Cambridge Public Schools – BSEA # 08-7180



<br /> Cambridge Public Schools – BSEA # 08-7180<br />

COMMONWEALTH OF MASSACHUSETTS

SPECIAL EDUCATION APPEALS

In Re: Cambridge Public Schools BSEA #08-7180

DECISION

This decision is issued pursuant to the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C., § 1400 et seq ; Section 504 of the Rehabilitation Act of 1973 (29 U.S.C., §794); the Massachusetts special education statute or “Chapter 766,” (M.G.L. c. 71B) and the Massachusetts Administrative Procedures Act (M.G.L. c. 30A), as well as the regulations promulgated under these statutes.1

At issue here is whether the Cambridge Public Schools (Cambridge, CPS or School) must reimburse Parent for (1) tutoring expenses incurred during the summer of 2007 and (2) costs associated with the Carroll School summer program for the summer of 2008.

Parent filed a request for hearing on June 3, 2008. The BSEA scheduled a hearing for July 9, 2008, which was postponed once at School’s request and once at the Parent’s request. An evidentiary hearing took place on July 17, 2008 at the office of the Bureau of Special Education Appeals (BSEA) in Malden, MA. Both parties were represented by counsel, and had the opportunity to examine and cross-examine witnesses and submit exhibits. The parties presented oral closing arguments on the date of hearing and the record closed on that date.

Those present for all or part of the proceeding were:

Student’s Mother

Rachel Wiseman Psychologist

Dr. Aida Ramos Exec. Director, Office of Special Education (OSE), Cambridge Public Schools

Jean Spera Ass’t. Director, OSE, Cambridge Public Schools

Kathleen Kelsey Special Educator, Cambridge Public Schools

Charles Lower Lead Teacher, CPS Summer School (OSE)

Jeffrey Sankey, Esq. Attorney for Parent

Maureen MacFarlane, Esq. Attorney for School

Jason Lee Intern with CPS Legal Counsel

The official record of the hearing consists of Exhibits 1 through 17,2 and approximately 3.5 hours of tape-recorded oral testimony and argument.

ISSUES PRESENTED

The issues presented for hearing are:

1. Whether CPS must reimburse Parent for the cost of tutoring provided by a teacher employed by CPS, whom Parent had hired privately to provide Student’s agreed-upon ESY services during the summer of 2007, where CPS had not informed Parent of the name of the tutor it had selected or the starting date for services until July 5 or 6, 2007.

2. Whether the extended school year (ESY) program offered by CPS for the summer of 2008 was reasonably calculated to prevent substantial regression in Student’s skills during the summer vacation.

3. If not, whether the summer program at the Carroll School, in which Parent unilaterally enrolled Student for the summer of 2008, is appropriate such that Parent is entitled to reimbursement from Cambridge for the costs of that program.

POSITION OF PARENT

Summer 2007 : Cambridge not only failed to inform Parent, in a timely manner, of the start date for the ESY services called for in Student’s IEP, or the name of the assigned tutor, but also failed to respond to Parent’s telephone inquiries. Under these circumstances, Parent’s decision to privately hire a Cambridge Public Schools special education teacher, who already knew Student and who was qualified to deliver the tutoring service, was reasonable and justified. Further, in light of Student’s difficulty with transitions, Parent was justified in declining Cambridge’s belated offer of a tutor of its choosing, and deciding, instead, to continue with the original tutor she had retained. Cambridge, therefore, should be ordered to reimburse Parent for the costs associated with the tutoring she obtained privately.

Summer 2008 : Parent was justified in rejecting the ESY program that Cambridge offered for summer 2008 because, among other reasons, it did not contain the integrated recreational component recommended by Parent’s outside evaluator. On the other hand, the summer program at the Carroll School, where Parent unilaterally placed Student in July 2008, contained all of the elements that Student needed to avoid substantial regression and receive FAPE. Therefore, Cambridge should reimburse Parent for the cost of her unilateral placement of Student at the Carroll School summer program for the summer of 2008.

POSITION OF CAMBRIDGE PUBLIC SCHOOLS

Summer 2007 : For the summer of 2007, Cambridge’s obligation to Student was to provide tutoring for one hour per day, 5 days per week, for a total of 5 weeks. The IEP did not specify a start date or supply the name of a tutor; rather, Cambridge told Parent that she would be called and given this information at a later date. Cambridge had no obligation, therefore, to contact Parent on any particular date, or to provide the service during any particular period over the summer; as long as it did so early enough in the summer to provide the full five weeks of service called for in the IEP.

In fact, Cambridge contacted Parent by July 5 or 6, 2007, and offered the full complement of services specified in the IEP, thereby fulfilling its duty under the IEP. The tutor proposed a gradual transition in order to minimize any stress for Student.

Moreover, Parent was not entitled to choose a particular CPS employee to serve as a tutor; rather, Cambridge had the sole right to assign a tutor based on its collective bargaining agreement with its teachers and other internal policy considerations. Parent has no right to reimbursement for expenses she incurred when she hired a tutor herself outside of the normal process because at all relevant times, Cambridge was ready, willing, and able to provide the services to which Student was entitled. Finally, Parent’s failure to notify Cambridge in advance of hiring a teacher on her own, as well as her delay of nearly a year in requesting reimbursement, undermines her claim.

Summer 2008 :Cambridge’s proposed ESY program would have provided Student with the academic, social, and recreational services required to meet his needs. The program does, in fact, have recreational activities available that are tied to each student’s IEP goals. Parent decided to enroll Student unilaterally in the Carroll program in April 2008, well in advance of Cambridge’s offer of its ESY program, and clearly had no intention of accepting any offer by Cambridge. Finally, the Carroll program is too restrictive for Student.

FINDINGS OF FACT

1. Student is a nine-year old boy who just completed the third grade in the Cambridge Public Schools. He is described as a very friendly, polite, gentle boy. Student has many friends in his neighborhood, and enjoys several sports and many different recreational activities. Student has attended the Cambridge Public Schools for his entire educational career. (Testimony of Mother, Ex. 1, 8)

2. There is no dispute that in addition to his many strengths, and low-average cognitive functioning, Student has a variety of disabilities that interfere with his progress both in and outside of school, including ADHD, executive functioning weaknesses, some characteristics of a non-verbal learning disability, and a significant vision impairment that is only partially corrected with glasses. As a result, Student experiences difficulties with self-regulation, attention, organization, and visual motor skills, as well as both reading and math. Academically, Student functions approximately one to two years below grade level. (E-8.)

3. Student is a very sensitive child. He has become increasingly self-conscious about his academic struggles in recent years, both because his schoolwork has become more difficult, and because as he matures he is more aware that his friends do not find schoolwork as difficult as he does. He has sometimes been tearful at home, after school, and has reported that he feels “stupid.” Additionally, Student’s combination of disabilities, including his vision impairment, make it difficult for him to interpret subtle social cues. As a result, Student has become upset at joking remarks made by peers, thinking that they were serious or directed at him. He also experienced some teasing at one of the schools he attended, although school personnel resolved the issue. (Mother, Wiseman, Ex. 13, 13A).

4. At all relevant times, Cambridge has provided Student with special education services to address his learning needs. Student has always been served within a public school setting, most recently receiving pull-out services for reading, math, occupational and physical therapy, inclusion for other subjects, numerous accommodations in all subjects, and consultation from a teacher of the visually impaired. (Mother, Ex. 1, 5 )

5. In February 2007, when Student was in the second grade, Parent obtained a neuropsychological evaluation by Rachel Wiseman, Psy.D. After assessing Student’s cognitive abilities, academic achievement, language processing, fine motor skills, attention, and social/emotional functioning, Dr. Wiseman concluded that Student had significant attention problems, overall cognitive functioning in the low average range, and academic skills approximately one year below expectations. He had difficulty with executive control and self-regulation. (Ex. 13-A) Student also had mild socialization issues and anxiety. (Wiseman) Dr. Wiseman recommended an inclusion classroom with increased support and specialized instruction in reading and math, as well as an individual or shared aide, explicit instruction in organizational skills, and the services of a vision consultant. (Wiseman, Ex. 13-A)

6. Dr. Wiseman further stated that “the provision of services at the same level of intensity over the summer months is felt to be necessary to maintain [Student’s] functioning during a time of year which is inherently less structured. Summer programming should incorporate opportunities for both academic and socialization experience.” (E-13A.)

7. After a Team meeting held on March 29, 2007 to discuss the results of Dr. Wiseman’s assessment, Cambridge proposed an IEP covering March 29, 2007 through November 15, 2007. (E-1.)

8. This IEP provided for ESY services, stating: “The team has assessed [Student’s] need for summer services to prevent regression and found that he does quality for summer services. He will receive 5 sessions of 60 minutes per week during the OSE summer program (5 wks) to focus on literacy and math goals with no more than 3 students in the group. Specialized instruction will be provided by a Special Educator.” (Mother, Ex 1) Mother accepted this portion of the IEP on April 30, 2007. (Mother, Ex. 1)

9. Neither the IEP nor any other document in the record indicated the starting date for the five-week summer program. (Ex. 1)

10. The 2006-2007 school year ended in mid to late June 2007. As the end of the school year approached, and Parent asked several Cambridge employees, including the inclusion specialist at Student’s elementary school, when tutoring would begin and who would provide it. These employees told mother that “we’ll call you.” (Mother)

11. Before the school year ended, Parent called Cambridge’s Office of Special Education (OSE) on two occasions to inquire about summer services, but received no return telephone call or other response either during the school year or during the early weeks of summer vacation. (Mother)

12. In late June or early July 2007, Mother contacted Student’s former (first grade) special education teacher, Ms. Margo Holtzman, and asked if Ms. Holtzman knew anything about arrangements for Student’s summer tutoring services. Mother asked Ms. Holtzman if she would be willing to tutor Student privately, at Mother’s expense, if Cambridge did not advise Mother about tutoring arrangements. Ms. Holtzman agreed, and began tutoring Student about two weeks after school had ended, during the first week of July 2007. Ms. Holztman provided one tutoring session per week. (Mother, Ex. 14)

13. There is no dispute that Ms. Holtzman is a certified special education teacher, who, at all relevant times, was employed as such by the Cambridge Public Schools. There also is no dispute that Ms. Holtzman was professionally qualified to provide Student with the ESY services specified in his IEP for summer 2007.

14. Meanwhile, on April 18, 2007, CPS posted “Temporary Help Opportunity #150, 2007/2008 School Year.” This posting stated that CPS was seeking “Special Needs Teachers, Learning Disabilities Teacher, Literacy Teacher and Paraprofessionals” as well as related service providers to “deliver support services to those whose IEPs include delivery of these services over 11 months. These students will be attending a 5-week summer school and other summer program” (E-2). The start and end dates specified in the posting were July 2 nd through August 3 rd , 2007.” The application deadline was April 27, 2007. The hourly payment rate was posted at $30.90 for teachers and related service providers and $20.00 for paraprofessionals. (Ex. 2)

15. By June 30, 2007, Cambridge had hired and assigned tutors to all CPS students who would be receiving summer tutoring services, including Student. (Lower).

16. Shortly before that date, the tutor who was or who was to be assigned to Student informed CPS that because of an emergency, she would be unable to fill the summer position she had just accepted. (Lower, Kelsey) Cambridge immediately began searching for a replacement. (Lower)

17. At no time did Cambridge inform Parent of the hiring process, the start and end dates for services as set forth in the posting, that a tutor had, in fact, been assigned, or that the tutor unexpectedly became unavailable at the last minute, and that CPS was seeking another tutor. (E-14, Parent)

18. In early July 2007, CPS asked Ms. Kathleen Kelsey, who already had contracted to provide ESY services in Cambridge, to provide tutoring to Student after the original tutor became unavailable. (Kelsey, Ex . 2) Ms. Kelsey already had been assigned to work with other students, whose parents had been informed of the assignment after the school year ended, during approximately the last week of June 2007 (Kelsey) Ms. Kelsey is certified to teach elementary and middle school as well as students with moderate special needs in grades pre-K through 8. She currently is employed as a special education teacher with the Cambridge Public Schools. Ms. Kelsey (Kelsey, Ex. 4)

19. Ms. Kelsey contacted Parent on or about July 5 or 6, 2007 to inform her that she would be Student’s tutor and to make arrangements to start tutoring the following week. (Parent, Kelsey, E-14). Parent told Ms. Kelsey that because she had heard nothing from CPS before Ms. Kelsey’s call, she already had hired Ms. Holtzman to tutor Student for two sessions per week. Parent also told Ms. Kelsey that since Ms. Holtzman had a prior relationship with Student, been tutoring Student for one week, and that the sessions were going well, she did not wish to change providers. (Parent, Kelsey, Ex. 14)

20. Ms. Kelsey offered to tutor Student for the three open days, or make other arrangements for a gradual transition from Ms. Holtzman, and also told Parent that she would be available to provide the full complement of ESY services set forth in the IEP. Parent declined Ms. Kelsey’s offer because she felt it did not make sense to disrupt the arrangement she already had made with Ms.Holtzman. (Parent, Kelsey, Ex. 14)

21. On or about July 6, 2007 or shortly thereafter, at Ms. Kelsey’s suggestion, Parent called Dr. Aida Ramos, the Executive Director of the OSE, reported the delay in assigning a tutor, and asked Dr. Ramos to have CPS substitute Ms. Holtzman for Ms. Kelsey as Student’s tutor. Parent explained that Ms. Holtzman had at least equal qualifications as Ms. Kelsey, also was a CPS teacher, and that it would be in Student’s best interests to continue with the same tutor. (Parent, Ex. 14) Dr. Ramos responded that she would look into this option, which most likely would be possible.

22. Dr. Ramos had been newly hired by CPS and had just begun work on July 2, 2007. During the initial conversation with Parent, Dr. Ramos informed Parent about the unavailability of the original tutor and consequent delay; this was Parent’s first notification of what had occurred.

23. Shortly after the initial conversation, Dr. Ramos informed Parent that Parent could not hire Ms. Holtzman at Cambridge’s expense, as this would lead to an unwelcome precedent of allowing parents to choose their own teachers. Moreover, hiring of summer staff was governed by the applicable collective bargaining agreement, and what Parent sought was outside of the process established by that agreement. (Ramos, Lower, Parent, Ex. 13, 14)

24. After speaking with Dr. Ramos, Parent chose to continue Student’s tutoring with Ms. Holtzman rather than transfer his services to Ms. Kelsey. (Parent, Ramos, Kelsey)

25. Parent paid Margo Holtzman at the rate of $75 per hour. (Parent) She paid Ms. Holtzman a total of $1645 for her services in two installments: $1045 on August 2, 2007 and $600 on October 4, 2007 (E-12).

26. In a letter dated May 15, 2008 to Jean Spera, Assistant Director of Special Education, discussing Student’s 2008 summer plans, Parent requested that Cambridge reimburse her for “the cost of private tutoring needed last summer. (E-10).

27. Dr. Ramos responded in a letter dated May 20, 2008 as follows:

With regard to the reimbursement that you are seeking for last summer, upon further investigation, I was informed that tutoring services were offered to [Student]. Kathy Kelsey was the tutor assigned to work with your son, but it was reported that you declined her services because you had contracted a private tutor. Please be advised that, because services were declined by you, and you chose to pay privately for tutoring, the district is not responsible for reimbursing the cost of such services, and will not reimburse you for the cost of these services. (Ex. 11)

28. Parent replied in a letter dated June 2, 2008 in which she provided her recollection of the situation that lead her to hire Ms. Holtzman, which is described in Findings 9 and 11 above. Parent stated, in essence that she did not “seek out independent services to ‘pick my own teacher.’ I sought out private services as [the] school department was not providing the services that they were bound to provide by my son’s IEP.” Parent also mentioned Student’s difficulty with transitions. (Ex. 14)

29. Neither party disputes the qualifications of either one of the teachers at issue.

30. CPS conducted a re-evaluation of Student in February 2008 consisting of educational and occupational therapy assessments and an “inclusion observation.” In addition, Parent obtained a second neuropsychological evaluation by Dr. Rachel Wiseman, which was completed in early April 2008. (Ex. 8, 13)

31. Upon completing the 2008 evaluation, Dr. Wiseman concluded that Student should be diagnosed with both language-based and non-verbal learning disabilities. (Wiseman) In the 2008 evaluation report, Dr. Wiseman noted that Student had difficulty with socialization at school. As stated in Paragraph 3, above, Student had trouble reading social cues and taking another’s perspective, and frequently misinterpreted comments directed at him, taking something to heart when it may have been meant in a joking way.

32. Dr. Wiseman also noted that Student had self-esteem issues, at times calling himself “stupid.” Drawing exercises indicated that Student might have feelings of anxiety, self-blame, and hopelessness. Dr. Wiseman noted some academic improvement from her previous (2007) examination but indicated that Student was still below grade level. Among other services and accommodations, Dr. Wiseman recommended a summer program to assist Student in maintaining his skills.

33. In Dr. Wiseman’s opinion, Student’s constellation of disabilities created the need for summer programming with both specialized academic instruction and social/recreational component, among peers with similar profiles to Student. (Wiseman, E-8, D-13)

34. At a TEAM meeting held on April 9, 2008, Parent asked Cambridge to place Student in a summer program provided by the Carroll School, a private, Chapter 766-approved school located in Lincoln, MA. The Cambridge members of the TEAM declined, and indicated that they would be offering a summer program located at the Morse School in Cambridge. (Parent)

35. Following the April 2008 meeting, Cambridge produced an IEP which, in pertinent part, called for an extended school year program, stating that Student “requires a five-week academic summer program to prevent significant regression of skills.” (Ex. 5) As indicated on the service grid, this ESY program was to consist of two daily sixty-minute sessions of academic instruction per five day cycle from June 30, 2008 to August 1, 2008. (Ex. 5)

36. By letter dated May 8, 2008, Parent rejected the “omission of an extended year specialized full time summer program for 5 weeks.” (Ex. 5)

37. In Parent’s May 15, 2008 letter to the CPS Assistant Director of Special Education, referred to in Paragraph 26, above, Parent informed Cambridge that Student had been accepted to the Carroll School summer program, and requested funding from Cambridge. Parent’s letter stated that the Carroll program would consist of specialized academic instruction and opportunities for socialization among children with profiles similar to Student’s, and further stated that the Carroll program met the recommendations of Dr. Wiseman. (E-10.)

38. In a letter dated May 20, 2008, referred to in Paragraph 27, above, Dr. Ramos, denied Parent’s request for funding. The letter further stated that Cambridge had a summer program that could meet Student’s needs, located at the Morse School in Cambridge. Student could attend the Morse School program from 8:00 AM to 12:00 PM, from June 30 to August 1, 2008. Dr. Ramos stated that “[s]tudents are provided with the academic supports that they need to prevent significant regression during the summer.” (E-11.)

39. Parent responded by letter on June 2, 2008, in which she stated that the Morse School program was inappropriate as it lasts only half a day and does not include a recreational component. She stated that it would not be ideal for Student to have to change programs in the middle of the day for a recreational component. She stated that she knows of no program that provides half a day of afternoon activity. Parent stated that she does not believe the Morse School program meets Dr. Wiseman’s recommendations. She reiterated her request for Cambridge to pay for the Carroll School program and indicated her intention to request an administrative hearing. (E-14.)

40. On June 3, 2008, Dr. Ramos sent a letter to Parent indicating that Student had been accepted into the Morse School extended year program, referred to above. The letter stated that “[w]e recognize that this program does not have a recreational component; as a result, OSE has partnered with the Department of Human Services [for the City of Cambridge] to provide some playful and fun activities for the students.” These activities would be provided by Camp Rainbow, which is a “specially designed summer recreation program for students with disabilities aged 6 to 22.” The letter indicated that program activities include swimming, team sports, art, music and field trips. If Parent chose to have Student attend Camp Rainbow, she would be charged $10.00 per week for five weeks (E-9.)

Program Proposed by Cambridge

41. Cambridge’s summer program at the Morse School is directed by Mr. Charles Lower, who is certified as a teacher of intensive special needs, and who also is a Board Certified Behavior Analyst (BCBA). Certified CPS teachers provide instruction with the assistance of aides. Related services such as OT can be provided if needed. (Lower)

42. The Morse School program focuses on academics. Instruction is individualized, and keyed to each student’s IEP. In addition, notwithstanding the letter indicating that there is no recreational component, students in the Morse program offers opportunities for recreational or leisure-type activities built within the program structure, to help students generalize skills specified in their IEPs and to reward appropriate behavior. (Spera, Lower)

43. Had Student attended the Morse program, he would have been one of three children aged 7 to 9, who were taught by one teacher and two aides. One aide is a certified teacher, the other has a Master’s degree in education. Student would have received individualized instruction in math, language arts, reading, and writing. He would also have participated in daily class meetings, recess and snack time. He would have received help with social skills, and some OT services. (Lower)

44. The two children with whom Student would have been grouped spend half of their time in substantially separate classrooms and half in regular classrooms during the school year. The disabilities of the other Morse School summer students include Autistic Spectrum Disorder, Asperger’s Syndrome, specific learning disabilities, and related social and emotional problems. According to Mr. Lower, Student’s level of need would have been in the “middle” with respect to these two students. (Lower, Spera)

45. Camp Rainbow is completely separate administratively from the Morse program. It is a camp for youth with disabilities operated by the City of Cambridge (rather than the school district), is purely recreational, and does not attempt to implement IEPs of participants. (Spera, Ramos)

46. Mr. Lower has reviewed Dr. Wiseman’s report, and believes that the Morse program complies with her recommendations. (Lower) Dr. Wiseman expressed concern regarding the relative absence of a recreational component with the Morse program, as well as the difficulties that Student might have transitioning to Camp Rainbow, if he should attend. She did not observe the Morse program. (Wiseman)

47. On the other hand, Parent has observed the Morse program, and concluded that most of the other students appeared considerably more disabled than Student, with a range of disabilities including cerebral palsy, severe mental retardation, and the like. She understood that Student would be in a group of 20 children, aged 6 to 13, in which few children had profiles similar to his. Parent concluded that this peer grouping would have a negative impact on Student and would “devastate his self-esteem.” (Parent)

Program Proposed by Parent

48. The Carroll School is a Chapter 766-approved private day school for children with language-based learning disabilities, located in Lincoln, MA. The Carroll summer program, named “Summer@Carroll,” is a five-week, full-day educational program for children with this profile. Mornings at the program consist of small group remedial reading, writing, and math as well as individual Orton-Gillingham tutoring. In the afternoon, which is described as “camp” in the program brochure, students participate in arts and crafts, swimming, and field trips (Ex. 15). Student’s schedule at The Carroll School consisted of 45 minutes daily each of sports/gym games, writing, math, and a language tutorial in the morning, followed by lunch and three hours of afternoon camp activities. (Ex. 16).

49. According to Parent, Student is thriving at the Carroll program, and benefits from spending time with students who have profiles similar to his. (Parent)

50. Parent paid The Carroll School $1000 on April 13, 2008, and an additional $3,600 on May 26, 2008 (E-17).

FINDINGS AND CONCLUSIONS

After reviewing the testimony and documents on the record, I conclude that Cambridge must reimburse Parent for the costs she incurred for obtaining tutoring for Student for summer 2007. With respect to summer 2008, I find that Parent has not met her burden of proving that the program offered by Cambridge was inappropriate for Student; therefore, Cambridge need not reimburse her for the cost of the Carroll School summer program. My reasoning follows.

Summer 2007 :

The relevant Federal regulations at 34 CFR §300.320(a)(7) explicitly provide that every IEP must state the “projected date for the beginning of the services and modifications [called for in the IEP] and the anticipated frequency, location, and duration of those services and modifications.”

There is no dispute that the IEP for 2006-2007 did not state the anticipated start date for the ESY services to be provided to Student. Further, there is no dispute that when Parent inquired, before the school year ended, as to when summer tutoring to start, she was told to await further contact, and that Parent’s follow-up calls to the special education office were unanswered. It is only when the month of July began with no word from Cambridge as to when tutoring would start that Parent retained Student’s former special education teacher to provide the service required by Student’s accepted IEP.

Whether Cambridge must reimburse Parent turns on the reasonableness of Parent’s action, under the circumstances. Reimbursement of parents for the cost of self-help may be available when a school fails to offer or provide appropriate services and the services obtained by the parents are appropriate. School Committee of Town of Burlington v. Dept. of Education of Mass ., 471 U.S. 359, 369-70 (1985.) Further, an order for reimbursement “is a matter of equitable relief, committed to the sound discretion of the trial court.” Roland M. v. Concord School Committee , 910 F.2d 983, 999 (1 st Cir. 1990) (citation omitted). I conclude that faced with Cambridge’s complete silence on the start date of tutoring, in violation of the clear mandate of the Federal regulation referred to above, Parent was entirely reasonable in her fear that Student would not receive the services on his IEP, and reasonable in retaining a credentialed teacher, who knew her son and who already was an employee of the Cambridge Public Schools, to provide the tutoring to which all parties agreed Student was entitled.

More difficult is the question of whether Cambridge cured its violation of the regulation, thereby extinguishing Parent’s right to reimbursement, at the point where it offered services via Ms. Kelsey, on or about July 6, 2007. Once again, the rule is one of reasonableness. While Parent’s desire not to disrupt an arrangement with Ms. Holtzman that was working well is understandable, and while there is some testimony that transitions are somewhat difficult for Student, Parent was not persuasive that having Ms. Kelsey take up Student’s tutoring would be inappropriate for Student.

At the time Ms. Kelsey contacted Parent, on July 5 or 6, 2007, Student had been working with Ms. Holtzman for only about one week. Based on Parent’s testimony that she had only been able to retain Ms. Holtzman two days per week, it seems likely that Student only would have met with her approximately twice. Ms. Kelsey offered to begin tutoring Student at the start of the next week (July 9, 2007), and to schedule sessions in such a way as to allow a transition between tutors, or, perhaps to provide three days of service in addition to those provided by Ms. Holtzman, if the Parent wished.

This arrangement could have addressed any transitional issues, and the record simply does not contain sufficient evidence to the contrary for Parent to prevail. Further, while the record indicates that Student is sensitive, can be anxious, and has some peer difficulties related to his disability, the record also contains much evidence that Student is very friendly, gets along well with adults, and has successfully made many transitions including changing elementary schools and participating in many different activities in his community.

In light of the foregoing, the reasonable and equitable resolution is for Cambridge to reimburse Parent for any tutoring sessions that Ms. Holtzman provided through the week ending Friday, July 6, 2007, assuming that Ms. Kelsey could have begun tutoring on Monday, July 9, 2007.

Summer 2008

Whether Parent must be reimbursed for her unilateral placement of Student at the Carroll School summer program depends on whether the summer program offered by Cambridge was appropriate. If so, the inquiry stops. If not, Parents are entitled to reimbursement if the program they select is appropriate. Town of Burlington, v. Dept. of Education of Mass ., supra.

To prevail here, Parent must first demonstrate, by a preponderance of the evidence, that the Morse School program offered by Cambridge was inappropriate. I find that she has not done so. Parent has raised two objections to the Morse program, which would have provided Student with approximately 20 hours per week of structured academic assistance keyed to his IEP, with some recreational activity, also tied to Student’s IEP goals.3 The first is that the program does not contain an integrated recreational component as recommended by Dr. Wiseman, or if it does, Parent was informed to the contrary at the time the program was offered to her.

Parent cannot prevail on this point because she has not established in the first instance that Student needs a recreational component in his summer program to prevent substantial regression. In fact, Dr. Wiseman’s 2008 evaluation simply states that Student ‘s summer program “should include opportunities for socialization and recreation” without specifying that these are necessary for FAPE or to prevent regression, and without specifying the amount and type of opportunities recommended. Further, there is no evidence on the record to indicate that the type of opportunities available at the Morse program would not fulfill this recommendation.

Parent’s second objection is that the peer grouping at Morse is inappropriate. Based on Parent’s observation, she concluded that Student would be inappropriately grouped with students who have severe disabilities, and that this would be harmful to his self-esteem. On the other hand, Mr. Lower and Ms Spera testified that while there is a range of disabilities represented at the Morse program, including students with behavioral and emotional disabilities, Student would be grouped with two other students, close to him in age, and that his level of need would be between that of the two peers. Neither party presented further evidence on this issue.

Parent’s concern is a serious one. However, she presented no evidence regarding the peer grouping other than her report of her own observation. While I credit Parent’s testimony regarding what she observed, her observation alone is not sufficient for her to meet her burden of proving the School’s program to be inappropriate. When the parent carries the burden of persuasion, and the evidence is in equipoise, the School must prevail. Schaffer v. Weast , 546 U.S. 49, 62 (2002).

CONCLUSION AND ORDER

For the reasons stated above,

1. The Cambridge Public Schools shall reimbursing Parent for her actual costs of providing summer tutoring for Student during the summer of 2007, up to and including July 6, 2007.

2. Cambridge is not responsible for reimbursing Parent for any additional tutoring costs for summer 2007.

3. Cambridge is not responsible for funding the costs of Student’s placement at the Carroll School summer program for summer 2008.

By the Hearing Officer:

____________________ _____________________________

Sara Berman

Dated: August 11, 2008


1

The Hearing Officer gratefully acknowledges the contributions of law students Rebecca Mudie and Stephanie Singer, who assisted with research and drafting for this Decision


2

The School submitted Exhibits 1 through 11 and the Parents submitted Exhibits 12 through 17. The documents are treated here as joint exhibits.


3

The offer of Camp Rainbow is irrelevant, as it is not a component of the summer program on Student’s IEP.


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