Student v. Springfield Public Schools – BSEA # 06-2169

<br /> Student v. Springfield Public Schools – BSEA # 06-2169<br />

COMMONWEALTH OF MASSACHUSETTS

SPECIAL EDUCATION APPEALS

Student v. Springfield Public Schools

BSEA #06-2169

DECISION

This decision is issued pursuant to M.G.L. c. 71B and 30A, 20 U.S.C. § 1401 et seq., 29 U.S.C. § 794, and the regulations promulgated under said statutes.

A hearing was held on May 15, 16, 17, and 22, 2006 at the office of Catuogno Court Reporting, 1414 Main Street, Springfield, Massachusetts and 446 Main Street, Worcester, Massachusetts, before Catherine M. Putney-Yaceshyn, Hearing Officer.

PROCEDURAL HISTORY

Parent requested a hearing on November 1, 2005 and a hearing was scheduled to occur on December 6, 2005. On November 28, 2005, Springfield requested a postponement which was allowed. The hearing was rescheduled to occur on January 5 and 6, 2006. On January 3, 2006, the case was reassigned to hearing officer William Crane. There were telephone conference calls on January 4 and 9, 2006. On April 4, 2006, the hearing was rescheduled to occur on May 15, 16, and 17, 2006. On May 9, 2006 the case was reassigned to hearing officer Catherine Putney-Yaceshyn. The hearing was held on May 15, 16, 17, and 22, 2006. On May 24, 2006, the hearing officer issued an Order allowing the parties’ request to submit written closing arguments by June 5, 2006. On June 1, 2006, Parent’s counsel requested a one-day extension of time to file the closing arguments. On June 5, 2006, the hearing officer allowed Springfield’s assented to request to extend the deadline for submitting closing arguments until June 9, 2006, due to counsel’s illness. On June 7, 2006, the hearing officer allowed Springfield’s request to extend the deadline for submission of closing arguments until June 12, 2006 due to counsel’s continued illness. Parent submitted her closing argument on June 12, 2006. Springfield submitted its brief on June 13, 2006 and the record closed at that time1 .

Those present for all or part of the Hearing were:

Student

Student’s mother

Lori Chartier Parent’s educational consultant

Joanne Welch Supervisor for Learning Center Programs, East Longmeadow Public Schools

Claire Thompson Attorney for Parent

Sandra M. Hill Special Education Director, Springfield Public Schools

Chris Lane Evaluation Team Leader, High School of Commerce, Springfield Public Schools

Mary Birks Supervisor of Special Education, Springfield Public Schools

Mary Lynn Siciliano Evaluation Team Leader, Springfield Public Schools

Elizabeth O’Donnell Special Education Teacher, Springfield Public Schools

Lisa Dakin Special Education Teacher, Springfield Public Schools

Carol Plaut Curtis Blake Center tutor

Mike DaFonseca Special Education Teacher, Springfield Public Schools

Regina W. Tate Attorney, Springfield Public Schools

Catherine M. Putney-Yaceshyn Hearing Officer

The official record of this hearing consists of Springfield Public Schools’ exhibits marked S-1 through S-72 and Parent exhibits marked P-1 through P-49 and approximately 22 hours of recorded oral testimony.

ISSUES

1. Whether the IEP proposed for Student for September 2005-June 2006 school year was reasonably calculated to provide Student with a free appropriate public education in the least restrictive environment.

2. Whether the IEPs proposed for the period from October 5, 2005 – October 4, 2006 were reasonably calculated to provide Student with a free appropriate public education in the least restrictive environment.

3. Whether the Student is entitled to compensatory education.

4. Whether placement at the Curtis Blake School for summer 2006 is appropriate
and necessary to compensate Student for any denial of FAPE.2

5. Whether the Learning Center at East Longmeadow High is reasonably calculated to provide Student with a free appropriate public education in the least restrictive environment.

SUMMARY OF THE EVIDENCE

1. The student (hereinafter, “Student”) is a 15-year-old ninth grade student residing in Springfield, Massachusetts, within the Springfield Public Schools (hereinafter, “Springfield.”) She attends the High School of Commerce in Springfield. (P-9, S-13) Student has a full scale IQ of 58, meets the criteria for a Student with ADHD, for which she takes medication, and has a history of neurofibromatosis. Recently Student scored at the 6.4 grade level on the Slosson Oral Reading Test. (P-9, S-13) She scored at the primer level in reading comprehension and at the 4.0 grade level in math. She demonstrates strengths in class participation and always has something to add to class discussions. (P-13, S-16) Overall, Student’s IOWA scores have been in the low range and MCAS scores in the warning category. On the WISC-IV she scored in the extremely low range in verbal comprehension (67), working memory (62), and processing speed (59) and in the borderline range in perceptual reasoning (71). (P-7, S-50) She has recently been found eligible for services from the Department of Mental Retardation. (P-35)

2. Student’s most recent “Psycho-Educational Evaluation” was done by Dr. C. Azeez on May 13 and 25, 2004. Dr. Azeez reported that Student’s attentional focus was good, she put forth her best effort and was “tenacious and diligent” with the exception of the writing tasks on which she was extremely frustrated. Her speech was typically clear, but slurred or mumbled at times. She had difficulty with word retrieval and showed a tendency to be “chatty.” On the WISC-IV she attained a full scale IQ score of 58, in the extremely low range. Verbal Comprehension3 (67), Working Memory4 (62), and Processing Speed5 (59) were also in the extremely low range. Perceptual Reasoning6 (71) was in the borderline range. Dr. Azeez noted that Student “may experience great difficulty in keeping up with her peers in a wide variety of situations that require age-appropriate thinking and reasoning abilities.” (P-7, S-50)

Dr. Azeez explained that Student’s ability to sustain attention, concentrate, and exert mental control is in the Extremely Low range. Her ability to process simple or routine visual material without making errors is also within the extremely low range. On the WIAT-II Student’s composite standard scores were: Mathematics 52 and Written Language: 757 . Dr. Azeez concluded that Student performed better on tasks that required her to read a series of printed words than on tasks that assessed her ability to read sentences and paragraphs and answer questions about what she read. Her Word Reading score was in the Low Average range and her Reading Comprehension score was in the Extremely Low range. He noted Student’s use of “great strategies” such as referring back to a reading passage to answer a question and applying phonetic decoding skills for unknown words. In mathematics Student scored in the Extremely Low range. Dr. Azeez noted that Student’s written language skills are diverse and may not be adequately summarized by a single number. She performed much higher on tasks that required her to correctly spell verbally presented words than on tasks that required her to generate words within a category, generate sentences to describe visual cues, combine sentences, and compose an organized, persuasive essay on a given topic. Because of her variability, the Written Language Composite score may not be the best summary of her overall skills in writing. Her skills in Written Expression are within the Extremely Low range and her Spelling subtest score is in the Low Average range. (P-7, S-50)

Dr. Azeez summarized that Student has been diagnosed with Neurofibromatosis, ADHD, and cognitive-learning problems. Her academic skills ranged from second to fourth grade levels on the academic achievement testing. He noted that although her progress is slow, she continued to make gains academically and had gone up in all of her academic tests since her last evaluation. He noted that her emerging profile “is of a student who has cognitive-intellectual limitations.” He stressed the importance of the Team’s focus on areas of personal strength, as some intellectual-cognitive areas tested at the low end of average. (P-7, S-50)

3. Dr. Azeez made a number of recommendations for Student including encouraging her to regularly and frequently review information that she is required to remember. He recommended providing Student with concrete visual cues to help her establish meaningful associations in learning new material. He encouraged teachers to make tasks concrete when possible by providing manipulatives, pictures, models, diagrams, and graphs. He recommended the use of graphic organizers to assist with written expression. In math, he recommended additional drill and practice in number facts and using a calculator to check work. He recommended the use of manipulatives. In reading, he encouraged teachers to use words at Student’s level of verbal development and match assignments to her reading level. He also recommended that she be allowed extra time on reading tasks. He recommended discussing the subject matter of the assignment prior to reading as well as pre-reading and end-of-chapter review. He recommended that she be taught specific comprehension strategies. (P-7, S-50)

4. Lisa Dakin was Student’s seventh grade Student at the Kiley Middle School. She and another teacher, Amy Murphy, taught all of Student’s classes in one large classroom with a divider between them. She reported that during the seventh grade Student presented with cognitive impairments, had significant difficulty with reading comprehension, and struggled to perform higher level thinking skills. She described Student as being very trusting and naïve. She believed Student could be vulnerable in social situations because she was very literal in her comprehension and did not pick up on body language and social cues. She thought Student required social skills training and lots of repetition throughout the day. She reported no safety issues in the seventh grade and does not recall any reports of Student having difficulty in her mainstream specials. She never recommended that Student be placed in an inclusion setting and does not view Student as “college bound.” (Dakin)

5. Elizabeth O’Donnell testified that she is certified in moderate special needs from nursery school to ninth grade. She has taught since 1987 and has been at Kiley Middle School since 1995 in a behavior class, a student support setting and in self-contained special education classrooms. She was Student’s eighth grade homeroom and science teacher during the 2004-2005 school year. She described Student’s classes as being in a small group setting with students traveling from classroom to classroom across a hallway and across divided classrooms. She described Student as sweet, very trusting, and eager to please. She reported Student’s ability to read independently and comprehend was very low. She explained Student stayed at the same level in silent reading comprehension throughout the year and she sensed that Student had plateaued and could not progress any further. (O’Donnell)

6. Mary Conway, speech language pathologist, evaluated Student on April 9, 2004 when Student was 13.1 years old. Compared to June 2003 testing at Baystate Medical Center, Student showed improvement, but continued to struggle with verbal processing and organization. Ms. Conway noted that Student’s receptive vocabulary, organization of word classes, and syntactical usage had increased. Student also appeared more attentive and more willing to listen during group lessons. On the Peabody Picture Vocabulary Test, Revised, Student obtained a receptive vocabulary standard score of 88 which placed her word knowledge at the twenty-first percentile, within the low average range. This was a significant gain compared to her prior standard score of 69. On the Clinical Evaluation of Language Fundamentals (CELF-3), Student showed improvement but auditory and memory controlled areas remained weak. Her average language scores ranged from 85-100. Her receptive language score was 61 and her expressive score was 80. Ms. Conway noted that to be a significant difference. Based upon a written narrative provided by Student, Ms. Conway concluded that Student has difficulty limiting the information that she wants to provide. She continued to struggle with pre-writing tasks and organization. Ms. Conway recommended that Student continue to receive weekly language therapy to address verbal processing and language organization. She recommended that Student receive frequent repetitions and visual cues where appropriate. (P-4)

7. Student’s last accepted IEP was written for the time period from September 1, 2004 through June 30, 2005, Student’s eighth grade. It provided for a number of accommodations, including the adjustment of reading levels and the provision of written outlines of instruction. It allowed the use of a tape recorder during lectures and provided that Student could submit typewritten assignments. Student was to be provided with practice questions for study and allowed the use of a dictionary, spell-check, or calculator during testing. Student was to be allowed extra time to complete tasks and was to be provided with frequent reminders regarding due dates. Student was to be seated near the teacher and provided with organizational strategies. She was to be provided with weekly progress reports and there were to be periodic parent/teacher meetings scheduled. Teachers were to use frequent repetition and rephrasing and to check to ensure Student’s comprehension. All of Student’s special education services were to be provided in substantially separate classrooms. The service delivery grid provided for English, Reading, Math, Science, and History with special education staff at a frequency of 5 x 45 minutes per cycle. She was to receive speech therapy 1 x 45 minutes per week with a speech therapist. She was to receive AIC tutoring with AIC staff 2 x 60 minutes per cycle. She was to attend summer school with AIC staff at a frequency to be determined. Mother accepted the IEP in full on September 8, 2004. (P-9, S-13)

8. On or about February 28, 2005, Springfield mailed Mother a notice indicating that Student had been assigned to Commerce High School for the ninth grade. The notice included instructions for placing a student on the waiting list if the student’s first choice school was not assigned. (P-12)

9. On April 7, 2005, the Team convened for its annual review and drafted Student’s ninth grade IEP. (P-13, S-16) The Student Strengths and Key Evaluation Summary indicated that Student’s reading is her weakest area and she often gets involved in other things that are going on in the room. Mother indicated she would be reviewing Student’s Concerta level with her doctor. Writing was noted as another challenging area for Student. She has difficulty getting her thoughts down in a meaningful order. Student demonstrates strengths in oral expression and class participation and loves to talk. She benefits from a multi-modal approach and needs redirection and prompting to stay on task. It was recommended that she sit in the front of the classroom. (P-13, S-16) The necessary accommodations mirrored those provided on the prior IEP. (See ¶ 3.) The service delivery grid provided for English, reading, math, science, and history in an inclusion model, taught by a general or special educator one period per day, five days per week. Special Education services in other settings included study skills with a general or special educator one period per five days; speech and language with the speech therapist for forty-five minutes per five days, AIC tutoring with AIC staff twice per week for sixty minutes each session and summer school with AIC staff at a frequency to be determined from 7/05/05 through 8/01/05. (P-13, S-16) The Team Determination of Educational Placement form indicated that Student would be in a partial inclusion program. (P-13, S-16)

10. Ms. O’Donnell testified that she participated in the April Team meeting and reported that Student had tested at the primer level in reading comprehension when reading independently. She reported that there were times that Student had difficulty staying on task, but that she was easily redirected. She remembers recommending that Student receive a vocational component to her education. She also recalled that the Team was concerned about Student going into the inclusion setting because the team members were afraid Student would not receive the help she required in such a setting. She recalled that Mary Siciliano had informed the Team that the inclusion setting was the only option at the high school level. Ms. O’Donnell was not concerned about Student’s ability to transition from one classroom to another. She testified that in her science class there had been fifteen students and no paraprofessional and Student had been able to handle that class size. Ms. O’Donnell testified that if Student’s ninth grade IEP looked like her eighth grade IEP, she believed that would be appropriate for Student. (O’Donnell)

11. On June 8, 2005, Dr. Denise Messina, Supervisor for Secondary Placement, Parent Information Center (PIC), sent an e-mail message to Mary Birks, copied to Mother, regarding her communications with Mother. The e-mail indicated that Mother had attended the high school fair and “had the most confidence in Central [High School] to meet her daughter’s needs.” It indicated that Student had applied to Central as her first choice, but was assigned to Commerce, her second choice school. The e-mail explained that Mother reported the staff at Kiley Middle School had said Student would not do well at any high school other than Central and would “fall through the cracks” at Commerce. Mother believed that the ninety-minute block schedule at Commerce would not meet Student’s needs as well as the rotating fifty-minute schedule at Central. Mother also preferred Central because she believed the teachers meet weekly and Central offers a study skills course for special education students. The e-mail explained that Mother believed that although all the high schools may provide special education services, the programming and scheduling make them different. Mother indicated she would be rejecting the IEP although she had not yet seen it unless the aforementioned concerns were included in the plan. Attached to the e-mail was Springfield’s policy regarding the waiting list at high schools. In relevant part, the policy states, “Students with specific programmatic needs (i.e. Special Education), will always be assigned to the school that meets those needs as stipulated in the policy: If the bilingual or special education program required were available only at one building, the student would be assigned to that building.” The policy also states that a parent whose request for a transfer has been denied “may file an appeal only if there is a documented health or safety issue that was overlooked or unknown during the assignment process.” The policy clarifies that the Parent is required to submit documentation to the PIC and the documentation the PIC considers is generally from a court, agency, or expert (for medical documentation.) (P-16) Mother testified that the contents of the e-mail were mostly accurate and did not point out any inaccuracies. She testified that she never filed an appeal. (Mother)

12. Mother did not accept or reject the IEP produced after the April Team meeting, but checked the box indicating, “I request a meeting to discuss the rejected IEP or rejected portion(s)” and signed the IEP on June 10, 2005. Likewise, on the placement form, Mother did not consent to or refuse the placement, but checked the box indicating, “I request a meeting to discuss the refused placement decision.” (P-13, S-16)

13. The Team reconvened on June 21, 2005. (S-17) Mother was unhappy with Student’s IEP. She continued to state that she wanted Student placed at Central High School and not Commerce High School. (O’Donnell, Mother). Mother did not request a vocational component, although Ms. O’Donnell informed the Team that she thought Student required one. Mother did not request referrals to an outside program and did not say that she found the substantially separate model used in eighth grade to be an unacceptable model for the ninth grade. (O’Donnell) Mother was concerned because she did not believe all of Student’s needs were included on the IEP. She thought it had been cut and pasted from her prior IEP. She wanted the IEP to indicate that Student could not participate in ninety-minute block classes because of her attentional issues. (Mother) There are no recommendations from educational experts or evaluators stating that Student could not participate in ninety-minute block classes in the record.

14. A progress report dated February 2005 through June 2005 written by Student’s tutor from the Curtis Blake Center, (hereinafter, “Curtis Blake”), Marcia Bunten, states reading comprehension remained a difficult area for Student. The report indicates Student requires much scaffolding and instruction by the teacher. Additionally, it states that Student’s writing skills remain weak and her syntax and sentence structure are rudimentary. The tutor indicated that Student has gained confidence and maturity. (P-11)

15. Rosemary DiSimoni, a Speech Language Pathologist from Curtis Blake, wrote a letter addressed “To Whom it May Concern” dated June 28, 2005. She reported that Student had been receiving Curtis Blake tutorial since 2001 and had made slow, but steady progress in the development of literacy skills. She indicated that Student’s literacy skills remain well below grade expectancy and she has particular difficulty with comprehension skills that require interpretation, analysis and synthesis of information. She predicted Student would have difficulty with the demands of a high school curriculum and would require extensive special education support. She recommended that Student’s placement and services consider her “unique diagnostic profile including cognitive weaknesses, delayed literacy and academic skills, Attention Deficit Disorder, neurofibromatosis, and moderate high frequency hearing loss bilaterally.” (P-20)

16. In June 2005 Mother spoke to Chris Lane, an Evaluation Team Leader at the High School of Commerce, regarding the proposed inclusion model and he told her that there were small group classes at Commerce. In August, Mr. Lane again informed Mother that there small group classes available and suggested that Student start school in September in the small group classes. (Mother) Mr. Lane spoke to Mother approximately twelve times throughout August and September and explained that Student could attend school and be placed in small classes that would be similar to the model she had participated in during eighth grade. He testified that by August they were no longer talking about Student being in inclusion classes. Springfield was planning on implementing her last accepted IEP. Mr. Lane believed he had been clear in telling Mother that Student could attend the substantially separate classes as of the first day of school and the Team would convene to draft a new IEP three to five weeks after school started. (Lane)

17. Mother did not send Student to school in September 2005. She testified that she had requested information about the program, had not been provided with the information and was not sure what kind of program she would be sending Student to. She had not yet observed any program at Commerce. Student was not at home pursuant to a doctor certification that she required home tutoring and there had not been any evaluation or expert recommendation that Student remain home instead of attending Commerce. (Mother)

18. Mother testified that she had never been given a choice of any program other than the inclusion program. She was aware that there was a Life Skills program available at Commerce, but she had observed one at a different high school and deemed it inappropriate for Student. She recalled receiving a program description of the Learning Life Skills Program that is available at all of the Springfield high schools. (P-49, S-70) The program description indicates that the program is for students with disabilities including intellectual impairment, neurological impairment, health impairment, and autism8 . (P-49, S-70) After reviewing the description during her testimony she agreed that Student required some of the program offerings described. Mother agreed that Student required skills to live independently and may benefit from supported employment. She also agreed that home living skills would be appropriate to teach Student. She agreed that Student would benefit from instruction in community awareness and required instruction in safety skills. (Mother)

19. The Team reconvened on October 5, 2005. The ETL, Chris Lane, is a member of the National Guard and had missed two weeks of school in September due to his commitments. In addition to Mr. Lane, Mother, Mary Birks, Special Education Supervisor, M. Karam, special education teacher, Ms. Borders, general education teacher, and Paula Finch, speech teacher, attended the meeting. Parent presented an agenda including her concerns. Mother wanted to hear about appropriate substantially separate programs in Springfield and found inclusion inappropriate for Student. She requested that referrals be sent to collaborative programs and any other appropriate substantially separate programs. Mother’s agenda reported that Student has not been in school to date because she had not received written descriptions of appropriate proposed programs and written student profiles as her attorney had requested in prior letters. She stated that she would not send Student to school until the school “generate[s] a program that is appropriate to fit [Student]’s needs as well as an appropriate IEP.” (S-19) Mother testified that she was not presented with a written program description or any information about the teachers. (Mother)

20. The Team agreed that substantially separate classes were appropriate for Student and that the proposed inclusion program would not be appropriate for her. They drafted a new IEP that Mother received from Mr. Lane on October 19, 2005. The IEP offered Student essentially the same program that she had been offered during the eighth grade, when the IEP was accepted in full. (See P-9, S-13.) The October 19, 2005 IEP states in the Narrative Description of School District Proposal section that the Team agreed to place Student in a substantially separate classroom setting for students whose academic needs require a significantly modified curriculum and specialized instruction delivered by special education teachers, qualified in the content area, to small groups of students outside the general education classroom. The narrative description stated that there would be a paraprofessional assigned to each class with over eight students. All of Student’s academic subjects were to be provided in a substantially separate special education classroom. She would receive speech and language services once per cycle and would receive Curtis Blake tutoring twice per cycle. Additionally, she would be in a study skills class taught by a special education teacher three times per cycle. (P-30)

21. Mother observed some of the small special education classes on the same day. The classes that she observed were not the classes that Student would be attending, but were similar “small group” classes. (Mother, Lane) Mother testified that during the English class she observed there were many students talking across the room and only two students were doing their work. She said that the teacher told her that the students in Student’s class “were worse” than the students she observed and that 85% of the students had behavioral problems. She testified that the hallways were “very busy” and the students walked “shoulder to shoulder.” She reported that during Mr. Conte’s science class a student was lying across two desks and he ignored the teacher when he told him to get up. She testified that she observed one “studious” student who told Mother it was very difficult to get work done. (Mother)

22. Chris Lane testified that he updated the October 19, 2006 on or about November 3, 2006, in response to Mother’s request that he make some corrections to it. One of the corrections was that a box had been checked indicating that Student was deaf/hard of hearing. He corrected that item in the updated IEP. Mother also asked him to change the diagnosis of ADHD to attention deficit disorder and he complied. He also testified that he changed the time periods reflected in the grid to more accurately describe the way the block schedule works at Commerce. Mother had not asked him to do that, but he did it anyway. He explained that at Commerce the classes are held in 96minute blocks from Monday through Thursday and students have blocks of two of their academic classes. On Friday all classes meet and they are 45 minutes long. In the October draft, he wrote the grid to show that each class was 78 minutes long, an average of the week. However, by November, he had begun writing the grid differently and wrote “5 sessions of 45 minutes each per 7-day cycle. (Lane, P-30, P-31)

23. Student remained out of school from September 2005 until April 10, 2006. Mother did not have Student participate in any kind of educational program during that time. There was another Team meeting in January 2006. The Team discussed the services Student had received at Kiley Middle School and the programs and services available at Commerce. (Birks) They discussed Student’s adaptive skills and Mother discussed how Student is not able to cook for herself, make change, or select the correct item at the store. (Mother, Birks) They discussed the Life Skills program and the Putnam vocational school. They discussed the significant amount of time Student had been out of school and whether Springfield would be willing to provide Curtis Blake tutoring. Shortly after the Team meeting Springfield began providing Curtis Blake tutoring to Student. Mother had to stop the Curtis Blake tutoring after Student had received it for approximately two weeks because of conflicts with her work and school schedule. (Mother, Birks) During the rest of the time between September 2005 and April 10, 2006, Student remained at home by herself where she watched television and played video games. Mother testified that she would have sent Student to school if somebody had sat down with her and explained the program to her. (Mother, Student)

24. Mother testified that she observed the Springfield program again after the January Team meeting. She observed Student’s proposed English class and observed approximately four of ten students to be disruptive and talking during class. She did not remember how long she observed the class and did not remember any instruction. She observed Mr. Conte’s classroom and reported students were singing rap songs, swearing, banging on the desk and making noises with their lips. The teacher kept telling them to stop. (Mother)

25. Mother also testified that she observed programs to which referrals had been made after the January Team meeting. She spoke to a person at the HEC Collaborative and determined that the program would be inappropriate for Student. She observed two programs in the Lower Pioneer Valley Collaborative and reported that the students were lower functioning than Student. She observed the East Longmeadow High School program with Student and found it to be appropriate for Student. She believed the East Longmeadow program was the only program that would give Student the chance to learn because it was similar to a program where Student had previously been comfortable and had learned. (Mother)

26. Ms. Birks testified that Mother called the school the week of April 3, 2006 and said she wanted Student to attend Commerce because she needed to be back in school. (Birks) Mother wanted her to start before vacation week and Ms Birks agreed to have transportation in place by April 10, 2006. When Student returned to school on April 10, 2006, Mother had not accepted an IEP for the 2005-2006 school year and had not as of the hearing. (Mother) Student’s teachers received copies of her last accepted IEP to implement. (DaFonseca, Lane) Chris Lane informed all of her teachers that she would be returning to school. He testified that the paraprofessionals in her classes were instructed to assist Student with getting to her classes although he stated that Mother had not raised a concern with respect to Student’s ability to transition from class to class. There was one additional paraprofessional identified to help Student get to classes. For the most part, Student had assistance with transitioning from class to class during the first week. Mr. Lane testified that Student seemed to catch on to her schedule although she came to his office twice to seek assistance finding a class. He walked her to class when she sought assistance and she did not have difficulty finding his office. (Lane) Mother testified that Student came home frustrated every day and reported that nobody had helped her in finding her classes. (Mother) Mr. Lane had never heard that Student had gotten lost and almost missed her bus until Mother testified at the hearing9 . (Lane)

27. Student testified that when she began attending school she was getting lost a lot. She testified that when she got lost she “felt scared,” but was able to find a teacher to assist her or follow a friend. She testified that she had been able to find Mr. Lane to get assistance and once went to the office to request a copy of her schedule. As of the date of the hearing she was no longer getting lost. She testified that her science teacher sometimes helps her and she understands “a little.” She was able to define some of the concepts that she was working on in science. (Student) She reported that there were nine or ten students in her class and there was a paraprofessional in addition to the teacher. (Chartier, Lane, Student) She stated that some students swear and walk around during class.

She testified that during study skills she gets help with her work from other classes. There is a teacher and a paraprofessional in the classroom. She reported that on one day she spent all of her time on the internet looking at sites such as Disney.com. She does not feel uncomfortable in that class and she has seen students walking around and talking on a cell phone in class.

She testified that there are six students in her English class and they were reading Of Mice and Men aloud together. She was not able to identify the author or explain the plot of the book. However, the class had just begun reading the book and were only on the second chapter. Student was able to define some of the vocabulary words associated with Of Mice and Men , but not able to define others.

In her World History class she testified that her teacher explains things to her and she never tells him that she does not understand what is being taught. She reported that the teacher told her she is doing well for just having begun school and he told her he would help her to develop her ideas more in class. She stated that she does not receive one-on-one assistance and there are six students and one paraprofessional in addition to the teacher. (Student, Chartier)

She testified enthusiastically about her math class. She stated that she is good at multiplication and addition and working with improper fractions. She explained that the teacher sometimes sits with her and there is an aide there most of the time. She stated that there are eight students in the class and that the class is going very well. She reported that she recently earned a ninety percent on a test and she gets along with the other students.

Student testified that she finds it more difficult to travel from classroom to classroom than it was in middle school when she stayed in one classroom. She said that the moving from classroom to classroom “bothers her a little bit” at Commerce. She stated that she would like to go to the East Longmeadow program because all of the classes are in one room and they have a child development class. She also stated that the students at Kiley Middle School “acted better” than the students at Commerce and there were not as many people in the hallways. (Student.)

28. Chris Lane observed Student in her science and math classes along with Lori Chartier. He testified that she took notes during science and was able to follow along. The teacher assisted her by telling her what notes to take and clarifying information. The teacher addressed inappropriate behavior of other students. Mr. Lane testified that Student received Curtis Blake tutoring during science class because by April when Student came to school that was the only time during which the tutor was available.10 He reported that during Student’s math class he observed “really good instruction.” Student was very enthusiastic and answered approximately eight of the ten questions the teacher asked. He spoke with all of Student’s teachers who reported that she was doing well. Her current grades were: English – A-; history -B+; science-B; math-A-. Mr. Lane testified that he would be concerned if there had been any reports of violence or aggression in Student’s classes, but that he was not aware of any such reports. He was not concerned about the possible presence of a student with oppositional defiant disorder in Mr. Langford’s class because of his knowledge of Mr. Langford as a teacher. (Lane)

29. Michael DaFonseca testified that he is certified in special education and elementary education and teaches Student’s Algebra I class. He received Student’s last accepted IEP shortly before she arrived in school. He testified that he provides accommodations when it is appropriate and does not tape record lessons because he works on skills one at a time and repeats over and over again. He reported that Student does more work than most of the students in class and when she misses class to receive speech language therapy she comes to see him and he reviews what she missed with her. He modifies the curriculum for her and they use a modified textbook. He reported that Student always gives 100% effort, is engaged, and is able to focus and tune out the “wise guys” in the back of the room.11 She raises her hand and participates regularly. The paraprofessional sits with Student and she willingly accepts help.

Mr. DaFonseca testified that Student is able to do more than he would expect her to be able to do because of her drive. She is always engaged and trying to learn. He believes that she is appropriately placed in his Algebra I class. She has done very well compared to students who have been there all year. He testified that Student does have weaknesses in basic areas of math, but special education math classes focus on building the base of knowledge. He stated that the other students in the class are lacking in their basic skills as well. He described Student as naïve and a “very nice kid.” He worries a little about her because she is new to the school. He has observed her in social situations and recently saw her respond appropriately to a student who was a “wise guy.” He asks his paraprofessional to escort her to her next class or to the bus. (DaFonseca)

30. Dr. Elizabeth Welch testified that she is the supervisor for the Learning Center programs at East Longmeadow and has been a school psychologist for the Learning Center programs.12 She described the current high school program as a classroom centrally located in the high school with one teacher, one paraprofessional, and twelve students. The classes run on a block schedule and each block is eighty minutes long. She testified that all students are required to have a relationship with the career center and in the eleventh or twelfth grade they do an internship or a “job shadow.” All of the current students and entering students are on IEPs. Some have been diagnosed as having Nonverbal Learning Disorder and specific learning disabilities. One student is legally blind and some are eligible for DMR services. There are some students with IQs in the 60s and 70s although the program is not specifically for students with cognitive limitations. She received information from Springfield about Student including an IEP and a psycho-educational evaluation with WISC and WIAT scores, and met Student when she and Mother visited the program. She concluded that the program would be appropriate to meet Student’s needs especially given the “cohort of students coming into the program.” (Welch)

31. Lori Chartier has a Master’s degree in counseling and is certified in moderate special needs. She has taught in public schools, but never at the high school level and never in a large public high school. She has observed approximately fifteen special education programs at the high school level. She has never consulted to a public school in any area other than autism. Mother contacted her in early April 2006 regarding the case at hand. She did not spend much time reviewing the documents she received pertaining to Student’s needs, as she wanted to get a sense of her strengths and weaknesses through observation. She observed Student at Commerce over the course of three days and then met with Student at a public library after completing her observations. The first day she observed two elective classes13 . On Monday May 5, 2006, Ms. Chartier observed for three or four blocks. At that time Student had been in school for less than two full weeks.

Ms. Chartier testified that there were approximately nine students in Student’s study skills class and she observed a student who swore when the teacher asked him for a pass and other students were disrespectful. She noted that the teacher asked a student to leave. She testified that the teacher retrieved some algebra work for Student and both the teacher and paraprofessional spent time sitting with Student and assisting her.

She testified that there were six students, one teacher and one paraprofessional in Student’s World History class. The aide helped Student take notes. Student worked hard in every class. Ms. Chartier testified that she did not observe Student receiving any “special help.” She determined that Student was not receiving the accommodations specified in the last accepted IEP14 . Ms. Chartier testified that she did not see any modification of the general curriculum, but did not testify to having knowledge of the Massachusetts Curriculum Frameworks. She explained that she did not have a chance to speak to any of the teachers that she observed to inquire as to whether they were providing the accommodations required by Student’s IEP.

Ms. Chartier observed Student’s tutorial session. She observed the tutor assisting Student with science vocabulary words. The tutor used a slow pace, a great deal of repetition, and asked Student to repeat what she had learned.

Ms. Chartier observed Student’s algebra class on May 1, 2006. Student sat in the front of the room near the board and participated a great deal. She answered most of the questions posed to the class and it seemed like direct instruction for Student. She reported that the teacher did a good job of teaching strategies for Student to remember and that Student was able to go home and tell Mother what she had learned in math.

Ms. Chartier met with Student on the evening of May 2, 2006 to do some “informal assessment” consisting of asking her questions about the content of her classes and drilling her with flashcards to check her addition, subtraction, multiplication, and division skills as well as her ability to tell time and make change. She also asked Student to do some math work problems.

Ms. Chartier testified that she spent approximately three hours observing the Learning Center program at East Longmeadow High School. She did not observe any behavioral problems and all students were engaged in their work. She reluctantly testified that she thought Student would show regression in her academic skills if she had been out of school for several months if she was at home playing video games.

FINDINGS AND CONCLUSIONS:

Student is an individual with a disability, falling within the purview of the Individuals with Disabilities Education Act (IDEA)15 and the state special education statute.16 As such, she is entitled to a free appropriate public education (FAPE). Neither her status nor her entitlement is in dispute. Under the FAPE standard, the IEP proposed by the school district must offer the student a free appropriate public education that meets state educational standards. This education must be offered in the least restrictive environment appropriate to meet the student’s individual needs.17 Federal law also requires that the student be able to fully participate in the general curriculum to the maximum extent possible. 20 USC § 1415(d)(1)(A)(iii); 34 CFR 300.347(a)(2)(I) and (a)(3)(ii); 64 Fed. Reg. No. 48, page 12595, column 1; See also, In Re: Worcester Public Schools, BSEA # 00-1912, 6 MSER 194 (2000).

As discussed in In re: Gill-Montague Public Schools District , BSEA # 02-1776 “the Massachusetts statute defines FAPE as “special education and related services as consistent with the provisions set forth in 20 U.S.C. 1400 et seq. [the IDEA], its accompanying regulations, and which meet the education standards established by statute or established by regulations promulgated by the board of education,”18 including the Massachusetts state curriculum frameworks.19 The IDEA in turn defines FAPE as “special education and related services that:
(A) have been provided at public expense, under public supervision and direction, and without charge;

(B) meet the standards of the State educational agency;

(C) include an appropriate preschool, elementary, or secondary school education in the State involved; and

(D) are provided in conformity with the individualized education program required under section 614 (d).”20

As stated by the federal courts, the LEA is responsible to offer students meaningful access to an education through an IEP that provides “significant learning” and confers “meaningful benefit” to the student,21 through “personalized instruction with sufficient support services ….”22 The requirements of the law assure the student access to a public education rather than an education that maximizes the student’s individual potential. Lenn v. Portland School Committee , 998 F.2d 1083 (1 st Cir. 1993); GD v. Westmoreland School District , 930 F.2d 942 (1 st Cir. 1991).

The First Circuit Court of Appeals interpreted minimally acceptable standards of educational progress requiring that the IEP yield “effective results” and “demonstrable improvement” in the “various educational and personal skills identified as special needs,”23 in the context of the potential of the particular student.24

Similarly, the Massachusetts special education statute defines “special education” to mean “educational programs and assignments . . . designed to develop the educational potential of children with disabilities . . .” which permit a student to make meaningful educational progress.25 MGL c. 71B § 1, the special education statute in Massachusetts, requires that eligible students receive special education services designed to develop the student’s individual educational potential”26 consistent with the interpretation provided by other Courts. The IEP is the road map that defines the services to be offered and the measurable goals embodied therein determine whether the student has made educational progress.27 See also , In Re: Arlington Public Schools , BSEA # 02-1327, issued on July 23, 2002.

There is no genuine dispute regarding Student’s constellation of needs. The dispute centers around whether the IEPs offered for Student were reasonably calculated to provide her with a free appropriate public education in the least restrictive environment and if not, whether her needs can be met at Commerce High School or whether she requires a self-contained classroom as offered at East Longmeadow High School.

Springfield, through the testimony of its witnesses and by its determination at the October 2005 Team meeting that Student required substantially separate special education classrooms for her academic classes conceded that the initial IEP offered for the 2005-2006 school year would not provide Student with a free appropriate public education in the least restrictive environment. None of the teachers who worked with Student at Kiley Middle School recommended an inclusion program for Student. (O’Donnell) There were no evaluators or educational experts recommending the inclusion setting for Student. Despite the lack of any recommendation for an inclusion program, the IEP initially proposed by Springfield required that Student receive her academic instruction in the inclusion setting. That proposal was inappropriate for Student. Consequently, I find that the IEP proposed by the Springfield Public Schools for September 2005-June 2006 was not reasonably calculated to provide Student with a free appropriate public education in the least restrictive environment.

On October 19, 2005, Mother received the IEP proposed for October 5, 2005 to October 4, 2006. This IEP, as Mother testified, looked very much like the IEP that Student had for the eighth grade. Ms. O’Donnell, who had taught Student in the eighth grade using a similar IEP, concluded that this IEP would provide Student with a free appropriate public education. (O’Donnell) The IEP provided Student with small classes populated by other special education students that would assure that she would not “fall through the cracks” as Mother and the eighth grade Team feared would happen in an inclusion setting. The testimony showed that several of Student’s academic classes had only six students including Student. Her other academic classes were also small, with ten or fewer students. Most of her classes had a paraprofessional for extra support. (See testimony of Lane, DaFonseca, Chartier.) Although Mother argued Student should be in one classroom all day and not be required to transition to different classrooms, there was no expert testimony or teacher recommendations to support the position that Student was unable to transition between classrooms. In fact, Ms. O’Donnell testified that she had been unaware of Student having issues with transition during the eighth grade and she was not concerned about Student’s ability to transition between classes. (O’Donnell) Student testified that she had initially gotten lost during her first days at school, but she had become more oriented and confident by the date of the hearing. She also testified to using good strategies such as finding Mr. Lane or going to the office to obtain a copy of her schedule when she did get lost. (Student)

There was quite a bit of testimony regarding the behavior observed by Mother and Ms. Chartier during their observations of classrooms at Commerce. They both testified to observing students using inappropriate language and engaging in off-task behavior. Some of Mother’s testimony must be discounted as the classrooms that she observed were not all classrooms that had been proposed for Student or that Student ever attended. Additionally, it is impossible to make a judgment as to how much off-task and/or disruptive behavior actually goes on during a class based upon a short observation at some point in time. There is nothing in Student’s profile that suggests that she is too fragile to be in a setting where off-task behavior may occur at times. However, since Student does have attentional issues, it is important that her teachers maintain as distraction free a classroom as possible. Mr. DaFonseca testified that Student was able to filter out off-task behavior by the “wise guys” in his classroom and he also testified that he asks students to leave if they are being disruptive. He testified that the students in his class are there primarily for academic reasons and not because of their behavior. (DaFonseca)

I did not credit the testimony of Lori Chartier regarding the observations she made of Student’s program. I did not find that she was qualified to assess a high school program for a student with Student’s profile as she had never taught high school and by her own admission was not very familiar with Student’s profile before observing her in her program. Additionally, Ms. Chartier made assumptions about modifications not being provided to Student based upon her limited observation and did not ask teachers questions regarding whether they were providing accommodations. She testified that she did not see Student receiving “special help” and did not see Student receiving modified work sheets. However, the classrooms she observed were substantially separate special education classes. As explained on the Narrative Description of Student’s proposed IEP, the classrooms are “for students whose academic needs require a significantly modified curriculum and specialized instruction delivered by special education teachers, qualified in the content area, to small groups of students outside the general education classroom.” (See P-30, P-31, S-23) Given that description, it would be unreasonable to expect to see Student receiving significant and observable modifications to the modified curriculum. Finally, Ms. Chartier testified that she did not see evidence of the curriculum being modified, yet she did not testify to having knowledge of the Massachusetts Curriculum Frameworks for the ninth grade.

I relied upon the testimony of Student and Mike DaFonseca in determining that Student was making progress in the Commerce program. Student was able to correctly answer many of the content area questions that counsel posed to her during her testimony despite having spent most of the academic year at home watching television and playing video games. Her enthusiasm was evident when she talked about her math class and she seemed to be proud to be doing so well. She testified that most of her teachers helped her with her work and explained concepts to her. Lori Chartier testified that Student received almost one-to-one instruction in Algebra I. Additionally, Mr. DaFonseca testified that the paraprofessional generally sits with Student and assists her. Student was so successful in his class that she even surpassed Mr. DaFonseca’s expectations for her.

Student struggled with some of the vocabulary taught in her academic classes. However, she was able to define a number of words in different content areas. Additionally, she is able to work with the Curtis Blake tutor to reinforce her understanding of vocabulary words. Although Student struggles with reading comprehension, she is not expected to read independently. In her English class, the class is reading Of Mice and Men aloud together to assist the students in comprehension.

The credible testimony of Student’s teachers demonstrates that Student is able to learn in the substantially separate special education classes and is making progress. Chris Lane credibly testified that he had spoken to all of Student’s content area teachers who reported that she was doing well. In fact, the services provided to Student are very similar to those that Mother found acceptable during the eighth grade. There are no evaluations nor was there any credible expert testimony that Student requires a program that is different from the one proposed by Springfield via the October 19, 2005 IEP and provided by Springfield when Student came to school on April 10, 2006.

Because I find that the IEP proposed by Springfield on October 19, 2005 and updated on November 3, 2005 is reasonably calculated to provide Student with a free appropriate public education in the least restrictive environment, I need not consider the merits of the East Longmeadow High School program.

One area that was not sufficiently addressed by the evidence is Student’s social skills. Several of her teachers testified that she was naïve and unable to read social situations. Mother indicated that she was concerned about Student’s social skills. There were not any recent assessments of her social skills nor were there recent recommendations as to her needs in that area. For that reason, Springfield shall conduct an assessment of Student’s social skills and the Team will determine whether she requires services with respect to her social skills.

Additionally, there was conflicting testimony regarding Student’s need for vocational services. Although there was testimony that Mother did not wish for Student to receive vocational services, there was also testimony from several witnesses that Student required them. There were not any assessments of her vocational needs nor recommendations in the record. For that reason, Springfield shall assess Student’s vocational needs and the Team shall determine whether she requires vocational services. This can be done as part of the transitional planning that is required to be done during the IEP period when Student will be sixteen. (See 20 U.S.C. § 1414(d)(1)(A)(VIII).) As part of the transitional service planning the Team shall consider whether Student requires training in the areas addressed by the Life Skills program. Mother testified that Student required many of the types of skills that are taught in the Life Skills program. The Team shall determine whether Student requires such services and whether Student should participate in any portion of said program in addition to her academic classes.

Compensatory Education

When a school district fails to implement a student’s IEP partially or totally, and the district’s variance from the services outlined in the IEP result in a denial of FAPE to the student, that student can be awarded compensatory education services. See Murphy v. Timberlane , 973 F.2d 13 (1 st cir. 1994); Ross v. Framingham , 44 F. Supp. 2d 104 (D. Mass. 1999)

A discussion of compensatory education in In Re: Medford , BSEA #02-0640, October 31, 2002, 8 MSER 329 (SEA MA 2002) further clarifies the standards to be considered regarding an award of compensatory services.

The First Circuit Court of Appeals has long recognized the right of a student to receive compensatory education as a form of relief to remedy previous deprivations due to a deficient IEP. Pihl v. Massachusesetts Department of Education , 9 F.3d 184 (1 st Cir. 1993). Where a denial of essential special education services or a significant interruption in the provision of those services has occurred during the period of the Student’s entitlement28 to special education, compensatory services may be awarded. Stock v. Massachussetts Hospital School , 467 NE. 2d 448, 392 Mass. 205 (1985). In Massachusetts, the BSEA is authorized to review the evidence and when appropriate, award compensatory services in special education cases. Murphy v. Timberlane , 973 F.2d 13 (1 st Cir. 1994); 603 CMR 28.08 et seq . In determining whether said form of relief should be granted, several factors, such as the conduct of the parties, the specific period of time during which the specific service was denied, the appropriateness of the services offered to the student, and the type and extent of harm caused to the student as a result of any denial of a FAPE must be weighed. In deciding whether this form of relief is appropriate, the hearing officer must also take into account the parent’s actions. If a parent is found to have been given a real opportunity to participate in the team meeting, and if thereafter, the parent knowingly and voluntarily accepted the IEP, then compensatory education should not be considered for that period. W.B. v. Matula , 67 F.3d. 484 (3 rd Cir. 1995). A parent’s refusal to allow the student to access services deemed to be appropriate, or rejection of services that would otherwise render an IEP appropriate for the student, would also bar the student’s claim as to those periods. In Re: Taunton Public Schools , BSEA # 01-0462 (2001); In Re: Silver Lake Regional School District , BSEA # 01-1370 (2001); In Re: Sharon Public Schools , BSEA # 02-1490 (2002).

In the instant case I have determined that the IEP offered to Student for September 2005-June 2006 was not reasonably calculated to provide Student with a free appropriate education in the least restrictive environment. However, I have found the IEP proposed on October 19, 2006 and updated on November 3, 2006 was reasonably calculated to provide Student with a free appropriate public education. Therefore, the only time period for which Student may be eligible to receive compensatory educational services is from September 2005 – October 19, 2005, when Student had not been provided with an appropriate IEP.

In weighing the factors described above, I must look to the conduct of the parties. I found Chris Lane to be credible when he testified that he contacted Mother in June and August and told her that Student would be able to attend substantially separate classes if Mother sent her to school in September. However, I also found Mother to be credible when she testified that she had been told that there was only inclusion available at Commerce, especially in light of the fact that she had not been provided with an IEP or any written assurance that Student would be able to attend substantially separate classes. Springfield was required to write a new IEP to reflect the new services being offered, and failed to do so. Although I do not condone Mother’s decision to keep Student at home and allow her to watch television and play video games all day instead of attending school, I fault Springfield for not drafting an appropriate IEP. Therefore, Springfield is obligated to provide Student with compensatory education for the period from the first day of school in September 2005 until October 19, 2005, when Mother received an appropriate IEP.

As of the October 2005 Team meeting, it was clear to everyone that Springfield was no longer proposing an inclusion setting. Any claim that Mother did not understand that Student would not be required to attend inclusion classes was extinguished when Mother received the IEP with the narrative description that clearly described the substantially separate proposal. Student is not entitled to compensatory services from October 19, 2005 forward because Springfield offered a free appropriate public education in the least restrictive environment, but Mother would not allow Student to access it.

ORDER

Based upon the foregoing, I make the following Orders.

1. The Team shall convene to determine how to compensate Student for the period in which she had not been offered an IEP that was reasonably calculated to provide her with a free appropriate public education in the least restrictive environment, from when school began in September 2005 until October 19, 2005. Since Student already receives a summer program, they shall consider other options such as additional tutoring.

2. Springfield shall formally assess Student’s needs with respect to social skills. The Team shall convene to determine whether Student requires services to address her social needs.

3. The Team shall address Student’s transitional needs and shall determine whether she requires vocational services and/or whether she would benefit from instruction in the skills taught as part of the Life Skills Program.

By the Hearing Officer,

____________________________________

Catherine M. Putney-Yaceshyn

Dated: July 10, 2006


1

There was no objection to Springfield’s filing its brief on June 13, 2006.


2

During the hearing, the parties stipulated on the record that they resolved this issue.


3

Her verbal comprehension subtest scaled scores were: Similarities 8, Vocabulary 4, Comprehension 1.


4

Her working memory subtest scaled scores were as follows. Digit Span 3, Letter-Number Sequencing 4.


5

Her Processing Speed Subtest Scaled Scores were: Coding 2, Symbol Search 3.


6

Her Perceptual Reasoning Subtest scaled scores were: Block Design 4, Picture Concepts 8, Matrix Reasoning 4.


7

Her subtest standard scores were: Word Reading 82, Reading Comprehension 66, Numerical Operations 61, Math Reasoning 56, Spelling 86, Written Expression 68.


8

The program description indicates that students in the program exhibit moderate delays or deficits in the majority of the following skill areas: 1. activities of daily living, 2. cognitive development, 3. fine and gross motor skills, 4. communication, and 5. socialization/behavior and/or emotional maturity. (P-49, S-70)


9

Mother testified that she was concerned about “safety issues” at Commerce. She described an incident after Student had returned to school. She reported that the location where Student’s bus picked her up had changed and Student was not notified. Student told her that she had walked around looking for the bus and began following a boy who looked familiar. The boy was in fact going to her bus and she followed him successfully. Student told Lori Chartier that she would have walked home if she had missed the bus. Mother was concerned because Student would have had to walk through a dangerous part of town and reportedly does not know her way home. Mother never reported this incident to anybody at Springfield. (Mother)


10

Mr. Lane testified that if Student had come to school in September there would have been flexibility in scheduling Student’s tutoring and it would not have had to be scheduled during an academic class.


11

Mr. DaFonseca testified that he has had to ask students to leave his class for saying inappropriate things. None of the students in his class are on formal behavior plans. He said he has seen worse behavior in regular education classrooms. (DaFonseca)


12

She has degrees in special education and an Ed.D. in educational psychology. She has worked in the East Longmeadow Public Schools for the past thirty years as a resource room teacher and a school psychologist and in her current position.


13

One of the classes was physical education in which Student did not participate because she had not brought her bathing suit. (Chartier)


14

Ms. Chartier testified that she did not observe any breaking down of information into units, did not see any “opportunity for repetition”, did not see any “hands on” learning; Student received the same worksheets as the other students; she did not see any tape recorders used for lectures or an Alphasmart. (Chartier)


15

20 USC 1400 et seq .


16

MGL c. 71B.


17

20 USC 1412(5)(A)


18

MGL c. 71B, §1.


19

See the 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 (hereafter Mass . FAPE Advisory ), 7 MSER Quarterly Reports 1 (2001).


20

33 USC 1401(8). The federal regulations adopted pursuant to the IDEA include a similar definition of FAPE. 34 CFR 300.13.


21

For a discussion of FAPE see Hendrick Hudson Bd. Of Education v. Rowley , 458 U.S. 176, 188-189 (1992); Cedar Rapids Community School District v. Garret F., 526 U.S. 66 (1999); Burlington v. Department of Educatio n , 736 F. 2d 773 (1 st Cir. 1984). Houston Independent School District v. Bobby R ., 200 F.3d 341 (5 th Cir. 2000); Stockton by Stockton v. Barbour County Bd. of Educ., 25 IDELR 1076 (4 th Cir. 1997); MC v. Central Regional School District , 81 F.3d 389 (3 rd Cir. 1996), cert. denied 519 US 866 (1966); Ridgewood Board of Education v. NE , 30 IDELR 41 (3 rd Cir. 1999). See also GD v. Westmoreland School District , 930 F.3d 942 (1 st Cir. 1991).


22

Board of Education of Hendrick Hudson Central School District v. Rowley, 458 U.S. 176, 203, 102 S.Ct. 3034, 3049 (1982).


23

Lenn v. Portland School Committee , 998 F.2d 1083 (1 st Cir. 1993) (program must be “reasonably calculated to provide ‘effective results’ and ‘demonstrable improvement’ in the various ‘educational and personal skills identified as special needs’”); Roland v. Concord School Committee , 910 F.2d 983 (1 st Cir. 1990); Burlington v. Department of Education , 736 F.2d 773, 788 (1 st Cir. 1984).


24

Houston Independent School District v. Bobby R ., 200 F.3d 341 (5 th Cir. 2000) (a disabled child’s development must be measured with respect to the individual student, not by his relation to the rest of the class, as declining percentile scores may represent the student’s inability to maintain the same level of academic progress achieved by regular peers and not necessarily a lack of educational benefit); Ridgewood Board of Education v. NE , 172 F.3d 238 (3 rd Cir. 1999); MC v. Central Regional School District , 81 F.3d 389 (3 rd Cir. 1996), cert. denied 519 US 866 (1996); Roland v. Concord School Committee , 910 F.2d 983 (1 st Cir. 1990); Kevin T. v. Elmhurst , 36 IDELR 153 (N.D. Ill. 2002).


25

The Massachusetts Department of Education (DOE) stated that the “FAPE standard . . . requires the school district to provide personalized instruction tailored to the student’s needs, with sufficient support services to permit the student to make meaningful educational progress .” Mass. FAPE Advisory (see footnote 8 above for full title and citation of Advisory) (emphasis supplied).


26

603 CMR 28.01(3). The Massachusetts Department of Education has also noted that the Massachusetts Education Reform Act “underscores the Commonwealth’s commitment to assist all students to reach their full educational potential.” Mass. FAPE Advisory (see footnote 8 above for full title and citation of the Advisory). M.G.L. c. 69, §1 states in part that a paramount goal of the commonwealth is “to provide a public education system of sufficient quality to extend to all children the opportunity to reach their full potential.”


27

County of San Diego v. California Special Educ. Hearing Office, 93 F.3d 1458 (9th Cir. 1996) (the correct standard for measuring educational benefit under the IDEA is whether the child makes progress toward the goals set forth in IEP and not just whether the placement is reasonably calculated to provide the student educational benefits.); Evans v. Board of Education of the Rhinebeck Central School District , 930 F.Supp. 83 (S.D. N.Y. 1996) (the IEP must include measurable criteria to assess the student’s progress).


28

See M.G.L. c. 71B §1 establishing that the disabled student’s period of entitlement runs from the time s/he is 3 years of age until s/he attains a high school diploma (or its equivalent), or the day of the student’s twenty second birthday, whichever comes first. 603 CMR 28.02 (9).