COMMONWEALTH OF MASSACHUSETTS
BUREAU OF SPECIAL EDUCATION APPEALS
In Re: Boston Public Schools BSEA # 05-3623
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 ch. 71B), the state Administrative Procedure Act (MGL ch. 30A) and the regulations promulgated under these statutes.
Parent/Student filed their Request for Hearing on June 16, 2005. The Hearing was originally scheduled for September 12 and 13, 2005, but the Parties released those days believing that the case would resolve. Thereafter, Parent/Student filed an amendment of the Hearing to include Boston’s failure to provide Student a transition plan that would enable him to reach his stated goal of reaching a post-secondary education. Boston did not object to the Parent/Student amendment of the Hearing Request. A hearing in the above referenced matter was held on October 4 and 5, 2005 in Malden, MA before Hearing Officer Rosa I. Figueroa. Those present for all or part of the proceedings were:
Student
Student’s Mother
Judith Wisnia Speech-Language Pathologist, Wisnia and Associates
Alice Wan Teacher, Boston Public Schools
Annie Jean-Jacques Ed Law Project
Maryann Malloy BPS Assistant program Director
Marlies Spanjard Ed Law Project
Shruji Desai Ed Law Project
Susanne Pringle Ed Law Project
Kara Lynch Speech-Language Pathologist, Boston Public Schools
Jenny Chou Attorney for Parent and Student
Andrea Alves Thomas Attorney for Boston Public Schools
Tonda Walker Learning Disabilities Teacher, Boston Public Schools
The official record of the hearing consists of documents submitted by the Parent and marked as exhibits PE-A1 through PE-Q1 ; documents submitted by the Boston Public Schools (Boston) and marked as exhibits SE-1 through SE-6; recorded oral testimony and arguments. At the joint written request of the parties, the date for submission of written closing arguments was extended through October 28, 2005. Written closing arguments were received on October 28 th and the record closed on that date.
ISSUES
1. Is the IEP most recently proposed by Boston covering the period from December 2004 through December 2005 (PE-A; SE-1) reasonably calculated to provide Student with a free appropriate public education (FAPE) in the least restrictive environment?
2. If not, can additions or other modifications be made to the IEP in order to satisfy this standard?
3. If not, to what program and placement is Student entitled?
4. Were the IEPs for the period between 2002-2003 and 2003-20042 reasonably calculated to offer Student a FAPE in the least restrictive environment appropriate to meet his needs?
5. Did Boston fail to offer Student the WKRP instruction in lieu of English, as agreed to by the parties?
6. Did Boston fail to provide Student with a transition plan that would enable him to transition successfully into his stated goal of pursuing post-secondary education?
7. If not, is Student entitled to compensatory education as a result of Boston’s transgressions and failure to provide agreed upon services?
POSITION OF THE PARTIES
Parent’s/Student’s Position:
Parent/Student assert that Boston failed to provide Student the intensive language-based, multi-sensory, rule-based specially designed instruction, across all areas of the curriculum required by Student to make effective progress towards his goals. Boston further failed to provide agreed upon services by qualified instructors. Specifically, it did not offer Student appropriate WKRP instruction and did not implement the assistive technology tools at home or in all settings in school.
Additionally, Boston failed to prepare a transition plan for Student and has not provided any transition services whatsoever. Instead, Boston has continued to promote Student, year after year, and now he is in the twelfth grade even though he lacks the necessary basic academic and practical skills needed to function independently in life. Student still relies tremendously on his mother and other family members to complete assignments and navigate through life.
As a result of Boston’s denial of FAPE, Student is a 12 th grader ill equipped to transition into his stated goal of pursuing secondary education. Therefore, Student is entitled to receive WKRP at Judith Wisnia and Associates, should be placed in a real language-based program, and should receive compensatory education for Boston’s failure to offer necessary and/or agreed upon services.
School’s Position:
Boston affirms that it has provided Student a FAPE in the least restrictive environment over the past several years. Student’s placement for the 11 th and 12 th grades, while not designated a specific language based classroom, incorporates many elements of such a setting and constitutes the least restrictive placement for Student. Student’s teachers and providers are trained in WKRP. Student’s lead teacher has seen him make significant but limited progress over the years and he passed the tenth grade portions of his MCAS.
Ms. Wisnia has never observed Student’s substantially separate classroom in Boston and her testimony is unclear as to what Student needs at this juncture. Should Boston’s IEP be found to be deficient in any way it can be modified to provide additional services and keep Student in the least restrictive environment.
Boston affirms that it has been offering Student services consistent with his last accepted IEP (2002-2003) as Parent has fully or partially rejected the following IEPs and also chose not to allow to transfer Student to a different BPS school when this was offered in the ninth grade. Nevertheless, Student has attended a substantially separate class with a special education teacher who implemented many of the methodologies recommended for Student by MGH and those that appeared in the rejected IEPs enabling Student to make effective progress and therefore, no compensatory services should be awarded.
FINDINGS OF FACT
· Born on February 28, 1987, Student is an eighteen year-old resident of Boston who presents with severe language-based learning deficits, dyslexia and Attention Deficit Disorder. (PE-A; Testimony of Parent) Parent and Ms. Lynch also described him as having memory issues. (Testimony of Parent, Ms. Lynch) Student is currently in the 12 th grade at Charlestown High School. (PE-A1) He has received all of his education, including special education services since the fourth grade, through the Boston Public School system. (PE-N; PE-O; PE-P)
· Student has been described as a considerate, respectful, well-mannered, perseverant, cooperative young man who is very motivated to learn. (PE-A1; PE-G; PE-E; Testimony of Mother, Ms. Wisnia, Ms. Lynch, Ms. Walker) His reading and writing difficulties have seriously impacted his ability to access substantive material across curriculum subjects. (Testimony of Ms. Lynch, Ms. Walker, Parent, Student, Ms. Wisnia, Ms. Wan)
· Throughout middle school, Student was placed in a substantially separate classroom and he received speech and language therapy. (Testimony of Parent)
· During the 2002-2003 school year, Student transitioned to Charlestown High School for the ninth grade under an accepted IEP prepared by his eighth grade Team. (PE-J; Testimony of Parent) This IEP called for special education services for Reading, math, social studies and science, with twice per week communication services with the speech and language therapist. (PE-J) Student however, commenced the ninth grade placed in regular education with resource room assistance for English and math, in addition to two sessions per week of speech and language services. (PE-M; PE-J; Testimony of Parent) His resource room teacher, Ms. Alice Wan, became concerned that Student needed more than resource room assistance; he needed actual special education instruction. (Testimony of Ms. Wan) Ms. Wan stated that she communicated her concerns to the special education director at Charlestown High School. Student’s speech and language therapist also became concerned that Student’s needs were great. (Testimony of Ms. Kara Lynch) Parent testified that she attended an open house at Charlestown High School and it was then that she realized that Student was not receiving special education services as he had in the past. (Testimony of Parent)
· After beginning in Charlestown High School teachers referred Student for reevaluation, which was completed in the fall of 2002. Kara Lynch, Ms, CCC-SLP in Boston Public Schools, performed the speech and language evaluation. (PE-K) Testing revealed that Student had significant deficits in the area of reading and phonological processing with skills clustered around the second grade level for a then fifteen year old Student. Ms. Lynch recommended direct reading instruction to improve decoding skills and sight word vocabulary. (PE-K) Psychological testing conducted by Roy Bono found Student to fall within the deficient range for reading, spelling and written arithmetic skills as measured by the WRAT-3 with visual motor integration skills falling within the low average range as assessed by the VMI. (PE-L) On the WISC-III, Student’s verbal scale scores fell within the borderline range (3 rd percentile) and his performance scale scores within the average range (50 th percentile). Significant strengths were noted in the Picture Arrangement and the Picture Completion subtests. Significant weaknesses were noted on the Information and the Arithmetic subtests as well as on the Digit Span subtest. These results suggested that he would have difficulty attending to auditory information presented at a rapid pace. (PE-L)
· Student’s Team convened on or about December 13, 2002 and recommended that Student receive reading, science, math and social studies in a substantially separate classroom, as well as continue with two 45 minutes each speech and language therapy sessions per week, at Charlestown High School. (PE-J) The IEP describes Student as a non-reader. (PE-J) According to Boston, no substantially separate classroom was available for Student at Charlestown High School but Parent agreed to allow Student to complete the ninth grade in his then current placement, which combined instruction in the resource room with inclusion in regular education classrooms. (PE-J) Boston agreed to place Student in a learning disabilities classroom in September 20033 . (PE-J) Parent testified that during this period she was waiting to have someone from Boston contact her to go see potential classrooms in other Boston schools. (Testimony of Parent)
· Kara Lynch, Student’s speech and language therapist at Charlestown High School, testified that during Student’s ninth grade and over the following two more years, she incorporated elements of the Wisnia Kapp Reading Program (“WKRP”) during the twice per week speech and language sessions. (Testimony of Ms. Lynch) This reading program uses multiple activities that focus on the development of phonemic awareness, phonics, fluency, automaticity, vocabulary development, reading comprehension and auditory processing skills. (PE-E) Ms. Lynch also referred Student to the Massachusetts General Hospital Speech, Language and Literacy Clinic (MGH), which he began to attend during his sophomore year. (Id.)
· Testing performed at Massachusetts General Hospital Institute of Health Professions, Graduate Program in Communication Science and Disorders (MGH-IHP) in October 2003 found Student to score significantly below average in the areas of language comprehension, language expression, phonological awareness and in written language. (PE-I; PE-G) The evaluators recommended that Student receive two 45 minutes each sessions per week of therapy at MGH-IHP Speech/Language and Literacy Clinic which focused on improving his oral and written language skills. (PE-I) Student received speech and language services at MGH-IHP, using WKRP and other multi-sensory approaches, between fall 2003 and spring 2004. (SE-1) Throughout this period, Kara Lynch also used WKRP in her twice per week sessions with Student as she opined that reading was Student’s greatest area of need. (Testimony of Ms. Lynch)
· Student’s Team met again on December 19, 2003. (PE-Q) The IEP generated as a result of this meeting offered Student, then a tenth grader, participation in a substantially separate, language-based classroom for English, Math, History and Science, with twice per week, 45 minute each, speech and language services to be provided by Kara Lynch. (PE-Q) The IEP further proposed that Student’s classroom education be offered in small groups, with a multi-sensory approach, along with numerous other accommodations, to wit, have directions repeated, provide a scribe, allow extra time to complete assignments, provide auditory and visual cues, probing to increase verbal responses and positive reinforcement. (PE-Q) It states that,
… The main area of concern is his reading. He has difficulty with letter symbols and number symbols… a strong auditory learner. However, he also has poor short-term memory skills which require constant repetition and instruction. He possesses critical thinking skills and can make predictions, connections, and analyses. He has poor decoding skills and does not do well phonetically. Math is also difficult for Student. Student does show effort and is interested in doing well. He is very dependent on one-to-one assistance from teachers or classroom peers. A setting that is slow-paced and provides extra time is crucial for his academic development. (PE-Q)
· The 2003-2004 IEP further states that in addition to serious reading difficulties, Student had great deficits in written expression, he required a scribe, was below average in math and had difficulties with short term memory. (PE-Q) The IEP noted that Student was attending an after school reading clinic two days per week at MGH and was reported to have implemented many of the techniques learned in therapy at MGH and to have shown some improvement. (PE-Q; PE-G) Parent rejected this IEP because it lacked sufficient reading support for Student. (Testimony of Parent) This IEP did not offer Student participation in a language-based classroom. ( Id. )
· On February 26, 2004, Boston forwarded to Parent a placement notification, which called for Student to receive “specially designed instruction in a Language Based class in a substantially Separate Setting at Brighton High School.” (PE-H) According to Parent, she called Brighton High School to learn more about the proposed program and to ascertain whether it was appropriate for Student. She testified that she was told by Brighton staff that there was no language-based classroom at Student’s grade level, but rather another substantially separate classroom very much like the one Student was in at Charlestown. (Testimony of Parent) The notice stated that Student who was eligible to receive special education services was not making effective progress in the classroom and therefore required specially designed instruction. (PE-H) Parent rejected this offer because she did not want Student to have to leave Charlestown halfway into the school year, only to transfer to a program that was essentially like the one Student was already in. (Testimony of Parent)
· Student was evaluated at Massachusetts General Hospital Institute of Health Professions, Graduate Program in Communication Science and Disorders, between March 29 and April 12, 2004. (PE-G; PE-E) He had originally been referred to the Speech and Language and Literacy Clinic by his speech and language pathologist during the 2003-2004 school year. Student, then seventeen years old, was found to present with severe expressive and receptive language disorders partly due to a “weak underlying spoken language system.” ( Id. ) Testing scores for all subtests of the Clinical Evaluation of Language Fundamentals-3 (CELF-3) , including Concepts and Directions, Semantic Relationships, Word Classes, Listening to Paragraphs, Formulated Sentences, Sentence Assembly, and Recalling Sentences placed him at the bottom first and second percentiles (age equivalence between 5.0 and 7.8 for all but one subtest, blending words, where he fell in the 14.9 age range placing him in the average range). The same was true for Receptive and Expressive Composite scores as well as the Total score. In the Comprehensive Test of Phonological Processing (CTOPP) , the Woodcock Reading Mastery Test- Revised (WRMT-R) Student scored in the below average performance level in most areas. (PE-E) He was also administered the Test of Written Spelling, in which he ranked below 1 percentile (below first grade equivalence), and the Phonological Awareness Test (PAT) in which he did better. (PE-G) It was recommended that Student
… continue to receive services in the area of spoken and written language, particularly his decoding abilities and phonological awareness skills. Therapy should be systematic and structured, involve explicit teaching, constant spiral back, and utilize multi-sensory input. The program that is recommended is the Wisnia-Kapp Reading Program (WKRP), and should also incorporate the Simultaneous Oral Spelling (S.O.S.) technique to aid in spelling. ( Id. )
It was also recommended that to ensure that Student remained motivated during each session, all goals and objectives be scaffolded to a 90-100% accuracy. (PE-G)
· Further testing performed at MGH-IHP in the fall 2004, showed relative strength in vocabulary comprehension and sound symbol correspondence, with significant weaknesses in expressive spoken language (especially in semantics and morphosyntax), in writing and reading. (PE-A1) He showed inconsistent ability to apply his knowledge for decoding. This deficiency in decoding ability was attributed to Student’s weaknesses in underlying spoken language and phonological awareness. (Id.) Other areas of difficulty included phonological processing with weaknesses with phonological awareness, memory and rapid naming. Significant weaknesses were also found in orthographic processing and encoding. The result was poor performance in reading comprehension. (PE-A1)
· In October 2004, as a result of a mediation between the Parties, Boston agreed to fund a 20 hour diagnostic screening with Judith Wisnia during the holiday break. (Testimony of Parent, Student, Ms. Wisnia)
· On October 29 and November 8, 2004, Susan Dubuske, Assistive Technology Assessor, observed and interviewed Student, his teacher and service provider as part of an assistive technology evaluation performed on behalf of Boston. (SE-4; PE-F) Boston contracted with Ms. Dubuske after Parent raised concerns over Student’s difficulties accessing the high school curriculum. (SE-4) In her report dated November 27, 2004, the assessor stated that Student’s disabilities affected his ability to read and process written material, he was slow and deliberate when writing in manuscript form, and had poor spelling. Student was observed working quietly and thoroughly during his Math and English classes. He was described by his teachers as “a good student who worked hard despite his difficulties with reading comprehension and writing.” (SE-4; PE-F) He was cooperative and pleasant during the assessment and reported preferring “auditory input paired with visual cues during learning to reinforce important concepts and new information” as reading and writing slowed him down impacting negatively on his comprehension and recall sequencing. (SE-4; PE-F) He had basic computer skills and reported that his keyboarding skills were fair. In elementary school he used the Alpha Smart briefly. Student had used graphic organizers in some of his classes and did not use an assignment book though he was able to keep assignments organized and completed them in a timely fashion. ( Id. )
· Boston’s assistive technology consultant recommended that Student use an assignment book to record assignments and a software program called Inspiration to help him establish a time frame and help with the sequencing steps involved in writing and assignment completion. (SE-4) Additionally, Ms. Dubuske recommended the use of graphic organizers, books on tape, the Alpha Smart (an alternate keyboard) including the Co-Writer word prediction program and the Lexia software program. Lastly, she recommended virtual applets through Boston’s Select Math Program on line, to address the Math difficulties. (SE-4)
· Student’s Progress Reports for the period through November 2004 state that while Student was motivated, cooperative and enjoyed school, his progress was limited due to his reading and writing deficiencies. (PE-D) He required teacher assistance to complete his assignments. The speech-language therapy report endorses use of the WKRP Reading program, as well as use of Co-writer (a word prediction program) for writing. Ms. Lynch recommended that Student have access to the co-writer program throughout the day. She stated that she supplemented Student’s reading program with Megawords and Phonics for Older Students. (PE-D)
· Student’s Team convened again on December 16, 2004 for the annual review and to draft the IEP covering the period from December 2004 (Student’s 11 th grade second semester) through December 2005 (first semester of Student’s 12 th grade). (PE-C) Under this IEP Student would remain in the substantially separate classroom and would continue to receive speech and language services twice per week with Ms. Lynch. This IEP included reading support and use of assistive technology at Charlestown High School. The narrative description of the school’s program mentions Parent’s request for additional reading and assistive technology interventions. (PE-C) The previous year’s accommodations continued to be implemented throughout this period. Student would receive preferential seating, use of assistive technology and a master notebook to support study skills. (PE-C) To date Student continues to receive educational services in Boston under this model.
· This IEP also calls for use of the WKRP through the resource room teacher and speech-language therapist and notes that “WKRP will constitute [Student’s] English Language Arts requirement” and also notes that monthly progress reports regarding WKRP will be provided. (PE-A; SE-1) The IEP further states that the following specially designed instruction is necessary for Student to make effective progress:
multi-sensory, rule-based reading program; Alpha Smart with Co-writer; Inspiration; manipulatives; tape recorder as assignment tool; books on tape. (PE-A; SE-1)
· On December 21, 2004, Boston forwarded the 2004-2005 IEP to Parent. (PE-C) This IEP was rejected by Parent. (Testimony of Parent)
· During the 2004-2005 school year (and through the present time) Student was placed in Tonda Walker’s substantially separate classroom for learning disabled students. (Testimony of Ms. Walker) Ms. Walker is a certified special education teacher at Charlestown High School. She has received training in multiple rule based reading programs. She uses multi-sensory approaches to teaching, vocabulary previewing, writing prompts, discussion of reading before initiating reading assignments and graphic organizers. (Testimony of Ms. Walker) Ms. Lynch shared information with Ms. Walker during that year. (Testimony of Ms. Lynch; Ms. Walker) The IEP however, did not provide any consultation time for Ms. Lynch to consult with any of Student’s teachers. (PE-C; PE-1; SE-1)
· In December 2004 Boston contracted with Judith Wisnia to conduct twenty (20) hours of diagnostic testing for Student. (PE-E; Testimony of Parent, Ms. Wisnia)
· Ms. Wisnia’s initial screening took place on December 9, 2004 and was followed by a 20 hour intense diagnostic therapy program from December 22, 2004 through January 3, 2005, during which Student built on, and expanded, on the WKRP program he was receiving at Charlestown High School. (PE-E; Testimony of Ms. Wisnia) The intense therapy program was conducted at Parent’s request. The initial screening revealed that while this 17.10 year-old Student knew most of his sounds, he was unable to read at a functional level. Student stated that his goal for the intensive therapy was to learn how to read as he wished to go to college when he graduated to better his life. ( Id. )
· Between December 22, 2004 and January 3, 2005, Student received between two and three hours of therapy each weekday except one. (PE-E; Testimony of Ms. Wisnia) Most of the sessions took place during Student’s vacation time and in order to get to the Judith Wisnia and Associates (JWA) site, he had to take multiple MBTA trains and buses. ( Id. ) The demands on Student during this period were significant but according to Ms. Wisnia, Student’s determination never wavered. The sessions were spent working on “phonemic awareness, phonics, fluency and automaticity, vocabulary development, reading comprehension, and auditory processing skills” using a variety of activities to increase Student’s ability to “encode and decode words, reinforce sounds, improve his phonological awareness and knowledge of grapheme/phoneme correspondence, and help him break down and blend syllables.” (PE-E) While formal testing was not administered while Student was at JWA, the results of his daily Fischer Speed Drills and G Speed Drills for Sight Words showed an increase in fluency and automaticity. Student improved in his ability to encode and decode words as well as in reading elementary texts. By the end of the 20-hour period Student’s self-confidence had increased and he referred to his new found knowledge of reading as “a miracle.” (PE-E)
· Ms. Wisnia recommended that Student:
1. … should continue to receive an intense program similar to the intense diagnostic therapy program, using WKRP Methodology and the other various programs (i.e., Fisher Drills, G Drills, etc.) that he has been receiving at JWA so his progress may continue. (Suggested time: 2-3 hours per day).
2. [Student] should receive training using the FastForWord program to help him with auditory processing skills. (Suggested time: 1 ½ hours per day for four to six weeks).
3. [Student] would benefit from placement in a language-based school.
4. [Student] would benefit from the use of assistive technology programs (e.g., Dragon Software, Inspiration, etc.)
5. [Student] needs to have access to and utilize books on tape for the blind and dyslexic in order to compensate for the difference between his ability to read and his ability to comprehend.
6. [Student] should have up to date Neuropsychological Testing to help find the best ways to assist him in all of his academics. (PE-E)
· In January 2005 Student’s Team reconvened to discuss the results of the assistive technology evaluation and the diagnostic testing performed by Ms. Wisnia. (PE-E) Ms. Wisnia recommended that Student receive three (3) hours per week of WKRP. ( Id. )
· Ms. Wisnia offered to provide Student’s Boston staff training in WKRP instruction, free of charge, but was never contacted regarding her offer. (Testimony of Ms. Wisnia)
· Student’s Speech and Language Progress report for the period through February 2005 states that Student was using the WKRP Reading program to learn the rules of English. (SE-5; PE-D) Ms. Lynch found this program to be appropriate for him given its multi-sensory approach. His ability to sound out words was found to have increased significantly with the WKRP program, the use of supplemental sheets and Lexia. His awareness of words repeated within the text had also improved and he was beginning to question irregular words more often, all essential steps in becoming a skilled independent reader. (SE-5; PE-D) For the first time Ms. Lynch reports being pleased with Student’s progress. ( Id. ) In May 2005, Ms. Lynch restated most of the comments made in her February progress report and added some specific examples of areas being worked on. (PE-D) She recommended that Student be encouraged to read over the summer both independently as well as with someone else to continue to hone the skills worked on during the year. (PE-D)
· In February 2005, Parent and Boston engaged in mediation in an attempt to resolve their differences. The mediation resulted in an amendment to Student’s IEP under which Student would receive a one-on-one, forty-five minute session of WKRP five times per week. This session, which was provided by Ms. Alice Wan, would constitute Student’s English Language Arts requirement. Student’s IEP was amended to reflect the agreed upon changes and he began working with Ms. Wan in March 2005. (PE-1; SE-1; Testimony of Ms. Wan, Parent) Under this agreement Student would meet with Ms. Wan during the first period daily to receive WKRP instruction. (Testimony of Ms. Wan, Student) New reading and language arts goals and objectives, prepared by Judith Wisnia, were added to the IEP. These addressed the areas of decoding, expressive and receptive language processing, executive functioning and assistive technology. (PE-A; Testimony of Ms. Wisnia, Parent)
· Alice Wan is an English teacher at Charlestown High School. (Testimony of Ms. Wan) Between March and June 2005 she met with Student during the first period of the day. According to Boston, Student was tardy ten times and absent 19 times. ( Id .)
· Ms. Wan testified that she was not comfortable in providing the WKRP instruction because she had only been trained in it back in 1990, and had never again used it. (Testimony of Ms. Wan) She did not understand the reasons behind the one-on-one sessions other than that Student required an English class and her schedule fit Student’s time slot. ( Id. ) She stated that she had to look at the WKRP books again and asked Student to look up words in the dictionary, practice sounding them out and had him memorize them. (Testimony of Ms. Wan, Student) Ms. Wan did not provide a substantive English/Language arts curriculum during her sessions and was not aware that she would be responsible to grade him. She finally provided him with a pass/fail grade for their sessions. (Testimony of Ms. Wan)
· From April 1 through April 22, 2005, Student was evaluated over six sessions by Ann Waters, M.S., CCC-SLP, Clinical Supervisor and Jeanet Horgan, B.A., A.L.M., Graduate Student Clinician, of Massachusetts General Hospital Institute of Health Professions Speech and Literacy Clinic. (PE-A1) Testing spread over several treatment sessions was believed to be valid and reliable. Student was in the eleventh grade at the time of this evaluation. It included the following instruments: “ Clinical Evaluation of Language Fundamentals, 4 th edition (CELF) : Understanding Spoken Paragraphs subtest, Woodcock Reading Mastery tests-Revised (WRMT-R) : Word Identification, Word Attack, and passage Comprehension subtests, Comprehensive Test of Phonological Awareness Test (PAT) ; Graphemes and Decoding subtests, Test of Word Reading Efficiency (TOWRE) , Comprehensive Assessment of Spoken Language (CASL) : Sentence Comprehension of Syntax subtest, “Dolch” word list: preprimer, primer, and first grade levels, Oral reading of decodable text passage from Wisnia-Kapp Reading Program workbook #1 and comprehension questions from text (informal measure), and Spelling one-syllable words consisting of five syllable types (informal measure).” (PE-A1) Except for the PPVT-III where he scored in the average range, he scored between the significantly below average and the low average range for receptive and expressive language, phonological processing, automaticity and fluency, and reading comprehension. He did slightly better in written language regarding some areas of the PAT but the overall scores for word attack and word identification still fell within mostly significantly below average. (PE-A1) The therapy sessions at MGH focused on improving “grapheme-phoneme correspondence [which was found to be inconsistent], phonological awareness, decoding, sight word recognition, automaticity and fluency, functional structural analysis [including high-frequency Anglo-Saxon prefixes and suffixes], reading comprehension, and encoding.” (PE-A1) In the evaluators’ opinion, Student had made gains since the fall of 2003 regarding his spoken language skills. He exhibited weaknesses with his orthographic processing skills especially when performing under time constraints. His ability to read high frequency words at the preprimer, primer, and first grade levels of the “Dolch” word list declined. Given scaffolding, Student evidenced progress in his ability to read with fluency and accuracy, and he was able to comprehend decodable text and his self-monitoring skills had improved. According to the evaluators, Student’s reading and writing difficulties result from his weak phonological processing skills. They noticed that in spite of his severe weaknesses, Student’s pragmatic skills and ability to ask questions during therapy had improved. The evaluators were under the impression that Student was in a language-based classroom and that he was receiving speech and language therapy twice per week. (PE-A1)
· The evaluators described Student as an extremely considerate and polite young man who appeared attentive, cooperative and motivated to learn during all of his sessions at MGH. (PE-A1) The clinicians noted progress in that Student used to answer questions with one word answers whereas by the end of the sessions he engaged in spontaneous discourse with the clinicians, appeared more inquisitive and brought reading materials of interest to him to practice oral reading skills with the clinicians. ( Id. )
· The MGH therapists recommended that Student continued to receive spoken and written language therapy, which should be based on a multi-sensory language approach that is: “structured, systematic, explicit, multi-sensory (visual, auditory, and tactile/kinesthetic input), rule-based, providing opportunities for review and practice and incorporating meaningful associations.” (PE-A1) Student should be given some degree of choice so as to address his areas of interest. (PE-A1) An approach such as Orton-Gillingham was recommended. Additional, more specific short and long term goals and objectives were enumerated (see PE-A1 pp 9 and 10).
· Student’s Team met again on May 18, 2005, to review the IEP covering the period December 2004 through December 2005. (PE-A; SE-1; Testimony of Parent) Parent had requested more intensive reading supports for Student which should be integrated across the curriculum, additional training for assistive technology and summer services through Wisnia and Associates. (Testimony of Parent) The grid in the IEP specifically calls for four hours per week, 48 minutes each, substantially separate instruction in English, Math, History, and Science. (PE-A; SE-1) Student would also receive two, forty five minute speech and language sessions with the speech and language therapist. ( Id. ) This IEP reports that Student was covering Algebra and Geometry in Math and that his overall performance in this area was at the sixth to seventh grade level. (PE-A; SE-1)
· The IEP reflected Boston’s agreement to provide Student with WKRP instruction which would be delivered by the resource room teacher and the speech and language therapist, as amended via a mediation agreement as a way to fulfill Student’s English and Language Arts requirements. (PE-A; SE-1) Parent would receive monthly progress reports regarding Student’s progress in this area. (PE-A; SE-1)
· Student’s IEP assigned him a scribe to read and write for him. (PE-A1) Other accommodations included multiple repetitions and no time constraints during testing, modified subject content based on Student’s functioning level, cooperative learning, preferential sitting, use of assistive technology and a calculator. (PE-A; SE-1) Student would receive books on tape and would be provided with the Alpha Smart with Co-writer, and use a master notebook to support study skills. (PE-A; SE-1) A page and a half of additional specific goals and objectives in the areas of word identification/ decoding skills, language/receptive/expressive/processing, executive function-study skills and computer based activities (including FastForWord), is attached to this IEP. ( Id. ) Boston did not present Parent with any proposal regarding an extended school year program and the box in the IEP which asks whether Student requires a longer year is checked “no”. (SE-1; PE-A)
· Between 2004 and the Hearing in October 2005, Student continued to receive his education in Ms. Walker’s substantially separate program, he received speech therapy twice per week with Ms. Lynch, and between 2004 and spring 2005, participated in after school tutoring at MGH twice per week. According to Boston, Student will be ready to graduate in June 2006. (Testimony of Ms. Lynch, Ms. Walker, Parent)
· Student’s report card for the 2004-2005 school year, the eleventh grade, show that he was absent 27 times, was tardy 29 and that he received a C in all of his courses. (SE-2; SE-3C) During the 2003-2004 school year, his 10 th grade, he was absent 11 times, was never tardy and received a C in all of his classes except for Airforce ROTC 2, College English 10 A/B and College English 12 for which he received Ds. (SE-2; 3B) In 9 th grade, the 2002-2003 school year, he was absent 12 times, tardy 2 and received an A+ in ELA Fund 10 and History/SS Hilt 2, an F in Math Fund 9 and in Algebra 1A, and a C in Unified Science and in Airforce ROTC2. (SE-2; SE-3A) In the 2001-2002 school year, he was absent 8 times, tardy 2 and received a C in ELA 8, History 8 and Global Issues, a D in History 7, B in Math Enrichment, Health Education and Dance, an F in Mathematics 8, a D+ in Unified Science 8, and an A in Physical Education 8. (SE-2)
· Student received a “needs improvement” in Math and passed his English Language Arts tenth grade MCAS using accommodations. ( Id. ; PE-A; SE-6) According to Student, in the English portion of the MCAS, the questions were read to him, he dictated the answers which the scribe wrote down and then Student copied what was written by the scribe. Student was not asked how to spell words or provide punctuation during the composition process. (Testimony of Student)
· On June 15, 2005, Parent formally rejected Student’s IEP. (PE-B; Testimony of Parent) According to her, Student required immersion in a language-based program, which was not available to him in his then current placement. In order for Student to make effective progress, he required “intensive instruction in a structured, rule-based reading program for a minimum of two to three hours per day, as well as integrate the approach across his entire curriculum…” (PE-B) Parent also raised concerns as to whether previous recommendations made by Judith Wisnia and Susan Dubuske had ever been implemented. Assistive technology recommendations such as the benefits of having access to Alpha Smart with Co-writer at home and in school, computer training in Inspiration 7.5, tape-recorder for assignments and books on tape, had not been fully implemented. The IEP failed to mention how the assistive technology tools would be used across all areas of Student’s curriculum and/or how Boston would conduct training and then supervise appropriate implementation throughout the day. Furthermore, the IEP fails to provide the continuum of programming across Student’s entire school day needed by him to receive a FAPE. Lastly, Parent challenged Boston’s disregard of Student’s need to participate in an extended school year intensive reading program with an appropriately trained provider and access to assistive technology. (PE-B)
· Over the years Student has been very clear that he is interested in going to college. All of his teachers and service providers were aware of this goal. (Testimony of Parent, Ms. Wisnia, Student, Ms. Lynch; Ms. Walker) Nevertheless, the vision statement in his IEPs state only that Student would like to improve his academic skills and graduate. (PE-A; SE-1) The expected graduation date is June 2006. Student’s post secondary education goals were never reflected in his IEPs, there was never any discussion regarding a transition plan, nor is there any transition plan reflected in the IEPs. (Testimony of Parent, Student, Ms. Walker, Ms. Lynch; PE-C; PE-J; PE-Q; PE-M)
· During July and August 2005, Student received ten hours per week of reading services at JWA at a rate of $75.00 per hour. (Testimony of Parent, Ms. Wisnia) The services consisted of intensive WKRP reading instruction, fluency drills, FastForWord, executive functioning skills development and fund of knowledge skills development. (Testimony of Ms. Wisnia) By the end of the summer, Student had gone from being a second grade level reader to a fourth grade level. (Testimony of Ms. Wisnia)
CONCLUSIONS OF LAW
There is no dispute that Student is an individual with a disability, falling within the purview of the Individuals with Disabilities Education Act4 and the state special education statute.5 As such, Student is entitled to a free appropriate public education (FAPE).6 Neither his eligibility status nor his entitlement to FAPE is in dispute.
The areas of disability that impact his education are also not in dispute. The issue before me is whether Student’s needs have been and can continue to be appropriately addressed by Boston, whether Boston offered the agreed upon services, provided a transitional plan and services, and if not, whether Student is entitled to compensatory services. Upon careful consideration of the evidence before me, I find that the program and services offered by Boston to Student for the 2004-2005 school year fail to offer Student a FAPE in the least restrictive environment to address Student’s needs. Similarly, I find that the program and services offered Student for the 2002-2003 and 2003-2004 school years were inappropriate to meet his needs. In rendering this decision, I rely on the facts delineated in the Findings of Fact section and am therefore, incorporating them hereby reference. My reasoning follows:
Student is an eighteen-year-old young man who lives with his mother (Parent) in Boston. He is enrolled as a 12 th grader at Charlestown High School. (PE-A1; PE-A; SE-1)
Student is exceptionally polite, considerate, responsible, motivated and quite determined to learn. (Testimony of Ms. Wisnia, Ms. Lynch, Ms. Walker) Student has a severe language-based learning disability, dyslexia and Attention Deficit Disorder. He also has issues with memory. With great assistance and accommodations, Student passed the English/language arts portion of his MCAS and obtained a “needs improvement” for the math portion. He has relative strengths in vocabulary comprehension, but his disability results in significant weaknesses in expressive spoken language, reading and writing. Over the past two and a half years he has attended a substantially separate classroom in the Learning Disabilities Program at Charlestown High School. (PE-A1, PE-A, SE-1)
Boston has failed to provide Student a FAPE over the past three years and failed to implement agreed upon services in Student’s IEP:
Under state and federal special education law and regulations, FAPE requires that a student’s individualized education program (IEP) be tailored to address the student’s unique needs7 in a way reasonably calculated to enable the student to make meaningful8 and effective9 educational progress in the least restrictive environment appropriate to meet his needs.10 The s pecial education program and services designed for a particular student must be geared towards developing that particular individual’s educational potential .11 Educational progress is then measured in relation to the potential of the particular student.12 While school districts are not responsible to maximize an individual’s potential by offering the best education, districts must offer students programs and services that will allow them to make meaningful, effective progress.13
The initial issue presented is whether the programming and specialized services embodied in Boston’s proposed IEPs for 2002-2003, 2003-2004 and 2004-2005 are consistent with this legal standard .
Student entered Charlestown High School in 2002 with an IEP that called for substantially separate services and twice per week speech and language. (PE-M; PE-J) However, when he entered high school he was placed in regular education classes with resource room assistance. (Testimony of Parent) Soon, it became evident to all those working with Student that this set up was insufficient to meet his needs. Ms. Lynch and Ms. Wan brought it to the attention of Boston’s administrators. (Testimony of Ms. Wan, Ms. Lynch) Parent realized that Student had not been placed in a substantially separate classroom during an open house. (Testimony of Parent) She was told that there was no space for Student in the substantially separate classroom and Student remained in the regular education classes with resource room assistance with Parent’s consent for the remainder of his ninth grade, with assurances that Student would be placed in the substantially separate classroom in September of his 10 th grade. (Testimony of Parent) Review of all Student’s IEPs from that point on reveal that Student was offered essentially the same type of services from year to year. (See PE-C; PE-J; PE-M; PE-H)
Pursuant to the most recently proposed IEP, which runs from December 2004 through December 2005, partially accepted by Parent, Student received speech-language services for 45 minutes, two times each week and attends a substantially separate classroom for English, math, history and science. Although no other direct or indirect services are listed on the IEP, the IEP also calls for use of the WKRP through the resource room teacher and speech-language therapist. The IEP notes that “WKRP will constitute [Student’s] English Language Arts requirement” and the IEP also notes that monthly progress reports regarding WKRP will be provided. The IEP further states that the following specially designed instruction is necessary for Student to make effective progress:
Multi-sensory; rule-based reading program; Alpha Smart with Co-writer; Inspiration; manipulatives; tape recorder as assignment tool; books on tape. (SE-1)
The IEP states that the specialized type of instruction called for to address Student’s severe needs (as of December of his junior year Student’s reading skills were below a second grade level according to Ms. Wisnia) should be achieved in a language-based classroom. Yet, Boston never provided Student a language-based classroom and instead alleged that it did not have one. In 2004, Boston offered Student placement in an alleged “language-based classroom” at Brighton High School. However, Parent testified that when she called Brighton High School to inquire about the proposed program and to ascertain whether it was appropriate for Student, she was told by Brighton staff that there was no language-based classroom for Student there, but rather another substantially separate classroom, which Parent concluded was very much like the one Student was in at Charlestown. (Testimony of Parent) Boston offered no testimony to counter Parent’s assertion nor presented any information regarding the alleged language-based program.
Instead, the evidence showed that Boston offered and provided Student placement in a substantially separate classroom for three years in a row at Charlestown High School. (Testimony of Parent, Ms. Walker, Ms. Lynch; PE-M; PE-J; PE-H; PE-C; PE-A) Teachers and service providers testified that while he was making progress in Charlestown, this was limited and he needed more than they could offer under the set up created by Boston. (Testimony of Ms. Walker, Ms. Wan, Ms. Lynch, Parent) By age 17 Student was functionally illiterate. (Testimony of Ms. Wisnia, Student, Parent) Test scores placed him at a second grade level, he could not read street signs, did not know the birthday of those close to him and could not even read comic books. (Id.) He relied on his Mother to read and write for him at home and on other students or Ms. Walker to do the same in school. (Testimony of Parent, Student, Ms. Walker) According to Student, he learned and understood things when he studied with his mother at night.
For the 2002, 2003, 2004 and 2005 years, instead of creating IEPs that provided Student with “significant learning” that conferred “meaningful benefit” through “personalized instruction with sufficient support services to permit the child to benefit educationally”, Boston fit Student into already existing programs it knew were inappropriate. (See, Hendrick Hudson Bd. of Education v. Rowley , 458 U.S. 176, 188-9, 203 (1992); see also Burlington v. Mass. Dept. of Education , 736 F.2d 773,788 (1 st Cir. 1984)) Ms. Wan, Ms. Lynch and Parent all communicated to the Charlestown High School special education administrator their concerns that Student’s needs were greater than they could address and Parent pleaded with them to give Student additional services and provide him with a program that could address his needs across all settings. (Testimony of Ms. Wan, Ms. Lynch, Parent) In an attempt to address Student’s severe reading needs, so that he could begin to access the high school curriculum, Ms. Lynch referred Student to the MGH-IHP clinic in 2003. Student received WKRP instruction at MGH’s clinic during part of 2003 and 2004. (PE-I; PE-G; Testimony of Ms. Lynch, Parent) There, however, was no coordination between MGH staff and the Boston staff to integrate the outside strategies into the classroom, nor was any coordination of services referenced in any of Student’s IEPs. (Testimony of Ms. Walker, Ms. Lynch; SE-A; SE-C) During the twice per week sessions with Ms. Lynch so much work had to be done with reading that she could not focus on the language goals and objectives in Student’s IEPs. (Testimony of Ms. Lynch)
Boston argues that since Ms. Wisnia has not observed Student’s substantially separate classroom in Charlestown High School, she could not testify as to whether the classroom was or was not language based. The evidence is persuasive that while Ms. Walker’s classroom may incorporate elements of a language-based program, it is not a language-based program that addressed Student’s language needs across the curriculum, in all settings, for all subjects throughout the day, as recommended by Ms. Wisnia. (PE-E) The minimal progress made by Student over his past three and a half years at Charlestown High School speaks volumes and is consistent with Ms. Wisnia’s impressions. Given the severity of Student’s needs, the recommendations made by Ms. Lynch to increase speech and language, and the fact that Ms. Wan could not implement WKRP, the services offered by Boston were indisputably insufficient to meet Student’s needs.
The evidence shows that instead of personalizing instruction that would have enabled Student to progress effectively and become more independent, Boston basically offered a series of accommodations, including readers and scribes, that made Student more dependent on others while it should have offered him actual reading and language based instruction that could help him reach his goals. Given that in the short and interrupted amounts of time Student has worked with Ms. Wisnia, his reading skills increased from approximately a second to a fourth grade level, and his progress was noted by Ms. Lynch and Ms. Walker, if placed in an appropriate language-based program with reading supports, Student would have likely made much more progress towards reaching the goals and objectives in his IEPs.
Extremely concerning is the fact that between March and June 2005, when Boston and Parent agreed that Student would receive WKRP in lieu of Student’s English requirement, allegedly by a trained, qualified individual, Student was assigned to Ms. Wan who had only taken a couple of days training in 1990, without ever taking a refresher course in WKRP after that. She herself testified that she protested but was told to give Student WKRP instruction. Not remembering much of it, she looked back at the books and tried to recreate the program, albeit unsuccessfully. (Testimony of Ms. Wan) It is no wonder that Student was not motivated to make these sessions on time. In contrast, he took multiple forms of public transportation to reach JWA, never missed any sessions there, and often stayed much longer than he was expected working hard to learn to read at JWA. (Testimony of Ms. Wisnia, Student) Judith Wisnia’s offer to return to Boston and train Student’s staff in WKRP at no cost, was ignored. (Testimony of Ms. Wisnia) When Student brought materials for Ms. Wan to use in their sessions, she did not understand what these were for and did not use them. (Testimony of Ms. Wan, Ms. Wisnia, Student)
During this period of time there was no conferring between Ms. Walker and Ms. Wan and Ms. Lynch formally or informally. None of Student’s IEPs provided any consultation time between Student’s service providers and at least Ms. Lynch, who would have been the designated consultant. Ms. Lynch testified that she was almost at full capacity with 50 students assigned to her for speech and language services. (Testimony of Ms. Lynch, Ms. Walker, Ms. Wan) Ms. Wan testified that she had never seen Student’s IEP or the attachment addressing the language goals and objectives. (PE-A; Testimony of Ms. Walker, Ms. Lynch, Ms. Wan) Not only did Student not get the WKRP he was promised and entitled to receive in Boston, but also none of his teachers or service providers were working towards meeting the agreed upon additional goals and objectives attached to the 2004-2005 IEP (PE-A). In addition, between March and June 2005, he was further deprived access to the Massachusetts Curriculum Framework English standards thereby violating State requirements and further increasing the chances that Student would not be able to pursue post secondary education as was his goal. Boston’s programs for Student were not integrated across the curriculum but rather a “piece meal” program that resulted in Student not receiving substantive curriculum content in at least one subject.
Regarding the assistive technology referenced in Student’s 2003-2004 and 2004-2005 IEPs, there is no evidence that these were used consistently in the classroom. (Testimony of Student, Ms. Walker) Ms. Lynch offered some training in Co-writer and FastForWord, but Student did not use these programs consistently or independently. He also did not get the books on tape referenced in PE-A. (Testimony of Student) Additionally, Parent raised concerns that Student did not have access to these technologies outside school. (Testimony of Parent, Ms. Wan, Ms. Lynch)
None of Student’s IEPs contain any substantive information regarding a transition plan consistent with 20 U.S.C. §1414(d)(1)(A)(i)(VIII) . Ms. Walker, Ms. Lynch, Parent and Student could recall no discussions during Student’s IEP meetings where transitional services were addressed. While Student told everyone with whom he came in contact, including Ms. Wisnia, of his aspiration to go to college, the only statement that appears in his IEP under transitional services is “[Student] would like to improve his academic skills and graduate” (PE-A; PE-C; PE-Q adds the words “from high school.”) The vision statement in PE-J states only that Student “has the desire to improve his reading and math skills and to finish high school”. (PE-J) Student’s goals and desires are not reflected in any of his IEPs. There is no transition plan, no transition services, nor do any of these appear in any of the relevant IEPs. There were no referrals made for post-secondary education either. (PE-A; PE-C; PEQ; PE-J; PE-M; Testimony of Parent, Ms. Lynch, Ms. Walker) In this respect, Boston ignored Student’s desires and simply did nothing. Failure to address Student’s transition services in the IEPs constitutes in and of itself failure to provide FAPE. See Honig v. Doe , 484 U.S. 305, 311 (1988).
The record is replete with instances of inadequate or insufficient services, and above all, offers of inappropriate placements. Boston failed to offer Student a FAPE during the 2002-2003, 2003-2004 and 2004-2005 school years and failed to provide evidence that it has a language-based program that can currently meet Student’s needs. Therefore, Student is entitled to an out of district placement that can offer him language-based instruction and methodology integrated across all areas of the curriculum along with intensive reading therapy. (Testimony of Ms. Wisnia, Ms. Lynch) He needs to work on reading fluency, comprehension, fund of knowledge, auditory processing, executive functioning activities, syntax, semantics and self-regulation for oral and writing activities. He should use WKRP, Fisher drills, FastForWord and other assistive technologies. (SE-4; PE-F; Testimony of Ms. Wisnia) Student is entitled to participation in a whole language program, which by its own admission, Boston has not and cannot provide. (Testimony of Parent, Ms. Wisnia, Ms. Wan, Ms. Lynch)
Boston’s deprivation of FAPE to Student and failure to provide agreed upon services entitles Student to compensatory education for the 2003-2004, 2004-2005 and at least part of the 2005-2006 school years
When a school district fails to implement a student’s IEP partially or totally, and the district’s actions that is, 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 F2d 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 entitlement14 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). Massachusetts has recognized the following standard in determining whether an IEP was implemented: “1) failure to implement an IEP must not be a complete failure, 2) the variance from special education and related services specified in the IEP must not deprive the student of FAPE; and 3) the provision of special education and related services must make ‘progress’ toward the achievement of the goals stated in the IEP.” Ross v. Framingham , 44 F. Supp 2d 104 (D. Mass. 1999). Where the elements described infra favor the Student’s claim, then compensatory services is an acceptable form of relief to be awarded by the BSEA. See Murphy v. Timberlane , 973 F.2d 13 (1 st Cir. 1994).
The evidence shows that Boston failed to implement services delineated in Student’s IEPs regarding implementation of assistive technology, the WKRP reading program, provision of a language-based program and a transitional plan and services as a result of which Student was deprived a FAPE, and was unable to reach the goals delineated in his IEP.
As discussed supra in this decision, Boston did not offer all of the assistive technology mentioned in its IEP of December 2004-December 2005. (PE-A; SE-1; PE-C) While the IEP states that assistive technology is a necessary instructional modification for delivery of instruction to Student, Boston’s witnesses provided no testimony that assistive technology was consistently provided in the classroom or outside the classroom, other than some limited exposure during the sessions with Ms. Lynch. (Testimony of Ms. Lynch) Ms. Lynch testified that she trained Student on the Alpha Smart with Co-writer which was used during some of their sessions, but she had no knowledge as to whether Student used this in any of his classes. ( Id .) The 2004-2005 IEP calls for use of Alpha Smart with Co-writer, FastForWord, Inspiration, tape recorder for assignments and books on tape consistent with Susan Dubuske, Boston’s consultant’s assistive technology assessment of November 2004. ( Id. ; SE-4) Parent and Student testified that they requested instruction regarding the use of the different modalities of assistive technology but this was not given. Student testified that he did not use assistive technology in any of his classes. (Testimony of Student) There was no testimony from Boston’s witnesses that they used Inspiration, FastForWord or books on tape in the classroom.
Also, Parent testified that while provision of extended school year services was discussed during the Team meeting held in May 2005 (because of Student’s severe needs in reading and the progress made in reading after working with Ms. Wisnia), Boston did not make any written proposals regarding a program during the summer 2005, and no amendment to the IEP was proffered by either Party. (Testimony of Parent) Boston offered no evidence to refute Parent’s assertions.
Under the federal regulations, extended school year services must be available if necessary to provide students a FAPE. 34 CFR §300.309. In order for extended school year services to be warranted the student’s Team must determine on an individual basis that the services are needed for the provision of FAPE to that Student. 34 CFR §300.309(a)(2). Furthermore, extended school year services include special education and related services which are provided to eligible students, in accordance with the student’s IEP, at no cost to the parents, beyond the normal school year. 34 CFR §300.309(a)(3)(ii)(b).
In the instant case, the evidence is convincing that Student required a summer reading program in order to receive a FAPE. Given Student’s severe needs in reading, his goals after graduation and the progress evidenced after the limited exposure to WKRP with Ms. Wisnia, Student should have received an extended school year program to address his serious reading delays. This is even more evident when one considers that assessments done in the fall of 2004 indicated that he was functionally illiterate with reading scores significantly below average in the CELF-3/CELF-4 and the TWS-4, at the second and early third grade level in the WRMT-R and the first grade equivalence in the TOWRE as per the MGH-IHP testing and consistent with what Ms. Wisnia found in December 2004. (PE-A1; PE-E; PE-A; PE-C; PE-Q; PE-J; Testimony of Ms. Wisnia) Parent’s testimony, which was not contradicted by any of Boston’s witnesses, was that extended school year services were discussed during the Team meeting held in May 2005. According to Parent, Boston agreed to provide summer services, but it failed to send Parent/Student any proposals. (Testimony of Parent)
In the absence of any proposal or provision of services from Boston, Parent paid for Student to receive WKRP instruction at JWA, ten hours per week between July and August 2005 at a rate of $75.00 per hour. (Testimony of Parent, Wisnia) By the end of the summer, Student’s reading skills had improved from a second grade or lower level in some areas to a fourth grade level, according to the credible testimony offered by Ms. Wisnia, providing great hope that with an appropriate, integrated and coordinated program and services Student may stand a chance to reach his goal of post secondary education when he is ready to graduate from high school. (Testimony of Ms. Wisnia)
The evidence is persuasive that Student was entitled to participate in a reading summer program, that Boston agreed to offer him extended school year services and later failed to make any specific proposal. Boston shall reimburse Parent the $75.00 per hour for the 10 hours per week between July and August 2005 that Student attended JWA.
Regarding WKRP instruction, over the years, Ms. Lynch endorsed the use of WKRP for Student. This endorsement is reflected in reports and in Student’s latest IEPs. (PE-D; SE-5; PE-A; SE-1; Testimony of Ms. Lynch) She stated that she used WKRP in the speech and language sessions twice per week to address Student’s severe reading needs. This left her with insufficient time to address the language goals and objectives in Student’s amended 2004-2005 IEP. (PE-A) Neither Ms. Lynch nor Ms. Wan testified that they had addressed the speech and language goals and objectives. Furthermore, Ms. Wan was totally unfamiliar with them, as she had never seen them prior to Hearing. (Testimony of Ms. Wan, Ms. Lynch) Boston offered no testimony that Student had made any progress towards meeting these goals by June 2005. Student testified that he did not feel that he had made any progress as a result of his work with Ms. Wan. In fact, he thought the only benefit was derived from the sessions with Ms. Lynch and this too was limited. (Testimony of Student)
After the February 2005 mediation, Boston agreed to provide Student with once per day, five days per week, WKRP instruction at Charlestown High School. (PE-A; Se-1; Testimony of Parent, Ms. Wan) These sessions would satisfy Student’s English/Language Arts requirement. ( Id. ) Ms. Wan testified that she had been told to work with Student on WKRP because her schedule could accommodate the one-on-one session at the designated time. She however, stated that although she tried her best to provide Student with WKRP, she had only taken the course once, five years earlier and was not qualified to teach WKRP to Student. Moreover, given the severity of Student’s needs, she knew these sessions with him were inadequate to meet his needs. Ms. Wan testified that she shared her concerns with Boston’s administrators and even protested, but ultimately did what she was told to do. (Testimony of Ms. Wan)
The evidence is persuasive that Boston knew that it was offering Student inappropriate services, that the staff it designated was ill equipped to give the WKRP program it agreed to provide or address the severity of Student’s needs. (Testimony of Ms. Wan, Ms. Lynch, Ms. Wisnia)
Boston is wholly unpersuasive in its argument that tardiness and absenteeism during the sessions with Ms. Wan were responsible for Student’s significant delays and lack of progress. It is clear that Student was not motivated to attend Ms. Wan’s sessions because he was deriving no benefit from them. In contrast, he spent significant amounts of time in public transportation to attend Ms. Wisnia’s WKRP sessions during his December 2004-January 2005 vacation. Ms. Wisnia spoke about Student’s unwavering determination during this period. Both Ms. Wisnia and MGH providers noted the drastic change observed in Student once he began to read with the WKRP program. Even during breaks, Student was observed reading material of interest to him, something he had never done before. (PE-A1; Testimony of Ms. Wisnia) Progress was also noted by Ms. Lynch in her February 2004 progress report. (PE-D)
Student is entitled to receive compensatory services for the agreed upon daily WKRP services it failed to offer Student between March and June 2005. Boston shall fund these services quid-pro-quo at JWA.
As adduced earlier in the fact section of this decision and supra in the conclusion section, the record is replete with evidence of Boston’s failure to provide Student a FAPE for the 2002-2003, 2003-2004 and 2004-2005 years, up to the time of the Hearing. As a result of this, Student is entitled to receive compensatory education. While the evidence is equally persuasive that the program and services offered Student in the 9 th grade were inadequate and inappropriate to meet his needs, I am excluding this school year from the period of entitlement to special education because Parent knew that the program and services were inadequate but she agreed to allow Student to stay in that program at Charlestown High School for the remainder of the 2002-2003 school year. (Testimony of Parent) The same is not true for the 2003-2004 and 2004-2005 school years, that is, Student’s 10 th , 11 th and part of the12 th grade15 .
While the IEPs for the 2003-2004 and the 2004-2005 school years call for specialized instruction in a substantially separate classroom that provides multi-sensory, language-based instruction, Student was never provided a language-based program. (PE-A; PE-C; PE-Q; Testimony of Ms. Lynch, Ms. Wisnia, Parent) Progress made by Student as a result of Boston’s programs during those years was minimal and ineffective. The evidence is persuasive that any meaningful progress made by Student was the direct result of interventions by outside providers, especially the interventions offered by Ms. Wisnia. (Testimony of Parent, Student, Ms. Wisnia, Ms. Lynch)
Parent and Student spoke about the amount of time they spent together each night with Parent reading assignments to Student and acting as his scribe. Student testified that it was not until his nighttime with his mother that he was able to finally understand what teachers were trying to teach during the day. In school he totally relied on other students, Ms. Walker and Ms. Lynch for all of his reading and writing. (Testimony of Parent, Student, Ms. Walker, Ms. Lynch) Boston provided accommodations but failed to provide integrated, coordinated language-based instruction.
It was disturbing to hear that the recommendations of Boston’s own service providers fell on Charlestown High School’s administrator’s deaf ears more than once. (Testimony of Ms. Wan, Ms. Lynch) For instance, Kara Lynch recommended that the amount of Student’s speech and language services be increased, but these have remained the same in all of Student’s IEPs since 2002. (PE-A; PE-Q; PE-C; PE-M; Testimony of Ms. Lynch) When told to instruct Student in WKRP in March 2005, Ms. Wan protested and stated that she was not comfortable with WKRP. Ms Wan had provided resource room services to Student during the ninth grade and was aware that his needs were greater than she could meet. Boston instructed Ms. Wan to offer Student WKRP anyway. (Testimony of Ms. Wan) In January 2005, Judith Wisnia recommended at least 3 hours per week of WKRP. (Testimony of Ms. Wisnia) At the time, Student was a seventeen-year-old reading at a second grade level. (Testimony of Ms. Wisnia, Ms. Lynch) For years his evaluation test scores fell in the significantly below average level and yet his IEPs vary very little from year to year. (PE-A; PE-C; PE-J; PE-Q) It should have been clear to Boston that Student required a language-based classroom with additional speech and language services as well as intensive reading. Boston never provided Student a language-based classroom and simply stated that there was no language-based classroom for Student in Boston. (Testimony of Parent, Ms. Wan)
Boston’s administrators’ willful disregard for Student’s educational needs resulted in an almost eighteen-year-old reaching the second semester of his junior year in high school unable to read at a functional level. It was not until he underwent the intense 20 hour program with Ms. Wisnia during the December 2004 break that he was finally able to begin to experience success with reading as he was able to read street signs and bus station signs for the first time in his life. (Testimony of Student, Ms. Wisnia)
It is surprising that Student never gave up in the face of years of educational neglect by BPS. The evidence is persuasive that this young man’s resilience and determination is due in great part to the commitment and arduous work of his Mother, other family members, Ms. Wisnia, as well as those Boston providers, such as Ms. Lynch, who over the years tried their best to help Student “swim against the current”.
As a result of Boston’s failure to provide FAPE during the 2003-2004 and the 2004-2005 school years, Student is entitled to two years of compensatory education in a language-based program outside the Boston Public Schools.
Lastly, transition planning and services are an integral part of the IDEA. Beginning no later than the first IEP to come into effect when the child turns 16, the Team is charged with the responsibility of preparing a statement of transition services that relates directly to the eligible student’s goals beyond high school. 20 U.S.C. §1414(d)(1)(A)(i)(VIII). The IEP must include,
(a) appropriate measurable postsecondary goals based upon age appropriate transition assessments related to training, education, employment, and where appropriate independent living skills;
(b) the transition services (including courses of study) needed to assist the child in reaching those goals; and
(c) beginning not later than 1 year before the child reaches the age of majority, under State law, a statement that the child has been informed of the child’s rights under this title [ 20 U.S.C. §§1400 et seq.], if any, that will transfer to the child on reaching the age of majority under section 615(m) [ 20 U.S.C. §1415 (m)].
These goals must be updated annually. 20 U.S.C. §1414(d)(1)(A)(i)(VIII).
Under federal IDEA regulations, the statement of transition must delineate the needed transition services which when appropriate should include a “coordinated set of activities…, designed within an outcome-oriented process, that promotes movement from school to post-school activities” which includes any interagency responsibilities or linkages. 34 CFR §300.347(b) and §300.29(a). It is required that the coordinated set of activities for students with disabilities under transition services
1. is designed within an outcome-oriented process, that promotes movement from school to post-school activities, including post secondary education, vocational training, integrated employment (including supported employment), continuing and adult education, adult services, independent living or community participation;
2. is based upon the individual student’s needs, taking into account the student’s preferences and interests; and
3. includes—
i) instruction,
ii) related services,
iii) community experiences,
iv) development of employment and other post-school adult living objectives; and
v) if appropriate, acquisition of daily living skills and functional vocational evaluation. 34 CFR §300.29(a).
34 CFR §300.329(b) further provides that:
Transition services for students with disabilities may be special education, if provided as specially designed instruction, or related services, if required to assist a student with a disability to benefit from special education.
The Massachusetts Special Education Regulations also address school responsibilities regarding transitional planning for students whose entitlement to special education is about to expire because they are about to graduate from high school or turn twenty-two.16 There is no doubt that,
Transition planning and services are an essential and substantive part of what must be provided by a school district to a special education student over the course of many years, beginning when the student turns 14 years old or earlier.17 As compared to other educational services (which under FAPE must be reasonably calculated to provide a certain minimum level of educational progress in light of the student’s potential to learn), transitional planning and services are “an outcome-oriented process” focused on allowing the student to transition successfully “from school to post school activities, including post-secondary education, vocational training, integrated employment (including supported employment), continuing and adult education, adult services, independent living, or community participation”.18 As with other educational services under FAPE, transitional planning and services must be individually tailored to address the needs of the particular student but there is an added emphasis on consideration of the student’s own preferences and interests.19 The IDEA provides that in the event that the student does not attend an IEP Team meeting. The school district is to take additional steps to ensure that the student’s preferences and interests are considered.20 As with other services under FAPE, transitional services may include instruction, including special education services, as well as related services.21 Finally, I note the specific requirements regarding written notice to parents when the IEP team is to consider transitional planning and/or services.22 In Re : Quabbin Regional School District , BSEA # 05-3115 & # 05-4356, August 16, 2005, 11 MSER 146 (SEA MA 2005).
As discussed earlier in page 21 supra , Student’s relevant IEPs for the purpose of transitional planning/services offer no substantive information. (PE-A; PE-C; PE-Q; PE-J) All of the witnesses who participated in Student’s Team meetings testified that up to the Team meeting held in May 2005, there was no discussion regarding transition planning. (Testimony of Parent, Student, Ms. Lynch, Ms. Walker) Every witness who testified knew of Student’s desire to go on to college after high school, and yet this goal is not mentioned in any of his IEPs. (Testimony of Parent, Student, Ms. Lynch, Ms. Walker, Ms. Wan) As adduced earlier, the only statement appearing in Student’s IEP was that he wanted to “improve his academic skills and graduate.” (PE-A; PE-C; PE-Q) Even the statement regarding his desire to improve his reading and math skills, which appeared in PE-J, the IEP in effect when Student turned sixteen years of age, was dropped by the following IEP. (See PE-Q) In spite of Student’s markedly low reading ability, which would have a clear impact on his ability to continue post-secondary education and even limit his ability to seek gainful employment, Boston has been ready to graduate Student from high school in June 2006. Boston presented no evidence to support that it had provided transitional services or that this had even been discussed. Parent and Student both testified that no discussion of planning ever took place and the lack of substantive information in the IEPs support Parent’s/ Student’s assertions. One can only conclude that there were no appropriate transitional plans discussed or developed throughout the past relevant years. Therefore, Boston is responsible to offer Student compensatory services in this regard. Student’s Team, inclusive of Ms. Wisnia, shall discuss and plan for Student’s transition into a post-secondary program.
ORDER:
1. Boston shall hire Judith Wisnia as a consultant regarding Student’s reading needs and program recommendations for the remainder of this school year.
2. Boston is responsible for convening the Team to draft an IEP that offers Student placement at an out of district school that offers a language-based program. Boston will also include WKRP instruction at JWA.
3. Boston shall draft and implement an appropriate transition plan for Student and make it part of Student’s IEP forthwith. The transitional plan must delineate appropriate transitional services that address Student’s goal for a post-secondary education.
4. Boston shall fund two years of an out of district language-based program for Student as compensatory education consistent with this decision.
5. Boston shall assure full, consistent implementation of the assistive technology recommendations for Student as per the 2004-2005 IEP, especially until such time as an out of district language-based program is found for Student.
6. Boston shall provide Student with three hours per day intense WKRP therapy program at JWA as compensatory education for its failure to provide effective WKRP during the period from March through June 2005.
7. Boston shall fund a neuropsychological evaluation of Student, which shall be conducted as soon as possible.
8. Boston shall reimburse Parent for the $75.00 per hour expenses associated with services offered Student at JWA during July and August 2005.
So Ordered by the Hearing Officer,
_____________________________________
Rosa I. Figueroa
Dated: 11/22/2005
1
PE-R was marked for identification only.
2
Since Student filed his Request for Hearing prior to July 1, 2005, the statute of limitations adopted in BSEA proceedings in Massachusetts was three years as opposed to the two year limitation under the new IDEA.
3
Neither the Parent’s Exhibits book nor the School’s contained copies of the placement and/or program acceptance sheets reflecting Parent’s decision regarding any of the IEPs submitted for consideration.
4
20 USC 1400 et seq .
5
MGL c. 71B.
6
MGL c. 71B, ss. 1 (definition of FAPE), 2, 3.
7
E.g., 20 USC 1400(d)(1)(A) (purpose of the federal law is to ensure that children with disabilities have FAPE that “emphasizes special education and related services designed to meet their unique needs . . . .”); 20 USC 1401(25) (“special education” defined to mean “specially designed instruction . . . to meet the unique needs of a child with a disability . . .”); Honig v. DOE , 484 U.S. 305, 311 (1988) (FAPE must be tailored “to each child’s unique needs”).
8
Board of Education of Hendrick Hudson Central School District v. Rowley, 458 U.S. 176, 192 (1982) (goal of Congress in passing IDEA was to make access to education “meaningful”); Deal v. Hamilton County Board of Education, 104 LRP 59544 (6 th Cir. 2004); (“ IDEA requires an IEP to confer a ‘meaningful educational benefit’ gauged in relation to the potential of the child at issue”); G. by R.G. and A.G. v. Fort Bragg Dependent Schs , 40 IDELR 4 (4th Cir. 2003) (issue is whether the IEP was reasonably calculated to provide student meaningful educational benefit); Weixel v. Board of Education of the City of New York , 287 F.3d 138 (2 nd Cir. 2002) (placement must be “‘reasonably calculated’ to ensure that [student] received a meaningful educational benefit”); Houston Independent School District v. Bobby R ., 200 F.3d 341 (5 th Cir. 2000) (educational benefit must be “meaningful”); Ridgewood Board of Education v. NE for ME , 172 F.3d 238 (3 rd Cir. 1999) (IDEA requires IEP to provide “significant learning” and confer “meaningful benefit”).
9
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) (“Congress indubitably desired ‘effective results’ and ‘demonstrable improvement’ for the Act’s beneficiaries”); Burlington v. Department of Education , 736 F.2d 773, 788 (1 st Cir. 1984) (“objective of the federal floor, then, is the achievement of effective results–demonstrable improvement in the educational and personal skills identified as special needs–as a consequence of implementing the proposed IEP”); 603 CMR 28.05(4)(b) (Student’s IEP must be “ designed to enable the student to progress effectively in the content areas of the general curriculum”); 603 CMR 28.02(18) (“ Progress effectively in the general education program shall mean to make documented growth in the acquisition of knowledge and skills, including social/emotional development, within the general education program, with or without accommodations, according to chronological age and developmental expectations, the individual educational potential of the child, and the learning standards set forth in the Massachusetts Curriculum Frameworks and the curriculum of the district.”).
10
See generally In re: Arlington , 37 IDELR 119, 8 MSER 187, 193-195 (SEA MA 2002) (collecting cases and other authorities).
11
MGL c. 69, s. 1 (“paramount goal of the commonwealth to provide a public education system of sufficient quality to extend to all children the opportunity to reach their full potential ”); MGL c. 71B, s. 1 (“special education” defined to mean “educational programs and assignments . . . designed to develop the educational potential of children with disabilities . . . .”); 603 CMR 28.01(3) (identifying the purpose of the state special education regulations as “to ensure that eligible Massachusetts students receive special education services designed to develop the student’s individual educational potential”). See also Mass. Department of Education’s Administrative Advisory SPED 2002-1: Guidance on the change in special education standard of service from “maximum possible development” to “free appropriate public education” (“FAPE”), Effective January 1, 2002, 7 MSER Quarterly Reports 1 (2001) (appearing at www.doe.mass.edu/sped) (Massachusetts Education Reform Act “underscores the Commonwealth’s commitment to assist all students to reach their full educational potential”).
12
Hendrick Hudson Dist. Bd. of Educ. v. Rowley , 458 U.S. 176, 199, 202 ( court declined to set out a bright-line rule for what satisfies a FAPE, noting that children have different abilities and are therefore capable of different achievements; court adopted an approach that takes into account the potential of the disabled student ); Deal v. Hamilton County Board of Education, 104 LRP 59544 (6 th Cir. 2004); (“ IDEA requires an IEP to confer a ‘meaningful educational benefit’ gauged in relation to the potential of the child at issue”); HW and JW v. Highland Park Board of Education , 104 LRP 40799 (3 rd Cir. 2004) (“benefit must be gauged in relation to the child’s potential”); Houston Independent School District v. Bobby R ., 200 F.3d 341 (5 th Cir. 2000) (progress should be measured with respect to the individual student, not with respect to others); T.R. ex rel. N.R. v. Kingwood Twp. Bd. of Educ., 205 F.3d 572, 578 (3d Cir. 2000) (appropriate education assessed in light of “individual needs and potential”); Ridgewood Board of Education v. NE , 172 F.3d 238 (3 rd Cir. 1999) (“quantum of educational benefit necessary to satisfy IDEA . . .requires a court to consider the potential of the particular disabled student”); Mrs. B. v. Milford Board of Ed. , 103 F.3d 1114, 1122 (2d Cir. 1997) (“child’s academic progress must be viewed in light of the limitations imposed by the child’s disability”); MC v. Central Regional School District , 81 F.3d 389 (3 rd Cir. 1996), cert. denied 519 US 866 (1996) (child’s untapped potential was appropriate basis for residential placement); Roland v. Concord School Committee , 910 F.2d 983 (1 st Cir. 1990) (“academic potential is one factor to be considered”); Kevin T. v. Elmhurst , 36 IDELR 153 (N.D. Ill. 2002) (“ Court must assess [student’s] intellectual potential, given his disability, and then determine the academic progress [student] made under the IEPs designed and implemented by the District ”).
13
E.g. Lt. T.B. ex re.l 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.”)
14
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).
15
It should be noted that Student’s IEPs run from December to December.
16
“For any student approaching graduation or the age of twenty-two, the Team shall determine whether the student is likely to require continuing services from adult human service agencies. In such circumstances, the Administrator of Special Education shall make a referral to the Bureau of Transitional Planning in the Executive Office of Health and Human Services in accordance with the requirements of M.G.L. c. 71B, § 12A through C (known as Chapter 688).” 603 CMR 28.05(4)(c).
17
20 U.S.C. 1414(d)(1)(A)(vii).
18
20 U.S.C. 1401(30).
19
20 U.S.C. 1401(30).
20
34 CFR 300.344(b).
21
34 CFR 300.29(b).
22
34 CFR 300.345(b)(2).