COMMONWEALTH OF MASSACHUSETTS
BUREAU OF SPECIAL EDUCATION APPEALS
In Re: Longmeadow Public Schools BSEA # 08-0673
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 c. 71B), the state Administrative Procedure Act (MGL c. 30A), and the regulations promulgated under these statutes.
A hearing was held on April 27, 28, 29 and 30, 2010 and May 3 and 4, 2010 at Catuogno Court Reporting offices in Springfield, MA before William Crane, Hearing Officer. Those present for all or part of the proceedings were:
Student’s Mother
Student’s Father
Erin Jarosz Clinical Supervisor of Rehabilitation Services, Baystate Medical Center
Marsha Stevens (by phone) Educational Consultant for Parents
Carrie Kinney (former) Special Education Teacher, Longmeadow Public Sch.
Nicole Paris-Kro Special Education Teacher, Longmeadow Public Schools
MaryAnn Kniska Physical Therapist, Longmeadow Public Schools
Kim Mirer Occupational Therapist, Longmeadow Public Schools
Lisa Masciadrelli Speech-Language Pathologist, Longmeadow Public Schools
Rebecca Chrzan Assistive Technologist, Alternative Access
Linda Smith Assistive Technologist, Alternative Access
Judith Kelliher (by phone) Lower Pioneer Valley Educational Collaborative
Gail Levy Special Education Supervisor, Longmeadow Public Schools
Jean Fontaine Special Education Supervisor, Longmeadow Public Schools
Susan Bertrand Pupil Services Director, Longmeadow Public Schools
Sarah Ornelas Attorney for Parents and Student
Daniel O’Connell Attorney for Parents and Student
Regina Tate Attorney for Longmeadow Public Schools
Kathleen Ciampoli Attorney for Longmeadow Public Schools
Debbie Lovejoy Court Reporter
Brenda Ginisi Court Reporter
The official record of the hearing consists of documents submitted by the Parents and marked as exhibits P-1 through P-149, except for P-19 which was not admitted because it is not a complete document; documents submitted by the Longmeadow Public Schools (Longmeadow) and marked as exhibits S-1 through S-87; and six days of recorded oral testimony and argument. As agreed by the parties, written closing arguments were due on June 11, 2010, and the record closed on that date.
Because of the complexity of this dispute and the large number of issues requiring resolution, I have prepared the following outline of the instant Decision as a guide.
I. Summary of Dispute
II. Issues
III. Procedural History and Statute of Limitations
IV. Facts
A. Student’s Profile
B. Most Recently-Proposed IEP
C. Educational History
1. 1999 to 2004 school years (pre-school through 1 st grade)
2. 2004-2005 school year (2 nd grade)
3. 2005-2006 school year (3 rd grade)
4. 2006-2007 school year (4 th grade)
5. 2007-2008 school year (5 th grade)
6. 2008-2009 school year (6 th grade)
7. 2009-2010 school year (7 th grade)
V. Legal Standards
VI. Discussion
A. Appropriateness of the services in the five disputed IEPs
1. IEP for the period 5/9/06 to 5/9/07
2. Remaining Four IEPs: In General
3. Remaining Four IEPs: Speech-Language, Physical Therapy, Occupational Therapy
4. Remaining Four IEPs: Conductive Therapy
5. Remaining Four IEPs: Assistive Technology
6. Remaining Four IEPs: Head and Neck Support
7. Remaining Four IEPs: Academic Instruction
8. Parents’ additional arguments
9. Conclusion regarding the appropriateness of the five disputed IEPs
B. Student’s placement
C. Implementation of the IEPs and the parties’ Agreement
1. Parties’ Agreement
2. Speech-language services
3. Physical therapy
4. Occupational therapy
5. Assistive technology services
6. Student’s aide
7. Reimbursement of expenses relevant to the Franciscan evaluation
8. Compensatory relief for failure to implement required services
D. Alleged procedural violations
VII. Conclusion
VIII. Order
I. SUMMARY OF DISPUTE
Student is a fourteen years old boy who is severely physically disabled as a result of spastic quadriplegia cerebral palsy. Student attends a specialized, 7 th grade educational program within the Longmeadow Public Schools. Student lives at home with Parents who have demonstrated, for many years, an extraordinary and tireless dedication to ensuring that their son receives high quality educational services.
Despite intensive, individualized services (including 1:1 academic instruction, and 1:1 speech-language, physical therapy, occupational therapy, and assistive technology services) provided over a number of years, Student has regressed or made minimal progress regarding important physical abilities and communication skills.
Parents are seeking continuation of Student’s currently-proposed educational services and placement but with the addition of conductive education (or therapy) services and certain minimum qualifications for Student’s 1:1 special education teacher and 1:1 aide. (For a discussion of what is meant by conductive education or conductive therapy, see part VI A 4 of this Decision, below.) Parents also are seeking reimbursement of expenses relevant to an evaluation and privately-obtained services and compensatory services for allegedly inappropriate IEPs and failure to fully implement IEPs and an agreement. Parents have also requested that Student be temporarily placed at an identified intensive feeding program in Virginia.
Longmeadow has defended the appropriateness of its proposed IEPs but has agreed that a number of related services (required pursuant to agreed-upon IEPs or agreement) have not been provided and should be made up. Longmeadow is also seeking a change of placement from its Williams Middle School (the placement identified within its most recently-proposed IEP where Student receives 1:1 special education services) to the Lower Pioneer Valley Educational Collaborative (LPVEC) Transitional Program where Student would be educated with a small group of physically and cognitively disabled students.
The results of my Decision may be summarized briefly as follows.
Longmeadow generally prevailed on the appropriateness of the proposed services in the current and past IEPs for two principal reasons. I have also ruled in favor of Longmeadow regarding use of certain accommodations (head supports) and communication devices (voice output devices) refused by Parents.
I have agreed with Parents that Student’s placement should not be changed prospectively to the LPVEC Transitional Program. I have also found in favor of Parents regarding certain related services that have been required pursuant to an agreed-upon IEP or an agreement by the parties but were not provided by Longmeadow. I have declined to order that Longmeadow reimburse Parents for any of their out-of-pocket expenses for services unilaterally provided.
II. ISSUES
The issues to be decided in this case are as follows:
Prospective services claims
1. Is the individualized education program (IEP) most recently proposed by Longmeadow (exhibits P-149, S-71) reasonably calculated to provide Student with a free appropriate public education in the least restrictive environment?
2. If not, what additions or other modifications should be made to the IEP in order to satisfy this standard?
3. Should Student be placed at the Lower Pioneer Valley Collaborative Educational Program to satisfy this standard?
Compensatory education claims regarding alleged inappropriateness of IEPs
4. Was the IEP for the period 5/9/06 to 5/9/07 (exhibits P-3, S-28) reasonably calculated to provide Student with a free appropriate public education in the least restrictive environment?
5. Was the IEP for the period 11/13/07 to 11/12/08 (exhibits P-1, S-51) reasonably calculated to provide Student with a free appropriate public education in the least restrictive environment?
6. Was the IEP for the period 2/11/08 to 2/12/09 (exhibits P-147, S-55) reasonably calculated to provide Student with a free appropriate public education in the least restrictive environment?
7. Was the IEP for the period 2/12/09 to 2/11/10 (exhibits P-148, S-64), which was proposed pursuant to an IEP Team meeting on February 12, 2009, reasonably calculated to provide Student with a free appropriate public education in the least restrictive environment?
8. Was the IEP for the same period of 2/12/09 to 2/11/10 (exhibits P-149, S-71), which was proposed as a result of an IEP Team meeting on October 15, 2009, reasonably calculated to provide Student with a free appropriate public education in the least restrictive environment?
9. If any of these IEPs was not reasonably calculated to provide Student with a free appropriate public education in the least restrictive environment, is Student entitled to compensatory services; and if so, what are the compensatory services that should be provided to Student?
Claims regarding alleged failure to implement an IEP or agreement
10. Has Longmeadow failed to provide special education or related services that it was mandated to provide Student pursuant to an IEP or agreement between the parties during the period of time from March 22, 2008 through the present; and if so, what are the additional services that should be provided to Student?
III. PROCEDURAL HISTORY AND STATUTE OF LIMITATIONS
On July 27, 2007, Parents filed their original hearing request with the Bureau of Special Education Appeals (BSEA). Parents’ hearing request outlined Student’s educational profile and his history of special education and related services. The hearing request expressed concerns regarding the development of Student’s communication skills, daily living activities and academic skills; and it took the position that Student was not making effective progress in these areas.
In the requested relief section of the original hearing request, Parents asked the BSEA to find that Longmeadow had not offered Student an IEP that is reasonably calculated to provide Student with a free appropriate public education. The hearing request noted that a neuropsychologist, Caterina Cianciulli, PhD, had recently evaluated Student and in her written report, made recommendations. The hearing request indicated that Parents were seeking to have Longmeadow adopt these recommendations and implement them within Student’s community school setting. Those recommendations did not include specific services but rather sought consultation with experts who work in successful programs for children with medical conditions in order to “encourage Student’s adaptive and academic progress.” The original hearing request also sought a BSEA order for “such additional or extended services as are found necessary to compensate for Longmeadow’s failure to provide a free appropriate public education.” Exhibits P-21, S-39.
The original hearing request did not allege and made no claim regarding a failure to implement an IEP or other agreed-upon services.
After a pre-hearing conference and then numerous conference calls, this matter was scheduled for hearing for five days in May 2008.
Immediately prior to the beginning of the hearing, the parties agreed to postpone the hearing. The parties had previously agreed that Longmeadow would fund an independent comprehensive evaluation, and a principal purpose of the postponement was to allow time for this evaluation to occur at the Franciscan Children’s Hospital prior to proceeding to hearing.
The parties jointly requested that this matter go “off-calendar”, which occurred for three months, beginning May 15, 2008. Subsequently, the parties again requested that this matter go “off-calendar”, which occurred for three additional months, beginning October 3, 2008. On February 5, 2009, a conference call was held during which the parties agreed to hearing dates of May 5, 6, 7, 12, and 13, 2009.
On April 24, 2009, Parents requested a postponement of the May 2009 hearing dates. In this request, Parents’ attorney explained that as a result of a combination of factors beyond his control, he was not prepared to go to hearing on the scheduled hearing dates in May.
Longmeadow’s attorney opposed the postponement request and indicated that because of her schedule, any postponement would likely delay the hearing for at least several months. I then issued an order advising Parents that if the hearing did not proceed on the May 2009 dates because Parents were not prepared to go forward, I may then issue a show cause order which may result in the dismissal of the case pursuant to BSEA Hearing Rule IV B (requiring that a hearing proceed to hearing after being off calendar for six months or the case may be dismissed with prejudice).
Parents continued to seek a postponement of the hearing. I then postponed the hearing, issued a show cause order, and pursuant to the show cause order, dismissed the case without prejudice. Parents retained new counsel and appealed the dismissal to federal District Court. By Order dated January 6, 2010, the Court vacated my dismissal, relying on BSEA Hearing Rule III A 1, which provides that if a Hearing Officer allows a postponement, new hearing dates must be scheduled. The Court reasoned that the Hearing Officer had only two choices—either grant the requested postponement and schedule new hearing dates, or deny the postponement request and proceed on the scheduled hearing dates.1
On January 14, 2010, I held a conference call with the parties’ attorneys, during which new, agreed-upon hearing dates were scheduled for April 27, 28, 29, 30 and May 3 and 4, 2010.
Because Parents had successor attorneys (different than the attorney who filed the original hearing request) and because a substantial amount of time had gone by since the filing of the original hearing request, I requested that Parents’ attorneys file a statement explaining their understanding of the issues to be addressed at hearing and requested relief. Several further statements were ordered from Parents in order to obtain a complete statement of the disputed issues.
Initially, Parents took the position that their issues statement was simply a clarification of what was contained within the original hearing request. However, after further issues statements were filed by Parents’ attorneys, it became apparent that Parents were raising issues not included within the original hearing request. On March 22, 2010, Parents indicated, for the first time, that they intended to amend their hearing request through their most recently-submitted issues statement. Pursuant to a ruling dated March 23, 2010, I considered Parents’ most recent statement of the issues to be their proposed amended hearing request, I allowed Parents to file this amended hearing request, and I considered the amended hearing request to have been filed with the BSEA on March 22, 2010 because this was the date that Parents first made clear their intent to amend their hearing request through their revised statement of the issues.2
Longmeadow then filed a Partial Motion to Dismiss on the basis that certain of Parents’ claims in their amended hearing request were precluded, in whole or in part, by the IDEA’s two-year statute of limitations. Parents filed an opposition, and a motion hearing was held on April 26, 2010. On that day, I issued a ruling that Parents retained their original claim regarding the appropriateness of the IEP in effect when their original hearing request was filed on July 27, 2007, but that Parents’ remaining claims that were not a part of the original hearing request were limited to the time period of March 22, 2008 to the present. The ruling relied, in part, on BSEA Hearing Rule I G (“ For issues not included in the original hearing request, the date of the amended hearing request shall be controlling for statute of limitations purposes.”).3
The case then proceeded to hearing for six consecutive days, as scheduled, beginning April 27, 2010 and concluding May 4, 2010.
IV. FACTS
A. Student’s Profile
Student is fourteen years old, attends 7 th grade for the 2009-2010 school year, and lives with his Parents and three brothers in Longmeadow, MA. Student is a delightful, sweet young man who has a keen sense of humor. At school, he works hard in the classroom and in his various therapies. He enjoys engaging others socially, particularly, other students and those adults with whom he has developed a relationship. Student has a relative academic strength in math, he loves music (including listening to music and playing on a music keyboard), and he enjoys listening to stories. Student is interested in baseball, he enjoys driving his electric wheelchair, and he likes to play with balls. Educational professionals working with him have indicated their personal enjoyment and professional satisfaction in doing so. Testimony of Mother, Stevens, Kinney, Paris-Kro, Kniska, Mirer; exhibit P-149.
Student has been diagnosed with a spastic quadriplegia cerebral palsy and occasional seizures. Several of the consequences of Student’s severe cerebral palsy are that, currently, he is not able to speak, he cannot stand, sit, or walk without substantial assistance, his communication is limited to four signs (for yes, no, drink, go to the bathroom) only two of which he uses consistently, he is unable to hold his head up for a sustained period of time, and he requires the assistance of two adults to use the bathroom. Nevertheless, he expresses emotions (such as being happy), and he can express his preferences. Testimony of Mother; exhibits P-21, S-39.
Because of Student’s severely limited communication abilities, it has not been possible to determine reliably Student’s cognitive level. Several clinicians who evaluated Student have surmised that Student may have significant cognitive deficits. However, as will be discussed below, more recent evidence indicates that Student understands much of what he is told or observes (including the content of books at the 2 nd and 3 rd grade levels) and that he appreciates humor, thus indicating that Student’s cognitive abilities may not be as limited as originally thought by evaluators and, possibly, may be in the normal range. Testimony of Mother, Stevens, Kinney, Paris-Kro, Kniska; exhibits P-21, S-39, S-61.
B. Most Recently-Proposed IEP
Longmeadow’s most recently-proposed IEP for Student was developed at an IEP meeting on October 15, 2009, and covers the period from 2/12/09 to 2/11/10. The IEP calls for Student to be placed in a regular education science classroom, with support from special education staff, for 50 minutes each day. Science is also to be taught to Student by a special education teacher in a substantially-separate classroom for a half hour daily. All of Student’s other academic services are to be provided by a special education teacher within a substantially-separate classroom. This includes English language arts for 45 minutes daily, math for 45 minutes daily, and social studies for a half hour daily. An educational assistant is scheduled to provide assistance to Student in the classroom for six times 390 minutes per week. Testimony of Mother, Fontaine; exhibits P-149, S-71.
The IEP further proposes assistive technology services from a technology consultant for an hour each week, on-going daily living skills instruction from a special education teacher, adaptive physical education from an adaptive physical education instructor for a half hour twice each week, occupational therapy from a registered occupational therapist for 45 minutes twice each week, speech-language services from a speech-language pathologist or speech-language pathologist assistant (SLP/SLPA) for a half hour each day, and physical therapy from a physical therapist for a half hour each day. The IEP also includes occupational therapy consultation services for a half hour per month, and physical therapy consultation services for 15 minutes each week. Exhibits P-149, S-71.
The proposed IEP calls for the following summer services: speech-language services from an SLP/SLPA for a half hour twice per week, occupational therapy from occupational therapy staff for 45 minutes twice per week, physical therapy from a physical therapist for 45 minutes twice per week, and academics and social development for five days per week for seven weeks. The summer services are scheduled to have been provided from 7/7/09 to 8/21/09. Exhibits P-149, S-71.
The proposed IEP also calls for the following compensatory services: physical therapy from a physical therapist for a half hour three times per week. Exhibits P-149, S-71.
The IEP includes a number of proposed accommodations as necessary for Student to make effective progress. These accommodations include the following: use of walker, wheelchair and stander; instructional periods not to exceed 30 minutes; assistive technology for access to the curriculum and a computer with adaptive equipment; use of a clear choice board and picture boards; augmentative communication device (Tech Talk for choices and responses); enlarged pictures, letters, numbers and manipulatives; verbal prompting to use eye contact with social exchanges with peers and staff; daily communication log; air conditioner; a chin/head support as needed on an on-going basis. Methodology in the IEP includes the following: Tech Talk communication device, Intellikeys/Classroom suite, for a specific program for Student to access; multi-sensory approach to learning; and a field of two to four picture/word choices for responses to questions related to academics and desired activities, also with the use of the four signs that Student already knows. Exhibits P-149, S-71.
This IEP proposes Student’s placement to be at the Williams Middle School. Because there is no appropriate program for Student at this school and because there are no appropriate peers with whom Student can be grouped at this school, all of Student’s academic instruction (except for science) is to be provided through a special education teacher and a special education aide, both of whom work exclusively with Student and provide Student his education without any other children present. (Inclusion in a regular education science class with assistance is not being implemented since this part of the IEP has not been accepted by Parents.) Similarly, all of Student’s therapies are provided on a 1:1 basis, and adaptive physical education is to be provided on a 1:1 basis or in a small group. Testimony of Paris-Kro, Fontaine; exhibits P-149, S-71.
By e-mail dated May 2, 2009, Parents accepted only the summer sessions at Kamp for Kids and otherwise have not accepted or rejected this IEP in writing, although Mother testified that she believed that Parents had rejected this IEP except for the Kamp for Kids services. Testimony of Mother, Fontaine; exhibit P-132, P-149, S-71.4
C. Educational History
1. 1999 to 2004 school years (pre-school through 1 st grade)
When Student was two and one-half years old, Parents placed him at a five-week “conductive therapy” camp in Canada where he was accompanied by one of his Parents. Mother testified that at this camp, Student learned to sit on a chair and take several steps. (For a discussion of what is meant by the terms conductive education and conductive therapy, which are used interchangeably, see part VI A 4 of this Decision, below.)
Mother testified that when Student was three years old, Parents began bringing a “conductor” (i.e., a person who provides conductive therapy) to their home every six months. The conductor would work intensively with Student for approximately four hours each day, five days per week, for three to five weeks. Parents continued to provide this pattern of conductive therapy services until Student was nine years old (2005). Testimony of Mother; exhibit S-1.
Mother testified that when Student was three years old, he attended an integrated pre-school where he learned how to stand reliably and walk without the assistance of a walker. Mother explained that by the time he entered pre-school, Student used signs for “yes” and “no” (signs that were taught to Student by Parents) and was working on signs for a drink and for needing to use the bathroom; he could say a few words (including yes, no, mom, dad, no more, and done); and he knew his colors and shapes. Testimony of Mother.
Mother testified that Student participated in a full-day kindergarten at Longmeadow’s Blueberry Hill School, he did well academically, and he used his walker and gait trainer in school. Testimony of Mother.
Mother testified that Student participated in a regular education 1 st grade class at Longmeadow’s Blueberry Hill School and that he repeated 1 st grade there. Mother explained that her son also attended a resource room where he was able to spell words. Mother testified that Student’s academics improved during his two years in 1 st grade and that although his physical skills and abilities declined, the conductive therapy provided by Parents was able to bring these skills and abilities back. Testimony of Mother.
A video from 2003 or 2004 shows Student during conductive therapy being able to sit independently and walking with support. Mother testified that Student lost the ability to sit independently after he left Blueberry Hill School after completing his second year of 1 st grade there. Testimony of Mother; exhibit P-136.
2. 2004-2005 school year (2 nd grade)
For 2 nd grade, Student was placed in the Longmeadow Learning Challenges (LLC) program located at Longmeadow’s Wolf Swamp Elementary School. LLC provided Student with a substantially-separate classroom, with opportunities to integrate with typical peers at times during the day. Initially, Parents were pleased with this program, as reflected in a letter dated January 22, 2005 that Parents sent to the Longmeadow School Committee explaining that Student “fits in perfectly” with his peers with whom he is developing relationships, and that Student is “making strides academically”. The program had recently been established for children such as Student. Testimony of Mother; exhibits P-55, P-73, S-7, S-9.
Mother testified that Parents’ enthusiasm for the LLC program then waned. Mother explained that the LLC program changed Student’s signs, with the result that he lost the ability to sign “yes” and “no”, that the program engaged in activities that were meaningless to Student (for example, coloring when Student is not able to hold a crayon or paint brush), that Student was not taken to the toilet with enough frequency, that he was not taken to activities in the community because he uses a wheelchair, and that he lost the ability to stand without assistance. Testimony of Mother.
3. 2005-2006 school year (3 rd grade)
Student continued in the LLC program for 3 rd grade.
Near the end of 3 rd grade, Longmeadow proposed the first IEP that is in dispute. The IEP was for the period 5/9/06 to 5/9/07, and it became the last agreed-upon (“stay-put”) IEP with respect to the instant dispute. This IEP called for the following services and placement for Student:
· placement within a substantially-separate classroom where he received all of his academic, socialization and daily living instruction;
· the following related services that were provided on a 1:1 basis:
· · speech-language services from a speech-language pathologist for a half hour each day,
· · feeding skills instruction from a registered occupational therapist for a half hour twice each week, and
· · physical therapy from a physical therapist for 45 minutes three times per week;
· socialization in the mainstream with support from a teacher assistant for 45 minutes each day;
· adaptive physical education for a half hour each twice each week;
· seven weeks of summer services in the areas of academics, speech-language therapy, and physical therapy;
· consultation services in the areas of assistive technology (an hour each week), occupational therapy (a half hour each month), physical therapy 15 minutes each week) and program consultation (an hour each week).
The IEP called for continued placement at the LLC classroom at Longmeadow’s Wolf Swamp Road School for 4 th grade, with a full-time educational assistant. Other accommodations listed on the IEP included support of a physical environment-walker, wheelchair, stander, hand splint, hand braces for writing materials, assistive technology for curriculum materials and expressive writing, computer with adaptive equipment, Clear Choice board, and air conditioner. Exhibits P-3, S-28.
By letter dated February 8, 2007, Parents accepted all of the services described within this IEP, except that Mother stated that she did not agree to changing the occupational therapy consultation from one hour to a half hour per month, that it was not necessary to list socialization as a direct service in the service delivery grid, that she did not agree to reducing the summer physical therapy services from three and a half hours per week to an hour twice per week, and that summer occupational therapy services should be added to the IEP. Exhibits P-3, P-60, P-125, S-28.
4. 2006-2007 school year (4 th grade)
By letter “To Whom It May Concern” dated October 3, 2006, Student’s LLC classroom teacher (Doretta Caputo) wrote that Student’s daily living skills (such as toileting, eating and “moving about” in his motorized wheelchair independently) were the “primary focus” during the school day. The letter further explained that academic skills (including reading knowledge and math skills), communication skills, socialization with peers, and walking skills (using a gait walker) were also being addressed. Exhibits P-63, S-20, S-37.
On November 1, 2006, Longmeadow (through Kimberly Mirer, OTR/L) conducted an occupational therapy evaluation of Student. The evaluation report recommended that Student receive occupational therapy for a half hour twice each week, and that there also be a half hour per month of occupational therapy consultation. Soon after this evaluation, Ms. Mirer began providing 1:1 occupational therapy to Student, generally providing 45 minute sessions twice per week. Testimony of Mirer; exhibits P-30, S-24.
During 4 th grade, Parents saw a video of their son at school as part of the MCAS alternate assessment process. The video showed Student during May of 3 rd grade. Mother testified that, as a result of the video, Parents became sufficiently concerned about Longmeadow’s education of their son that they privately engaged a pediatric neuropsychologist (Caterina Cianciulli, PhD) in February 2007 for the purpose of evaluating Student, including having Dr. Cianciulli observe Student at school.
Dr. Cianciulli issued a written report of her neuropsychological evaluation and observation that occurred in February, March, April and May 2007. The report stated that Student may have a severe, undiagnosed vision problem and also may have a “cognitive delay that hinders his ability to engage in cognitive tasks.” Dr. Cianciulli reached her conclusion regarding Student’s cognitive abilities not on the basis of standardized testing (which could not be accurately administered) but on the basis of “qualitative observations” and descriptions of Student’s behavior at home. The report further observed that notwithstanding his receiving physical, occupational, and speech-language services, Student’s “level of adaptive functioning is particularly low as is his academic progress.” Exhibits P-21, S-39.
Dr. Cianciulli’s report further concluded that Student “experiences an alarming delay with his adaptive functioning.” Of “great concern” to Dr. Cianciulli was Student’s lack of ability to communicate his needs and wishes, because this “condemns him to be completely dependent on others and precludes him the possibility to express even very simple needs or wishes.” Dr. Cianciulli further wrote that “ by now [emphasis in original]” Student should have been trained “to express his needs through alternative channels of communication and at his age level he should be engaged in exploring more sophisticated ways to express more complex thoughts.” Dr. Cianciulli expressed “surprise” that basic adaptive skills, such as toilet training, have not been targeted or have not been successfully addressed so far. Exhibits P-21, S-39.
Dr. Cianciulli recommended in her report that Longmeadow consult with experts who work in successful programs for children with medical conditions in order to “encourage Student’s adaptive and academic progress.” It was also emphasized that “[p]roviding [Student] with an effective communication system should be the priority in this plan of interventions.” Exhibits P-21, S-39.
On March 7, 2007, Longmeadow conducted a physical therapy evaluation that recommended that Student receive physical therapy for 45 minutes three times per week. Exhibit P-28.
On March 22, 2007, Student received an assistive technology evaluation (at Longmeadow’s expense) from Alternative Access, Assistive Technology Services in Belchertown, MA (hereinafter, “Alternative Access”). At Parents’ request, the evaluation was limited to providing suggestions regarding computer technology to support Student. Exhibit P-27.
In March and April 2007, Longmeadow conducted its own communication assessment that recommended that Student participate in an assistive technology augmentative alternative communication evaluation so that he would be able to initiate more communication and respond more reliably. Exhibits P-25, S-36.
In April 2007, Longmeadow conducted a feeding evaluation that provided recommended techniques and strategies for improving Student’s feeding. Exhibits P-26, S-34.
By letter of April 29, 2007, Parents gave their consent to conduct an augmentative communication evaluation to be performed by Alternative Access. Exhibit P-58.
In May 2007, Longmeadow conducted its own psychological report which concluded, in part: “Until [Student] develops a more efficient communication system, it would be very challenging, at best, to administer a cognitive assessment and have confidence in its results.” Exhibit S-38.
In June 2007, Student’s classroom teacher (Ms. Walker) wrote in a year-end report that when she asks Student an “academic question”, “it is difficult to tell if [Student’s] correct answers are random or purposeful, but he appears to produce more correct than incorrect responses.” Exhibit S-43.
In June 2007, Student received an assistive technology augmentative alternative communication evaluation (at Longmeadow’s expense) from Alternative Access that provided a wide variety of suggested augmentative communication devices for the IEP Team to consider for Student, and made other recommendations as to what would be necessary to improve Student’s abilities and options for communication. Exhibits P-22.
Near the end of 4 th grade, Mother met with the Longmeadow Director of Pupil Services (Ms. Bertrand) to discuss Parents’ request that their son be moved from the LLC program. Parents complained to Ms. Bertrand that the LLC teacher was not working appropriately with Student, and they asked Longmeadow to hire a different teacher for the LLC program. Longmeadow declined to replace the LLC teacher. Testimony of Mother.
By letter of July 18, 2007 to Mother, David Feingold, MD, wrote that in his capacity as a pediatric physiatrist, he has been treating Student for several years with interventions that have included addressing Student’s spacticity control and physical mobility. In his letter, Dr. Feingold recommended a more intensive physical therapy program for Student. Exhibit P-18.
On July 27, 2007, Parents filed their original hearing request with the BSEA . The hearing request alleged that the then-current IEP (which was for the period 5/9/06 to 5/9/07 and which had been substantially-accepted by Parents) was not appropriate for Student. See part III, above entitled Procedural History and Statute of Limitations. In her testimony, Mother explained that notwithstanding what was written in her original hearing request, Parents’ concern was not with the appropriateness of this IEP, but rather Parents believed that the IEP was not being properly implemented, with the result that Student’s signing, verbal skills and ability to stand and take steps were regressing. Testimony of Mother.
5. 2007-2008 school year (5 th grade)
Following the filing of the hearing request with the BSEA, the BSEA held a pre-hearing conference with the parties, during which the parties agreed that Longmeadow would fund a comprehensive independent evaluation of Student’s educational needs. The evaluation by Franciscan Children’s Hospital, which occurred during Student’s 6 th grade, is discussed below. Testimony of Levy; exhibit P-85.
On September 20, 2007, an adaptive equipment evaluation was conducted by Connecticut Children’s Medical Center. The evaluation report addresses Student’s using a power wheelchair. Exhibits P-31, S-23.
On November 13, 2007, there was an IEP Team meeting. As a result of the meeting, Longmeadow proposed an IEP for the period 11/13/07 to 11/12/08 (exhibits P-1, S-51). This IEP is similar to the above-discussed IEP for the period 5/9/06 to 5/9/07 (exhibits P-3, S-28), which Longmeadow was implementing as the last agreed-upon IEP. The principal differences were as follows:
· assistive technology consultation was reduced from an hour each week to an hour every two weeks,
· a speech-language/occupational therapy group of half hour once per week was added,
· speech-language services were reduced from a half hour daily to a half hour four days per week,
· speech-language services during the summer were dropped from the IEP,
· occupational therapy by an occupational therapist replaced feeding skills instruction by a registered occupational therapist and the time was increased from a half hour twice each week to 45 minutes twice each week,
· physical therapy services remained at 45 minutes three times per week.
Pursuant to this IEP, Student continued at the LLC classroom for the remainder of 5 th grade (2007-2008 school year). Parents rejected this IEP. Exhibits P-1, S-51.
A speech-language evaluation of Student on November 19, 2007 by Holyoke Medical Center recommended that Student be given the opportunity for increased opportunities to communicate, including being allowed to access voice output devices. Exhibits P-16, S-48, S-50.
In November 2007, Ms. Smith of Alternative Access Assistive Technology Services conducted a second observation for Student’s augmentative alternative communication evaluation. Testimony of Smith; exhibit P-17.
A list of communication options, dated January 14, 2008, was prepared for Student by Ms. Smith. Testimony of Smith; exhibit P-15.
On February 11, 2008, there was another Team meeting. As a result of the meeting, an IEP was proposed for the period 2/11/08 to 2/12/09 (exhibits P-147, S-55). This IEP is similar to the above-discussed IEP for the period 11/13/07 to 11/12/08 (exhibits P-1, S-51), with the principal difference that occupational therapy services were changed from 45 minutes twice per week to a half hour three times per week, and physical therapy was changed from 45 minutes three times per week to a half hour daily. On April 8, 2008, Parents accepted the physical therapy services of a half hour each day and rejected the remainder of the IEP. Later, on August 9, 2008, Parents accepted the occupational therapy services to be provided during the summer of 2008. Exhibits P-123, P-126, P-147, S-55.
On February 27, 2008, Parents’ educational consultant (Marsha Stevens, MEd) observed Student in the LLC program at the Wolf Swamp School and spoke with Student’s teacher (Doretta Caputo) and the Longmeadow Special Education Supervisor (Ms. Levy). Prior to the observation, Ms. Stevens read IEPS, evaluations, and reports provided to her by Parents. Ms. Stevens did not conduct a formal evaluation of Student, but rather conducted the observation and reviewed records for the purpose of considering Student’s functioning within his educational program and whether the program was appropriate for Student. Testimony of Stevens.
Ms. Stevens testified that she observed that Student’s teacher and aide made efforts to stabilize Student’s head so that he could participate in a reading activity. She noted that Student’s activities within the classroom were isolated from the other students and that Student did not appear to have a functioning peer group. Testimony of Stevens.
Ms. Stevens testified that, in her opinion, the LLC program was lacking in the following ways:
· Physical mobility, self-help skills, independence skills and other skills were taught in isolation and not integrated into the day where appropriate (for example, when using the bathroom).
· Interaction of Student with the other students in the classroom was very limited.
· Opportunities for development of expressive skills was severely lacking.
· Content of the direct instruction was “severely” lacking in that the amount of information given to him was “extremely” limited and was provided at a very low functional level (for example, there was no reading to him).
After much searching and with consultation with Parents, Longmeadow was able to identify Franciscan Children’s Hospital as appropriate to conduct a comprehensive, independent evaluation of Student. Parents agreed that Franciscan Children’s Hospital should conduct this evaluation. Testimony of Levy.
On May 9, 2008, while the parties were waiting for the evaluation by Franciscan Children’s Hospital (the evaluation occurred six months later in November 2008, as discussed below), the parties entered into a “Preliminary Interim Agreement” to implement an “interim educational program” as an “agreed amendment to [Student’s] last proposed IEP, dated February 11, 2008”. The agreement states that the parties intend this “interim program” to “remain in effect while they wait for the results” of the Franciscan evaluation “and the Team meeting to review these [evaluation] results.”
The parties’ agreement includes the following six parts:
1. Student is to return to Kamp for Kids for his summer program, with the same services and placement as in 2007, “except that Longmeadow will ask Kamp for Kids to assign an aide to [Student], instead of using Mr. Liese.”
2. Student’s placement is to be at the Williams Middle School unless the parties agree otherwise.
3. Student will receive at least the current level of consultation services and at least the following related services:
A. Services of a speech-language pathologist for a half hour each day;
B. Services of a physical therapist for a half hour each day, but if Halina Sullivan provides some or all of the services, the services may be of a different duration, provided that they total 150 minutes per week;
C. Adaptive physical education services for a half hour twice per week;
D. Occupational therapy services to be provided by Longmeadow’s “District Occupational Therapist” for a half hour three times per week.
4. Student’s special education teacher will not be Doretta Moreau.
5. Student’s assigned aide will not be Dan Liese, and instead Student will be assigned a Basic Skills Instructor who will receive “direct preliminary training and ongoing consultation” from a physical therapist, a speech-language pathologist, an occupational therapist, and an assistive technology consultant.
6. The recommendations contained in the “Alternative Access evaluations” will be implemented to the extent that they are “acceptable” to Parents, and Longmeadow is to “contract for whatever increased consultation [from Alternative Access that] is needed for implementation and training, as recommended by Alternative Access.”
Exhibit P-81; S-67. Mother testified, and there was no contradictory evidence, that the parties later agreed that occupational therapy services may be provided for 45 minutes twice per week, rather than for a half hour three times per week as reflected within the above agreement. Testimony of Mother.
With respect to the sixth part of the agreement, above, by e-mail dated August 3, 2008 to Ms. Levy, Mother accepted a number of specific recommendations contained within Alternative Access evaluations dated March 2007 and June 2007. In this e-mail, Mother stated that any recommendations by Alternative Access “not specifically mentioned here, should be presumed to be unacceptable to us.” Exhibit P-119.
By e-mail exchange between Mother and Linda Smith of Alternative Access on June 28 and 30, 2008, Mother and Ms. Smith agreed that Student would receive “twice a week for 2 hours” of computer training in the spring and possibly more during the summer. Testimony of Mother; exhibit P-121.
As noted above in the parties’ agreement, Longmeadow had agreed that Student’s aide would not be Mr. Liese. However, Ms. Levy testified that in May 2008, she called the director of the camp that Student would be attending for the summer of 2008. The camp director explained to Ms. Levy that the camp was no longer allowed to hire a 1:1 aide for a camper, and therefore Longmeadow would have to hire the aide. Ms. Levy explained that she then searched for an appropriate summer aide for Student, and Mr. Liese was the only person she was able to identify who was interested in the position, other than a person with little experience. Because Student required an aide in order to attend camp and with Parents’ consent, Ms. Levy hired Mr. Liese for this purpose. Ms. Levy testified that over the course of the summer, she spoke regularly with Mr. Liese and no unanticipated problems were reported. She stated that Mr. Liese did a good job as Student’s aide during the summer. Testimony of Levy, Mother.
Mother testified that in June 2008, Parents brought a conductor to their home to provide Student with conductive therapy for one month. A video taken during this conductive therapy shows Student standing with support. Mother testified that when the therapy began, Student did not have the same level of skills and abilities that he demonstrated in 2003-2004, but after several weeks of conductive therapy in June 2008, Student improved and was able to sit independently while holding on to something. Testimony of Mother; exhibit P-137.
6. 2008-2009 school year (6 th grade)
For 6 th grade, Student’s placement changed from the LLC program, to the Williams Middle School. Student’s educational program was created specifically for him. With the exception of music, Student was with a full-time special education teacher who worked with him on a 1:1 basis. Student’s special education teacher for this year was Carrie Kinney who was hired specifically to work with Student. Student began the year with a part-time 1:1 aide. Student participated in regular education music class, and he joined the chorus (Student loves music). Testimony of Mother, Kinney.
Ms. Kinney testified that during the beginning of 6 th grade, Student’s walker was too small for him, with the result that he was not able to use it, although there is an entry in the home-school journal for November 4, 2008 that indicates that Student was using the walker. She explained, however, that by giving Student full body support and with the help of the physical therapist, they were able to work on Student’s walking. Testimony of Kinney; exhibit P-134.
The Franciscan Children’s Hospital evaluation occurred in November 2008, and after completion of the written evaluation report, it was reviewed at an IEP Team meeting on February 12, 2009 although there was conflicting testimony as to whether the Team completed review of the Franciscan evaluation. A physical therapist did not attend the Team meeting; Mother testified that Parents did not excuse her absence. Testimony of Mother, Kinney, Mirer; exhibits P-84, P-144, P-148, S-63, S-64.
The Franciscan Children’s Hospital written report included the following recommendations:
· Student should be placed within a highly specialized program for children with complex medical conditions affecting their functioning, with continued support from a 1:1 aide. The evaluator concluded that Student’s “overall impaired functioning warrant placement in a self-contained classroom that is designed to address the needs of a mentally retarded/cognitively deficient student.”
· Speech-language services should continue at the then-current level of service delivery. The report did not reference the amount of current services being provided.
· The speech-language portion of the evaluation further recommended that Student’s ability to use augmentative and alternative communication systems be improved.
· Occupational therapy should continue at the then-current level of service delivery, which the report noted was 45 minutes twice per week.
· Physical therapy should continue at the then-current level of service delivery, which the report noted was 45 minutes three times per week. The physical therapy portion of the evaluation further opined that Student would benefit from adaptive physical education and recommended that Student participate in community-based programs that encourage mobility and physical activity.
Exhibit S-61.
Another Team meeting occurred on March 4, 2009. During this meeting, the Team discussed Student’s placement and whether Student required a full-time 1:1 aide. Meeting notes indicated that Parent believed that placement at the Williams School would be appropriate, but that the Longmeadow members of the Team (except for the adaptive physical education teacher) recommended that Student be placed in a structured program. Also during the meeting, the Team agreed, based upon a recommendation from Ms. Kinney, that Student’s aide should be changed from a part-time to a full-time aide and that this should be reflected in the IEP. A full-time aide began at the end of March 2009. Testimony of Mother, Kinney, Masciadrelli, Levy; exhibits P-84, P-144.
As a result of the Team meetings on February 12, 2009 and March 4, 2009, an IEP was proposed for the period 2/12/09 to 2/11/10 (exhibits P-148, S-64). This IEP is similar to the above-discussed IEP for the period 2/11/08 to 2/12/09 (exhibit P-147), with the following principal differences:
· assistive technology consultation was changed back from one hour every two weeks to one hour every week,
· the program consultation was dropped from the IEP,
· socialization in the mainstream with support from a teacher assistant for 45 minutes each day was dropped from the IEP,
· speech-language services may be provided by a speech-language pathologist (SLP) or speech-language pathologist assistant (SLPA), as compared to the previous IEP which called for these services to be provided by an SLP,
· summer services from a SLP/SLPA were added back into the IEP,
· speech-language/occupational therapy group of half hour once per week was dropped from the IEP,
· occupational therapy was changed back from a half hour three times per week to 45 minutes twice per week, and
· speech-language services (half an hour four days per week) and physical therapy (45 minutes twice per week) remained unchanged.
The placement on the IEP was continued at the Williams Middle School through the end of 6 th grade (2008-2009 school year), but was changed to the Lower Pioneer Valley Educational Collaborative (LPVEC) for 7 th grade (2009-2010 school year).
Mother testified that in May 2009, Parents brought a conductor to their home to provide Student with conductive therapy for one month. A video taken during the conductive therapy shows Student standing while holding on to something while receiving minimal support from others. Testimony of Mother; exhibit P-138.
Ms. Levy testified that she hired Mr. Liese to be Student’s aide for camp during the summer of 2009. Ms. Levy testified that over the course of the summer, she spoke regularly with Mr. Liese and did not recall any problems. Testimony of Levy.
7. 2009-2010 school year (7 th grade)
For Student’s current academic year (7 th grade), Student continued with his program at the Williams Middle School, being taught by a full-time 1:1 special education teacher, with the assistance of a full-time 1:1 aide. For this school year, Longmeadow changed Student’s 1:1 special education teacher from 6 th grade, hiring Ms. Nicole Paris-Kro for this purpose.
For 7 th grade, Student was provided two part-time substitute aides (equaling one full-time aide) at the beginning of the year. At the end of November 2009, Longmeadow hired Kate Mard to work with Student as his one full-time 1:1 aide. Testimony of Fontaine.
Jeffrey Forman, MD, sent a letter, dated September 25, 2009, to Longmeadow’s Special Education Supervisor (Jean Fontaine) who was then responsible for overseeing Student’s education. Dr. Forman began his letter by explaining that he is a physician concerned with the functional and rehabilitation needs of children, and that he has “treated [Student] and marked his progress for many years.” Dr. Forman’s letter continued that he has observed Student’s responses to a number of therapeutic approaches over the course of his life and that he has “personally witnessed and measured the gains that he enjoyed as a direct result of his conductive education program, and, conversely, the regression and losses during the time he has been deprived of this intervention. His current functional status is but a shadow of his former abilities.” Exhibit P-118.
Dr. Forman’s letter then recommended that “an appropriately aggressive restorative program, on the order of daily direct, hands-on therapy (5 days a week), be initiated by at least an RPT [registered physical therapist] and trained PT aide.” The letter further stated: “Even more desirable would be a collaboration between the school system and his conductive education providers, it at all possible.” Exhibit P-118.
On October 15, 2009, there was an IEP Team meeting to review Dr. Forman’s letter and its recommendations for services. Ms. Fontaine testified that a second purpose of the Team meeting was to develop an IEP that, to the extent possible, was agreeable to both parties and reflected what services and placement were actually being provided by Longmeadow. Testimony of Mother, Fontaine.
As a result of the meeting, an IEP was proposed for the period 2/12/09 to 2/11/10 (exhibits P-149, S-71). A more complete description of the IEP may be found in the Facts section, above (see, specifically, Most Recently Proposed IEP, which is part IV B). The special education and related services proposed in the IEP may be summarized as follows:
· science in a regular education classroom, with support from special education staff, for 50 minutes each day (science is also to be taught to Student by a special education teacher in a substantially-separate classroom for a half hour daily);
· all other academic services to be provided by a special education teacher within a substantially-separate classroom (this includes English language arts for 45 minutes daily, math for 45 minutes daily, social studies for a half hour daily, and an educational assistant providing assistance to Student in the classroom for six times 390 minutes per week);
· the following related services to be provided on a 1:1 basis:
· · occupational therapy from a registered occupational therapist for 45 minutes twice each week,
· · speech-language services from a speech-language pathologist or speech-language pathologist assistant (SLP/SLPA) for a half hour each day,
· · physical therapy from a physical therapist for a half hour each day,
· assistive technology services from a technology consultant for an hour each week;
· on-going daily living skills instruction from a special education teacher;
· adaptive physical education from an adaptive physical education instructor for a half hour twice each week;
· consultation services in the areas of occupational therapy (half hour per month) and physical therapy (15 minutes each week);
· the following summer services from 7/7/09 to 8/21/09:
· · speech-language services from an SLP/SLPA for a half hour twice per week,
· · occupational therapy from occupational therapy staff for 45 minutes twice per week,
· · physical therapy from a physical therapist for 45 minutes twice per week, and
· · academics and social development for five days per week for seven weeks.
· compensatory services of physical therapy from a physical therapist for a half hour three times per week.5
This IEP proposed Student’s continued placement at the Williams Middle School. By e-mail dated May 2, 2009, Parents accepted only the summer sessions at Kamp for Kids and otherwise have not accepted or rejected this IEP in writing. Mother testified that she believed that Parents had rejected this IEP except for the Kamp for Kids services. Testimony of Mother; exhibit P-132, P-149, S-71.
Ms. Fontaine testified that during the October 15, 2009 Team meeting, she offered another assistive technology evaluation since Parents were not allowing any augmentative communication devices to be used; but Mother declined the evaluation. Ms. Fontaine testified that the IEP Team considered conductive therapy for Student, but that the school-based members of the Team did not believe conductive therapy to be an appropriate therapy and did not recommend that it be included within the IEP. Ms. Fontaine testified that during the Team meeting in October 2009, the one area where Mother seemed pleased was Student’s progress regarding toileting. Mother testified that several changes in the service delivery grid (for example, changing assistive technology from a consultation service to a direct service) were not discussed during the Team meeting. Testimony of Mother, Fontaine.
Mother testified that currently, on a good day, her son can stand independently with legs bent for five to ten seconds, he cannot sit independently, he can assist with feeding, he gets to the bathroom on time, his signs are returning and his use of the bathroom sign is improving, and he does not speak at all. Mother further explained that Student understands much of what is said to him, he understands humor, he can do things (such as throwing food on the floor) to be funny, he expresses emotions (such as being happy), and he can express his preferences. Testimony of Mother.
V. LEGAL STANDARDS
It is not disputed that Student is an individual with a disability, falling within the purview of the federal Individuals with Disabilities Education Act (IDEA)6 and the Massachusetts special education statute.7 The IDEA was enacted “to ensure that all children with disabilities have available to them a free appropriate public education [FAPE] that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living.”8 FAPE must be provided in the least restrictive environment.9
FAPE is defined by the IDEA to include state educational standards, which may exceed the federal floor .10 The Massachusetts educational standards are found within state statute and state education regulations and include a FAPE requirement.11
FAPE does not require a school district to provide special education and related services that will maximize a student’s educational potential.12 Similarly, the educational services need not be “the only appropriate choice, or the choice of certain selected experts, or the child’s parents’ first choice, or even the best choice.”13 A school district is generally given discretion to determine the appropriate methodology so long as the selected methodology is likely to allow the student the opportunity to receive FAPE.14
The Supreme Court has explained that for purposes of providing FAPE under the IDEA, “Congress sought primarily to make public education available to handicapped children and to make such access meaningful.”15 As explained in more detail below, this overarching principle of “meaningful” access to public education may be understood, more specifically, as requiring a school district to develop an individualized education program or IEP that allows the student the opportunity to make meaningful and effective progress commensurate with his educational potential.
Student’s right to FAPE, including compliance with both state and federal standards, is assured through the development and implementation of the individualized education program or IEP.16 Each IEP must be “custom tailored to address the handicapped child’s unique needs in a way reasonably calculated to enable the child to receive educational benefits.”17 The appropriateness of the IEP is judged as of the time when it is proposed—that is, whether the IEP was “ objectively reasonable … at the time the IEP was promulgated.”18
An IEP must be developed which is “reasonably calculated to enable the child to receive educational benefits.”19 And, “meaningful progress … is the hallmark of educational benefit under the [federal] statute.”20 The IDEA further requires that special education and related services be designed to result in progress that is “effective”.21
Massachusetts special education regulations similarly provide that specially designed instruction and related services described within the IEP must be sufficient “to enable the student to progress effectively in the content areas of the general curriculum.”22 And, Longmeadow’s proposed IEPs for Student are framed in terms of his receiving specially designed instruction and accommodations “necessary for the student to make effective progress.” Exhibits P-1, P-3, P-147, P-148, P-149, S-28, S-51, S-55, S-64, S-71. Massachusetts also requires that the special education services be designed to develop a student’s educational potential.23
The Supreme Court has further clarified that the “determination of when handicapped children are receiving sufficient educational benefits to satisfy the requirements of the [IDEA] presents a more difficult problem” than a simple recitation of the applicable legal standards.24 This is because “[ i]t is clear that the benefits obtainable by children at one end of the spectrum will differ dramatically from those obtainable by children at the other end, with infinite variations in between .”25 Thus, “levels of progress must be judged with respect to the potential of the particular child.”26
In the instant dispute, Parents have the burden of persuasion that Longmeadow’s proposed IEPs were not appropriate and that Longmeadow failed to provide the requisite services pursuant to those IEPs, any IEP amendments, and any agreements among the parties. On the other hand, Longmeadow seeks a change in the placement identified by Longmeadow in its most recently-proposed IEP while Parents take the position that the proposed placement is appropriate and should not be changed. Therefore, Longmeadow is the party seeking relief on this limited issue and bears the burden of persuasion.27
VI. DISCUSSION
A. Appropriateness of the services in the five disputed IEPs
The following five proposed IEPs are at issue in this dispute: IEP for the period 5/9/06 to 5/9/07 (exhibits P-3, S-28), IEP for the period 11/13/07 to 11/12/08 (exhibits P-1, S-51), IEP for the period 2/11/08 to 2/12/09 (exhibits P-147, S-55), IEP for the period 2/12/09 to 2/11/10 (exhibits P-148, S-64), and a later-developed IEP for the same period of 2/12/09 to 2/11/10 (exhibits P-149, S-71). As discussed above, the parties agreed that Longmeadow need not propose any further IEPs until the instant Decision is issued.
1. IEP for the period 5/9/06 to 5/9/07
I begin with consideration of the first of these five IEPs, and will then discuss the remaining four IEPs as a group. The first IEP (for the period 5/9/06 to 5/9/07) called for the following special education and related services:
· placement within a substantially-separate classroom where he received all of his academic, socialization and daily living instruction;
· the following related services that were provided on a 1:1 basis:
· · speech-language services from a speech-language pathologist for a half hour each day,
· · feeding skills instruction from a registered occupational therapist for a half hour twice each week, and
· · physical therapy from a physical therapist for 45 minutes three times per week;
· socialization in the mainstream with support from a teacher assistant for 45 minutes each day;
· adaptive physical education for a half hour each twice each week;
· seven weeks of summer services in the areas of academics, speech-language therapy, and physical therapy;
· consultation services in the areas of assistive technology (an hour each week), occupational therapy (a half hour each month), physical therapy 15 minutes each week) and program consultation (an hour each week).
The IEP called for placement at the LLC classroom at Longmeadow’s Wolf Swamp Road School. Exhibits P-3, S-28.
By letter dated February 8, 2007, Parents accepted the services described within this IEP, except that Mother stated that she did not agree to changing the occupational therapy consultation from one hour to a half hour per month, that it was not necessary to list socialization as a direct service, that she did not agree to reducing the summer physical therapy services from three and a half hours per week to an hour twice per week, and that summer occupational therapy services should be added. Testimony of Mother; exhibits P-3, P-60, S-28. As a result of Parents’ acceptance of these services, this IEP became, for purposes of the instant dispute, the last-accepted IEP.
The general and well-settled rule is that acceptance of an IEP precludes the Hearing Officer from considering its appropriateness.28 There are exceptions to this rule. For example, federal regulations under the IDEA define a parent’s consent to include that the “parent has been fully informed of all information relevant to the activity for which consent is sought.”29 And, the First Circuit has found this regulatory definition of consent to apply to a parent’s consent to (or acceptance of) an IEP.30
However, in the instant dispute, Parents have made no claim that their consent was ineffective, nor am I aware of anything within the instant dispute that would support an exception to the general rule. Parents cannot, on the one hand, accept the IEP, thereby indicating that they agree with goals and objectives and the types and amounts of services reflected within that IEP, and then, at a later time after the IEP has been implemented, complain that the types and amounts of services accepted within the IEP should have included additional or different services or that the goals and objectives are inappropriate. In short, Parents cannot now dispute the appropriateness of the accepted portions of the IEP for the period 5/9/06 to 5/9/07.
Those parts of the IEP that were not accepted relate to occupational therapy consultation and summer services. There was no evidence regarding the extent of Student’s need for occupational therapy consultation services or for summer services, and how those needs should be met.31 Parents therefore failed to meet their burden of persuasion regarding the inappropriateness of these parts of the IEP that were rejected.32
For these reasons, I need not further consider the appropriateness of this IEP (exhibits P-3, S-28).
2. Remaining Four IEPs: In General
I turn to the remaining four IEPs which are as follows: IEP for the period 11/13/07 to 11/12/08 (exhibits P-1, S-51), IEP for the period 2/11/08 to 2/12/09 (exhibits P-147, S–55), IEP for the period 2/12/09 to 2/11/10 (exhibits P-148, S-64), and IEP for the same period of 2/12/09 to 2/11/10 but developed at a later Team meeting (exhibits P-149, S-71).
In addition, the parties entered into a “Preliminary Interim Agreement” on May 9, 2008. The parties’ agreement was intended as an amendment to the then-proposed IEP which had been proposed for the period 2/11/08 to 2/12/09, with the result that this IEP was in effect from 2/11/08 until the date of the Agreement (i.e., 5/9/08).
The parties’ agreement was in effect from its signing date of May 9, 2008. Under the terms of the agreement, it was intended to continue in effect until the IEP Team considered the Franciscan Children’s Hospital evaluation, which occurred on February 12, 2009. (There is a dispute regarding the end date of the agreement. This dispute will be discussed below in part VI C 1.)
I also note that Longmeadow’s last-proposed IEP was developed at an IEP Team meeting on October 15, 2009 and was signed for Longmeadow by Ms. Fontaine on November 30, 2009. This IEP was for the same time period as the previously-proposed IEP—that is from 2/12/009 to 2/11/10. As a result, this IEP, as of November 30 th , effectively changed the proposed services from November 30 th forward.
With all of this in mind, the IEPs and agreement, together with their effective dates may be summarized as follows:
· IEP for the period from 11/13/07 until 11/12/08 was in effect for the same time period (exhibits P-1, S-51) (hereinafter, “first IEP”);
· IEP for the period 2/11/08 to 2/12/09 was in effect from 2/11/08 until 5/9/08 (exhibits P-147, S-55) (hereinafter, “second IEP”);
· the parties’ agreement effectively created an IEP amendment that was in effect from its signing on 5/9/08 until 2/12/09 which is the date of the next IEP (exhibits P-81, S-67);
· IEP for the period 2/12/09 to 2/11/10 was in effect from 2/12/09 until 11/30/09 which is the effective date of the subsequent IEP (exhibits P-148, S-64) (hereinafter, “third IEP”), and
· IEP for the same period of 2/12/09 to 2/11/10 was in effect from 11/30/09 to 2/11/10 (exhibits P-149, S-71) (hereinafter, “fourth IEP”).
In reviewing the appropriateness of these four IEPs, I will consider the IEPs together because many of the educational services are similar or identical, and it will be most efficient to discuss in one place the common aspects of these four IEPs.
3. Remaining Four IEPs: Speech-Language, Physical Therapy, Occupational Therapy
I begin by focusing on the related services of speech-language, physical therapy, and occupational therapy in the four IEPs and the parties’ agreement. These services may be summarized as follows:
· · With respect to speech-language services, within the first and second of these four IEPs, these services were to be provided for a half hour four days per week, the services were increased to a half hour each day in the Agreement, the services were reduced back to a half hour four days per week in the third IEP, and within the fourth IEP, the services were to be provided for a half hour each day.
· · With respect to physical therapy, within the first of the four IEPs, this therapy was to be provided for 45 minutes three times per week, this was increased to a half hour each day in the second IEP and in the Agreement, the services were reduced to 45 minutes twice per week in the third IEP, and then the services were returned to the higher level of a half hour each day in the fourth IEP.
· · With respect to occupational therapy, within the first IEP of the four IEPs, this therapy was to be provided for 45 minutes twice each week, this was changed to a half hour three times per week in the second IEP and in the Agreement, and the services were changed back to 45 minutes twice per week in the third and fourth IEPs.
These three areas of related services, as provided to Student, have been intended to address Student’s basic functional abilities and skills, including vocalization, sign communications, activities of daily living (such as feeding and toileting), sitting, standing, walking, and driving his wheelchair. It is not disputed that Student has severe educational needs in each of these areas and is entitled to receive related services of speech-language, physical therapy, and occupational therapy to address them.
As made clear from the discussion of legal standards (see part V, above), a central consideration in determining the appropriateness of an IEP is whether the IEP is reasonably calculated to result in effective or meaningful progress commensurate with Student’s educational potential. Also as discussed above in part V, the appropriateness of the IEP is judged as of the time when it is proposed .
In general, Student has made no meaningful or effective progress in basic areas of functional abilities and skills over the period of time covered by these four IEPs and the parties’ agreement. The principal exceptions are feeding where it is not disputed that Student has made substantial and effective progress and, more recently, toileting. I note that in the area of feeding, Mother has likely made a substantial contribution to Student’s progress. The skill areas where there has been regression or lack of progress are fundamental to Student’s overall educational development. I will summarize below the evidence demonstrating lack of substantial progress.
When comparing Student’s abilities in 2003 with his abilities at the time of the evidentiary hearing, he has regressed in the areas of sitting (he could sit independently but can no longer do so), standing (he could stand with less assistance than currently), walking (he could walk with less assistance than currently), vocalization (he could vocalize a few words but does not speak currently; his vocalization of sounds in general has not improved), and signing (he could reliably use four signs but currently only reliably uses two signs). Testimony of Mother.
This regression and general lack of progress is documented through the descriptions of Student’s current level of functioning and his goals and benchmarks on the relevant IEPs themselves. The testimony of Parents’ experts (Ms. Jarosz and Ms. Stevens) generally confirmed this regression and lack of progress in the areas noted above. And the written report of Parents’ expert (Dr. Cianciulli’s) concluded that Student “experiences an alarming delay with his adaptive functioning.” Testimony of Mother, Jarosz, Stevens; exhibits P-21, S-39.
Similarly, the testimony of the Longmeadow witnesses who have been providing this therapy to Student generally confirmed Parents’ position. Student’s current speech-language pathologist (Ms. Masciadrelli) testified that she has provided speech-language services to Student since the summer of 2008. Throughout this time period, Ms. Masciadrelli has continued to work with Student on his four signs, using the “yes” and “drink” signs consistently and independently but continuing to work on the “no” sign—he needs hand-over-hand assistance to sign “no”. Ms. Masciadrelli explained that other signs (for example, for illness or pain) reflected in IEPs have not been worked on because Student is still working on developing his existing four signs. Ms. Masciadrelli testified that there have been areas of marginal improvement—for example, with respect to his lip seal and sound-making abilities, but it is notable that there has been no meaningful progress regarding his signing abilities, and he has regressed with respect to tongue thrust and swallowing skills. One of Student’s two current physical therapists (Ms. Kniska) testified that she has been providing physical therapy to Student since November 2009 to work on his sitting to standing, rolling over, balance, stretching, sitting, and transferring from one position to another. No substantial progress has been observed. Student’s current occupational therapist (Ms. Mirer) testified that she has been providing occupational therapy to Student from March 2008 through the present, and that during this time she has observed that Student has made consistent progress regarding his feeding, but that progress in all other areas addressed through occupational therapy have “waxed and waned”. Testimony of Masciadrelli, Kniska, Mirer; exhibits S-28, S-45, S-58, S-60, S-63, S-81, S-82, S-83, S-84, S-85.
Thus, Parents have satisfactorily demonstrated lack of effective or meaningful progress in many of the areas being addressed by speech-language services, physical therapy, and occupational therapy. Yet, in the instant dispute, demonstration of failure to progress is not, by itself, sufficient to establish inappropriateness of services. This is because, as discussed in greater detail below, there was undisputed, credible evidence that Student may be not making substantial progress in basic skill areas as a result of his physical growth, rather than because of any deficiency of the related services, and because there is no evidence establishing Student’s potential to make educational progress. As discussed in part V above, meaningful and effective progress can only be determined within the context of Student’s learning potential, and this evidence raises substantial questions regarding Student’s capacity to make progress. In addition, Longmeadow provided substantial, undisputed support for the appropriateness of nearly all of its proposed services, and Parents provided no probative evidence that different or additional services would likely have improved Student’s progress over the long term.
Ms. Kniska testified that based on her experience working with other students with severe cerebral palsy, Student may or may not make substantial improvements over time and that it is possible that because of his disabilities, he will require more assistance over time (assistance from equipment and/or from others) to perform the same functions even with appropriate services. She explained that this is because Student’s physical growth makes it more challenging for his body to do what it had been able to do in the past. Testimony of Kniska.
During the hearing, Parents’ occupational therapy expert (Ms. Jarosz) appeared to agree that Student may regress because of his physical growth. Ms. Jarosz was asked the following question: “If a person told you that a child had regressed in what he was able to do due to a growth spurt, do you have an opinion, as a clinician, whether that would be a valid or invalid statement?” In response, she testified as follows: “I think there’s validity — how do I answer that question. I have a feeling that that statement — children, oftentimes they grow. They develop. And they have advances and regressions at different areas.” Testimony of Jarosz (transcript vol. 1, pp. 236-37).
By letter of July 18, 2007 to Mother, David Feingold, MD, wrote that in his capacity as a pediatric physiatrist, he has been treating Student for several years with interventions that have included addressing Student’s spacticity control and physical mobility. Dr. Feingold further stated in his letter that previously, Student was able to stand, take some steps, and hold himself briefly with hand-held support, while as of the date of the letter, Student’s “postural control was not as impressive and he is unable to assist meaningfully in transfers.” Dr. Feingold explained that Student’s “decline in status … is not uncommon as children age given the increase in body size and difficulty handling increased motoric tasks.” Exhibit P-18. Although this letter has limited probative value by itself (for the reasons explained below), I consider it for purposes of supporting the above-described testimonial evidence.
As noted above in part V of this Decision, Parents have the burden of persuasion. However, other than establishing Student’s lack of significant progress in important areas being addressed by the three related services of speech-therapy, physical therapy, and occupational therapy, Parents have provided no expert testimony or evaluation report concluding that any of these services, as proposed in the four IEPs was inappropriate—for example, that the related services were not sufficiently intensive, that the related services should have been improved in some other way, or that alternative educational or therapeutic services should have been provided.
Also, there is no evidence of probative value that any alternative therapies or services would have allowed Student to make greater progress in the past or would allow him to do so prospectively. (In a separate section following this section, I will discuss the evidence regarding conductive therapy, which is the alternative educational service proposed by Parents.) Thus, even were Parents to persuade me that the IEPs at issue were inappropriate because they were not reasonably calculated to result in sufficient progress, there would be insufficient showing of what services should have been provided in the past (and therefore how Student was harmed by not receiving these services) or what services should be provided to Student prospectively.
Parents did not provide an expert witness or an evaluation report for purposes of establishing the inappropriateness of Longmeadow’s proposed services or for purposes of establishing the appropriateness of alternative or additional services. Parents had two expert witnesses (Ms. Stevens, Ms. Jarosz). Neither witness provided expert testimony regarding the appropriateness of the speech-language services, physical therapy or occupational therapy for Student.33
Instead, Parents rely on two letters (that have limited probative value) and non-expert testimony of witnesses (for example, Mother). I will discuss this evidence below.
In his letter to Mother, dated July 18, 2007 (discussed above), Dr. Feingold wrote that in his capacity as a pediatric physiatrist, he has been treating Student for several years with interventions that have included addressing Student’s spacticity control and physical mobility. Dr. Feingold’s letter continued by stating that his goals for Student would be to improve his “standing tolerance”, his “motor control and strength”, and to increase his ability to tolerate postural changes as he grows.” In light of this, Dr. Feingold recommended daily physical therapy, which would likely have a “direct impact on his goals and would be quite productive both physically and academically.” Also recommended were that Student’s aide be trained in some of the physical therapy goals established by the physical therapist, and that the aide be supervised by the physical therapist “on a routine basis” and that the physical therapist have a “high level of expertise in neuromuscular disorders and in postural stability as well as strengthening.” Exhibit P-18.
There was no evidence as to when this letter was received by Longmeadow, other than its receipt through Parents’ exhibits for the instant dispute. Exhibit P-18. There is no evidence indicating that Parents asked Longmeadow to consider this letter for purposes of changing Student’s physical therapy services but rather it appears to have been submitted in support of Parents’ case before the BSEA.
A second letter relied upon by Parents is from Jeffrey Forman, MD to Ms. Fontaine dated September 25, 2009. The letter begins by explaining that Dr. Forman is a physician concerned with the functional and rehabilitation needs of children, and that he has “treated [Student] and marked his progress for many years.” The letter continues that Dr. Forman has observed Student’s responses to a number of therapeutic approaches over the course of his life and that he has “personally witnessed and measured the gains that he enjoyed as a direct result of his conductive education program, and, conversely, the regression and losses during the time he has been deprived of this intervention. His current functional status is but a shadow of his former abilities.”
Dr. Forman’s letter then recommended that “an appropriately aggressive restorative program, on the order of daily direct, hands-on therapy (5 days a week), be initiated by at least an RPT [registered physical therapist] and trained PT aide.” Exhibits P-118.
Although Dr. Forman appeared on Parents’ witness list, he did not testify nor did Dr. Feingold. Thus, there was no opportunity for Longmeadow or the Hearing Officer to question Dr. Forman or Dr. Feingold for purposes of understanding better the bases for their opinions. Also, there was no evidence relevant to Dr. Forman’s or Dr. Feingold’s experience or expertise, other than what appears in their letters. And there was no evidence regarding the purpose of the letters, nor is there sufficient information regarding the foundation of their opinions.
Accordingly, little if any probative value can be attached to these two letters regarding their relevance to my determination of Student’s services. Nevertheless, I will consider whether Longmeadow’s related services, as reflected within their proposed IEPs, comport with their recommendations. Both Dr. Feingold and Dr. Forman recommended daily physical therapy for Student.
Soon after Dr. Forman’s letter was brought to Longmeadow’s attention, the IEP Team met on October 15, 2009 for the purpose of reviewing the letter and considering amendments to the IEP. As a result of this consideration, as well as input from Student’s service providers, it was generally concluded that Student’s therapies should be limited in length of time (typically, no more than 30 minutes) because of his limited attention span and energy, but that certain therapies should be provided frequently for purposes of allowing greater benefit for Student. Pursuant to this IEP Team meeting, the previous IEP, which called for physical therapy services for 45 minutes twice each week, was amended so that the most recently proposed IEP calls for physical therapy services of 30 minutes daily. Testimony of Lafontaine; exhibits P-148, P-149.
During the time period in question (from March 22, 2008 to the present), proposed IEPs and the parties’ agreement proposed approximately two and a half hours of physical therapy services per week, except for the third IEP (2/12/09 to 11/30/09) in which physical therapy was proposed for 45 minutes twice per week. The fact that Longmeadow proposed an inappropriate level of physical therapy for this time period of 2/12/09 to 11/30/09 was of no practical consequence to Student and his Parents because on April 8, 2008, Parents had accepted the physical therapy services within the IEP for the period 2/11/08 to 2/12/09, and this acceptance changed physical therapy services to a half hour each day, which obligation has continued in effect through the present. Exhibits P-126, P-147, S-55.
Dr. Feingold’s letter also includes a recommendation that Student’s aide be trained in some of the physical therapy goals established by the physical therapist, and that the aide be supervised by the physical therapist and that the physical therapist have a “high level of expertise in neuromuscular disorders and in postural stability as well as strengthening.” Exhibit P-18.
The Longmeadow’s current physical therapist (Ms. Kniska) testified that when she provides direct services to Student, Student’s teacher and aide are present, and that they incorporate into Student’s day the physical therapy skills that Ms. Kniska is working on. Testimony of Kniska.34
Dr. Feingold’s letter also includes a recommendation that Student’s physical therapist have a “high level of expertise in neuromuscular disorders and in postural stability as well as strengthening.” Exhibit P-18. There was insufficient evidence regarding the qualifications of Student’s physical therapist to know whether this recommendation was met.
Upon a review of all of this evidence, I find that Parents have not sustained their burden of producing probative evidence to demonstrate the inappropriateness of the related services of speech-language services, physical therapy, and occupational therapy, other than the level of physical therapy for the time period of 2/12/09 to 11/30/09, and this was of no practical consequence to Student for the reasons explained above.
On the other hand, Longmeadow provided credible evidence in support of the appropriateness of its proposed related services. I summarize this evidence below.
As discussed within part IV C of the instant Decision, early on during this dispute the parties agreed that Longmeadow would fund an independent comprehensive evaluation of Student at Longmeadow’s expense. After much searching by Longmeadow, it was able to identify Franciscan Children’s Hospital as an appropriate evaluator for this purpose. Parents agreed that Franciscan Children’s Hospital should conduct this evaluation. Testimony of Levy.
The Franciscan Children’s Hospital evaluation occurred in November 2008. Other than the various assistive technology evaluations (that will be discussed separately, below), the Franciscan Children’s evaluation is the most recent evaluation. It is also the most comprehensive evaluation of Student’s varied education-related disabilities and how they should be met. Exhibit S-61.
The Hospital’s written report included the following recommendations regarding Student’s related services:
· Speech-language services should continue at the then-current level of service delivery. The report did not reference the actual amount of current services, but the report generally referenced the service levels within the first IEP, which would have been a half hour four days per week.
· Physical therapy should continue at the then-current level of service delivery, which the report noted was 45 minutes three times per week. The physical therapy portion of the evaluation further opined that Student would benefit from adaptive physical education and recommended that Student participate in community-based programs that encourage mobility and physical activity.
· Occupational therapy should continue at the then-current level of service delivery, which the report noted was 45 minutes twice per week.
Exhibit S-61.
Longmeadow reviewed this evaluation during an IEP Team meeting on February 12, 2009, and proposed the third IEP as a result. The related services within the third and fourth IEPs are at the levels recommended by Franciscan Children’s Hospital (or higher) except that physical therapy services in the third IEP were proposed at 45 minutes twice per week instead of 45 minutes three times per week (and this was later changed to a half hour daily in the fourth IEP).
Longmeadow’s current service providers (with respect to speech-language services, physical therapy, and occupational therapy) testified as to appropriate levels of services.
Ms. Masciadrelli testified that, in her opinion, Student’s skills can be maintained and he can make effective progress with speech-language services of a half hour four times per week, but he would benefit from services for a half hour five times per week. She also recommended that Student receive one session of speech-language services within a small group of students, and this could take the place of one of the 1:1 half hour speech-language sessions currently provided. Testimony of Masciadrelli.
Ms. Kniska testified that she agreed with the recommendation contained within the Franciscan evaluation regarding physical therapy of 45 minutes three times per week. She opined that this currently would be sufficient for Student, assuming that he actually received all of this therapy notwithstanding school holidays, etc. She also testified that, in her opinion, Student’s current level of physical therapy services (half hour each day) is appropriate for him. Testimony of Kniska.
Ms. Mirer testified that she recommended continuation of occupational therapy services at the present level of 45 minutes twice per week. She opined that this level of services is sufficient for Student, particularly where her therapy is carried over into other parts of the day by Student’s teacher and aide. Throughout the time period in question, occupational therapy services have been proposed at essentially this same level. Testimony of Mirer.
The testimony of Longmeadow’s witnesses is consistent with and supportive of the related services set forth within the four IEPs, except that the third IEP proposes physical therapy services of 45 minutes twice per week.
In reviewing this evidence, I find that it supports the appropriateness of the related services of speech-language services, physical therapy, and occupational therapy in the four IEPs, except with respect to physical therapy in the third IEP. I further find that the weight of the evidence is that the third IEP should have proposed physical therapy for at least 45 minutes for three days per week instead of for two days per week. The third IEP was in effect from February 12, 2009 to November 30, 2009. For the reasons explained above, the level of physical therapy for this time period was of no practical consequence to Student because Longmeadow was under a “stay-put” IEP to provide physical therapy services for a half hour daily, which is an appropriate level of services.
4. Remaining Four IEPs: Conductive Therapy
A principal theme in Parents’ requested relief, Mother’s testimony, and Parents’ closing argument is that Student has benefited from conductive therapy, that Longmeadow should have provided (or paid for) this therapy in the past, and that this therapy should be provided by Longmeadow prospectively. In their amended hearing request and during Mother’s testimony, Parents have requested that prospectively conductive therapy be “implemented into” Student’s IEP and that Longmeadow should hire an aide for Student “who has a degree in conductive education”. Parents have also requested reimbursement for their out-of-pocket expenses related to providing conductive therapy. Conductive therapy is the only parentally-proposed alternative or addition to the related services proposed by Longmeadow. Testimony of Mother; exhibit P-80.35
“Conductive therapy” or “conductive education” may be understood as an educational or therapeutic approach that draws heavily on various traditional therapies (and, in particular integrates physical therapy and speech-language services) to facilitate a student’s movement patterns and weight bearing for the purpose of improving functional transitions and functional abilities—for example, sitting, standing, and walking. The services are often provided intensively for a period of time (i.e. for or five hours per day for five days per week over the course of a month or so). It is based on repetition and is focused on specific transitions and functional abilities, and uses very basic handling and equipment. A person who provides conductive education is referred to as a “conductor” and must attend a four-year program of study. Testimony of Mother, Stevens, Jarosz. The terms “conductive therapy” and “conductive education” are equivalent and are used interchangeably in this Decision.
As discussed above in part IV C of this Decision, Parents have provided intensive periods of conductive therapy to Student since 2003. This first consisted of his attending a camp where the services were provided, and in later years, Parents invited a conductor into their home for a month on several occasions. The conductive education was provided by a conductor for four or five hours, for five days per week. Testimony of Mother.
Videos showing Student while conductive therapy was being provided, together with the testimony of Mother and Ms. Jarosz (who viewed several videos), and a letter from Dr. Forman all support the conclusion that Student had greater physical skills and abilities when the videos were taken as compared to Student’s current skills and abilities. Mother has also testified that conductive therapy allowed Student to temporarily re-gain some of the skills and abilities that he has lost over time. Testimony of Mother, Jarosz; exhibits P-136, P-137, P-138, P-139.
I first consider the written evidence in support of conductive therapy, and then review the testimony.
There is no evaluation or report in evidence that recommends conductive therapy for Student. The only written support for conductive therapy appears within Dr. Forman’s letter discussed above. The letter states that Dr. Forman has observed Student’s responses to a number of therapeutic approaches over the course of his life and that he has “personally witnessed and measured the gains that he enjoyed as a direct result of his conductive education program, and, conversely, the regression and losses during the time he has been deprived of this intervention. His current functional status is but a shadow of his former abilities.” Dr. Forman’s letter further states: “Even more desirable would be a collaboration between the school system and his conductive education providers, it at all possible.”
Dr. Forman did not testify, nor did anyone testify regarding his expertise or credentials. As a result, there is no evidence regarding the extent of his knowledge or experience with conductive education. Nor is it possible to know the basis for his conclusion in his letter that Student made gains as a “direct result” of conductive education. Importantly, the letter makes no recommendation regarding the appropriateness or usefulness of providing conductive therapy to Student prospectively or how such services would mesh with the more traditional related services that Longmeadow has provided and proposes to continue to provide. For these reasons, I find that Dr. Forman’s opinion has no probative value for purposes of establishing the appropriateness of Longmeadow providing or paying for conductive therapy for Student.36
Although Mother undoubtedly knows a substantial amount about conductive therapy, it is not disputed that she testified as a layperson rather than as an expert regarding conductive therapy. Her testimony as to what others recommended regarding conductive therapy for her son also has no probative value in terms of establishing expert opinion regarding the appropriateness of this therapy for Student.
Ms. Jarosz testified that she believed that Student would benefit from conductive therapy, but she testified neither as an expert on conductive therapy nor as an expert regarding Student’s educational and therapeutic needs. Ms. Jarosz is a highly experienced occupational therapist and she testified credibly, but she has only a cursory knowledge of conductive therapy. Her experience with conductive therapy is limited to observing conductive therapy approximately five times, with all of the observations occurring more than 16 years ago; she has read about conductive therapy; and she has had clients who pursued this option. Ms. Jarosz also testified that her knowledge and experience of Student is limited to spending approximately two hours observing Student and speaking with Parents several months prior to her testimony on April 27, 2010. She has not reviewed any documents relative to Student, nor did she evaluate Student or speak with any of Student’s service providers. Ms. Jarosz testified that because she has not conducted a formal evaluation of Student, she could not render an opinion regarding Student’s educational or therapeutic needs and how they should be met. For these reasons, I find that Ms. Jarosz’s testimony in support of conductive therapy has no probative value.
Ms. Stevens testified that she was familiar with the research and with articles relative to conductive education, but has never worked with an individual student who was receiving conductive education. Ms. Stevens testified that, based on the research and articles that she has reviewed, conductive education has been shown to result in substantial gains in speech-language, mobility and coordination, and social skills. However, Ms. Stevens did not testify regarding the appropriateness of providing conductive therapy to Student in the past or prospectively. Testimony of Stevens. For these reasons, I find that Ms. Stevens’ testimony in support of conductive therapy has no probative value.
Longmeadow has made it clear both in testimony and in writing that it does not believe that conductive therapy is a valid service, and Longmeadow does not support it. By letter of June 2, 2008 to Mother, Ms. Levy wrote that Longmeadow does not support a program of conductive education for Student. Exhibit S-68. By e-mail to Mother dated April 30, 2009, Ms. Levy wrote that Longmeadow does not recognize conductive education as a form of therapy “due to the fact that there is no scientific evidence to support its long-term success.” Ms. Levy’s message was in response to Mother’s earlier e-mail requesting Longmeadow to reimburse Parents for expenses related to expected costs of conductive therapy arranged by Parents. Exhibit P-133.
Ms. Fontaine testified that conductive therapy is too time-consuming (four or five hours per day) to be taught within a school setting. She noted that the purpose of related services is to allow Student to access the curriculum, and conductive education goes beyond this purpose. Ms. Fontaine testified that during the October 15, 2009 Team meeting, the IEP Team considered conductive therapy, but the school-based members of the Team did not believe it to be an appropriate therapy and did not recommend that it be included within the IEP. Testimony of Fontaine.37
In addition to there being no probative evidence in support of conductive therapy in general for Student, I note that Parents have requested, specifically, that Student’s 1:1 aide be trained in conductive therapy, but it is unclear what training would be required, whether the aide would be expected to actually provide conductive therapy or simply be better equipped to perform the functions of Student’s current aide, and what would be benefits of doing any of this. There was no evidence that such an approach (of training a school district’s aide in conductive therapy) has ever been tried and been found useful with any student, yet this was the principal prospective relief sought by Parents regarding conductive therapy.
I find that there was no testimony from any person with expertise in conductive therapy, and there was no evaluation or written report that recommends it. As a result, Parents have not met their burden of proving that Longmeadow should have offered to provide or pay for conductive therapy for Student in the past or should do so prospectively.
5. Remaining Four IEPs: Assistive Technology
I now turn to assistive technology, including augmentative communication, as proposed within Longmeadow’s proposed four IEPs.
Parents initially refused to allow Longmeadow to conduct an assessment of Student’s need for augmentative communication. On March 22, 2007, Student received an assistive technology evaluation (at Longmeadow’s expense) from Alternative Access.38 The report was authored by Linda Smith, OTR/L BCB, ATP, and Rebecca Chrzan, OTR/L. The evaluation report states, at the outset, that an assistive technology evaluation traditionally entails several components, but at Parents’ request this evaluation would focus only on computer access skills and therefore would not address augmentative communication supports. Testimony of Smith; exhibit S-32.
Ms. Smith testified, and the report reflects, that although the evaluation did not target communication skills (per Parents’ request), “there are many needs in this area” including providing Student with opportunities for social greetings, exploring use of voice output devices, and consistency to facilitate expressive communication skills. Ms. Smith explained that communication is a vital issue for Student, and it is not appropriate to limit Student’s range of communication by denying him assistive technology for purposes of communication. Testimony of Smith; exhibit S-32.
Soon after the March 2007 assistive technology evaluation, Parents requested an alternative communication evaluation, and on June 5, 2007 and June 12, 2007, Student received such an evaluation by Alternative Access (at Longmeadow’s expense) by Ms. Smith and a speech-language pathologist (Teresa Dooley Smith, MS, CCC/SLP). The evaluation explored a number of possible supports and augmentations of expressive communication, including eye gaze (using eye gazing as a means of indicating wants, needs and choices), sign language, voice output supports. The reports’ principal recommendations were that Student would “greatly benefit” from additional, external head support, opportunities to access voice output supports, and consistency with set up and approach during use of augmentative communication supports. Ms. Smith testified that Student is intelligent and has a lot to say, but he has difficulty using sign language. Finally, she recommended that Student be taught additional signs that would be easier, motorically. Ms. Smith testified that Student has the ability to use eye gaze augmentative communication. Testimony of Smith; exhibits S-40, S-49.
A speech-language evaluation of Student in November 2007 by Holyoke Medical Center recommended that Student be allowed to access voice output devices. Exhibits P-16, S-48.
Ms. Smith prepared a list of communication options, dated January 14, 2008, for Student. Testimony of Smith; exhibit P-15.
Ms. Smith testified that she attended an IEP Team meeting on February 11, 2008 during which she recommended continued use of a computer for Student, as well as head support and use of augmentative communication, including voice output and talking symbols. Ms. Smith testified that Parents did not agree with her recommendations regarding head support and voice output devices. Testimony of Smith; exhibit S-54.
By e-mail dated August 3, 2008 (but transmitted on August 5, 2008), Mother wrote to Ms. Levy accepting certain recommendations (and rejecting others) contained within the Alternative Access evaluations of March 2007 and June 2007. The e-mail further stated that any Alternative Access recommendations “not specifically mentioned here … should be presumed to be unacceptable to us.” Exhibits P-119, S-72.
Ms. Smith and Ms. Chrzan conducted an assistive technology evaluation update in February 2009. The update described Student’s use of assistive technology and then made the following three suggestions: (1) the IEP Team should decide the amount of continued assistive technology support, (2) Student should continue to have computer access opportunities, and (3) further options should be explored regarding head supports for Student. Ms. Smith continued to consult to Longmeadow regarding Student’s assistive technology needs. Testimony of Smith; exhibits P-124, S-62.
Ms. Smith testified that since her initial evaluations in 2007, she has continued to recommend a total communication approach, whereby Student has the opportunity to use all available communication opportunities and supports that are appropriate for him, and she particularly recommends that voice output devices be used to assist Student to express himself.
Near the beginning of the current school year, Student’s teacher (Ms. Paris-Kro) began using voice-output communication devices with Student, specifically Tech Talk (communication device with eight buttons for relaying messages) and Big Mack (a button that Student could push so that a recorded message would then be spoken to a peer or adult). She continued their use for four or five months. Ms. Chrzan testified that she observed Student using these devices in school, which he seemed to enjoy, and she has continued to recommend that Student use these devices. She also has recommended a dynamic voice output device for Student, which would require additional skill-building by Student prior to its use. Testimony of Chrzan, Paris-Kro.
Ms. Fontaine testified that during the October 15, 2009 Team meeting, she offered another assistive technology evaluation since Parents were not allowing any augmentative communication devices to be used; but Mother declined the evaluation.
In December 2009, Mother observed the use of the voice-output communication devices at school. Mother testified that these devices offered no benefit to Student. Pursuant to a March 3, 2010 e-mail to the Longmeadow Director of Pupil Services (Ms. Bertrand), Mother expressly forbid the “use of any communication device” unless Longmeadow received a “signed IEP from me stating otherwise.” Mother’s e-mail directed Longmeadow to “cease using these types of devices immediately.” Ms. Bertrand’s return e-mail of March 5, 2010 stated that Longmeadow would refrain from using such communication devices notwithstanding Longmeadow’s belief that such devices “provide him with a viable means of communication” and are in his best interests. All voice-output communication devices were then removed from Student’s classroom. Testimony of Mother, Fontaine, Paris-Kro; exhibits P-131, S-74.
The most recently-proposed IEP for Student calls for augmentative communication, including the use of voice output devices. Exhibits P-149, S-71.
I turn now to additional expert testimony and evaluation reports regarding the importance of assistive technology, including augmentative communication, for Student.
In the neuropsychological evaluation conducted for Parents in June 2007, Dr. Cianciulli wrote that Student’s lack of ability to communicate his needs and wishes was of “great concern”, because this “condemns him to be completely dependent on others and precludes him the possibility to express even very simple needs or wishes.” Dr. Cianciulli further wrote that “ by now [emphasis in original]” Student should have been trained “to express his needs through alternative channels of communication and at his age level he should be engaged in exploring more sophisticated ways to express more complex thoughts. Dr. Cianciulli’s report emphasized that “[p]roviding [Student] with an effective communication system should be the priority in this plan of interventions.” Exhibits P-21, S-39.
Parents’ principal expert (Ms. Stevens) testified that Student has a major need to develop expressive language or other expressive skills so that he can have interactions with others and so that he can make known his needs, wants and thoughts. She testified that in February 2008 when she observed Student, he needed a combination of communication approaches, including signs, verbalization (i.e., speech), and augmentative communication devices (for example, voice output devices)—in short, anything that can be used to facilitate Student’s communication would be good for him. In general, she concluded that Student needed far broader opportunities to express himself through a range of options so that he can communicate and make known his choices, requests and needs. She recommended that a variety of communication technologies be tried out to see what would be effective and useful for Student with consistent use of communication approaches and devices, to the extent appropriate, between home and school. Ms. Stevens expressed concern, in particular, that during her observation there were no augmentative communication devices, including voice output devices, for Student. Testimony of Stevens.
The November 2008 Franciscan Hospital’s written report included a recommendation that Student’s ability to use augmentative and alternative communication systems be improved. Exhibit S-61.
In sum, the uncontradicted and overwhelming weight of the expert testimony and evaluations supports Longmeadow’s and Ms. Smith’s proposed communication accommodations and makes clear the necessity of Student receiving a “total communication” approach—that is a full range of communication options in order to maximize his opportunities to communicate his thoughts, needs, and desires. I find that such an approach as proposed by Longmeadow is essential for Student to receive FAPE, but has not been accepted by Parents. I conclude that a full range of augmentative communication, including the use of voice output devices, must be provided to Student in order for him to receive FAPE.39
I further note that (1) the most recent assistive technology evaluation was in the form of an update in February 2009, (2) during the October 15, 2009 Team meeting, Ms. Fontaine offered another assistive technology evaluation since Parents were not allowing any augmentative communication devices to be used but Mother declined the evaluation, and (3) in their closing argument (page 42), Parents have requested that Student be reevaluated for purposes of assistive technology and augmentative communication and that the evaluation be conducted by a provider other than Longmeadow’s current provider ( Alternative Access ).
In light of (1) the unanimous opinion of the experts and reports that assistive technology (including augmentative communication such as voice output devices) are critically important for Student’s educational development, (2) Student’s very limited development in this area, and (3) the agreement of Ms. Fontaine and Parents that further evaluation is warranted, Longmeadow shall, as quickly as possible, arrange for a comprehensive assistive communication evaluation that includes, but is not limited to, augmentative communication. Longmeadow shall choose the evaluator, but prior to making this decision, Longmeadow shall consult with Parents as to whether Alternative Access or some other service provider will conduct this evaluation.
I provide the following additional guidance, which should not be considered to be required in order for Student to receive FAPE, but which I propose the parties seriously consider.
On the basis of the entire evidentiary record and after reflection over a period of time, I am persuaded, and there is no dispute among the experts, that likely the single most important thing that can be done for Student in the short-term (and perhaps the long-term as well) for his educational development is for the parties to work together cooperatively to obtain the most comprehensive and most informative evaluation possible regarding ways to develop Student’s augmentative communication opportunities, and for those opportunities to then be developed as rapidly and effectively as possible, with as much consistency as possible between home and school.
Through substantially enhanced augmentative communication opportunities, Student may possibly be able to engage the world and develop his learning potential in completely new and expanded ways. It may be possible, eventually, to understand for the first time Student’s educational and cognitive potential and how he can be taught effectively. Particularly in light of the alarming educational history of this case and what is at stake for Student, I urge the parties to make this issue the highest priority.
I also suggest that gains in this area will not likely be achieved without substantial cooperation between Longmeadow and Parents. I urge the parties to make their best efforts to use evaluators, service providers, and communication techniques that are acceptable to both parties.
6. Remaining Four IEPs: Head and Neck Support
Related to augmentative communication is Student’s need for head and neck support.
Ms. Smith testified that since her initial evaluations in 2007, she has made clear to Longmeadow and Parents the continuing importance of Student’s having sufficient head support to access and fully utilize communication devices. Ms. Smith explained that Student needs head support because he has a tendency for his head to fall forward, limiting his vision. She explained that without head support, Student is required to make substantial effort to maintain his head in the proper position, causing him fatigue, and leaving less energy and opportunity for using the technology appropriately. Testimony of Smith.
The March 22, 2007 augmentative communication evaluation report (discussed in the section immediately above) stated that proper physical positioning of Student is “essential” when considering use of technologies. The report further provided that, given his physical challenges, “[Student] must be positioned with external supports”. As discussed above, the June 2007 assistive technology Student evaluation by Alternative Access similarly concluded that that Student would “greatly benefit” from additional, external head support for purposes of using augmentative communication. Exhibits S-32, S-40.
As discussed above, the assistive technology evaluation update in February 2009 recommended that further options should be explored regarding head supports for Student. The update specifically stated: “[Student’s] head control is limited and his current lack of external support negatively impacts upon his ability to motorically reach with accuracy as well as his overall endurance.” Exhibits P-124, S-62.
Student’s current special education teacher (Ms. Paris-Kro) testified that she does not use chin or head supports for Student, but his neck becomes tired, making it difficult for him to hold his head up, and the effort required to hold his head up makes it difficult for Student to focus on academics at the same time that he is putting so much effort into holding his head up. Student’s occupational therapist (Ms. Mirer) testified that Student needs head support. Student’s 6 th grade teacher (Ms. Kinney) testified that with head support, Student’s eye contact would improve. Testimony of Paris-Kro, Mirer, Kinney.
Longmeadow’s proposed IEPs, including its most recently-proposed IEP for Student, call for the use of head and neck supports. However, these supports have never been provided because of Parents’ objections to them. Exhibits P-149, S-71.
The uncontradicted and overwhelming weight of the expert evidence supports external head and neck supports, and I find them essential for Student to receive FAPE. Accordingly, I conclude that external head and neck supports must be provided to Student in order that he be provided FAPE.
7. Remaining Four IEPs: Academic Instruction
Consideration of the appropriateness of the academic instruction, as proposed by the IEPs, is best done on an academic year-by-year basis. The first of the remaining four IEPs in dispute includes 5 th grade (2007-2008 school year) when Student was placed within the LLC program at the Wolf Swamp School. The remaining IEPs in dispute cover 6 th grade (2008-2009 school year) and the current 7 th grade (2009-2010 school year) when Student was placed at the Williams Middle School where Student generally received his academic instruction by himself, through 1:1 instruction from a special education teacher and aide.
The time period in question for consideration of the remaining IEPs is limited to March 22, 2008 forward as a consequence of the IDEA’s two-year statute of limitations. See Procedural History and Statute of Limitations, section III, above.
I first consider the appropriateness of the academic instruction at the LLC program from March 22, 2008 through the end of the 2007-2008 school year. Ms. Stevens, in her testimony, was critical of this placement, concluding that it was not appropriate for Student. Ms. Stevens focused, in particular, on her view that the academic instruction was substantially below Student’s cognitive level, and her conclusions in this regard were based upon her assumption that Student’s cognitive level was in the average range. Ms. Stevens did not make any independent determination of Student’s cognitive level, but appeared to be relying upon something that she read but could not identify, together with her opinion that she understood that Student had a sense of humor, which would be consistent with relatively normal intelligence. (See discussion of Ms. Stevens’ testimony, above, in part IV C 5.) Ms. Stevens may well be correct with respect to Student’s cognitive abilities, but I find that Longmeadow was justified, at that time, in believing that Student likely had substantial cognitive delays. When Ms. Stevens observed the LLC program, the only evaluation addressing Student’s cognitive level was Parents’ neuropsychological evaluation by Dr. Cianciulli. In her written report, Dr. Cianciulli opined that Student may have a “cognitive delay that hinders his ability to engage in cognitive tasks.” Exhibits P-21, S-39.
I also note that in their closing argument, Parents make no argument that the academic services during the 2007-2008 school year were inappropriate.
For the two most recent school years (6 th and 7 th grades), Student has been placed at the Williams Middle School where all of his academic instruction has been provided through a special education teacher and a special education aid, both of whom work exclusively with Student and provide him his education without any other children present. During this time period, Student’s special education teacher has been full-time, while his aide was part-time until the end of March 2009 and has been full-time thereafter. The parties do not dispute that Student currently requires a full-time aide.
Student’s 6 th grade special education teacher (Ms. Kinney) testified that Student made academic progress over the course of the 6 th grade school year. She explained that with respect to reading, Student progressed from identifying letters to knowing sight words and attained comprehension of reading (through stories read aloud) at the 5 th grade level by the end of the school year; with respect to math, he learned addition and subtraction up to the “6’s” and was at the 1 st grade level by the end of the school year; he was able to participate effectively in a 6 th grade regular education science class with her assistance. Ms. Kinney noted that on a few occasions (and more frequently by the end of the year), Student spoke a few words—for example, he called out “hey, Don” to the custodian. Written progress reports also indicated that Student was making progress academically. Ms. Levy evaluated Ms. Kinney’s teacher performance, and Ms. Kinney received a generally positive review of her work. Testimony of Kinney; exhibits P-82, P-91, P-92, P-93, P-94, P-95, P-109, S-60, S-82, S-83.40
Mother testified that Ms. Kinney was able to get her son “back on track” academically so that he was able to learn. Parents were satisfied with the work of Ms. Kinney with their son. Testimony of Mother. Parents have not contested the appropriateness of Student’s academic instruction during 6 th grade and appear to be quite satisfied with it.
Student’s current (7 th grade) special education teacher (Ms. Paris-Kro) testified that so far during the 7 th grade school year, Student has made substantial and effective progress regarding listening and communication (for example, engaging in a question-and-answer dialogue and improving his focus on the lesson being taught) and math (for example, recognizing and choosing numbers up to 100, mentally adding numbers beyond ten, adding and subtracting numbers up to 15, counting coins); Student has made some but not substantial progress in the areas of social studies and science; and overall, Student has made satisfactory progress academically so far this year. Testimony of Paris-Kro; exhibit P-115.
Ms. Paris-Kro testified that in her classroom, Student successfully used a Tech Talk augmentative communication device that allowed Student to make up to eight choices; that Student loves to be read to from books at any grade level, which she does, and he has demonstrated good understanding of books at the 2 nd and 3 rd grade levels. Testimony of Paris-Kro.
Student’s current therapists (Kniska, Mirer, Masciadrelli) testified that when they provide direct services to Student, Student’s teacher and aide are present (or the therapist speaks with the teacher and aide immediately after the session), and that the teacher and aide incorporate into Student’s day the speech-language skills, physical therapy skills and occupational therapy skills that the therapists are working on. In particular, Ms. Mirer testified that the teacher and aide for 7 th grade are the best so far in their ability to generalize the occupational therapy techniques to other parts of the day—“they carry over everything.” Testimony of Kniska, Mirer, Masciadrelli.
Ms. Fontaine testified that she has observed Ms. Paris-Kro in the classroom with Student and found her teaching to be very good quality, with a substantial amount of energy and enthusiasm, and that she is doing an excellent job modifying instructional materials and using visuals. Ms. Fontaine found that Student was engaged with Ms. Paris-Kro’s instruction, actively participating and seemingly enjoying the interactions (including much laughter) with Ms. Paris-Kro.
Parents have taken the position that Ms. Paris-Kro is not sufficiently qualified to educate Student for 7 th grade because she is not a certified special education teacher and instead is teaching under a waiver from the Mass. Department of Elementary and Secondary Education. They also took the position that Ms. Paris-Kro does not have sufficient special education experience particularly with physically-disabled children. Testimony of Mother; exhibit P-114
I find this argument to be misplaced. Ms. Paris-Kro meets state licensing and certification requirements. In addition, the IDEA and state special education law and the regulations under these statutes do not require that Ms. Paris-Kro have any more qualifications or experience as a special education teacher than are necessary to implement Longmeadow’s proposed IEP and provide Student with FAPE. She impressed me as a dedicated, competent, and conscientious teacher; and the testimony of others and relevant documents (including her resume) support this view. Notwithstanding the fact that Ms. Paris-Kro is working under a Department of Elementary and Secondary Education waiver and had limited, previous experience working with severely physically disabled students, I have no doubt that Ms. Paris-Kro is eminently qualified for purposes being Student’s special education teacher. Testimony of Fontaine, Mirer; exhibit P-113. Longmeadow has discretion to engage whichever particular staff persons it might choose, so long as the identified person has the requisite qualifications to provide the services set forth within Student’s accepted IEP.41
Parents were also critical of Ms. Paris-Kro because, from their perspective, Student’s academic instruction for 7 th grade had reverted to working on basic skills (for example, learning shapes and colors) that Student had mastered. In her words, Mother believed that her son was “presumed to be an idiot” simply because he has cerebral palsy. Testimony of Mother; exhibit P-128.
Ms. Paris-Kro responded to this concern by testifying that during the first part of the 7 th grade school year, she worked on basic skills (for example, shapes and numbers) while she was getting to know Student, building a relationship with him, and determining his skill level. Her testimony made clear that she believes that Student is far from an “idiot” and that he has excellent understanding of the content of 2 nd and 3 rd grade books. Testimony of Paris-Kro.
On the basis of a review of the evidence, I find that Student has received appropriate instruction while at the Williams Middle School. I further find that teachers have dedicated themselves to providing substantial, individualized instruction that has been appropriate for Student; and through this instruction, Student has made effective and meaningful academic progress.
8. Parents’ additional arguments
Parents take the position that the goals and benchmarks within three proposed IEPs are not measurable and therefore not reasonably calculated to provide Student with FAPE. Specifically, Parents focus on the three IEPs reflected within exhibits P-147, P-148, P-149, S-55, S-64, S-71. (See Parents’ closing argument at 25.) Parents also point to the testimony of their principal expert (Ms. Stevens) that when any of these IEPs is compared with the IEP for the previous school year, the IEP requires little or no progress for Student. Parents take the position that Longmeadow “consistently proposed IEPs that were not intended to provide ‘effective results’ and ‘demonstrable improvements’ and therefore has denied [Student] to his right to FAPE.” See Parents’ closing argument at 26.
The IDEA requires that an IEP contain “a statement of measurable annual goals, including academic and functional goals.”42 The IEP also must include “a description of how the child’s progress toward meeting the annual goals … will be measured and when periodic reports on the progress the child is making toward meeting the annual goals … will be provided.”43
Ms. Stevens’ testimony was persuasive that the first of these three IEPs included goals and benchmarks that were poorly written and not measurable, but she further testified that the second and third of the three IEPs included goals and benchmarks that were far more specific, targeted, and measurable. Testimony of Stevens.
The failure to write measurable goals and benchmarks may result in (or at least contribute to) a finding that a student has been denied FAPE.44 However, to reach this conclusion, I must find that the lack of specificity or measurability of the goals and benchmarks within one IEP caused, or at least contributed to, Student’s being denied FAPE. Parents provided no basis for such a conclusion.
At the same time, however, Ms. Stevens was persuasive that, in general, the IEPs reflected little progress being made from year to year. Testimony of Stevens. As discussed previously, there is little doubt that Student did not make measurable or substantial educational progress, and the IEPs reflect this reality. See part VI A 3, above.
An additional argument asserted by Parents is that the IEPs failed to propose that Student have a full-time aide. Parents’ closing argument (pages 26-27) did not specify which IEPs were allegedly deficient in this regard. Parents’ amended hearing request alleged that the IEP for the period 11/13/07 to 11/12/08 (exhibits P-1, S-51) and the IEP for the period 2/11/08 to 2/12/09 (exhibits P-147, S-55) were deficient in this regard. However, both IEPs include, as a listed accommodation, support of a full-time educational assistant.
I also note that Student’s last-accepted IEP (for the period 5/9/06 to 5/9/07) called for a full-time educational assistant as one of several required accommodations, and this requirement has remained in effect through the present. Exhibits P-3, S-28. Thus, regardless of whether subsequent IEPs called for a full-time aide, Longmeadow was required to provide this support to Student.
Parents also take the position that despite Student’s regression, Longmeadow proposed decreased services and reduced qualifications of staff. In their closing argument (page 27), Parents make this general claim without describing more specifically what services or qualifications have been reduced, nor do Parents explain why Longmeadow’s actions allegedly denied Student FAPE. A change or reduction of services is not, by itself, demonstrative of a failure to propose appropriate services.
9. Conclusion regarding the appropriateness of the five disputed IEPs
For the reasons explained above, I find each of the five disputed IEPs to be reasonably calculated to provide Student with FAPE, with one exception. The third IEP (which was the IEP for the period 2/12/09 to 2/11/10 and which was in effect from 2/12/09 until 11/30/09; exhibits P-148, S-64) should have proposed physical therapy for 45 minutes for three days per week of for a half hour daily, instead of for two days per week, but this deficiency was of no practical consequence to Student because Longmeadow was under a “stay-put” IEP to provide the higher level of physical therapy services during this time period.
I also find that in order for Student to receive FAPE prospectively, Longmeadow must arrange for a comprehensive assistive communication evaluation that includes, but is not limited to, augmentative communication.
B. Student’s Placement
Parents have not disputed Student’s actual placement during 6 th and 7 th grades. They have taken the position that Student’s current placement at the Williams Middle School has been appropriate and should continue. Parents objected to the LLC placement during 5 th grade. However, as explained above, Parents have waived any claim that the academic instruction at LLC was inappropriate, and I find that Parents have not provided other evidence that demonstrates the inappropriateness of the LLC placement for 5 th grade.
Nevertheless, there remains one disputed placement issue, which pertains to Student’s prospective placement. Longmeadow has issued two proposed IEPs for the same time period of 2/12/09 to 2/11/10. The first of these two IEPs was issued a s a result of the Team meetings on February 12, 2009 and March 4, 2009 and called for Student’s placement to continue at the Williams Middle School through the end of 6 th grade (2008-2009 school year), but to change to the Lower Pioneer Valley Educational Collaborative (LPVEC) for 7 th grade (2009-2010 school year). Exhibits P-148, S-64. As a result of an IEP Team meeting on October 15, 2009, a new IEP was proposed for the period 2/12/09 to 2/11/10 which called for Student’s continued placement at the Williams Middle School, rather than at the LPVEC for 7 th grade. Exhibits P-149, S-71. This is that last-proposed IEP, and the parties have agreed that Longmeadow need not propose another IEP until the instant Decision is issued.
In its closing argument, Longmeadow takes the position that its most recently-proposed IEP should be altered through the instant Decision to require placement at different program, even though Longmeadow takes the position that this IEP is appropriate. Specifically, Longmeadow seeks an order establishing the Elementary-Secondary Transitional Program at LPVEC (hereinafter, “LPVEC Transitional Program”) as Student’s appropriate prospective placement. (See Longmeadow’s closing argument at pages 67-69.) Parents seek an order continuing Student’s placement at the Williams Middle School, with Student continuing to receive his academic instruction principally from a 1:1 full-time teacher and 1:1 full-time aide.45
There is unrebutted evidence, including testimony from Parents’ principal expert (Ms. Stevens) that supports Longmeadow’s position that Student should be placed within an established educational program with an appropriate peer group, as compared to his current 1:1 academic instruction. Ms. Stevens testified that it would not be best for Student to be educated on a 1:1 basis since within that environment, he is deprived of sufficient social and educational interactions with peers. She emphasized that Student is a “social being” and should have many opportunities to interact with his peers and adults; he needs to be considered (and consider himself) part of a group of people; he needs to have the opportunity to develop social, pragmatic, community, and recreational skills; he needs to be given opportunities to be the community and to interact with his peers; and he needs to be able to reach out and learn about the world around him. Testimony of Stevens.
Turning more specifically to the LPVEC Transitional Program as a possible placement for Student, Ms. Kelliher (who supervises this Program) testified that it is staffed with a full-time special education teacher and a full-time aide. In addition, one of the students has her own 1:1 aide. Related services of speech-language, physical therapy, and occupational therapy are available to the program, with these services typically being provided within the classroom. The daily schedule of the LPVEC Transitional Program typically begins with a group activity (such as going over the calendar) for 45 minutes, work on activities of daily living and having a snack for 30 minutes, academics and related services for 90 minutes, preparation for lunch and lunch itself (including work on ADLs during this time period), another period of academics and related services for 90 minutes, and then a period of transitioning during which the students get ready to go home. The LPVEC Transitional Program typically works on ADLs that include toileting skills, hand washing, money skills, and traveling in the community. The program uses community outings to help teach these skills. There are opportunities, as appropriate for a particular student, to be included within a class or activity of regular education students (for example, physical education), and there are regular education students who spend time within the program for purposes of socialization and exposure to role models. There is also an opportunity for the students to participate in swimming. The goals of the LPVEC Transitional Program include becoming more independent and being able to integrate more into the regular education environment. Testimony of Kelliher.
Longmeadow’s witnesses testified as to the importance of Student’s learning with an appropriate peer group, and they generally supported a placement at LPVEC for this purpose. For example, Ms. Paris-Kro testified that she visited LPVEC in January 2010 for about an hour and believes that it would be an appropriate placement for Student because it would have appropriate peers with whom Student could interact, because the program has many therapies in-house, and because it has an excellent life skills program (for example, to learn how to wash hands and dress oneself). Also, Ms. Fontaine testified that Student should be placed at LPVEC, which she has observed. She opined that LPVEC includes several students who would be appropriate peers for Student, that it is not appropriate for Student to be educated without any peers as is currently Student’s program at Williams Middle School, that LPVEC also provides opportunities for outings into the community, swimming, and the therapies needed by Student. In addition, Ms. Mirer testified that Student needs to have time during the day when he is with his peers. She opined that Student needs more functional life skills in order for his life to be meaningful. Ms. Masciadrelli similarly testified that it is important for Student to be spending time with other students so that he can communicate and socialize with them; and from this perspective, LPVEC would be an appropriate placement for Student. Testimony of Paris-Kro, Fontaine, Mirer, Masciadrelli.46
Based upon this unrebutted evidence, I find that Longmeadow’s most recently-proposed placement of Student at the Williams Middle School is inappropriate because it does not allow Student to be educated with an appropriate peer group. I further find, however, that the evidence does not establish the appropriateness of the LPVEC Transitional Program as Student’s placement. My reasoning follows regarding the inappropriateness of LPVEC.
As explained above in part IV C of this Decision, clinicians have opined in written reports based on evaluations in 2007 and 2008 that Student’s cognitive development has been “delayed” (Cianciulli’s evaluation) and that his intellectual functioning is “significantly subaverage” (Franciscan Children’s Hospital evaluation). However, these opinions were not based upon standardized testing. Because of Student’s severely limited communication abilities, it has not been possible to determine reliably Student’s cognitive level. As Longmeadow’s psychologist wrote as a result in an evaluation report in May 2007, “Until [Student] develops a more efficient communication system, it would be very challenging, at best, to administer a cognitive assessment and have confidence in its results.” Exhibits P-21, S-38, S-39, S-61. None of the persons who rendered these opinions testified.
More recent evidence indicates that Student may possibly have substantial cognitive potential to learn academically. Student’s current teacher and his most recent teacher, and therapists who have worked extensively with Student testified that Student appears to understand much of what he hears or observes—for example, his current teacher testified that Student has excellent listening comprehension of books at the 2 nd and 3 rd grade levels, and last year’s teacher testified that Student likely has listening comprehension skills substantially above the 3 rd grade level. Student’s sense of humor (laughing at others’ jokes and enjoying the humor in stories and interactions around him) also indicates that likely he often understands what is being said. Parents have long taken the position that Student’s cognitive abilities are within the average range, based on their belief that Student understands much of what is said to him and what occurs in his presence, including his understanding of humor. Testimony of Mother, Stevens, Kinney, Paris-Kro, Kniska.
I find this testimony from Student’s two most recent teachers, Ms. Stevens, Ms. Kniska and Mother raise substantial doubts as to the validity of the opinions of Dr. Cianciulli and the Franciscan psychologist. Dr. Cianciulli and the Franciscan psychologist rendered opinions not on the basis of standardized testing but rather on the basis of their own relatively brief, subjective observations and the reports of others. In contrast, the observations and reports of Mother and professionals who have worked with and observed Student for extended periods in a wide variety of circumstances, and who have observed Student’s responses to stories, questions, requests and a wide variety of situations are likely to provide a far more reliable basis for estimating Student’s level of understanding.
In sum, the conflicting nature of the evidence, together with the lack of any reliable cognitive testing, makes it not possible to determine reliably or precisely Student’s cognitive level. For these reasons, I decline to make any finding regarding Student’s specific cognitive level. Nevertheless, based upon the above-described evidence, there is, undeniably, a significant question as to whether Student’s cognitive abilities are severely limited.
Ms. Kelliher testified that the LPVEC program is designed for children with moderate special needs who are functioning cognitively at the pre-kindergarten to 2 nd grade level. Currently, there are five children placed in this program, two of whom are cognitively at the 1 st to early 2 nd grade level, two of whom are cognitively at the kindergarten level, and one of whom is cognitively at the two-year-old level. The verbal abilities of these five students range from non-verbal to the 2 nd grade level. Testimony of Kelliher. It is quite possible that every member of this peer group has cognitive abilities below or substantially below Student. This would likely impact negatively upon the level of instruction provided Student’s and raises concerns regarding the appropriateness of this placement for him.
A second concern is the amount of time during a typical school day that would be available to provide academic instruction. As discussed above, the daily schedule of the LPVEC Transitional Program includes two 90-minute periods during which students receive both academic instruction and related services. Testimony of Kelliher. Student’s related services to be provided pursuant to his most recently-proposed IEP requires approximately 45 minutes of the total of 180 minutes each day in the LPVEC schedule, leaving approximately 135 minutes per day for academics. Yet, the most recently-proposed IEP calls for approximately 170 minutes of academic instruction each day. Exhibits P-149, S-71.
Moreover, LPVEC has a formal application process to determine whether a student is appropriate for the LPVEC Transitional Program and this process has not been utilized, with the result that LPVEC has made no determination regarding Student’s appropriateness for this program. Ms. Kelliher testified that although she assumed (based upon preliminary information from Longmeadow staff) that Student would be appropriate for the LPVEC Transitional Program, no determination had been made regarding his appropriateness for this placement; she had not been asked to make such a determination; and she did not know enough about Student to make such a determination. Ms. Kelliher explained that in order for such a placement determination to be made, she would need to meet and evaluate Student (which has not occurred) and consider his social and academic levels. As part of this process, either she or the LPVEC Transitional Program teacher would observe Student in his present program and speak to his service providers. She also noted that any decision to place Student at the LPVEC Transitional Program should be made by Student’s IEP Team. Testimony of Kelliher.
Finally, I note that Longmeadow seeks the LPVEC program as Student’s prospective placement, yet Longmeadow’s most recently-proposed IEP for Student does not propose this placement, and Longmeadow takes the position that its IEP proposing this placement provides FAPE to Student. See Longmeadow’s closing argument at page 67. Longmeadow seeks to circumvent the IEP process for purpose of its proposing a change in Student’s placement.47
For these reasons, I find that Longmeadow’s most recently-proposed IEP does not provide an appropriate placement because it lacks an appropriate peer group. I further find that Longmeadow has not met its burden of persuasion that the Williams Middle School placement should be changed to the LPVEC Transitional Program. And I decline to circumvent the IEP Team process and the LPVEC application process by making such a determination. Longmeadow will need to continue its efforts to locate or create a placement that includes an appropriate peer group. This may be accomplished either by locating an appropriate program for Student or identifying appropriate peers with whom he can learn within his current placement.
C. Implementation of the IEPs and the parties’ agreement
The parties’ dispute regarding implementation of required services focuses on whether (and to what extent) Longmeadow has failed to abide by their Agreement and accepted portions of IEPs. I begin with a review of Longmeadow’s obligations under the Agreement and whether Longmeadow complied with its obligation relevant to the hiring of an aide. I then consider Longmeadow’s obligations to provide speech-language services, physical therapy, occupational therapy, and augmentative communication services pursuant to accepted portions of IEPs and the Agreement. I also review the question of whether Longmeadow improperly reduced Student’s aide from full-time to half-time. Finally, I will consider whether Parents were appropriately reimbursed for expenses related to the Franciscan Children’s Hospital evaluation.
For reasons explained within the Procedural History and Statute of Limitations (part III) above, the operative period for consideration of implementation issues is from March 22, 2008 (which is two years prior to the filing of Parents’ amended hearing request) through the present.
1. Parties’ Agreement
As is typical of administrative due process agencies, the BSEA generally lacks enforcement authority.48 Thus, for example, a BSEA Hearing Officer has no authority to enforce an IEP or to enforce a BSEA decision. But, this general lack of enforcement authority does not preclude the BSEA from considering the extent to which an IEP imposes a legal obligation upon a school district to provide special education or related services,49 or from determining whether a school district has complied with a BSEA decision.50
Similarly, if p arties to a dispute before the BSEA have entered into an agreement, pursuant to which they changed their obligations and responsibilities under state and federal special education law, the BSEA has no authority to enforce the agreement.51 Nevertheless, the BSEA may consider the implications of the agreement when resolving the special education dispute. The federal courts addressing this issue have uniformly concluded that where an agreement relates to rights and responsibilities that fall within the purview of the Hearing Officer,52 the Hearing Officer has the authority to consider the agreement and determine whether and to what extent the agreement alters the rights and responsibilities of the parties with respect to a student’s special education services and related procedural protections.53 If a BSEA Hearing Officer were to issue a decision resolving a special education dispute and determining the responsibilities of a school district without considering such an agreement, the decision will not have considered all applicable law,54 with the result that the decision will provide an incomplete (and in some cases, a legally incorrect) determination of the legal responsibilities of the school district to provide special education services to the student.55
In the instant case, there is no dispute that the parties’ agreement (described below) altered Longmeadow’s legal obligations regarding Student’s special education and related services. Therefore, I will consider the parties’ agreement.
On May 9, 2008, while waiting for the evaluation by Franciscan Children’s Hospital, the parties entered into a “Preliminary Interim Agreement” to implement an “interim educational program” as an “agreed amendment to [Student’s] last proposed IEP, dated February 11, 2008.”
The parties’ agreement includes the following six parts:
1. Student is to return to Kamp for Kids for his summer program, with the same services and placement as in 2007, “except that Longmeadow will ask Kamp for Kids to assign an aide to [Student], instead of using Mr. Liese.
2. Student’s placement is to be at the Williams Middle School unless the parties agree otherwise.
3. Student will receive at least the current level of consultation services and at least the following related services:
A. Services of a speech-language pathologist for a half hour each day;
B. Services of a physical therapist for a half hour each day, but if Halina Sullivan provides some or all of the services, the services may be of a different duration, provided that they total 150 minutes per week;
C. Adaptive physical education services for a half hour twice per week;
D. Occupational therapy services to be provided by Longmeadow’s “District Occupational Therapist” for a half hour three times per week.56
4. Student’s special education teacher will not be Doretta Moreau.
5. Student’s assigned aide will not be Dan Liese, and instead Student will be assigned a Basic Skills Instructor who will receive “direct preliminary training and ongoing consultation” from a physical therapist, a speech-language pathologist, an occupational therapist, and an assistive technology consultant.
6. The recommendations contained in the “Alternative Access evaluations” will be implemented to the extent that they are “acceptable” to Parents, and Longmeadow is to “contract for whatever increased consultation [from Alternative Access that] is needed for implementation and training, as recommended by Alternative Access.”
Exhibit P-81; S-67.
A preliminary question to be resolved is the agreement’s end date, which is disputed by the parties. The agreement provides in relevant part that the parties intend this “interim program” to “remain in effect while they wait for the results” of the Franciscan evaluation “and the Team meeting to review these [evaluation] results.” Exhibits P-81, S-67.
There was conflicting testimony as to whether the Team ever completed review of the Franciscan evaluation. Mother testified that review of the evaluation was started, but was not finished, during the IEP Team meeting on February 12, 2009, and that the review of the evaluation was not completed at any subsequent Team meeting. Parents therefore take the position that since there was never a complete discussion of the Franciscan evaluation, the Agreement remains in effect through the present. Testimony of Mother.
Ms. Kinney testified that she attended the February 12, 2009 Team meeting, that review of the Franciscan evaluation was completed during the meeting, that there was discussion during the meeting of Student’s IEP but that the IEP discussion was not completed during the Team meeting. Ms. Mirer testified that at the February 12, 2009 meeting, the Team completed its review of the Franciscan evaluation. Team meeting notes by Ms. Levy indicated that the Team reviewed the Franciscan evaluation and that Student’s IEP was considered in light of the evaluation on February 12, 2009. Team meeting notes from the subsequent Team meeting on March 4, 2009 indicate that the March meeting was a re-convening of the Team because the Team had not been able to complete its review of the IEP, and there is no indication that the Team needed to further consider the Franciscan evaluation. Testimony of Kinney, Mirer; exhibits P-84, P-144, P-148, S-63, S-64.
I find that the clear weight of this evidence was that the IEP Team meeting on February 12, 2009 completed the review of the Franciscan Children’s Hospital evaluation and, pursuant to the language of the Agreement quoted above, the effective end date of the Agreement was therefore February 12, 2009.
Parents take the position that Longmeadow did not comply with paragraph # 5 of the Agreement in two respects. First, Parents correctly note that Dan Liese was, in fact, hired by Longmeadow as Student’s aide during the summers of 2008 and 2009, notwithstanding the language in the Agreement precluding Longmeadow from doing so.
Ms. Levy testified that in May 2008, she called the director of the camp that Student would be attending for the summer of 2008. The camp director explained to Ms. Levy that the camp was no longer allowed to hire a 1:1 aide for a camper, and therefore Longmeadow would have to hire the aide. Ms. Levy testified that she then searched for an appropriate summer aide for Student, and Mr. Liese and one other person were the only people she was able to identify who were interested in the position. Because Student required an aide in order to attend camp, Ms. Levy needed to hire Mr. Liese or the other person for this purpose. Ms. Levy offered Parents a choice, and they chose Mr. Liese. Ms. Levy testified that over the course of the summer, she spoke regularly with Mr. Liese and no unanticipated problems were reported. She opined that Mr. Liese did a good job as Student’s aide during the summer. Mother testified that she agreed to having Mr. Liese be the aide for this summer after Mother was told that the choice was between Mr. Liese and another person whose qualifications were unknown and who had little if any previous experience. Mother explained that she felt she had no choice but to have Mr. Liese be her son’s aide for the summer since her son required an aide to attend camp. Testimony of Mother, Levy.
Ms. Levy testified that she also hired Mr. Liese to be Student’s aide for camp during the summer of 2009. Ms. Levy testified that over the course of the summer, she spoke regularly with Mr. Liese and did not recall any problems. Testimony of Levy.
On the basis of this evidence, I find that while Longmeadow did not comply with the language of the agreement with respect to hiring Mr. Liese, Parents agreed that Longmeadow should hire Mr. Liese and there was no evidence that Student or Parents suffered any harm as a consequence of Mr. Liese acting as Student’s aide during the summer of 2008 and 2009.
Second, Parents correctly note that Longmeadow did not hire a Basic Skills Instructor for Student, notwithstanding the language in the Agreement indicating that Longmeadow would do so in lieu of an aide for Student. However, Ms. Levy testified persuasively that Longmeadow went beyond this requirement by hiring a 1:1 special education teacher for Student. Testimony of Mother, Levy.
Compensatory services are an equitable, discretionary remedy that may be ordered after consideration of all of the circumstances.57 Under the circumstances described above, I find that Parents should not be provided any compensatory services for Longmeadow’s hiring Mr. Liese or for Longmeadow’s not hiring a Basic Skills Instructor for Student.
2. Speech-language services
In the last-accepted IEP ( for the period 5/9/06 to 5/9/07), Longmeadow proposed speech-language services from a speech-language pathologist for a half hour each day. During the summer, speech-language services were to be provided for a half hour three times per week for seven weeks. By letter dated February 8, 2007, Parents accepted these services. Exhibits P-3, P-60, P-125, S-28.
The services were to be continued at a half hour each day pursuant to the parties’ Agreement. Although Longmeadow proposed to reduce these services to a half hour four days per week in the IEP for the period 2/12/09 to 2/11/10 (exhibits P-148, S-64), Parents did not accept this IEP, and the services therefore remained at the level of the previously-accepted IEP, which was a half hour daily. Longmeadow’s most recently-proposed IEP calls for these services to be provided for a half hour each day although Parents have not accepted any part of this IEP other than the summer camp placement (exhibits P-149, S-71).
In sum, Longmeadow has been responsible to provide speech-language services for a half hour daily from March 22, 2008 through the present. In addition, during the summer, speech-language services are to be provided for a half hour three times per week for seven weeks.58
The only probative evidence regarding speech-language services actually provided to Student are the billing records of Ms. Masciadrelli, who was Student’s speech-language therapist for the entire time in question. Her records in evidence are from October 1, 2008 through March 31, 2010. During this time period, Longmeadow would have been obligated to provide 153 hours of speech-language services.59 Ms. Masciadrelli’s billing records indicate that 86 hours of speech-language services were delivered to Student, leaving a total of 67 hours of speech-language services that remain owed for the time period of October 1, 2008 through March 31, 2010. Parents did not provide any probative evidence regarding additional time periods when services were to be delivered, and I therefore cannot determine any additional hours owed, although it seems likely, based upon Ms. Fontaine’s and Mother’s testimony, that there would be additional hours owed. Testimony of Fontaine, Mother; exhibit P-143.60
Longmeadow provided evidence of its efforts to find another speech-language therapist, and from Ms. Levy’s testimony, it seems likely that Longmeadow would have been able to supplement Ms. Masciadrelli’s therapy with the services of another speech-language therapist. Longmeadow takes the position that but for Parents’ refusal to consent to another therapist working with Student, it would have provided additional speech-language services. However, Ms. Levy testified that she could not remember whether this therapist was a speech-language therapist or speech-language therapist assistant. The accepted IEP and Agreement require the services of a speech-language therapist, and therefore Parents would have been justified in rejecting the services of a speech-language therapist assistant. Testimony of Levy; transcript vol. VI, pages 245-248. For these reasons, I find that Longmeadow has not provided reliable evidence that it would have provided additional, appropriate services in compliance with the accepted IEP and Agreement, but for Parents’ refusal to consent. Accordingly, I decline to reduce the amount of speech-language services owed.
Ms. Fontaine testified that during October 2009 when Longmeadow was having difficulty providing sufficient speech-language services to Student, she offered to Parents that Longmeadow could engage a private agency to provide additional speech-language services for one hour per week after school, but Parents declined the offer. Testimony of Fontaine. There was not sufficient evidence to establish how much additional, appropriate speech-language services would have been provided, but for Parents’ refusal to consent—for example, the start and end dates that such a therapist would have been able to work with Student. Accordingly, I decline to reduce the amount of speech-language services owed.
In conclusion, Longmeadow has failed to provide a total of 67 hours of speech-language services.
3. Physical therapy
In the last-accepted IEP ( for the period 5/9/06 to 5/9/07), Longmeadow proposed physical therapy from a physical therapist for 45 minutes three times per week. By letter dated February 8, 2007, Parents accepted these services. Exhibits P-3, P-60, P-125, S-28.
This service obligation remained in effect until April 8, 2008 when Parents accepted the physical therapy services within the IEP for the period 2/11/08 to 2/12/09, which was in effect from 2/11/08 until 5/9/08. This acceptance changed physical therapy services to a half hour each day. Exhibits P-126, P-147, S-55.
The parties’ Agreement continued physical therapy for a half hour each day through the period of the Agreement.
Although Longmeadow then proposed to decrease physical therapy services to 45 minutes twice per week in the IEP for the period 2/12/09 to 2/11/10 (exhibits P-148, S-64), Parents never accepted this IEP, and therefore Longmeadow continued to be obligated to provide physical therapy services at a half hour each day pursuant to the previously-accepted IEP. The most recently-proposed IEP also calls for physical therapy at a half hour each day although Parents have not accepted any part of this IEP (exhibits P-149, S-71).
In sum, Longmeadow was required to provide Student with physical therapy services for 45 minutes three times per week from March 22, 2008 to April 8, 2008 when the obligation changed to a half hour each day, and this obligation (of half hour daily) has continued through the present.
Ms. Fontaine testified that she had reviewed the physical therapy services provided to Student and concluded that Longmeadow had not been able to provide the agreed-upon physical therapy services of a half hour each day, with the result that at the beginning of the current (2009-2010) school year, she calculated that Longmeadow owed Student 80 additional hours of physical therapy. She also testified that she believed that the parties had agreed that, as of the beginning of the 2009-2010 school year, Longmeadow owed Student 80 hours of physical therapy. She further calculated that as of March 31, 2010, Longmeadow had provided 87 hours of physical therapy during the 2009-2010 school year, with 65.5 of these hours reflecting services required under the IEP and the remaining 21.5 hours being compensatory services. Ms. Fontaine testified that as of March 31, 2010, Longmeadow owed Student 58.5 hours of physical therapy. She further estimated that given that Student has been receiving four hours of physical therapy services per week, by the end of this school year, Student will likely be owed 43.5 hours of physical therapy. Testimony of Fontaine; exhibit S-78.
Mother testified that the parties have agreed that Student did not receive 81 hours of physical therapy services that should have been provided from March 22, 2008 through the week prior to the evidentiary hearing in this dispute.
In their closing argument (at pages 11, 13), Parents appear to agree with Longmeadow that as of the start of the 2009-2010 school year, Longmeadow owed Student approximately 80 hours of physical therapy services. In their closing argument (at pages 11-14), Parents do not disagree with the amount of physical therapy services provided during the current school year (as calculated by Ms. Fontaine; see her testimony discussed above), but nevertheless take the position that Longmeadow continues to owe Student 80 hours of physical therapy services. Parents’ position is that Student has regressed as a result of not receiving sufficient physical therapy services, that Dr. Forman’s letter (discussed above) recommending an “aggressive restorative program” was reviewed by the IEP Team when it met in October 2009, and that the IEP Team decided to propose physical therapy services of one hour each day. The evidentiary record does not support Parents’ argument that the IEP Team agreed to physical therapy services of one hour per day. The IEP Team determined that Student’s physical therapy should be a half hour each day of direct services, and the IEP included additional, compensatory services of a half hour three times per week, as reflected in the service delivery grid of the IEP. Testimony of Mother, Fontaine; exhibits P-118, P-132, P-149, S-71.
For these reasons, I credit Ms. Fontaine’s testimony (and I so find) that by the end of the current school year, Longmeadow will owe Student approximately 43.5 hours of direct physical therapy services.
Longmeadow provided evidence of its efforts to find another physical therapist, and from Ms. Levy’s testimony, it seems likely that Longmeadow would have been able to supplement Ms. Masciadrelli’s therapy with the services of another physical therapist. Longmeadow takes the position that but for Parents’ refusal to consent to another therapist working with Student, it would have provided additional physical therapy services. However, Ms. Levy’s testimony lacked specificity regarding the amount of additional physical therapy services that would have been provided but for Parents’ refusal to consent. Accordingly, I decline to reduce the amount of physical therapy services owed. Testimony of Levy; transcript vol. VI, pages 198-200, 244-245.
In conclusion, Longmeadow has failed to provide 43.5 hours of direct physical therapy services.61
4. Occupational therapy
In the last-accepted IEP ( for the period 5/9/06 to 5/9/07), Longmeadow proposed feeding skills instruction from a registered occupational therapist for a half hour twice each week, and a half hour per month of occupational consultation services. By letter dated February 8, 2007, Parents accepted these services. Exhibits P-3, P-60, P-125, S-28.
Although Longmeadow proposed occupational therapy for 45 minutes twice each week (in the next IEP) and then for a half hour three times per week in the following IEP, Parents did not accept any occupational therapy services until the Parties’ agreement, which called for occupational therapy for a half hour three times per week beginning on the effective date of the Agreement, which was May 9, 2008 (exhibits P-81, S-67). Mother testified (and there was no contradictory evidence) that subsequent to the parties’ signing the Agreement, the parties agreed that occupational therapy services may be provided for 45 minutes twice per week, rather than for a half hour three times per week as reflected within the Agreement. There was no evidence as to when this modification was agreed to by the parties, nor is there any written evidence of this agreement. There was no evidence that this oral agreement extended the written Agreement that remained in effect until February 12, 2009.
Pursuant to the IEP for the period 2/12/09 to 2/11/10 (exhibits P-148, S-64), Longmeadow proposed to continue occupational therapy services for 45 minutes twice per week but Parents never accepted this IEP. Therefore, Longmeadow was obligated only to provide occupational therapy services at a half hour twice per week pursuant to the previously-accepted IEP (exhibits P-3, P-60, P-125, S-28). The most recently-proposed IEP also calls for occupational therapy at 45 minutes twice per week although Parents have not accepted any part of this IEP other than summer camp placement (exhibits P-149, S-71). Testimony of Mother.
In sum, Longmeadow was required to provide Student with occupational therapy services for a half hour twice each week from March 22, 2008 to May 9, 2008 when the obligation changed to occupational therapy for a half hour three times per week, which was subsequently changed by agreement to 45 minutes twice per week. This obligation pursuant to the parties’ Agreement continued until February 12, 2009, when the obligation changed back to a half hour twice per week. Throughout this time period, Longmeadow was also required to provide a half hour per month of occupational therapy consultation services.62
Near the end of the evidentiary hearing, it was agreed by the parties that Student’s occupational therapist (Ms. Mirer) would review her notes and prepare an affidavit (that Longmeadow would file as an exhibit) setting forth the hours of occupational therapy services that she provided Student.
I first consider Ms. Mirer’s affidavit regarding the occupational therapy services she actually provided during this time period. Parents have taken the position that it was unlikely or not possible that all of the services outlined in her affidavit were actually provided. I agree, in part, with Parents’ arguments for the reasons explained below.
Parents have objected to counting a number of specific sessions of occupational therapy services provided to Student according to Ms. Mirer’s affidavit because Parents believe that her affidavit could not be accurate in light of other evidence indicating that, on particular days, Student was absent from school, school was cancelled, Ms. Mirer did not provide therapy on the particular day, or another event limited the amount of time of the occupational therapy (OT). I agree with Parents with respect to the following dates:
· March 20, 2008 – Ms. Mirer states in her affidavit that she had a 45 minute OT session with Student. However, according to Longmeadow’s records, Student was absent from school on this day. Thus, there is a 45 minute discrepancy on that day. Exhibits S-70, S-86.
· November 6, 2008 – According to Ms. Kinney’s plan book, Ms. Mirer was a no show on this day. However, according to her affidavit, she provided Student with 60 minutes of OT on that day. Thus, there is a 60 minute discrepancy on this day. Exhibits P-92, S-86.
· November 18, 2008 – Ms. Mirer states in her affidavit that she provided Student with 60 minutes of OT on that day. However, according to Ms. Kinney’s plan book, Student was at the Franciscan evaluation on this day. Thus, there is a 60 minute discrepancy on this day. Exhibits P-92, P117, S-61.
· December 18, 2008 – Ms. Mirer states in her affidavit that she provide Student with 60 minutes of OT session on this day. However, according to Ms. Kinney’s plan book, Student was scheduled to receive OT on this day, but Ms. Mirer canceled. Thus, there is a 60 minute discrepancy on this day. Exhibits P-92, S-86.
· January 9, 2009 – According to Ms. Kinney’s lesson plan, Student was only scheduled for 30 minutes of OT on this day. Right after Student’s scheduled OT session, Student was scheduled to go to adaptive physical education with Jim Sullivan. However, according to Ms. Mirer’s affidavit she had a 60 minute therapy session with Student on this day. Thus, there is a 30 minute discrepancy on this day. Exhibits P-92, P-135, S-86.
· January 28, 2009 – There was no school on this day because it was considered to be a snow day. However, Ms. Mirer has stated in her affidavit that she provided Student with 60 minutes of OT on this day. Thus, there is a 60 minute discrepancy on this day. Exhibits P-92, S-86.
· February 12, 2009 – Ms. Mirer states in her affidavit that she provided two hours of service to Student on this day. However, there was no OT services scheduled to be provided to Student on this day, and it seems likely that the two hours of Ms. Mirer’s time reflects her attendance at an IEP Team meeting that day. Thus, there is a 120 minute discrepancy on this date. Exhibits P-92, S-86.
· March 5, 2009 – According to Longmeadow’s records, Student was absent on March 5, 2009. However, Ms. Mirer claims to have provided Student with 60 minutes of OT on this date. Thus, there is a 60 minute discrepancy on this day. Exhibits P-92, S-70, S-86.
· April 7, 2009 – In the remarks section of Ms. Kinney’s lesson plan book, she notes “no OT Tues.” However, Ms. Mirer claims to have provided STUDENT with a 45 minute session on that day. Thus, there is a 45 minute discrepancy on that day. Exhibits P-92, S-86.
· April 13, 2009 – According to Ms. Kinney’s lesson plan book, OT was canceled on April 13, 2009. However, in her affidavit, Ms. Mirer claims to have provided STUDENT with a 45 minute OT session on that day. Thus, there is a 45 minute discrepancy on that day. Exhibits P-92, S-86.
· June 19, 2009 – According to Ms. Kinney’s lesson plan book, OT was canceled on this day, but Ms. Mirer claims to have provided Student with 45 minutes session on this day. Thus, there is a 45 minute discrepancy. Exhibits P-92, S-86.
· June 24, 2009 – According to Ms. Kinney’s notebook Ms. Mirer was a “no show” on this day. However, in her affidavit Ms. Mirer claims to have provided Student with a 45 minute therapy session. Thus, there is a 45 minute discrepancy on this date. Exhibits P-92, S-86.
· September 9, 2009 – As evident in the notes between Mother and Ms. Paris-Kro in the communication log, Student was absent on September 9, 2009 because he had a doctor’s appointment in Boston. However, according to Ms. Mirer’s affidavit, she provided Student with a 45 minute OT session on that day. Thus, there is a 45 minute discrepancy on this date. Exhibits P-135, S86.
· September 28, 2009 – According to Ms. Mirer’s affidavit she provided Student with 45 minutes of OT services on this day even though the school was closed in celebration of Yom Kippur. Thus, there is a 45 minute discrepancy on this day. Exhibits P-135, S-86.63
Based on these findings, I conclude that the hours in Ms. Mirer’s affidavit should be reduced by 12 ¾ hours. Ms. Mirer’s affidavit indicates that she provided 124 ¾ hours of occupational therapy services during this time period. Reducing this amount by 12 ¾ hours, leaves a total number of hours delivered during this time period of 112 hours.
I calculate that from March 22, 2008 through the end of the 2007-2008 school year, Student was owed 15 hours of direct services and two hours of consultation services; for the 2008-2009 school year, Student was owed 50.5 hours of direct services and five hours of consultation services; and from the beginning of the 2009-2010 school year through May 7, 2010, Student was owed 34.5 hours of direct services and four hours of consultation services. Because it is not possible to distinguish, based on the evidence, between delivery of direct and consultation services, I consider only the total number of hours owed. The total number of occupational services hours owed Student during this time period was 111 hours.64
For these reasons, I conclude that Longmeadow has provided one more hour of occupational therapy services than it was required to provide. Accordingly, no compensatory services are due.65
5. Assistive technology services
In the last-accepted IEP ( for the period 5/9/06 to 5/9/07), Longmeadow proposed assistive technology consultation services for an hour each week. By letter dated February 8, 2007, Parents accepted these services. Exhibits P-3, P-60, P-125, S-28.
Parents correctly point out that this level of services was changed by the parties’ Agreement. Parents rely upon the sixth part of the parties’ Agreement, which provides that the recommendations contained in the “Alternative Access evaluations” will be implemented to the extent that they are “acceptable” to Parents, and Longmeadow is to “contract for whatever increased consultation [from Alternative Access that] is needed for implementation and training, as recommended by Alternative Access.” Exhibit P-81; S-67.
Mother testified that she accepted 120 minutes twice per week of direct services on the computer, that she e-mailed Ms. Smith regarding this level of services, and that Ms. Smith said that Longmeadow would accept her recommendations. Mother testified that she considered this to be an IEP amendment regarding services owed her son. Testimony of Mother; exhibit P-121.
Ms. Smith testified that in May 2008, she was contacted by and then met with Mother. Ms. Smith prepared a sheet documenting the assistive technology services that she provided Student during the summer of 2008. The sheet indicates that Mother and Ms. Smith met on May 23, 2008 to discuss and reach agreement regarding the services that would be provided. Exhibit S-77 (4 th page).
Ms. Smith testified that during the summer of 2008, direct services were provided to Student regarding computer access. She said that she and Mother talked about two sessions per week in the summer. The above-referenced e-mail exchange between Mother and Ms. Smith on June 28 and 30, 2008, indicated that Mother and Ms. Smith agreed that Student would receive “twice a week for 2 hours” of computer training in the spring and possibly more during the summer. However, later in the same e-mail exchange, Ms. Smith made clear that she was hoping to have two sessions per week, with each session lasting 45 minutes to an hour, thus clarifying that the “twice a week for 2 hours” referred to two sessions totaling two hours per week, rather than each session lasting two hours for a total of four hours per week. Ms. Smith’s testimony confirmed that she had this understanding of the direct services to be provided during the summer. This exchange of e-mails also makes clear that Mother was disappointed with the amount of assistive technology services that were actually provided during the spring, and Ms. Smith seemed to acknowledge that this was true because “scheduling was more difficult than I anticipated.” Testimony of Smith; exhibit P-121. I find Ms. Smith’s understanding of Longmeadow’s responsibility to provide direct assistive technology services to be more persuasive that Mother’s understanding that there was an agreement to provide four hours of services per week.
Ms. Smith further testified that by the end of the summer, she did not believe that direct services were needed but wanted to work with Student’s teachers at the beginning of the school year regarding Student’s computer access. She stated that she believed that this would be sufficient for Student to use a computer in the classroom and that Student would need to further develop his motor skills in order for him to go further with use of the computer. Ms. Smith testified that at the end of the summer of 2008, she communicated with Parents to decrease services from the summer for the purpose of returning to the level of services previously provided, which were consultation (rather than direct) services. She explained that she sent Parents an e-mail for this purpose, with her recommendation that by November 2008, the assistive technology services would be reduced to one hour per week of consultation services. She explained that no one from Longmeadow attempted to restrict the amount of assistive technology services that she recommended or provided. Testimony of Smith.
On the basis of this evidence, I find that pursuant to the parties’ Agreement, Longmeadow was obligated to provide two hours of direct assistive technology services per week from the end of May 2008 through October 2008 when the required services reverted to those services in the last-agreed-upon IEP, which called for one hour of assistive technology consultation services per week and no direct assistive technology services. Exhibits P-3, P-81, S-28, S-67.
In sum, Longmeadow was obligated to provide one hour per week of assistive technology consultation services from March 22, 2008 through May 23, 2008 (when Mother and Ms. Smith met to discuss and agree on a new level of services). On May 23, 2008, Longmeadow’s obligation changed to two sessions of direct consultation services per week for a total of two hours. This obligation continued through the end of October 2008, when it reverted to one hour per week of assistive technology consultation services and no direct assistive technology services.
For the period from the beginning of June 2008 through October 2008, I calculate that Longmeadow was required to provide 23 weeks of direct services, at the level of two hours per week, or 46 hours of direct assistive technology services. However, as a result of vacations, Student’s unavailability, and Parents’ request not to provide services, missed sessions on the following dates is excused: June 3, June 23 through 27, July 14 through 18, July 24 and August 25 through 29, which accounts for 8 one-hour sessions.66 As a result, the total amount of direct services owed was 38 hours (46 minus 8).
On the basis of billing records, combined with Ms. Smith’s testimony indicating that direct services were provided for no more than one hour per session, I find that one hour of direct services was provided on each of the following dates in 2008: June 10, July 3, July 8, July 10, July 29, July 31, August 5, August 12, August 14, September 27, and October 1. Thus 11 hours of direct services were provided within the required time period. In addition, billing records and testimony indicate that an hour of direct services were provided on each of the following dates in 2009: June 6, June 9, June 22, December 3, December 16, and December 17, as well as January 7, 2010. Thus an additional seven hours of direct services were provided, presumably for the purpose of making up previously-missed sessions.67 This totaled 18 hours (11 plus seven) of direct assistive technology services out of a total of 38 hours. Thus, Student is owed 20 hours of direct assistive technology services.
In addition, Parents correctly point out that pursuant to part # 6 of the parties’ Agreement, the recommendations contained in the “Alternative Access evaluations” were to be implemented to the extent that they were “acceptable” to Parents. Exhibits P-81, S-67. By e-mail dated August 3, 2008 to Ms. Levy, Mother accepted a number of specific recommendations contained within Alternative Access evaluations dated March 2007 and June 2007. Exhibit P-119. Mother provided unrebutted testimony that a number of particular assistive technology recommendations that had been agreed upon between Ms. Smith and Parents were not implemented. These included, for example, using direct selection to access the computer, rather than to access the computer through a switch, use of Intellitools and Intellikeys, and using an overlay marker. Testimony of Mother.
Presumably, had Student received the requisite direct assistive technology services, these assistive technology recommendations would have been implemented. And, through compensatory direct assistive technology services, these recommendations can be implemented prospectively.
In conclusion, Longmeadow has failed to provide 20 hours of direct assistive technology services.
6. Student’s aide
Student’s last-accepted IEP called for a full-time educational assistant as one of several required accommodations. This issue was not addressed within the parties’ Agreement, and therefore the requirement within the last-accepted IEP continued in effect. Exhibits P-3, P-81, S-28, S-76.
Longmeadow did not comply with this requirement when Student’s aide was reduced from a full time 1:1 aide to a half-time 1:1 aide. This occurred from the beginning of the 2008-2009 school year until the end of March 2009. During this time period, Student had an aide for three hours each day (from late morning to early afternoon). The aide was made full-time again in March 2009 as a result of an IEP Team meeting on March 4, 2009 when the Team agreed that Student’s aide should be full-time. Mother stated that the lack of a full-time aide was particularly troubling with respect to implementation of Student’s bathroom schedule. She took the position that Student’s toilet schedule required that he be taken to the toilet every two hours but if not successful in going to the toilet, he would be taken every hour until he was successful; but when an aide was not present, Student would have to go to the bathroom in his pants. Mother was particularly upset by a February 2009 incident during which Student fell when he was being toileted by his teacher without the assistance of an aide. Testimony of Mother, Kinney; exhibits P-101, P-104, P-122.
Student’s 6 th grade teacher (Ms. Kinney) during the 2008-2009 school year testified that during the time period when the aide was part-time, if Student needed to use the bathroom and the aide was not available, Ms. Kinney would ask a service provider or nurse, if available, to assist. Otherwise, Ms. Kinney would toilet Student by herself, which she was able to do although it was challenging. Testimony of Kinney.
Ms. Kinney testified that, in her opinion, Student needs a full-time aide because two adults are required to assist Student to use the bathroom; she did occasionally toilet Student by herself but found this to be very difficult and it was not always possible to find another teacher, aide or staff to assist. She further explained that a full-time aide is also useful for purposes of assisting Student to leave the classroom, attend any inclusion classes, and access the curriculum in any inclusion classes. Testimony of Kinney.
It is not disputed that Longmeadow was legally required to provide a full-time aide during the entire 2008-2009 school year and did not do so. However, it is relevant to consider that during the entire 2008-2009 school year, Longmeadow provided Student with a full-time 1:1 special education teacher even though, pursuant to the most recently-accepted IEP, Longmeadow had no obligation to do so. The last-accepted IEP was written for Student’s placement within the LLC program. During the 2008-2009 school year, Student’s placement changed to a different location where he was provided his own 1-1 full-time teacher rather than participating in the LLC program. With this increased level of teacher staffing, it was not immediately self-evident that Student needed a 1:1 full-time aide in addition to a 1:1 full-time special education teacher. When it did become apparent, based upon the recommendation of Ms. Kinney during the IEP Team meeting on March 4, 2009, that Student should have a 1:1 full-time aide, Longmeadow agreed.
Under these circumstances, I find that no compensatory services are warranted for Longmeadow’s failure to provide a full-time aide for the entire 2008-2009 school year.
7. Reimbursement of expenses relevant to the Franciscan evaluation
Parents claim that Longmeadow has not fully reimbursed Parents for the expense of the independent educational evaluation at Franciscan Hospital. Specifically, Parents claim that they were only partially reimbursed for their expenses related to their travel and lodging, leaving them with un-reimbursed expenses of $354. See Parents’ closing argument at 22, footnote 16. However, Parents have provided no evidence that would allow me to understand to what extent Longmeadow agreed to pay for these particular un-reimbursed expenses. Ms. Levy testified that Longmeadow, in general, was willing to reimburse Parents for expenses relevant to the independent evaluation, including Parents’ expenses for travel and lodging, but that Longmeadow decided not to reimburse Parents for the full cost of the lodging chosen by Parents because it was a more expensive hotel than what had been proposed by Longmeadow. Testimony of Mother, Levy; exhibit P-117.
For these reasons, I find that Parents have not met their burden of persuasion on this issue.
8. Compensatory relief for failure to implement required services
In sum, what is reflected above within this part VI C is that Student did not receive the following services that were required to be provided pursuant to an accepted IEP or agreement:
· 67 hours of direct speech-language services;
· 43.5 hours of direct physical therapy services;
· 20 hours of direct assistive technology services.
Longmeadow argues that any award of compensatory services for missed services should be reduced because Longmeadow staff spent significant efforts to identify additional services providers who could provide the requisite services. I agree that Longmeadow made such efforts, but I do not believe this to justify reduction in the compensatory award. Student should be made whole, notwithstanding Longmeadow’s efforts to provide appropriate services. I therefore decline to reduce these hours of services due.
Parents argue that as a result of Longmeadow’s failure to provide the above-described required services, Parents should be provided the following compensation: (1) Parents should be reimbursed for their out-of-pocket expenses for conductive therapy, (2) “conductive therapy should be incorporated into [Student’s] academic program as recommended by Dr. Jeffrey Forman”,68 and (3) Student should be entitled to attend, at Longmeadow’s expense, “the intensive feeding program at Richmond Children’s Hospital in Richmond, Virginia.”69
There are a number of difficulties with Parents’ requested compensatory relief. First, the First Circuit has generally concluded that reimbursement is not an appropriate form of compensatory relief.70 Second, in order for me to consider requiring Longmeadow to compensate Parents and Student by funding a particular educational services, I must first find that the educational service is appropriate for Student. For reasons explained earlier in this Decision, Parents provided no probative evidence (either as a result of expert testimony or from an evaluation or report) supporting the appropriateness of conductive therapy. Third, in his letter relied on by Parents, Dr. Forman opined that Student had benefited from conductive therapy, but his only recommendation regarding prospective services related to increased physical therapy services (which recommendation was adopted by Longmeadow) and “collaboration between the school system and his conductive education providers.” There is no dispute that Longmeadow is willing to provide this collaboration and it is not necessary to order for purposes of compensatory education. Without Dr. Forman’s testimony, it is not possible to know more about his views regarding the appropriateness and need for (and quantity of needed) conductive therapy. Fourth, Parents provided no evidence relevant to the intensive feeding program at Richmond Children’s Hospital, and it is therefore not possible for me to determine the appropriateness of this program for Student. I also note that, as discussed above, it is not disputed that Student has been making meaningful progress regarding feeding without the need for a more intensive program.
As referenced earlier in this Decision, compensatory services are essentially a discretionary, equitable remedy designed to make a student whole – that is, to make up for what was lost as a result of not having received the requisite special education services after consideration of all aspects of the case .71 As one federal court has instructed, the decision-maker needs to make “an informed and reasonable exercise of discretion regarding what services [Student] needs to elevate him to the position he would have occupied absent the school district’s failures.”72 Compensatory services may include future services to make up for what was lost.73
The case law referenced above indicates that, in some disputes where compensatory relief is warranted, it may be possible to determine what services would essentially put Student in the same position he would have been in had the requisite services been provided. In the instant dispute, there was no testimony or report that would allow me to determine the consequences to Student of his having missed speech-language services, physical therapy services and assistive consultation services. I am left only with the remedy of Longmeadow’s making up the missed services on an hour-for-hour basis.
For these reasons, I find that Longmeadow shall provide the following services as compensatory education:
· 67 hours of direct speech-language services;
· 43.5 hours of direct physical therapy services;
· 20 hours of direct assistive technology services.
D. Alleged Procedural Violations
IDEA 2004 established the requirement that to be actionable, a procedural violation must deny FAPE, and the IDEA established the following standards relative to a Hearing Officer’s finding that a procedural violation denied FAPE:
Procedural issues. In matters alleging a procedural violation, a hearing officer may find that a child did not receive a free appropriate public education only if the procedural inadequacies–
(I) impeded the child’s right to a free appropriate public education;
(II) significantly impeded the parents’ opportunity to participate in the decisionmaking process regarding the provision of a free appropriate public education to the parents’ child; or (III) caused a deprivation of educational benefits.”74
Parents’ closing argument (page 31) takes the position that the IEP Team meeting on March 4, 2009 did not sufficiently discuss Student’s placement at LPVEC and therefore, the IEP that was generated as a result of that meeting, placing Student at LPVEC for 7 th grade (2009-2010 school year), was procedurally flawed.
During the Team meeting on March 4, 2009, the Team discussed Student’s placement and whether Student required a full-time 1:1 aide. Longmeadow’s Special Education Supervisor (Ms. Levy) who was co-chairing the meeting, suggested consideration of LPVEC as Student’s placement beginning in September 2009. Mother, who had visited and observed a classroom at LPVEC during the previous school year, took the position that LPVEC was not an appropriate placement for her son. Other possible placements were identified, but there was not sufficient knowledge of those placements for them to be considered. The Team was split regarding Student’s placement for the next year. Testimony of Mother, Levy; exhibits P-84, P-144.
Ms. Levy, who had visited LPVEC on several occasions, stated that in her opinion LPVEC would be appropriate, one school-based member (James Wilson, who was Student’s physical education teacher) and Mother took the position that Student would benefit from remaining at the Williams Middle School, and other members of the Team were undecided until more information could be obtained. Ms. Masciadrelli testified that on the basis of what occurred during the Team meeting, she anticipated that the IEP produced as a result of the meeting would reflect a proposed placement at LPVEC for 7 th grade even though there had been no vote of the Team regarding LPVEC. Similarly, Ms. Levy testified that she believed that there had been a full discussion of placement even though more information was needed by the Team members in order to decide upon a specific placement. She also testified that she thought it clear from the Team meeting that she would be putting LPVEC as the proposed placement in the IEP. Meeting notes indicated that Parent believed that placement at the Williams School would be appropriate, but that the Longmeadow members of the Team recommended that Student be placed in a structured program. Testimony of Mother, Kinney, Masciadrelli, Levy; exhibits P-84, P-144.
After the Team meeting, efforts were made to arrange for visits and observations at LPVEC and other possible placements. However, the earliest appointment that could be arranged for Parents to visit LPVEC would have occurred during its summer program, with the result that what would have been observed would not have been indicative of the regular school year. Mother declined to visit and observe a summer session at LPVEC. Testimony of Mother, Levy; exhibit P-111.
On the basis of this evidence, I find that sufficient discussion occurred regarding Student’s placement at LPVEC, and that nothing would have been gained by having a subsequent Team meeting to continue discussion of this issue. Accordingly, I find that there was no procedural violation implicating Parents’ right to participate in the placement decision or otherwise implicating Student’s right to FAPE. I also note that, as discussed above in part IV C 7, above, the IEP Team later changed the placement from LPVEC to Student’s current placement at the Williams Middle School, and Student was never placed at LPVEC. Thus, even if there were a procedural defect, Parents can claim no harm as a result.
VII. CONCLUSION
This dispute presents a severely physically disabled young man whose basic skills and abilities (for example, his rudimentary sitting, standing, and walking skills, and his rudimentary communication abilities) have regressed over the past several years. Yet, over the course of six full hearing days, with the assistance of four attorneys, the parties and their witnesses provided little insight as to ways in which Longmeadow should have provided different services in the past, so as to avoid regression or ways in which Student’s services could be improved in the future, so that meaningful and effective progress would be likely.
Parents, who had the burden of persuasion, presented two expert witnesses. One of Parents’ experts observed Student for two hours, read no reports about Student, spoke with no one other than Parents, and testified that she could not render an opinion as to how Student’s educational needs should be addressed. Parents’ other expert witness, who observed and informally evaluated Student and his educational program on February 27, 2008, testified that she had read no reports and had talked to no one (including Parents) subsequent to February 27, 2008, and she was therefore unable to render an opinion as to how Student’s needs should have been met in school years subsequent to her evaluation/observation, or how those needs should be met prospectively. Parents provided no expert written evaluation or report recommending educational services different than what Longmeadow has provided or proposed.
Parents spent considerable time and resources supporting their claims that Longmeadow did not provide all of the special education and related services that were required pursuant to accepted portions of IEPs and the parties’ Agreement. Parents’ evidence was persuasive regarding some, but by no means all, of these claims; and much of what I have concluded is owed to Student was not disputed by Longmeadow. But, Parents provided no probative evidence to support an argument that Longmeadow’s failure to provide agreed-upon services accounts for Student’s regression or his failure to make meaningful and effective progress.
Longmeadow is not without fault. Perhaps Longmeadow could have and should have made greater efforts to find additional service providers and to satisfy certain requirements with respect to agreed-upon services. But, it should also be noted that Longmeadow has devoted a substantial amount of educational resources to Student, including a 1:1 full-time special education teacher during the past two school years, a 1:1 aide, and extensive related services; and for the most part, Longmeadow’s deficiencies have been the result of its simply being unable to find sufficient service providers to deliver the requisite services. Longmeadow provided unrebutted evidence, including Parents’ independent educational evaluation, supporting what it has proposed for Student. And Longmeadow would likely have been (and would likely now be) willing to place Student within any out-of-district program that would appropriately address Student’s many educational needs in the least restrictive environment, if acceptable to Parents.
Where this dispute ends today is essentially where it began when Parents filed their original hearing request nearly three years ago on July 27, 2007. In their original hearing request, Parents explained the severity of their son’s needs and his lack of progress, but Parents did not propose any alternative special education or related services. They instead argued for the need for expert consultation and evaluation to determine how Student’s needs could and should be appropriately addressed. Evaluations and consultations have occurred, but the nature and extent of Student’s educational potential and how that potential can be developed is no better understood today than when this dispute began; nor is there any reason that this will likely change in the foreseeable future, with the exception of assessments and recommendations regarding assistive technology accommodations and services.
VIII. ORDER
1. The IEP most recently-proposed by Longmeadow (exhibits P-149, S-71), which was proposed as a result of an IEP Team meeting on October 15, 2009, is not reasonably calculated to provide Student with a free appropriate public education in the least restrictive environment in so far as the proposed placement does not provide Student with an appropriate peer group with whom he can learn. Longmeadow shall locate or create (for example, by including appropriate peers in his current placement) an appropriate placement for Student. No compensatory services are due as a result of the proposed placement being inappropriate.
2. The IEP for the period 5/9/06 to 5/9/07 (exhibits P-3, S-28) was reasonably calculated to provide Student with a free appropriate public education in the least restrictive environment.
3. The IEP for the period 11/13/07 to 11/12/08 (exhibits P-1, S-51) was reasonably calculated to provide Student with a free appropriate public education in the least restrictive environment.
4. The IEP for the period 2/11/08 to 2/12/09 (exhibits P-147, S-55) was reasonably calculated to provide Student with a free appropriate public education in the least restrictive environment.
5. The IEP for the period 2/12/09 to 2/11/10 (exhibits P-148, S-64), which was proposed pursuant to an IEP Team meeting on February 12, 2009, was not reasonably calculated to provide Student with a free appropriate public education in the least restrictive environment because the IEP should have proposed physical therapy for 45 minutes for three days per week instead of for two days per week. No compensatory services are due as a result of the IEP being inappropriate.
6. Longmeadow failed to provide special education or related services that it was mandated to provide Student pursuant to an IEP or agreement between the parties during the period of time from March 22, 2008 through the present. As compensatory education, Longmeadow shall provide the following services:
· 67 hours of direct speech-language services;
· 43.5 hours of direct physical therapy services;
· 20 hours of direct assistive technology services.
7. Longmeadow shall arrange for a comprehensive assistive communication evaluation that includes, but is not limited to, augmentative communication. This shall occur as soon as possible.
By the Hearing Officer,
William Crane
Dated: June 30, 2010
COMMONWEALTH OF MASSACHUSETTS
BUREAU OF SPECIAL EDUCATION APPEALS
THE BUREAU’S DECISION, INCLUDING RIGHTS OF APPEAL
Effect of the Decision
20 U.S.C. s. 1415(i)(1)(B) requires that a decision of the Bureau of Special Education Appeals be final and subject to no further agency review. Accordingly, the Bureau cannot permit motions to reconsider or to re-open a Bureau decision once it is issued. Bureau decisions are final decisions subject only to judicial review.
Except as set forth below, the final decision of the Bureau must be implemented immediately. Pursuant to M.G.L. c. 30A, s. 14(3), appeal of the decision does not operate as a stay. Rather, a party seeking to stay the decision of the Bureau must obtain such stay from the court having jurisdiction over the party’s appeal.
Under the provisions of 20 U.S.C. s. 1415(j), “unless the State or local education agency and the parents otherwise agree, the child shall remain in the then-current educational placement,” during the pendency of any judicial appeal of the Bureau decision, unless the child is seeking initial admission to a public school, in which case “with the consent of the parents, the child shall be placed in the public school program”. Therefore, where the Bureau has ordered the public school to place the child in a new placement, and the parents or guardian agree with that order, the public school shall immediately implement the placement ordered by the Bureau. School Committee of Burlington, v. Massachusetts Department of Education , 471 U.S. 359 (1985). Otherwise, a party seeking to change the child’s placement during the pendency of judicial proceedings must seek a preliminary injunction ordering such a change in placement from the court having jurisdiction over the appeal. Honig v. Doe , 484 U.S. 305 (1988); Doe v. Brookline , 722 F.2d 910 (1st Cir. 1983).
Compliance
A party contending that a Bureau of Special Education Appeals decision is not being implemented may file a motion with the Bureau contending that the decision is not being implemented and setting out the areas of non-compliance. The Hearing Officer may convene a hearing at which the scope of the inquiry shall be limited to the facts on the issue of compliance, facts of such a nature as to excuse performance, and facts bearing on a remedy. Upon a finding of non-compliance, the Hearing Officer may fashion appropriate relief, including referral of the matter to the Legal Office of the Department of Education or other office for appropriate enforcement action. 603 CMR 28.08(6)(b).
Rights of Appeal
Any party aggrieved by a decision of the Bureau of Special Education Appeals may file a complaint in the state court of competent jurisdiction or in the District Court of the United States for Massachusetts, for review of the Bureau decision. 20 U.S.C. s. 1415(i)(2).
An appeal of a Bureau decision to state superior court or to federal district court must be filed within ninety (90) days from the date of the decision. 20 U.S.C. s. 1415(i)(2)(B).
Confidentiality
In order to preserve the confidentiality of the student involved in these proceedings, when an appeal is taken to superior court or to federal district court, the parties are strongly urged to file the complaint without identifying the true name of the parents or the child, and to move that all exhibits, including the transcript of the hearing before the Bureau of Special Education Appeals, be impounded by the court. See Webster Grove School District v. Pulitzer Publishing Company , 898 F.2d 1371 (8th Cir. 1990). If the appealing party does not seek to impound the documents, the Bureau of Special Education Appeals, through the Attorney General’s Office, may move to impound the documents.
Record of the Hearing
The Bureau of Special Education Appeals will provide an electronic verbatim record of the hearing to any party, free of charge, upon receipt of a written request. Pursuant to federal law, upon receipt of a written request from any party, the Bureau of Special Education Appeals will arrange for and provide a certified written transcription of the entire proceedings by a certified court reporter, free of charge.
1
[Parents] v. Bureau of Special Educ. Appeals , 2010 WL 1172424 ( D.Mass. 2010).
2
The most recent issues statement, which became Parents’ amended hearing request, is dated February 18, 2010 and is exhibit P-80.
3
Parents took the position that the original hearing request (discussed within the text above) included a claim that the then-current IEP was not being properly implemented. Parents continued to take this position during the evidentiary hearing. As explained in my ruling addressing this issue, on the face of the original hearing request it is apparent that Parents have claimed that the IEP as written was not appropriate, but I can find no support for Parents’ position that there was also a claim regarding failure to implement an IEP. Parents pointed to nothing within the original hearing request that would have put Longmeadow on notice that Parents intended to include such a claim, much less the grounds upon which such a claim would rest. The distinction between a claim regarding appropriateness of an IEP and a claim that an IEP has not been implemented appropriately can be easily seen within Parents’ amended hearing request, which includes both types of claims. See exhibit P-80. See also Leatherman v. Tarrant County N ICU , 507 U.S. 163, 168 (1993) (Federal Rules of Civil Procedure require a statement of the claim that will give the “defendant fair notice of what the plaintiff’s claim is and the grounds upon which it rests”); Joseph Doe vs. Hampden-Wilbraham Regional School District , 2010 WL 2132799, 110 LRP 30887 (D.Mass. 2010) (distinguishing between a claim that an IEP is not appropriate from a claim that the IEP has not been implemented).
4
The parties agreed that no new IEP need be developed until the pending BSEA dispute has been resolved through a decision of the BSEA. When the most recently-proposed IEP was developed, there was a previously-proposed IEP for the same time period. Longmeadow met, discussed Student’s educational needs, and proposed this second IEP for the purpose of trying to reach agreement on some or all of the areas that were in dispute between Parents and Longmeadow. Testimony of Mother, Fontaine; exhibits P-148, S-64.
5
This IEP is similar to the earlier IEP for the same period of 2/12/09 to 2/11/10 (exhibit P-148, S-64), with the following principal differences:
· assistive technology for one hour each week has been changed from a consultation service to a direct service,
· Student is placed into a regular education science class for 50 minutes each day with support from special education and/or regular education staff,
· speech-language services were changed from a half hour four days per week to a half hour each day,
· physical therapy was changed from 45 minutes twice per week to a half hour each day,
· compensatory physical education services of a half hour three times per week have been added, and
· placement was at Williams Middle School for current school year (7 th grade) as compared to the previous IEP which called for placement at LPVEC for 7 th grade.
6
20 USC 1400 et seq .
7
MGL c. 71B.
8
20 USC 1400(d)(1)(A). See also 20 USC 1412(a)(1)(A).
9
The phrase “least restrictive environment” means that, to the maximum extent appropriate for the particular student, the educational services are to be provided with other students who do not have a disability. 20 USC 1400(d)(1)(A); 20 USC 1412(a)(1)(A); 20 USC 1412(a)(5)(A); MGL c. 71B, ss. 2, 3; 34 CFR 300.114(a)(2(i) ; 603 CMR 28.06(2)(c).
10
20 USC 1401(9)(b); Winkelman v. Parma City School Dist., 127 S.Ct. 1994, 2000-2001 (2007) (“education must … meet the standards of the State educational agency); Mr. I. v. Maine School Administrative District No. 55, 480 F.3d 1 , 11 (1 st Cir. 2007) (state may “ calibrate its own educational standards, provided it does not set them below the minimum level prescribed by the [IDEA]”); Town of Burlington v. Department of Education , 736 F.2d 773, 792 (1 st Cir. 1984) (states are “free to exceed, both substantively and procedurally, the protection and services to be provided to its disabled children”).
11
MGL c. 71B, ss. 1, 2, 3.
12
Bd. of Educ. of the Hendrick Hudson Central Sch. Dist. v. Rowley, 458 U.S. 176, 197, n.21 (1982) (“ Whatever Congress meant by an “appropriate” education, it is clear that it did not mean a potential-maximizing education.”).
13
G.D. v. Westmoreland Sch. Dist., 930 F.2d 942, 948 (1 st Cir. 1991). See also Lt. T.B. ex rel. N.B. v. Warwick Sch. Com., 361 F.3d 80, 83 (1 st Cir. 2004) (“IDEA does not require a public school to provide what is best for a special needs child, only that it provide an IEP that is ‘reasonably calculated’ to provide an ‘appropriate’ education as defined in federal and state law.”).
14
See Hendrick Hudson Dist. Bd. of Ed. v. Rowley, 458 U.S. 176, 208 (1982) (so long as school district has met its obligations to provide FAPE, any decisions regarding methodology are left to its discretion). Also, compare Deal v. Hamilton County Bd. of Educ., 392 F.3d 840, 862 (6th Cir. 2004) (“there is a point at which the difference in outcomes between two methods can be so great that provision of the lesser program could amount to denial of a FAPE”) with E.S. v. Independent School District, No. 196 , 135 F.3d 566 (8 th Cir. 1998) (“As long as a student is benefiting from her education, it is up to the educators to determine the appropriate methodology.”)
15
Irving Independent School District v. Tatro , 468 U.S. 883, 891 (1984) (internal quotations omitted), quoting Rowley, 458 U.S. at 192.
16
20 USC 1414(d)(1)(A)(i)(I)-(III); Honig v. Doe, 484 U.S. 305, 311-12 (1988) ; Bd. of Educ. of the Hendrick Hudson Central Sch. Dist. v. Rowley, 458 U.S. 176, 182 (1982).
17
Lenn v. Portland Sch. Comm., 998 F.2d 1083, 1086 (1 st Cir.1993) (internal quotations and citations omitted). See also 20 USC 1400(d)(1)(A) (IDEA enacted “to ensure that all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living”). See also 20 USC 1401(9), (29) ( “free appropriate public education” encompasses “special education and related services,” including “specially designed instruction, at no cost to Parents, 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”); Lessard v. Wilton Lyndeborough Cooperative School Dist. , 518 F.3d 18, 23 (1 st Cir. 2008) (noting the school district’s “ obligation to devise a custom-tailored IEP”).
18
Roland M. v. Concord Sch. Comm., 910 F.2d 983, 992 (1 st Cir. 1990) (internal quotations omitted).
19
Rowley , 458 U.S. at 207, quoted in Lessard v. Wilton-Lyndeborough Coop. School Dist . , 518 F.3d 18, 27 (1 st Cir. 2008) (1 st Cir. 2010) .
20
DB v. Sutton, 07-cv-40191-FDS (D.Mass. 2009). See also Lenn v. Portland Sch. Comm., 998 F.2d 1083, 1090 (1 st Cir.1993) (requiring that at a minimum the school district must provide student with “a meaningful, beneficial educational opportunity”), quoting Town of Burlington v. Dep’t of Educ ., 736 F.2d 773, 789 (1st Cir. 1984), aff’d 471 U.S. 359 (1985).
21
20 USC 1400(d)(4) (purposes of this title are . . . to assess, and ensure the effectiveness of , efforts to educate children with disabilities” (emphasis added); North Reading School Committee v. Bureau of Special Education Appeals, 480 F.Supp.2d 479, 489 (D.Mass. 2007 ) (educational program “must be reasonably calculated to provide effective results and demonstrable improvement in the various educational and personal skills identified as special needs”), quoting Lenn v. Portland Sch. Comm., 998 F.2d 1083, 1090 (1 st Cir. 1993) and Town of Burlington v. Dep’t of Educ., 736 F.2d 773, 788 (1 st Cir. 1984), aff’d 471 U.S. 359, 105 S.Ct. 1996, 85 L.Ed.2d 385 (1985).
22
602 CMR 28.05(4)(b) (“The Team shall carefully consider the general curriculum, the learning standards of the Massachusetts Curriculum Frameworks, the curriculum of the district, and shall include specially designed instruction or related services in the IEP designed to enable the student to progress effectively in the content areas of the general curriculum.”). See also 603 CMR 28.02(9) ( “ An eligible student shall have the right to receive special education and any related services that are necessary for the student to benefit from special education or that are necessary for the student to access the general curriculum.”).
23
MGL c. 71B, s. 1 ( term “special education” defined to mean “educational programs and assignments including, special classes and programs or services designed to develop the educational potential of children with disabilities.”); 603 CMR 28.01(3) ( purpose of regulations as “to ensure that eligible Massachusetts students receive special education services designed to develop the student’s individual educational potential.”).
24
Rowley , 458 U.S. at 202.
25
Id .
26
Lessard v. Wilton Lyndeborough Cooperative School Dist. , 518 F.3d 18, 29 (1 st Cir. 2008) (“levels of progress must be judged with respect to the potential of the particular child. So here: while the reported progress is modest by most standards, it is reasonable in the context of Stephanie’s manifold disabilities and low IQ [citation omitted]”). See also Lessard v. Wilton-Lyndeborough Cooperative School District , 592 F.3d 267, 270 (1 st Cir. 2010) (upholding appropriateness of IEP where evidence demonstrated that student ”was progressing at a level commensurate with her cognitive profile”); Hunt v. Bureau of Special Education Appeals , 109 LRP 55771, CA No. 08-10790-RGS (D.Mass. 2009) (“School districts provide a FAPE by designing and implementing an IEP ‘reasonably calculated’ to insure that the child receives meaningful ‘educational benefits’ consistent with the child’s learning potential” citing Rowley ); 603 CMR 28.02(17) (“ 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 student, and the learning standards set forth in the Massachusetts Curriculum Frameworks and the curriculum of the district.”)
27
Schaffer v. Weast , 546 U.S. 49, 62 (2005) (burden of persuasion in an administrative hearing challenging an IEP is placed upon the party seeking relief; a party who has the burden of persuasion “ loses if the evidence is closely balanced” ).
28
See Joseph Doe vs. Hampden-Wilbraham Regional School District , 2010 WL 2132799, 110 LRP 30887 (D.Mass. 2010) (acceptance of IEP precluded parents from contesting appropriateness of IEP, but did not preclude parents from claiming that the IEP had not been implemented by school district) (collecting cases); Independent School District No. 432, Mahnomen School v. J.H ., 8 F.Supp.2d 1166, 28 IDELR 427 (D.Minn. 1998) (acceptance of IEP precluded Hearing Officer from considering its appropriateness); In Re: Yale and Upper Cape Cod Regional Technical School and Sandwich Public Schools , BSEA # 06-0501 & # 06-0808, 11 MSER 200 (2005) (without a showing of lack of notice of parental options and due process rights, lack of meaningful parental participation in the development of the IEP, or any other procedural impropriety, the BSEA does not revisit accepted expired IEPs); In Re: Quabbin , 11 MSER 146 (MA SEA 2005); In Re: Sharon Public Schools , 8 MSER 51, 67 (MA SEA 2002); In Re: Carver Public Schools , 7 MSER 167, 179 (MA SEA 2001).
29
34 CFR 300.500(b)(1)(i).
30
G.D. v. Westmoreland School District , 930 F.2d 942, 944 (1 st Cir. 1991).
31
Student’s right to summer services is governed by standards requiring that certain special education or related services are needed either to avoid regression or to avoid other loss of educational benefits accrued during the school year . 34 CFR 300.106; 603 CMR 28.05(4)(d)1. See also Kenton County School District, v. Hunt , 384 F.3d 269, (6 th Cir. 2004); MM by DM and EM v. School Dist. of Grenville County , 37 IDELR 183 (4 th Cir. 2002); Johnson v. Indep. Sch. Dist. No. 4, 921 F.2d 1022, 1028 (10th Cir. 1990); Cordrey v. Euckert, 917 F.2d 1460, 1474 (6th Cir. 1990).
32
When Parents filed their original hearing request on July 27, 2007, their essential complaint, as reflected on the face of the hearing request, was that the then-current IEP was not appropriate for Student. Arguably, Parents’ hearing request, which alleges that this IEP is not appropriate, may be understood as Parents’ rejection of the IEP at least for purposes of the stay put status of the IEP from July 27 th forward. However, Mother’s testimony made clear that through their hearing request, Parents never intended to reject this IEP. Mother testified that at the time that their hearing request was filed, their concern was that they believed that the IEP was not being fully implemented and they wanted Student’s placement to be changed from the LLC program. However, she explained that through their original hearing request, Parents did not intend to take the position that the special education and related services described within the then-current IEP were inappropriate. Testimony of Mother. Moreover, Parents and their attorneys have made it clear throughout these proceedings that they consider this IEP to continue to be the last-accepted IEP with respect to the accepted parts of the IEP. See, e.g., Parents’ amended hearing request, footnote # 2. Exhibit P-80.
33
Parents’ first expert witness (Ms. Jarosz) recently observed Student for two hours, read no reports about Student, spoke with no one other than Parents, and testified that she could not render an opinion as to how Student’s educational needs should be (or should have been) addressed. Parents’ second expert witness (Ms. Stevens), who observed and informally evaluated Student and his educational program on February 27, 2008, testified that she had read no reports and had talked to no one (including Parents) subsequent to February 27, 2008, and she was therefore unable to render an opinion as to how Student’s needs should have been met in school years subsequent to her evaluation/observation or how those needs should be met prospectively. Also, Ms. Stevens provided no expert testimony regarding how Student’s needs should have been (or should be) addressed through speech-language services, physical therapy or occupational therapy.
34
Similarly, Ms. Mirer testified that while providing occupational therapy to Student, she is, at the same time, providing consultation to Student’s teacher and aide (who are typically watching the therapy) so that they can generalize these same techniques to other parts of the day. Ms. Mirer further stated that the teacher and aide for 7 th grade are the best so far in their ability to generalize the occupational therapy techniques to other parts of the day—“they carry over everything.” Also, Ms. Masciadrelli testified that after every one of her sessions, she speaks with Student’s special education teacher and aide to tell them what she worked on, and they carry over work on Student’s making sounds and signs. Testimony of Mirer, Masciadrelli.
35
The only other alternative service or program proposed by Parents is a prospective placement at a feeding program in Virginia, but Parents provided no evidence explaining the nature or benefits of this program or why it would be appropriate for Student. Therefore, the appropriateness of this proposed program cannot be considered.
36
With respect to Dr. Forman’s recommendation that there be collaboration between Longmeadow and the conductive education providers, Parents have not requested such collaboration, and I therefore do not consider it. I note, however, that there was no evidence at the hearing that Longmeadow would oppose such collaboration, and, in the past, one of its physical therapists (Halina Sullivan) observed conductive therapy being provided to Student within his home. Testimony of Mother.
37
In their closing argument (pages 27-28), Parents take the position that Longmeadow made a “pre-determined” decision not to fund conductive therapy. I can find no evidentiary basis to support this argument. Parents are correct that Longmeadow decided not to fund or provide conductive therapy even though Parents appeared to have had at least short term success with this therapy. Longmeadow considered this approach and decided against it for reasons explained in the text above. Parents’ position is misplaced that there were “undeniable” benefits to this therapy. As discussed in the text above, there was no expert testimony or report supporting the long-term benefits of this approach.
38
There was a previous assistive technology evaluation in 2000 by the Hampshire Educational Collaborative. The earlier evaluation is referenced in the Alternative Access evaluation, but the earlier evaluation report is not in evidence. Exhibit S-32.
39
In their closing argument (pages 40-42), Parents do not disagree with a “total communication” approach but take the position that Parents should have the opportunity to determine the appropriateness of specific communication devices and how much emphasis should be placed on a particular communication model. Parents claim that there was a “misunderstanding” regarding the types of communication each party was proposing. Going forward, it will be important for the parties to make substantial efforts to agree, to the extent possible, on how and what communication strategies are to be taught to Student so that communication strategies can be consistently taught and reinforced in both the home and school. As Ms. Stevens explained, it is not essential that the use of communication devices be identical between home and school, but there should be as much consistency and reinforcement as possible. Testimony of Stevens.
40
By letter of June 15, 2009, Ms. Kinney was notified by Longmeadow that she would not be employed by Longmeadow for the 2009-2010 school year due to “failure to meet performance standards”. Exhibit P-108.
41
See Hendrick Hudson Dist. Bd. of Ed. v. Rowley, 458 U.S. 176, 208 (1982) (so long as school district has met its obligations to provide FAPE, any decisions regarding methodology are left to its discretion); Lessard v. Wilton-Lyndeborough Cooperative School District , 592 F.3d 267, 270 (1 st Cir. 2010) (IEP provided FAPE even though staff did not have qualifications recommended by parents’ expert). The BSEA has generally found that school districts have the right to control assignment of teachers and related service providers, as long as these individuals have the requisite credentials for their positions. See, e.g., In Re: Ipswich Public Schools , 46 IDER 296 (Berman, 2006); Duxbury Public Schools , 13 MSER 25 (Figueroa, 2007).
42
20 U.S.C. § 1414(d)(1)(A)(i)(II).
43
Id. § 1414(d)(1) (A)(i)(III).
44
See, e.g., Escambia County Board of Education v. Benton , 406 F. Supp. 2d 1248 (S.D.Ala. 2005) ( finding that the procedural inadequacies in student’s IEPs resulted in a loss of educational opportunities, deprived his parents of information reasonably needed to enable them to participate in the IEP formulation process, and caused a deprivation of educational benefits, thereby denying him a FAPE).
45
Because Longmeadow (not Parents) is seeking to change what it has proposed in its most recent IEP, Longmeadow has the burden of persuasion on this issue. See Schaffer v. Weast , 546 U.S. 49 (2005).
46
Additional support comes from the Franciscan Hospital report, which included the recommendation that Student be placed within a highly specialized program for children with complex medical conditions affecting their functioning, with continued support from a 1:1 aide, and that Student’s “overall impaired functioning warrants placement in a self-contained classroom that is designed to address the needs of a mentally retarded/cognitively deficient student.” Exhibit S-61.
47
The importance of respecting the IEP process is highlighted in Schaffer v. Weast , 126 S. Ct. 528, 163 L. Ed. 2d 387 (2005) where the Court explained as follows: “ The core of the statute, however, is the cooperative process that it establishes between parents and schools. Rowley, supra , at 205-206, 102 S. Ct. 3034, 73 L. Ed. 690 (‘Congress placed every bit as much emphasis upon compliance with procedures giving parents and guardians a large measure of participation at every stage of the administrative process, . . . as it did upon the measurement of the resulting IEP against a substantive standard’). The central vehicle for this collaboration is the IEP process.”
48
See, e.g., A.R. v. New York City Department of Education , 407 F.3d 65, n.13 (2 nd Cir. 2005) (although the terms of a special education Hearing Officer’s decision are enforceable by a court, “[Hearing Officers], as is common in administrative procedures, have no enforcement mechanism of their own”).
49
BSEA Hearing Officers routinely make these determinations, as has been done in the instant Decision.
50
See 603 CMR 28.08(6)(b). Pursuant to this regulatory section, the BSEA Hearing Officer may render a decision regarding compliance and, after a finding of non-compliance, may refer the matter to the Department of Elementary and Secondary Education “for appropriate enforcement action”.
51
See, e.g., H.C. v. Colton-Pierrepont Cent. School Dist . , 2009 WL 2144016 (2 nd Cir. 2009) (“ due process hearing before an IHO [impartial hearing officer] was not the proper vehicle to enforce the settlement agreement” but IHO had responsibility to “ consider the settlement agreement to the extent it might have been relevant to the issue before him, i.e., whether H.C.’s 2006-07 IEP provided her with a FAPE”).
52
The IDEA defines a hearing officer’s jurisdiction as “ the identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education to such child.” 20 USC 1415(b)(6)(A). The First Circuit has broadly construed this jurisdictional language. Rose et al. v. Yeaw , 214 F.3d 206 (1 st Cir. 2000) (“scope of the due process hearing is broad, encompassing ‘complaints with respect to any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education to such child.’ Id. § 1415(b)(6)”).
53
See School Bd. Of Lee County, Fla. v. M.M. ex rel. M.M. , 2009 WL 3182971 (11 th Cir. 2009) (because breach of Settlement Agreement claim relates to FAPE , claim must first be considered in an administrative due process hearing before it can be considered by court); H.C. v. Colton-Pierrepont Cent. School Dist . , 2009 WL 2144016 (2 nd Cir. 2009) (“ due process hearing before an IHO [impartial hearing officer] was not the proper vehicle to enforce the settlement agreement” but IHO had responsibility to “ consider the settlement agreement to the extent it might have been relevant to the issue before him, i.e., whether H.C.’s 2006-07 IEP provided her with a FAPE”); T.L. ex rel. G.L. v. Palm Springs Unified School Dist. , 304 Fed.Appx. 548 (9 th Cir. 2008) (exhaustion of administrative due process required where claim is breach of settlement agreement regarding educational services under the IDEA); J.P. v. Cherokee County Bd. of Educ. , 218 Fed.Appx. 911 (11 th Cir. 2007 ) (claims regarding alleged breach of contract involving special education issues must be addressed through administrative due process remedies prior to consideration by the court); J.H. ex rel. J.H. v. Egg Harbor Tp. Bd. of Educ . , 2009 WL 1322514 ( D.N.J. 2009) ( court does not have jurisdiction over claims to enforce IDEA settlement agreements without first exhausting IDEA administrative remedies); Hayden C. ex rel. Tracy C. v. Western Placer Unified School Dist . , 2009 WL 1325945 ( E.D.Cal. 2009) (requiring exhaustion of administrative due process prior to court’s consideration of claim for enforcement of agreement settling IDEA claims); J .M.C. v. Louisiana Bd. of Elementary and Secondary Educ. , 584 F.Supp.2d 894 ( M.D.La. 2008) (exhaustion of administrative due process required where claim is breach of settlement agreement regarding educational services under the IDEA); H.C. v. Colton-Pierrepont Central School Dist . , 567 F.Supp.2d 340, 344 ( N.D.N.Y. 2008) (“ provisions in … settlement agreement were sufficiently related to plaintiff’s 2006-07 IEP such that the IHO not only had the authority to enforce the settlement agreement, but had a duty to do so”); R.K., ex rel. T.K. v. Hayward Unified School Dist. , 2007 WL 2778702 ( N.D.Cal. 2007) ( exhaustion is required for claims concerning breaches of agreements settling due process complaints, especially where the alleged breach relates to the student’s receipt of a FAPE); S.G. v. District of Columbia , 498 F.Supp.2d 304 ( D.D.C., 2007) (prior to consideration by the court, the hearing officer must first consider settlement agreement that is relevant to student’s special education rights); Traverse Bay Area Intermediate School Dist. v. Michigan Dept. of Educ. , 2007 WL 2219352 ( W.D.Mich 2007) (“Court concludes that the reasoning of the above cases requiring exhaustion of claims alleging breach of a settlement agreement, especially where such claims relate to the provision of a FAPE, is sound. Because the District’s breach of contract claims concern educational and medical evaluations of the minor as well as her educational placement, these are issues that may be addressed through the administrative process.” ); Sarah Z. v. Menlo Park City Sch. Dist., 2007 WL 1574569 (N.D.Cal. 2007) (court lacked jurisdiction to hear breach of contract claim relating to plaintiff’s special education services because claim was not exhausted before administrative law judge); Pedraza v. Alameda Unif. Sch. Dist., 2007 WL 949603, *6 (N.D.Cal. 2007) (alleged violation of settlement agreement was, in effect, an allegation of denial of FAPE; court indicated that the California Office for Administrative Hearings could have taken jurisdiction over the dispute); Chardon Local School District Board of Education v. A.D. , 2006 WL 840368 (N.D.Ohio 2006) (“this Court agrees with the IHO [impartial hearing officer] that it is wholly appropriate to treat alleged violations of the terms of the instant Mediation Agreement [which was attached to the IEP and therefore part of the educational record] within the scope of [the hearing officer’s] due process review”); Linda P. v. State of Hawaii, Dep’t of Education, 2006 WL 2167168 (D. Hawaii 2006) (“hearing officer correctly found and concluded that the claims were covered by a binding and enforceable settlement agreement”); Shawsheen Valley Regional Vocational Technical School Dist. School Committee v. Commonwealth of Mass. Bureau of Special Education Appeals , 367 F.Supp.2d 44, 55-56 ( D.Mass. 2005) (court implicitly indicated appropriateness of Massachusetts BSEA hearing officer’s consideration of whether settlement agreement had been complied with for purposes of ruling on parent’s compensatory claim) ; Board of Education of Township High School District No. 211 v. Michael R. and Diane R., 2005 WL 2008919 (N.D. Ill. 2005) (issue of whether the settlement agreement was breached was an issue to be decided by the Hearing Officer); Banks ex rel. Banks v. Modesto City Schs. Dist., 2005 WL 2233213 (E.D.Cal. 2005) (settlement agreement, entered into before a due process hearing had begun and not approved by an administrative law judge, did not constitute exhaustion); S.A.S. ex rel. W.S. v. Hibbing Pub. Schs., 2005 WL 1593011 (D.Minn. 2005) (plain language of settlement agreement prevents plaintiffs from raising any waived claims in an administrative or judicial forum); Joan R. v. Barrington Public Schools, 2004 U.S. Dist. LEXIS 22589, CA 02-282ML (D.R.I. 2004) (federal court affirmed Hearing Officer’s decision that school district must pay for part of student’s placement pursuant to an implied contract between the parties); Steward v. Hillsboro School District No. 1J , CV 00-835-AS, 2001 WL 34047100 (D.Oregon 2001) (“ settlement agreement that has been breached by the school district is a ‘complaint’ which, under the IDEA and its regulations, must first be presented to the appropriate administrative body”) ; (D.Oregon 2001); Kegel v. The Santa Fe Public Schools , CA 00-1806 JP/RLP (ACE), LoisLaw Federal District Court Opinions (D.N.M. 2001) (collecting cases) (“prevailing, and most sensible, view is that post-resolution enforcement claims must comply with IDEA’s administrative process”); Mr. J. v. Board of Education, 98 F. Supp.2d 226 (D.Conn. 2000) (“[p]ublic policy dictates that settlement agreements should be enforced” by hearing officer) ; Tyson v. Kanawha County Bd. of Ed ., 22 F.Supp.2d 535, 537 (S.D. W. V. 1997) (court dismissed claims for failure to exhaust administrative due process since “issue of whether a breach existed of any settlement between the parties is itself an entire new issue to be complained of and put through the proper administrative process”) ; W.L.G. v. Houston County Board of Education , 975 F.Supp. 1317, 1328-1329 (M.D. Ala. 1997) (“ claim that the school board has failed to comply with the settlement agreement is essentially a ‘complaint,’ which, under the IDEA, first should be presented in a due-process hearing ”).
54
See 603 CMR 28.08(5)(c) (BSEA hearing officer has the “power and duty” to reach a decision “in accordance with applicable law”).
55
Within the context of an attorney fees dispute, the First Circuit has made clear that it will consider the relevance of an agreement that alters the parties’ rights under the IDEA. See Alison H. v. Byard , 163 F.3d 2 (1 st Cir. 1998).
56
Mother testified, and it is not disputed, that the parties later agreed that occupational therapy services may be provided for 45 minutes twice per week, rather than for a half hour three times per week as reflected within the agreement. Testimony of Mother.
57
See, e.g., C.G. ex rel. A.S. v. Five Town Community School Dist. , 513 F.3d 279 , 290 (1 st Cir. 2008) (“ compensatory education is . . . a discretionary remedy for nonfeasance or misfeasance in connection with a school system’s obligations under the IDEA” ).
58
In their closing argument (page 15), Parents correctly point out that the last agreed-upon IEP also called for Student to participate in a socialization group with peers for a half hour per week and that a speech-language therapist would lead this group. Exhibit P-3, S-28). However, Parents did not provide evidence relevant to the implementation of (or Longmeadow’s failure to implement) this service, and therefore Parents did not satisfy their burden of persuasion on this aspect of the case. I also note that Parents did not identify this as an issue in their amended hearing request; Parents only referred to the alleged failure to provide “speech therapy sessions” which would not necessarily include a socialization group led by a speech-language therapist. Exhibit P-80. Therefore, Parents were precluded from raising this issue at hearing. See 20 USC § 1415 (f)(3)(B) (“party requesting the due process hearing shall not be allowed to raise issues at the due process hearing that were not raised in the notice filed under subsection (b)(7), unless the other party agrees otherwise”).
59
This calculation is based on an assumed school year of 180 school days, which is the equivalent of 36 school weeks for an entire school year.
60
Mother testified that her estimate of missed speech-language services from October 2008 through the present (assuming continuation of the level of services being provided to Student as of the date of her testimony) was 130 hours, but she did not provide a basis for this estimate, and I therefore do not consider her testimony to be reliable. Ms. Fontaine testified that Student was owed an hour per week of speech-language services from the 2008-2009 school year, and probably the same for the current (2009-2010) school year, resulting in a total of approximately 72 hours of speech-language services owed to Student by the end of the current school year. Similarly, Ms. Fontaine did not provide sufficient basis for her estimate for it to have probative value. Testimony of Mother, Fontaine; exhibit S-79.
61
In their amended hearing request, Parents claimed that Longmeadow did not provide the requisite physical therapy consultation services, as well as its failure to provide direct physical therapy services. Exhibit P-80. Parents did not provide evidence in support of a claim regarding PT consultation services and therefore did not satisfy their burden of persuasion. In their closing argument, Parents have not discussed the issue of alleged failure to provide these services.
62
In their closing argument (at page 9), Parents argue that the amount of Ms. Mirer’s time should be reduced by the six and one-quarter hours of training provided by Ms. Mirer to the special education teacher (Ms. Paris-Kro). Parents take the position that had Longmeadow hired an appropriately-qualified special education teacher, this training would not have been required. I find no evidentiary basis for this argument. Parents further argue that this amount of time training Ms. Paris-Kro does not comply with Student’s IEP. I disagree. The training time is properly understood as occupational therapy consultation services, which are required to be provided pursuant to Student’s last-accepted IEP, as discussed above in the text.
63
Parents argue for further reduction in the amount of therapy actually provided by Ms. Mirer. For this purpose, Parents rely on notations by Ms. Kinney regarding the length of therapy. However, I find it more likely that Ms. Mirer’s notes regarding length of time of therapy are more reliable than Ms. Kinney’s notes in this regard. Accordingly, I do not discount Ms. Mirer’s time regarding the following discrepancies alleged by Parents in their closing argument:
· November, 4, 2008 – According to Ms. Kinney’s plan book, Student only received 45 minutes of OT on this day. However, Ms. Mirer claims to have provided Student with 60 minutes on this day. Thus, there is a 15 minute discrepancy on this day. Exhibits P-92, S-86.
· November 14, 2008 – Ms. Mirer states in her affidavit that she had a 60 minute OT session with Student. However, in the communication log between the parents on that day, Ms. Mirer stated that Student received a 45 minutes OT session. Thus, there is a 15 minute discrepancy on this day. Exhibits P-134, S86.
· December 4, 2008- According to Ms. Kinney’s plan book, Student only received 45 minutes of OT on this day. However, Ms. Mirer claims to have provided Student with 60 minutes on this day. Thus, there is a 15 minute discrepancy on this day. Exhibits P-92, S-86.
· January 12, 2009 and January 15, 2009 – Ms. Mirer’s affidavit she states that she provided Student with 60 minute sessions on these days. However, Ms. Kinney’s plan book only allotted for 45 minute therapy sessions. Thus, there is a 15 minute discrepancy on each day. Exhibits P-92, S-86.
· March 10, 2009 and March 11, 2009 – According to Ms. Mirer’s notes in Student’s communication log, she provided Student with two 45 minute sessions during the week of March 9, 2009 to March 13, 2009. Ms. Mirer claims to have actually provided Student with two 60 minute sessions during this week. Thus, there is a 30 minute discrepancy on these dates. Exhibits P-92, P-134, S-86.
· March 26, 2009 – According to Ms. Kinney’s plan book, Student only received 45 minutes of OT on this day. However, Ms. Mirer claims to have provided Student with 60 minutes on this day. Thus, there is a 15 minute discrepancy on this day. Exhibits P-92, S-86.
· March 30, 2009 – Ms. Kinney’s notes in her lesson plan book state that Student received 45 minutes of OT therapy on that day. However, Ms. Mirer claims that she actually provided Student with 2 hours of therapy. Thus, there is a 1 hour and 15 minute discrepancy on this day. Exhibits P-92, S-86.
· May 29, 2009 – According to Ms. Kinney’s plan book, Student only received 45 minutes of OT on this day. However, Ms. Mirer claims to have provided Student with 60 minutes on this day. Thus, there is a 15 minute discrepancy on this day. Exhibits P-92, S-86.
· December 4, 2009 – According to Ms. Mirer’s note left in Student’s communication log, Student received 45 minutes of OT on this day. However, according to Ms. Mirer’s affidavit, Student received 1 hour and 15 minutes on service on this day. Thus, there is a 30 minute discrepancy on this day. Exhibits P-135, S-86.
64
For purposes of these calculations, I have accepted Parents’ position regarding the number of weeks during which occupational therapy services were owed, except that I have extended the time period through May 7, 2010, rather than Parents’ date of April 28, 2010. See Parents’ closing argument at footnotes 2, 3. However, Parents calculated that a larger number of hours of direct occupational therapy services were owed. Parents’ calculation is based on the proposition that the hours agreed upon within the parties’ Agreement continued through the present. See Parents’ closing argument at 3, 9-10. For reasons explained in the text above, I do not concur with this proposition.
65
The fact that Ms. Mirer has provided one more hour of services than required (even though she has missed a number of therapy sessions) may be explained by the fact that Ms. Mirer has been providing direct occupational therapy services of 45 minutes twice per week even though, as explained above, Longmeadow’s obligation pursuant to the last-accepted IEP was reduced to a half hour of direct services twice per week.
66
Ms. Smith prepared a sheet documenting the assistive technology services that she provided Student during the summer of 2008. This sheet reflects the dates when Longmeadow was not required to provide services. Exhibit S-77 (4 th page).
67
Billing records also indicate that direct services were provided on June 1, 2009 and January 18, 2010, but Student was absent on the first day, and the second day was a holiday. Exhibits S-70, S-77.
68
Parents’ closing argument at page 14.
69
Id. at 18.
70
Ms. M. ex rel. K.M. v. Portland School Committee , 360 F.3d 267, 273 (1 st Cir. 2004) ( “ Given that Congress has imposed statutory restrictions on the equitable remedy of tuition reimbursement that are directly applicable here, allowing Ms. M. to pursue a compensatory
education claim for tuition reimbursement would undercut the statute. Moreover, when this court has used the term “compensatory education,” it has usually assumed that the remedies available involve prospective injunctive relief, which would not encompass tuition reimbursement.)
71
See, e.g., C.G. ex rel. A.S. v. Five Town Community School Dist. , 513 F.3d 279 , 290 (1 st Cir. 2008) (“ compensatory education is . . . a discretionary remedy for nonfeasance or misfeasance in connection with a school system’s obligations under the IDEA” ); G. ex rel. RG v. Fort Bragg Dependent Sch., 343 F.3d 295, 309 (4th Cir. 2003) (“Compensatory education involves discretionary, prospective, injunctive relief crafted by a court to remedy what might be termed an educational deficit created by an educational agency’s failure over a given period of time to provide a FAPE to a student.”); Pihl v. Mass. Dept. of Ed. , 9 F.3d 184 (1 st Cir. 1993) (“compensatory education is available to remedy past deprivations”); Lester H. v. Gilhool, 916 F.2d 865 (3rd Cir. 1990), cert. denied 499 U.S. 923, 111 S.Ct. 317 (1991) (compensatory education is intended to be “an appropriate remedy to cure the deprivation of a child’s right to a free appropriate public education”); Miener v. State of Missouri , 800 F.2d 749 (8th Cir. 1986) (compensatory education intended to cure the deprivation of a handicapped child’s statutory rights).
72
Reid v. District of Columbia, 401 F.3d 516, 527 (D.C. Cir. 2005). See also Draper v. Atlanta Independent School System , 518 F.3d 1275, 1289 (11 th Cir. 2008) .
73
Pihl v. Mass. Dept. of Ed. , 9 F.3d 184, 189 (1 st Cir. 1993) (The IDEA “may require services at a future time to compensate for what was lost”).
74
20 USCS § 1415(f)(3)(E)(2)(ii).