COMMONWEALTH OF MASSACHUSETTS
BUREAU OF SPECIAL EDUCATION APPEALS
IN RE: Burlington Public Schools
BSEA# 03-3422
DECISION
This decision is rendered pursuant to M.G.L. Chapters 15, 30A and 71B; 20 U.S.C. §1400 et seq .; 29 U.S.C. §794; and the regulations promulgated under each of these statutes.
A hearing in the above-entitled matter was held on March 25, 2003 at the Massachusetts Department of Education in Malden, MA. The record was left open for receipt of written final arguments until April 4, 2003.
Those in attendance were:
Parent
Kevin Foley Director of Pupil Personnel Services, Burlington Public Schools
Sandra Goldstein Program Coordinator, LABBB Collaborative
Jason Greenwood Speech/Language Pathologist and Teacher, LABBB Pre-School Program
Richard Sullivan Attorney, Burlington Public Schools
Raymond Oliver Hearing Officer, Bureau of Special Education Appeals
The evidence consisted of Parents’ Exhibits labelled P-1 through P-11c; Burlington Public Schools’ Exhibits labelled S-1 through S-19; and approximately 2 ½ hours of oral testimony.
HISTORY/STATEMENT OF THE CASE AND PROFILE OF STUDENT
Student is a 4 ½ year old girl who resides with her family in Burlington, MA. Student had frequent ear infections and fluid in both ears until February 2001 when tonsils and adenoids were removed. After the surgery there were fewer ear infections but fluid in the ears remained a problem. Although ear tubes were recommended, Parents did not want ear tubes to be implanted (P-1, 2, 3; S-11, 17; testimony, Parent). On July 31, 2001 at 2 years 9 months of age, Student was evaluated by the Deaconess-Waltham Early Intervention Program in Winchester (EIP). Student scored at or within 3 months of her age in the areas of gross and fine motor skills, self-care skills, cognition, social/emotional development, and receptive language. Student demonstrated a 6 month delay in expressive language. EIP recommended that an EI speech and language therapist work with Student. (See P-1 for EIP evaluation.) Because EIP did not then have a speech-language therapist on staff, Student never received such services (P-3; S-11; testimony, Parent) and EIP referred Parents to the Burlington Public Schools (BPS) to pursue such services (P-1).
On September 12, 2001 Student was referred to BPS for an evaluation (S-19). On September 13, 2001 BPS proposed a speech/language evaluation which was accepted by Parents on November 15, 2001 and received by BPS on that date (S-18). On December 3, 2001 Student was evaluated by Anjali Rao, a speech-language pathologist at the LABBB Collaborative Early Childhood Program ( P-2; S-17). Student was then 37 months old. Ms. Rao found Student’s receptive language skills at the 36-41 month level and her expressive language skills at the 36 month level. Ms. Rao noted in her Summary and Recommendations:
With respect to articulation skills [Student] demonstrated grossly age appropriate articulation. She demonstrates some phonological processes such as substitution, consonant deletion, syllable deletion and consonant cluster reduction. It is the opinion of this clinician that with social activities and a peer group that can model appropriate articulation and language skills, [Student’s] speech and language skills will increase even further.
At this time [Student] demonstrates age appropriate language skills and age appropriate articulation skills. No recommendations for services are being made at this time.
A team meeting was scheduled for December 17, 2001 (S-16) that was rescheduled, per Parent’s request, to January 18, 2002 (S-15; testimony Goldstein). On January 25, 2002 BPS made a finding of no special education eligibility (S-14). Another team meeting took place on February 1, 2002 (S-13) at which time Mr. Foley, BPS’ Pupil Personnel Director, offered Parents an independent evaluation and agreed to be bound by the results of such independent evaluation (testimony, Foley; Goldstein). Student was independently evaluated by speech-language pathologist Elsa Abele of Boston University’s Rehabilitative Services on February 21, 2002 (P-3; S-11). In her evaluation Ms. Abele noted that Student’s most recent audiogram showed conductive hearing loss bilaterally at a moderate level of about 40 db and found that Student’s hearing status was affecting her speech and language which was 6-12 months delayed, depending on the task. Ms. Abele made the following recommendations:
1. Hearing status should be resolved medically so that as much as possible she is able to hear language and hear what she produces. This will require determining what is necessary to keep her middle ears fluid free.
2. Speech and language therapy, preferably with other children, should be instituted to help [Student] increase her comprehension and production in form, content and use of language to help her move along the developmental scale in these areas toward age appropriateness.
3. Some regular pre-school programming, like the private pre-school near their home that the parents are considering, would be good as an environment in which to use the skills being learned in treatment, for language stimulation and peer interaction opportunities.
A team meeting took place on March 15, 2002 at which time BPS developed an Individual Education Plan (IEP) for Student covering March 15, 2002 to March 15, 2003. This IEP (P-5; S-10) provided Student with speech-language therapy for 1 hour, once per week, in a speech therapy group at the LABBB Early Childhood Program to address receptive, expressive and articulation needs. On April 10, 2002 Parent rejected this IEP and requested more tutoring hours but accepted the services offered (testimony, Parent; Goldstein; P-5; S-10).
On May 24, 2002 speech-language pathologist Andrea Clancy wrote a progress report after Student had attended Ms. Clancy’s speech-language group sessions with 3 other children for 5 weeks. (See P-4; S-8 for complete progress report).1 Ms. Clancy recommended that, beginning the fall of 2002, Student participate in a language based pre-school program: providing regular access to a speech-language pathologist and a variety of age appropriate experiences. The opportunity to interact and play with peers will provide [Student] with language models and afford her the chance to increase her confidence as an effective communicator and enable her to expand her speech and language skills within a functional context.
On May 28, 2002 a Progress Meeting took place (S-9) and on June 7, 2002 BPS proposed an Amendment to Student’s IEP from August 30, 2002 to March 15, 2003 (S-7). Under this IEP Amendment (P-6; S-5) Student would receive 2 hours per day, 3 days per week, in a language based preschool classroom taught by a speech-language pathologist, plus a 1 hour monthly home visit from the teacher/speech-language pathologist. On September 10, 2002 Parent rejected this IEP
Amendment because of the frequency of services but accepted the services offered (P-6; S-5). Student has attended this language based preschool program during the 2002-2003 school year. On November 22, 2002 Mr. Greenwood, the teacher/speech-language pathologist of this program, submitted a detailed progress report (P-7; S-4). Also on November 22, 2002, Student underwent a bilateral myringotomy and tube insertion by R. Kirk Bohigian, M.D. (P-9b).
On February 3, 2003 Parent had Student privately evaluated at the Lahey Clinic. The Lahey speech-language evaluation (P-8) noted:
Impressions: [Student] is a 4.2 year old girl who presents with normal receptive language skills and mildly delayed expressive language skills. [Student] also presents with a moderate articulation disorder with overall fair intelligibility in known contexts and moderate intelligibility in unknown contexts. [Student] also presents with a slightly hyponosal vocal quality.
Recommendations: Based upon the results of today’s evaluation, [Student] would benefit from speech and language therapy 2x week…..
On February 13, 2003 Parent requested BPS to pay for speech therapy for Student at Lahey Clinic, as determined by Student’s doctor and the Lahey Clinic speech therapists, plus transportation costs (P-11c; S-2). On February 19, 2003 the BSEA received Parents’ Hearing Request, seeking speech therapy from Lahey Clinic and transportation to and from Lahey Clinic to be funded by BPS.2 On February 20, 2003 the BSEA scheduled a hearing date for March 11, 2003. On February 21, 2003 BPS’ Pupil Personal Director, Mr. Foley, denied Parents’ Request (P-11c; S-1). BPS was granted a short postponement, several conference calls were held, and the hearing took place on March 25, 2003. On March 11, 2003 Student began receiving 1:1 speech-language therapy twice per week for 1 hour each session at the Lahey Clinic from the speech-language pathologist who performed the Lahey Clinic speech-language evaluation, which service was funded by Parents. (testimony, Parent).
ISSUES IN DISPUTE
1. Does BPS’ IEP Amendment address Student’s special education needs so as to provide her with a free and appropriate public education (FAPE) in the least restrictive educational environment?
2. If not, does Student require speech therapy twice per week at Lahey Clinic, plus transportation to and from Lahey Clinic?
3. Should BPS be required to find Student’s evaluation at Lahey Clinic?
STATEMENT OF POSITIONS
Parents’ position is that BPS’ IEP Amendment is not sufficient to address Student’s special education needs so as to provide her with FAPE in the least restrictive educational environment. Parent contends that Student also requires speech therapy twice weekly at Lahey Clinic in order to provide her with FAPE. Parent also contends that BPS should pay for Student’s evaluation at Lahey Clinic.
BPS’ position is that Student does not truly qualify for special education services because she does not have a disability as defined under Massachusetts special education regulations. Alternatively, BPS contends that the proposed IEP Amendment offers Student FAPE. In either event, BPS contends that Student does not require additional speech therapy and that Parents’ requests for reimbursement should be denied.
SCHOOL’S PROPOSED PROGRAM
BPS proposes, and during this school year Student has attended, the LABBB Collaborative Early Childhood Program’s Integrated Preschool located at Burlington High School (ECP). ECP operates Tuesday through Thursday. Student attends ECP Tuesdays, Wednesdays and Thursdays from 12:30 P.M. to 2:30 P.M. There are 12 students in the program, 6 on IEPs and 6 typical peers (without special education needs). The age range is currently 3 ½ -5 years old. There is a teacher, a teacher assistant, and a classroom aide for a student to staff ratio of 4:1. ECP is an early childhood language based program with language activities and language modeling done throughout the day. Receptive language, expressive language, speech, and articulation are worked on and interwoven into the structured daily activities. Typical peers provide expressive language and speech/articulation models in a naturalistic setting as children interact with each other and teacher and staff facilitate appropriate speech and communication skills.
The ECP is taught by Jason Greenwood, who has a masters degree in speech from Emerson College. Mr. Greenwood is a certified teacher of the speech and hearing impaired; is a licensed speech-language pathologist in Massachusetts; and has his Certificate of Clinical Competence (CCC) from the American Speech, Language, and Hearing Association (ASHA). The CCC from ASHA requires a masters degree; passing an ASHA Board Examination; and completing a 9 month Clinical Fellowship Year (CFY) under an ASHA/CCC speech-language pathologist. Mr. Greenwood has taught in early childhood programs since 1995 and has taught at the LABBB Early Childhood Program since 1998. Mr. Greenwood designs the ECP curriculum and supervises the teacher assistant and classroom aide.
In addition to being Student’s teacher/therapist, Mr. Greenwood provides 1 hour per month of services to Parents pursuant to the IEP Amendment. Rather than home visits, Parent and Student go to the ECP for this service.
(Refer to testimony, Greenwood; Goldstein; S-11d.)
FINDINGS AND CONCLUSIONS
Based upon the written documentation and oral testimony introduced into evidence and a review of the applicable law, I conclude that BPS’ IEP Amendment addresses Student’s special education needs so as to provide her with FAPE in the least restrictive educational environment; that additional speech therapy at Lahey Clinic is not necessary to provide Student with FAPE; and that BPS is not financially responsible for Student’s speech-language evaluation at Lahey Clinic.
My analysis follows.
I.
BPS argues at this hearing that Student does not have a disability and is not eligible for special education or related services. Whether that proposition is true or not is irrelevant to my determination of this appeal. Parents brought this appeal seeking additional services beyond those offered on the IEP Amendment. After an initial finding of no special needs BPS later proposed an IEP followed by an IEP Amendment. BPS did not bring this appeal seeking to end Student’s IEP/special education services. BPS did not file a counterclaim to Parents’ appeal. Parent has had no formal notice of BPS’ position that Student is not eligible for special education services. Therefore, my determination on Parents’ appeal is solely whether BPS’ current IEP Amendment for Student provides Student with FAPE or whether additional services are necessary.
II.
603 CMR 28.02(7)(g) defines a communications impairment as follows:
(g) Communication Impairment – The capacity to use expressive and/or receptive language is significantly limited, impaired, or delayed and is exhibited by difficulties in one or more of the following areas: speech, such as articulation and/or voice; conveying, understanding, or using spoken, written, or symbolic language. The term may include a student with impaired articulation, stuttering, language impairment, or voice impairment if such impairment adversely affects the student’s education performance.
Based upon the totality of evidence presented, I conclude that Student’s disability, if any, must be considered a minimal one. The initial evaluation by Ms. Rao (cited above) found grossly age appropriate articulation skills with some phonological processes but specifically made no recommendation for services. Ms. Abele’s independent evaluation made 3 recommendations for services (cited above). For a student under the age of 5 years old only recommendation #2 could be implemented by a public school and BPS did so with its promulgation of Student’s first IEP, providing small group speech-language therapy. After 5 such sessions Ms. Clancy recommended a language based preschool program with certain components (cited above). BPS then promulgated the IEP Amendment which is the focus of this appeal.
Parent cites 3 bases for increased speech therapy for Student: 1) A letter from Student’s pediatrician, Dr. Andrew; 2) A letter from Dr. Bohegian; and 3) The Lahey Clinic speech-language evaluation. The letter from Student’s pediatrician (P-9a) notes a speech delay, an articulation disorder, a hearing loss due to infections and generally recommends speech therapy. This letter is 15 months old, having been written in January 2002. The letter from Dr. Bohegian (P-9b) was written on November 27, 2002, five days after Student underwent insertion of ear tubes. Dr. Bohegian’s letter reviews Student’s history including her tonsillectomy and adenoidectomy in February 2001; her chronic otitis media with effusion (fluid) since October 2000; her conductive hearing loss due to this condition; and her bilateral myringotomy and tube insertion 5 days earlier. Due to her improved hearing Dr. Bohegian recommends “the maximal speech therapy available to her”. Finally is the Lahey speech-language evaluation performed in February 2003 (P-8) which recommendations are cited above.
Neither Dr. Andrew, Dr. Bohegian, nor the Lahey Clinic speech-language pathologists involved in Student’s evaluation testified at this hearing. None of them observed Student in her ECP program. None of them has ever spoken to BPS or LABBB personal. (See testimony, Parent; Greenwood; Goldstein.) Therefore, I have only their letters/report as evidence. Giving due deference to these letters and evaluation, I do not find them persuasive of Parent’s position for additional speech-language therapy. Dr. Andrew’s letter offers only a general recommendation for speech therapy and was written just as Student was being initially evaluated by BPS 15 months ago before any services had even been started. Dr. Bohegian’s letter similarly makes a generalized recommendation for maximal speech therapy. However, there is no basis to know upon what he based this broad statement i.e., there is no basis to know whether he knew what services Student had received and was currently receiving from BPS, the nature of such services, or the frequency of such services. We do know that he neither observed Student in her BPS program nor spoke to BPS personnel about Student. Regarding the Lahey Clinic evaluation, Parent made clear that she did not allow the Lahey evaluators to view any BPS materials or any speech-language evaluations but only the ear reports. The only information the Lahey evaluators received regarding Student’s BPS program or other evaluations came from Parent i.e., that Student was in an integrated preschool class of 11 children, 4-5 of when had speech-language problems, taught by a teacher and 2 aides. (See P-8.) Parent testified that she informed Lahey that Student’s preschool teacher was a speech-language pathologist but that information is notably absent from the Lahey report. (See P-8; testimony, Parent.)
Additionally, the Lahey evaluation was approximately 1½ hours in length (testimony, Parent) and was conducted by Ms. Jackson, a speech pathologist who is still in her clinical fellowship year (does not yet have her CCC from ASHA) and who requires supervision and countersignature from her supervisor (P-8; testimony, Greenwood). Ms. Jackson is the only speech-language evaluator who has ever recommended speech-language therapy for Student on a 1:1 basis. All of the other speech-language therapists who evaluated or provided speech-language therapy to Student (Ms. Rao, Ms. Abele, Ms. Clancy) were speech-language pathologists who already had obtained their CCC from ASHA. All recommended some variation of either group speech-language therapy or a language based preschool program for Student. I place greater weight on these more experienced and higher level certified speech-language pathologists, 2 of whom have school based experience working with young children and 1 of whom works at a university level, than on a speech-language pathologist who is still in training at a clinical level. I also place greater weight on Ms. Clancy’s recommendation for a language based preschool program which was made after 5 one hour sessions of interacting with and observing Student function in small group speech-language therapy.
Most importantly, I place substantial weight on the testimony of Mr. Greenwood who is an ASHA CCC certified, Massachusetts licensed speech-language pathologist; who is a certified teacher of the speech and hearing impaired; who has 7 years of teaching experience and providing speech-language therapy to students at a pre-school level; and who has been Student’s teacher for 2 hours per day, 3 days per week for the last 7 months. Mr. Greenwood gave detailed testimony regarding the structured work and directed play speech, language and articulation activities that take place in the ECP classroom, as well as the teacher directed speech cues, teacher guided self-correction, and teacher/peer modeling of speech articulation and expressive language that go on throughout the school day. Mr. Greenwood also testified that, based upon his observation of her performance in his class, he does not perceive Student to have any speech-language disabilities.
The Clinical Evaluation of Language Fundamentals-Preschool (CELF-P) is a standardized testing instrument of receptive and expressive language. Ms. Jackson of Lahey Clinic administered the CELF-P to Student and gave the raw scores in her report (P-8). Mr. Greenwood, who has administered the CELF-P many times, converted the raw scores into standardized scores and found that Student tested in the normal to above normal range in receptive language and the normal range in expressive language. Thus, Ms. Jackson’s CELF-P supports Mr. Greenwood’s direct observations.
Mr. Greenwood testified that Student exhibits developmental errors in articulation. Mr. Greenwood defined developmental errors as normal sound errors made by children at certain ages and that, as the child ages, she will naturally grow out of the particular errors. Mr. Greenwood testified that all but one developmental error Student exhibits are within normal limits. The one articulation error out of the normal range (d for b substitution) is not of concern to Mr. Greenwood because Student can self correct it with a cue from Mr. Greenwood (i.e., Mr. Greenwood repeats the sound the way Student said it and Student immediately corrects it); Student can auditorally discriminate the sound; and Student does this reversal infrequently. Mr. Greenwood testified that while he does not provide any formalized 1:1 speech-therapy to Student, he does conduct therapeutic small group speech activities within the context of the class. He testified that he also informally works with Student and several other children in small group speech-language therapy and activities about once per week for approximately 20 minutes. Mr. Greenwood testified that he does not consider Student’s articulation errors as disabilities because they are developmental; that
Student is able to function well within the ECP, communicates with her peers and staff and participates in all aspects of her day; and that he has never perceived Student’s articulation errors to impede her educationally or socially. (See testimony, Greenwood.)3 Given Mr. Greenwood’s expertise, experience and consistent interaction with Student for extended periods over a 7 month period, I find his testimony to be highly credible.
I briefly address the issue of Student’s hearing. Parent explained why Parents did not want Student to have ear tubes and why Parents waited so long before ear tubes were inserted. While I can respect Parents’ reasons, I must note that virtually every report from every speech-language pathologist evaluating Student or providing speech-language therapy to Student raised, in some manner, the issue of Student’s hearing or lack thereof; the fluid in Student’s ears; the resulting conductive hearing loss suffered by Student (see also Dr. Bohegian’s letter, P-9b); and how this hearing loss affected Student’s speech development. Indeed Ms. Abele, Parents’ independent evaluator, listed the medical resolution of Student’s hearing status as her #1 recommendation (see above). Indeed, Ms. Abele noted in her evaluation (P-3; S-11) in February 2002:
She uses the phonological processes of syllable deletion and final sound deletion, which raise a red flag for her ability to hear all of the parts of words…….
Her deletion of syllable and word endings may be continuing rather than ending as phonological processes, because of her current hearing status.4
Hopefully, with the ear tube insertions, Student’s developmental articulation errors will soon cease.
In summary, I conclude that while Student may derive some benefit from additional speech therapy, she does not require additional speech therapy in order to receive FAPE. I conclude that the BPS IEP Amendment provides Student with FAPE in the least restrictive educational environment.
III
Parent cites no justification nor do I find any justification by which BPS should be held financially responsible for Parents’ private Lahey speech-language evaluation. Student was evaluated by BPS in December 2001 and received an independent evaluation paid for by BPS in February 2002. BPS did not perform any additional school evaluations which would entitle Parent to another independent evaluation. Further, Parents never requested BPS to fund the Lahey
evaluation prior to its occurrence or subsequently (P-11c; S-2). Indeed, Parent did not even request BPS to fund the Lahey evaluation in her Hearing Request to the BSEA. This issue was apparently first raised at the commencement of this hearing. The Lahey evaluators were given no prior information from BPS nor allowed to contact BPS. I conclude that the Lahey evaluation was a purely private Parental evaluation and that BPS has no responsibility to fund such evaluation.
ORDER
1. BPS’ IEP Amendment addresses Student’s special education needs so as to provide her with a free and appropriate public education in the least restrictive educational environment.
2. BPS is not responsible for funding Student’s speech therapy at Lahey Clinic.
3. BPS is not responsible for Student’s private evaluation at Lahey Clinic.
By the Hearing Officer,
Raymond Oliver
Dated: May 6, 2003
1
Student received a total of 10 speech-language therapy sessions with Ms. Clancy before the end of the school year (testimony, Parent). During the 2002 summer BPS offered Student speech-language therapy for 1 hour, once per week, for July 8 – August 5. Student attended 4 out of 6 sessions. (See P-10; S-6; testimony, Foley; Parent.)
2
It is noted that Lahey Clinic is located in Burlington, MA.
3
I note that Ms. Clancy also found Student’s articulation errors to be developmental, to wit: [Student] continues to present with developmental articulation errors within connected speech…. “(P-4; S-8). Also Ms. Rao noted: “Today she demonstrated a few phonological processes that are appropriate given her age and developmental history (P-2; S-7). Indeed, Parent herself testified that her insurance company would not cover Student’s speech-language therapy because it is a developmental articulation issue (testimony, Parent).
4
Parent herself testified that Dr. Bohegian had recommended ear tube insertion since shortly after he removed Student’s tonsils and adenoids in February 2001 (testimony, Parent). (See also P-9b.)