In Re: Jules1 and the Longmeadow Public Schools
BSEA# 05-0972
DECISION
This Decision is issued pursuant to M. G. L. c. 71 B and 30A, 20 U. S. C. § 1400 et seq ., 29 U. S. C. § 794, and the regulations promulgated under those statutes. A hearing was held in the above-entitled matter on February 27 and 28, March 1, 2, 27, 28, 29 and April 11, 2007, at the offices of Catuogno Court Reporting Services in Springfield, MA. Those present for all or part of the proceedings were:
Mr. & Mrs. Parents
Steven Dykstra Speech/Language Pathologist/Consultant
Marilyn Engelman Educational Psychologist
Laura Sinkwich Teacher/Tutor
John Crosson Assistant Head of Watkinson School
Alan Brown Teacher-MacDuffie School
Patricia Mack 6 th Grade Teacher–Longmeadow Public Schools
Krista Scott 7 th Grade Teacher-Longmeadow Public Schools
Jennifer Ronning School Psychologist-Longmeadow Public Schools
Ruthann August Special Education Teacher-Longmeadow Public Schools
Jennifer Rousseau Special Education Supervisor-Longmeadow Public School
Susan Bertrand-Grant Director, Pupil Services, Longmeadow Public Schools
Claire Thompson Attorney for Longmeadow Public Schools
Peter Smith Attorney for Parents
Richard Connolly BSEA Observer
Lindsay Byrne BSEA Hearing Officer
The official record of the hearing consists of: exhibits submitted by the Parents marked P-1 through P-38; exhibits submitted by the School marked S-1 through S-40; and approximately 66 hours of recorded oral testimony and argument. The parties presented oral closing arguments on April 11, 2007, and the record closed on that date.
Issues2
1 a) Whether the Individualized Education Plan offered by the Longmeadow Public Schools for the 2004-2005 school year (8 th grade) was reasonably calculated to provide a free, appropriate public education to Jules in the least restrictive setting? b) If not, are the Parents entitled to retroactive reimbursement of expenses associated with the Student’s unilateral placement at the MacDuffie School for the 2004-2005 school year?
2 a) Whether the Individualized Education Plan(s) proposed by Longmeadow Public Schools for the 2006-2007 school year (10 th grade) were reasonably calculated to provide the Student with a free, appropriate public education in the least restrictive setting? b) If not, are the Parents entitled to reimbursement for expenses associated with the Student’s unilateral placement at the Watkinson School for the 2006-2007 school year?
Background
Jules is now 16 years old and has completed the 10 th grade. He is a lifelong resident of Longmeadow. The history of this dispute reaches back to his first grade year in the Longmeadow Public Schools but did not come into sharp relief until Jules’ sixth and seventh grade years. The parties have worked, mostly cooperatively, throughout these years to address their differences in perspective about Jules’ needs and appropriate educational responses. Much of the evidence, documentary and testimonial, concerns these efforts. As there remain only two primary issues for resolution, however, this Decision will discuss only that evidence necessary for understanding and resolving the issues set out above.
Summary of the Evidence
1. Jules is a 16 year old student and resident of Longmeadow. He attended Longmeadow Public Schools until his 8 th grade year in 2004-2005. Beginning in Jules’ first grade year, the 1997-1998 school year, his parents noticed weaknesses in his performance on language and literacy tasks and significant school related anxiety. They communicated their concerns directly to the teachers in the first through fifth grades (academic years 1997-2002). No school personnel ever suggested a special education evaluation. Jules achieved passing grades in all academic areas, unremarkable standardized test scores, and exhibited no behavioral issues warranting school interventions, throughout these early elementary school years. (S-1, S-5) During his fifth grade year the parents arranged for outside tutoring one to two afternoons per week for Jules. (Parent)
2. During the fall Parent-Teacher conference of Jules’ 6 th grade year, 2002-2003, the teacher suggested that the Parents request a special education evaluation to investigate the causes of Jules’ school and homework frustration. The Parents formally requested a special education evaluation on January 27, 2003. (P-1) The academic evaluation, though pegging Jules’ achievement as generally consistent with grade level expectations, identified some weaknesses in oral language comprehension and spelling. (P-3, S-10; Mack; See also P-2, S-9) The psychological evaluation, conducted by Jennifer Ronning, the School Pyschologist, found Jules to have a statistically significant 39 point differential between his well above average verbal and his below average non-verbal performance scores as measured by the WISC-III, a standardized test of cognitive potential. In the evaluation report Ms. Ronning explained that:
Youngsters with this type of “lopsided” profile are often found to experience significant inner confusion and self-doubt, lower risk taking, and heightened sensitivity to criticism and failure. They frequently have great difficulty with inferencing, synthesizing information, and interpreting it, with organization and written expression, with novel problem solving and overall execution of visual-spatial hands-on tasks.
Their preferred learning and performance style is more analytic and step-by-step, using language to mediate (talking to oneself to “teach” what they are viewing/processing) and they require very explicit and clearly organized and articulated instruction in order to understand. Checklists, strategies, templates and formulas are their guide to successful performance.(P-3, S-10) Ms. Ronning recommended study skills and organizational assistance, specialized instruction and materials, including pre-teaching in all academic areas, along with step by step presentation of materials that is explicitly articulated and systematically organized and includes the use of templates, rubrics, semantic organizers, T charts, and study guides. (See P-3) The Parents and Ms. Mack, Jules’ 6 th grade teacher, agreed that Ms. Ronning’s evaluation accurately captured Jules’ learning style and needs. (Mack, Parents) The learning profile described by Ms. Ronning is consistent with a diagnosis of Non-Verbal Learning Disorder. (Engelman, Dykstra, Ronning)
3. A Team meeting was held on February 24, 2003 to discuss the results of the evaluation. Ms. Mack testified that the Team found that Jules was making effective progress in the 6 th grade but only with significant help from home and with nearly crippling anxiety. Therefore the Team decided to propose an IEP offering daily in-class organizational assistance for the remainder of the 2003-2004 school year. (S-12; S-16, P-5) The Team reconvened in April and June, 2003, to plan for Jules’ transition into the Glenbrook Middle School.
In July 2003, Longmeadow sent the Parents an IEP proposing that Jules meet with a teacher for 10 minutes each morning before school and each afternoon at the end of the day to work on organizational strategies and check on mainstream assignments. The IEP also provided for two hours of tutoring each week. The IEP noted that Jules would take an ungraded foreign language class and could have access to the school adjustment counselor if needed. The Parents accepted the proposed IEP for the 7 th grade on August 15, 2003. (S-13, Parents)
4. The Parents testified that the 7 th grade was extremely difficult for Jules. They stated that his anxiety and frustration increased to the point of intereference with his ability to maintain appropriate enrichment and family activities. They testified that the regular education teachers were not aware of the IEP and failed to implement it appropriately. In particular the foreign language class was graded, the regular teachers failed to accommodate Jules’ organizational and processing needs and the classes were too large and too loosely structured for Jules to benefit from instruction. (Parents)
Krista Scott, the special education teacher responsible for ensuring the implementation of Jules’ 7 th grade IEP, testified that she provided the necessary accommodations to Jules in both regular and special education settings. She noted, however, that Jules appeared very anxious and unsure of himself and was overly concerned about his grades, test performance and homework completion. He had difficulty with multistep directions and at times appeared overwhelmed. (Scott)
5. The Team reconvened on December 18, 2003, to address the Parents concerns about the implementation of the 2003-2004 IEP. Ms. Scott stated that due to the miscommunication about the implementation of the required IEP accommodations and modifications in the 7 th grade regular education program, the Team removed Jules from French class and substituted resource room assistance for that time block. (S-19) The 2003-2004 IEP was never amended to reflect that change in service. According to Ms. Scott, although he was performing well academically as measured by passing grades and standardized test scores, the 7 th grade progress reports do not refer to any measurable benchmarks in the IEP. (Scott; Parents; S-23)
6. The Parents testified that it became apparent during the December 2003 Team meeting that the School was unaware of Jules’ learning style and needs. They learned that the French teacher was unaware that Jules had an IEP, and consequently was unaware that it called for ungraded participation in French language class. They learned that Jules’ teachers were unaware that the inability to recognize the need for assistance, to ask for assistance, or to tolerate assistance when it is provided individually in the context of a larger peer group, are behavioral characteristics of Non-Verbal Learning Disorder. They learned that the assistive technology and production accommodations listed on the IEP were not being implemented in any setting. They learned that writing, the only academic goal area included in Jules’ 2003-2004 IEP had been eliminated from the 7 th grade curriculum in favor of concentration on reading comprehension instruction to meet MCAS testing requirements. They were told that Jules was “doing well” in all academic classes only to learn within the next few days that his grade in English was “D”. The Parents suggested that the teachers receive specific training on Non-Verbal Language Disabilities. The School arranged one training session but declined the Parents’ request to attend. The Parents requested changes in instructional content to address Jules’ need for direct teaching of and support in the area of written language. The Parents were told that the curriculum could not be changed for just one student. The Parents inquired about the existence of the twice weekly tutorial as listed on the accepted IEP. They were told that instead Jules participated in a large homework support class. Ms. Scott reported that Jules received more special education intervention throughout the day, including daily resource room instruction, than was reflected in the accepted IEP. No IEP incoporating the 7 th grade special education services cited by Ms. Scott was produced by Longmeadow as a result of the December Team meeting. Nor was there any consent to such service provided by the Parents. (Scott; Parents; See also Sinkwich)
7. Dr. Marilyn Engelman conducted a neuro/psychoeducational evaluation of Jules at the Parents’ request and expense in February 2004. Her results are consistent with the previous findings of the Longmeadow school psychologist, Ms. Ronning. (Compare P-8 and P-3, S-10)3 She found Jules to have specific learning disabilities in the areas of executive functioning, processing speed, and visual memory, indicating an overall non-verbal learning disorder. He demonstrated particular weaknesses on tasks involving fine motor skills and visual-motor/ visual-spatial integration. Dr. Engelman noted that although he has at least average cognitive potential, Jules works and processes information slowly and becomes overwhelmed and anxious when information is presented too quickly or in too great a volume. He needs information to be chunked, sequenced, and repeated to avoid overloading. He needs directions to be broken down and presented one at a time. He needs to be reminded to slow down; he needs frequent breaks to avoid fatigue; and he needs constant encouragement and praise to maintain focus. Throughout the two testing sessions Dr. Engelman found that Jules needed much more redirection and repetition than one would expect of a typically functioning 7 th grade student. Dr. Engelman explained that his weaker abstraction and inferential skills, combined with poor organizational skills, make the content, the pace and the type of teaching used in upper elementary and middle schools increasingly challenging for Jules. Jules also demonstrated significant levels of several characteristics of nonverbal learning disorder: anxiety; inability to acknowledge learning differences; refusal to request assistance and difficulty transitioning between assignments, tasks and settings. These characteristics interfere with learning absent significant environmental and strategic modifications. Based on her own testing, as well as the previous report of Dr. Ronning, Dr. Engelman recommended:
1. placement in small, structured classes with teachers familiar with working with students with executive functioning and processing speed weaknesses;
2. direct support in organizational skills;
3. daily academic support;
4. specialized learning strategies such as: pre-reading, editing, semantic mapping, note-taking and study skills instruction;
5. use of word processing technology;
6. direct instruction in written language skills;
7. direct instruction in math skills;
8. extended time for in-class assignments and standardized tests. (P-8) Dr. Engelman explained that a small teacher-student ratio in a larger class or environment is not equivalent to the small class size recommended for Jules.
In her view Jules needs the cohesiveness and the personal attention a class of 10-12 students offers in order to learn to his potential. (Engelman)
8. The Team reconvened on April 1, 2004. Jules’ teachers reported that he was performing well academically and achieving passing grades. (S-24; Scott) The Parents remained concerned about Jules’ frustration, anxiety, written language, study and organizational skills. Longmeadow proposed a “full inclusion” IEP to run from April 2004 to April 2005, which eliminated the morning and afternoon “check-ins” for organizational support as well as the daily in-class organizational support but retained the 10 minute daily in-class special education service geared to written language. The IEP placed Jules’ current performance level in written language at the third grade level. The IEP also offered Jules a daily “study skills” class in lieu of foreign language. Ms. Scott testified that this was a “homework support” class of approximately twenty students. The IEP also noted that study guides would be available “when necessary and practicable.” Attainment of the “ study skills” goal would be measured by 100% homework completion and grades of “B” or better. The parties acknowledged that neither homework completion nor achievement of passing grades were areas of concern for Jules. The IEP listed only two key evaluation points on which it based its service provision: Non-Verbal Learning Disability and 6 th Gr. MCAS math (NI). No discussion of, or services attributable to, either “results” appear in the proposed IEP. (S-25)
9. Typically in Longmeadow a student remains with the same core academic teachers (math, science, social studies, language arts) and students for 7 th and 8 th grade years by “looping”. The Parents requested a change of the regular education Team teachers assigned to Jules for the 8 th grade year hoping for a “ fresh start” and better compliance with Jules’ IEP. The principal of the Glenbrook Middle School informed the Parents that no exceptions to the “ looping” policy could/would be made. Later, during the 2004-2005 school year, the Parents learned that looping had been discontinued and student/teacher groups had been comprehensively rearranged for the 2004-2005 school year.
(Parents; Scott)
10. On August 11, 2004, the Parents rejected the services and placement outlined in the proposed 2004-2005 IEP and notified Longmeadow of their intent to place Jules at the MacDuffie School. (S-25; P-9; Parents)
11. Jules attended the 8 th grade at the MacDuffie School during 2004-2005 school year at parental expense. The MacDuffie School is a private, non-special education, grade 6-12 school located in adjacent Springfield, MA. The 8 th grade had fewer than 25 students; each class had no more than ten students at a time. Jules followed the regular MacDuffie 8 th grade curriculum and participated in the Guided Study program which offered after-school tutorials four afternoons per week for academic support and for reinforcement of organizational skills. The Guided Study program was available in addition to the regular “after school help” which was scheduled for and available to all MacDuffie middle school students. Alan Brown was Jules’ math teacher and at times his guided study tutor. He testified that Jules worked well in the 10 student group math class although he got off track easily and needed refocusing two-three times per class. He explained that Jules worked and learned better in the one-to-one settings of after-school help and guided study than in the “larger” 10 student math class. He described Jules as a concrete thinker who required direct instruction, repetition, and extended processing time. Although he had average math skills Jules had difficulty with equations. Jules often said, “I understand”, but when asked to show his understanding he couldn’t. According to Mr. Brown, Jules acted and talked as if he knew the material, but he didn’t. He only learned it with constant reinforcement. Over the course of the 8 th grade year, Mr. Brown observed improvement in interfering anxiety and in the rate of learning new material. (Brown) In the 8 th Grade Final Report, the Director of the Guided Study Center, Carol Dixon, corroborated Mr. Brown’s observations. She noted that Jules made significant progress overall, but continued to require direct teaching and support in written language skills. (P-11; See also P-10)
The Parents reported significant improvement in Jules’ attitude toward school and the anxiety/frustration behaviors he displayed at home. They also reported that Jules was able to participate in extra-curricular activities for the first time in many years due to increased confidence. (Parents) Longmeadow Public Schools did not observe Jules at MacDuffie and did not evaluate his progress over the course of the 2004-2005 school year. (Parents)
12. Laura Sinkwich, a certified regular education high school teacher, tutored Jules one to three times per week after school during part of Jules’ 7 th grade year in Longmeadow and the 8 th grade year at the MacDuffie School. She testified that when she first met Jules in April 2004 Jules’ written expressive language skills fell at the 3 rd to 4 th grade level. He had no reading inferential skills and minimal analytical skills. His ability to plan, predict, and organize his work was minimal. He had significant difficulty transitioning between tasks and had poor eye contact. Jules’ oral language fluency and memory were good. He always claimed he understood the content or the assigned task, but he didn’t. By the end of the 8 th grade Jules’ reading skills, writing mechanics and eye contact were improved. He had learned to create a three paragraph essay, but could not, by then, complete a five paragraph essay. His independent study skills and self editing skills were still very basic. Ms. Sinkwich testified that Jules needed academic instruction in small groups or individual tutoring as he could not process information presented in classes of twenty or more. In the larger group, Ms. Sinkwich predicted, Jules would say, “I get it, I get it”, but he wouldn’t and wouldn’t know how to ask for or accept help. (Sinkwich)
13. The Parents requested a Hearing at the BSEA on June 24, 2005, seeking reimbursement of expenses associated with their unilateral placement of Jules at the MacDuffie School, and additional unreimbursed tutoring costs. (P-16)
14. The Team reconvened on August 26, 2005, to consider Jules’ program and placement for the 2005-2006 school year. Carol Dixon attended the Team meeting and described Jules’ participation in the MacDuffie School programs. No teachers from Longmeadow attended the Team meeting. Jennifer Rousseau, the Special Education Supervisor for Longmeadow High School testified that she produced the proposed 9 th grade IEP by “tweaking” the 8 th grade IEP to reflect the services and schedule available to Jules were he to attend Longmeadow High School. (Rousseau; compare S-25 and P-12) The Parents understood that Longmeadow would develop an IEP for services, but would decide placement at a later Team meeting. (Parents) Jules attended the 9 th grade at the MacDuffie School. The Parents are not seeking a finding on the appropriateness of the IEP proposed by Longmeadow for the 2005-2006 school.
15. Marilyn Engelman re-evaluated Jules in August 2005. She found that although he had made some progress in both academic and executive functioning skills since she had first tested him in February 2004, (Compare P-8 and P-13) he continued to demonstrate characteristics of a non-verbal learning disorder. In particular she described Jules as a concrete learner who learns best with structured, explicit organization and intervention. He continued to need extra time to process and produce work, and to transition from one task to another. He needed positive encouragement to focus and maintain his energy and to reduce anxiety. Dr. Engelman attributed Jules’ academic growth, and his mastery of some organizational and coping strategies, to the mix of small, structured classes and regular one-to-one tutoring available to him at the MacDuffie School.
As a result of her re-evaluation Dr. Engelman recommended:
1. continued placement in small, structured classes, with built in opportunities for individual attention, clarification, and repetition;
2. extended time on all in-class and standardized tests to address his slower processing speed;
3. teachers should allow Jules extra time to formulate oral responses;
4. teacher provided notes, study guides, rubrics, etc.;
5. access to teachers at non-class times for clarification, reinforcement organizational assistance, and support;
6. use of specific reading strategies such as Multi-Pass, RAP;
7. assistive technology for written assignments
8. written language assistance and strategies such as COPS
(P-13; Engelman)
16. The Team reconvened on November 4, 2005, to consider the results of Dr. Engelman’s evaluation and to determine placement for the 2005-2006 IEP. Dr. Gail Engel, a school psychologist associated with the Longmeadow Public Schools, reviewed the reports of Dr. Engelman and Ms. Ronning. She did not conduct an evaluation of Jules on behalf of Longmeadow.
On the same day the Team met, Longmeadow proposed a “full inclusion” IEP for the time period November 2005 to November 2006, covering the remainder of 9 th grade and the first two months of 10 th grade. The proposed IEP unilaterally changed the 3-year re-evaluation date from April 2006 to June 2008. Longmeadow had not conducted a comprehensive re-evaluation, nor any specific evaluations, of Jules since his initial evaluation in February 2003. (P-19, S-31)
17. The proposed 2005-2006 IEP incorporated the testing results of Dr. Engelman, but not the placement or methodology recommendations. The proposed IEP contains goals for special education services in written language, study and organizational skills, and reading. It provided for a special education teacher in the regular English, Science, History and Math classes, along with a daily period of academic support/study skills in the resource room to address written language and organizational needs. Individualized academic tutoring was to have been provided twice per week after school along with a summer reading program. (S-31, P-19)
Ruthann August, the Longmeadow High School Special Education Teacher who would have been responsible for delivering the services proposed in the 2005-2006 IEP, attended the November 4, 2005 Team meeting. She described the program that existed during 2005-2006 at Longmeadow High which had been proposed for Jules.4 Ms. August was in charge of a resource room which served approximately 25 students each week; twelve on a daily basis. Ms. August, a certified and experienced special education teacher, was responsible for direct special education instruction to 6-8 students weekly. This group of students did not attend mainstream classes. Another group of 8-10 students were assigned to Ms. August’s assistant, Ms. Burke. These students, accompanied by Ms. Burke, moved as a group through the regular education classes. The regular education classes generally had 10-12 regularly assigned students, some of whom may have had IEPs not calling for Resource Room assistance, making a total instructional group of 20-22 students. After participating in the mainstream classes Ms. Burke worked with that “core group” of 8-10 students in the Resource Room for one period daily to support their organization and written language and to reinforce learning through pre/post teaching. According to Longmeadow’s proposal Jules would have been one member of that “core group.” Ms. Burke was not a certified special education teacher. (August, Rousseau)
Ms. August acknowledged that none of the 9 th grade “core group” students carried a non-verbal learning disability diagnosis. (P-20-P-29) She stated if Jules had wanted or needed a different academic class than the one to which the “core group” was assigned, such as an “honors” academic class, the resource room would provide “oversight”. Ms. August also testified that all of Jules’ written language goals would be addressed using the John Collins writing approach, which is used for all classes, regular and special education, district-wide. The proposed 2005-2006 IEP does not provide for any consultation between regular and special education service providers. It states it is based on evaluations conducted by Longmeadow in 2004, though none were. It contains a goal for reading, though no listed services address that goal. Furthermore, the benchmarks for assessing reading include the use of a tool, “Story Grammar Marker”, that was developed for early elementary age learners and is not appropriate for high school age students. (August, Rousseau; P-19, S-31; See also Parents) The Parents did not specifically respond to the proposed IEP and it is considered rejected. At the conclusion of the November meeting the Team decided to reconvene later to more specifically consider Dr. Engelman’s recommendations. It never did. (Rousseau) The Parents testified that they did not agree with the proposed 9 th grade plan because it did not offer the small, structured academic classes recommended by Dr. Engelman and in which Jules had achieved academic and affective success during his 8 th grade year. They believed that Jules needed the immediate feedback, the allowance for longer processing time, the highly organized presentation of materials, and interactive communication available in small, cohesive classes in order to learn with attention and without anxiety. Furthermore, the Longmeadow High School “core” peer group, as shown in the redacted IEPs provided by Longmeadow, did not form a behavioral match for Jules. (Parents; See S-20-29)
18. Steven Dykstra is a Speech-Language Pathologist with a specialty in Non-Verbal Learning Disorders. He evaluated Jules beginning in February 2006, and provided targeted strategic interventions to Jules during the summer, 2006. At the hearing Mr. Dykstra testified that Jules exhibits some traits typical of students with non-verbal learning disorders: difficulty with social pragmatics, anxiety, difficulty planning written tasks, poor time management and organization, weak understanding of abstractions and idioms, and illusions of competence. Mr. Dykstra added that students with nonverbal learning disorders typically do not recognize their need for assistance, “shut down” when singled out for help, and become overwhelmed with anxiety when faced with long term projects. He noted that Jules fit this profile. An appropriate class for Jules would be small, comprehensive and highly structured, with ongoing opportunities for one-to-one reinforcement. Classroom instruction should be focused on success, using explicit and simple organizational tools, minimal choice, directions or transitions. Short deadlines, routine and universal assistance with both content and organization, and concrete methods for self-assessment are techniques that work well for students with non-verbal learning disorders, and for Jules.
(Dykstra; P-30)
19. Jules enrolled in the Watkinson School, a grade 6-12 private, non-special education college preparatory school adjacent to the University of Hartford in Connecticut, for his 10 th grade year, 2006-2007. John Crosson, the Assistant Head of Watkinson School, explained the program there. There are 282 students at Watkinson. Approximately 40% of them are enrolled in the Learning Skills program to address learning disabilities. Most instructors are certified teachers; none has special education certification. In the 10 th grade Jules takes math, language arts, biology, history, Spanish and creative arts in small cohesive groups of twelve or fewer students. Jules is placed in the slowest paced math class with 5 other students. All other classes are unleveled. Jules also has a study hall, as do all students. During study hall and at other times Jules participates in the Learning Skills program which has certified special educators providing direct instruction and support in study and organization techniques, written expression, reading comprehension and reinforcement of basic mathematics. Other direct services and program management options are available through the Learning Skills program on request or recommendation. Students receive both content mastery and effort grades. All students have an advisor/advocate, typically one of the learning center staff, who is responsible for ensuring the students’ learning needs are met across the curriculum. The advisor/liaison works directly with Jules, observes his functioning in classes, communicates regularly with his teachers, and develops appropriate intervention plans. Classes are block scheduled for ninety minute periods. There are only 3 or 4 classes per day, minimizing transitions and permitting longer times for discussion and projects. (Crosson; P-34; Parents)
Mr. Crosson testified that Jules appears happy and engaged at Watkinson. Jules has strong social skills and good connections to adults. He is motivated and eager to do well. Jules has weak reading comprehension and written expression skills. He also has very slow processing speed. Nevertheless, according to Mr. Crosson, his learning style and the programs and philosophy of the Watkinsson School, seem to be a good fit. (P-35, 37, Crosson) Watkinson developed an Individualized Program Guide for Jules which described his learning strengths and weaknesses, recommended teaching strategies for all instructors, outlined organizational/study strategies for Jules, and memorialized production/testing accommodations. (Crosson, P-38) The Parents testified that despite the commuting distance and the lack of local peers, Jules is benefiting from the Watkinson Program. (Parents)
20. On October 27, 2006, the Parents filed a request for hearing at the Bureau of Special Education Appeals seeking reimbursement of expenses associated with their unilateral placement of Jules at the Watkinson School, along with the costs of some parentally provided tutoring. (P-17) This hearing request was consolidated with the one submitted earlier. (See ¶ 12)
21. The Team met on October 30, 2006, to develop an IEP for the 10 th grade. The guidance counselor and the special education supervisor for Longmeadow High School attended the Team meeting. Initials appear beside the name of Ruthann August, the Longmeadow High School Special Education Teacher, but she did not recall being present at that meeting. (August) No regular education teachers attended the meeting. (P-32, S-35) The Parent testified that the meeting lasted fewer than twenty minutes, that no substantive discussion of Jules’ needs or the program(s) available at Longmeadow High School took place, and that a prepared IEP was handed to the Parent at the meeting. (Parent)
22. The proposed 2006-2007 IEP once again unilaterally changed the 3 year re-evaluation date from June 1, 2008 (See P-19, S-31) to April 2, 2009. No evaluations, observations, or assessments were conducted by Longmeadow as part of the process of developing the 2006-2007 IEP. The evaluation data supplied by Dr. Engelman for the development of earlier IEPs was deleted from the 2006-2007 IEP. The only “evaluation” supporting the 2006-2007 IEP was a 6 th grade MCAS score: 232 ELA.. The IEP continued to offer a “full inclusion” program for Jules. Instead of the assistance of a special education tutor in regular courses, however, the IEP indicated that a “special skills tutor” would provide special education services in the general education setting. No other changes to the service delivery grid that appeared in the 2005-2006 rejected IEP were made. The proposed IEP did note that general education instruction would be provided in “small student teacher ratio 10 to 12:1 in structured settings.” The IEP also noted that “[Student] is getting accommodations that are standard accommodations provided at LHS.” The proposed IEP deleted references to the use of assistive technology and the reading goal that had appeared in the 2005-2006 IEP. The current performance level on the proposed 2006-2007 IEP indicates that Jules can write a 5 paragraph essay without support, while in 2005-2006 he could do so only with teacher support. The benchmarks, however, are identical to those listed on the IEP proposed for 2004-2005, which listed Jules’ current performance at the 3 rd grade level. No evaluations or assessments in the record support these changes and Ms. Rousseau, who developed the plan, could not explain the reasoning behind the changes. (P-19, S-31) No transition services plan appears in the 2006-2007 IEP.
Ms. Rousseau, the special education supervisor at Longmeadow High School, testified that Longmeadow proposed substantially the same IEP for the 2006-2007 school year as it had for the 2005-2006 school year because the same program was available. Although the maximum class size for regular courses in the ninth grade is twenty students, she did not know whether there were class size limits for the 10 th grade. She stated that if Jules had difficulty with the class size he could be removed for one-to-one tutoring. Before that she would first expect that he would raise his hand and ask a question in the regular class; next that he would identify his area of confusion to the teacher and then that he would seek help in the resource room. Since most social studies and English assignments are long term projects, Ms. Rousseau added, they shouldn’t cause Jules too much anxiety. (Rousseau)
Ms. August testified that she did not provide any special education services to 10 th grade students during the 2006-2007 school year. Ms. Berman, a certified special education teacher, took responsibility for the 10 th grade “core group”. During 2006-2007, however, none of that “core” group went out of the Resource Room to attend all regular education subject classes with an assistant as had been the practice the previous year. Jules would have been the only student with an “inclusion” type of plan receiving services in the resource room during the 2006-2007 school year. (August)
23. Ms. Ronning testified that the IEPs developed by Longmeadow subsequent to her evaluation in February 2003, did not contain any of her key findings and recommendations. (Compare P-3, S-10 and S-13, 5-16, P-5; S-25; P-19, S-31; P-32, S-35)
24. Mr. Dykstra observed both the Watkinson School and the Longmeadow High School Resource Room Program during the 2006-2007 school. No other hearing participant observed both programs. Mr. Dykstra testified that although the Watkinson School had not been designed for students with non-verbal learning disabilities, it was uniquely appropriate for students with that learning style, including Jules, both operationally and instructionally. Mr. Dykstra noted that Jules feels part of a comfortable learning group, which reduces his anxiety and allows him to pay attention to learning. The block scheduling and consequent limitation of different content presentations meets Jules’ need for reduced transitions and extended processing time. The necessary instructional support is individually designed and integrated throughout his school day. The Watkinson program guide recognized the same weaknesses that Mr. Dykstra had identified through his work with Jules during the summer 2006, such as idioms, inferences, and prioritization of materials and Watkinson had independently developed appropriate strategies to address them. Mr. Dykstra testified that Watkinson provided a setting and services that could meet Jules’ learning needs as identified in his own evaluation as well as those of Dr. Engelman. (P-33; Dykstra)
On the other hand, according to Mr. Dykstra, the IEP developed by Longmeadow contained neither services nor settings appropriate for Jules. Mr. Dykstra testified that the “standard accommodations” listed in the proposed IEP for the 2006-2007 school year were standard for students with language disabilities, not for students with non verbal learning disorders. For example, Mr. Dykstra pointed out, the proposed IEP calls for the use of graphic organizers, tools that are not helpful for students with non-verbal learning disabilities. Instead, Jules would benefit from the use of a semantic organizer, a tool that does not appear on the proposed IEP. Similarly the proposed IEP lacked a goal or services geared to address Jules’ weak reading comprehension. Mr. Dykstra noted that changing classes 6 to 7 times daily, transitioning between settings and people each hour, and not having a cohesive group of similarly engaged peers are all detrimental to Jules’ learning. Mr. Dykstra found that the proposed IEP lacked the services to address the anxiety and confusion that would inevitably result from the schedule and setting at Longmeadow High School. (Dykstra; P-33)
Findings and Conclusions
There is no dispute that Jules is a student with a disability and is thus entitled to receive a free, appropriate public education pursuant to 20 U. S. C. 1401 et seq . and M. G. L. c. 71B. The dispute here involves the appropriate service set and placement for him for the school years 2004-2005 and 2006-2007. After careful consideration of all the evidence produced at the hearing, and the able arguments of counsel for both parties, it is my determination that the preponderance of the credible evidence in the record supports the parents’ contention that the IEPs offered by Longmeadow for those school years were not reasonably calculated to provide a free, appropriate public education to Jules in the least restrictive setting. My reasoning follows:
The record here establishes that Jules is a young man who is motivated to learn, puts in serious effort toward his studies, is compliant and cooperative with academic tasks both in school and with homework, and wants to “do well.” He also has a nonverbal learning disability which profoundly affects his capacity to engage in academic tasks, to meet grade level expectations for production, and to recognize his need for assistance. Expert testimony established that this type of nonverbal learning disability affects less than 1% of the population and is frequently unrecognized. In this matter the struggles Jules demonstrated with the effects of this disability: slow processing and production speed; difficulty with abstractions and inferences; difficulty with multi-step directions and other complex, sequential language; poor organizational skills; pervasive anxiety; and the inability to identify his need for help, to ask for it and to receive it, were indeed noticed by his parents, his tutor, and three different evaluators. The preponderance of the credible evidence in this record also establishes that the existence and effects of this disability were either not recognized, or not understood, by the regular education teachers and most of the special educators responsible for Jules in Longmeadow. Thus the interventions and supports that were identified as necessary for Jules by Longmeadow’s own school psychologist, and confirmed by later evaluators, were not incorporated into IEPs and were not delivered by instructional personnel.
The thrust of special education law and practice is to ensure sufficient targeted instruction and individualized supports to permit most students with disabilities to participate successfully in the regular education mainstream. This goal, however, cannot be achieved without the willing and knowledgeable cooperation of regular education personnel. In this matter, the Parents testified movingly of their attempts to educate and secure training for middle school educators on the effects of a non-verbal learning disability, and to ensure compliance with the most basic aspects of Jules’ accepted 7 th grade IEP. Their description of the resistance of Longmeadow teachers to implementation of Jules’ 2003-2004 IEP is unrebutted. The fact that both IEPs at issue in this hearing are “full inclusion” IEPs, and yet not one regular education teacher appeared at the hearing, is telling. The success of “inclusion” IEPs is heavily dependent on the good faith participation of regular educators in the development and delivery of specialized services to students with disabilities. As can be seen in this matter, without that commitment from regular education, “inclusion” special education plans are unlikely to be workable.
2004-2005 IEP
1a. Turning to the Individualized Education Plan proposed by Longmeadow for Jules’ 8 th grade year, I find that the Parents have carried their burden of persuading me that the proposed IEP for the 2004-2005 school year was not reasonably calculated to provide a free, appropriate public education to Jules. This finding has both substantive and procedural components. Roland M. v. Concord School Committee , 910 F.2d 983 (1 st Cir. 1990). Once a student is identified as a student with a disability requiring special education, the school district is obligated to develop a plan to provide personalized instruction tailored to that student’s individual needs in a way that is reasonably calculated to enable he student to make meaningful and effective educational progress.5 Both the appropriateness of the service and the adequacy of the Student’s progress is to be judged in relation to the individual Student’s potential, not in relation to existing services for, or progress of, other students.6 In this matter, Jules’ educational needs were clearly identified by Longmeadow’s school psychologist, Ms. Ronning, in February 2003. (P-3; S-10. See ¶ 2) None of her findings appears in the IEP developed by Longmeadow one year later (Compare P-3, S-10 and S-25). No intervening evaluations were undertaken by Longmeadow. The only “evaluation result” upon which the next IEP was purportedly based was the 6 th grade MCAS. This clear violation of the federal requirement that no single measure be used to determine an appropriate special education program for a student renders the 2004-2005 IEP procedurally defective.7 Furthermore, the IEP does not contain most of the services and accommodations recommended by Ms. Ronning, misidentifies Jules’ current performance level, has inappropriate or non-measurable goals and benchmarks and, without explanation, reduces the special education support available to Jules in the regular classroom. The proposed 8 th grade “full inclusion” IEP also eliminates the consultation between the special education provider and the regular educators that had appeared in Jules’ accepted 7 th grade IEP. There are no evaluations, assessments, or other documents or testimony in the hearing record to support these changes and omissions.
Putting aside the procedural deficiencies for a moment to look closely at the actual services offered in the proposed 2004-2005 IEP, I find that they are not reasonably calculated to provide even minimal educational benefit to Jules. I credit Ms. Sinkwich’s unrebutted opinion that ten minutes per day of written language support in the general classroom by “staff” over the course of six or seven periods of 8 th grade content instruction, when Longmeadow has pegged Jules’ written language skills at the 3 rd grade level, is inappropriate. (See also Scott) The offered daily “study hall” directed by “staff” which would have approximately twenty students as described by Ms. Scott does not meet the recommendations of either Ms. Sinkwich or Ms. Ronning for targeted organizational support, reinforcement, pre-teaching and post-teaching. As Ms. Scott observed that Jules made progress in the 7 th grade only with “much more” special education support than appeared on the 7 th grade IEP (although she admitted that the 7 th grade IEP had never been amended to reflect the appropriate level of support), it is difficult to understand, and it was not explained at the hearing, how or why the frequency and duration and setting of the special education supports were reduced in the proposed 8 th grade IEP from the level set out in the accepted 7 th grade IEP. The lack of attention to Jules’ needs documented in the proposed 2004-2005 IEP buttresses the Parents’ view that the Longmeadow Middle School personnel could not or would not participate in appropriate special education programming for Jules. After the Parents sought, and were refused, a change in the regular education teaching team for Jules’ 8 th grade year, they had exhausted all available avenues for securing the assistance of regular education staff in the delivery of appropriate services and accommodations to Jules.
1b. Based on the above I find that Longmeadow failed to develop an 8 th grade IEP for Jules that could appropriately meet the special education needs identified by Longmeadow. Jules’ parents were therefore justified in seeking and securing an alternate educational placement for Jules for that 8 th grade year. Upon a showing that the school district defaulted on its obligations under the IDEA to develop an appropriate IEP, as was established here, parents are entitled to reimbursement of expenses associated with privately secured educational services so long as those services are reasonably calculated to provide some of the missing educational benefit to the Student. Florence County School Dist. Four v. Carter , 510 U. S. 7 (1993). Not all of the statutory requirements for FAPE that control the actions and programs of public school districts are relevant, or even available, to the placements and services that parents may call upon to fill a void left by an inadequate IEP. Matthew J. v. Massachusetts Department of Education , 989 F.Supp. 380 (D. Mass. 1998). See also discussions at In Re: Sudbury Public Schools , 11 MSER 260 (2005) and In Re: North Adams Public Schools , 8 MSER 148 (2002). Here the parents relied on consistent evaluative information provided both by the school’s psychologist, Ms. Ronning, and their own evaluator, Dr. Engelman, when looking for an educational setting that would offer Jules small, highly structured, tightly organized classes with additional out-of-class tutorial assistance both for content support and organizational strategies. Both evaluators also noted that it was important that Jules not feel “singled out” for help as that caused significant anxiety which then caused him to “shut down” to learning. The Parents considered a number of options within commuting distance of their home, both traditional special education schools and private schools not state approved to provide special education. They determined that the MacDuffie School could meet Jules’ educational needs. They gave proper statutory notice to Longmeadow of their intent to place Jules at the MacDuffie School. (P-9) I am persuaded by the credible and unrebutted testimony of the Parents, and of Mr. Brown, that the MacDuffie School did indeed provide Jules with the small cohesive classes, academic reinforcement, and assistance with study and organizational skills, that he needed in order to make progress commensurate with his cognitive potential. (See ¶ 11) I further credit the testimony of Ms. Sinkwich that Jules’ reading and writing skills, as well as his self-confidence as a learner, improved over the course of his 8 th grade year at the MacDuffie School. This testimony is corroborated by the Parents, Mr. Brown, the contemporaneous reports from the MacDuffie School, and by the academic progress recorded in the second evaluation conducted by Dr. Engelman. (P-10, P-11, P-13; Parents, Brown) There is no evidence to the contrary in this record. Therefore I find that the Parents have shown that the educational program offered to Jules at the MacDuffie School was appropriate for him, and that he derived a demonstrable educational benefit from his attendance there during the 2004-2005 school year. As a result the Parents are entitled to reimbursement for all out-of-pocket expenses associated with their unilateral placement of Jules at the MacDuffie School for the 2004-2005 school year.
2a. 2006-2007 IEPs
The program proposed by Longmeadow for Jules’ 10 th grade year, 2006-2007, is contained in two IEPs: one developed in November 2005 which would have covered September and October 2006 (P-19, 3-31) and one developed in October 2006, to cover the remainder of the school year (P-32, S-35). Both IEPs call for a “full inclusion” program. Neither IEP meets the recommendations of the evaluators whose findings were before the Team. Both IEPs are procedurally defective.
The 2005-2006 IEP does not offer placement in small, structured academic content classes, as recommended by Dr. Engelman. There are no other placement recommendations in the record. There are no recommendations in the record for the “full inclusion” program proposed in the 2005-2006 IEP. (P-19, S-31) The Team did not include a regular education teacher. There is no provision for consultation between the special education provider(s) and any regular education personnel to ensure that the necessary modifications and accommodations that are listed in the proposed IEP would be delivered. Coordination between regular and special educators is certainly a fundamental component of a workable “inclusion” IEP. The list of instructional modifications includes techniques specifically advised against by the Longmeadow school psychologist, e.g. graphic organizers instead of semantic organizers. The list lacks recommended modifications to address Jules’ slow processing speed and anxiety. According to the testimony of both Ms. Rousseau and Ms. August, the 2005-2006 IEP offered Jules an opportunity to participate in a resource room to mainstream program that was already established, in a group of peers whose skills, abilities and interests did not necessarily resemble Jules, accompanied by a teacher not certified in special education. No modifications to the established schedule, personnel, or instructional methodology were proposed by Longmeadow to meet Jules’ unique needs.
I find that the Longmeadow’s failure to ensure the attendance of a regular education teacher at the Team meeting, failure to include the most recent evaluation results in the IEP, and failure to develop appropriate goals and assessments, violations of 34 CFR 300.320; 300.321; 300.324; and 300.116 led directly to the proposal of a 2005-2006 IEP that did not offer an appropriate program or placement for Jules and was not reasonably calculated to meet his unique educational needs in the least restrictive setting.
The IEP offered to the Parents on October 30, 2006, fares even worse on review. (P-32; S-35) Longmeadow failed to conduct the required three-year re-evaluation which had been due by February 2006. Longmeadow failed to include a regular education teacher or any of Jules’ then current teachers in the Team meeting. Other than the Parent, no one at that brief Team meeting had met Jules. The proposed IEP for 2006-2007 had been written in advance of the Team and handed to the Parent at the meeting for “rejection”. The proposed IEP made changes in instructional goals and personnel without any new information about Jules. Finally Longmeadow offered, without discussion, the same resource room to mainstream placement and program at the High School that it had offered in the 2005-2006 IEP, but which it knew no longer existed. These violations of 34 CFR 300.303, 300.310 and 300.320 resulted in a proposed IEP that did not meet the educational recommendations of any of the evaluators and thus was not reasonably calculated to provide an appropriate public education to Jules. In reaching the conclusion that that neither the 2005-2006, nor the 2006-2007 IEP proposed by Longmeadow was reasonably calculated to provide an educational benefit to Jules, I credit and rely on the testimony and reports of Dr. Engelman, Mr. Dykstra, Ms. Sinkwich and Ms. Ronning, all of whom I found to be thoughtful, candid, experienced experts in their respective fields. Their observations and recommendations are consistent with each other and over time, are persuasive and are unrebutted in this record.
2b. Having been presented with two fundamentally flawed IEPs for the 2006-2007 school year the Parents were justified in securing alternate educational services for Jules. The Parents gave Longmeadow the statutorily required advance notice of intent to place Jules at the Watkinson School in August 2006. (P-31; 34 CFR 300.148) The Watkinson School is a private, college preparatory school which is approved as a regular education facility by the State of Connecticut. It offered Jules the small, cohesive academic classes with minimal transitions that had been recommended for him. It offered Jules additional daily content and organizational tutorial assistance and support, as well as curriculum and strategic coordination from an individual advisor, as had been recommended. I credit the testimony of the Parents, Mr. Dykstra and Mr. Crosson that the “seamless web of support” available at Watkinson permits Jules to engage in the mainstream to his full cognitive potential, while minimizing interfering anxiety and incorporating newly learned organizational strategies. The reports generated by Watkinson, as well as the observations of Mr. Dykstra and of the Parents, indicate that Watkinson provided individualized services closely aligned with the educational recommendations made by Ms. Ronning, Dr. Engelman, and Mr. Dykstra. Those reports and observations also indicate that Jules is deriving specific benefits in his areas of learning need: organizational strategies, independent learning, time and production management as well as mastery of grade level academic content. There is no information to the contrary in the record.
Based on the unrefuted documents and testimony summarized above I conclude that the Watkinson School offered Jules appropriate educational services for the 2006-2007 school year. I therefore find that the Parents are entitled to reimbursement of all out-of-pocket expenses associated with their unilateral placement of Jules at the Watkinson School for the 2006-2007 school year.
The Parents requested that I make specific administrative findings which could support a later claim under 42 U. S. C. Section 1983, popularly known as “Frazier Findings”.8 In this Decision, I believe, there are sufficient administrative findings concerning the actions of Longmeadow Public Schools with respect to its obligations to Jules under the IDEA to support the legal conclusions reached and the remedies ordered. This Decision is the final action of the state administrative due process system available to the Parents, and therefore the Parents have exhausted their administrative remedies.
See: BSEA Hearing Rule XIII B. To the extent the Parents seek additional findings concerning the motivation or conduct of specific Longmeadow Public School staff members, I decline to read any ill intent into the actions of the many teachers and administrators Jules and his Parents had contact with over the course of his school career. The results are sufficiently plain.
Order
1. The Individualized Education Plan proposed by Longmeadow Public Schools for the 2004-2005 school year was not reasonably calculated to provide a free, appropriate public education to Jules. The Parents are entitled to reimbursement of expenses associated with the unilateral placement at the MacDuffie School for that school year.
2. The Individualized Education Plans proposed by Longmeadow Public Schools for the 2006-2007 school year were not reasonably calculated to provide a free, appropriate public education to Jules. The Parents are entitled to reimbursement of expenses associated with the unilateral placement at the Watkinson School for that school year.
3. The parties shall develop a plan to address all reimbursement issues no later than October 1, 2007. The Hearing Officer will retain jurisdiction to monitor compliance with this Decision.
August 17, 2007
Lindsay Byrne, Hearing Officer
1
“Jules” is a pseudonym chosen by the Hearing Officer to protect the privacy of the Student in all documents available to the public.
2
Additional issues set out in prehearing orders were settled by the parties at the beginning of the hearing.
3
Though the point discrepancy between Jules’ verbal and non-verbal performance scores narrowed significantly on the standardized intellectual potential measure administered by Dr. Engelman one year after Ms. Ronning’s testing, both psychologists testified that the scoring differential primarily represented a change in weight and subtest selection in different test instruments rather than any change in or re-interpretation of Jules’ actual learning potential or style. Both psychologists identified the same learning strengths and weaknesses, and drew similar conclusions about appropriate interventions for Jules. They agreed that both the WISC-III administered by Ms. Ronning and the WISC- IV administered by Dr. Engelman show he has a Non-Verbal Learning Disorder. (Engelman, Ronning; See also Dykstra)
4
No written description of the Resource Room program/options at Longmeadow High School exists. (Rousseau)
5
For one, of many, thoughtful BSEA discussions of this statutory standard please see: In Re: Sudbury Public Schools , 11 MSER 260 (2005).
6
M. G. L. 69 c. 69 and 71B; Hendrick Hudson Dist. Board of Education v. Rowley , 458 U. S. 176 (1982).
7
20 U. S. C. 1414 (b) (1-3), 20 U. S. C. 1412 (a) (6) (B); 34 C. F. R. 300.304. I also take administrative notice that the MCAS is not designed to evaluate an individual student’s educational potential.
8
Frazier v. Fairhaven School Committee , 276 F.3d 52 (1st. Cir. 2002); 122 F.Supp.2d 104 (D. Mass. 2000).