language, phonics, and occupational therapy. Exhibit S-14.
However, the Needham members of the Team also proposed an IEP calling for a substantially-separate, language-based program at the Eliot School as an alternative educational placement for Student. The Needham members of the Team believed that Student could be appropriately served within the less restrictive placement at Newman, but offered the Eliot placement as an accommodation to Parents’ preference for a substantially separate program, which was recommended by Parents’ evaluator. The IEP called for academic support in the regular education classroom for one hour per day, and separate special education services as follows:
· reading for 40 minutes each day,
· speech language for 30 minutes each week,
· a structured phonics program for forty minutes four times per week, and
· curriculum/academic support for 5 hours per day.
Parent testified that Team members expressed concern that at the Eliot placement, there would be only three children, including Student. Testimony of Parent, Hebden.
At the end of the 4 th grade year, Mother observed the Eliot School placement and spoke with the teacher. Mother was told that it was a two-year program, and that during the 2005-2006 school year, 4 th grade topics would be covered, having completed 5 th grade topics the previous year. Testimony of Parent.
The IEP Team met on March 27, 2006 to consider Student’s IEP for the remainder of this school year and the following school year.
In June 2006, Dr. Singer conducted a speech-language re-evaluation of Student at Parents’ request. Exhibit S-29.
Summer of 2006
Parents placed Student at the Carroll summer program during the summer of 2006.
Through its proposed IEP, Needham offered the following summer services for the summer of 2006: Wilson decoding/encoding tutoring twice per week for eight weeks for the purpose of preventing substantial regression of skills. Exhibit S-27.
2006-2007 school year (6 th grade)
Student was privately enrolled by his Parents at Carroll for this school year.
Needham’s proposed IEP for 6 th grade, developed at a March 27, 2006 Team meeting, placed Student in an inclusion setting with supportive services at the Pollard Middle School. Academic support and curriculum support were proposed in the regular education classroom, with pull-out services for reading, speech-language services, and phonics. Exhibit S-27.
However, the Needham members of the Team also proposed an IEP calling for a substantially separate, language-based program at the Pollard School as an alternative educational placement for Student. The Needham members of the Team believed that Student could be appropriately served within the less restrictive, inclusion placement at Pollard, but offered the alternative placement as an accommodation to Parents’ preference for a substantially separate program, which was recommended by Parents’ evaluator. The IEP called for curriculum support in the regular education classroom for one and one-half hours per day, and separate special education services as follows:
· academic support in the Learning Center for 45 minutes per day,
· English in the Language-Based Classroom for 45 minutes per day, and
· math in the Language Based Classroom for 45 minutes per day.
Mother visited the Pollard substantially separate program and spoke with the teacher. Mother learned that her son would be in a language-based classroom for language arts and math, and in an inclusion classroom for social studies, science, and any electives. Mother was concerned that her son would not be able to keep up with the pace of instruction within the inclusion classes. Mother learned from the teacher that some of the other children’s needs would likely be different than her son’s needs (for example, reading comprehension and decoding skills). She was concerned that without greater consistency of needs of the children in the classroom, her son would not receive sufficient consistency and practice in order to gain academic fluency and mastery, and that the classroom (with different needs being addressed simultaneously) would be too distracting. Mother was also concerned that the proposed arrangement of services would not provide a sufficiently predictable schedule for her son. Testimony of Parent.
By letter of October 4, 2006, Needham sent Parents a corrected IEP service delivery page, which called for curriculum support in the regular education classroom for one and one-half hours per day, and separate special education services as follows:
· speech-language services of 30 minutes once per five-day cycle,
· academic support in the Learning Center for 45 minutes per day,
· English in the Language-Based Classroom for 45 minutes per day,
· math in the Language Based Classroom for 45 minutes per day, and
· structured reading program for 45 minutes, three times per six-day cycle.
On October 10, 2006, Needham received Dr. Singer’s speech-language re-evaluation of June 2006, which had been conducted at Parents’ request. Exhibit S-29.
The IEP Team met again on October 20, 2006 to review Dr. Singer’s speech-language re-evaluation. Parent was then told that Needham no longer recommended an inclusion model for Student, and instead recommended the substantially separate program at Pollard. As a result of this Team meeting, Needham proposed an IEP substantially the same as the alternative IEP it had proposed in March 2006 for the Pollard substantially-separate program, except for an increase in speech-language services from 30 minutes once per five-day cycle to 45 minutes three times per six-day cycle. Exhibit S-32.
From the end of October to the beginning of December 2007, Needham conducted a speech-language evaluation, educational assessment, and neuropsychological assessment. Exhibits S-33, S-34, S-35.
The IEP Team met again on January 2, 2007 and January 22, 2007 and proposed a continuation of Student’s placement and special education services within the Pollard language-based program, with the addition of a structured reading program. This IEP, which runs from 1/23/07 to 12/31/07 and which is the most current IEP, provides for support in regular education social studies and science classes for 45 minutes per class each day, and separate special education services as follows:
· speech-language services of 45 minutes three times per six-day cycle,
· academic support in the Learning Center for 45 minutes per day,
· English in the Language-Based Classroom for 45 minutes per day,
· math in the Language Based Classroom for 45 minutes per day, and
· structured reading program for 45 minutes, three times per six-day cycle.
This IEP also proposed the following services for the summer of 2007 (from 6/25/07 to 9/01/07):
· reading services from a special education teacher for 45 minutes, three times per seven-day cycle,
· speech-language services from a speech-language therapist for 45 minutes, once per seven-day cycle.
Mother testified that she and her husband believed that they had spent five years trying everything that Needham had to offer to help their son learn. However, the evaluation reports (particularly, Dr. Singer’s report) made it clear to them that what had been provided by Needham was not sufficient, and that their son needed a more appropriate educational program geared to his specific needs in order to make effective progress. Mother explained that since attending Carroll, her son has been a different person, completing his homework without assistance (although continuing to take a long time), becoming more relaxed and comfortable at school, making friends and having normal relationships with peers and adults, and gaining significant self-confidence. Testimony of Parent.
C. Proposed Peers
For purposes of a discussion of the proposed peers for both 5 th and 6 th grades, I discuss below only the students regarding whom there was a dispute as to the appropriateness of their being grouped with Student.
Peer Grouping for 5 th Grade
Student # 5-1 : This student has extremely slow processing speed, working memory deficits, and retrieval delays. The classroom teacher (Ms. George) testified that with an appropriate teaching approach, this student was able to make meaningful progress in the classroom. Dr. Miller agreed that this student is appropriately placed in this classroom, noting, in particular the student’s average abilities in verbal comprehension and perceptual organization. Exhibit P-25.
Student # 5-2 : The IEP indicates that this student has social and emotional needs. Ms. George made clear in her testimony, however, that these needs did not interfere with the instruction of others. Exhibit P-25.
Student # 5-3 : This student’s IEP reflects that a psychological assessment on 3/05 found overall intellectual functioning to be in the borderline range (4 th percentile). However, there was a significant split between an extremely low verbal comprehension ability and an average level of perceptual reasoning ability. The IEP further states that student’s language limitations make it difficult to express emotions. Exhibit P-25.
Ms. George testified that this student’s functioning varied significantly, but explained that this student had sufficient cognitive ability to access and obtain mastery over the curriculum through accommodations and modifications in her IEP. Ms. George added that this student’s language deficits impaired expression of feelings with words with the result that the student occasionally acted out verbally, but that the student was not disruptive to the class.
Dr. Miller testified that, overall, this student would be considered a slow learner, but nevertheless, in her opinion, is appropriate for a language-based program. Dr. Miller noted that this student has a low verbal comprehension score (63), but with subtests indicating average non-verbal abstract reasoning skills (92). She explained that this student also has working memory deficits that reflect relatively slow processing speeds. On the whole, Dr. Miller opined that this student has strengths that would complement Student’s strengths, and that this student would make an appropriate peer for Student.
This student is also part of the 6 th grade peer group in the Pollard language-based program proposed for Student, discussed below.
Peer Grouping for 6 th Grade
Student # 6-1 : This student was placed in the 6 th grade language-based program at Pollard, as well as the 5 th grade language-based program at Eliot. Dr. Miller testified that she reviewed his grades, and the student appears to be doing well academically, including in inclusion classes in 6 th grade. Exhibit P-26.
Student # 6-2 : This student is diagnosed with Asperger’s Syndrome, with the result that social pragmatic instruction is required. However, the 6 th grade teacher (Ms. Sabbey) testified that the social pragmatic instruction would be provided by a counselor who works specifically on these issues, and that this instruction would not take anything away from Student’s instruction had he been placed in this classroom. Ms. Sabbey also testified that this student has learning needs that are similar to those of Student, including receptive and expressive language deficits, and decoding deficits. She explained that although this student has demonstrated certain, infrequent behaviors typical of someone on the Autism spectrum (for example, hand flapping), the student is easily re-directed and has no behaviors that are disruptive to the classroom. Exhibit P-26.
Dr. Miller testified that she tested this student on January 7, 2007. She opined that the student is doing well in the language-based program, does not take time away from the learning of others, and is appropriately placed. She further explained that while this student is verbally “dis-inhibited” at times, the student is easily re-directed and is not disruptive of others.
Dr. Sterling added that a student with Asperger’s could be an appropriate peer for Student so long as the student did not present behaviors disruptive of the learning of others and so long as the student had language-based learning needs.
Student # 6-3 : This student has a primary deficit of emotional disability. Ms. Sabbey testified that the student participates only in her language-based, English language arts class, and is not otherwise in the 6 th grade language-based program at Pollard. Student has a language-based deficit and has not been disruptive to the classroom. Testimony of Sabbey; exhibit P-26.
Student # 6-4 : Ms. Sabbey testified that this student appears, on paper, to have an intellectual impairment, with a full scale IQ of 75 from an evaluation in December 2001, but the student received average verbal comprehension test scores (92) and does not fit the profile for a program for cognitively-impaired students. Ms. Sabbey explained that, with structure and framework, this student participates effectively in the classroom. She noted that for this student, math is a particular challenge, but the student is making progress in this area at an appropriate rate. Student also has deficits with respect to spatial concepts. Ms. Sabbey testified that this student does not appear, in the classroom, to be cognitively impaired with respect to English language arts or other academic areas. Exhibit P-26.
Dr. Miller testified that this student is diagnosed, on her IEP, as having an intellectual impairment, but has average verbal comprehension scores and average abstract reasoning abilities. The student also has visual processing needs and difficulty with reading. Dr. Miller opined that this student is “perfect” for placement in this language-based program.
Student # 6-5 : This student’s IEP describes difficulties with emotional affect, including sudden outbursts of anger. Ms. Sabbey testified that this student is only with her in English language arts and that she has never observed an angry outburst. Ms. Lyons similarly testified that she had not observed any behavior from this student that detracted from the educational environment. Exhibit P-26.
IV. LEGAL STANDARDS
Student is an individual with a disability, falling within the purview of the Individuals with Disabilities Education Act (IDEA)3 and the state special education statute.4 The IDEA was enacted “to ensure that all children with disabilities have available to them a free appropriate public education [FAPE] that emphasizes special education and related services designed to meet their unique needs and prepare them for employment and independent living.”5 Neither Student’s eligibility status nor his entitlement to FAPE is in dispute.
A student’s right to FAPE is assured by the development and implementation of an individualized educational program (IEP).6 The inquiry is whether the IEPs in question were reasonably calculated to provide an “appropriate” education as defined in state and federal law .7 The principal focus is on what was “objectively reasonable” when each IEP was written.8
Needham’s obligation under the IDEA is to tailor Student’s IEPs to address his “unique” educational needs.9 In addition, Student’s IEPs must be likely to result in sufficient educational benefit or progress. According to the First Circuit, the relevant inquiry is whether the IEP is “reasonably calculated to provide ‘effective results’ and ‘demonstrable improvement’ in the various ‘educational and personal skills identified as special needs.’”10 The Massachusetts special education regulations require the IEP to be designed to enable Student to make effective progress.11
Similarly, the United States Supreme Court has identified, as a substantive educational standard, the expectation that special education services make Student’s access to his education “ meaningful.”12 Massachusetts law further requires that special education services be “designed to develop [Student’s] educational potential.”13
At the same time, the FAPE standard is one of “moderation.”14 The “ benefit conferred [by the IEP] need not reach the highest attainable level or even the level needed to maximize the child’s potential.”15 If the IEP proposed by the school district is determined to be appropriate for Student, it is irrelevant that additional or different services would likely result in greater educational progress or benefit.16
In the instant dispute, Parents have the burden of persuasion that one or more of Needham’s IEPs is not appropriate, and that the current IEP, if not appropriate, could not be made appropriate through modifications that would allow Student to remain within the public schools.17 Parents would also have had the burden to demonstrate that its proposed private school placement (Carroll School) is appropriate for Student, except that Needham has conceded this issue for purposes of this litigation.
V. PROPOSED SERVICES DURING 5TH AND 6TH GRADES
In 4 th grade, Student was placed within an inclusion model, with supports and additional services. For 5 th and 6 th grades, Needham proposed IEPs that called for a continuation of this educational model. At the time that these IEPs were offered, however, Needham also proposed alternative IEPs that called for a substantially separate, language-based classroom for most or all of Student’s classes. The alternative IEPs were offered through the IEP Team process in response to Parents’ concerns and the recommendations of their experts even though the Needham Team members believed, at the time of the Team meetings, that Student could be served appropriately in the inclusion (and therefore less restrictive) model that was provided in 4 th grade.
Throughout this litigation, Needham has defended only the alternative IEPs, calling for substantially-separate educational placements. Parents have not disputed Needham’s practice, with this Student, of proposing, on the one hand, an inclusion model for the 5 th and 6 th grades, but, on the other hand, defending alternative IEPs that were offered at the same time, for a substantially-separate educational model for each grade.
The evidence of the extent of Student’s educational progress in 4 th grade is relevant to an understanding of Student’s educational strengths and deficits at the time Needham proposed its IEP for 5 th grade – the first of its disputed IEPs. However, notwithstanding Parents’ arguments to the contrary, this has no additional relevance to the question of whether Needham’s proposed IEPs were appropriate since Needham has not sought to defend the educational model that it provided in 4 th grade, and therefore will not be further considered.
The evidence relevant to the appropriateness of Needham’s proposed IEPs for 5 th and 6 th grade will focus on expert testimony regarding the three principal aspects of this case that are in dispute – first, whether Needham offered appropriate language-based instruction; second, whether Student may be appropriately educated in inclusion classrooms for science and social studies; and third, whether Needham offered appropriate peer groupings.
B. Language-Based Instruction
The need for, and the essential elements of, a program of language-based instruction are not disputed by the parties. Student requires a language-based instructional model, which should consist of a highly structured program with instruction that is direct, explicit, strategy-based, consistent, sequential, and systematic in order to address appropriately his language-based learning deficits. The instruction should be tailored to address Student’s core language needs regarding verbal memory, verbal complexity, and language skills deficits, and, at least in the special education classrooms, the instruction should be delivered slowly, using linguistically simple terms, in a multi-sensory format (pairing auditory and visual information), with repetition (including preview and review). This instruction should be consistently reinforced throughout the day and should be infused with the development of vocabulary. External cognitive supports (including monitoring and re-direction from a teacher) need to be provided to help Student maintain attention. Testimony of Prather, Singer, Miller, Sterling, Brown.
The over-arching instructional approach should be “diagnostic prescriptive” – that is, the teacher needs to be monitoring Student’s performance and then making adjustments as necessary with respect to the next instructional steps to ensure their appropriateness for Student. Adjustments may be needed regarding pace of instruction and linguistic complexity, as well as possibly in the content of instruction. Testimony of Sterling.
There was agreement that with respect to English language arts and math, Student requires a small classroom (5 to 8 children). There was disagreement, however, whether Student could make effective progress in a relatively large classroom (for example, 24 children) with additional supports, previewing and reviewing of material outside of the classroom, and use of scaffolding (educational supports). This part of the dispute relates to Student’s ability to make progress within inclusion classrooms for science and social studies in 6 th grade, and will be discussed separately below.
There was also disagreement as to whether Needham appropriately implemented this instructional model in its various educational programs that were proposed for Student for the 5 th and 6 th grades.
5 th grade classroom . Ms. George is currently and was during the 2005-2006 school year, the special education teacher for the substantially-separate, language-based 5 th grade classroom at the Eliot School. During that school year, there were four students in the classroom, and Ms. George was assisted by a full-time instructional aide and for one day a week, a speech-language pathologist.
Ms. George testified that her instruction throughout the day is structured, systematic, and sequential, that it is controlled for pace, that it teaches skills and strategies which are continually reinforced, that she uses multi-sensory teaching, and that her instruction is differentiated to accommodate different students within the classroom. She also testified how she works on fluency and automaticity throughout the day.
Within her classroom, Student’s instruction in the Wilson Reading program would have been 1:1 since he would likely be at a Wilson level higher than the others within the classroom. Testimony of George.
In December 2006, Needham’s educational consultant (Dr. Sterling) observed the 5 th grade substantially-separate classroom at the Eliot School for 3 ½ to 4 hours. She testified that she observed many examples of appropriate, language-based instruction, including teaching of academic rules, and constant teaching of vocabulary. For example, Dr. Sterling observed utilization of the Framing Your Thoughts program (a sequential and systematic program to develop an understanding of sentence structure) and the Wilson Reading program (sequential and systematic instruction regarding encoding and decoding strategies).
Dr. Sterling also observed careful, sequential teaching of reading comprehension, implementation of diagnostic prescriptive teaching strategies, a significant amount of multi-sensory teaching (combination of verbal and visual cues), and appropriate cuing of attention. She also observed students’ often making connections with what had been previously taught.
In interviewing Ms. George, Dr. Sterling was further persuaded that Ms. George’s instruction, as understood and planned by Ms. George, is sequential and systematic.
Dr. Sterling concluded that she found all of the components that she would expect to see in a language-based program. Dr. Sterling added that the level of instruction she observed was appropriate for a student with strong conceptual abilities, such as Student.
6 th grade classroom . Ms. Sabbey is currently the 6 th grade special education teacher in the substantially-separate, language-based program at the Pollard School. Ms. Sabbey testified that this year she is assisted by two full-time teaching assistants and for one day a week by a speech-language pathologist. This year, there are six students in her classroom, all of whom participate in the social studies and science inclusion classrooms.
Ms. Sabbey testified that her instruction is systematic and explicit, that she controls the pace and linguistic complexity of the instruction, that she uses multi-sensory teaching, and that she utilizes a diagnostic approach of daily reviewing the progress and needs of her students and then making adjustments accordingly. She noted that structure and sequencing in her instruction is ensured, in part, through the use of the Wilson Reading program and the John Collins writing program. She also explained the emphasis on fluency in the classroom and how what is taught in her classroom is reinforced within other contexts.
Ms. Sabbey explained that in one of her daily class periods, she reviews (prior to an inclusion class) and previews (after an inclusion class) material taught within the inclusion classrooms. She noted that science, in particular, is tactile and kinesthetic, and that it includes a significant amount of “hands-on” learning, making it relatively accessible to her students.
Within her classroom, Student’s instruction in Wilson Reading program would be 1:1 since he would likely be at a Wilson level higher than the others within the classroom. Testimony of Sabbey.
Ms. Sabbey observed Student twice at the Carroll School during the current school year. She noted that in science class in December 2006, Student was able to stay focused in the midst of distractions and his response delay was only a second or two. She opined that Student would “truly benefit” from her program at the Pollard School.
Needham’s psychologist (Dr. Miller) co-observed the Pollard Program with Parents’ experts, Dr. Prather and Dr. Singer. In addition, on January 16, 2007 Dr. Miller spent the entire day observing the program, speaking with the teachers, and reviewing their materials.
Dr. Miller testified that she observed the review of what had been taught in the science inclusion class during the prior period. She noted that the review served to expand upon materials already taught, and demonstrated well-integrated instruction.
Dr. Miller further testified that the Pollard language-based program, as a whole, would provide Student with an opportunity to make meaningful educational progress. She opined that Student would be able to make good use of the language-based program and inclusion classes so as to become a more efficient and independent learner.
Dr. Sterling observed the language-based program at the Pollard School for 5 hours on December 1, 2006. She testified that in the English language arts classroom, she observed teachers using reinforcement of direct instruction from the Wilson Reading program, a careful progression regarding the teaching of writing skills (including appropriate pre-writing techniques, writing a topic sentence, and teaching of editing skills that were later reinforced), utilization of a word bank for reference, and conversation at a level higher than the students’ writing abilities.
Credibility of experts and findings of fact . Needham presented two principal experts – Dr. Sterling and Dr. Miller. Dr. Sterling is a highly experienced educator who reviewed Student’s records and observed him at the Carroll School. Dr. Sterling’s experience includes previous consulting work with Carroll. She testified with candor and balance.18 Dr. Miller is an experienced psychologist who evaluated Student.19 It is not disputed that these two experts have ample understanding of (and would be able to identify during an observation) the essential ingredients of language-based instruction. Dr. Sterling gained a thorough understanding of the 5 th grade substantially separate classroom, and both Dr. Sterling and Dr. Miller gained a thorough understanding of the 6 th grade classroom. Both experts testified credibly in support of their conclusions that appropriate, language-based instruction was being provided in the 5 th and 6 th grade classrooms and that this instruction would have been appropriate for Student.
Ms. George and Ms. Sabbey are experienced teachers whose classrooms were established for the purpose of serving students with language-based learning disabilities, such as Student. Both teachers credibly testified regarding the implementation, within their classrooms, of the essential elements of language-based instruction.
On the basis of this evidence, I find that Needham provided credible and persuasive evidence that the 5 th grade and 6 th grade instruction provided in the Eliot and Pollard programs, respectively, was language-based and was appropriate for Student. In particular, I find that the 5 th and 6 th grade classrooms would have provided Student with instruction that is direct, explicit, strategy-based, consistent, sequential, and systematic in order to address appropriately Student’s language-based learning deficits.
Parents presented two principal experts – Dr. Prather and Dr. Singer – who testified that they did not see any language-based instruction in the 5 th or 6 th grade programs.20 Their testimony was based on significant experience and expertise regarding students with language-based deficits; they have significant knowledge of Student as result of their evaluations of him; and they observed the substantially-separate classrooms proposed by Needham.21 Although their testimony was credible, it did not persuade me that the testimony of the Needham witnesses was flawed. At best, Parents, through their experts, put on credible evidence that was as persuasive, but by no measure more persuasive, than Needham’s evidence. Thus, Parents did not sustain their burden of persuasion regarding this part of the case.
For these reasons, I find that Needham’s proposed language-based instruction for 5 th grade and 6 th grade was appropriate.
C. Inclusion Classrooms for Social Studies and Science
A significant part of this dispute is whether Student may be appropriately taught in a 6 th grade inclusion class for social studies and science, as proposed in Needham’s IEPs. Parents have significant concerns regarding this education model for their son.
Needham’s expert, Dr. Sterling, testified candidly and persuasively regarding the challenge of making this model work effectively for Student or any other language-impaired student. Dr. Sterling explained the necessity of a significant amount of collaboration between the small-group special education instruction and the inclusion instruction so that what is taught by the special education teachers is reinforced by the inclusion teacher – that is, material taught within the inclusion class must often be previewed (prior to the inclusion class) and reviewed (after the inclusion class) within the special education classroom, and scaffolding (i.e., educational supports) must be provided to assist with learning. The preview/review process serves to prepare for and reinforce the inclusion teaching, as well as to expand upon what is taught within inclusion. Dr. Sterling added that the pace of inclusion instruction may need to be slowed down, and ample opportunity provided for students who have a delayed response time to participate in a meaningful way. The inclusion teaching should be multi-modal, typically with visuals supporting verbal presentations. There must also be sufficient additional staffing within the inclusion classroom to provide individual support and assistance to the special needs students as needed. Testimony of Sterling.
Although Parents objected to the inclusion classes for both social studies and science, nearly all of their evidence focused on the social studies class. I therefore consider this class in greater detail. I also note that the science inclusion teacher did not testify.
Ms. Lyons teaches the 6 th grade social studies inclusion class that Student would have attended pursuant to Needham’s proposed IEPs. Ms. Lyons testified that this year she has 24 students, 8 of whom have IEPs. She is assisted by 2 or 3 full-time teaching assistants. Ms. Lyons testified that for students with language processing or other disabilities, her class provides a significant amount of “hands-on” and small group work. She explained how her instruction is structured, sequential, and consistent. She noted that there is a significant amount of differentiated instruction, allowing access by students with different learning needs. She testified that with respect to a majority of questions that she asks, she incorporates wait time, allowing students (who have a response delay) sufficient time to respond, with a wait time of 15 to 30 seconds (or occasionally longer). She testified that she incorporates a significant amount of verbal feedback and breaks into her instruction.
Ms. Lyons further testified that she uses the same skills and strategies in her classroom that are used in remedial teaching by Ms. Sabbey – for example, she follows the same format as the John Collins writing program. She also utilizes many of the templates from the special education classroom, and is frequently in communication with and co-planning with Ms. Sabbey and the other special education staff.
Ms. Lyons testified that she has reviewed Student’s records, attended two Team meetings at which he was discussed, and attended the evidentiary hearing in the present dispute. Based on her understanding of Student from this information, she opined that he would be successful in her social studies class.
On January 16, 2007, Needham’s psychologist (Dr. Miller) observed the inclusion science and social studies classrooms. In the social studies class, Dr. Miller found that each student had a study guide and template to work from, that the instructional content was at a high level, that the students were working on multi-sensory projects, and that the special education students had previewed the material that was being taught. She noted that Ms. Lyons walked around the room while speaking, that she spoke slowly and clarified as she went along, that she checked in with the special needs students, and that she gave them wait-time to respond.
In the science classroom, Dr. Miller observed that there were 22 students and one teacher with 2 teaching assistants. She observed that the class was broken up into groups of 3 or 4 students, there was multi-sensory instruction, and the special needs students each had an individual guide to work from. The teacher spoke slowly and asked clarifying questions, and consistently used repetition and review. Dr. Miller observed that there was beneficial interaction between the regular and special education students, with modeling of academic skills and socialization by the regular education students.
Dr. Miller opined that the pace and linguistic complexity of these classes was appropriate for language-based, learning disabled students, such as Student.
Needham’s educational consultant (Dr. Sterling) testified that she visited the inclusion classrooms at Pollard on December 1, 2006. She observed Ms. Lyons on a day when students were making presentations. Dr. Sterling found that Ms. Lyons spoke clearly and with authority, that all of the special education students functioned at a high level, which was substantially the same level as the regular education students although the special education students received greater support from Ms. Lyons and her aides.
Dr. Sterling further testified that in one of Ms. Sabbey’s special education classes, she observed review for an up-coming quiz to be given in one of the inclusion classes, review of what had occurred in social studies class, and vocabulary work. She found this class to provide appropriate instruction in previewing and generally allowed the students to be ready for what would happen later in an inclusion classroom. She also found appropriate reviewing and reinforcing of what had been taught. Dr. Sterling testified that these supports would likely be effective for Student in allowing him to access the inclusion curriculum in social studies and science.
I am persuaded, and I so find, that the essential ingredients necessary to make inclusion classes effective for Student are found with respect to the social studies and science inclusion classes that were offered Student for 6 th grade. These ingredients include previewing, reviewing, and scaffolding; monitoring pace of instruction; multi-modal instruction; careful coordination between the special education teachers and the inclusion teachers; and sufficient staffing within the inclusion classes to provide prompts and other assistance to Student.
In addition, the unrebutted testimony of the Needham witnesses was that if one were to conclude that Student could be properly supported and learn effectively within inclusion classes, the experience of learning with regular education peers would provide Student with important, added benefits. These benefits include (1) modeling for social, communication, and community skills, (2) the opportunity to practice and generalize Student’s skills in an integrated setting, and (3) preparing him to participate effectively in a large group setting both within and outside of formal education. It may also be important for a special needs student to affiliate with typical peers so that he does not identify himself by his disabilities. Dr. Miller and Dr. Sterling explained that these general benefits would likely apply to Student in particular. Testimony of Miller, Sterling, Singer, Lyons.22
In October or November 2006, Parents’ neuropsychologist (Dr. Prather) observed the proposed 6 th grade social studies class. In her testimony, Dr. Prather expressed concern that there was a significant amount of language used, as well as a number of slides. But, she did not rule out the appropriateness of this class for Student, instead stating that Student would not be able to keep up with the pace of the language and would likely “check out” unless there were a significant amount of previewing, reviewing, and scaffolding during and after the class.
Parents’ speech-language pathologist (Dr. Singer) testified that Student would be lost and confused most of the time in a classroom with typical peers. This is because of Student’s linguistic deficits, slow response time, and attentional deficits. A small classroom is necessary, according to Dr. Singer, in order to monitor the pace, load (quantity of concepts), and linguistic complexity of the instruction, and to provide specialized instruction techniques that address Student’s language needs. Dr. Singer observed the 6 th grade inclusion social studies class and concluded that Student would receive no benefit from it because he would not be able to keep up with the pace of instruction, and because the instruction was too linguistically intense to be accessible to Student. Dr. Singer opined that the science class would be inappropriate for Student for the same reasons. Yet, Dr. Singer acknowledged that some of her concerns could be addressed through the previewing and reviewing of material, although she continued to maintain that this mode of teaching is unnecessarily inefficient, as compared to instructing Student in manner that is accessible to him in the first instance.
In addition, Parents’ experts doubted Student’s ability to participate appropriately within an inclusion classroom because of his significant response delay – that is, the time it takes him to respond to a question or comment from another person. The testimony indicated that his response time may be from 1 or 2 seconds up to 2 minutes, depending on the context. For example, in a testing context, his response time has been up to 2 minutes. Testimony of Singer. It is only relevant to this dispute, however, to determine what Student’s response time would likely be within the classroom context. The best evidence regarding that question is the testimony of those witnesses who observed Student recently in a classroom at the Carroll School. Their testimony, taken together, is that his response delay is from 1 to 2 seconds up to 15 seconds. Testimony of Brown, Sabbey. I find that Needham’s inclusion classrooms would have had no difficulty accommodating this length of response delay.
Dr. Prather and Dr. Singer were persuasive that the inclusion model is not necessarily the most efficient or most effective in allowing Student to learn the content of social studies and science. Notwithstanding these disadvantages, Needham’s evidence was persuasive that the model, as implemented within the 6 th grade Pollard program, would likely allow Student access to the curriculum, and there would likely be significant, additional benefits to his participation in the integrated classrooms. Needham’s proposed inclusion model therefore comports with its responsibility under state and federal special education law to offer the least restrictive learning environment that is appropriate for Student.23
For these reasons, I find that Needham’s proposed 6 th grade inclusion classes were appropriate for Student.
D. Peer Groupings for 5 th and 6 th Grades
Details regarding the educational profiles of students in the proposed peer groupings are provided, above, in part IIIC of this Decision.
There was general agreement among the parties’ experts regarding the importance of grouping Student with appropriate classroom peers. However, there was disagreement regarding the essential characteristics of the profiles of the peers who would be appropriate for Student.
Dr. Singer and Dr. Prather testified that in order for Student to receive the language-based instruction that he requires to learn effectively, he must be placed with other children (1) who have at least average intelligence, (2) whose primary difficulties involve the same kind of language deficits that manifest in learning delays, and (3) who do not have any significant behavioral or emotional deficits in self-regulation. Dr. Prather and Dr. Singer opined that it is only through this careful grouping of peers that the teachers would be able to tailor their instruction sufficiently to provide systematic and strategic teaching that is consistent and sufficiently intensive to address effectively Student’s fundamental language needs.
Needham’s expert (Dr. Miller) differed in relatively few, yet important, ways regarding the appropriate peer grouping for Student. Dr. Miller testified that in order for Student to receive the language-based instruction that he requires to learn effectively, he must be placed with other children (1) who are not cognitively impaired across all areas of intelligence and who are able to access the curriculum, (2) who have severe language processing deficits, and (3) who have no substantial behavior deficits that would interfere with the learning of others. In other words, as compared to Parents’ witnesses, Needham suggested a somewhat broader range of cognitive and academic abilities among Student’s peers, as well as a somewhat broader definition of the appropriate language deficits for purposes of peer grouping. Testimony of George, Sabbey.
This dispute is analogous to one regarding methodology.24 Needham need not persuade me that its peer group criteria is the best or even the preferred grouping for Student, but only that the grouping criteria, as it would be specifically implemented for Student, is consistent with Needham’s overall responsibility to provide Student with an education program that is tailored to address his unique needs in a way reasonably calculated to enable him to make meaningful and effective educational progress – that is, to provide him with FAPE.
Testimony of the classroom teachers (Ms. George and Ms. Sabbey) reflected specific knowledge regarding the learning characteristics of the students as they responded to instruction during the school year. Ms. George and Ms. Sabbey testified that Student’s educational needs, goals, and accommodations are similar to those of students in the 5 th grade class last year, and the 6 th grade class this year. Although there would also have been differences between Student and his peers, the classroom teachers were persuasive that none of the students was disruptive or would have otherwise interfered with Student’s learning. They also opined that the range of abilities and skills of the peers was appropriate for Student. See part IIIC of this Decision.
Needham’s experts (Dr. Miller and Dr. Sterling) provided additional expert testimony that was credible and well-informed. Dr. Sterling testified that she reviewed the goals and benchmarks in the IEPs for the proposed peers and for Student. She opined that there was sufficient commonality in the goals and benchmarks so that she would expect that the instruction for the peers would also be appropriate for Student. Dr. Miller reviewed the individual IEPs and found each student to be an appropriate peer for Student, as further described within part IIIC of this Decision.
This evidence was persuasive, and I so find, as follows.
All of the students in the proposed peer groupings had significant language-based deficits and were appropriate to receive language-based instruction. All of the students had skill levels and cognitive abilities within an appropriate range for purposes of receiving instruction, with Student, within a single classroom, taking into account how the classrooms were actually staffed during the 5 th and 6 th grades. No student within the peer groupings had any significant emotional, behavioral, or learning needs that would likely have interfered with Student’s learning in the classroom.
The ultimate question at issue – that is, how broad a range of learning needs and skill levels is appropriate for Student’s peer groupings – can only be answered through expert testimony. It is not disputed that the proposed peers for each grade had a variety of learning needs and they were functioning at a variety of skill levels and cognitive abilities. Needham’s experts were persuasive that the range of learning needs and skill levels would have allowed Student an opportunity to make meaningful and effective educational progress in 5 th and 6 th grades.
Parents presented expert, credible testimony to the contrary.25 Through this testimony, Dr. Singer and Dr. Prather persuaded me that the proposed peer groupings would not have been ideal for Student. The heterogeneity of the students would have likely reduced the intensity and consistency of the instruction for Student. However, Parents’ experts did not persuade me that the opinions of the Needham experts’ opinions (that Student would have the opportunity to make appropriate educational progress with these peers) were flawed. Parents provided credible testimony, but it was no more persuasive – and with respect to the issue of potential disruptiveness of students was less persuasive – than Needham’s expert testimony. Consequently, Parents did not overcome their burden of persuasion regarding this part of the dispute.
For these reasons, I find that the proposed peer groupings were appropriate for Student.
E. Additional Issues: Math, 1:1 Instruction, and Electives
Math . It is not disputed that Student has excellent math reasoning skills, while scoring significantly lower in numeric operations, and still lower in math fluency. This wide disparity in scores reflects that Student would be able, conceptually, to do well in a grade-level, regular education math class but for his severe fluency and automaticity deficits that would interfere with his accessing the curriculum. Testimony of Prather, Miller; exhibits S-10, S-34.
Prior to January 2007, Needham proposed to address Student’s math needs within the substantially-separate, language-based classroom. Exhibits S-27, S-28.
In January 2007, the IEP Team re-considered Student’s math needs and how they should be met. The Needham members of the Team proposed that Student receive a 1:1 math tutorial, for the purpose of addressing his fluency deficits through scaffolding and multi-sensory teaching; and at the same time, allowing Student to work at grade level with respect to content. The intent, as explained by Dr. Miller in her testimony, was to provide this tutorial to Student for a period of time and assess his progress, with the hope that with improved fluency, Student could eventually be placed in an inclusion math class. Testimony of Miller, Sabbey; exhibit S-42.
Parents provided evidence regarding the inadequacy of the proposed math class only with respect to 6 th grade. Dr. Singer testified, and it was not disputed, that the math instructional materials used in the Pollard language-based classroom were well below Student’s conceptual abilities. Testimony of Singer, Exhibit (old) S-34.
Based on this evidence, I find that Needham’s proposed 6 th grade math class was not appropriate until January 2007 when the Team decided to offer Student a 1:1 tutorial as described above.
1:1 instruction . Dr. Prather and Dr. Singer testified that a 1:1 tutorial teaching approach for Student (as proposed for math post-January 2007 and for Wilson Reading) would disadvantage Student. They explained that learning from peers is important for Student for a variety of reasons – perhaps most importantly, he sometimes “runs out of steam” in the classroom, thereby making it difficult for him to continue to participate effectively on his own. However, within a group of students, he can continue to benefit from watching and listening to his peers.
Notwithstanding the undisputed educational importance of Student’s being taught with other students, I was persuaded by Dr. Miller’s testimony, together with the relatively small amount of proposed 1:1 instruction for Student in 5 th and 6 th grade, that the 1:1 instruction would not be so extensive as to present a substantial impediment to Student’s opportunity to make educational progress. Accordingly, I find that the amount of proposed 1:1 instruction would not likely preclude the provision to Student of FAPE.
Electives . A final concern focused on Student’s limited access to elective courses. Dr. Singer testified that a limited opportunity to take electives would disadvantage Student. She explained that, without elective courses, Student would be asked to do things, throughout the day, that are difficult for him due to his language-based deficits. Electives allow Student “down time” from this demanding routine, so that he can return to the academic courses more refreshed, and also provide a useful balance to the academic courses.
Needham’s 6 th grade special education teacher (Ms. Sabbey) in her testimony echoed the importance of allowing students, in general, the opportunity to participate in at least one elective other than physical education. She opined that the IEP Team could consider using the physical education block for electives during two out of three trimesters.
I was persuaded by Dr. Miller that Student’s opportunity to participate in electives should not be a “primary” consideration in determining Student’s placement. I find that although Student’s limited opportunity to participate in electives has educational importance, there was no credible evidence that this would preclude his opportunity to receive FAPE.
I conclude that all of the IEPs calling for substantially-separate, language-based instruction for the 2005-2006 and the 2006-2007 school years are reasonably calculated to provide Student with a free appropriate public education in the least restrictive environment, except with respect to the proposed instruction for math for the first half of 6 th grade.
I will consider below in part VII of this Decision whether Parents are entitled to reimbursement for part or all of their Carroll School expenses as a result of Needham’s failure to propose an appropriate math class for part of 6 th grade.
VI. SUMMER SERVICES
The state special education regulations utilize a regression standard to determine whether a summer program may be appropriate:
An extended year program may be identified if the student has demonstrated or is likely to demonstrate substantial regression in his or her learning skills and/or substantial difficulty in relearning such skills if an extended program is not provided.26
The federal special education regulations employ a FAPE standard:
(a) General . (1) Each public agency shall ensure that extended school year services are available as necessary to provide FAPE, consistent with paragraph (a)(2) of this section. (2) Extended school year services must be provided only if a child’s IEP team determines, on an individual basis, in accordance with §§300.320 through 300.324, that the services are necessary for the provision of FAPE to the child.27
A number of courts have interpreted the federal regulatory standard to mean that summer services are appropriate when the benefits accrued to a disabled student during a regular school year will be significantly jeopardized if he is not provided with an educational program during the summer months, with the parameter of requisite summer services defined by what is necessary to avoid this outcome.28
Through its proposed IEPs, Needham offered the following services for the summer of 2005 as well as for the summer of 2006: Wilson decoding/encoding tutoring twice per week for eight weeks for the purpose of preventing substantial regression of skills. Exhibits S-14, S-27.
The appropriateness of an IEP for the school year and the appropriateness of an IEP for the summer are judged by different standards. Parents presented evidence in support of their claims regarding the alleged failure of Needham’s IEPs to provide FAPE during the school year. However, Parents did not present evidence that the summer services offered by Needham would violate the above-referenced state and federal standards regarding summer services.
In addition, the parties entered into an agreement with respect to services for the summer of 2005, whereby Needham would reimburse Parents for educational expenses in the amount of $935. On its face, this agreement resolves the rights and responsibilities of the parties regarding services for the summer of 2005, giving Parents no further rights to services. No additional evidence was presented on this point. Exhibit S-19.
All of the federal courts that have considered the question have concluded that a special education hearing officer is to consider the terms of an agreement, as those terms relate to the parties’ rights and responsibilities under the IDEA.29 I have discussed this issue in greater depth in other decisions and rulings.30
For these reasons, I find that Parents have not met their burden of persuasion regarding the appropriateness of Needham’s proposed IEPs as they pertain to services for the summer of 2005 and the summer of 2006. I further find that the claims regarding the summer of 2005 are foreclosed by agreement.
Accordingly, I find in favor of Needham on the issue of reimbursement for services for the summer of 2005 and the summer of 2006.
If a school district fails in its obligation to provide FAPE to a student with a disability, parents may enroll their son or daughter in a private school and seek retroactive reimbursement for the cost of the private school.31
I have previously determined that the IEPs proposed by Needham were deficient only with respect to the proposed math program for the first half of the 2006-2007 school year. I now consider whether Parents are entitled to reimbursement of part or all of their out-of-pocket expenses for the Carroll School during this school year. Needham stipulated that, for purposes of this litigation, the Carroll School is an appropriate placement for Student.
Determination of reimbursement is a matter of equitable relief.32 For these purposes, I note the following considerations, all of which argue in favor of Needham.
Parents are seeking reimbursement for the entire educational placement at the Carroll School, as compared, for example, to reimbursement or compensation with respect to instruction for a particular subject.
Although of obvious importance to Student, the issue of his math class for half of one school year is not a significant part of the present dispute either in relation to the total curriculum or with respect to the issues in dispute. The principal points of contention with respect to the 2006-2007 school year (as well as the previous school year) are whether Needham has proposed appropriate language-based instruction to remediate Student’s language deficiencies, whether there is an appropriate peer group within which Student may learn, and whether the social studies and science inclusion classes are appropriate for Student. Needham has prevailed on all of these issues.
From Parents’ perspective, even the math class offered as of January 2007 was not appropriate for their son. Parents have also made reasonably clear throughout this litigation that whether or not their son was offered an appropriate math class was not determinative to their decision to place him at Carroll School.
I also credit Needham for recognizing the need to adjust Student’s proposed math class in January 2007 in order to allow him to work at grade level with respect to content, but at the same time, receive the language supports necessary to access this curriculum.
For all of these reasons, I find that the equities do not favor reimbursement for part or all of Parents’ expenses at the Carroll School as a consequence of Needham’s failure to offer an appropriate math class for the first half of the current school year.
I therefore deny all of Parents’ reimbursement claims.
The disputed individualized education programs (IEPs) for the 2005-2006 and the 2006-2007 school years, as well as for the summers of 2005 and 2006, are reasonably calculated to provide Student with a free appropriate public education in the least restrictive environment, except with respect to the proposed instruction for math for the first half of 6 th grade.
With respect to the inappropriate math services proposed by Needham, the equities do not favor reimbursement of Parents’ educational expenses.
Parents are not entitled to reimbursement of any of their educational expenses for the 2005-2006 and 2006-2007 school years, or for the summers of 2005 and 2006.
Parents are not entitled to a current IEP placing their son at the Carroll School
By the Hearing Officer,
Dated: March 6, 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 of Special Education Appeals contending that the decision is not being implemented and setting out the areas of non-compliance. The Hearing Officer may convene a hearing at which the scope of the inquiry shall be limited to the facts on the issue of compliance, facts of such a nature as to excuse performance, and facts bearing on a remedy. Upon a finding of non-compliance, the Hearing Officer may fashion appropriate relief, including referral of the matter to the Legal Office of the Department of Education or other office for appropriate enforcement action. 603 CMR 28.08(6)(b).
Rights of Appeal
Any party aggrieved by a decision of the Bureau of Special Education Appeals may file a complaint in the state superior court of competent jurisdiction or in the District Court of the United States for Massachusetts, for review of the Bureau decision. 20 U.S.C. s. 1415(i)(2).
An appeal of a Bureau decision to state superior court or to federal district court must be filed within ninety (90) days from the date of the decision. 20 U.S.C. s. 1415(i)(2)(B).
In order to preserve the confidentiality of the student involved in these proceedings, when an appeal is taken to superior court or to federal district court, the parties are strongly urged to file the complaint without identifying the true name of the parents or the child, and to move that all exhibits, including the transcript of the hearing before the Bureau of Special Education Appeals, be impounded by the court. See Webster Grove School District v. Pulitzer Publishing Company , 898 F.2d 1371 (8th Cir. 1990). If the appealing party does not seek to impound the documents, the Bureau of Special Education Appeals, through the Attorney General’s Office, may move to impound the documents.
Record of the Hearing
The Bureau of Special Education Appeals will provide an electronic verbatim record of the hearing to any party, free of charge, upon receipt of a written request. Pursuant to federal law, upon receipt of a written request from any party, the Bureau of Special Education Appeals will arrange for and provide a certified written transcription of the entire proceedings by a certified court reporter, free of charge.
This version of the Decision is identical to the original version of the Decision, except that the ID numbers of nonparty students have been redacted (with substituted ID numbers provided by the Hearing Officer) in order to protect students’ privacy. See part IIIC of Decision. This redacted version of the Decision (rather than the original version of the Decision) is intended to be used whenever the Decision is made available to the public.
Exhibits P-1 through P-26, and S-1 through S-48 were jointly filed. By agreement of the parties, additional exhibits P-27, P-28, and P-29 (resumes of Dr. Prather, Dr. Singer, and Mr. Brown, respectively) were also admitted into the record.
20 USC 1400 et seq . Congress reauthorized and amended the IDEA in 2004, with changes to take effect on July 1, 2005. Unless otherwise indicated, references in this Decision to the IDEA are to IDEA 2004.
MGL c. 71B.
20 USC 1400(d)(1)(A). See also 20 USC 1412(a)(1)(A); MGL c. 71B, ss. 2, 3.
Bd. of Educ. of the Hendrick Hudson Central Sch. Dist. v. Rowley , 458 U.S. 176, 182 (1982); Honig v. Doe, 484 U.S. 305, 311-12 (1988) .
See , e.g ., Lt. T.B. ex rel. N.B. v. Warwick School Committee , 361 F.3d 80, 83 (1 st Cir. 2004) ; In re: Arlington , BSEA # 02-1327, 37 IDELR 119, 8 MSER 187, 193-195 (SEA MA 2002) (collecting authorities).
Roland M. v. Concord Sch. Comm., 910 F.2d 983, 992 (1st Cir. 1990).
E.g., 20 USC 1400(d)(1)(A) (purpose of the federal law is to ensure that children with disabilities have FAPE that “emphasizes special education and related services designed to meet their unique needs . . . .”); 20 USC 1401(25) (“special education” defined to mean “specially designed instruction . . . to meet the unique needs of a child with a disability . . .”); Honig v. DOE , 484 U.S. 305, 311 (1988) (FAPE must be tailored “to each child’s unique needs”); Smith v. Fitchburg Public Schools , 401 F.3d 16 (1 st Cir. 2005) (“IDEA was enacted ‘to ensure that all children with disabilities have available to them a free appropriate public education … designed to meet their unique needs,’” quoting 20 U.S.C § 1400(d)(1)(A)) .
Lenn v. Portland School Committee , 998 F.2d 1083, 1090 (1 st Cir. 1993). See also 20 USC 1400(d)(4) (purpose of the federal law is “ to assess, and ensure the effectiveness of, efforts to educate children with disabilities”) ; Roland v. Concord School Committee , 910 F.2d 983, 991 (1 st Cir. 1990) (“Congress indubitably desired ‘effective results’ and ‘demonstrable improvement’ for the Act’s beneficiaries”); Burlington v. Department of Education , 736 F.2d 773, 788 (1 st Cir. 1984) (“objective of the federal floor, then, is the achievement of effective results–demonstrable improvement in the educational and personal skills identified as special needs–as a consequence of implementing the proposed IEP”); Manchester-Essex Reg’l Sch’l Dist. Sch’l Comm. v. Bureau of Special Education Appeals of the Mass. Dept. of Education , CA No. 05-10922-NMG (D.Mass. September 27, 2006) (Gorton, J.) (utilizing the First Circuit standard quoted in the text above).
603 CMR 28.05(4)(b) (IEP must be “designed to enable the student to progress effectively in the content areas of the general curriculum”); 603 CMR 28.02(18) (defining Progress effectively in the general education program ). The IDEA incorporates state educational standards into the FAPE definition. 20 USC 1401(9)(b).
Rowley, 458 U.S. at 192. Several federal circuit courts have similarly concluded that the IEP must provide a student with meaningful access to education or that the IEP must be reasonably calculated to enable the child to receive meaningful educational benefits. E.g ., Frank G. v. Board of Educ. of Hyde Park, — F.3d —-, 2006 WL 2077009 (2 nd Cir. 2006); Deal v. Hamilton County Board of Education, 392 F.3d 840 (6 th Cir. 2004); Shore Regional High School Bd. of Educ. v. P.S. , 381 F.3d 194, 198 (3d Cir. 2004); Houston Independent School District v. Bobby R ., 200 F.3d 341 (5 th Cir. 2000) . See also D.F. and D.F. v. Ramapo Central School District, 348 F.Supp.2d 92 ( S.D.N.Y. 2004) ( “’Minimal progress’ and ‘limited progress’ is not evidence of ‘meaningful’ access to education. ‘Minimal’ and ‘limited’ progress is evidence of opportunity for only trivial advancement.”).
MGL c. 71B, s. 1 (definition of “special education”). See also MGL c. 69, s. 1 (“paramount goal of the commonwealth to provide a public education system of sufficient quality to extend to all children the opportunity to reach their full potential ”); 603 CMR 28.01(3) (identifying the purpose of the state special education regulations as “to ensure that eligible Massachusetts students receive special education services designed to develop the student’s individual educational potential”). See also Mass. Department of Education’s Administrative Advisory SPED 2002-1: Guidance on the change in special education standard of service from “maximum possible development” to “free appropriate public education” (“FAPE”), Effective January 1, 2002 , 7 MSER Quarterly Reports 1 (2001) (appearing at www.doe.mass.edu/sped) (Massachusetts Education Reform Act “underscores the Commonwealth’s commitment to assist all students to reach their full educational potential”).
Lenn , 998 F.2d at 1086.
Id . See also Rowley at 197, n.21.
See, e.g ., Lt. T.B. ex rel. N.B. v. Warwick Sch. Com., 361 F.3d 80, 83 (1st Cir. 2004) (“IDEA does not require a public school to provide what is best for a special needs child, only that it provide an IEP that is ‘reasonably calculated’ to provide an ‘appropriate’ education as defined in federal and state law.”).
Schaffer v. Weast , 546 U.S. 49, 126 S. Ct. 528, 163 L. Ed. 2d 387 (2005) (burden of persuasion in an administrative hearing challenging an IEP is placed upon the party seeking relief; a party who has the burden of persuasion “ loses if the evidence is closely balanced” ).
Since 2005, Dr. Sterling has been the Director of the Lowell Teacher Academy, which is responsible for the design and implementation of a comprehensive induction program new to the city of Lowell. Her training includes a full year clinical training program at the Massachusetts General Hospital Language Disorders Unit. She has conducted over 1,000 classroom observations. I note, in particular, Dr. Sterling’s extensive experience as an educator and consultant to public and private programs, including consultation to the Carroll School from 1978 to 1982. Testimony of Sterling; exhibit S-45 (resume).
Dr. Miller has a significant amount of experience in a variety of settings as a psychologist. She also has completed training for purposes of conducting neuropsychological evaluations. She began her employment as a school psychologist for Needham in September 2006, and conducted a neuropsychological evaluation of Student in October and November 2006. Testimony of Miller; exhibit S-35, S-45 (resume).
In June 2006, Dr. Singer observed the 5 th grade program. She testified that in her observation of a writing lesson, she did not see any practices that would be defined as language-based instruction. She did not see any consistent routine or reinforcement of instruction. In Dr. Singer’s opinion, none of the students were able to produce the desired result of a written paragraph. Dr. Singer concluded that this classroom would not meet Student’s need for appropriate language-based instruction.
In October or November 2006, Dr. Prather observed the proposed 6 th grade English language arts class and social studies class. She explained that she did not observe a coherent, consistent, and integrated teaching approach with respect to language skills being taught and reinforced throughout the day. She explained that part of the difficulty is that Student would not be with the same peer group in his content area courses.
Dr. Singer observed the 6 th grade program in December 2006. She testified that the entire class period was devoted to developing adjectives, and this was done in a completely de-contextualized manner (that is, the language being taught was not anchored to anything concrete), which is a significant concern regarding appropriate language-based instruction. She found that the verbal scaffolding used by the teacher was not effective. After speaking with the teacher, Dr. Singer concluded that there was no core curriculum that would serve as the backbone of instruction.
Dr. Prather conducted a neuropsychological evaluation of Student in October 2003 and a follow-up of Student in May 2005. Dr. Prather has completed neuropsychological evaluations of approximately 150 children with disabilities similar to those of Student. In addition to having conducted a significant number of evaluations for parents, she has provided consultation to a number of school districts. Testimony of Prather; exhibits S-10, P-27 (resume).
Dr. Singer conducted a speech-language evaluation of Student on February 25, 2005, a speech-language re-evaluation of Student in June 2006, and an observation of Student at the Carroll School in October 2006. Dr. Singer’s impressive credentials are evidenced, in part, by the fact that she has evaluated more than 500 children with disabilities similar to those of Student. In addition to having conducted a significant number of evaluations for parents, she has provided consultation and training to a number of school districts. Testimony of Singer; exhibits S-9, S-29, P-28 (resume).
The First Circuit Court of Appeals has made clear that “[m]ainstreaming may not be ignored even to fulfill substantive educational criteria. The desirability of mainstreaming must be weighed in concert with the Act’s mandate for educational improvement.” Rafferty v. Cranston Public Schools , 315 F.3d 21 (1 st Cir. 2002), quoting Roland v. Concord School Committee , 910 F.2d 983, 992-993 (1 st Cir. 1990).
20 USC 1412(a)(5)(A); 34 CFR 300.114; MGL c. 71B, ss. 2, 3; 603 CMR 28.06(2)(c).
A school district is generally given discretion to determine the appropriate methodology so long as the selected methodology is likely to allow Student the opportunity to receive FAPE. Compare Deal v. Hamilton County Bd. of Educ., 392 F.3d 840, 862 (6th Cir. 2004) (“there is a point at which the difference in outcomes between two methods can be so great that provision of the lesser program could amount to denial of a FAPE”) with E.S. v. Independent School District, No. 196 , 135 F.3d 566 (8 th Cir. 1998) (“As long as a student is benefiting from her education, it is up to the educators to determine the appropriate methodology.”).
When she observed the 5 th and 6 th grade classrooms and reviewed the IEPs for the proposed peers for Student, Dr. Singer found a group of heterogeneous students who, in her opinion, would not be an appropriate peer group for Student, including students with behavior deficits, self-regulatory deficits, and cognitive deficits in 5 th grade. She further explained that the 6 th grade students had a range of deficits that included intellectual impairment, autism, post-traumatic stress disorder, emotional regulation deficits, and behavioral regulation deficits. She testified that these students would likely be distracting and disruptive to Student. Equally important, many of these students, according to Dr. Singer, would have instructional needs different than Student, making it not possible to provide Student with the consistency and intensity of instruction that he requires in order to make sufficient progress.
Similarly, with respect to her observation of the 6 th grade English language arts class, Dr. Prather testified that it was a heterogeneous group of students, with one student having social pragmatic needs that were distracting, a wide range of intellectual needs ranging from well below average to above average, and different achievement needs. She stated that Student is at least a year or two ahead of all of the students in this class with respect to reading vocabulary and content. She opined that with this degree of differences among the group, as well as significant differences between Student and those in the group, there could not be sufficient structure, consistency, reinforcement, and intensity of instruction for Student to make effective progress.
603 CMR 28.05(4)(d)1.
34 CFR 300.106. Although the federal FAPE standard may, arguably, be broader than the Massachusetts regression standard, the commentary to the 2006 federal regulations appears to take the position that states may properly use regression as their criteria for eligibility for extended year services. Federal Register, vol. 71, no. 156, August 14, 2006, page 46582, 3 rd column.
Kenton County School District, v. Hunt , 384 F.3d 269, (6 th Cir. 2004); MM by DM and EM v. School Dist. of Grenville County , 37 IDELR 183 (4 th Cir. 2002); Johnson v. Indep. Sch. Dist. No. 4, 921 F.2d 1022, 1028 (10th Cir. 1990); Alamo Heights Indep. Sch. Dist. v. State Bd. of Educ. , 790 F.2d 1153, 1158 (5th Cir. 1986). Other courts have utilized a regression standard. E.g., Cordrey v. Euckert, 917 F.2d 1460, 1474 (6th Cir. 1990).
Chardon Local School District Board of Education v. A.D. , 45 IDELR 182 (N.D.Ohio 2006) ( “this Court agrees with the IHO [impartial hearing officer] that it is wholly appropriate to treat alleged violations of the terms of the instant Mediation Agreement [which was attached to the IEP and therefore part of the educational record] within the scope of [the hearing officer’s] due process review”); Linda P. v. State of Hawaii, Dep’t of Education, 106 LRP 45612 (D. Hawaii 2006) (“hearings officer correctly found and concluded that the claims were covered by a binding and enforceable settlement agreement”); Board of Education of Township High School District No. 211 v. Michael R. and Diane R., 2005 U.S. Dist. LEXIS 17450, 105 LRP 40802 (N.D. Ill. 2005) (issue of whether the settlement agreement was breached was an issue to be decided by the Hearing Officer); S.A.S. v. Hibbing Public Schools, Independent School District No. 701, Civil No. 04-3204 , 105 LRP 33115, 2005 U.S. Dist. LEXIS 13437 (D.Minn. 2005) (plain language of settlement agreement prevents plaintiffs from raising any waived claims in an administrative or judicial forum); Joan R. Barrington Public Schools, 2004 U.S. Dist. LEXIS 22589, CA 02-282ML (D.R.I. 2004) (federal court affirmed Hearing Officer’s decision that school district must pay for part of student’s placement pursuant to an implied contract between the parties); Steward v. Hillsboro School District No. 1J , CV 00-835-AS, 2001 WL 34047100 (D.Oregon 2001) (“ settlement agreement that has been breached by the school district is a ‘complaint’ which, under the IDEA and its regulations, must first be presented to the appropriate administrative body”) ; (D.Oregon 2001); Kegel v. The Santa Fe Public Schools , CA 00-1806 JP/RLP (ACE), LoisLaw Federal District Court Opinions (D.N.M. 2001) (collecting cases) (“prevailing, and most sensible, view is that post-resolution enforcement claims must comply with IDEA’s administrative process”); Mr. J. v. Board of Education, 98 F. Supp.2d 226 (D.Conn. 2000) (“[p]ublic policy dictates that settlement agreements should be enforced” by hearing officer) ; Tyson v. Kanawha County Bd. of Ed ., 22 F.Supp.2d 535, 537 (S.D. W. V. 1997) (court dismissed claims for failure to exhaust administrative due process since “issue of whether a breach existed of any settlement between the parties is itself an entire new issue to be complained of and put through the proper administrative process”) ; W.L.G. v. Houston County Board of Education , 975 F.Supp. 1317, 1328-1329 (M.D. Ala. 1997) (“ claim that the school board has failed to comply with the settlement agreement is essentially a ‘complaint,’ which, under the IDEA, first should be presented in a due-process hearing ”).
In Re: Boston Public Schools , BSEA # 06-3836, 12 MSER 161, 106 LRP 34383 (MA SEA 2006); In Re: Norwood Public Schools , BSEA # 06-0214, 11 MSER 161, 105 LRP 41921 (MA SEA 2005); In Re: Boston Public Schools & Waltham Public Schools , BSEA # 02-4323, 8 MSER 396, 102 LRP 39658 (SEA MA 2002) (ruling).
20 USC 1412 (a)(10)(C)(ii); Sch. Comm. of Burlington v. Dep’t of Educ., 471 U.S. 359, 370 (1985).
Diaz-Fonseca v. Commonwealth of Puerto Rico , 451 F.3d 13 (1 st Cir. 2006); Roland M. v. Concord Sch. Comm., 910 F.2d 983, 999 (1st Cir. 1990).