COMMONWEALTH OF MASSACHUSETTS
Division of Administrative Law Appeals
Bureau of Special Education Appeals
In Re: Amherst-Pelham Regional School District
BSEA # 10-8888
DECISION
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 August 18 and 19, 2010 in Springfield, MA before William Crane, Hearing Officer. Those present for all or part of the proceedings were:
Student’s Mother
Debra Joyce Friend of Mother
Keith Arnett Behavior Consultant, Center School
Deborah Bix* Teacher Assistant, Amherst-Pelham Regional School District
Denise O’Donovan Special Education Teacher, Amherst-Pelham RSD
Sarah Wilson Speech-Language Pathologist, Amherst-Pelham RSD
Chris Peltier* Autism Specialist, Amherst-Pelham RSD
David Slovin Student Services Administrator, Amherst-Pelham RSD
Regina Williams Tate Attorney for Amherst-Pelham RSD
* These persons testified by speaker phone.
The official record of the hearing consists of documents submitted by Amherst-Pelham Regional School District (Amherst) and marked as exhibits S-1 through S-48 and approximately two days of recorded oral testimony and argument. Parent did not submit any documents to the Hearing Officer or Amherst for admission into the record until mid-way through the first day of hearing, at which time I concluded that it would be prejudicial to Amherst to admit the two proposed documents into evidence because of the lack of notice. Oral closing arguments were made on August 19, 2010, and the record closed on that date.
In order to apprise the parties in a timely manner of my findings and conclusions in this case, an Order was issued on August 20, 2010, in advance of the full text of this Decision. See Appendix A.
POSITIONS OF THE PARTIES
Parent objects to Amherst’s proposed placement of her son in an out-of-district placement. Parent takes the position that her son has the right to attend school within his own community and with children who do not have a disability. She believes that her son has made progress over the course of the past school year, particularly with respect to his social skills, that her son has greater skills and abilities than have been recognized by Amherst, that his behavioral difficulties have been caused, in part, by Amherst’s failure to consider and implement sufficiently her own suggestions that have been successful at home and in the community, and that Amherst could improve its services and supports sufficiently to make unnecessary an out-of-district placement. Therefore, Parent has declined Amherst’s request to consider a private placement.
Amherst brought this action before the BSEA in order to seek an order that to receive a free appropriate public education, Student must be placed out of district in a private program. Amherst takes the position that Student’s academic, communication, and behavioral needs are sufficiently great so as to require specialized, structured and intensive services based upon applied behavior analysis (ABA) methodology, which can only be provided within a private out-of-district placement. Amherst is concerned that although Student likely has good cognitive potential, his academic and communication skills are at a rudimentary level, and little if any progress has been made in these areas during the past school year while Student attended public school. Amherst also takes the position that his behavioral needs are difficult, if not impossible, to address appropriately and safely within public school. Amherst has sought permission to send out packets to private schools for the purpose of identifying a specific placement that would be appropriate for Student.
ISSUE
The issue addressed by this Decision is whether Amherst’s most recently-proposed individualized education program (IEP) is reasonably calculated to provide Student with a free appropriate public education in the least restrictive environment and whether, in order to implement this IEP appropriately, Student requires a private, out-of-district placement.
FACTS
Student Profile .
Student is a thirteen-year-old boy who lives with his Mother in Amherst, MA. Student loves the outdoors, enjoys gross motor activities, and is engaging and friendly. Student is relatively tall and large for his age, and he is very strong. Testimony of Mother, Peltier, Arnett; exhibit S-3.
Student carries a diagnosis of autism. He has substantial social, behavior, communication, and learning deficits. Although it is believed that Student has good cognitive potential, he is at the pre-literacy level with academic skills generally at the pre-elementary level. His receptive and expressive communication skills are also substantially limited, and Student lacks a reliable and functional system of communication. Behavior difficulties, which at times have been severe but more recently have moderated, continue to limit his availability for learning. Testimony of Mother, Peltier, O’Donovan, Wilson; exhibits S-1, S-2, S-3, S-4, S-15, S-18, S-20, S-48.
Most Recent IEP .
The most recently-proposed IEP, developed at a Team meeting on June 4, 2010 for the period 6/4/10 to 6/3/11 calls for all special education services and related services to be provided outside of the general education classroom. These services include all academics, speech-language services (4×30 minutes), occupational therapy (2×30 minutes), and continuation of these related services, as well as academics, during the summer. The IEP calls for Student to be placed in an out-of-district placement. Parent has not consented to any IEP proposed by Amherst. She has also made it clear that she rejects the appropriateness and necessity of an out-of-district placement for her son. Testimony of Mother; exhibit S-3.
Educational History .
Parent moved to the Amherst School District during the summer of 2009. Student had previously attended school pursuant to an IEP in the state of Washington. When Student began attending school for the 2009-2010 school year, Amherst implemented what it believed to be the last agreed-upon IEP from Washington. Testimony of Mother, O’Donovan.
Although Amherst was able to obtain a number of evaluations and an IEP from Washington, an IEP Team meeting on September 22, 2009 determined that Amherst had insufficient information to understand Student’s special education needs and how they should be met. As a result, the Team determined that Student should undergo an extended evaluation, including an educational evaluation, occupational therapy evaluation, physical therapy evaluation, speech-language evaluation, and functional behavior assessment (FBA). The purpose of the FBA was to determine the cause of Student’s aberrant behavior. The IEP Team re-convened on November 23, 2009 to consider the results of the extended evaluation and to prepare a new IEP for Student. Mr. Peltier, who conducted the FBA, is Amherst’s autism specialist. He has extensive experience working with students on the autism spectrum and is a Board Certified Behavior Analyst. Testimony of Peltier; exhibits S-28 through S-47.
At the beginning of the school year, Student was included with other children in three settings: gym, chorus, and the general advisory session of the classroom. During the first month or so of school, Student was extremely compulsive. He would grab and gather anything within his reach, including any books and supplies in the room. This made it impossible for him to participate appropriately with his peers or to have reciprocal relations with his peers. Testimony of Peltier, O’Donovan.
During the beginning of the school year, Amherst assigned two staff to attend to Student. However, both staff were relatively small, female aides who were not able to stop or contain Student. Amherst then contracted for this purpose with Center School and obtained the assistance of larger, male staff with experience working with students with behavior difficulties. Testimony of Peltier, O’Donovan, Arnett.
Because of the risk of Student’s bolting, staff needed to continually have their hands on the back of Student’s belt. At Mother’s suggestion, a tether was eventually used—that is, a yellow cord attached to the back of Student’s belt in lieu of staff’s holding Student’s belt. Staff expressed displeasure with the tether because it tends to stigmatize Student and does not promote inclusion. Testimony of Peltier, O’Donovan, Arnett.
Student’s compulsive behavior was frightening and dangerous to the other children at school, and Student’s behavior did not allow for him to participate educationally with his peers. As a result, within a month or so of the beginning of school, Student was receiving all of his education in a small, separate classroom with two or three staff and no other students. Testimony of Peltier, O’Donovan.
Pursuant to a Team meeting on December 14, 2009, the school-based members of the Team proposed an IEP that would provide a specialized program with all direct special education and related services to be provided outside of the general education classroom, with placement to be in a substantially-separate, out-of-district program. Mother did not accept this IEP. Testimony of Peltier; exhibits S-12, S-15 through S-20.
After Christmas, Student demonstrated less serious behavior difficulties, and he was able to receive most of his educational services within a special education classroom with other children. Testimony of Peltier, O’Donovan.
By the spring of 2010, Student’s behavior had further improved. By March, Student was generally in Ms. O’Donovan’s classroom for instruction, and he was able to travel to receive his related services outside of the classroom. Student also began to be able to deliver newspapers with his peers, and he was re-introduced to gym class. Student appeared to be becoming comfortable being around other students, and seemed to enjoy the company of other students at times, although he was not able to establish any friendships or have reciprocal conversations. Testimony of O’Donovan, Arnett, Bix.
Ms. O’Donovan testified that Student’s behaviors likely improved because he had settled into the school environment, staff and Student had become more used to each other, medication side effects that may have contributed to his behavior had worn off, Amherst staff had learned better how to incorporate sensory breaks into his day, and his communication through his iPod device had improved somewhat. Mother’s suggestions relative to Student’s behavior (such as talking softly and not over-reacting) were also helpful to staff. Testimony of O’Donovan, Bix.
However, even at the end of the school year, Student continued to require two staff persons to be with him at all times since he continued to demonstrate disruptive behavior, he continued to be at high risk of bolting (and required continued use of the tether throughout the school year) and injuring others, and there continued to be behavior incidents such as occasional biting, yelling, stomping of his feet in the classroom and hallways. Testimony of Peltier, O’ Donovan, Arnett, Bix, Arnett.
Throughout the year, Student has attended school for only two and a half hours each day. This was initiated at Mother’s request since she believed that this would be best for her son, particularly in the beginning of the school year. When Student’s behavior at school improved, Student’s special education teacher (Ms. O’Donovan) asked Mother if her son could begin attending for more than two and a half hours each day (for example, to leave school at noon instead of 10:30 AM), but Mother refused. Testimony of O’Donovan, Arnett.
DISCUSSION
It is not disputed that Student is an individual with a disability, falling within the purview of the federal Individuals with Disabilities Education Act (IDEA)1 and the Massachusetts special education statute.2 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 further education, employment, and independent living.”3
FAPE must be provided in the least restrictive environment.4 However, LRE principles may not result in a placement that does not meet the education needs of the student. A placement in a private school with only students with disabilities may be required where a less restrictive placement is not appropriate.5
Student’s right to FAPE, including compliance with both state and federal standards, is assured through the development and implementation of the individualized education program or IEP.6 Each IEP must be “custom tailored to address the handicapped child’s unique needs in a way reasonably calculated to enable the child to receive educational benefits.”7
Through the provision of FAPE, “Congress sought primarily to make public education available to handicapped children and to make such access meaningful.”8 For this purpose, a school district must develop an IEP that is “reasonably calculated to enable the child to receive educational benefits”.9 The minimum requisite educational benefits have been characterized as allowing for a “meaningful” educational opportunity10 and “effective progress”11 , with “l evels of progress … judged with respect to the potential of the particular child.”12 Massachusetts standards further require the special education services to be “ designed to develop the [student’s] educational potential” .13 On the other hand, FAPE does not require a school district to provide special education and related services that will maximize a student’s educational potential.14 Similarly, the educational services need not necessarily be “the child’s parents’ first choice, or even the best choice.”15
Amherst is the moving party that is seeking relief, and it therefore has the burden of persuasion that its proposed IEP, including the proposed placement, is appropriate.16
In the instant dispute, there are, generally-speaking, three broad areas of concern: behavior, academics, and communication. I will address each in turn.
Student has demonstrated self-injurious behavior that has included hitting his head with his closed hand and biting. He has occasionally been aggressive towards staff. Student is constantly at risk of bolting. Often, the antecedent to Student’s aggressive or aberrant behavior is unclear to staff. Student’s behaviors changed over time—he would cycle through different behaviors, without any apparent cause or pattern. Testimony of Peltier, Arnett; exhibits S-1, S-2, S-13, S-19, S-20.
As discussed above within the Facts section, Student’s behavior improved significantly over the course of the school year. Nevertheless, he continued to demonstrate disruptive behavior, he continued to be at high risk of bolting and injuring others, and there continued to be behavior incidents such as occasional biting, yelling, stomping of his feet in the classroom and hallways. Because of his behaviors, Student always required two staff persons to be with him at all times throughout the school year, and it continued to be difficult for Amherst to provide Student with a peer group with whom he could learn. Testimony of Peltier, O’ Donovan, Arnett, Bix, Arnett.
With respect to learning, Student has basic matching skills and can do rote activities but has not been able to generalize his learning to other situations. His academic skills are near a pre-elementary school level even though he likely has good cognitive potential. Student demonstrated that he has the ability to learn, particularly within a sufficiently structured and consistent learning environment. However, over the course of the school year, Student made minimal academic progress, principally because the academic environment was not sufficiently structured or consistent for Student. Testimony of Peltier, O’Donovan, Bix; exhibits S-7, S-18.
Student’s learning is also related to his behavior. Without a consistent teaching approach, Student has difficulty learning and, as a result, becomes very frustrated, making behavioral outbursts more likely. Testimony of O’Donovan, Bix.
The FBA, referenced above, recommended that Student requires a highly-structured program and learning environment that includes an ABA program. Mr. Peltier testified persuasively that ABA is the only research-based methodology of instruction that would appropriately address Student’s needs. He explained that ABA methodology is necessary both to address Student’s behavior issues, but, even more importantly, to provide a structured, consistent teaching approach with incentives that will be necessary for Student to learn effectively. Testimony of Peltier; exhibit S-20.
Student lacks a reliable and functional communication system. Many of Student’s aberrant behaviors over the course of the school year were attributable to his having wants and needs that he cannot communicate, resulting in frustration for Student. Student’s limited communication abilities also substantially impair his ability to learn academic and other skills. Testimony of Peltier, O’Donovan, Wilson.
Student requires intensive speech-language intervention. The Amherst speech-language pathologist (Ms. Wilson) recommended direct speech-language services four times per week and an hour of consultation services to ensure that communication is carried over through the other parts of the day, and this was proposed in Student’s IEP. However, because the proposed IEP was not signed, Amherst was only able to implement speech-language services of a half hour, twice per week, pursuant to Student’s Washington IEP. Testimony of Wilson; S-3, S-4.
With respect to his receptive language skills, Ms. Wilson observed that Student could follow some single-step commands within a particular context or within a predictable routing, but his understanding of basic concepts was unreliable. With respect to his expressive language skills, Student was able to use a variety of very simple commands, but it was rare that he would actually initiate communication. Initiating communication is the only reliable way of demonstrating that he is able to communicate his wants and needs. Testimony of Wilson.
Since Ms. Wilson’s speech-language evaluation in October 2009 when Student was able only to reliably use several icons for communication, Student has made improvements in his communication within the context of the therapy sessions. For example, the length of time that he can attend during therapy sessions has increased, and he was able to demonstrate more expressive communication, but this was always within the context of the therapy sessions, and he obtained only a minimal ability to generalize his expressive communication to other contexts. There were also small amounts of improvement in receptive communication, but this was also limited to the therapy context. Testimony of Wilson; exhibit S-15.
Student was able to use his iPod for communication, but he always required prompting to use it. Ms. Bix testified that Student’s iPod was his main communication system. Student could use it accurately 80% of the time, but his communications were generally limited to using icons for the following: bathroom, open the door, snack, and let’s go. He also used body language to communicate. Over the course of the school year, he was never able to progress beyond the iPod; he was never able to learn to use the iPod outside of a structured setting; and he was not able to progress beyond the four icons on his iPod. Testimony of Bix
On the basis of unrebutted and persuasive evidence, I make the following findings and conclusions.
I find that notwithstanding Amherst’s use of at least two staff with Student at all times, Student’s behavior difficulties have continued to interfere with his availability for learning, that providing a safe educational environment is essential for Student to make effective and meaningful progress, and that attending school within the Amherst public school environment makes it difficult for him to remain safe. Testimony of Peltier, O’ Donovan, Arnett, Bix.
I find that in order for Student to make meaningful and effective educational progress commensurate with his educational potential regarding the development of academic and learning skills, he requires a program that is dedicated to and structured for children with Student’s educational profile, and that is based upon ABA teaching principles. Amherst’s proposed IEP calls for such a program, but such a program does not exist within the Amherst School District. Testimony of Peltier, O’Donovan, Bix.
I find that Student has a critical need to develop and be able to use a reliable and functional communication system. He needs to learn that communication is how he can obtain what he wants, rather than escalating into aberrant behaviors. Only with a fully-integrated, total-communication program, will Student have the opportunity to make effective progress and perhaps be able to establish a reliable system of communication that is generalizable. It is imperative that Student be given this opportunity, which he has not previously been given. Amherst’s proposed IEP calls for such a total communication approach. For these purposes, Student requires a substantially-separate program where communication would be worked on consistently throughout the school day in a predictable environment and where there is substantial control over the environment and the communication routines. Within the Amherst School District, it is not possible to structure or control the environment sufficiently for these purposes. Testimony of Wilson, exhibit S-3 (pages 4, 5, 6, 7, 8, and 14 of 25).
I find and emphasize that there is an urgency in addressing Student’s educational needs appropriately. Student is 13 years old and going into 8 th grade. He has good cognitive potential. Nevertheless, he has yet to master basic elementary school skills. Very soon, he needs to begin more rapidly learning basic skills that he must have to move towards being able to work, have friends, participate in recreational opportunities, and otherwise be a valued member of his community. Given an appropriately-structured educational program, Student has the potential to gain substantial skills and abilities that have eluded him to date. Without such an intensive and structured program, that is only available within a substantially-separate placement, Student’s educational and developmental prognosis is not hopeful. Testimony of Peltier.
For these reasons, I conclude that the current IEP that is proposed by Amherst for Student is reasonably calculated to provide him with a free appropriate public education. I further conclude that in order to implement this IEP and to make effective and meaningful educational progress with respect to Student’s behavior, learning and communication needs , he must be placed in a private, out-of-district placement. Amherst should immediately send out packets for the purpose of identifying such an appropriate placement.17
ORDER
Amherst’s most recently-proposed IEP is reasonably calculated to provide Student with a free appropriate public education in the least restrictive environment. Placement in a private, out-of-district placement is necessary to implement the IEP.
In order for Student to receive the special education and related services to which he is entitled, Amherst shall immediately begin the referral process by sending packets to private schools (that may be able to implement the most recent IEP) for the purpose of allowing these private schools to consider Student for placement.18
By the Hearing Officer,
William Crane
Dated: September 9, 2010
Appendix A
COMMONWEALTH OF MASSACHUSETTS
Division of Administrative Law Appeals
Bureau of Special Education Appeals
In Re: Amherst-Pelham Regional School District BSEA # 10-8888
ORDER
In order to apprise the parties in a timely manner of my findings in this case, this Order is issued in advance of a full Decision. The issue addressed by this Order is the appropriateness of Amherst-Pelham Regional School District’s (Amherst-Pelham) most recently-proposed individualized education program (IEP) and whether Student requires a private, out-of-district placement to receive a free appropriate public education in the least restrictive environment. The full decision regarding this issue will be issued no later than 25 days after the close of the record, which occurred on August 19, 2010.
This Order 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 regarding this matter was held on August 18 and 19, 2010 in Springfield, MA before William Crane, Hearing Officer. The official record of the hearing consists of documents submitted by Amherst-Pelham and marked as exhibits S-1 through S-48 and approximately two days of recorded oral testimony and argument. Oral closing arguments were made on August 19, 2009, and the record closed on that date.
I have had an opportunity to review and consider the entire evidentiary record, as well as the arguments of both parties. On the basis of this review, I find that Amherst-Pelham’s most recently-proposed IEP is reasonably calculated to provide Student with a free appropriate public education in the least restrictive environment and that placement in a private, out-of-district placement is necessary to implement the IEP.
I therefore find that in order for Student to receive the special education and related services to which he is entitled, Amherst-Pelham shall immediately begin the referral process by sending packets to private schools (that may be able to implement the most recent IEP) for the purpose of allowing these private schools to consider Student for placement.
By the Hearing Officer,
William Crane
Dated: August 20, 2010
COMMONWEALTH OF MASSACHUSETTS
Division of Administrative Law Appeals
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).
Compliance
A party contending that a Bureau of Special Education Appeals decision is not being implemented may file a motion with the Bureau contending that the decision is not being implemented and setting out the areas of non-compliance. The Hearing Officer may convene a hearing at which the scope of the inquiry shall be limited to the facts on the issue of compliance, facts of such a nature as to excuse performance, and facts bearing on a remedy. Upon a finding of non-compliance, the Hearing Officer may fashion appropriate relief, including referral of the matter to the Legal Office of the Department of Education or other office for appropriate enforcement action. 603 CMR 28.08(6)(b).
Rights of Appeal
Any party aggrieved by a decision of the Bureau of Special Education Appeals may file a complaint in the state court of competent jurisdiction or in the District Court of the United States for Massachusetts, for review of the Bureau decision. 20 U.S.C. s. 1415(i)(2).
An appeal of a Bureau decision to state superior court or to federal district court must be filed within ninety (90) days from the date of the decision. 20 U.S.C. s. 1415(i)(2)(B).
Confidentiality
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.
1
20 USC 1400 et seq .
2
MGL c. 71B.
3
20 USC 1400(d)(1)(A). See also 20 USC 1412(a)(1)(A).
4
The phrase “least restrictive environment” means that, to the maximum extent appropriate for the particular student, the educational services are to be provided with other students who do not have a disability. 20 USC 1400(d)(1)(A); 20 USC 1412(a)(1)(A); 20 USC 1412(a)(5)(A); MGL c. 71B, ss. 2, 3; 34 CFR 300.114(a)(2(i) ; 603 CMR 28.06(2)(c).
5
See Burlington v. Mass. Department of Education , 471 US 359, 369 (1985) (“The Act contemplates that such education will be provided where possible in regular public schools, with the child participating as much as possible in the same activities as nonhandicapped children, but the Act also provides for placement in private schools at public expense where this is not possible.” ).
6
20 USC 1414(d)(1)(A)(i)(I)-(III); Honig v. Doe, 484 U.S. 305, 311-12 (1988) ; Bd. of Educ. of the Hendrick Hudson Central Sch. Dist. v. Rowley, 458 U.S. 176, 182 (1982).
7
Lenn v. Portland Sch. Comm., 998 F.2d 1083, 1086 (1 st Cir.1993) (internal quotations and citations omitted).
8
Irving Independent School District v. Tatro , 468 U.S. 883, 891 (1984) (internal quotations omitted), quoting Rowley, 458 U.S. at 192.
9
Bd. of Educ. of the Hendrick Hudson Central Sch. Dist. v. Rowley, 458 U.S. 176, 207 (1982).
10
Lenn v. Portland Sch. Comm., 998 F.2d 1083, 1090 (1 st Cir.1993) (requiring that at a minimum the school district must provide student with “a meaningful, beneficial educational opportunity”), quoting Town of Burlington v. Dep’t of Educ ., 736 F.2d 773, 789 (1st Cir. 1984), aff’d 471 U.S. 359 (1985); Ferren C. v. School Dist. of Philadelphia , — F.3d —-, 2010 WL 2735716 (3 rd Cir. 2010) (“ at a minimum, the IEP must be reasonably calculated to enable the child to receive meaningful educational benefits in light of the student’s intellectual potential,” citing Rowley , 458 U.S. at 189 (internal quotations omitted)); DB v. Sutton, 07-cv-40191-FDS (D.Mass. 2009) ( “meaningful progress … is the hallmark of educational benefit under the [federal] statute” ).
11
20 USC 1400(d)(4) (purposes of this title are . . . to assess, and ensure the effectiveness of , efforts to educate children with disabilities” (emphasis added); North Reading School Committee v. Bureau of Special Education Appeals, 480 F.Supp.2d 479, 489 (D.Mass. 2007 ) (educational program “must be reasonably calculated to provide effective results and demonstrable improvement in the various educational and personal skills identified as special needs”), quoting Lenn v. Portland Sch. Comm., 998 F.2d 1083, 1090 (1 st Cir. 1993) and Town of Burlington v. Dep’t of Educ., 736 F.2d 773, 788 (1 st Cir. 1984), aff’d 471 U.S. 359, 105 S.Ct. 1996, 85 L.Ed.2d 385 (1985); 602 CMR 28.05(4)(b) (“The Team shall … include specially designed instruction or related services in the IEP designed to enable the student to progress effectively in the content areas of the general curriculum.”). Also, in the instant dispute, the School District’s proposed IEPs for Student are framed in terms of his receiving specially designed instruction and accommodations “necessary for the student to make effective progress.” Exhibits S-3, S-4.
12
Lessard v. Wilton Lyndeborough Cooperative School Dist. , 518 F.3d 18, 29 (1 st Cir. 2008).
13
MGL c. 71B, s. 1. See also 603 CMR 28.01(3) ( purpose of regulations as “to ensure that eligible Massachusetts students receive special education services designed to develop the student’s individual educational potential.”).
14
Rowley, 458 U.S. at 197, n.21 (“ Whatever Congress meant by an “appropriate” education, it is clear that it did not mean a potential-maximizing education.”).
15
G.D. v. Westmoreland Sch. Dist., 930 F.2d 942, 948 (1 st Cir. 1991). See also Lt. T.B. ex rel. N.B. v. Warwick Sch. Com., 361 F.3d 80, 83 (1 st 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.”).
16
Schaffer v. Weast , 546 U.S. 49, 62 (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” ).
17
Ms. Wilson testified that another IEP Team meeting is needed to discuss fully what pieces of the assistive technology consultation should be incorporated into Student’s IEP. I recommend, but do not require, that Amherst follow her recommendation.
18
The decision as to the particular private placement that Student will attend must be a Team decision, thus allowing Mother a full opportunity to participate in discussions and selection of her son’s school.