Student v. Lexington Public Schools – BSEA # 09-1718



<br /> Lexington Public Schools – BSEA # 09-1718<br />

COMMONWEALTH OF MASSACHUSETTS

SPECIAL EDUCATION APPEALS

In Re: Student v. Lexington Public Schools BSEA # 09-1718

DECISION

This decision is issued pursuant to the Individuals with Disabilities Education Act (20 USC 1400 et seq .), Section 504 of the Rehabilitation Act of 1973 (29 USC 794), the state special education law (MGL ch. 71B), the state Administrative Procedure Act (MGL ch. 30A), and the regulations promulgated under these statutes.

On September 4, 2008, Parents requested a Hearing in the above-referenced matter. At the request of the Parties, the matter was placed “off calendar” from November 14, 2008 through January 20, 2009 at which time the Parties requested that it be returned to the calendar and that a Pre-Hearing Conference be scheduled. The matter was scheduled for hearing but the Parties requested a postponement and an opportunity to proceed to settlement conference, which requests were granted. The case was ultimately scheduled for hearing and the Parties proceeded to hearing on September 22 and 23, 2009, at the Bureau of Special Education Appeals, 75 Pleasant St., Malden, Massachusetts. Those present for all or part of the proceedings were:

Student’s Parents

Constance Hilton, Esq. Attorney for Parents/Student

Anne Marie Lasoski, Psy. D. Neuropsychologist

Maria Nardone Resource Room Teacher, Lexington Public Schools

Pamela Healey Teacher, Lexington Public Schools

Maureen Denney Evaluator, Lexington Public Schools

Dr. Beverly Hegenus Supervisor, Licensed School and Board Psychologist, Lexington Public Schools

Gregory Edward Brougham Teacher, Landmark School

Dr. Janet Vodvarka High School Psychologist, Lexington Public Schools

Jill Brandwein-Frayar Evaluation Team Leader, Lexington Public Schools

Sherry Coughlin Lexington Public Schools

Linda S. Chase Director of Student Services, Lexington Public Schools

Colby Brunt, Esq. Attorney for Lexington Public Schools

The official record of the hearing consists of documents submitted by Parents and marked as exhibits PE-1 through PE-39, and Lexington Public Schools (Lexington) marked as exhibits SE-1 through SE-25; recorded oral testimony and written closing arguments1 . The record closed on November 16, 2009.

HEARING ISSUES:

1. Whether Lexington failed to provide Student a free and appropriate public education (FAPE) consistent with state and federal law during the 2007-2008 and the 2008-2009 school years?

2. Whether Parents are entitled to reimbursement for the day portion of Student’s unilateral placement at Landmark School, and transportation, for the 2007-2008 and the 2008-2009 school years?

POSITIONS OF THE PARTIES:

Parents’ Position:

Parents seek reimbursement for the day portion of their unilateral placement of Student at Landmark for the 2007-2008 and 2008-2009 school years. According to Parents, despite the provision of special education services in Lexington, private tutoring and other services provided by Parents outside school, Student experienced a significant decline in educational performance and his emotional well-being deteriorated during his ninth grade in Lexington.

Parents allege that Lexington’s IEPs for the 2007-2008 and 2008-2009 school years failed to afford Student a FAPE. Believing that Student required a more intensive and specialized educational program than the one proposed by Lexington, Parents rejected those IEPs and placed Student residentially at Landmark.

Lexington’s Position:

Lexington agrees that Student is eligible to receive special education services but disputes that he required private school placement during the 2007-2008 and 2008-2009 school year in order to receive a FAPE. It argues that grades alone are insufficient to conclude that Student failed to make effective progress and asserts that his academic difficulties were the result of skipping classes, failing to do homework, and drug abuse. From its standpoint, Student was not invested in his education and made poor choices.

Lexington asserts that it offered appropriate IEPs in 2007-2008 and 2008-2009 and therefore, should not be held responsible to reimburse Parents for their unilateral placement of Student at Landmark.

Lexington stipulates to the appropriateness of Landmark’s day program for Student.

FINDINGS OF FACT:

1. Student is an eighteen-year-old resident of Lexington, who currently attends Landmark as a residential student. He possesses cognitive abilities in the Average to High Average range overall, and has been described as a bright, pleasant and cooperative student. He has been diagnosed with a Reading Disorder (Developmental Dyslexia), Attention Deficit Hyperactivity Disorder (ADHD) Inattentive Type, and an Executive Function Disorder (PE-3; PE-26). In the past, Student was also diagnosed with a Mood Disorder and Depression (PE-26, PE-33; testimony of Father).

2. Student attended the Maria Hastings Elementary School in Lexington from kindergarten through the 5 th grade. Between kindergarten and fourth grade, he received Occupational Therapy services under an IEP. He also received remedial reading services at school that were not part of his IEPs (testimony of Mother, Father).

3. For sixth, seventh and eighth grades, Student attended the Diamond Middle School in Lexington. During the sixth and seventh grades, Student was not on an IEP, but he received private math tutoring outside of school. In seventh grade Student’s performance began to deteriorate and his grades dropped. He expressed to his parents that he was having difficulties keeping up in school and asked for help. Parents noted that he seemed increasingly discouraged, frustrated, irritable and angry (testimony of Mother, Father).

4. During the 2003-2004 school year, sixth grade, Student received the following grades in his major courses: B in English; A- in Ancient Civilizations; B- in Math II; and B+ in Science (SE-24). During seventh grade, 2004-2005 school year, Student obtained a B in English, B- in World Geography, C+ in Advanced Math and B in Science (SE-24).

5. Mother discussed these concerns with Lexington personnel, but no evaluation was conducted. During this time period, Student’s pediatrician, Dr. Mitchell Feldman, diagnosed him with ADD and he was started on medication. Psychotherapy was also initiated with Dr. Alan Kaplan (testimony of Mother, Father). As a as a result of a noted decrease in motivation, organizational issues, difficulties with concentration, a significant drop in grades and a question about dysphoric mood, and a “marked personality change (more angry, disinterested and aggressive)”, at the end of Student’s seventh grade, Parents referred him for a neuropsychological evaluation (PE-3; testimony of Mother, Father).

6. Student underwent a neuropsychological evaluation with Dr. David Dinklage on May 16, and May 17, 2005 (PE-3). Student was thirteen years of age at the time of this evaluation. Student reported to Dr. Dinklage that school work had become too difficult and stated that he no longer cared about school (PE-3).

7. Dr. Dinklage administered the Wechsler Intelligence Scale for Children-IV (WISC-IV); Comprehensive Test of Phonological Processing (CTOPP); Rey-Osterrieth Complex Figure; Line Orientation Test; Connors Continuous Performance Test-II (CPT-II); Wisconsin Card Sorting Test; Delis Kaplan Executive Function System (D-KEFS); Wechsler Individual Achievement Test-II (WIAT-II); Gray Silent Reading Test; Rorschach Inkblot Test; Thematic Apperception Test; Child Behavioral Checklist; Teacher Report Form; Youth Self Report; and, a clinical interview. Dr. Dinklage found that Student put forth good effort during the evaluation but required encouragement. According to him, the evaluation results offered an accurate portrayal of Student’s functioning ability at that time (PE-3).

8. According to Dr. Dinklage, Student’s evaluation revealed above-average reasoning ability in the verbal and visual perceptual domains with vulnerabilities sequencing as well as phonological memory/awareness (PE-3). Student’s decoding skills were found to be inefficient and laborious, consistent with a reading disorder. His spelling and phonetic analysis skills fell below Student’s overall intellectual ability and were below grade level expectation. On the WIAT-II, Student’s grade equivalent scores included Word Reading at 7.5, Spelling at 5.5, and Pseudoword Reading at 3.8. Student also presented difficulties with mood-regulation, organization, planning and self-monitoring. Dr. Dinklage diagnosed Student with an affective mood disorder, and concluded that Student’s sense of identity, belonging and uniqueness were being impacted by his “long standing reading disorder, particularly high achievement level of average Lexington peers, mood regulation problems, normal adolescent rebellion/struggle for independence, planning problems, and adoption issues” (PE-3). He recommended individual and family therapy, and also that Parents and Student enter into a contract regarding basic school expectations. In school, Dr. Dinklage recommended establishing routines that helped with organization; direct support to address organization and study skills; learning routines to systematically check his work independently; active reading strategies to read for content; learning previewing skills to assist with reading speed and comprehension; learning formal drafting skills that break the task down into component parts; exemption of the second language requirement; and extended time on tests (PE-3).

9. At the beginning of Student’s eight grade, the 2005-2006 school year, Parents provided Lexington with a copy of Dr. Dinklage’s report (testimony of Parent). Lexington proceeded to conduct an evaluation of Student, including a short reading evaluation, decoding screening and a classroom observation in September 2005 (PE-4; PE-5; PE-6).

10. On September 13, 2005, Nancy H. Wilson, of Lexington’s Diamond School, conducted a decoding screening finding that Student needed “direct, systematic, small group decoding instruction” to provide him with skills to address his reading difficulties (PE-4). She also recommended accommodations ( Id. ).

11. Ms. Wilson also administered the Gray Oral Reading tests- Fourth Edition (FORM A), a test of oral reading rate, accuracy and comprehension, on September 13, 2005 (PE-5). Student evidenced difficulties in reading comprehension when reading aloud, and his rate of reading and accuracy decreased as the test stories became more complex. Use of a place marker while reading proved to be helpful. Ms. Wilson concluded that Student presented with a reading disability and recommended in-school reading assistance to address issues with decoding and comprehension (PE-5).

12. On September 25, 2005, Ginny Fine, Resource Teacher at Diamond observed Student during English, remarking that Student was able to follow all of the teacher’s directions and participate appropriately in oral activities while fidgeting throughout the class period (PE-6).

13. Student’s Team convened on October 7, 2005 to review the private neuro-psychological and Lexington’s evaluation results. Student was found to present with a Communication Disability (Dyslexia). Specifically, he was found to experience difficulty with sequencing, reading class text, fluency, and his decoding and spelling levels were reduced. Lexington proposed that Student participate in a full inclusion program at Diamond Middle School, and that he attend resource room twice per week, fifty minutes each, for academic support to address organization and study skills deficits; meet with the guidance counselor once per week for fifty minutes to address impulsivity and behavioral issues; and attend a special education reading class twice per week, fifty minutes each, to address phonics and comprehension skills deficits. Additionally, the Team recommended MCAS accommodations in the form of clarification of general instructions and test directions by the test administrator; use of a place marker; assistance with tracking and/or sequencing test items by the test administrator and use of a template or graphic organizer. The Team proposed to proceed with a behavioral evaluation, and a meeting to discuss transitioning into High School was planned for April or May 2006. The IEP was forwarded to Parents in mid-October 2005. On October 19, 2005, Parents accepted placement and partially rejected the IEP because they wished that the consultation with the behavioral specialist begin within 10 days of the date of acceptance of the IEP (PE-7; SE-1).

14. Although the IEP Notice states that a “behavioral evaluation will be scheduled as soon as possible,” it does not appear that this evaluation was performed during Student’s eighth grade. However, behavioral consultation services were provided (PE-7; PE-8; testimony of Mother).

15. Student’s major subject grades during the eighth grade, 2005-2006 school year, were A- in English, B+ in U.S. History, C in Advanced Math, and B in Science. Student exhibited a good attitude towards school, was social, had friends, and music and sports played an important role in his life (SE-24; testimony of Mother).

16. Progress reports for the end of the 2005-2006 school year reflect that while polite and kind-hearted, Student was easily influenced by his peer group and was displaying impulsivity in his decision-making process, which had led to poor decisions (PE-8). Organizational and monitoring deficits, as well as time management issues made academic endeavors challenging for Student despite his strong reasoning skills and above average intelligence. Reading and organizational weaknesses impacted Student’s ability to gain appropriate study skills and achieve in school. By the end of his seventh grade, Student was able to complete homework assignments each evening, turned in his homework more consistently, and maintained them organized in his binders (PE-8).

17. On or about June 27, 2006, Lexington proposed an IEP Amendment which terminated Student’s decoding assistance (reading skills services) and counseling services as of June 27, 2006, and instead recommended an increase of resource room services to three periods per week and participation in a Reading/Study Skills class at Lexington High School (PE-9; testimony of Mother). Teachers at the high school would continue to consult with the behavioral specialist at least fifteen minutes monthly to address issues of social development (PE-9).

18. A Team meeting was held on October 6, 2006, and a new IEP was proposed covering the period from October 7, 2006 through October 6, 2007. A transitional planning Chart incorporated into the IEP stated that Student wished to attend a four year college, play lacrosse in high school, be on the wrestling team and join the music club. The proposed IEP called for participation in a full-inclusion program at Lexington High School with pull-out small group reading, four times per week for fifty (50) minutes each, and academic support in the resource room with the Special Education (SPED) staff four times per week for fifty (50) minutes each. MCAS accommodations remained the same as in the preceding year’s IEP (PE-10; SE-2). The Student Profile’s portion of the IEP states that Student’s “slow, inefficient reading in the face of increasing amount and complexity of the reading requirements in middle school likely had a chronic corrosive effect on [Student’s] self-esteem, [causing] him to feel somewhat overwhelmed and incompetent,” contributing to Student’s affective mood disorder. (PE-10; SE-2).

19. Additionally, the October 2006 to October 2007 IEP noted that Student’s phonetic analysis skills were “well below his overall intellectual ability and somewhat below grade level.” The IEP also noted that Student’s “reading inefficiencies and planning problems interfere with his ability to achieve at a level commensurate with his intellectual abilities. These deficiencies impact his school functioning in all curricular areas.” Parents accepted this IEP’s program and placement in full on October 15, 2006 (PE-10; SE-2).

20. During the fall of his ninth grade Student suffered a stress fracture in his back, which caused him to wear a back brace and receive physical therapy for several months. He was unable to play sports and specifically soccer during the fall and winter of the 2006- 2007 school year. His injury however, had resolved by February 2006, and he was able to play lacrosse and other sports the rest of the school year (testimony of Mother).

21. In ninth grade, Student received private one-to-one services outside of school, including: weekly psychotherapy with Dr. Alan Kaplan; weekly math tutoring with Cathy Mosca, a high school math teacher; weekly “coaching” with John Morbacher, M.Ed., MS.; and a reading tutorial twice per week at the Lexington Masonic Center. According to Mother, Student attended and participated in all of the aforementioned services consistently (PE-33; testimony of Mother).

22. Student’s major subject grades for the first quarter of his ninth grade included a D- in World History, a D- in Algebra, a D in Earth Science, and a C in Literature and Composition I (PE-20).

23. As the school year went on, Parents became increasingly concerned about Student’s academic difficulties, his lack of progress, and his emotional distress. Student expressed frustration with homework, the way his classes were being taught, and his poor test results, despite studying. He told his mother he was “stupid” and that he wanted to drop out of school. Parents were also concerned about the lack of communication by school personnel (PE-12; testimony of Mother).

24. On December 1, 2006, Student was caught under the influence and in possession of a small amount of marijuana while on school grounds (SE-3; PE-11). As a result of this infraction of Lexington’s Substance Abuse Policy, Student was suspended for ten days from December 4 through December 15, 2006. No further disciplinary action was taken against Student. A letter reflecting the incident and notifying Parents of Student’s suspension was forwarded to Parents on December 4, 2006 (SE-3; PE-11). Parents provided one-to-one tutoring during the suspension period and according to Mother, Student was happy to be out of school and did well with the one-to-one tutorial (PE-11; testimony of Mother).

25. According to Mother, Student’s Team convened at Parents’ request on December 5, 2006 (PE-12; PE-13 testimony of Mother).

26. On or about December 7, 2006, following the December 5, 2006 Team meeting, Lexington forwarded to Parents a proposed IEP Amendment. The Amendment offered to increase Student’s resource room time through April 5, 2007 to “8 blocks per week” due to Student’s difficulty “managing all of the course work at LHS” and because his first quarter report card reflected some very low grades (PE-13). The amount of time in the resource room was later decreased pursuant to subsequent IEPs (PE-17; PE-19).

27. On December 14, 2006, Frank Stevenson, Lexington’s behavioral specialist, performed a Functional Behavioral Assessment (FBA) of Student. Mr. Stevenson noted that Ms. Nardone told him that Student “gets along well with other students in class but doesn’t seem to have any close friends… he tells her he wants out of her program and out of Lexington High School… he responds positively and produces work when adults are in close proximity… he has good intentions, promising to do his homework but when on his own he can not follow through independently” (PE-15). In his report, Mr. Stevenson further notes:

[Student’s] need for a sense of control over his life’s events has been compromised with the loss of athletic participation which was an area in which he could demonstrate his competencies. His significant learning disabilities further compromise his need to feel competent and in control. His poor school performance naturally worries his parents and drives them to try to exercise more control which further compromises [Student]’s search for independence. [Student]’s social affiliation needs are largely unmet. He does not appear to have a positive peer group.

I agree with Dr. Dinklage that [Student]’s long standing reading problems, the high standards and high achieving peers at Lexington High School, his mood regulation problems, his normal adolescent search for independence, his planning problems, and adoption issues contribute to his diminished sense of belonging.

[Student’s] passive aggressive behavior at school can be seen as an attempt to avoid the unpleasantness associated with these unmet needs. He no doubt feels safer at home and acts out these issues more aggressively.

Although reporting indicates that [Student] is experiencing significant emotional distress his current IEP does not designate Student as being socially or emotionally disabled. It would seem that the use of marijuana is not a direct manifestation of his specific Learning Disability or his communication disorder (PE-15).

28. Mr. Stevenson concluded that Lexington’s personnel, including Student’s teachers, should provide support and services to address Student’s emotional and social needs. Mr. Stevenson noted that both “music and athletics are areas of interest” for Student and ways that his emotional and social needs could be fostered. On the subject of [Student]’s difficulties with homework completion, he stated:

I agree with Dr. Dinklage “a structure needs to be developed where [Student]’s parents can pull back from their interaction around homework while at the same time [Student] is held accountable.” If the school strove to hold [Student] accountable for his homework it would have the additional benefit of teaching [Student] an effective way to gain independence from his family (SE-4; PE-15).

Finally, the behaviorist suggested that the Team consult with the Multi-disciplinary Support Team (MST) (SE-4; PE-15).

29. On December 15, 2006, Student’s Team convened to review the FBA and conduct a manifestation determination. Parents again stated their concerns regarding Student’s lack of progress and on-going emotional issues, and requested that Ms. Mosca, his private math tutor, be allowed to work with Student during the school day. Their request was denied. The Team determined that the incident was not a manifestation of Student’s disability, but recommended that Student’s IEP be amended to add an emotional disability (an “affective mood disorder diagnosed by Dr. Dinklage”), and to add a social emotional goal and individual counseling services, one time per cycle for fifteen minutes, with a social worker (PE-14; PE-16; PE-17; SE-5). The IEP’s service delivery grid offered (under the C grid) direct reading services four times per week for fifty minutes with Dr. Healey, academic support with Ms. Nardone eight times per week for fifty minutes between October 7, 2006 and January 28, 2007, reduced to six times per week for fifty minutes between January 29 and December 15, 2007.2 Under the A grid addressing consultation in addition to the fifteen minute SPED staff consultation, a fifteen minute counseling consultation was added. The IEP offered no services under part B of the grid. The new IEP forwarded to Parents after the meeting states that Student “currently displays behaviors that directly relate to his academic difficulties. He can shut down & feel overwhelmed. As a result he can not compensate for his L.D.” (PE-16; Testimony of Mother, Nardone).

30. On or about December 20, 20063 , Lexington forwarded to Parents another version of the December 15 meeting IEP. The Team Determination of Placement page states that the period of the IEP is from December 15, 2006 to December 15, 2007. Other parts of the IEP state other dates. Part C services included: a continuation of Dr. Healey’s reading class for four-fifty minute periods per week; Academic Support from Ms. Nardone for eight fifty-minute sessions per week through January 28, 2007 and for six fifty-minute sessions per week from January 29, 2007 to December 15, 2007; and one fifteen-minute Counseling session per week. The Social/Emotional goal was the same as the previous IEP (PE-17).

31. Parents accepted both IEPs in part on January 12, 2007, including the goals and services. Their partial rejection was due to Parents’ dissatisfaction with the services being provided to Student and the lack of communication between the staff and Parents. They were also displeased with untimely communication. Specifically, Parents took issue with

A. p. 2 of 2 ‘Narrative Description of School District Proposal,’

B. Test formats need more specific accommodations,

C. Benchmarks #2 ‘Reaching out to an adult’ needs specifics, and

D. Additional information (above)-request bi-weekly reports not mid-quarter” (PE-18; SE-5).

Parents added their concern that Lexington High School placed “too many roadblocks in the way of getting an education for a child” and stated their opinion that the school was severely lacking in timely communication with Parents. Parents consented to Student’s placement at Lexington High School “at the present time.” They also requested a Team meeting to discuss the rejected portions of the IEP (PE-18; SE-5).

32. Student’s grades for the second quarter of the 2006-2007 school year, ending on January 26, 2007, included a C in Literature and Composition, D+ in World History I, an F in Algebra IB, and a C+ in Earth Science (PE-20).

33. Father testified that Parents became concerned when Student had an atypical adverse reaction to Wellbutrin an antidepressant that was prescribed for him by Dr. Arnold, Student’s private psychiatrist, at the time of his suspension. Parents performed random at-home drug tests on Student. All results were negative, as was the result of the drug testing done at Emerson Hospital on February 10, 2007, at Parents’ request. Father testified that after Student started playing lacrosse in the spring 2007, he would not have used marijuana as to do so could have jeopardized his ability to play sports, something that was important to Student. (PE-39; testimony of Father, Mother).

34. In January 2007, Dr. Arnold changed Student’s medication to Adderall, which was effective in addressing his attentional issues, but had side effects (mood issues and agitation). Student’s medication was changed to Vyvanse, which was very effective in addressing his attentional issues, without the negative side effects. Student has continued to take Vyvanse from 2007 through the present time (testimony of Mother, Father).

35. On February 8, 2007, Student’s Team reconvened to review the rejected portions of the December 2006 IEP. As a result of this meeting the counseling services were increased from one times fifteen minutes per week to one time thirty minutes per week, and the following accommodations were added: (1) tests read to the student, and (2) break tests down into smaller segments. The Team also added the following benchmark to the Social/Emotional goal (Goal #4): “With support, [Student] will begin to learn ways to communicate with adults when he is having difficulty at school.” Lastly, in the Additional Information section of the IEP, the Team added that Parents will email teachers every two weeks to report Student’s progress (PE-19; SE-7).

36. Lexington forwarded the revised IEP on February 26, 2007. While the IEP dates are October 2006 to October 2007, the Team Determination of Placement is for the period from December 15, 2006 to December 15, 2007 (PE-19; SE-7).

37. On March 5, 2007, Parents accepted this IEP with an addition to the Performance Criteria: “1) no completion of blank maps; 2) no placement of items in sequential order”. The IEP contained goals in the following areas: Reading/Language Arts, Organization/Study Skills, Mathematics, and Social/Emotional (PE-19; SE-7).

38. The four IEPs developed for Student’s ninth grade describe the reading class provided by Dr. Healey as a “small group Reading course”, and is located in the Nonparticipation Justification section of the IEP (PE-10; SZE-2; PE-16; PE-17; PE-19; SE-7). According to Dr. Healey, Student’s ninth grade reading class focused on phonics, reading comprehension and vocabulary. She opined that Student’s reading skills were in the “upper half, maybe the upper quarter” in comparison to other students in his class (testimony of Healey).

39. According to Father, Student was diagnosed with a dysthymic disorder and was depressed (PE-33; testimony of Father). Until the December 2006 incident, Parents were unaware that Student was using marijuana. Regarding that time period, Dr. Kaplan wrote:

It became apparent that [Student] was withdrawing and using marijuana as inappropriate coping mechanisms to deal with a high level of frustration in school. He was having difficulty due to learning difficulties that made school a great source of discomfort. Problems at home centered mainly on school related topics. The marijuana use was self medicating for this level of discomfort and anxiety. Although [Student] reported some services were available, they did not help him to understand the work nor help him deal with difficult homework. The school assistance did not seem to help enough to lower his level of anxiety and in fact contributed to his situational depression (PE-33).

40. On or about March 2007, Parents began to explore possible private placements for Student that provided small classes and a supportive environment. They made inquiries into Chapel-Hill Chauncy Hall, Beaver Country Day School and Landmark School (Landmark)(Testimony of Mother).

41. On March 29, 2007, Student participated in Landmark’s Admission Interview and Screening. The application form noted that he was applying as a day student in the standard tutorial program, and the funding source was checked as “Private.” The admissions materials noted that Student “has very positive references from his current teachers- polite, well-behaved, cooperative” (SE-19). Landmark’s evaluation included administration of the Word Attack and Word Identification subtests on the Woodcock Reading Mastery Tests-Revised. In these tests, Student scored two to three years below grade level, respectively. His scores on the Gray Oral Reading Test-IV, were at the beginning 7 th grade level, more than two years below his actual grade level (PE-28). The screening observation noted that Student did not display any overt signs of distractibility or inattention during screening, that he demonstrated dysphonemic sequencing during auditory memory tasks, delays in splinter skills and contextual decoding in the low average range, in contrast to his superior score on receptive vocabulary task. It also noted that he had good written output (SE-19).

42. On March 30, 2007, Carolyn Nelson from Landmark wrote the following regarding her screening of Student:

“ [Student] has very positive references from his current teachers-polite, well behaved, cooperative. However, he had some difficulties within the past couple of years that included changes in friends, changes in mood, lack of interest in school. After a lot of discussion, it appears that much of this was related to [Student]’s response to some medication (Concerta) which caused him some disturbing side effects. When he tried to tell the adults around him of these side effects, he didn’t feel listened to. This caused some frustration/discouragement that resulted in changes in [Student] and some poor choices” (SE-19).

Ms. Nelson believed Student’s assertion that his school problems in Lexington were the result of the side effects of Concerta. She noted that adults should encourage Student to express his feelings and stated that it would be important for him to have a trusted adult with whom he could connect. She encouraged Student to consider attending Landmark as a residential student (PE-28; SE-19).

43. Parents received a letter of acceptance of Student to Landmark’s 2007-2008 tenth grade High School Program as a day student on March 30, 2007 (SE-20).

44. Lexington’s IEP progress reports for the October 7, 2006 to October 6, 2007 IEP indicate that Student made progress on his reading goal. By June 2007, he was able to answer questions at length about what he had read, was making insightful and accurate contributions to discussions based on the class reading, was able to relate what he reads to what he already knew and was demonstrating intellectual curiosity and a genuine interest in ideas and information. Regarding his organization/study skills goal, the April progress report states that Student was not making sufficient progress to meet his goal. By June, he had made some progress but still was missing assignments and continued to present organizational issues. Regarding his math goal, he showed some progress by April but by June 2007 he was continuing to struggle in his algebra class and was making limited progress towards meeting the goal. It was noted that when Student did the work, he performed very well. Keeping up with homework and meeting with his teacher for extra help was reported as being crucial to his success. Regarding his social/emotional goal, Student was consistent in meeting with the MST social worker on a weekly basis and was willing to discuss his difficulties with completion of academic work (SE-8; PE-20).

45. Student’s end of the 2006-2007 school year grades in major subjects were: C in Literature and Composition; D+ in World History I; D in Algebra IB; and D in Earth Science (PE-20). His report card notes that his homework was inconsistent, he was unprepared for class, was tardy and had unexcused absences (PE-20). Lexington’s resource room teacher (Ms. Nardone), noted that at times Student needed direction regarding his homework but opined that he was capable of doing it on his own, even if he chose not to do it consistently. Ms. Nardone further stated that during ninth grade, Student only attended one or two extra help sessions (testimony of Nardone). Parents expected Student to complete most of his homework during his resource room block (testimony of Mother).

46. One of Student’s private math tutorials conflicted with one period of resource room per week which resulted in Student’s missing one resource room period per week (testimony of Mother).

47. While in Lexington, Student passed the MCAS tests and scored in the proficient range on each administration of the English Language Arts MCAS, with accommodations, which included: test administrator to clarify instructions and directions; use of place marker; assistance with tracking and/or sequencing of test items; and use of a template or graphic organizer (SE-2; SE-5). MCAS scores were as follow:

Grade 3- Reading- Proficient.

Grade 4- English Language Arts- Proficient; Mathematics- Needs Improvement.

Grade 5- Science and Technology- Proficient.

Grade 6- Mathematics- Proficient.

Grade 8- English Language Arts- Proficient; Mathematics- Needs Improvement; Science and Technology-Needs Improvement (PE-26; SE-15).

48. On June 13, 2007, Parents wrote to Lexington rejecting the 2006-2007 IEP and indicating their intent to pursue residential placement of Student at Landmark for the 2007-2008 school year. According to Parents, Student was not making sufficient academic progress and continued to have emotional issues related to school. They believed that Student required a supportive environment that offered intensive special education services in small classes. Parents chose to place Student residentially so that he could play sports after school and also so that he could receive daily support with homework assignments at the end of the day and after school (PE-21; SE-9; testimony of Mother). Parents sought funding for this placement from Lexington. Lexington refused Parents’ request via letter of June 22, 2007, on the basis that it had an appropriate program that met Student’s needs at Lexington High School (SE-9; PE-21; PE-22).

49. Student attended Landmark for the 2007-2008 school year, beginning in September 2007 (testimony of Brougham, Mother).

50. The Team convened on October 1, 2007 for the 2007-2008 annual review. The proposed IEP covering the period from October 7, 2007 to October 7, 2008 offered similar services to the previous IEP, with the following changes: it proposed a reduction in the reading group instruction from four times per week to two times per week, and decreased the academic support from six times per week to five times per week. As with previous IEPs, the reading services were described in the Nonparticipation Justification portion of the IEP as “a small group Reading course.” This IEP proposed an increase in the amount of consultation by adding a once per week fifteen minute consultation by the reading specialist, a once per week fifteen minute consultation by the counselor, and a once per semester fifty minute transitional services consultation by the transition staff beginning in late August 2008 along with the once per week fifteen minute consultation by the SPED staff (PE-19; SE-7; PE-23; SE-10). This IEP continued to offer Student participation in a full inclusion program at Lexington High School with direct services outside regular education for “Resource Room, Counseling and Reading 10” (PE-23; SE-10). On November 1, 2007, Parents fully rejected the IEP (PE-23; SE-10). A copy of the rejected IEP was forwarded to the BSEA on November 8, 2007 (SE-10).

51. Dr. Healey, Lexington’s reading teacher, testified that although there was a reduction in the amount of reading services for 2007-2008, Student would have been enrolled in a smaller, more intensive reading class than the previous year. Consistent with the 2006-2007 school year reading progress reports, Dr. Healey stated that Student was doing well in her class and was making great progress. Based on her knowledge of Student, she opined that he would have done well in her twice per week reading class in 2007-2008 (testimony of Healey). According to Ms. Nardone since the new reading course was concentrated and intended to work on more sophisticated skills of reading, decoding, vocabulary, and comprehension in a smaller group, it would be provided twice per week (testimony of Nardone). Mother testified that the detailed description of the Reading course described by Dr. Healey and Ms. Nardone at the Hearing was not offered to her during the Team meeting of October 2007 (testimony of Mother).

52. Following Parents’ rejection of the 2007-2008 IEP, Lexington did not reconvene the Team for the remainder of that school year to discuss Parents’ rejection, nor did Parents request a meeting with Lexington. The rejected IEP covered Student’s proposed program and services for the remainder of tenth grade and the beginning of his eleventh grade (PE-23; SE-10).

53. Approximately two months after Student started at Landmark, in October 2007, Parents sought an independent neuropsychological evaluation by Anne Marie Lasoski, Psy.D., a Massachusetts licensed clinical psychologist4 (SE-15; PE-34; testimony of Lasoski). Dr. Lasoski’s evaluation was performed on October 25 and December 5, 2007, but her report did not become available until the fall 2008. By then Parents were pleased with Student’s placement at Landmark and were not seeking to return Student to Lexington (testimony of Mother).

54. Dr. Lasoski reviewed Student’s records, interviewed Parents, tested and interviewed Student, and sought input from Ms. Nardone (relative to Student’s performance during ninth grade in Lexington) as well as his teachers at Landmark (PE-26).

55. On the Teacher’s Report Form completed in October 2007, Ms. Nardone, Student’s prior resource room teacher in Lexington, wrote that Student was working “somewhat below grade” level in all of his courses, including English, History, Algebra, Earth Science, and Reading Skills. She stated that homework production was an issue and wrote that Student “seemed to want to do well, but was unable to sustain the effort needed to be … successful.” She opined that Student “wanted to follow a teacher’s direction, but somehow he was not able to when he left the classroom-possibly distracted” (PE-27). On the Behavior Assessment for Children (BASC-2), Ms. Nardone’s responses indicated that Student “was presenting with significant learning challenges.” The School Problems Composite was in the “at-risk range” and “the Learning Problems Subscale was clinically elevated at the 95 th percentile” (PE-27; testimony of Lasoski).

56. Student’s teachers at Landmark completed the same forms as Ms. Nardone in October 2007. In contrast to Ms. Nardone’s reports, they stated that “he was an extremely hard worker and that he was working to develop his organizational skills as well.” Some teachers reported no concerns and others noted that Student had some difficulty staying focused, which was consistent with his attention deficit disorder (PE-28; testimony of Lasoski).

57. Dr. Lasoski’s cognitive testing (utilizing the WAIS-III) yielded similar results to those of Dr. Dinklage’s testing in May 2005. Student’s Verbal Comprehension score (112, 79 th percentile) and his Perceptual Organizational score (109, 73 rd percentile) were in the High Average and Average range, respectively. His Working Memory score (88, 21 st percentile) and his Processing Speed score (99, 47 th percentile) fell in the Low Average and Average ranges, respectively. Within each category, Student showed variability with scores ranging from Borderline to Superior. His WAIS-III Verbal IQ (102), Performance IQ (105), and Full Scale IQ (103) all fell within the average range.

58. On the Woodcock Johnson Reading Mastery Test- Revised- Form H ( GE and AE norms), the Nelson Denny Reading Test- Form G, and the Woodcock Johnson- III Tests of Achievement- Form A, Student scored in the average to superior ranges. The Connors’ Continuous Performance Test II was administered with and without psycho-stimulant medication. When performed on a day when Student was on his psycho-stimulant medication, he performed solidly on the nonclinical profile. In contrast, when tested on a day when he was not on the psycho-stimulant medication, he “produced a profile that better matched an ADHD clinical” profile, and his scores for Omission Errors, Variability, Detectability, Response Style and Hit Rate all fell between the mildly to markedly atypical ranges. Student performed adequately on tests of Basic Attention, although Dr. Lasoski’s report noted that he

… continue[d] to show some variability in basic and higher level attentional processes. He continues to exhibit vulnerability to tasks placing dual demands on working memory and the manipulation of non-contextual information (PE-26; SE-15).

On the Delis Kaplan Executive Function System (D-KEFS) evaluation, Student scored in the superior to average range without psycho-stimulant use on all areas tested. On the Rey Osterieth Complex Figure, his scores ranged form deficient (1 percentile) in the copy section (denoting poor organization), to average in delayed recall (38 percentile). However, Dr. Lasoski stated in her findings that Student had an executive functioning diagnosis, and that he presented with “clinically deficient repertoire of organizational skills.” (SE-15; PE-21)

59. In general, Student’s performance on tests when not medicated was poor. Dr. Lasoski also determined that Student presented significant impairments with organization and processing skills, working memory, and with rote learning (PE-26; SE-15; testimony of Lasoski). Tests of academic functioning documented Student’s continuing deficits in the area of phonological awareness with scores in the Borderline range (4 th , 5 th and 8 th percentiles) which Dr. Lasoski found to be consistent with a diagnosis of Developmental Dyslexia. She opined that Student had made progress in several areas since his placement at Landmark (PE-26; SE-15).

60. Dr. Lasoski expressed concerns regarding Student’s “social-emotional adjustment” and the negative affect on his emotional well-being caused by the “long-standing history” of not receiving appropriate remediation for his significant learning disabilities. She agreed with Dr. Dinklage’s opinion that this had “a truly corrosive effect on [Student’s] self-image, that he would feel damaged, he would feel vulnerable.” Dr. Lasoski noted that Mr. Stevenson expressed similar concerns in the FBA he performed in December 2006 while Student attended Lexington (PE-26). She testified that when she initially interviewed Student, it was apparent that the “transition into the Landmark School was hard” for him, but he stated that he wanted to be at Landmark (testimony of Lasoski). She opined that Student’s cognitive abilities should have allowed him to make greater academic progress and receive higher grades than he achieved while at Lexington (testimony of Lasoski).

61. Dr. Lasoski testified that she was aware of Student’s suspension from Lexington for marijuana use and possession and “specifically asked him” and his Parents about the possible drug use, and the peer group with whom he associated. Based on Student’s records, and the forms completed by Ms. Nardone (which did not include any concerns regarding possible on-going use of drugs) she concluded that the incident been an isolated event (testimony of Lasoski).

62. Dr. Lasoski diagnosed Student with a Reading Disorder (Developmental Dyslexia), Attention Deficit Hyperactivity Disorder, Inattentive Type, and Cognitive Function, NOS-Executive Function Disorder. She noted his prior diagnosis of Mood Disorder, although this no longer applied. She concluded that Student’s emotional and social difficulties were directly related to his poor reading skills, lack of academic progress and other learning disabilities (PE-26). She recommended placement in a small class, language-based program, with students with similar profiles, where he would not feel singled out and with a daily one-to-one tutorial so as to remediate his reading and math disabilities, and to develop the organizational skills he lacked. Dr. Lasoski also emphasized the importance of an appropriate educational environment relative to Student’s emotional well-being (PE-26).

63. Dr. Lasoski opined that parts of Lexington’s proposed IEP for Student for the period from October 2006 through October 2007, contained appropriate language but the overall IEP services and program were inappropriate because it did not offer him participation in an integrated language-based program with small classes and a daily tutorial. Dr. Lasoski did not observe Lexington’s proposed program for the tenth and eleventh grades because Student was no longer attending Lexington and because the proposed services were inconsistent with her recommendations. She also did not speak with any of Lexington’s teachers or service providers although she sought Ms. Nardone’s assistance in completing the behavioral assessment (BASC-2) (PE-27; PE-26; SE-15; testimony of Lasoski). Regarding residential placement, she opined that Student required and benefitted from the structure as well as the social and emotional support (testimony of Lasoski).

64. Dr. Lasoski’s report does not document Student’s suspension in Lexington or any drug use on Student’s part. (PE-26; SE-15).

65. On January 22, 2008, during a random drug screen which Landmark requires of all students, Student tested positive for marijuana. Pursuant to Landmark’s Substance Abuse Policy, Student was suspended for five days and required to:

· Undergo an evaluation to determine his level of substance use,

· Participation in a psycho-educational chemical dependency group unless other services are deemed necessary,

· Random substance screenings at the discretion of the Dean of Students,

· Drop to level 1,

· Campus/Buchan privileges modified, as discussed,

· Remain on campus weekends.

No further disciplinary action was taken but Student continued to be subject to random drug testing. To date, there have been no further substance abuse incidents (SE-21; testimony of Mother, Brougham).

66. Landmark’s Academic Test Report for the 2007-2008 school year (PE-29), Student’s tenth grade, reflect Student’s progress obtained from a comparison of scores obtained between March 2007 and June 2008 as follow:

Woodcock Reading Mastery Test- R/NU

March 2007 Form: G June 2008 Form: H

Word Identification (28 %ile) 7.4 GE5 (67%ile) 16.2 GE

Word Attack (31 %ile) 6.4 GE (60%ile) 10.8 GE

Gray Oral Reading Test-4

March 2007 Form: A June 2008 Form: B

Rate (16 %ile) 7.0 GE (50 %ile) 12.7 GE

Accuracy (16 %ile) 7.2 GE (84 %ile) 12.7 GE

Fluency (9 %ile) 7.0 GE (84 %ile) 12.7 GE

Kaufman Test of Educational Achievement

April 2008

Spelling (34 %ile) 9.3 GE

Stanford Achievement Test- 10

April 2008

Reading Vocabulary (63 %ile) 11.7 GE

Reading Comprehension (71%ile) PHS6 GE

Language Task (45%ile) 10.2 GE

Mathematics (27 %ile) 9.7 GE

67. On June 19, 2008, Parents forwarded a letter to Lexington stating their intention of continuing Student’s residential placement at Landmark for the 2008-2009 school year for the same reasons as the previous year. Once again, Parents sought reimbursement from Lexington for all costs associated with their unilateral placement of Student (PE-24).

68. Student attended Landmark during the 2008-2009 school year, his eleventh grade, as a residential student (testimony of Mother).

69. On September 4, 2008, Parents filed a request for Hearing with the BSEA.

70. On or about October 30, 2008, Lexington convened Student’s Team to discuss the results of Dr. Lasoski’s evaluation. The report of this evaluation was provided to Lexington in the fall 2008. Ms. Nardone and Dr. Healey attended the Meeting, but not Maureen Denney, who would have been Student’s reading teacher had he attended Lexington High School for the 2008-2009 school year (testimony of Mother, Nardone). Lexington forwarded Student’s proposed IEP for the period from October 30, 2008 through October 29, 2009 (the remainder of 11 th grade through the beginning of 12 th grade) on November 10, 2008. This IEP offers the same Reading (two 50-minute sessions per week) and Academic Support services (four 50-minute sessions per week) as the previous IEP. Counseling services were omitted, and instead, Transition services were added, one times fifty minutes per week. The goals in this IEP are similar to those in the October 2007 IEP, although a measurable benchmark was added to the goal for Organization/Study Skills which required Student to perform the required tasks, including turning in his assignments, “80% of the time” (PE-25).

71. Parents rejected the proposed IEP on November 20, 2008. At hearing, Mother explained that Parents rejected the proposed IEP due to the reduction in the services proposed and because they did not believe that the services were adequate for Student (testimony of Mother). They were also satisfied with the progress demonstrated by Student at Landmark.

72. Lexington forwarded a copy of the unsigned October 2008 to October 2009 IEP to the BSEA on March 25, 2009 (SE-11; PE-25).

73. Student’s eleventh grade Educational Assessments completed in December 2008 by the Landmark teachers describe Student’s performance and progress as follows:
a) Derek Pierce, writing teacher, noted no attentional difficulties. Student participated appropriately in classroom activities, was ahead of his peers in his ability to articulate his writing process, worked seamlessly with various members of his class, and was seen as a natural leader by his peers (SE-22A).

b) Adam Hickey, literature teacher, stated that Student benefited from the five (5) step writing process and turned-in quality work when he adhered to this writing process. Sometimes Student presented with inattentive type attentional issues but was refocused quickly (S-22B).

c) Adela Santana, algebra teacher, did not see any problems with Student’s understanding, attention or communication capability. She noted that Student understood, solved and graphed linear equations and inequalities. He received a 102 (out of 100) on a graphing chapter exam, had 9 out of 12 correct on division homework, and 9 out of 12 correct on a multiplication homework. He understood function notation and terminology, could find slopes and y intercepts and graph lines, and was able write equations of lines. He could also analyze algebraic word problems. He demonstrated strong organizational and preparational skills and was able to work independently as well as with others in her class (SE-22C).

d) Ray Cattaneo, language arts/tutor, noted that he worked with Student on spelling skills, comprehension skills, written composition and study skills. In December 2008, Student was spelling at grade level. He was able to organize his thoughts clearly and concisely when given short, written assignments. Student was competent in beginning and maintaining the brainstorm throughout his assignments but still needed direct instruction when organizing for term papers that averaged more than a couple of pages in length (SE-22D).

e) Student’s academic case manager, Gregory Brougham, stated that Student had made significant progress in his organization, writing and overall study skills. Mr. Brougham found that Student had become a more enthusiastic and diligent student during his time at Landmark (SE-22E).

f) Student’s chemistry teacher noted that Student was consistently focused in class and consistently offered insightful responses during class discussions. He required visual representations and benefited from guided discussions to comprehend abstract and concrete concepts. Occasionally, Student demonstrated difficulty interpreting information from readings independently (SE-22F).

74. Following receipt of Parents’ consent for evaluations, Lexington conducted a psychological evaluation, achievement assessment, a reading assessment and an observation of Student at Landmark, between January and April 2009 (SE-12; SE-13).

75. On January 16, 30, February 13, and March 23, 2009, Janet Vodvarka7 , Ph.D., performed a psychological and achievement assessment of Student at Lexington’s request (SE-23; SE-128 ). She administered the Wechsler Adult Intelligence Scale III (WAIS-III) where Student’s verbal comprehension and perceptual organization scores fell in the high average range, while working memory and processing speed fell in the low average range; and the Wechsler Individual Achievement Test, 2 nd Edition (WIAT-II), where Student demonstrated strengths in reading comprehension and oral expression, and a weaknesses in pseudo-word reading and spelling. All other areas were found to be in the average range. On the Rey-Osterreith Complex Figure Drawing, Student scored within the average range. The Wide Range Assessment of Memory and Learning (WRAML) showed Student’s picture memory and design memory to be average, while his story memory scores were above average, and verbal learning below average (SE-12). In general, Dr. Vodvarka’s evaluation was consistent with the results of the evaluation performed by Dr. Dinklage in 2005 and Dr. Lasoski’s evaluation of 2007.

76. Dr. Vodvarka found that Student exhibited high average verbal comprehension and perceptual organization skills. However, his working memory and processing speed were in the lower part of the average range, significantly below his other scores (SE-12).

77. At Dr. Vodvarka’s request, on April 9, 2009, two teachers at Landmark and Parents completed the BASC-2 (SE-12). Mother rated Student in the at-risk range for conduct problems, while both teachers rated him in the normal range (SE-18). Based on statements made by Student regarding the use of marijuana while attending Lexington, Dr. Vodvarka opined that “there was a strong probability that [Student’s] drug use was contributing to his reduced progress in school, along with his lack of homework production, and skipping classes” (SE-12).

78. To address Student’s slow processing speed, attention difficulties, working memory issues, phonics issues and spelling difficulties, Dr. Vodvarka recommended that Student receive extended time for tests as well as study guides/outlines or a copy of another student’s notes because of his difficulty in writing quickly enough to take good notes in class. She further recommended preferential sitting (in the front of the class), having longer assignments broken down, and scheduled-in study time for long assignments. Dr. Vodvarka recommended that Student learn to proofread. Additionally, Student should be allowed several days to study rote information, keep study notes for final exams and learn study strategies to organize material. Dr. Vodvarka concluded that Student could be serviced at Lexington High School with supports since, according to Student, he was in a college preparatory program that no longer focused on reading fundamentals, support, or writing mechanics (SE-12).

79. On January 12, 2009, Jill Brandwein-Fryar, M.Ed., from the Lexington’s Special Education Department, observed Student during his eleventh grade Writing, Algebra II, and American Literature classes at Landmark. She noted that during Writing, Student consistently focused his eyes on the teacher and periodically drummed, tapped and jiggled his foot. He did not have his homework assignment or his book with him. In math, Student listened and participated in class, and was also very engaged in his literature class (SE-14).

80. Maureen Denney, reading teacher at Lexington High School, conducted Student’s reading assessment on April 14, 2009. She administered the Woodcock Reading Mastery Test R-NU and the Qualitative Reading Inventory-4. Her test results showed that Student’s fundamental reading skills fell within the average range of achievement but demonstrated a relative weakness in the use of phonics. She noted that Student’s score in the word attack subtest declined from the 75 th percentile (2007 Dr. Lasoski testing) to the 35 th percentile. Student’s reading comprehension was in the above-average range and was an area of strength for him in comparison to his basic word attack skills. Ms. Denney concluded that Student’s scores were consistent with his phonological deficits. She observed him using learned strategies appropriately. She opined that he was capable of reading high school text competently (SE-13; testimony of Ms. Denney). While the report of her evaluation did not contain any recommendations, she testified that she would recommend one-to-one or small group services to address Student’s phonics, fluency, vocabulary development and comprehension strategies (testimony of Denney).

81. At sixteen years of age, during freshman year in Lexington, Student completed a Substance Abuse Screening Inventory, noting that he was repeatedly using drugs. He described his drug use as “more than twice a week” (SE-16). At seventeen, Student completed a second Substance Abuse Screening Inventory detailing his drug use over the prior 6 months. Student indicated that he had not taken any drugs or drank any alcohol during that time period (SE-17).

82. Student’s statement dated May 25, 2009, explains that marijuana was not the cause of his poor academic performance. Rather, it was an outlet to dull the pain he felt when he got his tests back. He believed that he desperately needed Landmark9 (PE-32).

83. Currently, Student attends Landmark’s College Preparatory Program as a twelfth grader. He is expected to graduate at the end of the 2009-2010 school year and go on to college (SE-12; PE-31; testimony of Mother). Parents are not seeking funding for Student’s placement for the 2009-2010 school year.

CONCLUSIONS OF LAW :

The Parties do not dispute that Student is an individual with a disability falling within the purview of the Individuals with Disabilities Education Act10 (IDEA) and the state special education statute.11 As such, Student is entitled to a free, appropriate public education (FAPE).12 The dispute between the Parties is whether Student required placement at Landmark for the 2007-2008 and the 2008-2009 school years in order to receive a FAPE and if so, Lexington would be responsible to reimburse Parents for their unilateral placement. In rendering my decision, I rely on the facts recited in the Facts section of this decision and incorporate them by reference to avoid restating them except where necessary.

The IDEA and the Massachusetts special education law, as well as the regulations promulgated under those acts, mandate that school districts offer eligible students a FAPE. A FAPE requires that a student’s individualized education program (IEP) be tailored to address the student’s unique needs13 in a way reasonably calculated to enable the student to make meaningful14 and effective15 educational progress. Additionally, said program and services must be delivered in the least restrictive environment appropriate to meet the student’s needs.16 Under the aforementioned standards, public schools must offer eligible students a s pecial education program and services specifically designed for each student so as to develop that particular individual’s educational potential .17 Educational progress is then measured in relation to the potential of the particular student.18 School districts are responsible to offer students programs and services that will allow them to make meaningful, effective progress.19

As the party challenging the adequacy of Student’s IEP services, and seeking public funding for their unilateral placement of Student, Parents carry the burden of persuasion pursuant to Schaffer v . Weast , 126 S.Ct. 528 (2005)20 .

The instant case presents a unique situation in which Lexington should have been capable of providing Student with an appropriate program and services within the public school to address his different areas of disability. The evidence however, supports a finding that Lexington failed to design an individualized program that addressed Student’s needs and allowed him to make effective progress as mandated under federal and state laws. This, compounded by lack of coordination with regular education teachers and miscommunication with Parents regarding key aspects of the program, resulted in the justification for Parents’ unilateral placement of Student for the 2007-2008 school year. For these reasons, as further explained below, I find that the evidence supports Parents’ position and therefore, find that Parents have met their burden of persuasion and are entitled to reimbursement for their unilateral placement of Student at Landmark for the 2007-2008. Parents however, did not meet their burden of persuasion regarding the 2008-2009 school year. My reasoning follows:

I. Appropriateness of Lexington’s IEP for the 2007-2008 school year:

I first discuss whether the IEP proposed by Lexington for the 2007-2008 school year was reasonably calculated to provide Student a FAPE in the least restrictive setting. Two IEPs cover the 2007-2008 school year, PE-19, SE-7 and PE-23, SE-10, issued in February 2007 and the IEP issued in October 2007.

To ascertain whether Parents were entitled to unilateral placement, one must consider the program and services offered by Lexington in light of the information reasonably available to the Team at the time the IEP was developed. The appropriateness of the IEP must be assessed by “what was, and was not, objectively reasonable when the snapshot was taken, that is, at the time the IEP was promulgated.” 12 MSER 279, 289 (Crane, 2006), citing Roland M. and Concord Sch. Comm., 910 F. 2d. 983, 992 (1 st Cir. 1990). In assuring Student a FAPE, the personalized instruction and support service are not required to maximize the student’s potential. See, Rowley. That is, “the public school district is not responsible to offer Student a Cadillac but rather a serviceable Chevrolet that allows Student to get around effectively.” In Re: Arlington Public Schools, 8 MSER 187 (Crane, 2002 ); In Re: Middleborough Public Schools, 12 MSER 310, 328 (Figueroa, 2006). While Lexington was not mandated to offer Student the best program possible, it was responsible to offer him a program tailored to meet his unique needs so as to enable him to make effective educational progress.

In February 2007, when Lexington developed the first IEP at issue, it was aware that Student had been diagnosed with Dyslexia, ADHD and an Executive Functioning disorder. He presented deficits in phonological as well as with other reading skills. He also had memory, processing and organizational disabilities (PE-3; PE-15; PE-26; testimony of Lasoski, Father). His cognitive abilities were in the Average to High Average range, and he clearly had the potential to make educational progress and to do well in school (PE-3; PE-26; SE-12; testimony of Lasoski, Vodvarka). The IEPs developed by Lexington and the evaluations performed by the district recognized Student’s reading and language skills deficits, and while the school never specifically evaluated Student for ADHD or for Executive Functioning deficits, all of the IEPs made recommendations to address study skills and organizational issues (PE-4; PE-5; SE- 13; PE-7; PE-10; PE-17; PE-19; PE-23; PE-24; PE-35).

Student exhibited a concomitant emotional disability which Parents assert developed as a result of his poor school performance and lack of progress at Lexington. While in the ninth grade at Lexington High School, Student was frustrated, unhappy, and had poor self-esteem.21 His IEPs explicitly recognized the connection between his learning disabilities, his emotional issues and his school performance (PE-3; PE-15; PE-26; PE-33; PE-16; PE-19; PE-23; testimony of Lasoski, Mother, Father).

Lexington correctly suggests that the information reasonably available to the Team in February 2007 be examined. While Lexington is correct that none of the available evaluations recommended Student’s participation in a residential or substantially separate language-based program, it is clear that Student was not making effective progress in Lexington. Thus, when Lexington developed IEPs for the 2007-2008 school year, it had a complete understanding of Student’s learning and emotional deficits. By this time it was also clear that Student was not making effective progress in Lexington. In fact, his performance was worsening in every area. As discussed below, available to Lexington when it developed the IEP were the reports of Dr. Dinklage and Dr. Stevenson, as well as Student’s grades, attendance reports teacher and parental reports, all of which demonstrated that Student was doing poorly in school and that the educational services being provided by Lexington were not meeting his documented learning and emotional deficits. Student had engaged in counseling at Lexington and was sharing information openly with Ms. Rubin (testimony of Nardone).

Pursuant to the relevant 2006- 2007 IEPs, Student’s ninth grade program in Lexington consisted of a Reading class taught by Dr. Healey four times per week, and Academic Support in a resource room for four 50-minute sessions per week, which was increased to eight and later decreased to six periods per week with Ms. Nardone. The IEP did not provide for any special education services in Student’s regular education classes. Initially, the IEP also did not provide for any services to address Student’s emotional needs. Mid-year, one half hour per week counseling service with Ms. Rubin was added. The IEP contained goals for the following: Reading/Language Arts, Organization/Study Skills and Mathematics (PE-10; SE-2). Parents note that there is no evidence that services were provided to Student in his regular education classes, and while Ms. Nardone and Dr. Healey consulted with each other regarding Student, there are questions as to how much coordination took place between them and the rest of Student’s regular education teachers. During this time Student was receiving extensive private one-to-one services after school. He was receiving reading tutoring from the Masons twice per week, math tutoring once per week and physical therapy twice per week (PE-10 PE-17; PE-19; Healey, Nardone, Mother, Father).

According to Dr. Healey there were 13 students in her Reading class, all with different skill levels. She testified that Student’s skills fell within the top half or top quarter of the class. She testified that she taught the class as a whole. She used magazine and newspaper articles, as well as daily worksheets which were done in class. She testified that Student was “a good student all along” although sometimes inattentive. Student’s attendance in her class was good. She also noted a change in Student after he returned from the suspension, “he seemed to have a much more serious attitude when he came back,”“he was ready to work” (testimony of Dr. Healey). Dr. Hearley stated that if students came to class and did the work required of them during that time they would get a B. In order to get an A, students would be required to do extra work, that is, “choose a reading book and keep a reading log” or complete “generic worksheets.” Student did the required class work, but no extra work for credit. She opined that Student was doing well and making progress in the goals and objectives enumerated in his IEP. In this class, Student received a B. She did not give tests in her class, and also, did not conduct pre or post-testing to assess Students’ beginning and ending skills (PE-20; testimony of Healey).

Dr. Healey did not attend any of the Team meetings convened during Student’s ninth grade or the meeting to develop the new IEP covering the period from October 2007 to October 2008, Student’s tenth and the beginning of his eleventh grades. She testified that she would have been Student’s reading teacher had he attended tenth grade in Lexington. She however, had no knowledge whether the October 2007 IEP described the reading services which she testified she would have provided to Student, and she did not communicate with Parents to describe these services (PE-23; testimony of Healey, Mother).

Student spent several periods per week in Ms. Nardone’s resource room throughout the school year. The resource room time was increased to eight periods per week from December through the end of January, and then reduced to six periods per week from the end of January through the end of the school year. Ms. Nardone testified that Student and possibly one other ninth grader attended the resource room more than any other ninth grader in Lexington High School that school year (testimony of Nardone). Ms. Nardone testified that she worked with Student on his class work and homework assignments, test/quiz preparation, and keeping his notebook organized. She would “go over” his math assignments with him if he was having difficulty, but the record lacks any indication that actual teaching or remediation of math skills took place in the resource room (PE-20; testimony of Nardone, Mother).

Student did not find the services provided by Ms. Nardone or the extra time with his math teacher helpful. He met with Ms. Nardone first four times per week, then eight for a period of six weeks after the suspension and after that, six times per week. While Ms. Nardone testified that attendance at resource room was “an issue to a degree”, the evidence shows that during the first three quarters of the year, Student only had five (5) unexcused absences (out of approximately 180 total sessions).

Dr. Vodvarka acknowledged that Student stated that the resource room was not helpful for him, “that mostly what they did is they did the homework for him, they didn’t teach him how to do it” and he “felt like an idiot” (testimony of Vodvarka). Student continued to have difficulties understanding and completing his homework throughout the year, as a result of which he could not do it independently, or with the help of his tutors. Dr. Lasoski testified that Student expressed his discouragement and “frustration with not being able to improve, and then his general frustration for having a learning disability that wasn’t being remediated” while he was attending Lexington High School, although at times he tended to minimize the amount of stress he felt. He told her that he worked very hard at school in Lexington, especially after his suspension, “but he was just simply having a lot of difficulty” (testimony of Dr. Lasoski).

During the second semester of ninth grade, Merri Rubin provided counseling services to Student on a weekly basis. She did not attend any Team meetings for Student and had no contact with Parents. According to her, Student had very good attendance at the counseling sessions and was doing a great deal of talking. Ms. Rubin was pleased with Student’s participation in counseling (testimony of Nardone). Student’s emotional well-being continued to deteriorate during that time period, raising questions as to the effectiveness of counseling services in addressing Student’s emotional issues (PE-16; PE-20; PE-33; Mother, Nardone).

Additionally, opportunities for Student to feel competent in his areas of interest, such as music, as recommended by Mr. Stevenson, were not provided. Instead, Student was told to drop his music theory class because he could not memorize the “circle of fifths” (testimony of Mother). He was however, able to play lacross in the last quarter.

It is difficult to ascertain how much progress Student actually made toward meeting the goals and objectives in Lexington’s IEPs. Clearly, Student’s difficulties were evidenced throughout the end of his ninth grade and the record lacks evidence that Lexington performed any evaluations or assessments in an attempt to measure his progress.

The only objective testing during this period of time is found in the testing administered at Landmark in March 2007 and subsequent testing in June 2008, and Dr. Lasoski’s evaluation. These documents confirm Student’s difficulties and document his significant progress after one year at Landmark (PE-26; PE-27; PE-29).

Lexington’s ninth grade progress reports show continued difficulties with “planning and turning in his daily assignments”, and in his ability to be organized and productive, and difficulties in math (SE-8; PE-20; testimony of Nardone).

Ms. Nardone’s progress reports for June 2007 state that Student made only “some progress” towards his Organization/Study Skills goal, although he “made good use of the resource room” and he was “very conscientious about doing his work well and with the learning process.” She further stated that he made “limited progress” towards meeting his Mathematics goal due to homework completion issues. Dr. Healey’s June 2007 progress report states that he made progress in some areas. This report however, does not address progress relative to Student’s phonological deficits (PE-20). Looking at the aforementioned information, it is unclear whether Student’s reading and language skills deficits were remediated and/or had improved while in Lexington (P-20). Additionally, the goals and objectives in the IEPs proposed by Lexington for the ninth and tenth grades show similar “current performance levels” and the goals and objectives are virtually the same, suggesting that Student was not making effective progress towards his goals.

When Lexington convened the regularly scheduled Team in October 2007, it did not modify its IEP in ways that would have addressed Student’s known difficulties. The proposed IEP presented a reduction in Reading and academic support services, and added a one time per semester transitional services consultation, and two fifteen minute consultations, one by the reading teacher and one by the counselor (PE-23; SE-10). According to Dr. Healey and Ms. Nardone, the reading class would have been different than the one offered in ninth grade because the services were more intense and it was offered in a small group. 2007-2008 was the first year in which Lexington offered students the Reading class for two years (testimony of Healey). Mother testified that the variation in the Reading services was not explained to her at the Team meeting, while Ms. Nardone testified that she had presented information regarding the change. Ms. Nardone did not explain what change she referred to, whether the reduction in services in favor of a more concentrated class, or the detailed description regarding the actual services offered by Dr. Healey during her testimony. Ms. Nardone also testified that Dr. Healey’s progress reports would have reflected the difference in services, but no such information is contained in Dr. Healey’s progress reports (PE-20; SE-8). The October 2007 IEP contains no provision explaining the difference in Reading services. The description of the Reading services is no different than what is included in the February 2007 IEP. In this regard, I credit Mother’s testimony and not Ms. Nardone’s. Also, Ms. Nardone testified that she was responsible for drafting Student’s organizational/study skills goal which did not vary between February 2007 and October 2007.

The “multi-disciplinary team [should have] consider[ed] all significant factors related to [Student] and his learning process by drawing from a variety of sources….” See In Re: Bedford Public Schools , 109 LRP 59132 (2009) . If Lexington actually considered Student’s difficulties and abilities, as well as all of the information available when it modified its IEP in October 2007, it failed to effectively communicate the changes to the IEP to Parents. Reviewing this IEP Parents were understandably alarmed with the reduction in Reading support without further explanation, and a decrease in the academic support services, when considering that Student, who possessed average cognitive abilities, received Ds in all but one of his major academic subjects the previous year and was depressed. The weight of the evidence supports a finding that Student required something different than what Lexington offered.

At Landmark22 , Student was provided with small, language-based classes, individual services designed to remediate his specific disabilities, a similar peer group, and a supportive environment. In this environment, he flourished in every way—academically, socially and emotionally. Mr. Brougham, who holds a masters degree in special education (PE-34), was Student’s case manager for both tenth and eleven grade school years at Landmark. He testified that Student participated in the “standard” Landmark program during that time, that is, a small language-based content area classes which also addressed Student’s study/organizational skills deficits and his reading/language skills issues. Student received a daily one-to-one tutorial during both school years that was designed to address his specific deficits. As he progressed, the skills to be addressed changed. According to Mr. Brougham, “It went from a heavy emphasis on decoding/reading fluency skills to last year where there was more of an emphasis or it was weighted more towards writing and study skills and reading comprehension in terms of abstract comprehension.” Likewise, the demands on content area classes increased as he progressed in his reading/language skills and study/organizational skills (testimony of Brougham).

At Landmark, Student was seen as a hard working, successful student, who actively participated in class. Dr. Lasoski opined that based on her knowledge of Landmark , her evaluation, her observation of Student and her discussions with Student’s teacher and case manager, Landmark was an appropriate placement for Student for the tenth and eleventh grades (PE-26; testimony of Lasoski).

Dr. Vodvarka also reported that Student told her “that he really liked Landmark now, that he had a class size of five to eight; that the teachers were really, he said, cool—that was his word; and that he found that they taught in a way that he could get it, and so he didn’t struggle as much; and that he was reading more now and he was writing short stories and poetry and was thinking of being a writer.” Further, he was no longer depressed (testimony of Vodvarka).

Given Student’s cognitive abilities, Dr. Lasoski opined that he should have been able to make grater academic progress and obtain higher grades in Lexington, but the long-standing history of not receiving appropriate remediation for his significant learning disabilities had a damning effect on his self image and confidence. From a social-emotional standpoint, following a difficult adjustment period at Landmark, Student was able to make significant strides and the prior diagnosis of Mood Disorder no longer applied. Dr. Lasoski was of the opinion that Student’s social/emotional issues, and lack of academic progress, were directly related to his poor reading skills and academic performance. She recommended participation in a small group, language- based program with daily one-to-one tutorial to address organizational and reading skills. This was precisely what Landmark offered (PE-27; testimony of Lasoski).

The evidence overwhelmingly supports a finding that at Landmark Student was making effective progress commensurate with his potential.

Lexington argued that when the Team developed the IEP that was in place at the time of Parents’ unilateral placement, there was no evaluation available suggesting that Student required a more restrictive placement than Lexington. According to Lexington, the first evaluation that supported Parents’ decision was available to Lexington a year after Parents’ unilateral placement. Dr. Lasoski’s evaluation was initiated in October and December 2007, two months after Student had been attending Landmark. She found that Student had “experienced slower greater academic success, due to multiple areas of simultaneously occurring interventions…” while at Landmark (PE-26; SE-15). Lexington however, argues that Dr. Lasoski did not observe him at Landmark until March 2009, and that she never observed Student in Lexington. As such, Lexington submits that her opinion should not be given weight. North Reading Public Schools , 14, MSER 219, 229 (Putney-Yaceshyn, 2008). Dr. Lasoski’s testimony is found to be credible and persuasive and the fact that her report was not available for review until October 2008, is not sufficient to discredit her testimony or opinion, or to give it less weight. Moreover, this was only one more piece to be added to the information that was available to Lexington at the time.

Lexington asserted that it was responsive to Student’s issues and needs; that Student’s failure to complete homework and assignments, skipping classes and drug abuse issues accounted for his difficulties and lack of progress. Lexington stated that it convened Student’s Team no less than three times over the course of the 2006-2007 school year which resulted in an increase to his resource room services and adding a counseling component, services which Parents accepted. Lexington also relied on the progress reports for the 2006-2007 school year denoting progress made toward reaching the Reading, Math and Organizational skills goals and objectives contained in the IEP. Lexington further asserted that these reports mentioned the difficulties experienced by Lexington in getting Student to follow through on homework completion.

Regarding homework completion, Lexington relied on the testimony of Ms. Nardone who opined that Student had the ability to do the homework and knew of his assignments, but stated that he chose not to complete his homework at home. Parents and Student agreed to have Student complete his homework during the resource room time which Lexington argued resulted in a diminishing of the time that Ms. Nardone had available in the resource room to work on educational and organizational support issues, as originally intended by the Team. Lexington argued that it should not be held accountable for Student’s failure to take full advantage of the supports offered in the resource room.23

Lexington saw Student’s failure to complete assignments as one of the biggest impediments to his success in ninth grade.24 Student’s homework completion was a problem. He clearly struggled to complete it and could not do so independently, or with the assistance of Ms. Nardone during four, six or eight periods per week of resource room services, and the assistance provided by his private tutors. At times, he accessed the extra help offered by his math teacher and Ms. Nardone, but did not find their assistance to be helpful. Ms. Nardone, as well as Dr. Healey, noted Student’s considerable efforts to do his work, and his cooperative and pleasant attitude. The evidence suggests that he attempted to do his homework but the assistance provided was insufficient to remediate his difficulties or teach him the skills he required.

Lexington argued that Student’s grades alone were not determinative of whether Student made progress in ninth grade. The amount of appropriate regular education progress, in terms of passing grades and grade-to-grade advancement, necessarily depends upon the abilities of each individual student with a disability. Carter v. Florence County Sch. Dist. Four , 18 IDELR 350 (4th Cir. 1991), aff’d 20 IDELR 532 (U.S. 1993). Clearly, Student possessed the ability to progress effectively with proper services, but Lexington’s program did not appropriately meet his needs. In contrast, when placed in a language-based, small group, supportive environment, as was Landmark, Student flourished.

Similarly, Lexington’s contention that Student’s poor grades were a result of skipping too many classes is not supported by the evidence. Except for one teacher, no other staff inside or outside of Lexington reported difficulties with attendance. His attendance record shows that in some quarters, he had perfect attendance (PE-36; PE-20; testimony of Dr. Healey, Ms. Nardone).

Lexington also argued that in addition to skipping classes and not completing his homework, had Student not been using marijuana, he might have received better grades in ninth grade. In other words, Lexington attributes Student’s academic demise in ninth grade to his bad choices and drug abuse.25

The only individual who alleged that Student had a drug abuse problem that adversely affected his academic performance was Dr. Vodvarka. She conducted her evaluation of Student between January and March 2009, a year and a half after Student had been removed from Lexington. Neither Dr. Healey nor Ms. Nardone, who actually provided services to Student, ever raised this as an issue. Of note is the fact that Student met with Ms. Nardone between four and six (and at one point up to eight) times per week during the 2006-2007 school year, and he met with Dr. Healey four times per week for fifty minutes each. Mr. Stevenson, who conducted Student’s FBA in December 2006, following the sole marijuana incident in Lexington, likewise never raised drug abuse as an issue in his report (PE-15). On cross examination, Dr. Vodvarka admitted that Student’s poor grades in Lexington could have been caused by other issues including his depression, the demands of high school, and whether he was “in the appropriate setting” (testimony of Vodvarka).26 Dr. Vodvarka did not participate in any Team meetings and failed to review pertinent records, such as the FBA and other school records from when Student attended Lexington, did not confer with any regular education teachers in Lexington or any teacher in Landmark, did not observe Student in Lexington or Landmark, and did not obtain any information from Student’s therapist, Dr. Kaplan, or Dr. Lasoski (testimony of Mother, Vodvarka). In consideration of the totality of the evidence, I find Dr. Vodvarka’s opinion that Student’s excessive drug abuse adversely affected his school performance, causing his educational demise in ninth grade, is unpersuasive and wholly unsupported by the evidence.

Dr. Vodvarka opined that Student’s inability to play sports due to an injury, as well as his drug use, were reasons for his poor academic progress. However, she failed to acknowledge or did not know that during the second semester of ninth grade, Student was able to play Lacrosse and other sports, and he passed all of the drug tests given to him by his parents and at Emerson Hospital. It was during the 4 th quarter of 9 th grade that Student’s grades significantly plummeted (PE-20; PE-39; testimony of Mother, Father). Dr. Vodvarka did not evaluate Student for ADHD or Dyslexia (although her other testing showed indications of both disabilities) (testimony of Vodvarka).

Dr. Vodvarka’s report stated that while in Lexington, Student frequently missed classes and that he began to experience disciplinary problems, something that is not supported by the evidence (SE-12).27

As the Supreme Court held in Burlington , “ the Act contemplates that such education will be provided where possible in regular public schools, with the child participating as much as possible in the same activities as non-handicapped children, but the Act also provides for placement in private schools at public expense where this is not possible.” School Comm. of Burlington v. Dept. of Ed. , 471 US 359, 369 (1985) . While Lexington asserts that the Parents failed to present sufficient evidence to show that Student could not have been successfully educated in a public school with opportunities for inclusion, the evidence here does not support such conclusion for the 2007-2008 school year. Given the downward spiral in which Student found himself it is doubtful that the services and program offered by Lexington could have provided him an opportunity to make meaningful progress commensurate with his potential. Lexington was aware of Student’s difficulties and lack of effective progress and it failed to convene the Team at the end of the 2006-2007 school year or at the beginning of the 2007-2008 school year to re-consider Student’s then current presentation and modify his IEP accordingly.

Lexington erroneously concluded that nothing available to the Team supported a conclusion that the IEP failed to provide Student a FAPE or that private placement was warranted. Parents initially accepted the February 2007 IEP and Lexington implemented the services it agreed to provide under the IEP. Parents successfully showed that the services and accommodations under Lexington’s IEP were inappropriate. Lexington failure to provide an appropriate program in the ninth grade resulted in Student’s failure to make academic progress. In spite of the services provided in (and privately out of) Lexington, Student failed or came close to failing most of his academic courses, and he was unable to successfully and meaningfully access the curriculum in his regular education classes. Progress reports for the ninth grade also do not support a finding that he made effective progress (P-20; P-26; P-33; Mother, Father, Lasoski). According to Dr. Lasoski in order to be successful and make effective progress Student required a program that provided him with specialized, individualized services, as described in her testimony and in her report (PE-26). Parents concurred with her opinion and point to Student’s success at Landmark. The evidence does not support a finding that Student’s deficits were appropriately remediated in Lexington, and as a result, his emotional well-being was adversely affected. Faced with the same unsuccessful IEP for Student’s tenth grade, Parents’ decision to place Student at Landmark28 was warranted.

In light of this finding and given that Lexington stipulated to the appropriateness of the Landmark program, Parents are entitled to reimbursement for the day portion of Student’s placement at Landmark during the 2007-2008 school year.

II. Appropriateness of Lexington’s IEP for the 2008-2009 school year:

Since Student’s IEPs covered the period from October through October, as in the preceding year, PE-19, SE-7 and PE-23, SE-10 cover the 2008-2009 school year.

While the IEP proposed by Lexington in October 2007 was similar to the one proposed in 2008, in light of Student’s progress, Student would have been appropriately placed in Lexington starting at the beginning of the 2008-2009 school year.

The October 2008 IEP (PE-25) is almost identical to the previous year’s IEP in that it offered the same Reading (two 50-minute sessions per week) and Academic Support services (four 50-minute sessions per week) as the previous IEP. Counseling services were omitted, and instead, Transition services were added, one times fifty minutes per week. The goals in this IEP are similar to those in the October 2007 IEP, although a measurable benchmark was added to the goal for Organization/Study Skills which required Student to perform the required tasks, including turning in his assignments, up to “80% of the time” (PE-25).

The evidence is convincing that Student made substantial progress while at Landmark, even after only one year. In marked contrast to the teacher reports from Lexington, in the fall 2007 Landmark teachers were reporting Student as an “extremely hard worker and that he was working hard to develop his organizational skills as well.” They reported little concerns regarding his ability to stay focused in the smaller group setting (PE-27). Student’s progress reports for the period covering the 2007-2008 school year also reflect his progress in all areas. Most striking is the pre and post placement testing conducted by Landmark in March 2007 and June 2008 (PE-29). While in March his test results on the Woodcock Reading Mastery Test and the Gray Oral Reading Test-4 ranged between the 6.4 and 7.4 grade equivalency, by June 2008 his scores on the same tests ranged between the 10.8 and 16.2 grade equivalency, with all scores on the Gray Oral Reading Test-4 falling in the 12.7 grade equivalency level (PE-29). Furthermore, the Kaufman test of Educational Achievement and the Stanford Achievement Test-10 performed in April 2008 showed scores that ranged between the 9.3 and 11.7 grade equivalency level for this tenth grader ( Id ). As such, Lexington’s Team was looking at a different Student than when it convened the Team in October 2007.

Lexington asserts that the IEP proposed in October 2008 (as well as the preceding one), were reasonably calculated to afford Student a FAPE. They were based on the evaluative information available to the Team including the evaluation report of Dr. Lasoski. Lexington states that in October 2008, the Team was in possession of Dr. Lasoski’s evaluation report, which contained results consistent with those of Dr. Dinklage’s report of 2005 (PE-3; PE-26; SE-15). Dr. Lasoski agreed that Student presented with Attention Deficit Hyperactivity Disorder and Developmental Dyslexia with executive functioning deficits which impacted his organizational, working memory, and rote learning ability.

In light of Student’s cognitive abilities and the significant gains made while at Landmark in all areas, the opportunities presented in Lexington’s proposed IEP for the 2008-2009 school year would have been sufficient to allow him to make effective progress and Lexington’s program represented the least restrictive environment. The evidence therefore, supports a finding that Student would have been appropriately serviced in Lexington.

Parents raised concerns that the new Reading teacher, Ms. Denney, who attended the meeting, but had not attended previous ones and who had not previously provided services to Student, did not actually understand Student’s issues and how best to serve him. They argued that Ms. Denney was unsure as to whether the IEP developed in October 2008 was consistent with her subsequent recommendations regarding the nature of the reading services she would have provided Student in eleventh grade (PE-25; testimony of Denney). Ms. Denney’s only knowledge relative to Student and his educational needs was the brief reading evaluation she completed in March 2009, more than half-way through his second year at Landmark (SE-13) and the information contained in Dr. Lasoski’s report.

On cross-examination, Ms. Denney agreed that her evaluation was not relevant to educational planning for Student’s tenth or eleventh grades and that she had no information about the services that Lexington proposed for Student’s eleventh grade, although she did attend the Team meeting in October 2008 (PE-25; testimony of Ms. Denney). However, Ms Denney presented as a capable individual and, as his teacher in the smaller group setting Lexington was now recommending, Student would have been able to continue with the progress achieved while at Landmark. Of note is the fact that both Ms. Nardone and Dr. Healey who had worked extensively with Student, were present at the Team meetings of October 2007 and October 2008. Clearly, they would have been in a goodposition to assess Student’s progress and make recommendations for him, which undoubtedly Ms. Denny would have been qualified to implement.

Regarding Counseling services, given Student’s newly found self-confidence and academic progress while at Landmark, there is no indication that he would have required these services. By the fall 2008, Student was no longer depressed. Furthermore, nothing would have prevented the Team from re-instituting Counseling if the need arose. Lastly, Lexington argues that Parents had no intention of returning Student to Lexington once they placed him at Landmark and finds disingenuous Mother’s statement on rebuttal that had she known that the reading class was a smaller, more intensive class, she would have returned Student to Lexington.

Review of the available information shows that while Parents presented abundant evidence to support their unilateral placement of Student at Landmark for 2007-2008, not much evidence is available regarding the 2008-2009 school year placement. Student’s testing by Dr. Lasoski took place in 2007, and her observation of Student occurred on May 22, 2009. Lexington’s observation of Student occurred in January 2009 (SE-14). The Landmark teachers’ assessments of December 2008 describe a student who was able to understand the material, was capable of effective communication, was easily re-directed if unfocused, demonstrated strong organizational and preparational skills, except that he still required direct instruction and assistance with organization regarding long term-papers over a couple of pages in length. In December 2008 Student’s spelling was at grade level. His academic grades for eleventh grade included: A in Language Arts Tutorial, B in Junior Writing, A in American Literature, A in Algebra II, and A- in Chemistry (PE-30; PE-31, testimony of Brougham). He made friends and participated in social activities and sports. He was able to work independently and worked seamlessly with his classmates. Overall, he had made significant progress in writing, organization, and with overall study skills, and was more enthusiastic and diligent in getting work done. He still required assistance with interpreting information when reading independently. Student’s teachers at Landmark described him as a natural leader (SE-22; PE-31). The evidence is persuasive that Student continued to solidify his skills during the 2008-2009 school year and he clearly benefitted from the experience.

According to Mother, he is no longer depressed and is looking forward to graduating and going on to college next year (testimony of Mother, Brougham). Student’s success was also noted by Dr. Lasoski during her follow-up evaluation in May 2009 and her observation of Student at Landmark. She too noted Student’s progress in all areas including emotionally29 , and reported Student’s statement to her that he “felt successful” at Landmark. Dr. Lasoski observed that Student was attentive and actively participated in his classes. This was also reported by Ms. Brandwein-Fryar regarding two of the three classes observed by her in Landmark and by Student’s Landmark teachers (PE-26; SE-18; SE-22).

Dr. Lasoski opined that Student required Landmark’s program for the 2007-2008 and the 2008-2009 school years, but the fact is that he had made such significant progress during the first year at Landmark that he was allowed to take two college preparatory classes in 2008-2009 in which he flourished (testimony of Lasoski, Brougham). Student’s report card for eleventh grade shows that he achieved an A in all but one course, Junior Writing, in which he obtained a B. In Short Film Production and Drums which were pass or fail, he obtained a pass in both (PE-31). In the eleventh grade the demands had increased and he was becoming more curious intellectually (testimony of Brougham). As of the beginning of the 2009-2010 school year, Student’s progress at Landmark allowed him to fully partake in the College Prep Program, a program available to students whose skills are closer to grade level and who are more independent in their learning, which suggests that the Landmark experience not only benefitted but rather maximized Student’s potential. However, the standard in Massachusetts is not maximum feasible potential but rather FAPE, that is, the public school’s program must allow the student to make meaningful, effective progress and do so in the least restrictive setting.

Pursuant to Shaffer v. Weast , 546 U.S. 49; 126 S.Ct. 528, 534, 537; 44 IDELR 150 (2005), Parents must prove their case by a preponderance of the evidence, and if they fail to do so, Parents “loses if the evidence is closely balanced.” I find that Parents presented insufficient evidence to overcome the burden of persuasion. Having failed to meet their burden of persuasion regarding the appropriateness of the program proposed by Lexington for the 2008-2009 school year, they are not entitled to reimbursement for their unilateral placement of Student at Landmark for that school year.

ORDERS:

1. Lexington shall reimburse Parents for their out-of-pocket expenses relevant to the day portion of Student’s private placement at Landmark for the 2007-2008 school year.

2. Lexington is not responsible to fund the day portion of Student’s private placement at Landmark for the 2008-2009 school year.

By the Hearing Officer,

___________________________________________

Rosa I. Figueroa

Dated: December 14, 2009


1

Following the hearing, the Parties jointly requested two extensions of the deadline to submit written closing arguments, both of which were granted.


2

Mother testified that the increase to eight periods in the resource room occurred when Student was told to drop the music theory elective at Lexington and all other electives were full (testimony of Mother).


3

Denise Oldham, Lexington’s representative, signed this IEP on December 21, 2006, although a December 20, 2006 stamp appears on the first page of the IEP.


4

Dr. Lasoski has extensive training and experience as a neuropsychologist, and has conducted numerous evaluations of children and adults. She also has extensive experience providing consultation to parents and to school districts regarding educational plans and school placements, and has conducted multiple school observations (testimony of Lasoski).


5

GE= grade equivalence.


6

PHS= post high school.


7

Dr. Vodvarka is a clinical psychologist who has her own private practice as an evaluator, and is a consulting psychologist to several schools. Since 2002, she has acted as a school psychologist to the Natick Public School high school students, as a consultant (SE-23).


8

The second version of Dr. Vodvarka’s report was admitted in evidence as SE-12.


9

“Without the assistance of Landmark, I would have become another statistic, a worthless creature that roams the earth without a purpose. I am appalled and angered at the accusations regarding my lack of effort during my freshman year at Lexington High for no one knows what it was like to be in my shoes. Simply put, Landmark School was my oasis in a desert of despair. Lexington High was that desert and as we all know, people need water to survive” (PE-32).


10

20 USC 1400 et seq .


11

MGL c. 71B.


12

MGL c. 71B, ss. 1 (definition of FAPE), 2, 3.


13

E.g., 20 USC 1400(d)(1)(A) (purpose of the federal law is to ensure that children with disabilities have FAPE that “emphasizes special education and related services designed to meet their unique needs . . . .”); 20 USC 1401(29) (“special education” defined to mean “specially designed instruction . . . to meet the unique needs of a child with a disability . . .”); Honig v. DOE , 484 U.S. 305, 311 (1988) (FAPE must be tailored “to each child’s unique needs”).


14

Board of Education of Hendrick Hudson Central School District v. Rowley, 458 U.S. 176, 192 (1982) (goal of Congress in passing IDEA was to make access to education “meaningful”); Deal v. Hamilton County Board of Education, 104 LRP 59544 (6 th Cir. 2004); (“ IDEA requires an IEP to confer a ‘meaningful educational benefit’ gauged in relation to the potential of the child at issue”); G. by R.G. and A.G. v. Fort Bragg Dependent Schs , 40 IDELR 4 (4th Cir. 2003) (issue is whether the IEP was reasonably calculated to provide student meaningful educational benefit); Weixel v. Board of Education of the City of New York , 287 F.3d 138 (2 nd Cir. 2002) (placement must be “‘reasonably calculated’ to ensure that [student] received a meaningful educational benefit”); Houston Independent School District v. Bobby R ., 200 F.3d 341 (5 th Cir. 2000) (educational benefit must be “meaningful”); Ridgewood Board of Education v. NE for ME , 172 F.3d 238 (3 rd Cir. 1999) (IDEA requires IEP to provide “significant learning” and confer “meaningful benefit”).


15

Lenn v. Portland School Committee , 998 F.2d 1083 (1 st Cir. 1993) (program must be “reasonably calculated to provide ‘effective results’ and ‘demonstrable improvement’ in the various ‘educational and personal skills identified as special needs’”); Roland v. Concord School Committee , 910 F.2d 983 (1 st Cir. 1990) (“Congress indubitably desired ‘effective results’ and ‘demonstrable improvement’ for the Act’s beneficiaries”); Burlington v. Department of Education , 736 F.2d 773, 788 (1 st Cir. 1984) (“objective of the federal floor, then, is the achievement of effective results–demonstrable improvement in the educational and personal skills identified as special needs–as a consequence of implementing the proposed IEP”); 603 CMR 28.05(4)(b) (Student’s IEP must be “ designed to enable the student to progress effectively in the content areas of the general curriculum”); 603 CMR 28.02(18) (“ Progress effectively in the general education program shall mean to make documented growth in the acquisition of knowledge and skills, including social/emotional development, within the general education program, with or without accommodations, according to chronological age and developmental expectations, the individual educational potential of the child, and the learning standards set forth in the Massachusetts Curriculum Frameworks and the curriculum of the district.”).


16

See generally In re: Arlington , 37 IDELR 119, 8 MSER 187, 193-195 (SEA MA 2002) (collecting cases and other authorities).


17

MGL c. 69, s. 1 (“paramount goal of the commonwealth to provide a public education system of sufficient quality to extend to all children the opportunity to reach their full potential… ”); MGL c. 71B, s. 1 (“special education” defined to mean “…educational programs and assignments . . . designed to develop the educational potential of children with disabilities . . . .”); 603 CMR 28.01(3) (identifying the purpose of the state special education regulations as “to ensure that eligible Massachusetts students receive special education services designed to develop the student’s individual educational potential…”). See also Mass. Department of Education’s Administrative Advisory SPED 2002-1: Guidance on the change in special education standard of service from “maximum possible development” to “free appropriate public education” (“FAPE”), effective January 1, 2002, 7 MSER Quarterly Reports 1 (2001) (appearing at www.doe.mass.edu/sped) (Massachusetts Education Reform Act “underscores the Commonwealth’s commitment to assist all students to reach their full educational potential”).


18

Hendrick Hudson Dist. Bd. of Educ. v. Rowley , 458 U.S. 176, 199, 202 ( court declined to set out a bright-line rule for what satisfies a FAPE, noting that children have different abilities and are therefore capable of different achievements; court adopted an approach that takes into account the potential of the disabled student ); Deal v. Hamilton County Board of Education, 104 LRP 59544 (6 th Cir. 2004); (“ IDEA requires an IEP to confer a ‘meaningful educational benefit’ gauged in relation to the potential of the child at issue”); HW and JW v. Highland Park Board of Education , 104 LRP 40799 (3 rd Cir. 2004) (“benefit must be gauged in relation to the child’s potential”); Houston Independent School District v. Bobby R ., 200 F.3d 341 (5 th Cir. 2000) (progress should be measured with respect to the individual student, not with respect to others); T.R. ex rel. N.R. v. Kingwood Twp. Bd. of Educ., 205 F.3d 572, 578 (3d Cir. 2000) (appropriate education assessed in light of “individual needs and potential”); Ridgewood Board of Education v. NE , 172 F.3d 238 (3 rd Cir. 1999) (“quantum of educational benefit necessary to satisfy IDEA . . .requires a court to consider the potential of the particular disabled student”); Mrs. B. v. Milford Board of Ed. , 103 F.3d 1114, 1122 (2d Cir. 1997) (“child’s academic progress must be viewed in light of the limitations imposed by the child’s disability”); MC v. Central Regional School District , 81 F.3d 389 (3 rd Cir. 1996), cert. denied 519 US 866 (1996) (child’s untapped potential was appropriate basis for residential placement); Roland v. Concord School Committee , 910 F.2d 983 (1 st Cir. 1990) (“academic potential is one factor to be considered”); Kevin T. v. Elmhurst , 36 IDELR 153 (N.D. Ill. 2002) (“ Court must assess [student’s] intellectual potential, given his disability, and then determine the academic progress [student] made under the IEPs designed and implemented by the District ”).


19

E.g. Lt. T.B. ex re.l N.B. v. Warwick Sch. Com ., 361 F. 3d 80, 83 (1 st Cir. 2004)(“IDEA does not require a public school to provide what is best for a special needs child, only that it provide an IEP that is ‘reasonably calculated’ to provide an ‘appropriate’ education as defined in federal and state law.”)


20

Schaffer v . Weast , 126 S.Ct. 528 (2005) places the burden of proof in an administrative hearing on the party seeking relief.


21

He had previously exhibited similar issues when he was doing poorly in the seventh grade at the Diamond Middle School.


22

Landmark is an “approved” special education school which is specifically designed to meet the needs of students who, like Student, present with average to above average cognitive abilities, language based learning disabilities and executive functioning deficits (testimony of Brougham).


23

See In Re: Bedford Public Schools , 109 LRP 59132 (Figueroa, 2009), addressing the limits of school district’s responsibility to service students vis à vis a student’s responsibility to access the services and accommodations that are provided. “T here is a fine line between accommodating disabilities, teaching responsibility, and helping students become more independent.”


24

See Dr. Lasoski’s evaluation page 8 (PE-26).


25

See Independent School District No. 284, Wayzata Area Schools v. A.C. (“We also think it unlikely that Congress meant for the IDEA to require states to provide a home away from home for students who simply make bad choices, even if those choices cause them to fail in school.”) 35 IDELR 59 (8 th Cir. 2001).


26

According to Mother, the first version of Dr. Vodvarka’s report was destroyed at Parents’ request because the report contained misrepresentations, inaccurate information and unsubstantiated conclusions about the amount of Student’s marijuana use as well as the effect of the marijuana use on his progress in the ninth grade (PE-37; testimony of Mother). Father, who is a Massachusetts licensed clinical psychologist with experience treating adolescents and familiar with psychological evaluations from his own experience, testified that Dr. Vodvarka administered the substance Abuse Subtle Screening Inventory (SASSI) without parental consent and in an inappropriate manner as it was administered over a year and a half after the alleged incident. Father testified that the clinical coordinator of the SASSI Institute informed him that there was “no actual reliability” or “validity” to the administration of the SASSI for a retroactive period of time. Additionally, he opined that Dr. Vodvarka miscalculated the raw data and “over diagnosed” Student as having a substance dependence. Lastly, he explained that her conclusions were invalid because she failed to contact collateral sources such as Parents, teachers and/or other service providers (testimony of Father). I found Parents testimony credible and persuasive in this regard.


27

Dr. Vodvarka’s report contained other inaccuracies. She reported that Student was enrolled in the “standard college prep program” at Landmark during eleventh grade, which was inaccurate as the standard program and the college prep programs are two different programs as explained by Mr. Brougham. While in the eleventh grade Student took two courses at the college prep level but was still enrolled in the standard Landmark program (testimony of Brougham).


28

I note that Parents’ initial request for hearing sought reimbursement for their unilateral residential placement at Landmark. Prior to the Hearing, they amended their complaint seeking reimbursement for only the day portion of Student’s placement at Landmark.


29

Dr. Lasoski noted that Student was benefiting academically, socially and emotionally from the residential portion of the program.


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